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Home My WebLink About4.0 - Verizon Wireless Right-of-Way Telecom Appea - PA2015-094 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT November 5, 2015 Agenda Item No. 4 SUBJECT: Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) 1 (CS) Narbonne (Northeast Corner of Spyglass Hill Drive and EI Capitan Drive) Minor Use Permit No. UP2015-024 APPLICANT/CARRIER: Verizon Wireless OWNER: City of Newport Beach PLANNER: Benjamin M. Zdeba, AICP, Associate Planner (949) 644-3253, bzdeba@newportbeachca.gov PROJECT SUMMARY Appeal of the Zoning Administrator's September 10, 2015, decision to approve a minor use permit to construct a new Class 3 (Public Right-of-Way) wireless telecommunications facility within the public right-of-way at the northeastern corner of Spyglass Hill Road and EI Capitan Drive, adjacent to Spyglass Hill Park. The applicant proposes to replace an existing city light standard with a new 35-foot-high stealth light standard that includes screening for three (3) panel antennas and one (1) GPS antenna. The proposed support equipment would be installed within a new underground vault approximately 90 feet southeast of the stealth light standard. RECOMMENDATION 1) Conduct a de novo public hearing; and 2) Adopt Resolution No. _ upholding the Zoning Administrator's decision approving Minor Use Permit No. UP2015-024 (Attachment No. PC 1). 1 V� QP �P Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 2 VICINITY MAP v posed Sit 4 .4i W. - 7 w � fit ' ♦.• ;`. � se. -- GENERAL PLAN ZONING J "" LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE N/A NIA Public right-of-way RS-D (Single-Unit Residential PC-3 (Harbor View NORTH Detached Hills Single-family residences SOUTH RS-D PC-3 Single-family residences PPR R (Parks and Recreation) and Spyglass Hill Park and single-family EAST RS-D and PC-3 residences WEST RS-D and OS (Open Space) PC-3 and OS Single-family residences and open sace 3 Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 3 INTRODUCTION Project Setting The subject site is located near the northeastern corner of the intersection of Spyglass Hill Road and EI Capitan Drive within the public right-of-way abutting Spyglass Hill Park. Being that it is located within the public right-of-way, the site is not designated by the General Plan Land Use Element and, therefore, is not located within a zoning district. The surrounding area is developed primarily with single-family residences. Project Description The applicant seeks a minor use permit to construct a new wireless telecommunications facility which will entail the replacement of an existing city light standard in the public right-of-way with a new 35-foot-high stealth light standard. The new standard will include a 30-inch diameter radome housing three (3) panel antennas and one (1) GPS antenna. All support equipment will be housed within an underground vault adjacent to the light standard location. Background and Appeal On September 10, 2015, the Zoning Administrator conducted a public hearing and approved the applicant's request. During the meeting, two members of the public spoke in opposition to the Minor Use Permit expressing concerns regarding health and general incompatibility with the neighborhood (Attachment No. PC 3). It should be noted that under Federal Law, specifically Section 47 USC 332(c)(7)(B)(iv), the City is prohibited from regulating the placement, construction, and modification of wireless telecommunications facilities on the basis of the environmental effects of radio frequency (RF) emissions. On September 24, 2015, residents Laurie and Bruce Horn filed an appeal of the decision of the Zoning Administrator for the purpose of bringing the item before the Planning Commission for review. The appeal documentation expressed concerns regarding negative aesthetic effects, a decrease in surrounding property values, adequacy of the existing Verizon Wireless coverage, and general incompatibility with the neighborhood. The complete appeal application has been attached as Attachment No. PC 4. Staff notes that the Planning Commission is not bound by the Zoning Administrator's decision. Pursuant to Municipal Code Section 20.64.030 (Filing and Processing of Appeals and Calls for Review), a public hearing on a call for review is conducted "de novo," meaning that it is a new hearing and the decision being reviewed has no force or effect as of the date the call-for-review was filed. 4 Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 4 DISCUSSION Analysis Pursuant to Chapter 20.49 (Wireless Telecommunications Facilities), the facility is defined as a Class 3 (Public Right-of-Way) Installation given that it will be located within the public right-of-way. Class 3 facilities require the approval of a minor use permit. Section 20.52.020 (Conditional Use Permits and Minor Use Permits) stipulates the Planning Commission must make the following findings in order to approve a Conditional Use Permit: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Additional findings specific to review of a use permit application for a wireless telecommunications facility are required in Section 20.49.060 (Permit Review Procedures). Those additional findings are as follows: a. The proposed telecom facility is visually compatible with the surrounding neighborhood. b. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. c. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 5 d. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. The proposal will allow the establishment of a new facility that, as designed and conditioned within the draft resolution, will not visually dominate the existing development rather it will blend as existing infrastructure consistent with Zoning Code Section 20.49.050(E) (Design Techniques) while providing improved coverage and capacity within the area. As conditioned in the draft resolution and required by Zoning Code Section 20.49.050(F) (Screening Standards), replacement street light standards are required to be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. The existing light standard has a total overall mounting height of 29 feet, 6 inches and the proposed light standard matches this height, but will extend to an overall height of 35 feet with the attached radome screening structure. The proposed height is compliant with the maximum height allowed for a facility installed on street light standards of 35 feet identified in Section 20.49.050(C) (Height). Photographic renderings were provided by the applicant to demonstrate the intent to match the existing street light standard and to graphically demonstrate the overall change to the area (Attachment No. PC 6). Alternative sites within the area were vetted by the applicant and were determined to be unsuitable due to topographic constraints, zoning and other related factors. The alternative sites are detailed within the applicant's project description and justification attached (Attachment No. PC 5). Section 20.49.040(A) (Telecom Facility Preferences and Prohibited Locations) prioritizes wireless telecommunication facility installation types as follows: 1) Collocation of a new facility at an existing facility; 2) Class 1 (Stealth/Screened); 3) Class 2 (Visible Antennas) and Class 3 (Public Right-of-Way); and 4) Class 4 (Freestanding Structure) Although lower on the listing of priority facilities, the proposed facility is designed such that it will be in scale and harmony with the surrounding area and is intended to blend seamlessly into the infrastructure of the neighborhood. The opportunity to collocate or construct a facility on existing structures (Classes 1 or 2) is limited given the lack of viable nonresidential structures in the area that would provide a similar benefit to the carrier. Being that the proposed location is within the public right-of-way; the City's Public Works and Municipal Operations Departments have reviewed the proposal and have provided conditions of approval to ensure compliance with the applicable sections of the Municipal Code while minimizing any potential damage or detriment to the existing improvements at the site (e.g., landscaping and pavement). Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 6 Alternatives If the Planning Commission finds the facts do not support the findings required to grant approval of the Minor Use Permit application, the Planning Commission should adopt a resolution to deny the project, reversing the September 10, 2015, decision of the Zoning Administrator to approve the Minor Use Permit. The attached Resolution for Denial (Attachment No. PC 2) is provided to facilitate this action and would require additional information or findings that the Planning Commission may deem necessary or warranted. Environmental Review Pursuant to CEQA Guidelines Section 15270, projects which a public agency rejects or disapproves are not subject to CEQA review. If the applicant's request is approved, the project is categorically exempt under Section 15303, of the State CEQA (California Environmental Quality Act) Guidelines — Class 3 (New Construction or Conversion of Small Structures). Class 3 allows construction of new, small facilities or structures and installation of small new equipment and facilities in small structures. The proposed project will include replacement of an existing light standard with a new stealth light standard that has been modified to contain screened antennas. The support equipment will be housed in a small vault below ground and approximately 90 feet southeast of the light standard. Public Notice Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of- way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Submitted by: 7J inVf. deba, AICP, *rn snes i, ICP, Deputy Director sociatePAnner ATTACHMENTS PC 1 Draft Resolution for Approval PC 2 Draft Resolution for Denial Verizon Wireless Right-of-Way Telecom Appeal Planning Commission, November 5, 2015 Page 7 PC 3 Zoning Administrator Meeting Minutes, September 10, 2015 PC 4 Appeal Application, September 24, 2015 PC 5 Applicant's Project Description and Justification PC 6 Photographic Simulations and Project Plans Tem plate.dotx:1 oio615 Attachment No. PC 1 Draft Resolution for Approval 9 V� QP �P 20 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF THE ZONING ADMINISTRATOR AND APPROVING MINOR USE PERMIT NO. UP2015-024 FOR A NEW CLASS 3 (PUBLIC RIGHT-OF-WAY) WIRELESS TELECOMMUNICATIONS FACILITY AT 1 (CS) NARBONNE (NORTHEAST CORNER OF SPYGLASS HILL ROAD AND EL CAPITAN DRIVE) (PA2015- 094) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Verizon Wireless with respect to the public right-of-way area located at 1 (CS) Narbonne near the northeastern corner of Spyglass Hill Road and EI Capitan Drive requesting approval of a minor use permit. 2. The applicant proposes to construct a new Class 3 (Public Right-of-Way) wireless telecommunications facility installation at the northeastern corner of Spyglass Hill Road and EI Capitan Drive. The project will include the replacement of an existing light standard with a new 35-foot-high stealth light standard with a 30-inch radome screening three panel antennas and a GPS antenna. All support equipment will be installed within a new underground vault approximately 90 feet southeast of the stealth light standard within the public right-of-way. 3. The site is within the public right-of-way and is, therefore, not designated within the Land Use Element of the General Plan nor is it located within a zoning district. 4. The site is not located within the Coastal Zone boundary. 5. A public hearing was held on September 10, 2015, in the Corona del Mar Conference Room (Bay E-1st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this meeting. 6. The Zoning Administrator adopted Resolution No. ZA2015-053 approving Minor Use Permit No. UP2015-024. 7. On September 24, 2015, residents Laurie and Bruce Horn filed an appeal of the Zoning Administrator's decision. 8. A de novo public hearing was held by the Planning Commission on November 5, 2015, in the Council Chambers at 100 Civic Center Drive, Newport Beach. The Planning Commission considered evidence both written and oral presented at this meeting. A 11 Planning Commission Resolution No. Page 2 of 12 notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt pursuant to Title 14 of the California Code of Regulations (Section 15303, Article 19 of Chapter 3, Guidelines for Implementation of the California Environmental Quality Act) under Class 3 (New Construction or Conversion of Small Structures). 2. The Class 3 exemption covers the installation of small new equipment and facilities in small structures. The proposed project will include replacement of an existing light standard with a new stealth light standard that has been modified to contain screened antennas. The support equipment will be housed in a small vault below ground and approximately 90 feet southeast of the light standard. . SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 (C 4" 'e Perrnteand Minor Use Permits) of the Newport Beach Municipal Code, the follo g firings a4facts in support of such findings are set forth: " Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: ` 1 . The site is not designated within the Land Use Element of the General Plan as it is located within the public right-of-way. 2. The site is not in a specific plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The site is not located within a zoning district as it is located within the public right-of- way. 2. Zoning Code Chapter 20.49 (Wireless Telecommunications Facilities) identifies wireless telecommunications facilities within the public right-of-way as a Class 3 Installation which is permissible subject to the approval of a minor use permit. Section 20.49.040 (Telecom Facility Preferences and Prohibited Locations) lists certain prohibited locations and the proposed facility is not a prohibited location. 03-03-2015 12 Planning Commission Resolution No. Page 3 of 12 3. Section 20.49.040(A) prioritizes wireless telecommunication facilities as follows: 1) collocation of a new facility at an existing facility; 2) Class 1 (Stealth/Screened); 3) Class 2 (Visible Antennas) and Class 3 (Public Right-of-Way); and Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility is designed such that it will not visually dominate the surrounding area and is intended to blend seamlessly into the infrastructure of the neighborhood. 4. Support equipment will be installed in an underground vault located southeast of the site. As conditioned, the existing landscaping will be protected and replaced as necessary such that the streetscape and access along the street is unaffected by the facility. 5. With construction as shown on the plans and visual simulations with the implementation of the conditions of approval, the proposed facility will comply with applicable requirements of the Zoning Code. Finding: Ax% C. The design, location, size, and operatingc cteristicdf the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The proposed design will replicate that of a street light standard which will help to blend in with the existing development of the residential neighborhood. 2. The support equipment for the site will be placed in an underground vault such that the facility will not hinder use of the existing sidewalk or public right-of-way along Spyglass Hill Road or EI Capitan Drive. 3. The proposed telecom facility will be unmanned, have no impact on the circulation system, and, as conditioned, should not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. 4. The proposed facility will enhance coverage and capacity for visitors and to residents of the area by providing wireless access to voice and data transmission services. The proposed facility will not result in any material changes to the character of the local community. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. 03-03-2015 '�3 Planning Commission Resolution No. Page 4 of 12 Facts in Support of Finding: 1. Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site and the proposed use will not change this. 2. The proposed telecom facility will be unmanned, have no impact on the circulation system, and, as conditioned, should not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. 3. The Public Works Department, Building Division, Police Department, and Fire Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The proposed facility will comply with the applicable rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC), thus ensuring public health and safety. 2. The proposed facility is not located in an area adjacent to a coastal view road or public coastal view point. 3. The proposed wireless telecommunications facility will be effectively screened based upon the design and location with the incorporation of the conditions of approval. As a result, the proposed telecommunication facility at this location will not result in conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. 4. Although the proposed facility is adjacent to Spyglass Hill Park, it will be located within the public right-of-way and will not interfere with use of the park. 5. The proposal has been reviewed by the Building Division, Public Works, Fire, and Police Departments, and recommended conditions of approval have been included to limit any detriment to the City or general welfare of persons visiting or working in the surrounding neighborhood. In accordance with Section 20.49.060 (Permit Review Procedures) of the Newport Beach Municipal Code, the following additional findings and facts in support of such findings are set forth: 03-03-2015 '1-�. Planning Commission Resolution No. Page 5 of 12 Finding: a. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: 1. The proposed facility will include a new 35-foot-high stealth light standard with support equipment vaulted below ground. Installation of the new light standard will replace an existing light standard and will not appear out of character with the surrounding neighborhood as the facility will blend with existing infrastructure. Finding: b. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Findinq: 1. The proposed telecom facility will be of similar height w1kothe existing light standard and will not exceed 35 feet in height above existing grade as stipulated by the design standards. 2. The stealth light standard will utilize a radome to screen all antennas which will be treated with exterior coating to match the existing light standard thereby creating a more inconspicuous facility that blends with the existing development and the surrounding neighborhood. 3. As conditioned, the design of the stealth replacement light standard will be consistent with the design of the existing light standard. 4. The support equipment will be located within an underground vault that is completely below finished grade. Finding: C. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: 1. Alternative sites located further away from Spyglass Hill Park or nearby residential uses would limit the coverage objectives and would not fulfill the need demonstrated by Verizon Wireless to enhance coverage and capacity. The applicant has provided maps that demonstrate improved coverage within the immediate vicinity as a result of the proposed facility. 03-03-2015 15 Planning Commission Resolution No. Page 6 of 12 2. Alternative sites to serve the area are limited as the immediate vicinity is primarily residential. Finding: d. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: 1. The opportunity to collocate or construct a facility on existing structures (Classes 1 or 2) is limited given the lack of viable nonresidential structures in the area that would provide similar service coverage. 2. The proposed stealth light standard (Class 3 — Public Right-of-Way Installation) will blend well with the existing residential development in the area and precedes Class 4 (Freestanding) Installation in order of priority. SECTION 4. DECISION. 116, Imp, NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Minor Use Permit No. UP2015-024 subject to the conditions set forth in Exhibit "A", which is attached hereto and incorporated by reference. 2. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 5T" DAY OF NOVEMBER, 2015. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman BY: Peter Koetting, Secretary 03-03-2015 10 Planning Commission Resolution No. Page 7 of 12 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan, equipment plans and elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The telecom facility approved by this permit shall comply with all applicable rules, regulations, and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). 4. Prior to issuance of building permits, the applicant shall obtain an effective license agreement with the City regarding use of the public right-of-way for private purposes. 5. Prior to issuance of building permits, the applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Minor Use Permit file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by the Minor Use Permit and shall highlight the approved elements such that they are discernible from other elements of the plans. 6. Prior to issuance of building permits, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 7. The operator of the telecom facility shall maintain the facility in a manner consistent with the original approval of the facility and all conditions of approval. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 8. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher. Between the hours of 7:OOAM Between the hours of and 10:OOPM 10:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 45dBA 60dBA 45dBA 50dBA 100 feet of a commercial property Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 03-03-2015 2 Planning Commission Resolution No. Page 8 of 12 9. The applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 10. The facility shall transmit at the approved frequency ranges established by the FCC. The applicant shall inform the City, in writing, of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 11. The applicant recognizes that the frequencies used by the facility are extremely close to the frequencies used by the City of Newport Beach for public safety. This proximity will require extraordinary "comprehensive advanced planning and frequency coordination" engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public-Safety Communications Officials- International, Inc. (APCO), and as endorsed by the Federal Communications Commission (FCC). 12. The applicant shall provide a "single point of contact" in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and e-mail address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. 13. Appropriate information warning signs or plates shall be posted at the access locations and each transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. 14. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 15. The telecom facility shall not be lighted except as deemed necessary by the Newport Beach Police Department for security lighting. The night lighting shall be at the lowest intensity necessary for that purpose and such lighting shall be shielded so that direct rays do not shine on nearby properties. Prior to the final of building permits, the applicant shall schedule an evening inspection with the Code Enforcement Division to confirm compliance with this condition. 16. At all times, the operator shall ensure that its telecom facilities comply with the most current regulatory operations standards, and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining 03-03-2015 18 Planning Commission Resolution No. Page 9 of 12 the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director. 17. The applicant shall ensure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. 18. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator or property owner shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, transfer the rights to use the facility to another operator, or remove the telecom facility and restore the site. 19. The City reserves the right and jurisdiction to review and modify any telecom permit approved pursuant to Chapter 20.49 of the Newport Beach Municipal Code, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the 'height or size of the facility; increase the size, shape, or number of antennas; change tf'Ye facility's color, materials, or location on the site; or increase the signal output above the maximum permissible exposure (MPE) limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a modification of the original telecom permit and obtain the modified permit prior to implementing any change. 20. This Minor Use Permit may be modified or revoked by the City should they determine that the facility or operator has violated any law regulating the telecom facility or has failed to comply with the requirements of Chapter 20.49 of the NBMC, or this permit. 21. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 22. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 23. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Spyglass Hill Right-of-Way Telecom including, but not limited to, the Minor Use Permit No. UP2015-024 (PA2015-094). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of 03-03-2015 1q Planning Commission Resolution No. Page 10 of 12 suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. BUILDING DIVISION 24. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. 25. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) to comply with the General Permit for Construction Activities shall be prepared, submitted to the State Water Quality Control Board for approval and made part of the construction program. The project applicant will provide the City with a copy of the NOI and their applicAlion check as proof of filing with the State Water Quality Control Board. This plan will detail measures and practices that will be in effect during construction to minimize the project's impact on water quality. PUBLIC WORKS DEPARTMENT 26. If any of the existing public improvements surrounding the site are damaged by the private work, new concrete sidewalk, curb and gutter, alley/street pavement, and other public improvements will be required by the City at the time of private construction completion. Said determination and the extent of the repair work shall be made at the discretion of the Public Works Inspector. 27. The storage of all project related equipment during construction shall not be within the public right-of-way, unless otherwise approved by the Public Works and Municipal Operations Departments. 28. Prior to the issuance of building permits, an approved Encroachment Permit is required for all work activities within the Spyglass Hill Road and EI Capitan Drive rights-of-way. Any lane closures will require Traffic Control plans, which shall be prepared by a registered California Traffic Engineer, unless otherwise approved by the City Traffic Engineer. 29. All work in the public rights-of-way shall follow City's Municipal Code Chapter 13.20 (Public Rights-of-Way). 30. Although the proposed location is currently not within an Underground Assessment District, if or when there is an approved Underground Assessment District in the future, 03-03-2015 20 Planning Commission Resolution No. Page 11 of 12 the applicant shall relocate the facilities underground pursuant to Municipal Code Section 13.20.030 (City Policies Regarding Use of the PROW). 31. The construction plans shall satisfy NBMC Chapter 13.20. 32. The applicant shall assume 100 percent of all costs associated with any alterations to the existing improvements along Spyglass Hill Road and EI Capitan Drive for development of the telecom facility. 33. The applicant shall be responsible for the repair and/or replacement of any curb and gutters, concrete sidewalk, alley/street pavement that may be damaged through the course of construction, as directed by the Public Works Department. 34. Appropriate informational radio frequency warning signs or plates shall be posted at the access locations and each transmitting antenna. The location of the informational warning signs or plates shall be depicted on the plans submitted for construction permits. 35. The applicant is required to protect all City landscaping,` es, and irrigation in place. If any damage should occur, the contractor will be required replant as directed by the City and guarantee work for a minimum of one (1) year. 36. The existing street light to be removed shall be salvaged and delivered to the City of Newport Beach Utilities Yard. 37. All exposed elements of the facilities including, but not limited to screening, coaxial cables and appurtenances attached to the reconstructed street light pole shall be color-matched or painted to match the pole to the satisfaction of the Community Development and Utilities Directors or their respective designees. 38. The replacement street light standard is subject to the review of the Public Works Department and shall match the design, style, color, height, and location of the existing street light standard to be removed, consistent with City Standard STD-203-L. The mounting height shall be further limited to 29 feet, 6 inches with the radome being no taller than 5 feet above. In no case shall any portion of the light standard and related equipment exceed 35 feet above existing grade. 39. Prior to issuance of building permits, a letter shall be obtained from Southern California Edison acknowledging that a new single-meter pedestal will be installed as opposed to converting the existing single-meter pedestal to a double-meter pedestal. Said letter shall be documented within the building permit plan check set. 40. Stand pipe vents shall be per the City's 8-inch and 10-inch standard vents. Reference City Standards STD-537-L-A and STD-537-L-B. 41. A soils report shall be provided as part of the building permit plan check. If said document demonstrates that dewatering is required, a formal dewatering plan shall be provided. 03-03-2015 21 Planning Commission Resolution No. Page 12 of 12 42. A sound attenuation study shall be provided as part of the submittal for building permit plan check. 03-03-2015 �� Attachment No. PC 2 Draft Resolution for Denial 23 V� QP �P RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH REVERSING THE DECISION OF THE ZONING ADMINISTRATOR AND DENYING MINOR USE PERMIT NO. UP2015-024 FOR A NEW CLASS 3 (PUBLIC RIGHT-OF-WAY) WIRELESS TELECOMMUNICATIONS FACILITY AT 1 (CS) NARBONNE (NORTHEAST CORNER OF SPYGLASS HILL ROAD AND EL CAPITAN DRIVE) (PA2015- 094) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Verizon Wireless with respect to the public right-of-way area located at 1 (CS) Narbonne near the northeastern corner of Spyglass Hill Road and EI Capitan Drive requesting approval of a minor use permit. 2. The applicant proposes to construct a new Class 3 (Public Right-of-Way) wireless telecommunications facility installation at the northeastern corner of Spyglass Hill Road and EI Capitan Drive. The project will include the replacement of an existing light standard with a new 35-foot-high stealth light standard with a 30-inch radome screening three panel antennas and a GPS antenna. All support equipment will be installed within a new underground vault approximately 90 feet southeast of the stealth light standard within the public right-of-way. 3. The site is within the public right-of-way and is, therefore, not designated within the Land Use Element of the General Plan nor is it located within a zoning district. 4. The site is not located within the Coastal Zone boundary. 5. A public hearing was held on September 10, 2015, in the Corona del Mar Conference Room (Bay E-1st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this meeting. 6. The Zoning Administrator adopted Resolution No. ZA2015-053 approving Minor Use Permit No. UP2015-024. 7. On September 24, 2015, residents Laurie and Bruce Horn filed an appeal of the Zoning Administrator's decision. 8. A de novo public hearing was held by the Planning Commission on November 5, 2015, in the Council Chambers at 100 Civic Center Drive, Newport Beach. The Planning Commission considered evidence, both written and oral, presented at this meeting. A 25 Planning Commission Resolution No. Page 2 of 2 notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. Pursuant to Section 15270 of the California Environmental Quality Act ("CEQA") Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. SECTION 3. REQUIRED FINDINGS. The Planning Commission may approve a use permit only after making each of the required findings set forth in Section 20.52.020 (Conditional Use Permit and Minor Use Permits) of the Newport Beach Municipal Code. In this case, the Planning Commission was unable to make the required findings based upon the following: SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby denies Minor Use Permit No. UP2015-024. 2. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 5T" DAY OF NOVEMBER, 2015. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman BY: Peter Koetting, Secretary 10-15-2013 20 Attachment No. PC 3 Zoning Administrator Meeting Minutes, September 10, 2015 2� V� QP �P �g NEWPORT BEACH ZONING ADMINISTRATOR MINUTES 09/10/2015 NEWPORT BEACH ZONING ADMINISTRATOR MINUTES 100 Civic Center Drive, Newport Beach Corona del Mar Conference Room (Bay E-1st Floor) Thursday, September 10, 2015 REGULAR HEARING 3:30 p.m. A. CALL TO ORDER—The meeting was called to order at 3:30 p.m. Staff Present: Brenda Wisneski, Zoning Administrator Ben Zdeba,Assistant Planner B. MINUTES of August 27,2015 Action: Approved C. PUBLIC HEARING ITEMS E 1 o f is t io i r e er it P 1 i L a n. 9 st 6 S e o c Di ri 2 n de si an I ne p vi ri pr 'ec a rip' n a t e op e s is he th n to s ac 'ty at in c s 2, 0 u e t i ar in m ti- a li t i ' n in e d tri I Z i o f SUS, s tri ain a 'n at nio o p v w e de to e s do fo p ov to 'rr ai o airqna h is' s d Ip ns e c0 a ' ili a tai d rki ui m is r he us hi th ig in s nt a nae ha s is nt r g is to p rt e p e s S tt o o h ni u 'sp di st d at e d vie a e a es uti a t r ui n h o ' g dr its to le u hart e e o f li Ji h s ke n x s d n n ith g d th r os a in ist t it th u os a i n f u is IG o 'ng is 'ct. a Is do d si ila s h as ec tl 6PRI er o re an m ' e I e m n f p i ' a in a cI s. Th e r o he u 'c m en in A in tra r 'sn ki os t p r. de a dr se M . M he ' c n b of t o p UU d t e e rp e d in t t I o 'ng is 'ct ' a u a ne ly rc t in fl o a s ith t Ii t i us I en r u r a' i s ' I n r . H d at e ' i io on la p is n in is s w b e n e p' an , ro s an to Ip ns e m ti 'ity ith se in e i m is a ni i ' tr or is s x s d re t t t t c di ns f a r al e r ri th r o d e n p ov t p 'e s o se cti p ve ITEM NO. 2 Verizon Wireless Right-of-Way Telecom Minor Use Permit No. UP2015-024 (PA2015-094) Site Location: 1 (CS) Narbonne (Northeast Corner of Spyglass Hill Road and EI Capitan Drive) Council District 7 Ben Zdeba,Assistant Planner, provided a brief project description stating that the proposed wireless telecommunications facility is a Class 3 Installation which will be located within the public right-of-way by replacing an existing light standard with a new light standard containing three antennas on top in a radome structure to provide screening. He noted the lower prioritization of Class 3 Installations pursuant to the Zoning Code and the limited opportunities provided to create a Page 1 of 3 �9 NEWPORT BEACH ZONING ADMINISTRATOR MINUTES 09/10/2015 higher priority installation within the area given that the majority of structures are residential. He further added that the design, as conditioned, would blend and be compatible with the existing infrastructure. Also, the City's Public Works and Municipal Operations Departments would be reviewing the project, should it be approved, to ensure there are limited impacts to the landscaping and right-of-way area. Lastly it was noted that the applicant would be entering into a license agreement with the City to utilize the public right-of-way for the purpose of establishing an unmanned wireless telecommunications facility, if approved. Applicant Ryan Birdseye of Tectonic Engineering, on behalf of the Verizon Wireless, stated that he had reviewed the draft resolution and the required conditions. Zoning Administrator Wisneski requested additional information from the applicant regarding the ground equipment and suggested the opportunity to relocate some of the equipment within the adjacent planter area for improved screening. Mr. Birdseye indicated Verizon Wireless would work with the City to ensure the equipment is located appropriately. The Zoning Administrator opened the public hearing. K. Eddie Mehrfar, a resident of the area, expressed concern regarding the proximity of the wireless telecommunications facility to Spyglass Hill Park as it relates to potential health hazards of radio frequency emissions. He added that he was not concerned with the aesthetic or design of the facility. Dr. Reza Lotfi, a resident of the area, expressed agreement with Mr. Mehrfar and noted the potential health concerns relative to radio frequency emissions, especially given the close proximity to Spyglass Hill Park and the residences. He also noted he had not seen the proposed design and expressed concern regarding the aesthetics given to the anticipated height of the proposed project. Lastly, he expressed concern regarding the need for additional carriers to locate within the area. Jim Mosher, resident, questioned the use of "stealth" in reference to the proposed facility and asserted the proposed radome atop of the proposed may not screen the antennas effectively. He also expressed concern regarding the equipment related to the necessity of the supporting power box/pedestal meter as well as the potential for emitting noise. He further questioned the effectiveness of the proposed location and agreed with the previous speaker's concern regarding the future need for additional carriers. Lastly, he noted a previous project stated the need for eight-foot tall antenna panels whereas the proposed project entails 4-foot tall antennas and expressed concern regarding encouraging the use of the most diminutive technology. After reviewing a copy of the staff report, Dr. Lotfi commented regarding the height of the project. Mr. Mehrfar commented regarding the sufficiency of the existing coverage provided by Verizon Wireless in the area. He further expressed concern regarding the location of the facility and added that it could be placed on an existing roof elsewhere. The Zoning Administrator closed the public hearing. Zoning Administrator Wisneski invited the applicant to address some of the comments made by the public. Mr. Birdseye noted that Verizon Wireless provided electromagnetic field and radio frequency reports to demonstrate compliance with Federal Communications Commission (FCC)guidelines. In response to a question by Zoning Administrator Wisneski, Mr. Zdeba stated the existing height of the light standard was not confirmed; however, he noted that conditions of approval have been included to ensure the replacement light standard is in kind with the existing light standard (Condition of Approval Nos. 37 and 38). Mr. Birdseye added that these light standards are typically 29 feet tall and he expressed agreement with the conditions of approval that were included. Zoning Administrator Wisneski noted that the proposed radome would add approximately five feet to the height of the existing light standard. In response to a question by Zoning Administrator Wisneski, the applicant noted Verizon Wireless had worked with Southern California Edison and the City's Public Works Department regarding the need for an electrical box above Page 2 of 3 30 NEWPORT BEACH ZONING ADMINISTRATOR MINUTES 09/10/2015 ground. It was noted there is a condition of approval included to require a letter from Southern California Edison documenting its position on locating the required meter elsewhere. Zoning Administrator Wisneski noted the coverage maps supplied with the staff report identifying the increased coverage that would be provided by the proposed project. In response to a comment by Mr. Mehrfar,she further noted that the City relies upon information provided by the carriers and their design professionals when reviewing applications such as this. Mr. Mehrfar questioned whether or not the public could submit information regarding health concerns related to this project. Zoning Administrator Wisneski stated the information could be submitted as part of the appeal process should the project be approved. Regarding the potential for noise impacts, Mr. Zdeba noted that a condition of approval had been included to ensure appropriate sound attenuation studies are provided during building permit plan check (Condition of Approval No. 42). In reference to the electrical box discussed by the applicant, he stated that Condition of Approval No. 39 was included to ensure appropriate documentation is provided to substantiate the need for a new box as requested by the City's Public Works Department. Zoning Administrator Wisneski expressed agreement with the conditions of approval and approved the project. After action, Dr. Loth requested to speak on the public record. He requested a letter from the City indicating there will be no health impacts with respect to the approved project. Zoning Administrator Wisneski stated that staff would provide the approved resolution along with the conditions of approval placed on the project. Action: Approved D. PUBLIC COMMENTS ON NON-AGENDA ITEMS None. E. ADJOURNMENT The hearing was adjourned at 4:05 p.m. The agenda for the Zoning Administrator Hearing was posted on September 4, 2015, at 2:30 p.m. in the Chambers binder and on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on September 4, 2015, at 2:40 p.m. #redisneski, AI P, Zoning Administrator Page 3 of 3 :�1 V� QP �P Attachment No. PC 4 Appeal Application, September 24, 2015 33 V� QP �P 31{ PA2015-094(Appeal to Planning Commission) WPO Appeal Application For Off ice Use Only N > Community Development Department Date Appeal Filed: Vu+1/S v Planning Division Fee Received: y�57-7S �{ 100 Civic Center Drive /P.O. Box 1768 c91woK"%' Newport Beach, CA 92658-8915 Received by� (949)644-3204 Telephone/ (949)644-3229 Facsimile www.newportbeachca.gov Application to appeal the decision of the: Zoning Administrator ❑ Planning Director ❑ Hearing Officer ❑ Flood Plain Administrator ❑ Other Appellant Information: Name(s): Lau rv- and &,v&to 40n,1 Address: � lfambiwc Dlrl 6 City/State/Zip: Picyprg CLPI Mar" cn l r&ra 1 G , q).6217 Phone: qqQ-W)b 2,?1.2- Fax: Email: bh0 rn G) n rI - 4aa - C.Cpm Appealing Application Regarding: Name of Applicant: Veyiznn WilrelesS Date of Decision: Sr--Oem�er /0, 10/ Project No. (PA): IM2n15 -aQ4 Activity No.: Site Address: I C c5 ) Narbonne Description: �x�n5 u a n . � clays uhllc rr�h+ o�/.ua14 )01W,165 k[e(-0mm 1J CAHOtJ5 �Cl('AIl fiVLU1'hi11 � ouhh'r nnh+-n --wag2f- 4it nny-di 6& rr1 nrnPv 0-F 1 G S and �u) Q neW Mo --fw+-, Ah -4rA1A 119hk S ndard 4hO I n u48 ,. CI'eenl� For panel antenn61S and 16ps 01-enn";L Reason(s) for Appeal (attach a separate sheet if necessary): t10 471AC /GA Along with application, please submit the following: • Twelve (12) 11x17 sets of the project plans • One set of mailing labels (on Avery 5960 labels) for all property owners within a 300-foot radius, excluding intervening right-of-ways and waterways, //of the subject site. Signature of Appellant: Date: �4J�Bin&at- �, .W IS- F:\Users\CDD\Shared Admin\Planning_Division'Applic tions\Appeal\Appliwtion.d= 35 PA2015-094(Appeal to Planning Commission) APPEAL TO THE CITY PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH Appellants: Spyglass Hill Residents, Mr. and Mrs. Bruce Horn,and Concerned Citizens of Spyglass Hill, Harbor Ridge, and Harbor Hill. BACKGROUND On September 10, 2015, the City of Newport Beach Zoning Administrator granted Verizon's request to install a thirty-five (35)foot tall cell phone tower at Spyglass Hill Park on the corner of Spyglass Hill Road and El Capitan. Appellants request that the Zoning Administrator's decision be cancelled for the reasons set forth below. 1. THE FINDINGS IN THE STAFF REPORT ARE NOT SUPPORTED BY THE FACTS Appellants contend that the Findings in the Staff Report are not supported by the Facts as set forth below. A. FINDING C Finding C on page 9 of the Staff Report states, "The design, location, size and operating characteristics of the use are compatible with the allowed uses in the vicinity." Fact 3 in support states, "The proposed telecom facility...should not generate...any other adverse impacts to the adjacent land uses." Appellants contend that Fact 3 is incorrect. In reality, the surrounding residential neighborhoods will be very adversely impacted as property values will be diminished by the presence of the cell tower. Potential buyers will recognize it for what it is and be dissuaded from wanting to live in the vicinity due to the tower. (See attached Declarations of Sinclair,Maghami and McCroskey). Furthermore, current residents realize this as well and are opposed to the tower. (See attached Signed Petition from area homeowners.) Fact 4 states, "The proposed facility will enhance coverage and capacity for visitors and to residents of the area by providing wireless access to voice and data transmission services. The proposed facility will not result in any material changes to the character of the local community. Appellants contend Fact 4 is incorrect. Verizon coverage in the area is currently very good, in fact,much better than that of other cell carriers. Further, the tower will result in material changes to the character of the community in that its very presence lends a commercial air to the site with an obvious thirty inch diameter area covered in screens at the top portion of the proposed tower this will apparent to all that this is a cell tower. Furthermore, if Verizon is 1 3(o PA2015-094(Appeal to Planning Commission) permitted to use this location for a cell tower, other carriers, whose coverage is not even up to the current levels Verizon enjoys, will seek to co-locate at this site, making for more screens and commercial appearance. This neighborhood is currently an aesthetically appealing residential area,where people pay a premium to enjoy serenity and views. Buyers of real estate will notice this tower, which is more than likely a turn off for wanting to buy in the area. (See attached Declarations of Sinclair,Maghami and McCroskey.) B. FINDING D Finding D states that, "The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicles access and public services and utilities." Fact 3 in support states that, "The proposed telecom facility will have no impact and should not generate ...any other adverse impacts to adjacent land uses." Appellants contend Fact 3 is incorrect. This neighborhood is currently an aesthetically appealing residential area, where people pay a premium to enjoy serenity and views. Buyers of real estate will notice this tower,which is more than likely a turn off for wanting to buy in the area. Further, the thirty inch diameter mesh screened top to the cell tower will be visually apparent and affect view properties of the surrounding homes,thus additionally affecting their resale values. The surrounding residential neighborhoods will be very adversely impacted as property values will be diminished by the presence of the cell tower. Potential buyers will recognize it for what it is and be dissuaded from wanting to live in the vicinity due to the tower. (See attached Declarations of Sinclair, Maghami and McCroskey.) C. FINDING E Finding E states that, "Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City." Fact 3 inn support states, "The proposed telecommunication facility at this location will not result in conditions that are materially detrimental to nearby property owners,residents and business, nor to public health or safety. Appellants contend Fact 3 is incorrect. This neighborhood is currently an aesthetically appealing residential area, where people pay a premium to enjoy serenity and views. Buyers of real estate will notice this tower, which is more than likely a turn off for wanting to buy in the area. Further,the thirty inch diameter mesh screened top to the cell tower will be visually apparent and affect view properties of the surrounding homes,thus additionally affecting their resale values. (See attached Declarations of Sinclair, Maghami and McCroskey.) 2 3� PA2015-094(Appeal to Planning Commission) D. ADDITIONAL FINDINGS Additional Findings on page 10 of the Staff Report state that, "The proposed telecom facility is visually compatible with the surrounding neighborhood." Fact 1 supporting this states that"...the new light standard will not appear out of character with the surrounding neighborhood and will blend in..." On page 11, the Staff report states that alternative sites for the tower will not give needed coverage." Appellants contest the validity of Fact 1 in that Verizon coverage at and around the proposed cell tower is currently very good. In fact,the coverage currently offered by Verizon is excellent when compared to the other carriers. Appellant contends that better Verizon coverage in this area is not needed. Also, contrary to the Staff Report Fact 2 on page 11, this area is residential. Simply because the park is city owned does not make this location for the tower a"non-residential' area. Therefore, alternative sites need to be considered. This location is not at the top of a hill, which is best for cell signal projections. The current coverage Verizon says it has in"Bay Hill" area on page 43 of the Staff Report may not be accurate. Appellants contend that a review of this allegedly scant coverage Verizon sets forth as justification of the need of a cell tower at this location need to be revisited. Appellants request that an alternative location in Buck Gully, away from views, home and population be chosen for the cell tower 2. A CELL PHONE TOWER IN SPYGLASS HILL PARK WILL LOWER PROPERTY VALUES AND DISUADE BUYERS FROM CONSIDERING THE AREA. Real estate agents queried about the proposed cell phone tower immediately noted that it would have to be disclosed to any prospective buyer of a home in the neighborhood. This disclosure would be no different than disclosing that the house is built on a landfill that might leak methane. This disclosure will dissuade prospective buyers from choosing the neighborhood, just as other disclosures would as the general public perceives them to be hazardous as there is plenty of information to this effect on the internet. The fallout from this will be lower property values. (See attached Declarations of Sinclair, Maghami and McCroskey.) Opposition on this ground is supported by over 140 residents who signed petitions opposed to the tower being place in Spyglass Hill Park. (See attached Petitions.) 3 3�' PA2015-094(Appeal to Planning Commission) 3. A CELL PHONE TOWER IN THE PROPOSED LOCATION WILL HAVE A NEGATIVE AESTHETIC EFFECT. Aesthetics may be a factor for city zoning personnel to consider in denying a cell tower application. The Ninth Circuit initially held that under California law, aesthetics may not be considered for cell towers located in public rights of way. La Canada Flintridge, supra, and related decision at 250 P-U.R. 4th, 207, 182 Fed. Appx. 688, 2006 WL 145 7785 (9th Cir. 2006). But in Sprint PCS Assets v. City of Palos Verdes Estates,_F3d_(9th Cir. 2009) ("Sprint v. Palos Verdes")it held to the contrary,that under the California Constitution, a municipality may consider aesthetics,in considering whether to approve cellular antennas located in the public rights of way, and upheld Palos Verdes' denials of two antennas on that basis, but that such denials could not "operate as a prohibition of wireless service in violation of Section 704. (Attached Varnum Analysis,page 36.) Here, the park has a slope that places the play area above the ground level that the cell tower will occupy. Because of this elevation,the cell antennae will be essentially in the line of sight of the view that the park affords. It will basically block the view through the trees to the ocean, etc., since it will be disproportionately larger than the light pole it will be installed on. It will be ugly/unsightly in a neighborhood of multimillion dollar houses. One resident noted that Verizon is not even trying to make it look like a tree. There are enough ugly utility structures around the park-no more are needed. The residents and people in the community who use the park and walk past it have stated that they prefer a natural looking park devoid of any additional utility structures. 4. SIMPLY BECAUSE VERIZON APPLIED FOR A CELL TOWER AT THIS LOCATION DOES NOT REQUIRE THE CITY ZONING ADMINISTRATOR AND PLANNING COMMISSION TO GRANT THE APPLICATION. Local Zoning Authority is Generally Preserved by Section 704 a.Numerous cases recite that in general, Section 704 of the Federal Telecommunications Act of 1976 preserves local zoning authority,with most of its requirements (substantial evidence, short time period to appeal zoning decisions) being taken directly from local zoning law,with the additions being mainly the addition of some procedural requirements and a ban on considering RF radiation. For a recent example, see Porter County Board of Zoning Appeals v SBA Towers II, 927 N.E. 2d 915, 921 (Indiana Ct App 2010). Here Appellants contends that there are other locations, away from residential neighborhoods where the subject cell tower could be placed. The City is not legally obligated to accept Verizon's proposed location. 4 S9 PA2015-094(Appeal to Planning Commission) 5. VERIZON'S CELL TOWER WILL ENCOURAGE CO-LOCATION PROLIFERATION AS VERIZON DOES NOT NEED BETTER CELL COVERAGE IN THIS AREA BECAUSE,AT ITS CURRENT LEVE,L. VE,RIZON'S COVERAGE IN THE SPYGLASS HILL AREA IS BETTER THAN ANY OF THE OTHER CARRIERS. Appellants contend that the City may consider the present quality of Verizon's exist-nig cell service may be considered to deny its application. The Court of Appeal in Cellular Telephone Company v. Zoning Board of 32 Adjustment of Borough of Ho-Ho-Kus. 197 F.3d 64, 71 (3d Cir- 1999)analyzed and squarely held that a municipality may consider the quality of the provider's existing service in determining whether to grant zoning approval. Arguments that this was preempted and wholly within the jurisdiction of the FCC were rejected. Ho-Ho-Kus, 197 F.3d at 66-67. (Attached Varnum Analysis, page 37.) Appellants contend that Verizon's cell coverage in the Spyglass Hill area is currently very thorough and that the City may consider this evidence in determining whether the cell tower is even needed at this location. Furthermore, if Verizon is permitted to use this location for a cell tower, other carriers, whose coverage is not even up to the current levels Verizon enjoys, will seek to co-locate at this site,making for more unsightly screens. 6. A CELL TOWER IS A COMMERCIAL STRUCTURE WHICH HAS NO PLACE IN A RESIDENTIAL NEIGHBORHOOD. Appellants contend that the cell tower will result in material changes to the character of the community in that its very presence lends a commercial air to the site. The thirty inch diameter area covered in screens at the top portion of the proposed tower will be apparent to all that this is a cell tower in the middle of a purely residential neighborhood. Furthermore, if Verizon is permitted to use this location for a cell tower, other carriers, whose coverage is not even up to the current levels Verizon enjoys, will seek to co-locate at this site, making for more unsightly screens extending a more commercial looking appearance to the park and residential neighborhood. 7. NEIGHBORHOOD HOMEOWNERS STRONGLY DISFAVOR THE CELL TOWER AT THIS LOCATION. There is substantial evidence of homeowners disfavoring the cell tower location at Spyglass Hill Park. Those opposed to the installation of this cell tower are not a small cabal of intransigent activists,but rather a substantial number of current homeowners in the affected area. 5 40 PA2015-094(Appeal to Planning Commission) As the attached petitions of those opposing the cell tower demonstrate,over 140 area residents are opposed to the cell tower at Spyglass Hill Park. (See Attached Petitions.) 8. CONCLUSION For the foregoing reasons,Appellants respectfully request the City of Newport Beach Planning Commission revoke authorization granted to Verizon for installing the cell tower at Spyglass Hill Park. --- 6 �1 DocuSign Envelope ID:C36977D0-0195-4AF7-6E69-F6662F39FE75 PA2016-094(Appeal to Planning Commission) DECLARATION OF SUSAN SINCLAIR-NARAGI11 I, Susan.Sinclair-Naraghi, declare that: For about the last eleven years, I have been representing discerning buyers and sellers of real estate in the Harbor Ridge/Spyglass Hill area of.Newport Beach, California. I have a total of about twenty-six years of experience in residential/commercial real estate and land management. Additionally, :I.have been a Harbor Ridge resident for about the last twenty-six years. 1, with my team, am ranked as one of the top producing agents in the area. I work with clients domestically as well as internationally through the Berkshire Hathaway/Prudential Real. Estate worldwide network and through my own personal global network having spent years abroad working and residing in Asia, Europe, and Latin Anrerica leading the real estate/land,management divisions of two Fortune 500 companies. I am a certified member of The Institute of Luxury Home Marketing as -- - --well:as-bein certilred-ii- Fine-Homes-International-The Architectural Collection and The Luxury Collection- Berkshire Hathaway/Prudential's three luxury property divisions. Berkshire Hathaway has awarded me accreditation as a Commercial. Associate permitting me to represent principals for both commercial and investment properties. I am a recipient of Berkshire Hathaway's prestigious President's Circle Award which.gave me a ranking of:about the top 3% of agents globally .in sales. Additionally. I have been awarded membership in Who's Who in Luxury Real Estate as well as in Resort Properties ..International -- Berkshire Hathaway's/P.rudentiaPs 'h.igh end specialty division :fo.r waterfront,island, alpine, and other resort properties. In addition, I hold the National Association of Realtors' professional designations of SRES/Senior Real Estate Specialist and CIPS/Certified International. Property Specialist as well as the CLHMS/Certified Luxury Home Marketing Specialist designation from the Dallas based Institute of Luxury Home Marketing. If called upon to testify, I could and would competently testify as to the following: 1. Potential buyers of residential real estate are attracted to the Harbor Ridge/Spyglass Hill area for its aesthetically pleasing family neighborhoods its safe and bealthy environmentits serenity, and its high end homes,many of which have lovely ocean and harbor views. 2. The installation.of a 35 foot cell tower/antenna at Spyglass Hill Park on corner of Spyglass Hill Road and.El. Capitan—or anywhere in the proximity of these neiehborhnnds and ad oinin.t, coininunities -would alter the favorable safety and'health environment and aesthetics of the neighborhood by: a) introducing a commercial piece of equipment in a purely residential 1 DocuSign Envelope ID:C38977D0-0195-4AF7-BE69-F6662F39FE75 PA2015-094(Appeal to Planning Commission) nei.gh.borhood and b) introducing healthand safety issues in an area populated with homes where children, families, and more elderly residents reside 3. In my opinion.and in view of point 2 above, the installationof a 35 foot cell tower/anterma arzsiwhere in this keneral area or adioining communities would be a detracting factor for those considering the purchase of real estate in this area thus impacting property values downward 4. Given the known safety, health- and radiation risks that exposure can cause, - in addition to being visually unattractive -potential. buyers would most likely not choose to live in proximity of such a cell tower/antenna, when given.the chance to buy real.estate elsewhere. 5. .11, addition to imposing safety and health risks to the children families and the elderly in these residential communities a cell tower/antenna at this location would also pose an unsightly view - -'a struttion given ifpai�tiall y `Nisbuised' as 1 treeetc: fir tlie view properEiea looking out on rt, thus making these properties more difficult to sell.by limiting the pool of interested buyers thus impacting all property values negatively. 6. A cell tower/antenna would cause a diminution.in value to those view properties as well as to all surrounding communities' properties as these values are conurtensurate. Generally,, the entire area would not be considered as desirable place to live as without the cell tower/antenna. 7. In my initial professional opinion.anal with.further, detailed analysis needing to be done th.e.initial estimate for the diminuti.OD in property values in the area as a result of any tower/antenna might be estimated in the range of ten to fifteen percent, and possibly even greater considering the safety and health concerns Presented by such towers/antennas. In addition, those whose views are directly affected and:for those homes in closest proximity to the cell tower/anterma:installation site values could be diminished even.further. I declare raider penalty of perjury that based upon the limited information available at this time, the forgoing is true and correct and currently to the best of my knowledge. Docu6ignetl by: SA4" S:,dF4ti 28EDSCMBEC46F... SUSAN SINCLAIR-NARAGI-11, Declarant Dated: 9/24/2015 2 1f 3 PA2015-094(Appeal to Planning Commission) DECLARATION OF BRENDA L. MCCROSKEY 1, Brenda L. McCroskey, declare that: I am a current resident of Spyglass Hill and ant a Realtor with.Berkshire I lathaway, .formerly Prudential California Realty, in Newport Beach, California. 1. represent both buyers and sellers of high end real estate, much.of which.is int the Spyglass Hill, and.Harbor Ridge areas. I have been involved in real estate my entire life and purchased and sold multiple properties,managed and invested. in rental properties and built a custom home iu.the Newport Beach area. Since 2013,, I .have been in the Top I%Nationwide for sales in Berkshire Hathaway. From 2011 to 20]3, 1 was in the Top 2% of agents i.n Pruden. tial.Chairman's Circle Gold. In 2010-2011, .1 was in the Top 3% of all Prudential agents nationwide. Also, in 2009-2010, 1 was in the Prudential Honor Society as a top agent in volume sales. Prior to joining Berkshire Hathaway/Prudential, I owned my own company twelve years whereby I represented private island.resorts. My experience translates well. into the luxury real estate market i.n.Newport Beach, California. If called upon to testify, I could and would competently testify as to the following: 1. Potential buyers of residential real estate are attracted to the Harbor Ridge/Spyglass Hill area for its aesthetically pleasing neighborhoods, its serenity and its high end homes, many of which have lovely ocean.and harbor views. 2. As a Realtor, I will have to disclose to all potential byers that there is a cell tower in the community park. This will obviously be a big-turn off to many buyers. 3. The degree to which the value of homes on Spyglass Hill and Harbor Ridge will be diminished depends upon how much the view of each property is impacted and the proximity of the home to the cell tower itself With the value of these home potentially declining due to the cell tower in the strictly residential neighborhood, the resale values of all homes will go down to some degree. 4. It isdifficult to predict at what percentage housing values will be reduced as a result of the cell tower in Spyglass Hill Park, but it will most definitely will hurt the value of any home that has a view of it. 1 44 PA2015-094(Appeal to Planning Commission) ? This message was sett ro you by Brenda t-McGroskey who Is using the DocuSign Electronic SigfUdUl Service.If you would rather not receive email from this sender you may contact the sender with your request t If you need assistance,please contact DocuSign Support(cervi .usig trr;om) -rhe Global Standard For Digital Transaction Management® j I Mall Attechment.html BECCARXI•40N OF 131;FNDA L.,A'tl'C.'ftOBW.g}+ 1,Bivada'y F9eCruslmg,d-eclale Oulu i any v&ttr w rvuldema of 3pygLass 11113 and am a Reaitar Witty.96erloidre limbilway,ferowly I-Flulel¢Idl Callror4&119ra1[yt in tdmvitort thraeh.1243111prrda. I neisre wnt NO bn8.era avid killers er#hlgh and rent eanate,onmth of which Is In tlne-Spyglrts Hill ind flarlmy Ridge areae. 1 ..._...liaxeflmen 9trvmMe:d..Lnxcal.cnlnln.rnM-endicn..life-umd,tsurchaxec6.zrmn en➢ul.etrnie2pFagrrnyrer.li.s ... ..........._...... ._........._. ... ... .__....._ .__.... .. . .. ....._ heowgvd and L4s•axted in .•,1144 bout n casn;m lung E,to the P vvprP Beach$me, 81nae 2013,11nm>te heec13n thv Twp lie Naviyemkgle NY enR+s In hvrltslttreUngloway.Front 2911 in 2913«!tuns)•'.4lhx'titit3`y nPagrltt5 in kradea¢lal(`.bah•tua4's P::ttw,la$aslnll. 9fl 2911h211'll„t w4s in Llkg3ap34rin'atf 1'Strdenfital ag.�sm aattaaA>•ide..tlnp,let -LD'18.P uac¢n ibu 3"eXc9we'tiaPEdwiar Sncfet}cesn&rgt4[ent Hm vnhhimrsegea, 9!Nar Gnjr;t,thlg F3erkahirr&iaYlrawx,y1 etna aorts_tt- al.l un4eal sup•nn>rl cd9girnp#wvlva years rr .rd^by 4 t'slsrvssa4ad psrivauc(s4naxl hlyct[ erMarx ir�otslslvs sacll lnta th:l4a:nrg-eaal estate x411 994 PS awlac,ti Hamn�lt„ . tbflliLatirr. !f isttuivpnre to testayc,i could rru}'w»tilui cr:nitmtmril}•h'S[iii�as te*[lx. Cst3G;xv.•iug: = I°ol•neem laeymrs afa�l a i:A tval�,�4[e ary stfta u<t[ct tln_bi uhot I+.,le;:. Sjq,.6,,fl i I I wca far ZIA Utndeo 111 it W,I b11Kd h«nnr.:.many uP which;1nvc f+:x111«in::ua ua,J 1larltar«•icr'<:. .4aaft3:dl„w,i will ls:r.•can d6�R^.vu to a[l leers«w[latlexiycvs Lluu 4rere is ncall iv%var in ilia caatar.4tily}Mak. 'Chis*Al sstiviaWy be a hig,tnra.oll'nrr nanny b4ge llnadegnO to whit*''t vatno utl4»a n4 3p1'gla±i€fill and Haebw pidge Will be d l anixhcd avpenda UW how gnwh the view nC„arch ivvpeny,is hnign tact gild da pro>dtnity ui'da:ttama m>Ita call Ipisner lasml€. l4Ythds:.anhre azC d,csy:.ha4ta patvatlrally dceliuina duv 4,aheeeft It:vJEten sFw x�natln rbsid-miiaf neeyltiturPuxraf,igerssata ualuaa a>f nit hntll"Will gn dnsvaatoSam devve. It h:diRBenit w pevdiut at what pe"ouge ha4xiog values will her ata bwA se a result Ulf the-eall tasvvits hlwgln wlI€'arle,lr„n it will nmst&RIMAnly wilt boat Cha valve of any hnma thin hae a View of it. Caiwotly,houses in Spyglass dill alnive San lUnquiu on Son Mateo uxtd NCc lydlo now;lun v tat this ggleinrtwe or the ratyw.pewee 61aaa than hae,SanItZagain INI'q Remd, [hnve hc�dlrpFavtla!IYitym'scnntn twit ta+gatiweJY oar fh«aSa. It ua t4y�ninrkan I@tat a r4a11 grFr4rac ri,[vatrvmntd bnra 17,e satnencyrn.i vis aifzcr nm pmn:lnts164�4n. Beer theveasmras:Ut€adali�rvr,l lba@iu*o-a ptape¢iy valuks Will 6n[ iroc*_Jnid nh1.vlittiey ul'eunetd ttamt lunll itl ha}iunleved aeahii8c paxman ed'pa[a41ial Pru}acv will k5aa,u,axac:�d avh9slsv-healsh clTavts and rmfi.�irne a6tiain�a4gnr�isty in a u.13 rc,tuor. 7 tls CYlilln0'7Rn3i[i�fptYt611 t rix twkyeain$9W n'iiC aY[dfiptYEtil t0 dIC lrex[nbR 0.1)4'klrosNedgu. N4.ilil! }i "71�.1ryiA'L•�'ft� RtetarF.f�7rl�l r ykvy,Dcelwarg .—.� . nitp eels DanrcL 45 PA2015-094(Appeal to Planning Commission) 5. Currently, homes in Spyglass Hill above San Joaquin on San Mateo and Montecito are hurt by the presence of the large power lines that line San Joaquin Hills Road. I have had potential buyers comment negatively on those. It is my opinion that a cell phone tower would have the same negative effect on potential buyers. 6. For the reasons stated above, I believe property values will be reduced and the ability of current owners to sell will be hindered as a large portion of potential buyers will be concerned with the health effects and radiation of living in proximity to a cell tower. .1 declare under penalty of perjury that the foregoing is true and.correct to the best of my knowge. Brenda L. McCroskey, Declarant Dated: 2 1{ PA2015-094(Appeal to Planning Commission) September 23, 2015 To whom it may concern, I am a long time area resident and specialist realtor for over 22 years, 18 years of which has been in Harbor Ridge community. The view, peacefulness , non commercial and aesthetically pleasing aspect of the neighborhood is what have drawn us as well as many of my clients to this community. In spite._of the fact that.there._�5__a_h.igh..pr..em.ium._for_the view....... ........... .._. _. _.._.. .. .. ....... .: properties, buyers do not mind as long as they can maintain their view and serenity of their neighborhood, which will ultimately add to their property value. Based on my experience, the view and peacefulness of a property is worth 40% higher than the same kind but not in the same location such as near or obstructed by a cell tower! Therefore, I oppose the installation of the 35ft tall cell tower at the corner of EI Capitan and Spyglass Hill road in Newport Beach. This tower will obstruct the views, which make properties in the area neighborhoods so valuable and will cause a diminution in property values for view properties and the neighborhood as a whole. This tower will be an unsightly structure and is ill suited to the residential neighborhood. cat',re,g:a rd s, WVli n a -Mf', A^b 'MirpaFegh a m i (949) 8.74-4020 minamaghami@gmail.com PA2015-094(Appeal to Planning Commission) From: Laurie Horn laurieharn@cox.net Subject: Fwd:(((((URGENT)))))Verizon Tower Date: September 24,2015 at 2:23 PM To: �L (((URGENT))) September 24.2015 To whom it may concern: Subject: Venzon Tower In our past 30 years real estate investment experience as well as real estate transactions purchasing and selling residential properties for our clients, installation of the Verizon tower will have a significant adverse effect on property values within 0.25—0.50 miles of the tower. My wife and I reside at 38 Morro Bay Drive and know very well that installation of the Verizon tower will adversely affect our property value and we are willing to provide Brokers Opinion to attest to that fact- Therefore, we respectfully insist that installation of the Venzon tower be rejected at Spy Glass Park. Please let me know if you need additional informatlon- Hassan Mandara, Broker DRE UN 01931633 Sage Investment Properties 8925 Research Drive Irvine, California, U.SA- 92618 Cell: 714-329.2682 Fax: 949.502-7825 hassanma hdara evahoo.com Sage Investment Group 9925 R�wch Dnre.1mme.Cahlonua.US.A.02618 Plxme: 949-402782 Fax:949-5027925 Email.Eass�mmhAaaa.SC]dmu.utu 42 PA2015-094(Appeal to Planning Commission) ML Ole F�YGLA 'Tjww pyo iL For Our Neighborhood Verizon has decided to install a 30'cell phone tower In Spyglass Hill park at cross of EI Capitan&Spyglass Hill road.The Zoning Administrator approved the install on 9/10/2015. The request will now go to Planning Committee in a few days for their review. Their decision may be final. Please make sure your voice Is heard by choosing"Yes"or"No".The deadline for petition to appeal the decision is Thursday 9/24/2015. As such,this online voting poll will be shut down on Wednesday 9/23/2015 at mid-night PST. The poll was closed on time, but due to multiple requests early morning 9/24/2015, we have put this polling form back online. Pros: • Having a better reception for Verizon subscribers in Spyglass Hill and thousands of others living in various other cities around. COOS: • Possible long term health hazard and safety concerns especially for our pets and kids playing in the park. Some research claims there is no long term health problems especially in terms of cancers,some other research claims there is. The verdict is still out there and perhaps will be for years to come. Imagine just 60 years ago and exposure to tobacco, asbestos, lead paint,etc. It took 6 decades to know the Impact of tobacco&other health hazards on human health. • For more Info about above health hazard, please see Doctor's letters&LAUSD decision made In 2009 htto,//www.iiarentsforsafetechnoloav /d12Ctor-5-letLershtmI htto://`notebook.lausd.net/i2ls/ot/docs/PAGE/CA LAUSD/FLDR LAUSD NEWS/FLDR ANNOUNCEMENTS/JKWIRELESS.PDF • High possibility of Attt,Sprint,T. Mobile, Metro PCS&other cell phone carriers to follow Verizon, making our neighborhood known as a "Pole Place"or"Tower Town", with danger of emitting short&long wave Radio Frequency and possible EMF exposures. • Installation of a visible box close to the tower which can not be underground "due to SCE codes". • Visual impact and being un-aesthetic. • Probable reduced home values for all residents of Spyglass Hill and neighboring communities. • ...? Please keep in mind the long term family values, health,safety, beauty and harmony of our neighborhoods when you vote. Do you want a Verizon cell phone tower in your neighborhood? Please choose "Yes" or "No" Resident's name- First Last: Street's Name: Email: T9 PA2015-094(Appeal to Planning Commission) Yes No comments: In case interested we value,appreciate 8 welcome your comments efther for or against the Pole. There Is a small window for voting.Results will be emalled to you once this window Is closed In a few days. Submit Clear Pictures courtesy of OC Mom Blog-Please see the site @ httaW-Qcmombloa com/guide-to-sovalass-hlll-park-in- newport-beach For our Neighborhood. :ot:Platinum rnformatlan T«hrolaov l All Rights Reserved. iO PA20iS-094(Appeal to Planning Commission) Name Email Vote Street Comments George Kent gvkent@mac.com Yes Gorham Dr. Marsha Whitehill Marshawhitehill@gmail.corYes Monterey Cir We need better cell reception in Spyglass Hill. It has definitely deteriorated in the past several months for some reason. Marry Shapiro mshap20368@cox.net Yes Montecito Cons listed above are scare tactics. I believe there is bias against and that there are more advantages having strong cell Cari Zylstra clzy!stral@gmail.com Yes Port Charles We must have a pole somewhere on the south side of Fashion Stanley King- stan-king@sbcglobal.net Yes Port Stirling PI. Having worked 36 years in telecom, I never heard of any harm ASKED Explicitly& from microwave radio, cell antennae, or radio transceivers firmly not to unless someone put their head in direct contact or within a reveal his name& few feet...so 30' high is not a problem in my view. Thousands any other info. SO of locals will benefit from improved reception! PLEASE Do NOT USE THIS ROW& Auther cauthet@cox.net Yes Calvados We need this pole to guarantee us Verizon customers full time service.As it stands I now have only a very weak signal at best 80%of the time at my home! Please please install this pole!!! Doris Williams dorism.wms@gmail.com Yes Sandbar Dr Lana Smith Undisclosed Yes Spyglass Mohammad Nahe+Mnaheedy@gmail.com No Goleta Laurie and Bruce H-lauriehorn@cox.net No Cambria Drive Please reconsider installing this pole at this Iocation.,Not only will it be an eye sore, but it is not something that should NOT be close to families especially and children in our Bonnie Harrington bonnie731@cox.net No 14 Monterey Cir The health issues, home values and the "slippery slope" for other carriers ro invade must be studied ! What is the rush ??? AND where is our Board ?!?! They did not attend the city's mtg-derelict with their responsibilities H I am angry that I had not learned of this til today. Shame on our Board for not communicating this in a timely manner. I want the action on this to halt until all Spyglass households speak their Houshang Moayer moayerih@gmail.com No Rocky Point Rd A.Amy Moayeri amisanai@gmai.com No Rocky Point Rd Ruth Toliman Ruthytoll@sbcglobal.net No 61 Cambria 51 PA2015-094(Appeal to Planning Commission) Tara Lotfi tlotfi@gmail.com No 22 Mission Bay Dr Jake Easton III jeaston@eastongroup.com No 1100 Newport C Gretchen Benes gbenesl@gmail.com No 15th street NB Gerri Shah gerrishah@cox.net No 40 Mission Bay L We don't feel that a cell pole should be installed within our neighborhood at EI Capitan and Spyglass Hill Road. These poles should be installed within certain feet allowance from residential neighborhoods for the health and safety concerns for all. Put these cell poles up on the highest hillsides where Bruce and Laurie H Lauriehirn@cox.net No Cambria drive Bruce and Laurie H Lauriehirn@cox.net No Cambria drive Richard Afable Richard.afable@stjoe.org No Montecito Dr. SallyAfable Safable@cox.net No Montecito Dr. Jake Easton III Jeaston@eastongroup.com No Montecito Dr. Marcia Bernhardt mwassoc@cox.net No 6 Chaminade No.No. No. Health Risks are a major concern.Will lower Brian&Sandy Stra sandystransky@gmail.com No Goleta Point Drii Please consider placing the cell tower in a location that is not adjacent to either homes or a park where we bring our Email: No Street: Email: No Street: Liu Janeliu88888@gmail.com No Cambria drive Elaine Hyatt shiekeee@aol.com No Jade Cove JAMES&SUSIE CR,jfcroul@aol.com No CAMBRIA DR michelle miner drmichellelord@gmail.com No 7 muir beach cin Please consider the children's health. I have four children who reside here and they all wish to vote "NO"which makes 6 Shannon McCroskf smmccroskey@gmail.com No Goleta Point We don't need a Verizon cell tower-our service is fine. Stuart McCroskey stuartm@netapp.com No Goleta Point Our Verizon service is fine and we do not want the pole! shad ciko shariciko@cox.net No monterey circle Brenda McCroskey kaimbu@cox.net No Goleta Point We do not need the pole. It's the Port Streets that complain about Verizon coverage not Spyglass, so the pole would be Ivan Yee Jiy6674@gmail.com No San Mateo Way Betty Leu Bettyleuyee@gmail..com No San Mateo Way Paul Brailsford Pbrailsford@cox.net No Morro bay drive PA20iS-094(Appeal to Planning Commission) Tammie Brailsford Tbrailsford@memorialcare.No Morro bay drive Patriria Rnrlpwalri trnripmralrlarnr opt Nn Mnrrn Rav nrivp Harry, Renee, Lac(hskinner@hskinner.net No 1 Muir Beach Cir We all understand that medicine and scientific evidence lags during the period of experimentation and discovery. Potential environmental health hazards sometimes require years of investigation and the accumulation of convincing evidence before deemed a true hazard. In the interim,the public?s health becomes part of a ?natural experiment?that ends up inadvertently contributing to the evidence (i.e. Cigarette smoking, asbestos, lead-based paint?) ,We ask that the HOA or City of Newport Beach take prudent precautionary action on the issue of the cell phone tower(microwave radiation) given the need for further scientific evidence. The American Academy of Pediatrics has called for more studies, pointing out that children are especially vulnerable to harmful environmental exposures. In August,the American Academy of Pediatrics wrote a letter to the FCC, asking for a review of cell phone and cellphone tower safety regulations,which were written in 1996. ?It is essential that any new standard for cellphones, cell phone towers or other wireless devices be based on protecting the youngest and most vulnerable populations to ensure they are safeguarded throughout their lifetimes,?the Academy wrote. ,There has been heightened nationwide public interest and public policies forming on the issue of cell phone towers on/near school property. Cell phone companies have been targeting school property to locate cell towers for about a decade now, and most schools do not include parents in the conversation on approving the towers. Since 2011, concerned parents and the public in Tustin D4ocean@gmail.com No Half Moon Bay L We're all for improving the signal but none of the companies are interested in a'tree' pole that looks even close to Fullerton ttommytustin@gmail.com No half moon bay Michelle Miner Drmichellelord@gmail.com No 7 Muir Beach Cir Cell towers pose a health hazard to our community. Kurt J. Miner Kurtminer@gmail.com No 7 Muir Beach Or It is absurd that the Zoning Administrator has approved this in 53 PA20iS-094(Appeal to Planning Commission) Karen Odell Klkodell@sbcglobal.net No Monterey Circle Laurie easton Eastonlaurie@gmaii.com No Montecito E. C Sheffield sheffieldjuliem@icloud.corr No Marro Bay drive Anita lindstrom Anlind52@hotmai.com No Drakes Bay drivi The pole will be a horrible impact on our community, Please find another location at the end of EI Capitan towards San Francesca and StarSpinqueeen226@aol.com No Morro bay drive Tina Kim htinakim@yahoo.com No Belfort Aviles theavilesfam@gmail.com No Muir Beach cell phone radiation is a danger for kids and adults Susan Champion s.champion@usa.net No Cambria Drive Why not install this in a commercial spot rather than in a neighborhood?Why not over in the land near the 73 freeway Purvis Carol capurvis@cox.net No 3 Jade Cove I have Verizon and get great reception and I don't think we need anymore"eyesores" in the neighborhood. People don't want to "live" next to these type of installations. They belong Cyrus Mehrfar cyrusmehrfar@yahoo.com No 20 Morro Bay Dr Forthe health of my loved ones I am voting NO on wanting a Verizon cell phone pole in our neighborhood. Vander veen Kmsattler@aol.com No Drakes bay we don't want our kids to be exposed Hedemann Lindah4l4@aol.com No Hidalgo NO CELL PHONE TOWERM I have small grandchildren who Renee Skinner renee@reneebarton.com No Muir Beach Circle Renee Skinner renee@reneebarton.com No Muir Beach Circle Harry Skinner hskinner@hskinner.net No Muir Beach Circle Patience Bethel rowergal25@gmail.com No Cambria Drive Harry skinner Hskinner@hskinner.net No Muir beach cir LAUSD has decided that there should not be cell phone towers near schools: possible detrimental health effects. we should not have them near where our children are playing either. The financial benefits of a cell phone tower are negligible. A cell phone tower in our neighborhood is a very very bad idea . Harry Skinner, MD.Hskinner@hskinner.net No Muir Beach Circl There is growing evidence that this type of exposure is dangerous for our health. We will no longer use the park if Carol Cohn carolkcohn@aol.com No Bodega Bay Driv I would like to see any cell tower(this and any future towers) placed in an area farther away from current residences and Therese Loutherba mrmrswine@gmail.com No 53 cambria dr PA2015-094(Appeal to Planning Commission) Renee Skinner Renee@reneebarton.com No Muir Beach Circl As a healthcare practitioner myself there is A LOT of Scientific data to suggest that sell phone tower radiation is harmful! Having it at a park is even worse because children's brains are much more susceptible to radiation then adults. Their brains have more water in them, and they are growing at a rapid rate. If this cell phone tower gets put in our community,we will move for sure. Steven Kirsch stevek@pacbell.net No Point Sur Lorina Duran Mochaduran@aol.com No Monterey Mary Renter mmango55@gmail.com No San Martin Way We do not need this phone pole in Spyglass, our service works Solomon Spinqueen226@aol.com No Morro bay dr Francesca and Star Spinqueen226@aol.com No 16 morro bay drive JAMES&SUSIE CR,jfcroul@aol.com No 49 CAMBRIA DR.Spyglass Hill park was created as a condition for the developer to obtain approval,of his tract map.The purpose was to have a park for the enjoyment for the residents of Spyglass Hill. NOT FOR A COMMERCIAL CELL TOWER. EVERY RESIDENT SHOULD GO TO THE HEARING. HOW CAN THE ZONING ADMINISTRATOR GIVE APPROVAL WITHOUT PUBLIC HEARING? khosro mehrfar emehrfar@gmail.com No 20 morro bay Lore Waechter waechter@cox.net No Cambria Drive Charles Champion cachamp@cox.net No Cambria Drive Roya Mehrfar royafm@yahoo.com No Morro Bay Dr Reza Lotfi MD rlotfi5@gmail.com No 22 Mission Bay Dr 55 PA2015-094(Appeal to Planning Commission) Name Email Vote Street Comments Eva &graham Branton Artique3@gmail.com No 17 harbor ridge dr Floriana Anhood Floanhood@hotmail.com No 7 Napoli, Newport Having a tower in a children's playground is Beach unacceptable... Safety/health issues being my first concern.,Also,there must be other areas available that are not part of an existing residential area. How about an industrial or commercial area?! That would make more sense! Sonia Greer soniagreer@yahoo.com No 26 Drakes Bay Dr. I believe that a cell phone tower that is known to have serious health risks should have no place in a residential area,especially not at a playground. D.Kumar Ramisetti rdkumar526@yahoo.com No 19 Cherbourg Dean& Holly Wiener hollyo78@cox.net No Malibu Circle We highly contest the location of the Verizon cell phone tower to be placed at the Spyglass Park. Rasheen Ataian Rasheen.a@ camutogroup.com No Point Loma Drive william Littlefield joanlit@aol.com No vienna no cell phone tower in HR.This is private property with no governmental agency involved. If the master board has approved this,they need to be recalled immediately.If they have discussed it without informing the master association,they likewise should be recalled. Brenda McCroskey kaimbu@cox.net No Goleta Point There is plenty of rave land, away from playgrounds and homes to place this in. It impacts home values, people's perception of home values and desirability, and our enjoyment of our City's Parks. PA20iS-094(Appeal to Planning Commission) Amir Yazdi amir.yazdi@gmail.com No Morro Bay Dr jasmine moini jasminemoini@gmail.com No monterey circle Jerry Harrington Jmharrington3@cox.net No Geneve Terrence Greeson tpggag@cox.net No 29 Montpellier N earned a out the health hazards and property devaluation lisa helton acrobatbra@yahoo.com yes harbor ridge drive Peter Helton drphelton@aol.com No Harbor ridge Afsaneh Farivar Sonia.farivar@gmail.com No 7 Goleta Point Drive Powell Thurston PcThurstonk@cox.net No Morro Bay Don't wreck our property values and risk the health of our children. Karen Thurston Thurstonk@cox.net No Morro Bay Don't wreck our property values and risk the health of our children. Bill denham gddstudio@yahoo.com No Monterey cir. Jerry Carlton Carlton2@cox.net No Rocky Point Sirus Farivar sfarivar and@gmail.com No 7 Goleta Point Drive Hoda Abazari Hoda.yazdi@gmail.com No Morro bay dr charline howell bchar@aol.com No Vienna Karen Ursini kfurl23@hotmail.com No Cambria Alex Krall Alexjkrall@yahoo.com No Poppy Deborah Oldham Deboraholdham@cox.net No Muir Beach Circle This will cause a significantly lower property value to our family home. Please do not install this cell tower. It won't look natural in our beautiful community park. Nancy Armijo Nancymaill3@yahoo.com No East Coast Highway Nancy Armijo Nancymail13@yahoo.com No East Coast Highway Di Giorgio Tracy Tracyies@aol.com No 36 Shoreridge we do not want a cell tower anywhere near where we live for personal and Medical reasons. Brielle Fisher Briellesteiner@gmail.com No Goldenrod Amy Denoon Amydenoon@me.com No Tustin PA20iS-094(Appeal to Planning Commission) Harry Esayian Harry.esayian@gmail.com No Monaco Opposed to any cell towers in residential areas surrounding Harbor Ridge. WAECHTER FRED frw@cox.net NO 41 CAMBRIA DRIVE There are other locations an possibilities. Also I understand that the City of Newport Beach collect fees from Verizon for their coffins. Naz Irene Valer Nazv@ymail.com No Balboa blvd Karen Odell Klkodell@sbcglobal.net No Monterey Circle I strongly oppose the cell tower installation due to the negative impacts listed above. Verizon should find another location that won't negatively affect anyone's property values or health. Ghity Mandara mandaraghity@yahoo.com No Morro Bay Drive Marlis Marlis@thewhitedress.com No Point Loma drive My mother passed from a brain tumor.We used to live near a cell tower. EC Sheffield sheffieldjuliem@icloud.com No Morro Bay drive Lauren May lauren@randallmay.com No Trafalgar Stuart Nagasawa Stu4S357@yahoo.com No windsor Shakman karen_shakman@hotmail.com No Vienna Hugo F.Aviles 11 thehugoaviles@gmail.com NO 17 Muir Beach Circle Gordon Fishman Grflshman@sbcglobal.net No Ridgeline Irene.Aviles theavilesfam@gmail.com No 17 Muir Beach Circle Hugo F.Aviles hugoaviles@jhrep.com No 17 Muir Beach Circle Katalina Aviles katalinaviles@gmail.com No 17 Muir Beach Circle SHARON ALLUMBAUGH micasatwo@aol.com No RIDGELINE DRIVE J2 PA20iS-094(Appeal to Planning Commission) Marsha Stein mkstein7l@gmail.com No San Sebastian I oppose the installation of the cell tower at the corner of EI Capitan Drive and Spyglass Hill Road. This tower will negatively impact my view present a potential long-term health hazard and will diminish the property value of my home. Naomi Nagasawa Stuart.nagasawa@cox.net No 6 Windsor Constance Quarre Mose cgmoses@yahoo.com No Monterey Circle Norbert Foigelman drnorbert@msn.com No Harbor Ridge Drive Sue Foigelman suefoigelman@msn.com No Harbor Ridge Drive ghanshyam Lohiya gslohiya@gmail.com No Rocky Point Johanna Kim 84jokim@gmail.com No 8 Narbonne i definitely think we need a cell tower but why don't they put one further up on EI Capitan pass harbor ridge where there is plenty open space?? Cindy thomas cindythomasl@cox.net No lucerne First I have heard of this so I do not think that community involvement or input was properly considered. I do not want a cell tower in a children's playground. Nor do I want a cell tower in such a visible an awkward location and certainly not if it leads to additional towers from other companies. I emphatically vote NO? Leo Pinsky Leopinsky@aol.com No Morro Bay Randy and Janice Berg Jmday@earthlink.net No Cambria Tamar gugasian Tvgemini@aol.com No Drakes bay Against! The tower 59 PA20iS-094(Appeal to Planning Commission) Judy cwiertnia Judycw@cox.net No Goleta point drive we are definitely opposed to the cell tower being placed in such an inappropriate place. Health is more important than any other factor. Move it away from children playing & adults enjoy that park also. How unfair of you to lower our property values that we have worked so hard to get to live here. Evyatar levy Hyelearning@aol.com No Drakes bay Against!The tower Randy and janice berg Jmday@earthlink.net No Csmbria Paul Fitzpatrick Pfitz24@verizon.net No Saint Tropez I oppose this for the following reasons: a. Health impacts of a cell tower being placed at a children's playground/close to homes. b. Impact on property values.c. Visual and community impact Paul Fitzpatrick Pfitz24@verizon.net No Saint Tropez I oppose this for the following reasons:a. Health impacts of a cell tower being placed at a children's playground/close to homes. b. Impact on property values. c. Visual and community impact Maria Fitzpatrick mfitz4l@verizon.net No Saint Tropez I oppose this for the following reasons: a. Health impacts of a cell tower being placed at a children's playground/close to homes. b. Impact on property values. c.Visual and community impact McCallum michael &Mz Hrmare@gmail.com No Coventry Lore Waechter waechter@cox.net No Cambria Drive Hamid hkiani2@cox.net No 3 Goleta Point Dr. Andrew Struve astruve@manatt.com No Narbonne lucinda bloom (bloom@me.com No Vienna simpson svptm@aol.com No crestwood Gary Quinlan Cheryl @gpqinc.com No 5 Monaco simpson svptm@aol.com No crestwood David Fishman dfishman@sdg.com No Geneve 00 PA20iS-094(Appeal to Planning Commission) Farzad Massoudi M.D. Massoudi@pacbell.net No Muir beach Circle Absolutely against it! Skye Boreyko jboreyko@cox.net No 14 Rocky Point Rd. We are opposed to this! Cameron Massoudi Kimmassoudi@gmail.com No Muir beach circle I won't play in that park any more EIIA massoudi Massoudi@pacbell.net No Muir beach circle i can't play in the park anymore Jaden Boreyko tarabrooke@Cox.net No 14 Rocky Point Rd We have small children and we are not in favor of this because of the health risk as well as property decrease. Bonnie Scidmore bscidmore@me.com No 11 Montecito Drive Tara Brooke tarabrooke@Cox.net No 14 Rocky Point Rd I am totally opposed to this!!!We have lived here for 18 years and worked to hard for the value of our home to go down by 10-20%this is NOT an option! Kim Massoudi Kimmassoudi@gmail.com No Muir Beach Circle I am bs utile against the pole for property depreciation eye sore and the damaging health effect it causes. Kim Massoudi Kimmassoudi@gmail.com No Muir Beach Circle t am bs utile against the pole for property depreciation eye sore and the damaging health effect it causes. Jason Boreyko jboreyko@cox.net No 14 Rocky Point Rd. We are against this tower because it will reduce our property values. Susan Sinclair susan.sinclair2@gmail.com No Wellington Put this on empty land!!! There is alot around that is NOT near to homes children's playgrounds, etc. Alyssa Chong alyssachong@gmail.com No Rocky Point Dean CHong deanchong@gmail.com No Rocky Point Milford Dahl mdahl@rutan.com No Belmont Kenneth Chong trevchong@gma!l.com No Rocky Point Elis Chong elis@cox.net No Rocky Point Rd We cannot have a cell tower next to the park where my kids play everyday. I stronger believe that there will be radiation and potential health hazard 1M NO TOWER PLEASE Hit! Nancy Khoo booiekhoo@gmail.com No Rocky Point Junie Chong juniechong@gmail.com No Rocky Point 01 PA20iS-094(Appeal to Planning Commission) Trevor Chong tchong@tillster.com No Rocky Point Trevor Chong tchong No Rocky Point Nancy Khoo Booiekhoo No Rocky Point Debby Manning Manningdebby@yahoo.com No Belmont Pam Munro pammunro@ymail.com No Hillsborough A cell tower is not needed as Verizon coverage is already very good in the neighborhood. A cell tower would be unsightly and belongs in a commercial area not a purely residential one. It will obstruct views and lower property values as new buyers will look elsewhere to live. Eva Khwaja Ekhwaja@yahoo.com No Monterey Circle I'm am voting a big NO. Under no circumstances I would be in favor of the cell phone tower I am totally against it Armen gugasian Ag512bbi@aol.com No Goleta (harbor rider residents are greatly affected by this also Levon gugasian Leogugasian@gmail.com No Harbor ridge (harbor rider residents are greatly affected by this also Zar gugasian Armengugasian@ail.com No Harbor ridge Armen gugasian Kjg8677@aol.com No Goleta Kendra gugasian Kjg8677@aol.com No Goleta Peter Liao pliao668@gmail.com No Goleta Point Drive HASSAN MAHDARA hassanmandara@yahoo.com No 8925 Research Drive 02 PA2015-094(Appeal to Planning Commission) Dean Wiener dwiener@tibco.com No 5 Malibu Circle This is a really bad idea to have a base cell tower at the entry point of our Spyglass neighborhood close to many homes who will have to see this unsightly tower and having this at a park where people are and children play is not a good idea. In addition there is clear evidence that home values will decrease as a result. We are very opposed to this and look forward to positive interactions with the planning commission for the city to find a more appropriate location. (03 PA20iS-094(Appeal to Planning Commission) Name Email Vote Street Comments Alan Miller alanmiller@pacbell.net Yes Bodega Bay frank&keets kfburl@gmail.com No monterey burlingham Leanne Cohen leannecohen@hotmail.com No Mission Bay Please inform residents to call their cell phone carrier and request a personal "booster"for their home if they are experiencing poor service. Maryhelen Richey Maryhelenr@cox.net No Point Loma shari ciko shariciko@cox.net No monterey shad ciko shariciko@cox.net No monterey Bernstein Rosella rosell@cox.net No Saint Tropez The cons far outweigh the reasons for putting up a tower-- better recepton is not worth it. Sandy Stransky Sandystransky@gmail.com No Goleta Point Please put it somewhere else away from residential homes & playgrounds! Kristen Vander Veen Kmsattler@aol.com No Drakes bay Marcy Kim marcywes@cox.net No Bodega Bay Ronald Katz Comron@cox.net No Tiburon Bay A Ruiter aruiter22@cox.net No Morro Bay CHAD MCAFEE chadmcaf@hotmail.com No Drakes Bay I am for having tower installed cioser to our community as service is extremely poor however I am against installing one in a children's Park given that there are plenty of open locations in the general area that can be away from houses and where children play. Jane Liu Jane Iiu88888@gmail.com No 57 Cambria Laura Daniels Ijbiz@cox.net No Carmel Bay arico kim kimarico@sbcglobal.net No Napoli darlene diilon none No Napoli 04 PA2015-094(Appeal to Planning Commission) Martin Cooper micooperl7@yahoo.com No Malibu Circle PA2015-094(Appeal to Planning Commission) PETITION: I OPPOSE THE INSTALLATION OF THE 35 FOOT TALL CELL TOWER AT THE CORNER OF EL CAPITAIN AND SPYGLASS HILL ROAD IN CORONA DEL MAR/NEWPORT BEACH, CA. THIS TOWER WILL OBSTRUCT THE VIEWS WHICH MAKE PROPERTY IN AREA NEIGHBORHOODS SO VALUABLE AND WILL CAUSE A DIMINUTION IN PROPERTY VALUES FOR VIEW PROPERTIES AND THE NEIGHBORHOOD AS A WHOLE. THIS TOWER WILL BE AN UNSIGHTLY COMMERCIAL STRUCTURE AND IS ILL SUITED TO THE RESIDENTIAL NEIGHBORHOOD. Shared with Harbor Ridge in General REPLY 72;1 Jaiiice,:Barbara;Mina, and 1'other thanked you m x� 3 T,. Susan Sine air,f out Ha r 1("e ago Susan Striclair Welllagton, . Thank Flag Elvira Kud i rom Harbor RxfLyc l d ago Elvira Kudryashoua Dmitry Kudryashov__ 2 Narbonne: Thank Flag t s Mina Maghanni from 11-arborRidgeldago I.signed the petition and forward you a copy. 9 MontpelI'Iler, NB. 'i Thank you. Edited ld ago Thank Flag �3 Kinn Giemer,(rom Harbor:Kidgeldago i Kim Greiner, 21 Hillsborough Thank Flag. PA2015-094(Appeal to Planning Commission) Y 'Pain Munro from HarborRidgeIdngo Pam Munro, Hillsborough EditDelete F. I , • i :'.arvaneh Carter from I larboi R.idgefd'atgu . Parvaneh Carter 3•Be1mont 92660 Thank Flag [ l r M fi Barbara Means h-om-flarbor Rjdge2 h ago My husband and I objedt tothe selection ofthe.Spyglass Hill Park site fora Verizon cell tower. This isi' lovely, established res dentialarea of town; cell towers belong in industrial or commercial areas: Not . here! Thank Flag t 4*r- lanae Houf Ieyfrom Harbor Ridge22h ago My husband (Greg Houfley) and I,object to Spyglass Hill Park being used for a'Verizon cell tower. Families with very young children play here and they do not need to be exposed to Radiation. Put it on a non-populated hill. There are many"surrounding the:'neighborhood. Dur address is: 12.Windsor, Newport Beach. Edited 21 h ago Thank Flag k Janine Gan VI Ii from Flarbor Ridge22h ago The Gangolli's Belmont Thank Flag PA2015-094(Appeal to Planning Commission) Fred Darnel from Harbo.rRidge2lh.%o. There l no tower proposed This;is mis-information from poorly informed people. They are simply replacing a stkeet light pole.with another of the same size, that will also support a small antenna for fill-in. coverage Tfaere are many of these it Newport Beach. Fred-Daniel " Harbor Ridge community Thank Flag :MAls ;a t Mahrokh'MAmrnrnad-zadeh from 1-larbor,Ridge'_ih ago MY husband(Dr Ali Mohammad-zadeh) and I object to Spyglass Hill Park•location for a Verizon. 611 Tower. This is residential area not the Industrial one. Not HERE. Dr &'Mrs. Mohammad-zadeh thank flag,. Thank Flab 4 Eva-Brlgtonfrom Rarbor--Ridgef ago - Myhusband and'I are opposed! Graham and Eva Branton Thank Flag (o g PA2015-094(Appeal to Planning Commission) Pam Munro Subject: FW:IMPORTANT/ PETITION FOR Verizon cell tower at Spyglass Hill Park From: Marilyn McCallum<hrmare@amail.conn> Date:Wednesday,September 23, 2015 at 4:47 PM To: Nancy Williams<mawcab@cox.net> Subject: Re: IMPORTANT/PETITION FOR Verizon cell tower at Spyglass Hill Park Hi Nancy, I signed the petition, but I'm using my Wad (having a problem with my computer) so couldn't do much but return it to you. Sorry to be a bother. Marilyn Sent from my Wad Begin forwarded message: PETITION: I OPPOSE THE INSTALLATION OF THE 35 FOOT TALL CELL TOWER AT THE CORNER OF EL CAPITAIN AND SPYGLASS HILL ROAD IN NEWPORT BEACH, CA. THIS TOWER WILL OBSTRUCT THE VIEWS WHICH MAKE PROPERTY IN THE AREA NEIGHBORHOODS SO VALUABLE AND WILL CAUSE A DIMINUTION IN PROPERTY VALUES FOR VIEW PROPERTIES AND THE NEIGHBORHOOD AS A WHOLE. THIS TOWER WILL BE AN UNSIGHTLY STRUCTURE AND IS ILL SUITED TO THE RESIDENTIAL NEIGHBORHOOD. SIGNED: NAME EMAIL. Hr mareCalamail.com Michael and Marilyn McCallum <PastedGraphic-6.tiffl t PA2015-094(Appeal to Planning Commission) vARNUM A I O RNL,5 AT LA,.�... Bridgewater Place•Post Office Box 352 Grand Rapids,Michigan 49501-0352 Telephone 616/336-6000•Fax 616/336-7000•www.varnumlawxcmn JOHN W.PESTLE,admittod in Michigan and Arizona WRECT DIAL 616/3366725 WEB SITE www.vamumlawxom/cable E-MAILjwpesde@vamumlaw.com Cellular Tower Zoning and Siting: Federal Developments and Municipal Interests by John W. Pestle* International Municipal Lawyers Association Cellular Tower Zoning: Overview and Current Issues December 6, 2012 * John W. Pestle represents private parties and municipalities across the country on cell tower leasing and zoning, cable and telecommunications matters, from large cities such as Detroit to individual property owners. He is a past Chair of both the Municipal Lawyers Section of the State Bar of Michigan and Legal Section of the American Public Power Association. He received a special award of merit from the Michigan Municipal League in 2006 for his work for municipalities on cable and right of way matters and received the "Member of the Year" award from the National Association of Telecommunications Officers and Advisors in 1996 for his representation of municipalities on the Federal Telecommunications Act of 1996. See his cell tower blog at www.varnumbloes.com/cateeory/cell-shone-tower-leasing-and-zoning/ Mr. Pestle is a graduate of Harvard College, Yale Graduate School, and the University of Michigan Law School. He is a member of the State Bars of Michigan and Arizona. Copyright 2013,Varnum LLP 70 PA2015-094(Appeal to Planning Commission) VA'[TURNFYS AY I.AW®PI®9 TABLE OF CONTENTS I. Introduction and Background...................................................................................................... l II. Summary of Section 704 of 1996 Act, 47 USC 332(c)(7)............................................................2 III. Potential Zoning Solutions............................................................................................................5 IV. FCC Proceedings...........................................................................................................................9 A. Zoning Moratoria Proceeding .............................................................................................9 B. RF Radiation Proceeding .................................................................................................. 10 C. Broadcast Tower Proceeding ............................................................................................ 13 D. 1999-2000 Wireless Preemption Proceeding.................................................................... 15 E. Denver/Lake Cedar Zoning Preemption Proceeding ........................................................ 18 V. Cases on Section 704147 USC 332(c)(7) ....................................................................................20 A. Cases Covered...................................................................................................................20 B. Constitutionality of Section 704........................................................................................20 C. Which Applies to Zoning Decisions, Section 253 or Section 704, and When?................23 D. Local Zoning Authority is Generally Preserved by Section 704 ......................................27 E. Personal Wireless Facilities and Services What Towers and Antennas Are Covered? ....27 F. What Actions by Municipalities are Covered? .................................................................29 G. Who Can Sue?...................................................................................................................29 H. Duty to Act in a Timely Manner.......................................................................................30 I. Moratoria...........................................................................................................................30 J. Substantial Evidence Standard of Review ........................................................................31 K. Substantial Evidence Substantive Standard......................................................................33 L. Some of the Factors That May Be Considered.................................................................35 M. Written Decision/Written Record/Final Action................................................................39 N. Unreasonable Discrimination............................................................................................42 O. Effectively Prohibit Service/Gap Challenges....................................................................43 P. Radio/RF Emissions, Distributed Antenna Systems.........................................................47 Q. Remedy if Section 704 is Violated....................................................................................52 R. Damages,Attorneys Fees and Section 1983 Claims.........................................................53 S. State Law Claims ..............................................................................................................54 T. FCC Backup Power Ruling...............................................................................................55 U. FCC Shot Clock Order, Notice of Inquiry........................................................................56 VI. Section 6409(x) of Middle Class Tax Relief Act- -Modifications,Collocations...................64 A. Introduction and Background............................................................................................64 B. Constitutionality of Section 6409......................................................................................65 C. Types of State and Local Laws and Actions Affected......................................................66 D. Modifications and Services Covered by Section 6409......................................................68 E. Denial and Approval .........................................................................................................71 F. State Collocation Statutes Preempted?..............................................................................73 G. Practical Considerations....................................................................................................73 �1 PA2015-094(Appeal to Planning Commission) VA4 M" nnrvs nr rmv®mAtl VH. Environmental/Historic Preservation Law Compliance .........................................................74 A. Environmental Laws .........................................................................................................74 B. National Historic Preservation Act....................................................................................76 C. Effect on Local Zoning .....................................................................................................79 V111. Leasing Municipal Property for Cellular Antennas, Towers..................................................79 A. Municipal Property............................................................................................................79 B. Not Required to Lease Municipal Property.......................................................................80 C. Bankruptcy Related Issues................................................................................................81 D. Major Lease Terms............................................................................................................82 Section704 of 1996 Act...........................................................................................................................85 Section 6409 of 2012 Act on Modifications ...........................................................................................87 PA2015-094(Appeal to Planning Commission) �ARNUM:,, �Ai O%NEYsnr i.nry mews Cellular Tower Zoning. Siting and Leasing: Federal Developments and Municipal Interests by John W. Pestles I. Introduction and Background A. This paper summarizes from a municipal perspective (1)--Federal matters affecting municipalities on the zoning and siting of cellular towers and broadcast towers, (2)--leasing space on municipal property (buildings, water towers, parks) for cellular antennas, (3)--environmental and historic preservation concerns, and(4)--the need for franchises for the lines in the streets connecting cellular towers to the conventional phone network. This paper is updated frequently, for the most recent version contact us. B. Personal Communications Service (PCS) is the next major advance in cellular telephone service. It is similar to conventional cellular service, except it is higher frequency, all digital.2 C. The FCC auctioned off licenses for PCS service around the country. Around $40 billion raised to date. D. Major cities will likely have five or six PCS type providers in addition to the two current conventional cellular operators. E. PCS providers are attempting to build their systems quickly for competitive reasons and to meet the conditions of their FCC licenses. F. Concurrently conventional cellular providers are upgrading their systems to better compete with PCS--converting to digital, installing more towers for better.coverage. G. PCS providers sometimes are partnerships with local utility companies (electric utilities such as Texas Utilities) due to the advantage of using the existing entities' towers, poles, lines and access to their customers. IVarnum LLP represents municipalities and private parties nationwide on cell tower, cable, telephone and utility matters, from individual property owners and small municipalities to large cities such as Detroit. John Pestle is Co-Chair of the firm's Cable/Telecommunications Group and is a past chair of both the Municipal Lawyers Section of the State Bar of Michigan and the Legal Section of the American Public Power Association. He received the "Member of the Year" award from NATOA in 1996 for his work assisting municipalities on the Federal Telecommunications Act of 1996 and is a graduate of Harvard College,Yale Graduate School,and the University of Michigan Law School. He is a member of the State Bars of Michigan and Arizona. The firm has provided over 500 communities and property owners nationwide with model cellular zoning odinances, leases and related materials. At the FCC it has often represented state and national municipal groups,including the National League of Cities,in filings opposing Federal preemption of state and local telecommunications laws. 'In this paper"cellular"refers to both PCS and conventional cellular service. The terms"PCS" and"conventional cellular"are used only where there are items unique to that service. �3 PA2015-094(Appeal to Planning Commission) VAT-tN�:u n.�i7on�rxs nii_�w roger H. Due to the technology used, PCS requires many more "cell sites" and towers than conventional cellular telephones (one tower per cell site). 1. PCS "cells" may be 1/2 to 2 miles in diameter vs. 3 to 15 miles for conventional cellular. 2. One major venture is proposing one tower every two square miles. I. Failure or bankruptcy of some PCS providers is a real possibility. 1. Two major providers (Pocket Communications, Nextwave) have already filed for bankruptcy,plus some smaller providers. 2. Others may follow. I Tower Proliferation: 1. Towers may be 50' to 100' to 200' tall. 2. Partially due to increased number of providers a. Six PCS-type providers may lead to approximately three separate towers per square mile. b. Higher frequency of PCS as compared to older conventional cellular service also leads to more towers, as their signals effectively do not reach as far. 3. More towers are needed due to Whones, Wads, Blackberries, etc. This is to add capacity to cellular networks as "phones", or more correctly personal wireless devices, are used to access the Internet, for data, music, pictures, etc -- all of which take up more capacity than typical phone calls. 4. Result--many more antennas and towers are needed. a. Approximately 253,000 cellular antennas at the end of 2010. b. Plus around 100,000 for WiMAX/mobile broadband service C. Growing at 5%to 7%per year. d. This may be a problem in residential areas. Consider means to require consolidation of towers/one joint tower in residential areas. 11. Summary of Section 704 of 1996 Act,47 USC 332(c)(7) 2 74 PA2015-094(Appeal to Planning Commission) ATfCF �.A.RNLJM.,Nh`C4'$A'1'LA1Vil� A. Section 704 of the Federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (the 1996 Act is hereafter referred to as the "1996 Act", Section 704 is set forth at the end of this paper--it is only partially codified at 47 U.S.C. § 332 (c) (7)), generally preserves local zoning and land use authority for cellular towers. The principles it sets forth largely repeat standard provisions of zoning law. A recent U.S. Supreme Court case indicates that it may not be Constitutional, as did an opinion in an earlier lower court case--see Section V of this paper. 1. A complete copy of Section 704 is attached at the end of this paper. 2. Congress rejected cellular industry attempts to have the FCC preempt local zoning of cellular towers. This is important, given that the new personal communications services (PCS) will lead to 125,000 new cellular towers nationwide, with many communities having three to six different providers (with nine providers possible), each needing its own set of antennas. a. In fact, in the 1996 Act Congress expressly directed the FCC to terminate proceedings the FCC had started to preempt local zoning of cellular towers. 3. The scope of state and local authority preserved by Section 704 is much more than just zoning of cellular towers. a. It includes all State and local. decisions regarding "the placement, construction, and modification" of personal wireless service facilities. Thus, local safety code, environmental and health laws relating to placement, construction, and modification are preserved. b. The term "personal wireless service facilities" is broadly defined in Section 704 and includes (among other things) certain unlicensed services and fixed wireless services. 4. Municipalities cannot "unreasonably discriminate" among "providers of functionally equivalent services." a. The Conference Committee Report accompanying Section 704 says this language gives municipalities "flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a residential district." Conference Report to S. 652 and Joint Explanatory Statement of the Committee of Conference, HR-104-458, 104th Cong., 2d Sess. at 208 ("Conference Committee Report") b. Different standards may apply in different districts (commercial vs. residential). 3 715 PA201S-094(Appeal to Planning Commission) vARNUM- aT HNM AT WV C. If Provider A needs a 30-foot tower and Provider B needs a 200-foot tower, the municipality may treat them differently. 5. Municipalities cannot "prohibit or have the effect of prohibiting" cellular service, so some appropriate place and conditions should be found for the antennas. 6. Municipalities must act in a reasonable time, which in general is the time frame that would typically occur under State and local law. 7. Municipalities must see that any denial of a request to "place, construct or modify" cellular devices is: a. In writing, and b. Supported by "substantial evidence contained in a written record," which is a common existing standard for evidence in zoning matters. C. There is no Federal presumption of validity on cellular requests for zoning approval. d. The written record requirement may create concerns for situations such as denial of a building permit for a cellular tower because such a tower is not a permitted use in the zone in question. 8. Municipalities cannot deny or regulate cellular antennas due to environmental concerns about their radio emissions if the antennas comply with FCC rules on radio emissions, which appear at 47 C.F.R. § 1.1310.3 a. A court challenge to such rules has been rejected. Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000), rehearing denied, 2000 U.S. App. LEXIS 12246 (2d Cir. 2000), cert.denied 531 U.S. 1070 (2001), 121 S. Ct. 758, 148 L. Ed 2d 661. b. The FCC and its Local and State Government Advisory Committee ("LSGAC") on June 2, 2000 published the paper "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance" on radio emissions from cellular and other towers. Copies are available from our firm, the FCC/LSGAC (see LSGAC site at http://www.fcc.gov/statelocal/) and from the International Wireless Committee of the International Right of Way Association at http://www.irwa.net/. C. At least one court has held that as part of the local zoning approval process a municipality's board of health could inquire about RF emissions and require the provider to explain its RF study for the site so as to ensure that the FCC's RF emission standards are 3The FCC Wireless Facilities Siting web page, http://www.fec.aov/wtb/siting, provides useful documents, links and information on a wide range of cellular issues, including RF radiation, some pending proceedings, environmental and compliance,tower siting information(getting a list of towers in a particular area)and interference issues. 4 70 PA20t5-094(Appeal to Planning Commission) VA.RNUMu, �ATH1RkCY46[LNt met. Sprint Spectrum v. Township of Warren Planning Board 737 A. 2d 715 (N.J. Superior Ct. App. Div. 1999) ("Township of Warren"). B. Section 704(c) (attached at end of paper) also requires the Federal Government to .make Federal lands and buildings available for cellular antennas. 1. A General Services Administration directive in the 1996 Federal Register encourages cellular antenna placement on. Federal property. General Services Administration, "Government- Wide Procedures for Placing Commercial Antennas on Federal Properties." 61 Fed. Reg. No. 62, 14101 (March 29, 1996). a. But requires compliance with local zoning rules and building codes. b. Claims by cellular providers that their antennas on post offices are exempt from local zoning regulations are incorrect. C. The Post Office and other Federal agencies have backed off claims that they need not comply with local zoning laws when cellular antennas are installed on Federal property e.g., Unisite litigation regarding antenna on post office in Schaumburg, IL. Village of Schalunburg v. United States Postal Service, et al., (USDC, ND Ill Docket No. 96-CV- 5992), filed September 18, 1996, (settled by Post Office obtaining local zoning approval); People v. Salzman, 43 N.Y.S. 2d 560, 126 Misc. 2d. 686 (1984), (criminal prosecution of individuals leasing Federal property for billboard for failure to obtain required New York City permits upheld, Federal preemption challenge rejected); See generally 83 Am. Jur. 2d. "Zoning and Planning" at § 416 and following; Annotation: "Applicability of Zoning Regulations to Government Projects or Activities" 53 ALR 5th(2000). I1I. Potential Zoning Solutlons4 A. By modifying the definitions in their zoning ordinances, municipalities can address cellular company claims that they are "utilities" or "essential services" entitled to preferential treatment (for example, placement of towers of right in all zoning districts) under zoning ordinances, which may impair municipal attempts to apply appropriate zoning controls to cellular towers. B. A good means to encourage use of certain locations, such as industrial or commercial areas, is via a lessened or quicker approval process for such locations. C. Encourage location on municipally owned properties or rights of way. 1. Minimizes intrusion. 2. Aids consolidation, collocation. 4The firm has available a 10-15 page model cell tower zoning ordinance for use by municipalities for$225. Contact John Pestle or Barb Allen at 616/336-6000 for details. 5 77- PA2015-094(Appeal to Planning Commission) UARNUM,,, 151GYYll ATI'URNtiI`6 A1'L-4tP YBOY 3. Revenue impact. D. Consolidation/collocation approaches: 1. Multiple antennas on one tower where feasible. 2. Engineering considerations -- may not always be practical. 3. Some opposition by incumbent providers. 4. Aided where towers are special uses or require variances. 5. Towers with multiple antennas can be unsightly. 6. Tradeoff between having fewer, more obtrusive towers and more, less obtrusive (shorter) towers. E. Graduated Zoning Approach 1. Increased scrutiny and approval needed as land use categories become more sensitive (industrial to commercial to residential). F. Encourage "stealth" or concealed antennas, such as: 1. In church steeples, or buildings 2. As part of outdoor signs 3. As part of electric light poles 4. Disguised as trees. G. Encourage use of cable-based "microcell PCS", also known as "Distributed Antenna Systems" or DAS, which uses a cable system and no towers to provide cellular service. 1. One DAS system can serve all cell phone companies, replace individual sets of towers for each company 2. Viewed as potential revenue source for cable systems. 3. Require tower applicant to show why cannot use it in lieu of tower. 4. But municipal encouragement is sometimes opposed by industry. See Town of Clarkston cases below, where a group of providers successfully challenged a New York 6 72 PA2015-094(Appeal to Planning Commission) A 7ARNUML, a�mm nnuwuers n��.nn• community's zoning ordinance which expressed a preference under some circumstances for "alternate technologies" such as DAS, in lieu of traditional cell towers. H. Spacing requirement-- antennas must be located a certain distance apart. 1. Prevents concentration of antennas, does not reduce their number. I. Concerns about bankruptcy of tower owner. J. Provisions to obtain additional information from provider to allow examination of issues that may arise in zoning proceeding. K. Radio Emission.Concerns: 1. Some PCS (or conventional cellular) services cause interference with hearing aids -- major issue in some areas. Some studies show interference with pacemakers. a. Technological solutions in short term unclear. 2. In some areas, there is significant public concern about the health effects of radio frequency emissions from cellular towers. a. The 1996 Act states that municipalities cannot regulate the "placement, construction or operation" of PCS and conventional cellular facilities but only "to the extent such facilities comply with the FCC's regulations concerning such emissions." b. FCC August, 1996 rules set standards for such emissions, but "categorically exclude" PCS and conventional cellular antennas below certain power levels and which are located more than 10 meters above ground level (or 10 meters above a rooftop) from having to demonstrate compliance with the FCC rules. See more detailed information in "Radio/RF Emissions" at Section V.K, below. C. The FCC does not conduct measurements of RF radiation from PCS or conventional cellular antennas. d. Actual measurements of RF radiation from antennas can provide a basis to address community concerns (if the antenna meets FCC requirements) and a basis for municipal action(if the antenna violates FCC requirements). At least one court has held that as part of the zoning process a municipality's board of health could inquire about RF emissions and require an explanation of the provider's RF study to ensure that the FCC's RF emission standards are followed. See Township of Warren, supra, 737 A. 2d 715. Measurements by City of San Francisco showed a large number of cellular antennas located on buildings exceeding FCC RF radiation limits. See Section IV.B.3.g (2), below. Municipalities where radiation concerns are an issue may wish to consider: 7 �9 PA2015-094(Appeal to Planning Commission) V;ARN TlO�t�, A'ITUH\k}'g AT IAR'Y�11WW (1) Requiring cellular providers to provide information (especially on towers with collocation) on projected radiation, whether standards for "categorical exclusion" are met, and if so why. Updated information may be needed as other providers attach to a tower. (2) Requiring the provider(or an independent party at provider's expense) to make periodic measurements for compliance with FCC rules. (3) Predetermined potential actions by the municipality if the FCC radiation limits are exceeded (affect on zoning approvals, temporary cessation of service, notice to FCC, notice to nearby property owners and persons, provision of adequate insurance to cover claims). e. Collocation with multiple antennas on one tower or building is more likely to not meet the FCC standards for "categorical exclusion" and are more likely to not meet the FCC radiation standards. f Interference from cellular antennas has disrupted police, fire and public safety communication. See Section W.B.31 below. L. Typical Municipal Views 1. Municipalities and their residents want cellular service. 2. Municipalities are well aware of and frequently deal with the "not in my backyard" syndrome for items such as electric substations, garbage transfer stations and water towers. 3. Cellular towers are simply another area for the same type of tension between a need for service and desire for residents not to have the facilities to provide the service placed near them. 4. In general,municipalities want control over: a. Zoning: Should the tower go at this location or another one nearby. b. Site Plan Review: For design elements, to camouflage the tower and in general try to have it blend in; and C. Control the fewer higher towers vs. more lower towers tradeoff. d. Municipalities dislike provider attempts to "bulldoze" them. M. Common provider errors with municipalities include the following: 1. "We have been approved by the FCC so you have to let us build the tower right here and nowhere else." This is simply not true. 8 20 PA2015-094(Appeal to Planning Commission) VM UsfiVS A[LAW Y0Y 2. "The tower has to be this high and no lower." Often towers end up being lower and engineering studies and radio tests show that it easily can be lower. 3. Providers not approaching the matter as one of local zoning or as a local real estate matter. 4. One provider's loss of credibility affects subsequent providers. TV. FCC Proceedings A. Zoning Moratoria Proceeding. 1. Some municipalities have adopted moratoria on new towers until they could amend their zoning ordinances to deal with them. 2. In December 1996, the cellular industry filed a petition at the FCC to have all cellular tower zoning moratoria nationwide declared illegal. Acting very rapidly, on December 18, 1996, the FCC sought public comment on the petition. See FCC Public Notice DA 96-2140. 3. Municipalities claimed in comments that the FCC lacked jurisdiction over the subject matter in question and if it had jurisdiction, had not followed the appropriate procedures (proceeding municipality by municipality, as provided by statute). 4. In July 1997, the FCC sought additional comments on its tentative conclusion that it should preempt all cellular tower zoning moratoria of unlimited duration. See FCC Public Notice FCC 97-264,WT 97-30. The FCC asked for comments on this conclusion and the following points: a. What is the maximum time for a zoning moratorium which the FCC should allow (90 days, 6 months or other). b. Whether the FCC's ruling precluding moratoria should apply prospectively or retroactively(to moratoria currently in effect). C. Whether moratoria that affect new cellular providers while old ones construct or modify facilities should be preempted by the FCC. d- Whether zoning moratoria that are otherwise acceptable should be ruled illegal if they are based upon concerns about radiation from cellular antennas. 5. Municipalities were concerned about this proceeding for the following reasons, among others: a. Zoning moratoria are a permissible zoning tool and do not prevent cellular service. The FCC's proposal did not recognize this and impermissibly attempted to create a uniform maximum duration for such moratoria. 9 21 PA2015-094(Appeal to Planning Commission) VAR , �,��rronnris b. It violated the exclusive local zoning authority over cellular towers which Congress confirmed in the Telecommunications Act of 1996. C. The FCC would likely use a ruling in this proceeding as a precedent to further limit local zoning authority over cellular towers, such as: (1) Cellular companies' claims that the FCC should ban any delay in acting on a request for cellular tower zoning approvals, and (2) Banning most zoning changes affecting cellular towers (because they affect new providers more than they affect incumbents with some towers already in place) d. The FCC violated applicable statutory and constitutional provisions by failing to either proceed on a case-by-case basis (with notice to the affected municipalities) or use the rulemaking process. (1) Use of this procedure may have substantial impact on many other FCC attempts to preempt local authority. e. The FCC action violated principles of Federalism and States' Rights, where zoning is generally a matter of exclusive local concern. See discussion in Section V.B., below. f. The FCC action violated the Freedom of Speech and other rights of residents to voice their concerns about radiation from cellular towers. 6. In August, 1998, the proceeding was resolved with an agreement between the FCC's Local and State Government Advisory Committee, the cellular industry and the FCC which provides generally as follows (see www.FCC.gov/statelocal/agreement.html): a. It provides a set of suggested "best practices" by which the industry and local governments can work cooperatively on wireless tower siting. b. It provides an informal dispute resolution process administered by the FCC for use by local governments and industry regarding moratoria or other disputes that may affect wireless tower siting. The process is voluntary and advisory. C. The cellular industry agreed to withdraw its preemption petition with prejudice,meaning that it may not be refiled. B. RF Radiation Proceeding. 1. The 1996 Act states it preserves local zoning of cellular towers with one exception: Municipalities cannot regulate cellular towers to the extent their radiation complies with FCC rules. 10 g2 PA2015-094(Appeal to Planning Commission) �1E �ARNUM,,, ATCf)ANEI'5 AT iANIi4Y9W 2. In August, 1997, the FCC issued a Notice of Proposed Rulemaking which would have this "exception swallow the rule" by allowing the FCC to review and reverse any local zoning decision that it concludes is "tainted" by concerns over RF radiation. See Procedures for Reviewing Requests for Relief From State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Telecommunications Act of 1934, FCC 97-303, WT Docket No. 197-192, Second Memorandum Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd 13494, 13540-60 (1997). The proposed rule would have the following elements, among others: a. A cellular provider could appeal directly to the FCC any zoning decision (or failure to act) it claims is based on concerns over radio wave radiation from a cellular tower. b. Appeals would not be from the final decision of a municipality (e.g.--board of zoning appeals) but instead would be from the initial decision (e.g.--of a zoning or planning commission). C. FCC appeals would proceed in parallel with board of zoning appeal proceedings and any local court appeals. d. The FCC could reverse zoning decisions if there is any evidence showing that concern over radiation was the basis (or partial basis) for the decision_ (1) The FCC stated it could reverse zoning decisions that are otherwise perfectly acceptable if radiation concerns were raised. (2) The FCC apparently will "second-guess" the reasons given by a municipality for its decisions. e. "Where the FCC does not have specific preemption authority" over cellular zoning decisions it would intervene in court appeals by industry providers to "provide the court with our expert opinion." f. The FCC suggested these rules should also apply to private restrictions affecting cellular towers, such as land trusts, conservation easements, condominium rules, homeowner association rules, subdivision restrictions, and deed restrictions. (1) In a related proceeding, the FCC is being asked to rule that it can prohibit all state court lawsuits affecting cellular towers, such that (among other things) all private land restrictions limiting the construction of cellular towers could not be enforced. g. Municipalities could not require cellular telephone companies to measure the radiation from their antennas (to show it complies with FCC rules). (1) The FCC rarely, if ever, conducts such measurements for certain classes of towers. 11 g3 PA2015-094(Appeal to Planning Commission) VARNLTM , nrrgxvsr�erLgIN 3. Municipal concerns as to this rulemaking include: a. The FCC is proposing to use the "radiation exception" to overturn the 1996 Telecommunications Act's preservation of local zoning authority over cellular towers because in contested cases,usually some resident will mention RF radiation. b. The proposal violates principles of Federalism and States' Rights, especially by allowing the FCC to "second-guess" the reasons for local decisions and reverse decisions that are otherwise acceptable. See discussion in Section V.B.,below. C. The proposed rule violates the 1996 Act's preservation of local authority over cellular tower radiation exceeding FCC limits. d. It infringes on citizens' Freedom of Speech and right to petition government, particularly given that in many communities, by statute, charter or local practice, there is a public comment period where citizens may speak on agenda and non-agenda items and their comments cannot be restricted. e. It is a "gag rule" because citizens who properly raise radiation concerns (e.g.- -exceeding FCC limits)may increase the chances towers will be located near them! f. The FCC is in a conflict of interest position because it has been directed by Congress to help balance the Federal budget by selling off airwaves for cellular service. It is giving fust priority to this with health and safety of citizens getting little attention. g. The FCC's rationale for not measuring radiation from towers typically assumes a single tower standing by itself, Increasingly, towers are mounted on the sides of buildings or with multiple antennas "collocated" one on top of each other, such that they may interact in unanticipated ways. (1) If the radiation is within FCC limits, why is it opposed to measuring it? (2) As the City and County of San Francisco set forth in its comments, most cellular antennas in that city are mounted on rooftops to which members of the public often have access. Out of approximately 100 cellular antenna applications monitored by the City's Public Health Bureau for compliance with the FCC's RF radiation standards, approximately 40 to 50 had the potential for human.exposure in excess of FCC limits. The City required mitigation measures to be taken in marry instances to bring RF radiation within FCC limits. (3) And as the City and County of San Francisco pointed out, the FCC conducts no on-site monitoring of cellular antennas for compliance with RF radiation standards. 12 24 PA2015-094(Appeal to Planning Commission) VARNUM,, �1 A'ITQIU:6F5 h1'41Po� It. A related concern is that interference from cellular antennas has disrupted and blocked police, fire, and public safety radios. According to press reports, the problems sometimes have involved Nextel sites, perhaps because it operates in the 800 MHz band, close to public safety frequencies. The FCC is not staffed or well situated to investigate and resolve such problems, which are highly site-specific. 4. The rulemaking proceeding was concluded by Report and Order FCC 00-408 adopted November 13, 2000, released November 17, 2000. The Report and Order concluded that FCC "review of requests for relief from impermissible State and local regulation of personal wireless facilities based on . . . RF emissions . . . shall be treated as petitions for declaratory ruling." Procedures for Reviewing Requests for Relief From State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Telecommunications Act of 1934, WT Docket No. 197-192, Report and Order,_FCC Red_, FCC 00-408 at 111 (2000). The Report and Order then specified certain procedural and timing requirements for such proceedings, which are those applicable to petitions for preemption of State or local authority under Section 253 of the 1996 Act, with a minor change in service requirements. a. The Report and Order dealt exclusively with the preceding procedural provisions relating to petitions for declaratory rulings--it did not include the types of provisions set forth in the Notice of Proposed Rulemaking (described above) to which municipalities strongly objected. b. The FCC appeared to have been strongly influenced by the very small number of disputes involving RF radiation issues, and the fact that court decisions have tended to uniformly uphold the FCC's exclusive jurisdiction on such matters. See the Report and Order at footnote 56. C. The FCC was also favorably influenced by the promulgation of "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance" (see Section II.A.8.b above) which had been prepared and released by the FCC and its Local and State Government Advisory Committee since the issuance by the FCC of its Notice of Proposed Rulemaking in this proceeding. C. Broadcast Tower Proceeding 1. In August, 1997 the FCC issued a proposed rule requiring (a) states and municipalities to act on (b) all zoning, building permit, environmental permits and any other approvals (c) necessary for the construction or modification of radio and TV station towers (d) within 21 days to 45 days irrespective of(e) the subject matter of the approval, its complexity, the time needed to obtain information, local requirements for notice to adjoining landowners, hearing requirements, appeal periods and the like. See FCC 97-296, MM Docket No. 97-182.5 SCompare American Towers v. Williams, 146 F. Supp. 2d 27 (D.C.D.C. 2001) ("American Towers v. Williams") (Rejecting claim that Section 704 of 1996 Act applies to broadcast tower proposed primarily for HDTV, if cellular antenna will also be placed on tower). 13 25 PA2015-094(Appeal to Planning Commission) VjARN�JM,., I�f1YY ATlUNSGYY A1'LASP pHY�O a. Failure to act in these time frames results in the permit or approval automatically being granted! b. The FCC claims this change is needed to aid the initial construction of new towers needed for High Definition Television (HDTV), also known as digital TV (DTV). It does not explain why the proposed change should apply to AM and FM stations and continue indefinitely. C. Some of the new digital TV towers will be nearly one-half mile high -- taller than the Sears Tower or Empire State Building. 2. In addition, under the proposed rule: a. Zoning approval, building permits, environmental permits and code approvals could only be denied for "clearly stated safety" reasons. b. Approvals could not be denied or conditioned due to aesthetics, impact on property values, and designation as a historic site or the like. CI Municipalities must prove that any zoning, environmental or code requirements are reasonable in light of the Federal interest in having radio/TV stations and "fair competition among electronic media." d. All appeals of state and local decisions affecting radio and TV towers would go to the FCC in Washington,not to the local courts. 3. States and municipalities are concerned about this rulemaking for the following reasons, among others: a. The proposed rule violates principles of Federalism which restrict Federal authority, promote States' Rights and recognize zoning and permitting as being a uniquely local concern. See discussion in Section V.B.,below. b. It would set a dangerous precedent for Federal agencies intruding in local affairs by mandating that state and local approvals are "automatically deemed granted" for private parties. C. The time limits proposed by the FCC are unrealistic and bear no relation to the procedural requirements of state and local law, requirements of due process, or zoning law. d. The proposed rule totally disregards property values, historic districts, aesthetics and the like. Even safety rules apparently can be overruled by non-safety "Federal interests." 14 20 PA2015-094(Appeal to Planning Commission) 'vARNUK, MEAL dTtULNGYS AY LAZY LLLIW C. Rather than change the artificial deadline it set for HDTV (which may not be met for other reasons)the rule puts zoning, property values, safety and Federalism at risk. 4. The FCC appears to have backed off some on this rulemaking. a. Its experience in the top television markets (to convert to HDTV in 1998 and 1999)have not shown state and local permitting to be a problem. b. On May 29, 1998, the FCC created a 'DTV Tower Strikeforce" to target potential problems in the implementation of HDTV and to work with state and local governments to expedite its implementation. See FCC Report No. MM 98-6. C. Efforts to reach an amicable resolution with broadcasters have not been successful. 5, To date nothing has resulted from the proposed rulemaking. In September 2006, the FCC issued a ruling in response to a request for a declaratory ruling that, "under the current policy of the FCC, local zoning rules which are predicated on land use preservation, including preservation of agriculturally-zoned land and scenic vistas, would not be preempted by the Commission" with respect to construction of "new broadcast towers in certain rural areas and height restrictions in other" areas. The Commission ruled that "It is true that, to date, the Commission has not adopted any rules or regulations that preempt local zoning rules affecting construction of broadcast towers." DA 06-1920, released September 26, 2006. D. 1999-2000 Wireless Preemption Proceeding 1. Introduction: On July 16, 1999, the FCC a. Proposed a rule (1) Preempting state and local laws, ordinances, building codes and deed restrictions affecting telecommunications antennas, and (2) Allowing multiple telephone companies to (1) place their wires in buildings and (2) place their antennas on buildings but (3) without the permission of the building owner, b. Issued a Notice of Inquiry to consider preempting local management of rights of ways, compensation,permitting and fees regarding telephone companies, and C. Also issued a Notice of Inquiry to consider preempting state and local taxation of telephone companies. d. See generally FCC 99-141, WT Docket No. 99-217, CC Docket No. 96-98. Further information on the proposed rule (not the Notices of Inquiry) is as follows. 15 g7- PA2015-094(Appeal to Planning Commission) VMH;vBtiti AT 1..1LV 11®6i 2. Proposed Rule: The FCC's proposed rule would have allowed any cable or phone company to extend their wires to any tenant of a building and to place their antennas on the building roof. The FCC's stated goal in the rulemaking was to increase competition in local telephone service by allowing any tenant of a building to be physically reached and served by any phone or cable company the tenant chooses. In part the proposed rule would have extended the FCC's 1996 rules prohibiting landlords from preventing tenants from installing small direct broadcast satellite dishes to other types of antennas. a. A principal emphasis of the proposed rule was "fixed wireless" telephone service where a.new phone company reaches a building via a microwave dish on the roof, not wires in the streets. b. To encourage the desired competition to occur, the proposed rule would have allowed all phone and cable companies to place wires in buildings and antennas on their roofs necessary for this to occur. Building owners (including units of government) would not have been allowed to prohibit this from occurring. 3. Municipal Concerns: Municipal concerns on the proposed rule included the following: a. The rule would have created major problems where municipalities are landlords, such as for housing projects. In some states eighty(80) to two hundred fifty(250) new telephone companies have been approved to provide service. Each tenant could have had a different wire, antenna and phone company. Serious safety and other problems could occur at prisons and municipal hospitals. b. The rule would have preempted building codes, zoning codes, safety, and environmental laws that would impair placing multiple antennas of unlimited size on the roofs of buildings. Private restrictions (deeds, condominiums, by-laws, homeowner association restrictions) on these antennas would have been prohibited as well. C. Such preemption would ignore the safety and other concerns which these items address. For example, allowing multiple antennas of unlimited size on buildings (without screening)invites structural problems and collapses, and encourages urban blight. d. The FCC's proposed rule in part was based upon its broad interpretation of a statutory provision allowing cable and phone companies to use "rights of way" "owned or controlled by a utility." If the FCC broadly interprets this provision to include the roofs and interiors of buildings, it may well apply it next to streets and highways to achieve the FCC's apparent goal of preempting all local telephone franchising,permitting, and fees. e. The FCC did not publish the proposed rule, making it much harder to provide detailed comments on it. f. The proposed rule violated principles of Federalism and States' Rights where zoning and local safety concerns are exclusively reserved to municipalities and Congress is 16 22 PA2015-094(Appeal to Planning Commission) VAA'ITONtiEYS A'f L.11M� limited in the scope of its authority under the Commerce Clause and Tenth Amendment (see discussion in Section V.B below). g. The proposed rule violated constitutional property rights by taking public and private property without compensation. h. Congress had not given the FCC authority to take these actions. i. There is some risk given FCC proceedings in this area that cellular providers may ask-and the FCC may agree-that any resulting rule must be extended to cellular antennas, such that if a municipality(or other landlord) allows a cellular antenna or tower on its property, that it has to allow many other cellular antennas or towers to be placed there (and perhaps on other property as well). 4. A rule was adopted by the FCC on October 12, 2000 which generally preempts local zoning and building codes only for fixed wireless dishes one (1) meter or less in diameter placed in areas (balconies, patios) within a user's exclusive use and control. See generally First Report and Order and Further Notice of Proposed Rulemaking, FCC 00-366,WT Docket 99-217, CC Dockets 96-98, 88-57 (October 12, 2000) ("Wireless Order"); 47 CFR§ 1.4000 (as thereby amended). a. The new rule extends the then-current FCC "Over the Air Reception Device" ("OTARD") rule generally preempting zoning and building codes for small (1 meter) video satellite dishes to customers' fixed wireless dishes of the same size.6 b. The text accompanying the rule said it is primarily intended to benefit tenants (such as in office buildings) by allowing them to place wireless antennas on balconies but not on rooftops (or other "common areas" outside the tenant's exclusive use and control). Providers may claim that the rule extends to such locations as single family dwellings as well. C. Because such dishes transmit signals, municipalities may require that they be installed by a professional installer. Wireless Order 1 119. "Interlocks" necessary to promote safety may be allowed as well. Id at fn. 256. d. The FCC disagreed that in Section 704 Congress had expressly preserved local zoning authority over such antennas. e. The FCC said that local regulations addressing asbestos and other safety concerns would continue to be valid, subject to certain restrictions in 47 CFR § 1.4000, particularly if they accomplish a clearly defined safety objective. f. Historic preservation regulations are also exempted. 6For a general description of these rules see our paper on satellite dish rulemaking. 17 29 PA2015-094(Appeal to Planning Commission) VARNUK, TWO ATfOW4,+YS A'f LgN'rYPY9 g. The rule does not apply to rooftops and other "common areas" not within a tenant's exclusive care and control. h. The FCC, although in the past having stated strongly that aesthetics would require an environmental impact statement ("E.IS"), stated that it believed the aesthetic impact of small dishes was minimal. It declined to prepare an EIS on this or other environmental grounds. 5. The constitutionality of the OTARD rule generally, and of this expansion of it, is suspect under Northern Cook County and other cases Constitutionally restricting the scope of Federal authority and promoting states' rights, particularly in matters relating to state and local authority over land and water use matters. See discussion in Section V.B., Constitutionality of Section 704, below. For related Constitutional takings claims issues, see Greater Boston Real Estate Board v. Massachusetts Department of Telecommunications & Energy, (Suffolk County, Mass, Superior Court Civil Action No. 00-4909A, July 27, 200 1) rejecting on constitutional takings ground a state regulation requiring landlords to give telecommunications companies space in buildings for their wires, even if landlord objects. But see Building Owners and Managers Association v. FCC, 254 F.3d 89 (D.C. Cir 2001) upholding over similar constitutional objections earlier provisions of the OTARD rule as applied to landlords. E. Denver/Lake Cedar Zoning Preemption Proceeding 1. Summary: In a potentially precedent-setting case in November, 1999 several Denver TV stations known as the "Lake Cedar Group" and the broadcast industry asked the FCC to preempt a local zoning decision denying approval for an 854 foot TV station tower. This case is important to municipalities and their residents because it is the first time that the FCC has been asked to step in and reverse a local zoning decision on broadcast towers. It appears to be intended by the broadcast industry to set a precedent that the FCC can preempt local zoning of radio and TV towers, with preemption then being expanded on a case-by-case basis. See FCC Public Notices DA 00-764 and DA 00-1090. 2. The Case: Several Denver TV stations proposed a new 854-foot TV tower on Lookout Mountain just west of Denver. After delays of approximately a year and a half they filed for rezoning of the land in question (which already contains some TV towers). The rezoning request was denied.by the Jefferson County Board of Commissioners for, among other things, failure to comply with applicable land use plans, failure to meet set back requirements (three houses were within the "fall zone" equal to 110 percent of the height of the tower) and failure to show there were no reasonable alternative sites available. The broadcasters then filed at the FCC asking it to overturn the local zoning decision because failure to do so would conflict with the FCC's requirement that all Denver TV stations offer the new, high definition television ("HDTV") service by November 1999. The tower was for such services. The broadcasters claimed: a. That Jefferson County officials "bowed to political pressure from a small cabal of intransigent activists," 18 90 PA2015-094(Appeal to Planning Commission) �jARNIM., CWYN06 ATI'UHivYiYS A'i'I.A\5•pblflgl b. That the FCC needs to send a "strong and clear signal... to other localities who may be considering obstruction of HDTV broadcast towers, of needed zoning variances, or of other local approvals," and, C. That there was no factual or legal basis for the county's action. d. At the FCC the broadcasters filed a lengthy study on the lack of other sites which they had not presented at any point during the year-long local rezoning process. e. The Denver broadcasters also filed an appeal in the Colorado courts challenging the rezoning denial. That case was ready for decision in the spring of 2000. f Jefferson County and area residents filed responsive documents at the FCC opposing the broadcaster's requests and in general stating that there was ample evidence in the record to support the denial; that the broadcasters had failed to demonstrate the lack of alternate sites; noting how the broadcasters had needlessly delayed seeking their rezoning request for a year and a half (such that any delay in meeting a November 1999 HDTV conversion was largely the broadcasters fault). These filings also opposed preemption of local zoning on statutory, Constitutional and policy grounds. 3. Municipal Concerns: Municipalities should be concerned about this case for the following reasons, among others. a. Zoning and planning are best handled at the local level. Federal preemption of local zoning is unconstitutional (see discussion in Section V.B below), Unworkable and a violation of Federalism. b. The case appears to be intended by the broadcasters to set the precedent of making the FCC a "National Board of Zoning Appeals" which can preempt local zoning decisions on radio towers, TV towers and many other matters. C. The broadcasters' request is contrary to 80 years of precedent where local zoning has worked well and the FCC has consistently deferred to municipalities on zoning of broadcast towers. "If it isn't broke, don't fix it." d. There is no need for the FCC to act because there is a prompt, effective remedy in the Colorado courts where the broadcasters have already appealed. e. Appeals on this and many zoning matters are solely on the record. It is extremely dangerous for the FCC to receive new evidence not submitted to the local municipality (it encourages applicants not to present municipalities with all the facts necessary for local zoning decisions). f. Most fundamentally, if local zoning can be preempted here then FCC and Federal preemption of local zoning on a wide range of other topics is sure to follow. 19 9� PA2015-094(Appeal to Planning Commission) VAJRNLIM., ATt'gWtiEYS AT EA\V Y� 4. Status: The FCC issued Public Notice DA 00-764 on April 10, 2000 requesting public comments on the broadcaster's petition. Comments were submitted by numerous parties on May 10, 2000 and replies on June 8, 2000. The National League of Cities,National Association of Counties and Texas Coalition of Cities for Utility Issues on May 26, 2000 filed a Petition for Environrnental Impact Statement with the FCC due to the environmental impacts if the broadcaster's petition is granted, V. Cases on Section 704,47 USC 332(c)(7) A. Cases Covered: The following is a summary of the principal "for publication" Federal Courts of Appeals cases to date interpreting Section 704, plus some Federal Communications Commission, Federal District Court and state court cases. 1. The Courts of Appeals cases cover: a. Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico (First Circuit). b. New York, Vermont, and Connecticut(Second Circuit). C. Pennsylvania, New Jersey, and Delaware (Third Circuit). d. Virginia, West Virginia, Maryland, North Carolina, and South Carolina (Fourth Circuit). e. Texas,Louisiana and Mississippi (Fifth Circuit). f. Michigan, Ohio, Kentucky, and Tennessee (Sixth Circuit). g. Illinois, Indiana, and Wisconsin(Seventh Circuit). It. North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas (Eighth Circuit). i. California, Hawaii, Alaska, Washington, Oregon, Montana, Nevada, Idaho, Arizona, Guam and Northern Marianas Islands (Ninth Circuit). j. Colorado, Kansas, Wyoming, Oklahoma, New Mexico, and Utah (Tenth Circuit). k. Georgia, Florida, and Alabama(Eleventh Circuit). B. Constitutionality of Section 704: 1: The constitutionality of Section 704 is questionable under the Commerce Clause, First Amendment and Tenth Amendment of the U.S. Constitution. Constitutional concerns 20 92 PA2015-094(Appeal to Planning Commission) V�.R�vvM::: �mm ntroac;evs nr in�v sow regarding Federal intrusion in areas of state and local land use regulation have been upheld by the Supreme Court, discussed in one leading Court of Appeals case on Section 704, and raised extensively in the FCC proceedings described above. 2. Commerce Clause and 10th Amendment Issues a. "The Congress shall have the power: . . . (3) To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;" U.S. Const. Art. I, Section 8. b. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const.Amend. X. C. Recent U.S. Supreme Court cases have interpreted the 10th Amendment--and the Commerce Clause--in favor of states, municipalities and our "dual system of governance" so as to strike down Federal statutes which improperly intrude on state and local rights and authority. See, e.g. Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U. S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001) ("SWANCC") (as discussed below, construing Federal Clean Water Act so as not to preempt state and local authority because statute would likely be unconstitutional if so construed); Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991); New York v. United States, 505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) ("New York") (invalidating Low-Level Radioactive Waste Policy Act); U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (invalidating Federal Gun Free School Zones Act); Printz v. U.S., 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) ("Printz") (invalidating portions of Brady Handgun Violence Prevention Act). d. "[T]he Federal Government may not compel the States to enact or administer a federal regulatory program," New York, 505 U.S. at 188, due to the blurring of lines of political accountability that result-- "[W]here the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished . . . . . [W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation." Id. at 168-169 (citations omitted). e. In the Federalism context, and the proper spheres of local and Federal authority, the courts resist attempts by the Federal government to usurp the general police 21 J°3 PA2015-094(Appeal to Planning Commission) VAR , IidBB n1TgRNfiYS\T LUv bsY4 powers traditionally reserved to the states, and recognize zoning as a matter of particularly local concern, into which the Federal government is generally restricted from intruding. (1) "As Madison. expressed it: '[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere."' Printz, 117 S. Ct. at 2377. f. Congress' authority to adopt Section 704 was based on the Commerce Clause. However, the Supreme Court in SWANCC affirmed that Congress' authority under the Commerce Clause is limited vis-a-vis traditional state and local land use. In SWANCC several municipalities proposed to build a landfill on property which included a wetland. Due to the presence of wetlands the Army Corps of Engineers refused to issue a permit needed tinder the Clean Water Act for landfills that effect the "waters of the United States." The U.S. Supreme Court upheld the municipalities' contention that the Corps was acting beyond the reach of Federal jurisdiction, stating that it feared that any other ruling would extend the Corps' jurisdiction far beyond "navigable waters" (a traditional test of Commerce Clause jurisdiction) to farmyard ponds and other isolated pools of water that were not adjacent to open water. (1) While the Court technically ruled against the government on the basis of rules of statutory construction, it clearly intimated that, were it compelled to do so, it would have significant constitutional concerns about the Corps' efforts to "push the limit of Congressional authority." 531 U.S. at 173. Its concern, said the Court, "is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." Id., citing United States v. Bass, 404 U.S. 336 at 349, 30 L Ed. 2d 488, 92 S. Ct. 515 (1971) ("Unless Congress conveys its purposes clearly, it will not be deemed to significantly change the federal-state balance"). The Court concluded that there was "nothing approaching a clear sign from Congress" that it intended federal power to reach so invasively into the area of land use regulation. To rule in favor of the Corps, said the Court, "would result in a significant impingement of the states' traditional and primary control over land and water use." Id. at 174 (emphasis supplied). (2) The decision is part of a trend to apply a much more restrictive construction to the Commerce Clause and thus restrict the powers of the Federal government. See, e.g. U.S. v. Lopez, supra (Federal Gun Free School Zones Act invalidated as exceeding Federal power under the Commerce Clause); Printz v. U.S., . supra (invalidating portions of Brady Handgun Violence Prevention Act); U.S. v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (portion of Federal Violence Against Women Act providing Federal civil remedy for certain gender-based assaults exceeded Federal authority under Commerce Clause and Fourteenth Amendment). g. The leading case (decided before SWANCC) considering the constitutionality of Section 704 is Petersburg Cellular Partnership v. Board of Supervisors of 22 94 PA2015-094(Appeal to Planning Commission) VaRN�. 1W�d4 AtTORNLYY AT I_4W,� Nottoway County, 205 F.3d 688 (4th Cir. 2000) ("Nottoway County") where each member of a divided court wrote a separate opinion which collectively reversed on other grounds a District Court decision which, among other things, had ruled that Section 704 was Constitutional. One judge of the three judge panel wrote at length why Section 704 was unconstitutional under the 10th Amendment and New York/political accountability line of cases, a second judge at length explained why the District Court was correct that Section 704 was Constitutional under a different reading of New York and other cases, and a third judge found the District Court decision defective on other grounds (and thus unnecessary to reach the Constitutional issue) such that the panel as a whole did not decide the Constitutionality of Section 704. h. A Tenth Amendment challenge to Federal preemption of local regulation regarding radio frequency interference from cellular towers was rejected in Southwestern Bell Wireless v. Johnson.County Board of Commissioners, 199 F.3d 1185, 1193-1194 (10th Cir. 1999) ("Johnson County"). 3. 1 st Amendment Issues a. "Congress shall make no law abridging the freedom of speech or the right of the people to petition the government for a redress of grievances." U.S. Const. Amend I. b. These principally relate to arguments by cellular companies that any mention of RF radiation invalidates local zoning proceedings, such as a citizen mentioning RF radiation in a public hearing, even if it is disregarded by the municipality. C. Such a position, if adopted by the courts, would infringe on citizens' Freedom of Speech rights and right to petition government, particularly given that in many communities, by statute, charter or local practice, there is a public comment period where citizens may speak on agenda and non-agenda items and their comments cannot be restricted. d. See discussion and description of 1st Amendment type issues in Section IV on FCC rulemakings, above. 4. Generalized preemption deadline rejected by Ninth Circuit in San Francisco, below 400 F.3d at 735. 5. See 10th Amendment and other constitutional issues discussion in the Substantial Evidence-Standard of Review and Written Decision/Written Record sections of this paper,below. C. Which Applies to Zoning Decisions, Section 253 or Section 704, and When? 1. Some carriers argue that Section 704 is inapplicable to most zoning decisions, and that Federal Communications Act Section 253, 47 U.S.C. Section 253, should apply instead. The leading case, where the Ninth Circuit initially agreed with the carriers and then reversed itself in an en bane decision, is Sprint Telephony PCS v County of San Diego, 490 F.3d 700 (9th Cir. 2007) 23 95 PA2015-094(Appeal to Planning Commission) YIDIA ATTURNIiY6 AT LiU'YWtl (amended opinion, original opinion at 479 F.3d 1061 superseded) ("San Diego-l"), reversed en banc 543 F.3d 571 (2008), cert. denied, 77 USLW 3708 ("San. Diego en bane"). A description of how this case evolved, the two major rulings by the Court of Appeals, their impact and the refusal of the U.S. Supreme Court to reverse the en bane decision is as follows. 2. Sprint filed suit initially with a facial challenge to San Diego County's entire cellular tower zoning ordinance. The case was notable because the challenge was filed not under Section 704 (47 U.S.C. Section 332(c)) which imposes certain Federal limits on local zoning of cellular towers. Instead, the challenge was filed under 47 U.S.C. Section 253(a). a. Section 253 preempts, subject to certain exceptions, state and local regulations and legal requirements which "may prohibit, or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C. Section 253(a). It has been applied most frequently in the right of way context to franchising and permitting requirements. b. Sprint argued, and in. San. Diego-1 the Ninth Circuit initially agreed, that the County's wireless zoning ordinance was preempted by Section 253(a). That decision was based in significant part upon a prior line Ninth Circuit decisions in the right of way context that Section 253 not only preempts regulations that in fact prohibit the provision of services but also preempt those that "may have" the effect of prohibiting service (City of Auburn v Qwest Corp 263 F.3d 1160, 1175 (9th Cir 2001)). (1) Other Circuit Courts of Appeal generally have not followed Auburn in this regard, or have done so without discussion, and in fact have been critical of Auburn on this point. Level 3 Communications v St. Louis 477 F.3d 528, 532-533 (8th Cir. 2007), cert. denied, 77 USLW 3708 ("Level 3"). (2) In San Diego en bane the Ninth Circuit after careful analysis reversed Auburn as incorrect, and agreed with the majority of Circuits that "Under both [§§ 253(a) and 332(c)(7)(B)(i)(H) of the Communications Act of 1934] a .plaintiff must establish either an outright prohibition or an effective prohibition on the provision of telecommunications services; a plaintiffs showing that a locality could potentially prohibit the provision of telecommunications services is insufficient." San Diego en bane at 579 (emphasis in original). The Court did not expressly reach the issue of whether in fact Section 253 applied here, because it ruled that on a facial challenge to an ordinance, such as was present here where Sprint had not applied for zoning approval, but simply wanted the cell tower zoning section of the zoning ordinance invalidated, the substantive standard was the same under both Sections 253 and 332(c)(7)(B)(i)(II). (3) Based on this ruling the Court en bane then reversed San Diego-1. It had "no difficulty concluding" that the San Diego ordinance was neither an outright ban on nor an effective prohibition of wireless facilities. Id. The Court went on to "focus on the discretion reserved to the zoning board" and stated approvingly that "A certain level of discretion is involved in evaluating any application for a zoning 24 90 PA2015-094(Appeal to Planning Commission) VARIIY4IYIM hTf01l\2F5 AT 1A1VlhYaY permit" and that it is likely "that a zoning board would exercise its discretion only to balance the competing goals of an ordinance-the provision of wireless services and other valid public goals such as safety and aesthetics." Id. (4) Sprint asked the U.S. Supreme Court to reverse the Ninth Circuit's en banc decision. 77 USLW 3366 (Dec 10, 2008). Each year the Supreme Court is asked to reverse thousands of decisions, but only accepts and rules on roughly one hundred cases. In this case, the Court asked the Solicitor General of the United States for her views on whether this was a case of sufficient importance for it to be one of the one hundred. In May, the Solicitor General said that it was not. (5) In her May brief, in which she was joined by the General Counsel of the FCC, then U.S. Solicitor General Elena.Kagan said, among other things, that: (a) The Ninth Circuit en banc decision, and the Level 3 (non-cell tower case) from the Eighth Circuit, were correctly decided: A plaintiff must show "practical effects" of the requirement at issue, not just that it "may" or "could" in the fixture be applied so as to prohibit service. In other words, municipalities are correct on how Section 253 is to be interpreted in this respect. (b) It was an "unresolved threshold question" of whether Section 253 applies to cell tower zoning and similar issues, but noted that the FCC was now considering this issue in connection with the CTIA "Shot Clock" Petition for Declaratory Rulemaking discussed in Section U below. (c) The FCC can resolve future differences regarding the interpretation of Section 253(a) under Section 253(d) and National Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U. S. 967, 982-983 (2005) (holding that an agency's reasonable interpretation of an ambiguous statute is authoritative and binding on the courts of appeals, even those that have previously interpreted the statute differently). This statement appears intended to put the FCC potentially into a prime role in future interpretations of Section 253. C. Some of the background and history of the San Diego case is as follows: This may be useful, because providers continue to argue, albeit with diminished force after San Diego en banc and Level 3 cases, that Section 253 applies to and preempts some local zoning ordinances. See, e.g., USCOC of Greater Missouri v. Village of Marlborough, _F. Supp. 2d , 2009 WL 1176282 (E.D. Missouri 2009) (rejecting Section 253 challenges to zoning ordinance based on Level 3 and San Diego en banc); New York SMSA Limited Partnership v. Town of Clarkston, 603 F. Supp. 2d 715 (SDNY 2009), affirmed New York SMSA v. Town of Clarkston, 612 F. 3d 97 (Second Circuit, 2010) ("Town of Clarkston-2") (based upon San Diego en banc rejecting Section 253 and 332(c)(7)(13)(i)(II) facial challenges to zoning ordinance, and distinguishing prior Second Circuit case more in line 25 PA2015-094(Appeal to Planning Commission) VARNUM,,, nTrUNNrvx with San Diego-1, but ultimately invalidating ordinance on other grounds and remanding same to Town for redrafting). d. In its initial decision in San Diego-1 the Ninth Circuit had attempted to give effect to both Section 253(a) and Section 704 by indicating that Section 253 allowed facial challenges to "regulations" (ordinances) while Section 704 governs challenges to individual siting "decisions". San Diego-1 at 9-10 (page references are to slip opinion). It recognized that the use of Section 704 "to preempt an entire wireless facilities zoning ordinance is a new and different application" of that Section. Id. It justified its conclusion by the "high burden" for facial challenges (no set of circumstances exist under which the challenged item would be valid), stated that it is particularly difficult to challenge a zoning ordinance (because on their face they may not suggest discrimination between providers or prohibition of service) and said that "in most cases, only when a locality applies the regulation to a particular permit application...can a court determine whether [the Federal Communications Act] has been violated." Id at 10. However, the Court then went on to preempt the county's wireless zoning ordinance. e. The particular aspects of the County's zoning ordinance which caused the Court to initially rule in San Diego-1 that it "presents barriers to wireless telecommunications: and is preempted" were the following(in combination): (1) Adding additional requirements for wireless submittals for zoning approval "in addition to an already voluminous list" for ordinary zoning submittals. Id at 14. The Court apparently is referring to requirements related to a visual impact analysis, descriptions of potential alternative placements, landscaping plan, statement about the applicant's willingness to co-locate, etc. See slip opinion at 5. (2) Discretion on the part of zoning authorities in making decisions. (3) Criminal penalties for violation of the zoning ordinance. (4) Allowing the County to decide whether a tower is "'camouflaged', 'consistent with community character' and designed to have minimum 'visual impact'." Id at 14. (5) Subsequent cases referring issues for decision back and forth between the California Supreme Court and the Ninth Circuit provide additional information on the rationale for the Ninth Circuit's initial decision. f. The Ninth Circuit in its initial decision in San Diego-1 appeared to be influenced by (1) prior cases which "recognized the 'preemptive language [of Section 253(a)] to be clear and 'virtually absolute' in restricting municipalities to a 'very limited and proscribed role in the regulation of telecommunications'." Id at 11, citations omitted; (2) the language of Section 253(a) which does not expressly exempt Section 704; and in particular (3) its Auburn line of cases finding typical municipal application requirements to be impermissibly onerous in that they "might" prohibit telecommunications service. 26 9g PA2015-094(Appeal to Planning Commission) VARI�TLJlv1µ &RI ASC<)RM;1'S AT LqN g. District Courts in the Ninth Circuit subsequently applied San Diego-1 to invalidate the application of zoning ordinances to cell towers. For example, in T-Mobile USA, Inc v. City of Anacortes (W.D. Wash, 2008) (Case No. C07-1644RAJ) the Court summarized and applied San Diego-I and related cases as follows (all citations omitted): (1) "Section 253(a)'s preemptive language is 'virtually absolute' in restricting municipalities to a 'very limited and proscribed role in the regulation of telecommunications'." Slip Opinion at 5. (2) "[C]ourts have held that a combination of certain conditions imposed by local. ordinances amounts to a prohibition for purposes of Section 253(a) . . . (1) an onerous permit application process, (2) a franchise requirement, (3) [criminal) penalties for failure to comply with ordinance requirements, (4) subjective aesthetic design requirements, and (5) regulations granting unfettered discretion to the zoning authority to deny permits". Id. (3) "The county [wireless zoning] ordinance challenged in [San Diego-1] contains similar provisions to the [City wireless zoning] provisions challenged in this case. Both add voluminous submission requirements to a multi-layer permitting process, both contain criminal penalties for non-compliance, and both include subjective aesthetic and design requirements that vest significant discretion in the decision-making body." Id at 7. (4) And to a similar effect see Newpath Networks LLC v. City of Irvine, (C.D. Cal. 2008) 2008 WL 2199689, and subsequent decision at 2008 WL 2199687 (enjoining enforcement of zoning ordinance against telecommunications applicants in Irvine). D. Local Zoning Authority is Generally Preserved by Section 704 a. Numerous cases recite that in general, Section 704 preserves local zoning authority, with most of its requirements (substantial evidence, short time period to appeal zoning decisions) being taken directly from local zoning law, with the additions being mainly the addition of some procedural requirements and a ban on considering RF radiation. For a recent example, see Porter County Board of Zoning Appeals v SBA Towers II, 927 N.E. 2d 915, 921 (Indiana Ct App 2010) ("Porter County"). b. See, among others, National Tower v. Plainville Zoning Board of Appeals 297 F3d 14, 19 (1st Cir 2002) ("The [act] attempts, subject to five limitations, to preserve state and local authority over the placement and construction of [wireless] facilities.") and the lengthy discussion and extensive citations in Kay v. City of Ranchos Palos Verdes 504 F. 3d 803 (9th Cir. 2007). E. Personal Wireless Facilities and Services-What Towers and Antennas Are Covered? 27 9� PA2015-094(Appeal to Planning Commission) "JARRUM_,,, WiBW ATTUNhtiPS ATLh\Y 1. Section 704 does not apply to a tower built primarily for HDTV purposes even if a cellular antenna would then be placed on the tower. See discussion and holding in American Towers v. Williams, 146 F. Supp. 2d 27 at 34-36. 2. Three courts and the FCC have held that Section 704 does not apply to a tower or antenna used to provide "wireless broadband Internet service", because this is not a "personal wireless service" covered by Section 704. "In 2007, the Federal Communications Commission issued a Declaratory Ruling in which it found that mobile wireless broadband Internet access is not a "commercial mobile service" under [Section 704]. Under such ruling, [Section 7041 simply does not apply to broadband information service. Such understanding has been found by the Tenth Circuit, WWC World Holding Co., Inc. v. Sopkin, 488 F.3d 1262, 1274 (10th Cir. 2007) ("The FCC found that VoIP services are internet services, and that Congress specifically intended internet services to be treated differently than either mobile communications or traditional wireline services"), and the Court finds no authority to the contrary." Arcadia Towers v. Colerain Twp Board of Zoning Appeals, 2011 WL 2490047 (S.D.Ohio 2011). And see Clear Wireless v. Village of Lynbrook, 2012 WL 826749 (E.D.N.Y. 2012) for a lengthy and detailed discussion of this issue, where the court reaches the same conclusion as in Arcadia Towers. The 2007 FCC order cited in the preceding quote is In re Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, 22 F.C.C:R. 59001(FCC) 2007 WL 1288052, at¶1. Such rulings would appear to have particular applicability to companies such as Cleanwi e, which provide broadband Internet or "WiMAX" service. As alluded to in the preceding quote, although they provide local telephone service (using "Voice Over Internet Protocol' or VOIP technology) for a home or office, they do not provide (in English) the 'bell phone" service covered by Section 704. Depending on how they are worded, state statutes or local zoning ordinances may be worded broadly enough to cover both types of technologies -- personal wireless/cell phone and WiMAX/broadband internet -- such as if they focus only on the physical aspects of towers or other structures, but the "shot clocks" and other requirements of Section 704 would not apply to WiMAX/broadband internet providers. 3. Section 704 imposes different requirements for personal wireless "facilities," "services" and "providers." These three terms are defined in Section 704(a)(7)(C). Municipalities should be attentive to these distinctions, for example: a. Section 704(a)(B)(i)(I) prohibits discrimination between "providers of functionally equivalent services." b. It also bans prohibitions/effectively prohibiting the "provision of personal wireless services." Id, (B)(i)(II). 28 100 PA2015-094(Appeal to Planning Commission) A7ARNUM. IB06Y AITI)R\[l'�A'1'L:1W C. The duty to act in a reasonable time relates to personal wireless "facilities." Id, (B)(ii). 4. In many instances, cellular providers do not own the towers on which their antennas are placed. The towers are owned by cell tower leasing companies who may or may not be covered by the provisions of Section 704 quoted above. 5. Note that personal wireless services are defined as including "unlicensed wireless service", which may include Wi-Fi and similar services. Id, (C) (iii). 6. Actual cell phones are not covered by Section 704. Murray v. Motorola, Inc,_F. 3d (A.C. Cir, 2009) (slip opinion at 14) ("Murray v. Motorola"). F. What Actions by Municipalities are Covered? 1. Section 704 applies in general to the "regulation of the placement, construction, and modification of personal wireless service facilities" by any State or local government or instrumentality. See, for example, Section 704(a)(B)(i). 2. In general Section 704 is a "ratchet' provision - - it only applies to denials of applications for personal wireless facilities, not to cases where a facility is approved. Industrial Communications and Electronics v. Town of Alton, 646 F.3d 76, 79 (1st Cir, 2011) (suit by adjacent landowners challenging municipal approval of cell tower) ("Town of Alton"), Highland Homes Association v. Board of Adjustment, 306 S.W. 3d 561, 569 (Mo Ct App,2010); 3. Cell phone companies have contended in FCC proceedings that this language extends not just to the obvious category of zoning decisions,but to such local "regulation" as building codes, permits and environmental restrictions. See the discussion below on the "FCC Backup Power Ruling". G. Who Can Sue? 1. Landowner who sold option to build a cell tower to a cellular company can sue based on denial of zoning approval, even when the cellular company withdrew. U.S. Cellular v. City of Seminole, 180 Fed. Appx. 791, 797 (10th Cir.,2006) (not for publication). 2. In Town of Alton, supra, a case where retired U.S. Supreme Court Justice Souter was part of the panel, the First Circuit held two main points: First, that a neighboring landowner lacks standing to sue under Section 704 when a municipality granted zoning approval for a tower. That is because Section 704 only provides for suits for "denials of requests to construct wireless facilities", Id. (emphasis in original, citations omitted). Second, the neighbors can sue to prevent the entry of a consent judgment under Section 704 between the municipality and provider (which allows construction of a cell tower) by requiring that a "a violation of the Act'be proven so as to justify the consent judgment. Id, 79-80. 29 101 I PA2015-094(Appeal to Planning Commission) jAI�NUM , ATTURrvtil"5 TT L.iIV/i1y 3. Tower company which constructs and operates wireless facilities but is not a cellular provider may sue. Liberty Towers v. Township of Lower Makefield, `F. Supp. 2d_, 2010 WL 3769102 (E.D. Pa, 20 10) ("Township of Lower Makefield") (slip opinion at 4). H. Duty to Act in a Timely Manner: 1. Section 704 imposes a duty to act in a timely manner: "A State or local goverment or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." Section 704(7)(B)(ii). 2. One of the few cases applying this section is Tennessee ex rel. Wireless Income Properties v. City of Chattanooga, 403 F. 3d 392 (6th Cir. 2005) ("Chattanooga"). Wireless applied for permits for several cellular towers in Chattanooga following which the City imposed a moratorium on such permits and then amended its zoning ordinance. After the moratorium and amendments, Wireless' applications did not comply with the newly amended ordinances. City officials advised Wireless of the changes so that it could amend its applications to comply with the new ordinance, but did nothing to approve or deny the applications. Wireless never made the necessary corrections and filed suit under Section 704. The Sixth Circuit ruled that the City bad informally denied the applications in violation of the Federal law requirement that any such decision be "in writing" and "supported by substantial evidence." The Sixth Circuit also ruled that the appropriate remedy was injunctive relief requiring the City to grant the cellular tower zoning permits as applied for. 3. But see Ho-Ho-Kus, 197 F. 3d at 76, discussed infra, ruling that two and one half years to reach a decision was not unreasonable. I. Moratoria: 1. Municipalities sometimes enact moratoria on new approvals for cellular towers until they can modify their zoning or other ordinances so as to deal with the increased number of towers. Conventional cellular and PCS companies strongly oppose such moratoria. 2. The leading case upholding moratoria is Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996) ("Medina") which upheld a six-month moratorium that was passed five days after the 1996 Act's effective date and only prohibited the local commission from issuing permits. 3. Some other courts have found that moratoria violate Section 704. See, e.g.-- Lucas v. Planning Board of the Town of LaGrange, 7 F. Supp. 2d 310 (S.D.N.Y. 1998); Sprint Spectrum, L.P. v. Jefferson County, 968 F. Supp. 1457 (N.D. Ala. 1997) ("Jefferson Comity"); Sprint Spectrum, L.P. v. Town of Farmington, 1997 U.S. Dist. LEXIS 15832, Civ.No. 3:97-863, 1997 WL 631104 (D. Conn. 1997); Sprint Spectrum, L.P. v. Town of West Seneca, 659 N.Y.S.2d 687 (N.Y. Sup. Ct. 1997) ("West Seneca"); 30 102 PA2015-094(Appeal to Planning Commission) VAM DU -, R®OAt aTT61LblVS A'P 4fiV®p 4. The Fourth Circuit has vacated challenges to moratoria on moomess grounds with orders to the District Court to dismiss the case where the moratoria expired during the tens of the litigation (and a zoning ordinance governing cellular towers was adopted). Cellco Partnership d/b/a/Bell Atlantic Mobile v. Russell, 187 F. 3d 628 (4th Cir. 1999) (disposition only), unpublished opinion appears at 1999 U.S. App. LEXIS 17977, 1999 WL 556444 ("Bell Atlantic Mobile"). The court held that the moratoria had to be in effect throughout the litigation and that Bell Atlantic Mobile had no reasonable expectation that the moratoria would be reinstated. See further discussion of this case under Effectively Prohibit Service,below. 5. Courts that have found moratoria problematic tend do so because moratoria controvert the provisions of Section 704 that require the municipal authority to (a) respond to requests for permission to place facilities within a reasonable amount of time, (b) deny such requests only in a written decision supported by substantial evidence contained in a written record, and (c) not enact regulations that have the effect of prohibiting the provision of wireless services. See, e.g., Jefferson County, 968 F. Supp. at 1467; West Seneca, 659 N.Y.S.2d at 688. J. Substantial Evidence-Standard of Review 1. In accordance with federal precedent concerning judicial review of state agency decisions and Section 704, the appropriate standard of review of a municipality's decision on conventional cellular or PCS zoning matters is whether "substantial evidence in the written record supports the authority's determination." AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Board of Adjustment, 172 F.3d 307, 313-314 (4th Cir. 1999) ("Winston-Salem"); AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 430 (4th Cir. 1998) ("Virginia Beach") A court cannot review such a decision de novo, and is not free to substitute its judgment for the municipal authority's judgment. Id.; Omnipoint Communications v. Easttown Township, 248 F. 3d 101, 106 (3d Cir. 2001) ("Easttown Township") Rather, a court must uphold the municipal authority's decision if there is substantial evidence to support it in the record as a whole, even if the court would have made a different decision. Id.; USCOC of Greater Iowa v. Zoning Board of Adjustment of City of Des Moines), 465 F.3d 817, 821-822 (8th Cir. 2006) ("Des Moines"). 2. Standard U.S. Supreme Court definition of substantial evidence applies-less than a preponderance of the evidence but more than a mere scintilla, Cellular Telephone Company v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) ("Oyster Bay"); Sprint Spectrum v. Willoth, 176 F.3d 630 (2d Cir. 1999) ("Willoth"); Virginia Beach, 155 F.3d at 430; Aegerter v. City of Delafield, 174 F.3d 886 (7th Cir. 1999) ("Aegerter"); Omnipoint v. Pine Grove Township, 181 F.3d 403, 408, n.5 (3d Cir. 1999) ("Pine Grove Township"); Telespectrum v. Public Service Commission of Kentucky, 227 F.3d 414, 423 (6th Cir. 2000) ("Telespectrum"); Easttown Township, 248 F.3d at 106; Des Moines, 465 F.3d at 821-822; Metro PCS v. San Francisco, 400 F.3d 715, 723 (9th Cir., 2005) ("San Francisco"); Huntsville (below) 296 F.3d 1218; United States Cellular v. Broken Arrow, 340 F.3d 1122; 1133 (10th Cir. 2003); T-Mobile Central v. West Bloomfield, 691 F. 3d 794 (6th Cir. 2012). 3. "Substantial evidence" also means "such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion." Virginia Beach, (quoting Universal Camera v. NLRB, 340 U.S. 474, 488 (1951)); Cellular Telephone Company v. Zoning Board of 31 103 PA2015-094(Appeal to Planning Commission) jA.RNUM 191 A'ITORN6Y5 AT I.AN Adjustment of Borough of Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir. 1999) ("Ho-FIo-Kus"); APT Pittsburgh v. Penn Township, 196 F.3d 469, 472 (3d Cir. 1999) ("Penn Township"); Telespectrum, supra; Easttown Township, 248 F. 3d at 106. 4. Virginia Beach is notable because a. It held that "substantial evidence" under Section 704 should be interpreted as what would be considered important by a reasonable legislative body, not as to what would be important to a bureaucrat. Virginia Beach, 155 F.3d at 430. (1) Virginia Beach makes sense because as explained further by the Fourth Circuit in Nottoway County and 360° Communications Company of Charlottesville v. Board of Supervisors of Albemarle County, 211 F.3d 79 (4th Cir. 2000) ("Albemarle County")under Virginia law such zoning decisions are legislative decisions and are reviewed as such by the Virginia state courts, with (apparently) a different standard of review than applies to judicial or quasi-judicial decisions. Applying the substantial evidence test as to what would be considered important by a legislative body thus makes sense, and avoids the Constitutional/10th Amendment issues which would arise if Section 704 were interpreted to effectively change Virginia zoning decisions from legislative to being judicial or quasi-judicial in nature. There is no evidence that Congress in Section 704 intended such a change. (2) Contra, see Pine Grove Township, 181 F.3d at 409 ("we apply the substantial evidence standard as we would to the decision of a federal administrative body"); Aegerter, 174 F.3d at 890. (3) As in Virginia Beach and Albemarle County, some municipal zoning decisions are legislative decisions under state law. Municipalities contend that under the 10th Amendment/Federalism principles discussed above, and U.S. Constitution Article IV, Section 4 (guarantee of Republican form of government) a court constitutionally cannot impose what is essentially an administrative standard of review on a state's legislative decisions. b. Accordingly, the Fourth Circuit held that it is "proper" and "expected" that the views of constituents should be considered by municipalities as "particularly compelling forms of evidence" in zoning and other legislative matters. "[Constituents'] views, if widely shared, will often trump those of bureaucrats or experts in the minds of reasonable legislators." Virginia Beach, 155 F.3d at 430. C. The court relied on "the repeated and widespread opposition of a majority of citizens" to uphold the city's rejection of the cellular tower zoning requests, even though the cellular companies' evidence "may even amount to a preponderance of evidence in favor of the application." Id. at 431. d. The court expressly rejected the cellular companies' claims that the "predictable barrage" by them of"exhibits, experts and evaluations . . . mandates that local 32 104 PA2015-094(Appeal to Planning Commission) VA u . �ATt1111ti1?VS AT I_44V YWiq governments approve [cellular tower] applications [and] effectively demand that we interpret the Act so as always to thwart average, nonexpert citizens; that is, to thwart democracy." Id. at 431.. Accord, Broken Arrow, 340 F.3d at 1138. e. But see Nottoway County, 205 F.3d at 692-696 and 709-710 for a discussion pro and con of the limits of Virginia Beach on such issues as substantial evidence viewed by a legislative body(widespread, objectively reasonable concerns vs "communit[y] opposition compelling in the mind of the reasonable legislator)" and involving "predictions, value preferences, and policy judgments" of legislators. And but see the later Fourth Circuit decision of T-Mobile Northeast v. City Council of Newport News, _F.3d_, 2012 'WL 990555 (Fourth Circuit, 2012) holding that "meager opposition did not amount to substantial evidence" (slip opinion at 5). 5. Burden of proof is on provider to show that municipality's decision was not supported by substantial evidence. Des Moines, 465 F.3d at 821; United States Cellular v. City of Wichita Falls, 364 F.3d 250, 256 (5th Cir. 2004); Voicestream Minneapolis v. St. Croix County, 342 F.3d 818, 830 (7th Cir. 2004) ("St. Croix County"); American Tower v. City of Huntsville 295 F.3d 1203, 1207 (1 lth Cir. 2002). Unclear whether municipality bears burden of proof to show that its decision was supported by substantial evidence, but not necessary to decide issue, said court in Oyster Bay, 166 F. 3d at 496-7. 6. Substantial evidence standard does not apply to gaps in service, issue of effectively prohibiting service. Ho-Ho-Kus, 197 F.3d at 71, 76. 7. Substantial evidence standard only applies to adjudicative facts-the substantial evidence standard "is intended to provide procedural protections with respect to the determination of factual issues made by a state or local authority in the course of applying state and local zoning law . . ." It does not apply to other issues which reviewing courts must resolve, such as state constitutional challenges to zoning decisions. Such an issue "is a legal issue that is not subject to deferential judicial review. While such decisions may involve some consideration of legislative facts, the evidence to be considered is not limited to the facts of the particular applicant's case and is not necessarily limited to the record compiled by the local authority." Easttown Township, 248 F.3d at 106 (quoting Penn Township, citations omitted) and passim, (reversing lower court application of substantial evidence standard to state constitutional issue, and extensively discussing the preceding principles). 8. "Substantial evidence" standard does not apply where an application has not been denied - - see New Cingular Wireless PCS v. Town of Stoddard (D. N.H., 2012), 2012 WL 523686 at 7 and the appellate and district court cases cited therein. . K. Substantial Evidence-Substantive Standard 1. The "substantial evidence" standard of Section 704 does not create a new substantive standard for local zoning decisions. Instead 11[t]he substantial evidence requirement element in the statute . . . means substantial evidence to support the decision of the State or local government authority under local law." Nottoway County, 205 F.3d at 707. It was "Congress's intent [in 33 105 PA2015-094(Appeal to Planning Commission) VARNj.7lVI , ATCtlfINGY5 A'f tA�4 Section 704] that local and state land use and zoning decisions be tested under local standards." Id. at 707 (emphasis in original). See extended discussion of this issue in Nottoway, County. "We cannot agree with [the cellular company's] assertion that "Federal law has largely displaced traditional local zoning law where cellular towers are concerned." Des Moines 465 F.3d at 822. 2. As discussed in Nottoway County, the other Courts of Appeals who have considered the issue are in agreement-see Aegerter, 174 F.3d at 891-892; Town of Amherst v. Omnipoint Communications 173 F.3d 9, 13-14, 16 (1st Cir. 1999) ("Amherst"); Pine Grove Township, 181 F.3d at 403, 408; Penn Township, 196 F. 3d at 475; Easttown Township 248 F. 3d at 106. 3. The test is used to determine whether there is substantial evidence to support the requirements of state and local law: "[T]his Court must look to the requirements set forth in the local zoning code to determine the substantive criteria to be applied in determining whether substantial evidence existed to support the Board's decision." T-Mobile Central, LLC v Unified Government of Wyandotte County, 546 F. 3d 1299, 1307 (10th Cir. 2008) ("Wyandotte"). In Wyandotte the Court rejected the denial of zoning approval as not based on "substantial evidence" largely because the criteria enunciated as the reason for denial were different from those set forth in the relevant zoning code. The Court concluded that there was no "substantial evidence" for the permissible criteria so as to support the denial. The Court cited the following as authority for this point: "In order [to] be supported by substantial evidence, the proffered reasons must comport with the objective criteria in existence (i.e. zoning regulations, permit application policies, etc.). Governing bodies cannot simply arbitrarily invent new criteria in order to reject an application." Virginia Metronet, Inc. v. Bd. of Supervisors of James City County., Va., 984 F. Supp. 966, 974 n. 14 (E.D. Va. 1998); New Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir. 2002) ("Saginaw"); (concluding that the zoning board's decision was not supported by substantial evidence because, among other reasons, the applicant's failure to show lack of alternatives did not "go to any of the criteria set out in the Zoning Code"); Amherst, 173 F.3d 9, 14 (stating that the substantial evidence standard "surely refers to the need for substantial evidence under the criteria laid down by the zoning law itself') (emphasis omitted); AT & T Wireless Servs. of Cal., LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1163-64 (S.D.Cal. 2003); Although Section 704 "does not divest local officials of any authority they may have to consider the quality of existing services, neither does it create such authority. Efforts to assess existing quality ... must be authorized by and performed within the parameters of governing state and local law." Ho-Ho-Kus, 197 F.3d at 70. 4. The preceding restriction does not appear to apply to at least one of the substantive criteria of Section 704 itself. As the New Hampshire Supreme Court observed, "The [Town] was correct to characterize [Section 704] as an 'umbrella' under which a [Town] must evaluate an application to construct a telecommunications tower, as [Section 704] will preempt local law under certain circumstances. See 47 U.S.C. § 332(c)(7). As the First Circuit Court of Appeals has noted, although [Section 704] does not explicitly authorize a zoning board to consider whether a decision amounts to an effective prohibition of the provision of wireless service, '[s]ince board actions will be invalidated by a federal court if they violate the effective prohibition provision, many boards wisely do consider the point.' Second Generation Props. v. Town of Pelham, 313 F.3d 620, 630 (1st Cir. 2002)." Daniels v. Town of Londonderry, 953 A. 2d 406, 410-411 (N. H. Supreme Court, 2008). 34 10� PA2015-094(Appeal to Planning Commission) VARNv « Nt.'4YF ATLA\Y @�1 L. Some of the Factors That May Be Considered 1. Factor must be a permissible ground for denial under state law. Sprint PCS v. City of La Canada Flintridge 448 F.3d 1067 (9th Cir. 2006) rejecting denial based on aesthetics as not an appropriate ground under California law for facilities in streets) ("La Canada Flintridge"). New York SMSA Ltd. Partnership v. Village of Floral Park, 2011 WL 4375668 (E.D.N.Y 2011) overturning a local denial of a zoning variance because the provider was a public utility under New York law, public utilities have a much more relaxed standard for obtaining a variance than would otherwise apply, and based on this lower standard, there was not substantial evidence in the record to support the denial. 2. Aesthetics a. Expressly allowed in Aegerter, 174 F.3d at 890, Amherst, 173 F.3d at 15, Pine Grove Township, 181 F.3d at 408, Winston-Salem, 172 F.3d at 315; Ho-Ho-Kus, 97 F.3d at 73, and Albemarle County, 211 F.3d at 84. See discussion in Willoth, 176 F.3d at 645-6. Discussed at length in Oyster Bay, 166 F. 3d at 495-6. Discussed in San Francisco, 400 F.3d at 727. Discussed at length in Wyandotte, 546 F. 3d 1299, 1312. b. Aesthetics were discussed at length and upheld as the sole basis for denying zoning approval in Southwestern Bell Mobile Systems v. Todd, 244 F. 3d 51 at 60-62 (1st Cir. 2001) ("Southwestern Bell Mobile"). The Court also rejected provider arguments that aesthetics alone cannot justify denial without a "quantifiable examination of the issue demonstrating, for example, the economic impact associated with the tower's appearance." Instead the court ruled that the city "was entitled to make an aesthetic judgment about whether that [visual] impact was minimal without . . . reference to an economic or other quantifiable impact." Id at 61. The Court also rejected the provider's argument that to support a denial on visual impact grounds the burden was on the municipality to show substantial "evidence of alternative sites that would have a lesser visual impact," Id at 63. See also Des Moines 465 F3d. at 824-825. See related discussion under the Effectively Prohibit Service section of this paper,below. C. Aesthetics are discussed at length in Helcher v. Dearborn County, 595 F. 3d 710, 724 ff(Seventh Cir., 2010) ("Helcher v. Dearborn County") and upheld as a basis for denying approval of a cellular tower. The case is notable for its description of the types of evidence (photo simulations) produced by neighbors and which formed the basis for the County's decisions and the court's sustaining it. Of comparable interest is Wireless Towers v. City of Jacksonville, 712 F. Supp 1294, 1302-1306 ((M.D. Fla, 2010) where the court similarly discusses the types of evidence needed, and supported a denial based on aesthetics, distinguishing it from an earlier aesthetics case before the same court and involving the same city,where in the earlier case the city's decision was overturned. d. Favorable discussion of aesthetics in Easttown Township, 248 F. 3d 101, passim, and approved as grounds for decision by Eighth Circuit, among others, in Sprint Spectrum v. Platte County, _F. 3d_(8th Cir. 2009). 35 20� PA2015-094(Appeal to Planning Commission) jAR.NUM.J e. "A few generalized expressions of concern with 'aesthetics' cannot serve as substantial evidence" to support a denial. Oyster Bay, 166 F.3d at 496; Pine Grove Township, 1.81 F.3d at 408. Accord, Huntsville, 296 F.3d at 1219-20. f. Committee Report accompanying Section 704 expressly states that aesthetics may be considered. Conference Committee Report at 208. g. The Ninth Circuit initially held that under California law, aesthetics may not be considered for cell towers located in public rights of way. La Canada Flintridge, supra, and related decision at 250 P.U.R. 4th, 207, 182 Fed. Appx. 688, 2006 WL 145 7785 (9th Cir. 2006). But in Sprint PCS Assets v. City of Palos Verdes Estates, _ F3d_ (9th Cir. 2009) ("Sprint v. Palos Verdes") it held to the contrary, that under the California Constitution, a mrmicipality may consider aesthetics in considering whether to approve cellular antennas located in the public rights of way, and upheld Palos Verdes' denials of two antennas on that basis, but that such denials could not "operate as a prohibition of wireless service in violation of Section 704. h. For examples of decisions allowing aesthetics as a basis for denial of cell tower zoning, and examples of the types of (often detailed) facts and findings helpful to support such decisions, see T-Mobile West v. San Francisco, 2011 WL 570160 (N. D. Cal. 2011); NextG Networks of California v. Newport Beach, 2011 WL 717388 (C. D. Cal, 2011); New Cingular Wireless PCS v. Pima County, 2011 WL 42683 (D. AZ 2011). i. The "balloon tests" and photosimulations commonly used to evaluate aesthetic impacts are discussed at length in New Cingular Wireless v. Town of Fenton, 2012 WL 13539 (N.D.N.Y. 2012). j. The Sixth Circuit at some length characterized "general complaints" about aesthetics as "effectively amount[ing] to NIMBY—not in my backyard" such that if"these generalized objections sufficed, any wireless facility could be rejected". T-Mobile Central v. West Bloomfield, 691 F. 3d 794, 799-802 (6th Cir. 2012) (upholding lower courts reversal of denial of zoning request). k. Compare Green Mountain Realty v. Leonard, 688 F. 3d 40, 53-56 (1st Cir. 2012) for an extensive discussion of the types of aesthetic evidence which sufficed to support a denial on aesthetic grounds (crane tests, photographic evidence from respected wilderness group). 3. Property Values a. Considered at length and expressly allowed in Ho-Ho-Kus, 97 F.3d at 72-73. Allowed as a factor in Aegerter, 174 F.3d at 890; in Pine Grove Township, 181 F.3d at 408; Des Moines 465 F.3d at 823. b. "Difficult questions" of expert versus lay testimony described but not decided in Oyster Bay, 166 F. 3d at 496. 36 1O2 PA2015-094(Appeal to Planning Commission) VM114iEY5 A2'I.A1V RVQ C. "[A] few generalized concerns about a potential decrease in property values, especially in light of[the plaintiff]'s contradictory expert testimony, does.not seem adequate to [meet the substantial evidence test]." Oyster Bay, 166 F.3d at 496; Pine Grove Township, 181 F.3d at 409. d. One lay witness's testimony on adverse impact on property values insufficient. Telespectrum, 227 F.3d at 424. e. A good example of the kind of property value testimony courts will uphold reliance on is quoted at length in Vertex Development v. Manatee County, _ F. Supp. 2d 2011 WL 130929 (M.D. Fla, 2011), slip opinion at 16-20. 4. Quality of Service a. Ho-Ho-Kus analyzed and squarely held that a municipality may consider the quality of the provider's existing service in determining whether to grant zoning approval. Arguments that this was preempted and wholly within the jurisdiction of the FCC were rejected. Ho-Ho-Kus, 197 F.3d at 66-67. 5. Citizen vs. Expert Testimony a. Citizen testimony may be considered-see discussion strongly supporting citizen testimony in Virginia Beach, 155 F.3d at 430-431; Pine Grove Township, 181 F.3d at 409 (citizen testimony inadequate on facts of case). b. Citizen tape recordings too insubstantial. Ho-Ho-Kus, 197 F.3d at 73. C. See Nottoway County and the conflicting opinions therein discussing, distinguishing or applying Virginia Beach and Winston-Salem on such issues as the amount of citizen opposition necessary to support a denial (such as absolute numbers or instead proportional to the population of the municipality) and interpreting the Act so as "not to thwart average, nonexpert citizens." Nottoway County, 205 F.3d at 710 (quoting Virginia Beach, 155 F.3d at 431). And see discussion in Montgomery County, below, 343 F.3d at 272. 6. Number and Height of Towers a. Recognized as expressly reserved for municipalities in Amherst, 173 F.3d at 14-15. The choice between fewer higher towers and more short ones "is . . . the Town's prerogative." New Cingular Wireless v. Town of Candia, 2011 WL 1480410, slip opinion at p. 4 (D.N.H. 2011). b. Favorable, detailed discussion of height restrictions in Easttown Township, 248 F. 3d at 107-108. 37 1OJ° PA2015-094(Appeal to Planning Commission) VAI�N�JM,: itl®i0 XG(UIINL?T AT LAW C. Comparing to other, recently approved towers inappropriate. USCOC of Virginia v. Montgomery County, 343 F.3d 262, 270 (4th Cir. 2003). 7. Towers in/near Historic Districts, Sites a. Commented on favorably by Court in Amherst, 173 F.3d at 16. b. Approved as a legitimate factor in Winston-Salem, 172 F.3d at 315-316. C. Impact on historic district a significant factor in affirming zoning denial in Southeast Towers v. Pickens County, 2008 WL 2064649 (N.D. Ga. 2009), even though applicant had received approval under National Historic Preservation Act. 8. Safety-Related a. Includes risks of tower collapse, risks to aviation,public climbing tower. b. Allowed in principle as a factor in one opinion in Nottoway County, 205 F.3d at 695-696, but evidence in case did not support the factor. Another opinion in the case at 709-710 found the safety-related evidence sufficient to deny zoning approval. C. Failure to meet setback/fall zone requirements (tower must be at least as far from other property lines as its height) allowed as basis for zoning denial in Albemarle County, 211 F.3d at 85. d. Committee Report accompanying Section 704 expressly states that safety may be considered. Conference Committee Report at 208. e. Falling ice from tower. Des Moines, 465 F.3d at 823. 9. Environmentally Related a. Environmental factors such as constructing a tower on a natural ridgeline (thus affecting the visual character of an area), access roads being on steep, critical slopes, inconsistency with community environmental preservation goals, increased problems with soil erosion and water runoff in mountainous areas and the like were allowed as factors sufficient to support a zoning denial in Albemarle County, 211 F.3d at 85. b. Ban in Section 704 on local regulation based on environmental effects only applies to radio frequency emissions, such that District of Columbia's concerns about falling ice and resulting safety risk was outside the ban. American Towers v. Williams, 46 F. Supp. 2d 27 at 36. 10. Impact of Commercial Operation on Residential Neighborhood 38 110 PA2015-094(Appeal to Planning Commission) �tlL �,7.A�.RI'�LTM, AlTQNNtiYS AT LAZY a. Maintaining the residential character of a neighborhood is an appropriate consideration, and municipalities may deny zoning approval based on the impact of a commercial operation on a residential neighborhood, or impose conditions, such as limits on times for maintenance work, number of vehicles present, noise levels, yard maintenance. Kay v. City of Ranchos Palos Verdes 504 F. 3d 803, 810-811 (9th Cir. 2007) (conversion of amateur radio antenna in residential area to commercial use). 11. Costs a. The courts have generally not found that the increase in costs needed to comply with local zoning requirements is a violation of Section 704. Bell Atlantic Mobile, 1999 U.S. App. LEXIS 17977 at 9-10,1999 WL 556444 at 4; Albemarle County, 211 F.3d at 81. 12. Inconsistency with Zoning Plan a. Denial upheld where proposed tower was inconsistent with the County's comprehensive plan or zoning ordinance. New Cingular Wireless PCS v. Fairfax County Board of Supervisors, _ F.3d 2012 WL 922435 (Fourth Circuit, 2012) (slip opinion at 3) and cases cited therein. M. Written Decision/Written Record/Final Action 1. Section 704 provides that "any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." a. The courts have not settled on a uniform standard as to what this means. Penn Township, 196 F. 3d 469, 474 n.4; cases collected and discussed in Southwestern Bell Mobile, 244 F. 3d at 59; although more and more courts follow Southwestern Bell Mobile, see discussion below. b. Providers argue that a "decision . . . in writing" must include findings of fact and an explanation of the decision. Some (early) District Court decisions have so required. See, e.g.--cases cited in Southwestern Bell Mobile, 244 F. 3d at 59. However, the Court of Appeal cases have all rejected this claim. See e.g. Des Moines, 465 F.3d at 824 ("The [Act] requires only that the Board's final decision be in writing supported by substantial evidence in a written record, not that every necessary finding be in the written decision."). C. Failure to have the findings of fact in file at time of disapproval of application was harmless error, where were later filed and approved. Porter County, supra, at 920. 2. The Fourth Circuit does not require the written decision to contain a statement of the municipal authority's findings or rationales. In Winston-Salem and Virginia Beach the court found that merely stamping "DENIED" in the appropriate blank on the cover page of a special use permit 39 111 PA2015-094(Appeal to Planning Commission) VARNUM.., ibOB ATTOItNI1T5 A]'1.5N`lflriY application was sufficient to constitute a "written decision" under Section 704, Winston-Salem, 172 F.3d at 313; Virginia Beach, 155 F.3d at 429. The courts refused to entertain the argument that the decision was insufficient because it failed to include the reasoning behind the decision and the evidence relied upon to reach the decision. Quoting Virginia Beach, the Winston-Salem court found that "'[t]he simple requirement of a decision. . . in writing cannot reasonably be inflated into a requirement of a statement of findings and conclusions, and the reasons or basis thereof."' Winston- Salem, 172 F.3d at 313 (quoting Virginia Beach, 155 F.3d at 430). However, the Third Circuit has not yet found it necessary to decide the issue. Penn Township, 196 F.3d at 472. 3. The most extensive discussion of the written record/written decision requirement to date is by the First Circuit in Southwestern Bell Mobile, 244 F. 3d at 59-60, which: a. Rejected the requirement of formal findings of fact and conclusions of law as having "no basis in the language of the Act" and contrary to sound policy because local zoning boards "are primarily staffed by laypeople" from whom it is unrealistic "to expect highly detailed findings of fact and conclusions of law." Id at 59. b. Required that under Section 704 the "written decision" must be separate from the "written record" of the proceeding. Id at 60. C. Required that the written decision "must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons." Id. Other courts have agreed with this standard. Saginaw, 301 F.3d 390, 395; San Francisco, 400 F.3d at 722. d. But ruled that court review is not limited "to the facts specifically set forth in the written decision." Id. Instead the court may look at the whole record. e. Followed by Eighth Circuit, among others, in Sprint Spectrum v. Platte County,_F. 3d_(8th Cir. 2009). f. Southwestern Bell Mobile analysis and result adopted by Seventh Circuit in Helcher v. Dearborn County, supra at 717-719 (Seventh Cir., 2010), stating that it joins the First, Sixth and Ninth Circuits on this point. And see the extensive review and discussion therein of the competing approaches various courts and Circuits have taken on this issue, concluding that its result is required to effectuate the central purpose of Section 704 of "allow[ing] for meaningful judicial review of local government actions relating to telecommunications towers.". Id 718. 4. The one court which has considered the issue has rejected as "absurd" the argument that a municipality has to have a transcript of the proceeding prepared and made part of the record before it makes its decision -- "We see no irregularity in the City Council issuing a verbatim transcript of its hearing after it made its decision and incorporating that transcript into the record. This is standard legislative practice, and the Act, unlike the [Federal Administrative Procedures Act], does not require a decision to be 'on the record,' 5 U.S.C. § 553 (c). It is absurd to suggest that a hearing that the legislators themselves attended and participated in cannot be part of the record 40 112 PA2015-094(Appeal to Planning Commission) ATTID �A�tNUM,:. B ,NLYS At'Lk1V Y�ib9 simply because they did not either produce a real-time transcript or postpone their vote until after the transcript was prepared." Virginia Beach, 155 F. 3d at 430, fn. 5. 5. The "record" cited with approval in Virginia Beach "consists of appellees' application, the Planning Department's report, transcripts of hearings before the Planning Commission and the City Council, numerous petitions supporting the applications, and letters to members of the Council both for and against." Id. at 430 (footnote omitted). No transcript of proceedings is required, Ferguson on appeal, below. 6. . Some District Court cases show confusion as to what is a "final action" under Section 704. Citing the requirement under Section 704 that court challenges against a municipality must be brought within 30 days of"final action" by the municipality, and combining it with the "in writing" requirement, some providers have argued and some District Courts have held that in combination they mean that a municipality must issue a "written decision" within thirty days of its oral denial of a wireless zoning application. See, e.g., USCOC of Greater Missouri v. City of Ferguson (E. D. Mo. 2008) 2008 WL 2065033 ("Ferguson") and cases collected therein. However, the 11th Circuit and 6th Circuit have both held "final action" under Section 704 does not occur until the municipality issues its written decision regarding the zoning request, and the Ferguson court reversed its prior ruling (that a written decision must be issued within 30 days or oral denial) to accord with these Circuits, and was upheld by the Eighth Circuit on this point on appeal. Ferguson, Id.; USCOC of Greater Missouri v. City of Ferguson, 583 F. 3d 1035, 1041-1042 (8th Cir. 2009) ("Ferguson on appeal"); Preferred Sites v. Troup County, 296 F.3d 1210, 1217 (11th Cir. 2002) ("Troup County"); Omnipoint Holdings, Inc. v. City of Southfield, 355 F.3d 601, 607 (6th Cir. 2004). 7. "Final action" by a municipality (for purposes of right to challenge in Federal Court) occurs is at "constunmation of the [local unit of government's] decisionmaking process" even though the applicant had a limited right to challenge the decision in state court. Omnipoint Holdings v. City of Cranston, 586 F.3d 38, 46-47 (1st Cir. 2009) ("City of Cranston"). Claim was not ripe for appeal to Federal Court when provider still had recourse before local zoning board. Sprint Spectrum v. City of Carmel, 361 F.3d 998 (7th Cir. 2007), accord Nextel Communications of Mid-Atlantic v. City of Margate, 305 F.3d 188, 193-194 (3d Cir. 2002) and Mariner Tower lI v. Town of Topsham, 2011 WL 5191165 (D.Me.2011) (applicant had not exhausted administrative remedies at local level because denial had not been appealed to the Town's Board of Appeals). To somewhat the same effect, see Ferguson on appeal. 8. Several cases have dealt with the "written decision" requirement in addressing whether and when resolutions and minutes are sufficiently separate from the "written record" requirement to satisfy cases such as Southwestern Bell Mobile, Saginaw and San Francisco. See, for example, the discussion of this point in Cellco Partnership v. Franklin County, _F. Supp. 2d_ (E.D. Ky 2008) 2008 WL 1790135, slip opinion at 4-5. Adopting a separate written resolution at a meeting other than that at which a hearing is held (or oral decision announced) seems to provide the most assurance this requirement is met. Compare Village of Marlborough, supra, where at the conclusion of a cell tower zoning hearing the Village's Board of Adjustment adopted a seventeen page "Findings of Fact" denying the request, where the Findings of Fact were prepared before the 41 113 PA2015-094(Appeal to Planning Commission) VAR.NL K ATSUI41TiVY Al"1 Atti hearing, and were allegedly adopted without being read by the Board, all of which prevented the Village from getting a Section 1983/Constitutional Due Process violation claim dismissed. 9. Winston-Salem, 172 F. 3d at 315, approved and upheld a zoning denial based on a formal opinion of a zoning board prepared months after the public hearing, and after litigation against the zoning board had commenced, over objections that it was a post hoc rationalization that cannot be part of the "written record". 10. Especially for legislative decisions there is a Constitutional/Federalism-10th Amendment issue on the Federal Government's ability to apply a "written decision" requirement (especially one involving specific standards and details) to the states. See, e.g., Ferguson, supra at 8. N. Unreasonable Discrimination I. "[A]ssuming that the City Council discriminated, it did not do so 'unreasonably,' under any possible interpretation of that word as used in the Act. We begin by emphasizing the obvious point that the Act explicitly contemplates that some discrimination 'among providers of functionally equivalent services' is allowed. Any discrimination need only be reasonable. . . There is no evidence that the City Council had any intent to favor one company or form of service over another. In addition, the evidence shows that opposition to the application rested on traditional bases of zoning regulation: preserving the character of the neighborhood and avoiding aesthetic blight. If such behavior is unreasonable, then nearly every denial of an application such as this will violate [Section 704], an obviously absurd result." Virginia Beach, 155 F.3d at 427. Accord, San Francisco, 400 F.3d at 727. 2. Second Circuit reached same conclusion.in Willoth, supra, and ruled that: a. A more probing inquiry of one provider than another is OK. b. The location of a tower may be taken into account to approve a tower for one provider, deny for another. Willoth, 176 F.3d at 639. 3. Cellular service was distinguished from paging service by the Court where the City approved towers for one service, but not the other. Aegerter, 174 F.3d at 892. The City of San Diego not requiring zoning approval for its own towers, primarily used for City services (mainly emergency services) was distinguished from a privately owner tower used solely for "commercial gain" with large revenues, with the court concluding that the City and private owner were not "functionally equivalent providers". In re Cell Tower Litigation, _ F. Supp.2d _, 2011 WL 3474702 (S. C. Cal. 2011). 4. A number of cases question zoning ordinances which actually or effectively show a preference for cell towers being located on municipal property, and often raise a variety of state and Federal law issues. See, e.g., Village of Marlborough, _ F. Supp. 2d _; and Laurence Wolf Capital Management v. Ferndale, 2009 WL 416785 (Mich App 2009) and the several cases between the same parties described therein. 42 114 PA2015-094(Appeal to Planning Commission) �JARNUM,., hiCb/ATT6�RN4Y5 4T LAW'M� O. Effectively Prohibit Service/Gap/Ripeness Challenges 1. The Fourth Circuit in Bell Atlantic Mobile ruled that a facial challenge to a cellular tower zoning ordinance (where the applicant had made no attempt to comply with the ordinance) was not ripe for decision and must be dismissed. 1999 U.S. App. LEXIS 17977 at 10-11, 1999 WL 556444 at 1. Claims that the ordinance made towers so costly as to effectively prohibit service were inadequate to support a case. 1999 U.S. App. LEXIS 17977 at 9-10,1999 WL 556444 at 4. The Court said there was no major hardship to Bell Atlantic Mobile in having to seek to obtain zoning approval and the defendant county would be harmed if the Court ruled on the merits of the ordinance before it was applied, because that would "deprive the county of the opportunity to regulate the construction and placement of towers within its borders in a manner consistent with the [Telecommunications Act]." 1999 U.S. App. LEXIS 17977 at 15, 1999 WL 556444 at 5. 2. Fourth Circuit in Virginia Beach held that Section 704's requirement that municipalities not "prohibit or have the effect of prohibiting" conventional cellular/PCS service only applies to "'blanket prohibitions' and 'general bans or policies,' not to individual zoning decisions," 155 F.3d at 428. And see further Fourth Circuit discussion of this point in Albemarle County,211 F.3d at 86. 3. First, Second, Sixth and Ninth Circuits reached opposite result: See the cases collected in T-Mobile Central v. West Bloomfield, 691 F. 3d 794, 805-807 (6th Cir. 2012). Municipalities' claim that Section 704 only prohibits general bans (moratoria) on wireless facilities was rejected by the Courts of Appeal in Amherst and Willoth, 176 F.3d at 644 and San Francisco, 400 F.3d at 730. In rejecting this claim, the Court of Appeals in Amherst was concerned about the situation where a municipal zoning authority sets out criteria that could never be met. Amherst, 173 F.3d at 14. The court held as follows: "[i]f the criteria or their administration effectively preclude towers no matter what the carrier does, they may amount to a ban 'in effect' even though substantial evidence will almost certainly exist for denial." Id. at 14. a. However, the Amherst court also held that the burden for the carrier in these situations-where a single denial is alleged to have the "effect" of prohibiting the provision of personal wireless services-is a "heavy one." Id. at 14. The carrier must show "from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try." Id. at 14- 15. 4. And the provider's claim that it must be allowed to build any and all towers it deems necessary to compete with other phone companies was rejected by the Court of Appeals in Willoth, 176 F.3d at 639 and the Third Circuit in Penn Township-Section 704 does not "trump all other important considerations." Penn Township, 196 F.3d at 478. 5. As discussed in Albemarle County, 211 F.3d at 87, and Sprint v. Palos Verdes, FCC regulations expressly allow gaps or "dead spots" in cellular coverage-for FCC purposes "cellular service is considered to be provided in all areas, including'dead spots."' 47 C.F.R. §§ 22.911 (b) and 22.99. 43 115 PA2015-094(Appeal to Planning Commission) IR VAJM o a�t'Ix>nrv6x8 nT taw pywac 6. In addition, the Willoth court held that a municipality "may reject an application for [a tower]in an under-served area without thereby prohibiting wireless services" if a. "The service gap can be filled by less 'intrusive means" such as (1) Less sensitive sites (2) Shorter towers (3) Tower on existing building (4) Camouflaged tower (5) Use of fewer towers (if adequate for coverage). Willoth, 176 F.3d at 643. Applied in New York SMSA v. Town of Clarkston, 99 F. Supp. 2d 381 (S.D.N.Y. 2000) ("Town of Clarkston-1") to uphold municipality's approval of one tower for several providers to fill a gap in coverage as opposed to multiple towers. b. "The holes in coverage are very limited in number or in size", i.e.-de minimis (1) Interiors of buildings in rural area, or (2) Limited number of spots or houses. 176 F.3d at 643. (3) Note: Expressly contemplates municipal and court review of coverage maps and patterns. 7. The Third Circuit followed and refined Willoth in Ho-Ho-Kus, 197 F.3d at 70, Penn Township, 196 F.3d at 480; applied it in Omnipoint Communications Enterprises v. Newtown Township, 219 F.3d 240 (3d. Cir. 2000) cert. denied 531 U. S. 985, 148 L. Ed. 2d 446, 121 S. Ct. 441 ("Newtown Township"); and summarized it in Easttown Township, 248 F.3d at 109, ruling described below. a. Note that the FCC's 2009 "shot clock" order, discussed below, states that it reverses these Third Circuit "gap must be in the service of every provider" rulings. However, there may be some reluctance on the part of the courts to apply the FCC order, which is based on the principle that an agency's interpretation of an ambiguous statute prevails over differing court interpretations. See National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U. S. 967, 982-983 (2005). Compare Liberty Towers v. Zoning Hearing Board of Falls Township, 2011 WL 6091081 (E.D.Pa. 2011) with Sprint Spectrum LP. v. Zoning Bd. of Adjustment of Paramus,2010 WL 4868218 (D.N.J. 2010). b. Specifically, in T-Mobile Northeast v. Fairfax County Board of Supervisors, _ F.3d _, 2012 WL 922435 (Fourth Circuit, 2012) the court discussed at length the FCC's shot clock order and basically concluded that it did not alter the Fourth Circuit's prior 44 1-10 PA2015-094(Appeal to Planning Commission) �JARNTM:_. 0Yp0 ATTUI<NI:YS 0.T LAM decisions on what constitutes an "effective prohibition" of service, and that (as summarized by the same court 19 days later in New Cingular Wireless PCS v. Fairfax County Board of Supervisors,_F.3d_, 2012 WL 922435 (Fourth Circuit, 2012) (slip opinion at 5): (1) The court said that "a plaintiffs burden to prove a violation of subsection (B)(i)(1 ) is substantial and is particularly heavy when . . . the plaintiff already provides some level of wireless service to the area . . . [A] plaintiff must meet one of two standards to prevail under subsection (B)(i)(H). The plaintiff must establish: 1) that a local governing body has a general policy that effectively guarantees the rejection of all wireless facility applications, Albemarle County, 211 F.3d at 87; Virginia Beach, 155 F.3d at 429; or 2) that the denial of an application for one particular site is "tantamount" to a general prohibition of service, Albemarle County, 211 F.3d at 87-88 . . . [U]nder this second theory . . . a plaintiff must show a legally cognizable deficit in coverage amounting to an effective absence of coverage, and that it lacks reasonable alternative sites to provide coverage." 8. As to the Third Circuit and Ho-Ho-Kus, the court said that municipalities have the effect of prohibiting service if their decisions lead to "significant gaps" in the availability of wireless services. Ho-Ho-Kus, 197 F.3d at 70;Newtown Township, 219 F.3d at 244. a. There are significant gaps in wireless services if a user cannot connect with the national telephone network or cannot maintain a connection supporting reasonably uninterrupted communication. Factors to consider in determining whether there is a gap were described. Id. And see T-Mobile Central v. West Bloomfield, 691 F. 3d 794 at 807 and Green Mountain Realty v Leonard, 688 F. 3d 40, 57-58 (1st Cir. 2012) (a significant gap must be large enough in terms of physical size and number of users affected to distinguish it from a mere, and statutorily permissible, dead spot(internal quotes and citations omitted)). b. However, the gap must not be just in the complaining provider's service-it must be an area unserved by any provider. "The provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider." Penn Township, 196 F.3d at 480. Newtown Township, 219 F.3d at 244. Omnipoint v. Easttown Township, 331 F.3d 386, (3d Cir. 2003). (1) The Third Circuit's apparent logic was that there was no effective denial of"wireless services" (plural in the statute) if some providers could serve the area in question. Alternatively, if some providers can serve the area with facilities that comply with local zoning and land use law and one cannot, it is that provider's defective system design and not municipal action that is effectively preventing service. (2) "We . . . reiterate here that the doctrine prohibiting gaps is designed to protect the users,not the carriers." Newtown Township, 219 F.3d at 244. (3) First, Sixth and Ninth Circuits disagree with gap in "any provider's" service test, instead gap need only be in the same of"that provider." Southwestern 45 11-� PA2015-094(Appeal to Planning Commission) a rrronmst's at inw masse Bell Mobile, 244 F.3d at 63; San Francisco, 400 F.3d at 732; T-Mobile Central v. West Bloomfield, 691 F. 3d 794, 807-808 (6th Cir. 2012). 9. "The providers still bear the burden of proving that the proposed facility is the least intrusive means of filling those gaps with a reasonable level of service." Ho-Ho-Kus, 197 F.3d at 75 (emphasis supplied). Accord Penn Township, 196 F.3d at 474, San Francisco, 400 F.3d at 734; T-Mobile Central v. West Bloomfield, 691 F. 3d 794 at 808 (6th Cir. 2012). The Court clearly differentiated barring wireless service from barring wireless facilities in a municipality (service might be provided by a tower located in an adjacent municipality). Ho-Ho-Kus, 197 F.3d at 70. a. First and Second Circuits have rejected "least intrusive" test, and instead use test of "no alternative sites" which would solve the problem. Southwestern Bell Mobile, discussed below and cases cited there. b. The preceding determinations are made by the Federal District Court--the substantial evidence standard for reviewing municipal decisions does not apply. Id. at 70. 10. But see Albemarle County where the Fourth Circuit rejected the preceding approach as reading too much into the Act-for example, a community could reject the least intrusive approach for a more intrusive approach to provide better service or promote commercial goals. Albemarle County, 211 F.3d at 87. 11. Ninth Circuit follows Second and Third Circuits on preceding analysis. See T- Mobile USA v. City of Anacortes, _F3d. _ (9th Cir. 2009) and cases cited therein. Anaeortes also contains a lengthy discussion of the shifting burden between the provider and municipality, and the various factors which can be considered. See T-Mobile West v. City of Agoura Hills, 2010 WL 5313398 (C.D. Cal, 2010) for a detailed application of the tests and shifting burdens. 12. District Court test for "prohibition of service" being met if the provider shows that it cannot provide a "high level of wireless service" from another site at a cost "within or close to the industry wide norm for establishing a new service" was rejected by the Fourth Circuit in Albemarle County,which reversed the District Court. Albemarle County, 211 F.3d at 81. 13. Amherst--"Subject to an outer limit, such choices [between fewer higher towers and more shorter towers] are just what Congress has reserved to [municipalities]." Amherst, 173 F.3d at 15. a. Unless record shows municipality would reject all proposals. b. Cannot require/reject successive applications without indicating what will lead to approval. c. "[T]he burden for the carrier invoking the [prohibition of service] provision is a heavy one: to show from language or circumstances not just that this application has been rejected, but that further reasonable efforts are so likely to be fruitless that it is a waste of 46 1 -12 PA2015-094(Appeal to Planning Commission) '�A�RNUM-, iB[A@ ATfUItN4A5 RT LA1V I�lYYO time even to try." Id. at 14. Cited with approval by Fourth Circuit in. Albemarle County, 211 F.3d at 88. 14. In Southwestern Bell Mobile the court upheld denial of zoning approval due to the adverse visual impact of the tower, and then addressed the provider's claim regarding the lack of alternate sites with a lesser visual impact as follows: a. "For a telecommunications provider to argue that a permit denial is impermissible because there are no alternative sites, it must develop a record demonstrating that it has made a full effort to evaluate the other available alternatives and that the alternatives are not feasible to serve its customers. Such a showing may be sufficient to support an allegation that the zoning board's permit denial effectively prohibits personal wireless services in the area." Southwestern Bell Mobile, 244 F. 3d at 63. Accord, Second Generation Properties, 313 F.3d at 635; St. Croix County, 342 F.3d at 834-835. 15. No prohibition of service where denied tower would improve quality of service and dropped call rate in a small area. Des Moines, 465 F.3d at 825. And provider must investigate "all feasible alternative sites." Id. To a similar effect (denied tower would mainly improve quality of service) see Liberty Towers v. Zoning Hearing Bd. of Twp of Lower Makefield, 2011 WL 3496044 (E.D. Pa. 2011). 16. The First Circuit Court of Appeals has noted, that although [Section 704] does not explicitly authorize a zoning board to consider whether a decision amounts to an effective prohibition of the provision of wireless service, "[s]ince board actions will be invalidated by a federal court if they violate the effective prohibition provision, many boards wisely do consider the point." Second Generation Props.v. Town of Pelham, 313 F.3d 620, 630 (1st Cir. 2002). 17. For an extended discussion of "gap" analysis, legal standards, alternative remedies and what did/did not suffice to rebut the provider's case, see City of Cranston and Sprint v. Palos Verdes above, also T-Mobile Northeast v. City of Lawrence, _ F. Supp. 2d _, 2010 WL 5174484 (D. Mass, 2010) ("Unscientific, anecdotal evidence will not suffice to controvert the plaintiffs evidence of a coverage gap", slip opinion at 5). And see Liberty Towers v. Zoning Hearing Board of Falls Township, 2011 WL 6091081 (E.D.Pa. 2011), noted above, for its extended discussion of the nature and types of measurements and standards which will (or will not) suffice to show a gap. 18. Some cases hold that effective prohibition claims cannot be filed unless an application has been denied. See New Cingular Wireless PCS v. Town of Stoddard (D. N.H., 2012),2012 WL 523686 at 7 and cases cited therein. P. Radio/RF Emissions, Distributed Antenna Systems 1. In general Section 704 prohibits municipalities from considering the RF emissions from cell towers in zoning proceedings - - see subsection (7)(B)(iv) which states that "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio 47 229 PA2015-094(Appeal to Planning Commission) VAI� N Jg" IiNktiS Td"LA4t' OO frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." 2. The FCC has adopted rules ("RF rules") on radio emissions from cellular towers and other facilities. See 47 C.F.R. § 1.1310. a. The rules were affirmed in Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000), rehearing denied 2000 U.S. App. LEXIS 12246 (2d. Cir. 2000), cert. denied 53111S. 1070, 121 S. Ct. 758, 148 L. Ed 2d 661. b. A New York court has dismissed state law nuisance, trespass and other damage claims by individuals claiming injuries from emissions from a nearby cell tower were preempted by the RF rules and Federal law. Stanley v. Amalithone Realty, 940 N.Y.S. 2d 65 (Appellate Division, 2012). C. Based on the rules, in multidistrict litigation, the Third Circuit dismissed state class action civil lawsuits (against manufacturers and retailers of cell phones and cell phone companies) based on RF emissions from cell phones on preemption grounds. "Here, the FCC has weighed the competing interests relevant to RF regulations—safety and efficiency . . . and has implemented [its] conclusion . . . by requiring every cell phone sold in the United States to comply with [the RF rules]. . . Allowing juries to impose liability on cell phone companies [based on claims that due to RF emissions they were unsafe to operate without headsets] would conflict with the FCC's regulations [and is thus preempted]." Farina v. Nokia,—F. 3d_, slip opinion at 15-19 (Third Circuit, 2010). d. In June 2010 the City and County of San Francisco adopted an ordinance requiring cell phone retailers to post at the point of sale the specific RF emission level of each cell phone sold. City and County of San Francisco, "Cell Phone Right-to-Know Ordinance", File No. 100104, Ordinance No. 155-10, codified in Chapter 11 of the San Francisco Environmental Code. The cellular industry sued to overturn the ordinance on the grounds of Federal preemption, CTIA - The Wireless Association v. City and County of San Francisco, Case No CV 10-3224 (N.D. Cal). Among the principal industry claims was that "any cell phone that complies with the [RF rules] is safe", that there is thus no variation in the safety of phones with greater or lesser emissions, so long as they comply with the FCC RF rules, and that there is "field preemption" of any state or government regulation of RF emissions. Complaint,¶¶ 1-3. (1) In October, 2011, the Federal Court in San Francisco struck down in part and upheld in part the City ordinance in question, which as revised required cell phone stores to warn customers about the issues and possible dangers from radio- frequency emissions from cell phones. The Court did not find that the local ordinance conflicted with the FCC's rules limiting RF emissions from cell phones. Instead it found that the requirements for stores to put stickers on their displays and a poster on the wall warning about RF emissions issues unduly infringed on the stores' First Amendment (freedom of speech) rights. It upheld a requirement that stores give all cell phone purchasers an information sheet on RF emissions, if the sheet 48 120 PA2015-094(Appeal to Planning Commission) �JARM NL7 ..,. 6�ilt ATfOIthliYti � developed by the City was revised in certain respects. Appeals by both sides are likely. e. The FCC and its Local and State Government Advisory Committee ("LSGAC") on June 2, 2000 published the paper "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance" on radio emissions from cellular and other towers. Copies are available .from our firm, the FCC/LSGAC (see LSGAC site at http://www.fcc.gov/statelocai/) and from the International Wireless Committee of the International Right of Way Association at http://www.irwa.net/. f. At least one court has held that as part of the zoning process a municipality's board of health could inquire about RF emissions and require an explanation of the provider's RF study to ensure that the FCC's RF emission standards are followed. Township of Warren, 737 A. 2d 715. In Town of Clarkston-2, 603 F. Supp. 2d 715, supra, the court held that the Town could require the provision of detailed RF emission information, but could not use it as a basis for siting decisions. 3. Residents often have concerns about RF emissions from cell phones and cell towers, and newspaper accounts about such concerns occur frequently, including in such newspapers of record (and not given to sensationalism) as the New York Times. See, e.g. "Experts Revive Debate Over Cellphones and Cancer", Tara Parker-Pape, New York Times, June 3, 2008, page D8. People can practical advice on RF emissions, how to reduce them, and check the strength of the RF emissions from their cell phone at the cell phone web page of the Environmental Working Group, http://www.ewg.org/cellphone-radiation. Cell phone RF emission strength is also available through the (somewhat clunky)FCC web page, http://www.fcc.gov/oet/ea/. 4. "The Town acknowledges that health concerns expressed by residents cannot constitute substantial evidence" due to ban in Section 704 on considering these if facility complies with FCC rules. Oyster Bay, 166 F.3d at 494. 5. Virginia Beach court dismissed mention of health concerns by a few citizens as only "a small fraction of the overall opposition." Virginia Beach, 155 F.3d at 431, fn. 6. But several District Court cases express skepticism that a local decision was not based on impermissible RF emission grounds when there is significant testimony in the record by residents about the harmful effects of such emissions from a proposed tower. See, e.g. T-Mobile Northeast v. Village of East Hills, _ F. Supp 2d _, 2011 WL 1102759 (E.D. NY 2011); T-Mobile Northeast v. City of Newport News, 2011 WL 1103004 (E.D. VA 2011) affirming the underlying and more detailed magistrate decision at 2011 WL 1086496; T-Mobile Central v. West Bloomfield, 691 F. 3d 794 (6th Cir. 2012) (noting residents' RF concerns, that they were impermissible as ground for denying zoning, and reversing a denial on other grounds). And see T-Mobile Northeast v. Loudon County, 2012 WL 4899469 (E.D. Va, 2012) overturning zoning denial partially based on RF emissions concerns. 6. Pine Grove Township court noted one citizen's comments on "alleged health affects, which the [Zoning] Board may not consider," comments did not affect court's disposition of case. Pine Grove Township, 181 F.3d at 181. Sixth Circuit noted that health risk concerns may not 49 121 PA2015-094(Appeal to Planning Commission) "WARNUM, ATCtiR�'ITSkT�.AW support a denial if facility emissions comply with FCC regulations. Telespectrum, 277 F.3d at 424. Ninth Circuit rejected RF emissions challenge. San Francisco, 400 F.3d at 737. 7. Ban in Section 704 on local regulation based on environmental effects only applies to radio frequency emissions, such that District of Columbia's concerns about falling ice and resulting safety risk was outside the ban. American Towers v. Williams, 146 F. Supp. 2d 27 at 36. 8. See Town of Clarkston-1, 99 F. Supp. 2d 381 where the Court upheld the municipality's selection of one tower (serving all providers) to close a gap in coverage over similar multiple provider towers proposed for other sites on the basis of "prudent avoidance" (minimizing radio frequency emissions reaching surrounding locations). 9. See the discussion of Brehmer v. Planning Board of Town of Wellfleet, 238 F. 3d 117 (1st Cir. 2001) ("Town of Wellfleet") in the next section on the remedies that are applicable when a municipality "impermissibly relied on the potential environmental effects of the telecommunications tower" to reject zoning approval, and the provider's agreement to conduct testing. 10. See also Johnson County, 199 F.3d 1185, preempting county regulation regarding radio frequency interference from cellular tower against Tenth Amendment challenge and holding that entire field of radio frequency interference regulation is preempted by federal legislation, Freeman v. Burlington Broadcasters, Inc., 204 F. 3d 311 (1st Cir 2000), cert. denied 531 U.S. 917, 121 S. Ct. 276, 148 L. Ed. 2d 201, holding to a similar effect regarding cellular providers and other FCC licensees, and also Town of Clarkston-2, 603 F. Supp. 2d 715, supra to the same effect. For a description of some of the types of problems which concerned Johnson County, see Section IV.B.31, above. As an example of a case where the court found that a zoning denial was based on impermissible RF emission grounds, see Sprintcom, Inc. v. Puerto Rico Regulation and Permits Administration, _F. Supp. 2d_ (D. Puerto Rico, 2008), 2008 WL 2068743 ("the only substantial evidence on the written record is that of the site neighbors' concerns related to the effects of radio- frequency emissions"). For an extensive discussion of the inability of adjacent landowners to object to approval of a cell tower on RF emissions grounds, see Ruisard v. Village of Glen Ellyn, _ N.E.2d_, 2010 WL 4913476 (Ill. App. 2 Dist, 2010) slip opinion at 14 ff. 11. Ban on considering RF emissions does not apply to leases by unit of govermnent. Sprint Spectrum PCS v. Mills, 283 F.3d 404, 420 (2nd Cir. 2002). 12. A Federal District Court ruled that the Americans with Disabilities Act does not override Section 704's preemption of local authority to regulate cell tower RF emissions so as to protect persons who claim they have electromagnetic sensitivity which is exacerbated by such emissions. Firstenberg v. Santa Fe, 782 F. Supp 2d 1262 (D. New Mexico 2011). However, this case was overturned by the Tenth Circuit on procedural grounds (the case had been removed to Federal Court, and the Tenth Circuit found that under the well-pleaded complaint rule the requisite Federal question needed "on the face of the complaint" for removal was lacking) and sent back to the District Court to return to state court (which had issued a writ of mandamus requiring the City of Santa Fe to potentially prohibit the offending emissions). Firstenberg v. Santa Fe, _ F.3d 2012 WL 4784468 (10th Cir. 2012). 50 122 PA2015-094(Appeal to Planning Commission) VA�N��:. dfOlO N1VItMEYS ATLAIY till 13. For a discussion of and references to consumer class action litigation alleging cell phones causing cancer due to RF emissions, see Murray v. Motorola, supra, and cases cited therein, and Farina v.Nokia discussed above. 14. Good practical advice for municipalities is (1) to explain at the start of any zoning hearing that testimony regarding RF emissions will not be allowed due to Federal preemption, (2)to cut off any remarks that go to RF emissions, and (3) point out that if persons opposing a tower persist in testifying about RF emissions, it will likely lead to the opposite result of approving the tower because it will afford the zoning applicant a clear basis to go to Federal court and lead to the court much more carefully scrutinizing any claimed legitimate basis for denying approval. a. A court case illustrating the preceding is Cellco Partnership v. Town of Colonie, 2011 WL 5975028 (N.D.N.Y. 2011) where a large group of residents opposed a totally disguised cell tower in a residential area principally on RF emissions grounds. They created an organization and email listsery opposing the tower, testified in large numbers against it,wrote "incendiary" letters threatening legal action against cell company and owner of the property, obtained extensive media coverage, etc. The court rejected the Town's claimed bases for denial as "absurd" and "unsubstantiated", found that the underlying basis for the rejection was RF emissions, ordered the Town within thirty (30) days to "grant all pennits, licences and/or approvals necessary to effectuate the construction of the [c]ell tower" and threatened sanctions against the Town if it did not comply. 15. Distributed Antenna Systems or DAS a. DAS systems allow the provision of cell phone type service without conventional towers or antennas. In general, DAS uses very small antennas and electronics to have a series of"microcells" on utility poles, light standards or the like to provide cellular service. DAS allows the provision of cellular service in (for example) residential areas without the aesthetic or other objections associated with conventional towers. b. Some AAS networks, such as those of NextG, carry the signals concurrently of many cellphone/wireless companies and broadcast them from a single, inconspicuous network. One network thus replaces multiple cell towers or antennas. The Court in T- Mobile West v. Crow, 2009 WL 5128562 (D AZ, 2009) upheld against multiple challenges the decision of Arizona State University to allow only one DAS network on its Tempe campus and require all cell phone companies desiring to put facilities on campus to use that network. C. Of particular interest to municipalities are the Second Circuit cases of New York SMSA v. Town.of Clarkston, 612 F. 3d 97 (Second Circuit, 2010) ("Clarkston-3") and MetroPCS New York v. City of Mount Vernon, _ F. Supp 2d _ (S.D.N.Y. 2010) ("Mount Vernon"), both involving communities evidencing preferences for DAS systems over conventional cellular antennas. As summarized in Mount Vernon, the Second Circuit in Clarkston-3 only held the an ordinance ("legislation") codifying a preference for one technology over another is preempted "because federal law occupies the field when it comes 51 123 PA2015-094(Appeal to Planning Commission) �JARNUM,.. ®i0 AITOIINkkS dT 11N to technical and operational aspects of wireless service". Id, slip op at 4 (citations omitted). However, "[i]n contrast, it is proper for a town to express a preference for an alternative technology for a specific application" as a part of permissible "individual pen-nit decisions" Id at 12 (citations to Second Circuit and other cases omitted). Q. Remedy if Section 704 is Violated 1. Generally, courts either (1) remand to the local authority for reconsideration, or (2) issue mandatory injunctive relief, usually in the form of an order granting the improperly denied applications. Omnipoint Communications Enterprises, Inc. v. Town of Amherst, 74 F. Supp. 2d 109 (D.N.H. 1998),reversed on other grounds, 173 F.3d at 24 (1st Cir. 1999). a. One of the major risks for a municipality is that a violation of Section 704 will lead to the zoning application being approved, not a remand to the municipality. 2. Courts ordering the tower approved (e.g.-issuing mandamus or injunction that local permission be given) do so due to Section 704's directive to courts to decide Section 704 cases "on an expedited basis" and perceived statutory goal of expediting relief, and/or because "remand would serve no useful purpose." See, e.g., Oyster Bay, 166 F.3d at 497; Pine Grove Township, 181 F.3d at 409 and cases cited therein. See generally, Chattanooga, 403 F.3d 392, approving six cellular towers as applied for due to lack of timely action by the City. See also Brehmer v. Planning Board, 328 F.3d 117 (1st Cir. 2001); Omnipoint v. Zoning Hearing Board 181 F.3d 403 (3d. Cir. 1999); Huntsville 296 F.3d at 1221; Troup County, at 1222; New Par v. Saginaw supra at 400. 3. Remedies are discussed at some length in Town of Wellfleet, 238 F.3d at 120-122. The court held that largely due to Section 704's directive to the courts to "hear and decide such [cases under Section 704] on an expedited basis that injunctive relief, rather than a remand for further proceedings, is preferable as a remedy. The Court held that this principle extended to a consent judgment granting zoning approval voluntarily entered into by a municipality which had "conceded its own error" in violating Section 704, Id, n.4 at 120, such that the District Court should simply enter an order ratifying the consent judgment, and that Section 704 superseded and preempted any state law requiring a new round of hearings at the local level on the approval thereby being granted. Id 121-122. 4. Other courts decline to issue mandamus and remand the case to the municipality. Id. In Winston-Salem, the Fourth Circuit found that the district court erred in issuing a writ of mandamus because such an act was not authorized by the Telecommunications Act, the Federal Mandamus Statute (does not apply to state officials), the All Writs Act, and because all other avenues of relief had not been exhausted. Winston-Salem, 172 F.3d at 312 n.3; accord Nottoway County at 710, fn. 3 (concurring opinion of Judge Widener). And see National Tower v. Plainville Zoning Bd of Appeals, 297 F.3d 14 at 24 (1st Cir., 2002)noting circumstances where a remand may be in order. a. But see T-Mobile South v. City of Milton, 2011 WL 6817820 (N.D.Ga. 2011) where the court on reconsideration reversed its initial remand of a case to the municipality and instead issued an injunction approving the tower in question. 52 124 PA2015-094(Appeal to Planning Commission) VAAYTOtt9JfiY5 AY'LAN�I 5. Two and one half years to reach a decision not unreasonable. Case remanded to municipality. Ho-Ho-Kus, 197 F.3d at 76. 6. See Town of Clarkston-2, 603 F. Supp. 2d, supra, where on a facial challenge to a comprehensive, detailed zoning ordinance by a group of carriers,the court invalidated the ordinance and gave the Town six months to rewrite it. 7. In Industrial Tower and Wireless v. Town of East Kingston, 2009 WL 799616 (D NH 2009) the court found that the Town had not complied with the "written decision" requirement, distinguished such a procedural violation from a substantive violation of Section 704, and remanded the case with instructions for the Town to promptly provide a written decision. Accord, Clear Wireless v. Wilmington, 2010 WL 3463729 (D. Del, 2010), to similar effect see T-Mobile South v. City of Milton, 2011 WL 2532920 (N.D. Ga. 2011). 8. An unusually broad remedy was adopted over a strong dissent in USCOC of Greater Missouri v. County of Franklin, 636 F.3d 927 (8th Cir. 2011) where the court under the All Writs Act issued an order enjoining challenges by a third party(not the County) largely in state court to a cellular tower whose zoning approval had been approved in prior litigation (the pending third party challenge prevented the County from issuing necessary permits for the tower). The majority justified the decision largely on the basis of avoiding the "administrative quagmire" which Section 704 was intended to avoid and "mandating" the issuance of all needed permits. But see St. Charles Tower v. Kurtz, a slightly later 8th Circuit case also involving Franklin County, discussed next. 9. Challenges by neighboring landowners challenging consent judgments between a provider and municipality which resolve suits claiming violations of Section 704 by granting zoning approval such that a tower can be built have been the subject of some cases. In Town of Alton, discussed above, the First Circuit held that neighbors could sue to require that a violation of Section 704 be proven so as to justify and allow the consent judgment. Retired U.S. Supreme Court Justice Souter was part of the panel deciding the case. And in St. Charles Tower v. Kurtz, 643 F.3d 264 (8th Cir., 2011) the Court held that neighbors could sue - - and were correct in suing - - to overturn a consent judgment which compelled (a) the issuance of zoning approval but without the municipality having to follow the procedural requirements of state law (supermajority vote with written decision and written findings of fact) required for such approval, and (b) the issuance of all building permits and other permits required for the tower, even though there had been no allegation or claim of Section 704 (or other)violations relating to them. On the latter point, the court held that such a condition was not "necessary" to rectify the violations of Section 704 the plaintiff had complained of. R. Damages,Attorneys Fees and Section 1983 Claims 1. In Rancho Palos Verdes the U.S. Supreme Court resolved the long standing issue of whether damages and attorney's fees are available under Section 1983 for violations of Section 704. The Supreme Court adopted the position advocated by municipalities, ruling that Section 1983 was not available. City of Rancho Palos Verdes, Cal. v. Abrams, 125 S. Ct. 1453 (2005) ("Abrams"). In 53 125 PA2015-094(Appeal to Planning Commission) VAR �atTOntiT:1)AT AAU particular, the Court rejected the Ninth Circuit's conclusion that Section 332's remedial scheme was not sufficiently comprehensive to preclude Section 1983 relief. The Supreme Court also disagreed with the Ninth Circuit's conclusion that the savings clause in the 1996 Telecommunications Act (which added 332(c)) demonstrated Congress's affirmative intent to preserve Section 1983 remedies for violations of Section 332. a. See also Primeco Personal Communications v. City of Meguon, 352 F.3d 1147 (7th Cir. 2003) (attorneys fees not available under Section 1983). 2. And in a lengthy, well-considered analysis, the Ninth Circuit has ruled that damages and attorneys fees are not available as a.remedy tinder Section 704 either, noting among other things that "The specter of large damages claims, and the expensive litigation recognized by Abrams, could easily intimidate local authorities into effectively abdicating their zoning and permitting powers when confronted with an application from a wireless service provider." Kay v. City of Ranchos Palos Verdes 504 F. 3d 803, 813-814 (9th Cir. 2007). 3. The Ninth Circuit in San Diego ruled that attorneys fees were not available for the violation of Section 253 which it found. San Diego at 14-15. It and all the Circuit Courts of Appeal which have recently considered the issue have ruled that "there is no private damages action under Section 1983 for a violation of Section 253." NextG Networks v. City of New York, 513 F.3d 49, 52-54 (2nd Cir. 2008); Qwest v. City of Santa Fe, 380 F. 3d 1258, 1265-67 (10th Cir. 2004); Southwestern Bell Telephone v. City of Houston, _F.3d_, _, Case No. 07-20320 (5th Cir. 2008) (slip opinion at 5-7). But see BellSouth Telecommunications, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1191 (11th Cir. 2001) and TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6th Cir. 2000), although both decisions predate the Supreme Court's clarification in Gonzaga that a Section 1983 analysis requires courts to "first determine whether Congress intended to create a federal right". Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) ("Gonzaga") (emphasis in original). "For a statute to create such private rights, its text must be phrased in terms of the persons benefited." Id. at 284 (citation and internal quotation marks omitted). "Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action". Id. at 286. And see Abrams, supra, where the Supreme Court rejected a § 1983 claim, citing Gonzaga, 536 U.S. at 285). S. State Law Claims 1. Municipalities should be.careful to follow applicable state laws, which may be more restrictive in some respects than Section 704. In general, whichever is the stricter law applies - - if state law prescribes a 45 day shot clock, it governs, rather than the longer Federal one. And if state law prohibits certain factors from being considered, or requires zoning approval to be granted if certain time deadlines are exceeded, the courts have held that state law controls. See the discussion in Section L above, and the La Canada Flintridge and Village of Floral Park cases discussed there. And see In re Cell Tower Litigation, _ F. Supp.2d _ , 2011 WL 3474702 (S. C. Cal. 2011) holding that a conditional use permit must be granted due to the City of San Diego violating time limits in California's Permit Streamlining Act. 54 120 PA2015-094(Appeal to Planning Commission) VMM . NN5Y6 Al'1..4A'ammm a. Cellular companies generally bring claims against municipalities under both state and Federal.law. 2. In some states, the authority to enact moratoria may not be as clear or strong as in Medina. 3. In others, special provisions may eliminate or lessen local review of zoning applications by "utilities" and cellular companies may claim they are utilities. T. FCC Backup Power Ruling 1. On October 4, 2007 the FCC in continuing response to Hurricane Katrina adopted an order requiring backup power (batteries or generators) at most telephone and cell tower locations nationwide. See http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-177A1.doc. The order was scheduled to take effect in the spring of 2008 but was stayed by the D.C. Circuit Court of Appeals,.pending review by the Office of Management and Budget. OMB in December, 2008 rejected the order, because the FCC failed to get public comment before adopting the order and didn't show that the information required from wireless companies would actually be useful. It also said the FCC had not demonstrated that it had enough staff to analyze the hundreds of thousands of pages of documents that the wireless industry said its members would likely have to produce as part of the regulations. Following this the FCC told the Court of Appeals that it would start the rulemaking process over with a new Notice of Proposed Rulemaking. Specifics about the now abandoned rule are as follows: 2. The FCC 2007 order by its terms expressly did not preempt state or local laws or leases which prevent backup power installations. Statements by cell phone company representatives that an FCC order preempts state or local laws or leases in this regard are incorrect. But cell companies may claim that by other means Federal law preempts in any event, even as to lease terms that prohibit dangerous substances (e.g.--gasoline) from being introduced on the municipal land or building being leased for a cell antenna. 3. Municipalities may still see activity to put generators and battery backup systems at cell tower sites on private and public property, including those in the rights of way. This may cause problems for towers in sensitive municipal locations, such as those on the roofs of municipal or school buildings, or on water towers,because backup power systems typically involve gas, diesel or propane powered generators (with accompanying fuel tanks) or batteries with lots of sulfuric acid. Lease terms often prohibit such dangerous substances or require municipal approval of changes from the initial installation, and either type of system is heavy, which may cause building or structural concerns. 4. Cell companies may still seek lease amendments to allow them to install backup power systems (in fact in the now disavowed order, the FCC said they should seek such amendments, if their leases now preclude such systems). Cell companies may claim that lease provisions effectively preventing backup power systems violate Section 253 of the Federal Communications Act, which (in general, and subject to a number of requirements and exclusions) preempts state or local laws or other legal requirements which "may prohibit, or have the effect of 55 127�- PA2015-094(Appeal to Planning Commission) vARNUK ATfOM1NGYS A'(I.A\\0,1� prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C. Section 253(a). On the other hand, municipalities can have legitimate concerns if they have good reasons for not wanting such systems installed on particular properties, yet the lease does not clearly preclude them. 5. In the 2007 FCC proceeding, the cell phone companies complained to the FCC that local zoning laws, building codes or environmental restrictions may prevent backup power installations. 6. Municipalities should be aware that if this is the case, they may face challenges to such laws and the like not under the FCC order but under the cell tower zoning provisions of Federal law discussed at length above. These provisions apply to state and local laws which regulate the "placement, construction or modification" of cell towers--and the cell phone companies may contend this includes building codes, permits and other local requirements, not just zoning. They may argue that local requirements regarding backup power which they can't comply with or are slow in coming "prohibit or effectively prohibit" the provision of cell phone service, in violation of the statute. 7. Carriers may thus argue that the "decision in writing", based on "a written record" and other procedural requirements set forth above apply, Local practices and procedures may not be well adapted to meet these requirements, and if necessary should be changed to comply. As noted above, failure to meet such procedural requirements is one of the reasons local zoning decisions are sometimes found to violate the cell tower zoning requirements of the Federal Communications Act. U. FCC "Shot Clock" Order,Notice of Inquiry 1. On July 11, 2008 the Wireless Association, or CTIA, a trade group for the cellular industry, filed a Petition for Declaratory Ruling with the FCC regarding state and local zoning of cellular towers. The FCC opened a docket, WT 08-165, and received numerous comments, reply comments, and other filings. The industry asked the FCC to rush and act on the Petition prior the change in administrations on January 20, 2009. This did not occur. 2. In general, the Petition sought the following: a. A fixed deadline of 75 days from filing for "final action"by municipalities on applications for zoning approval for new cellular towers and antennas. i. If the 75-day deadline is not met, the zoning approval is automatically deemed granted. b. A similar deadline of 45 days for applications for zoning approvals to add cellular antennas to existing towers. 56 122 PA2015-094(Appeal to Planning Commission) VARKpvY®A"f'tt]Hif:YS AT)AN iAB49 i. Again, with zoning approval automatically deemed granted if the deadline is not met (or with courts being directed to issue an injunction to the same effect). C. Preemption of zoning ordinances where variances are required for cell towers. i. In other words, if a municipality requires a variance for a cell tower, the FCC would preempt and cell companies would likely argue that no local zoning approval is needed. d. Preemption of municipalities' ability to consider whether other cell companies provide service in the area when determining whether there is a "gap" in coverage warranting a new tower, in conflict with the Third and Fourth Circuit decisions discussed in Section V.O.7, above. 3. Principal Claims a. Providers i. The providers largely based their Petition on Alliance for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008) where in the cable franchising context the Sixth Circuit upheld an FCC rule setting time limits for municipalities to act on franchising applications by new providers. ii. The providers also cited instances of excessive time for action on zoning requests and claimed that variances are rare and burdensome. b. Municipalities i. Municipalities pointed to the express language in Section 704 about time periods having to take into account "the nature and scope" of a request, and extensive statements in the Committee Report on Section 704 that it is Congress's intent that the time frames for municipal action on cell tower zoning requests vary with the facts and circumstances, with no intent to give priority or a preference to the wireless industry. For example: "Under subsection [332](c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time 57 12J° PA2015-094(Appeal to Planning Commission) �,Tt�.RNUMu,. �®nrrgnvrxs nrun�pY� frames for zoning decision." Conference Committee Report at 207-208 (emphasis supplied). ii. Municipalities in their comments objected to FCC jurisdiction due to the statute's prohibition on the FCC taking any action to "limit or affect" local zoning authority, pointed out that most zoning applications are handled quickly, objected to the citing of anonymous examples of excessive time being taken, refuted the specifics of the instances cited by the providers that were not anonymous, noted the time needed to comply with procedural requirements of state law and of Section 704 decisions requiring a "written decision" separate from the "written record" supported by "substantial evidence", and noted that the time for action varies greatly depending on the facts and zoning district - - A cell tower in an industrial zone may be "of right" and approved in one day, whereas one in a single family residential area may take substantial time to consider, given the competing considerations of aesthetics, affect on property values, questions as to the height of the tower needed, camouflaging options and the like. iii. Municipalities also pointed out that variances are an exceedingly common form of zoning approval, and allow cell towers in places where they otherwise might not be allowed. 4. Timing a. Providers pushed for a quick decision by the FCC, prior to the change in administrations in early 2009, municipalities opposed this, and it did not occur. 5. Decision a. The FCC issued its Order on November 18, 2009 and in August, 2010 rejected a Petition for Reconsideration filed by the National League of Cities and others, both are available on our web site at www.vamumlaw.com/celltower. The Order is a declaratory ruling, so no rule was issued, instead you have to read the 29-page text of the initial order plus the August denial order. i. Variances for Cell Towers -- FCC rejected the request to preempt variances for lack of evidence. ii. The FCC issued shot clocks and ruled on the gap issue, each of which is discussed in turn as follows. b. Jurisdiction, Relief i. FCC agreed with the industry on its jurisdiction and authority to set time limits for zoning requests. It said the statute requires action in "reasonable time" and allows applicants to file suit within 30 days after final action or "failure to 58 130 PA2015-094(Appeal to Planning Commission) VAIR e nrro"wisn nr.nw r� act" on zoning request. As noted below, in October, 2012 this FCC action became the subject of a U.S. Supreme Court case. u. It said the Order clarifies the statute by setting "presumptively reasonable" time limits for "failure to act", allowing the applicant to file suit in Federal Court under 47 U.S.C. § 332(c)(7) if these times are exceeded. iii. "The court will [then] determine whether the delay was in fact unreasonable under all the circumstances of the case" -- it did not order the application"deemed granted" as requested by industry. iv. But the industry will presumably argue in court that applications exceeding applicable time frames should be approved, not remanded for further action. See discussion on remedies in Section V.Q of this paper. As discussed there, the Courts often rule that the remedy for a violation of 47 U.S.C. § 332(c)(7) is mandamus or an injunction approving the zoning application as filed, not a remand to the municipality. C. Collocations. The FCC said 90 days to act was "presumed reasonable". L Its reasoning was that these are easier to process than new towers - - no new constriction; no hearings are required in some states; and many communities process same within 90 days. ii. Collocation is defined in the Order at In 146. Key points — not a collocation if. More than 10% increase in height; More than 4 equipment cabinets (or 1 shelter); New antenna extends more than 20' from the tower; or Excavation needed outside current tower site. d. New Towers. The FCC said 150 days to act was presumed reasonable. i. Its reasoning was that seven state statutes require action within 150 days (what about the other 43 states?) and most routine applications conclude within 150 days. This time frame applies to all requests that are not collocations. e. Transition. For applications pending as of November 18, 2009, the FCC said the 90/150 day shot clocks apply, and start to run on November 18. i. And it created an optional 60 day shot clock for applications pending for more than 90/150 days as of November 18 if the applicant notifies municipality it is exercising this 60-day option. The 60 days runs from date of notice. f. Extensions. The FCC said the 90/150 day time periods can be tolled by mutual agreement. g. Completeness/Additional Information. 59 131 PA2015-094(Appeal to Planning Commission) `JA�ATtUNI7M,,,. !� 1C,i'IYS AT I.AW[� i. The FCC said that "When applications are incomplete as filed" the 90/150 timeframes do not include time for the applicant to respond to "a request for additional information". ii. The preceding applies "only if' the municipality notifies applicant within 30 days that application is incomplete, which is a problem because often deficiencies only become apparent later on. h. Gaps. i. The FCC recognized that the statute is ambiguous, and that the Third and Fourth Circuits have ruled that a gap must not be just in the complaining provider's service, but instead must be an area unserved by any provider. The First and Ninth Circuits have ruled the opposite way. ii. The Order says the First and Ninth Circuits are correct, and thus a municipality cannot deny an application solely because another provider serves the area. iii. The FCC says its interpretation of the statute on this point trumps that of the courts, because the courts did not state that the statute was "unambiguous", thus leaving room for agency interpretation. iv. Courts are already beginning to rely on the FCC Order as overturning the Third and Fourth Circuit decisions, see, e.g. Township of Lower Makefield, supra, at 6-7. 6. Fifth Circuit Decision, Supreme Court Appeal a. On January 23, 2012, the Fifth Circuit Court of Appeals affirmed the shot clocks - - but narrowly interpreted their scope and effect - - in response to an appeal by municipalities. City of Arlington v. FCC, _ F.3d _, 2012 WL 171473 (5th Cir, 2012) ("Arlington"). The court in upholding the shot clocks said generally: "We do not read the Declaratory Ruling as creating a scheme in which a state or local government's failure to meet the FCC's time frames constitutes a per se violation of§ 332(c)(7)(B)(ii). The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction." Arlington, slip opinion at 46-47. b. The lengthy (51 page slip opinion) decision addressed many procedural and substantive issues related to the appeals and shot clock order, such as whether certain parties had intervened too late (and hence issues raised only by them should be dismissed),whether the FCC should have proceeded by rulemaking instead of by a declaratory ruling, due process claims, and whether Chevron deference applies to an agency's determination of its 60 132 PA2015-094(Appeal to Planning Commission) VAR 1M., n��lonurr-s nrtwu jurisdiction, etc. On all of them it ruled in favor of the FCC, generally by applying existing Fifth Circuit precedent on the specific issues in question. i. But on October 5, 2012, the U.S. Supreme Court granted certiorari on the Chevron deference question, in part to resolve a conflict between the circuits on this point. ii. The precedent on a number of these issues (in addition to Chevron) is different in other circuits, so the result upholding the shot clocks may be different in other circuits, such as if providers go to court elsewhere to apply the shot clocks against a municipality in a specific instance. C. The Arlington court was at some pains to explain the limited effect of the presumption resulting from exceeding the shot clocks, and why this was the case: "We have held that [Federal] Rule [of Evidence] 301 adopts a "bursting- bubble" theory of presumption, under which'the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact.' 'If the party against whom the presumption operates produces evidence challenging the presumed fact, the presumption simply disappears from the case.' In other words, once a party introduces rebuttal evidence sufficient to support a finding contrary to the presumed fact, the presumption evaporates, and the evidence rebutting the presumption, and its inferences, must be judged against the competing evidence and its inferences to determine the ultimate question at issue.' The burden of persuasion with respect to the ultimate question at issue remains with the party on whom it originally rested. "In an action seeking to enforce § 332(c)(7)(B)(ii) against a state or local government, the ultimate burden of persuasion remains with the wireless facilities provider to demonstrate that the government unreasonably delayed action on an application. True, the wireless provider would likely be entitled to relief if it showed a state or local government's failure to comply with the time frames and the state or local government failed to introduce evidence demonstrating that its delay was reasonable despite its failure to comply. But, if the state or local government introduced evidence demonstrating that its delay was reasonable, a court would need to weigh that evidence against the length of the government's delay—as well as any other evidence of unreasonable delay that the wireless provider might submit—and determine whether the state or local government's actions were unreasonable under the circumstances." Arlington, slip opinion at 42-43, citations omitted, emphasis in the original. 61 133 PA2015-094(Appeal to Planning Commission) VARnreevs nr t,ar s d. The court made similar comments about requests for information occurring more than 30 days after an application is filed, and hence beyond the tolling of the shot clocks that occurs for requests within 30 days: "To the extent the cities argue that state and local governments often will not become aware of a need for more information with respect to an application imti.l after the FCC's 30-day tolling period has expired, we again emphasize the limited effect of the FCC's 90- and 150-day time frames. The time frames represent the FCC's interpretation of what would generally constitute an unreasonable delay under § 332(c)(7)(13)(ii), but a court will ultimately decide whether state or local government action is unreasonable in a particular case. Accordingly, if a state or local government fails to meet the applicable time frame because deficiencies in an application become apparent more than 30 days after the application was filed, the government would remain free to argue that it acted reasonably under the circumstances." Id. 44-45. e. The Fifth Circuit's opinion repeatedly notes the individualized nature of the inquiry which a court considering a shot clock case must make, and noted a wide range of factors which might be argued to justify a delay, such as "the applicant's own failure to submit requested information, . . . [a city's] acting diligently in its consideration of an application, that the necessity of complying with applicable state or local environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope." Id. 47. 7. Practical Issues a. Timing and Related. i. Municipalities and providers will need to keep these the shot clock deadlines in mind, and plan accordingly for the entire zoning process, keeping in mind delays due to factors outside the municipality's or provider's control, such as delays in responses to requests for information, responses from outside entities, and objections or information from third parties. ii. Also timing issues due to internal appeals (such as by neighbors or provider) to City Council from Zoning Commission, and those necessary to comply with "written decision" on."written record" rulings discussed above. Specifically an open issue occurs where an initial (e.g. Planning Cotmmission) decision can be appealed internally(e.g. to a Board of Zoning Appeals). In that case do the shot clocks apply just to Planning Commission decision or to the appeal as well? The answer is obviously important for computing time periods, avoiding violations of shot clocks. 62 134 PA2015-094(Appeal to Planning Commission) A7ARNUMu, nrmanen nr inw eon There are good arguments under the specific wording of the statute that shot clocks only apply to Planning Commission decision, not to appeal. But FCC has refused to rule on this point! Municipalities should address with applicant at start, and get agreement and extensions as needed. Note that the applicant is at risk here, because it has only 30 days to appeal any violation of shot clocks, so if the shot clocks only apply to the initial (Planning Commission) decision the applicant can easily violate the statute of limitations if it waits to file an appeal until after a decision from the appeal (Board of Zoning Appeals). Obtaining extensions so that the shot clocks clearly include the time necessary for the Board of Zoning Appeals to Act makes practical sense, because often whether there is an internal appeal (such as by neighbors) is beyond the control of either the municipality or the applicant. And often a Board of Zoning appeals has broader authority to grant a zoning request, e.g. by granting a variance, than the lower body (Planning Commission). iii. Will likely lead to cell tower zoning application requirements becoming more detailed. b. According to the cellular industries brief in the appeal of the FCC Orders, as of yearend 2010, only six cases had been filed by a cellular provider challenging a municipality based on the shot clock order, and most of these had been settled. See, for example, Maine RSA #1 d/b/a U.S. Cellular v. Town of Albion, Case No. 10-cv-00279- GZS (D. Maine 2010). 8. In April, 2011 the FCC issued a Notice of Inquiry on wireless siting and right of way matters which is likely a prelude to further rulemakings on wireless siting, with likely industry goals being, inter alia, no zoning approvals needed for collocated antennas, eliminating "zoning by variance" approvals for cell towers in residential zones, and reducing/eliminating the rent paid municipalities for cell tower leases. Comments were filed in July and reply comments in September, a rulemaking is possible that follows from the NOI. 9. Court decisions on the shot clock rule: a. Although involving unusual facts and (perhaps for that reason) not for publication New Cingular Wireless PCS v. Town of Stoddard (D. N.H., 2012), 2012 WL 523686, strongly suggests that where there is an internal administrative appeal available for zoning decisions (e.g., from a Planning Commission to a Board of Zoning Appeals or City Council) that the shot clock applies only to the municipality's initial decision, e.g. by the "Planning Commission", in part because the municipality "has no control whatsoever as to whether or not an appeal occurs" and "is heard by a different entity than that [within the municipality] which reached the initial decision." Id. page 5, footnote 5. It distinguished and applied the shot clocks to rehearings, which under the specific New Hampshire law in 63 135 PA2015-094(Appeal to Planning Commission) UARNUM,., .\TfORNktiSAT LAL\'®qp question "is part and parcel of a single review process before a single entity, culminating in a single decision". Id. page 5. b. See Bell Atlantic Mobile of Rochester v. Town of Irondequoit, _ F.Supp.2d _, 2012 WL 289963 (W.D.N.Y. 2012) the court found the Town's actions invoking environmental reviews to be a delaying tactic resulting in a violation of the shot clocks and issued an injunction requiring approval of the tower in question. Vl. Section 6409(a) of Middle Class Tax Relief Act--Modifications, Collocations: A. Introduction and Background: 1. In February, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 was enacted. Although commonly thought of as the legislation extending the payroll tax cut, it contained numerous unrelated provisions, one in particular being Section 6409(a), subsequently codified as 47 U.S.C. § 1455(a), ("Section 6409" or "the Section") which basically states that states and local govermnents 'shall approve" "modifications" of wireless facilities which do not "substantially change" their physical dimensions. 2. Although often thought of in terms of affecting collocations of additional wireless antennas on a tower, to the wireless industry it probably is as important in aiding the upgrading of their networks to provide more capacity and faster service, such as the upgrade to 4G service which is currently well under way for most providers. 3. The full text of Section 6409 is set forth at the end of this paper, and covers among other things aiding access to Federal Government property and buildings for wireless facilities, including wireless facilities owned by state and local governments. 4. The portion of interest for local purposes is Section 6409(a)(1) which states that "Notwithstanding section 704 of the Telecommunications Act.of 1996 (Public Law 104-104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." a. The term "eligible facilities request" is defined to mean "any request for modification of an existing wireless tower or base station that involves - - (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment." Section 6409(a)(2). 5. Section 6409 in many respects is the latest in a decades-long push by the wireless industry to try to achieve Federal preemption of local zoning. At minimum it reflects the tension that is often present in zoning between a desire (on the one hand) for growth, expansion and (here) the rapid spread of wireless broadband and Internet coverage, especially through devices like Androids and Whones and iPads, and (on the other hand) the values preserved by local zoning, including property values, aesthetics, safety from tower falls and the like. 64 13O PA2015-094(Appeal to Planning Commission) VARNUM,, ®ATfUItM1UYS AT LAN' 6. Like many new statutes, Section 6409 raises many legal and practical issues. This is particularly the case due to its operating at the intersection of Federal and state relations, thus raising Federalism related issues. Due to the lack of definition in the Section of a number of key terms, it allows arguments to be made for broad and expansive interpretations which Congress may or may not have intended. B. Constitutionality of Section 6409: 1. The Constitutionality of Section 6409 is questionable and will likely be challenged, basically for the same types of reasons discussed as to Section 704 in Section V.B of this paper, above. In general these are the limitations of Congress' power under the Commerce Clause of the Constitution; the Federalism protections of the Tenth Amendment (all powers not given Congress are reserved to the states and people); and cases striking down Federal statutes which "blur the lines of political accountability" by requiring local officials to take actions (and the blame) for which Federal officials in fact are responsible. a. See the detailed discussion of Constitutional principles in Section V.B. above. b. An article Section 6409(a) of the Middle Class Tax Relief Act is Unconstitutional is on the cell tower blog on our website (see link on cover page of this paper), and will appear in a forthcoming issue of Municipal Lawyer magazine. C. The more broadly (and invasively on local powers) that Section 6409 is interpreted, the greater the likelihood of a successful Constitutional challenge. (1) Courts are aware of this, and for that reason tend to interpret statutes narrowly so as to avoid Constitutional issues. d. Section 6409 is also questionable under the Supreme Court's 2012 narrowing of the Commerce Clause in its decision on the Patient Protection and Affordable Care Act, notably by striking Congress' attempt to use that clause to regulate "inactivity" (the failure to purchase health insurance). "People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures joined with the similar failures of others--can readily have a substantial effect on interstate commerce. Under the Government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned." National Federation of hidependent Business et al. v. Sebelius, 567 U.S. slip opinion at 23, opinion of Chief Justice Roberts) (2012). e. State and local governments will likely argue that Section 6409 falls within the preceding, because it compels activity (the approval of modifications of wireless 65 13� PA2015-094(Appeal to Planning Commission) UA.RNUK, Y ATfORNhYSA'1'1.4\Y 8i1�Y facilities) which might not otherwise occur, viz. "a State or local government may not deny, and shall approve" eligible facilities requests for modification. Providers will likely argue that as to zoning and regulatory practices, they are activities which are already occurring. 2. Until Constitutional issues are resolved municipalities might proceed in some instances by following Section 6409, but reserving all rights (such as to rescind or modify an approval, or require compliance with local law) if the statute is held unconstitutional. a. And perhaps giving the applicant to the option of proceeding under local law (without reference to Section 6409), without any reservation of rights by the municipality, although in such case the applicant may wish to reserve its rights under Section 6409 if it is denied. C. Types of State and Local Laws and Actions Affected: 1. The text of Section 6409 does not state what types of laws it affects. Possibilities which members of the wireless industry may argue (based upon arguments made in other types of cases to the courts and FCC)include: a. Zoning and land use (1) This is obvious, given practical realities and Section 6409's express reference to Section 704, which does affect local zoning. The Committee Report on this section of the Middle Class Tax Relief and Job Creation Act of 2012 does refer to zoning, stating that under current law (i.e., prior to passage of the Act) "State and local governments have right to apply zoning law procedures for requests to modify existing cell towers." (2) May be especially problematic for situations such as towers near wetlands, wildlife preserves, residential areas or other sensitive situations. b. Building and safety codes (electrical, structural, etc). (1) This is a concern for any modification, due to the safety issues involved. The concern is heightened because structural inspections of many towers being considered for collocations have shown that do not comply with applicable safety codes, such as the structural safety code ANSUTIA 222-G-2, even before the proposed collocation. C. Environmental and historic preservation (1) Although Section 6409 expressly preserves the FCC's role regarding the Federal Historic Preservation Act and National Environmental Policy Act, it does not contain any clauses expressly preserving comparable state or local laws, such as the strong environmental laws present in California and many other states. 66 Ise PA2015-094(Appeal to Planning Commission) jARItTUM,.. itlWYCY NYlURNLYS (2) Towers are sometimes challenged on such state law grounds, such as a 2010 Minnesota suit against a tower on the edge of (and visible from) the Boundary Waters Canoe Area Wilderness. 2. Leases for wireless antennas - - Industry members are likely to argue that Section 6409 requires states and municipalities to: a. Approve modifications to existing leases which providers have for cell tower antennas on state or local government property, such as by allowing an upgrade of existing equipment, or collocation by other providers, or b. Allow new wireless towers or antennas to be collocated on an existing government tower, such as a county tower with police, fire or public safety antennas. C. Note that due to the wording of the Section, industry may argue that it equally applies to modifications and collocations for cell towers on private property - - by requiring a state court to "approve" an eligible facilities request to modify applicable lease terms to allow modifications, collocations, new equipment, etc. d. Each of these types of possible claims would presumably be a violation of any existing lease, or otherwise over the objection of the unit of government or private party. (1) The preceding types of arguments are similar to arguments which cellular providers have made under Section 704(a) of the 1996 Act that municipalities are required to lease any property they own for a cellular antenna or tower (or comparable arguments under Section 253 of the 1996 Act). The courts have found these arguments unpersuasive as to a municipality acting in its proprietary capacity, as opposed to its regulatory or governmental capacity. See Omnipoint Communications v. Port Authority of New York and New Jersey, 1999 U. S. Dist. LEXIS 10534 at *44, th. 21, 1999 WL 494120 (2d Cir. 1999) (although the court ultimately found it unnecessary to decide the issue), and to a similar effect T-Mobile West v. Crow, 2009 WL 5128562 (D. AZ, 2009) holding inter alia that Sections 253 and 704 must be harmonized because they were adopted at the same time as part of the same statute, and holding that Section 253's prohibitions do not apply to state or local governments acting in their proprietary capacity: "A state or local government entity has the same right in its proprietary capacity as the property owner as does a private individual to refuse to agree to permit a wireless carrier to erect a cellular tower on its property." (slip opinion at 15, citing Sprint Spectrum PCS v. Mills, 283 F.3d 404, 421 (2nd Cir. 2002)). And see Building & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 231-32, 113 S.Ct- 1190, 122 L.Ed.2d 565 (1993) ("In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction."). 67 13J° PA2015-094(Appeal to Planning Commission) VPM. rtMiY3 Al'LAY (2) The "not deny, and shall approve" wording of Section 6409 suggests that it is intended for the regulatory actions of government, not as to their proprietary actions. (3) The preceding is reinforced by the fact that the "Takings Clause" of the Fifth Amendment protects states and cities as well as private parties against the Federal government taking their property without paying just compensation. See, e.g., United States v. 50 Acres of Land, 469 U.S. 24 (1984) (Federal government must pay City of Duncanville, Texas compensation based on market value of the city land which the Federal government took for a flood control project). Due to the impact on Federal finances, the Federal courts are reluctant to interpret a Federal statute in a manner which would require the Federal government to pay monies for condemnation or the like unless the statute unquestionably shows that Congress intended such condemnation and payment. Compare Laudgraf v USI Film Products, 114 S. Ct. 1483 at 1449-1500, 128 L. Ed 2d 229 (1994). D. Modifications and Services Covered by Section 6409 1. Many key elements of Section 6409 are not defined in the Section, or are not well defined, and will have to be worked out by the courts and FCC. Industry claims that many of these terms (1)have been defined in the past by the FCC, and (2) that these definitions are incorporated in the Section. Although there are past FCC definitions of some related terms or concepts, the definitions were always in different contexts for different purposes. Some of the key terms at issue under Section 6409 are as follows: 2. "Wireless tower or base station" a. The Section applies to requests to modify a "wireless tower or base station" (1) Does "wireless tower" correspond to the concept of"personal wireless facilities" and related concepts in Section 704? (2) Do they cover amateur radio facilities? (3) Do they apply even more broadly to many or most radio/TV facilities, given that by definition they are all "wireless"? Industry's arguments for use of definitions from the FCC's 2004 Nationwide Programmatic Agreement for Review of Effects on Historic Properties between the FCC, the National Conference of State Historic Preservation Officers and the Advisory Council on Historic Preservation ("2004 Historic Preservation Agreement") suggest that this is the case. (4) Does the term "tower" have its common meaning (e.g., monopole, lattice freestanding or guyed tower, which is a structure erected to hold radio antennas), to towers erected for other purposes (windmills, water towers, church towers), or does it extend more broadly to light standards, steeples or buildings (the 68 140 PA2015-094(Appeal to Planning Commission) JAItNUM ATfUPh2Y5 AT 1 AlV former Sears "Tower", for example). Industry argues prior FCC definitions apply, namely: (a) "Tower is any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities" from the 2001 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas between the FCC, the National Conference of State Historic Preservation Officers and the Advisory Council on Historic Preservation ("2001 Collocation Agreement"), or (b) Tower is "Any structure built for the sole or primary purpose of supporting Commission-licensed or authorized Antennas, including the on- site fencing, equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with that Tower but not installed as part of an Antenna as defined herein" from the 2004 Historic Preservation Agreement. (5) Does "base station" include a generator, and substantial fuel tank, with or without compliance with environmental and local noise laws? (a) Elements of a base station are included in the 2004 Historic Preservation Agreement's definition of "Tower" but not in the 2001 Collocation Agreement. (b) The FCC's rules on Personal Communications Service and Private Land Mobile Radio Services contain definitions of "base station" which industry groups contend apply here. But such definitions are vague (e.g., a base station is "A land station in the land mobile radio service", 47 CFR§ 20.7, to the same effect 47 CFR § 90.7),redundant of other portions of Section 6409 and created for other purposes such that they are likely of little assistance in interpreting Section 6409. (6) Are DAS facilities "base stations" or otherwise covered by Section 6409, as industry claims? 3. "Substantially change the physical dimensions" a. The Section requires approval of modifications which do not "substantially change the physical dimensions" of a tower or base station. b. Is the "substantiality" of the change determined purely physically (by the amount of the change in height, width and depth), or by the effects of the change (e.g., in visibility or impact on the environment)? _ c. What if the modification has material effects of other kinds - - such as in color, lighting, reflectancy, weight or wind loading? A new antenna array could have little change in physical dimensions but due to increased weight and surfaces exposed to the wind could have much greater wind loading problems. 69 141 PA20iS-094(Appeal to Planning Commission) � M jARNU " �A4'[p11N1°YS AT LAiV iVNIMI d. Or by effectively destroying the camouflaging of an existing, approved cell tower (for which camouflaging was required as part of the zoning process), such as by adding uncamouflaged white antennas immediately below the "branches" of a cell tower successfully camouflaged as a tree. Or with external antennas and black cables on the outside of a white flag pole antenna. e. Are changes measured individually, one at a time, or are they treasured cumulatively against the tower or facility as initially installed? (1) If measured individually, a tower or facility could greatly enlarge over time by a series of sequential changes in the so-called "Jack and the Beanstalk" scenario where a 50 foot tower goes to 55 feet, then to 60 feet, and so on, and ends up being 500 feet tall. f. For. non-conforming (grandfathered) uses, any change is "substantial' requiring local approval. Does the Section allow non-conforming uses,now inappropriate in at least their current physical form in an area, to expand (current law allows them to remain "as is", with changes requiring local approval). If so, is this Constitutional under decades of Federal decisions approving local zoning? g. The Section refers to changes in the plural - - "dimensions", suggesting that any change must be in more than one dimension. h. Industry argues that "substantial change" in physical dimensions largely has the meaning set forth in the 2001 Collocation Agreement, set forth in the footnote.7 4. "Collocation, Replacement" a. The "eligible facilities" qualifying under the Section include the 'collocation" and "replacement" of"new transmission equipment" r The 2001 Collocation Agreement defines "substantial increase" in the size of a tower as follows: 1) The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet,whichever is greater,except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or 2) The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved,not to exceed four,or more than one new equipment shelter;or 3) The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance,whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable;or 4) The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. 70 142 PA2015-094(Appeal to Planning Commission) VAR.NLTIvi,,. e�rnux±.rvs nr udr�w b. How will collocation be defined? Will it as industry argues have the same or similar definition as that under the FCC shot clock orders and programmatic agreements? (1) The shot clock orders adopt the definition in the 2001 Collocation Agreement that "Collocation means the mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes." (2) The definition in the 2004 Historic Preservation Agreement is somewhat different, namely that collocation means "the mounting or installation of an Antenna on an existing Tower, building, or structure for the purpose of transmitting radio frequency signals for telecommunications or broadcast purposes." The cell industry will argue that the phrase "building or structure" means that the Section covers collocations on buildings and structures, not just on towers. (3) And the cell industry will argue that collocation includes a new provider going on an existing tower or site, not just collocation of new antennas by a current provider. c. And similarly, how will "replacement"be defined? 5. DAS,Distributed Antenna Systems a. Industry argues that DAS systems are covered by the Section. b. This does not appear to be the case. Among other things, DAS involves multiple antennas connected to a common "transmitter", and thus either falls outside the Section, or any antenna change is "substantial' due its distance from the transmitter. E. Denial and Approval 1. The Section says that a state or local government "may not deny, and shall approve" a qualifying request to modify a wireless facility. Commentators have noted a range of possible interpretations of this language, discussed next. 2. No approval necessary - - That a provider does not even need to apply for approval for a qualifying modification. a. This appears is one of the positions taken by one of the principal industry trade groups, PCIA the Wireless Infrastructure Association, which states that Section 6409 "Preempts zoning review and/or conditional approvals of eligible facilities requests". PCIA Federal Siting Legislation Guidance, version 3. b. It is not supported by an extension of remarks in the Congressional Record PCIA cites, which only speaks of"preempting delays",not of substantive preemption. 71 143 PA2015-094(Appeal to Planning Commission) VmAR.I�UM'., ®x®nrrowvns ar i..anraw C. If PCIA's position were correct, the Section would abolish all local zoning or other approvals covered by the Section. Congress did not state this - - and had it so intended, Congress is fully capable of so stating. It did not do so here. There would be serious Constitutional questions if it had. 3. Apply, but only with qualifying information - - That a provider should apply, but only has to submit information showing that its' is a qualifying modification, and no other information. a. At minimum a municipality may require a provider to submit evidence that a proposed modification falls within Section 6409 and then review the proposal to see if in fact that is the case. Otherwise there is no review of Section 6409 claims and state and local laws would be gutted simply based on a provider's assertion. 4. Apply, but application has to be approved as submitted - - A provider has to apply for approval,but the application has to be approved as submitted, with no changes or conditions. a. This also appears to currently be one of the principal industry positions, with PCIA arguing that "conditional approvals of eligible facilities request can have the effect of denying such requests as a conditional approval is not an approval per se; therefore it is a denial and a violation of the Act." Id. Footnote vii and related text (emphasis supplied). PCIA also argues that eligible facilities can't be subject to "discretionary review processes that allow a State or local government to deny or condition an eligible facilities request". Id. b. However, this argument is based on zoning approvals having the effect of denying a request. The "having the effect" language - - although clearly present in Section 704 and 47 USC Section 2538 which similarly deal with state and local actions interfering with national telecommunications services - - is conspicuous by its absence from Section 6409 itself. 5. Apply, application can be changed or conditioned - - A provider has to apply for approval, the application has to be approved, but it can be changed or conditioned to comply or better comply with state and local law. a. hi other words, the application has to be approved, even if it would otherwise violate state or local law, but can be modified to better or fully comply with state and local law. b. This interpretation conforms to the text of Section 6409, where Congress only said that a request shall be "approve[d]". It did not state that it must be approved "as submitted" or "without modifications". 8A state or local government "shall not prohibit or have the effect of prohibiting the provision of personal wireless services". Section 704(a)(7)(B)(i)(H);47 USC 332 (c)(7)(B)(i)(1I). To the same effect, see 47 USC 253 (a) ("No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."). 72 144 PA2015-094(Appeal to Planning Commission) VARIMIiY3 A'[IdR i6P® C. The interpretation makes sense, because in the zoning context, even if(in an extreme case) a use or structure is not permitted in a certain area, it can be permitted, by variance, with the variance being conditioned to as to minimize adverse impacts. d. As to building and safety codes, in the unlikely event the Section applies to them, they generally only require compliance with technical or engineering related provisions (correction of structural defects, added bracing to accommodate increased loads). Again, there are severe Constitutional issues if the Section were to require approval of structures which do not comply with state and local safety codes. e. By most closely harmonizing the Section with state and local law, it reduces Constitutional problems,which is a typical concern in statutory construction. F. State Collocation Statutes Preempted? 1. Some states (e.g., Michigan, California) have collocation statutes, roughly similar to 6409(x). a. Providers may push for more such statutes 2. Are state collocation statutes preempted by Section 6409(a)? a. Good arguments for same, e.g. under "field preemption" (Federal statute preempts entire field,no state statutes allowed) b. Industry will argue to the contrary under narrower preemption doctrines (e.g., conflict preemption). 3. And see also Nixon v. Missouri, 541 U.S. 125 (no intent of Congress to free subordinate units of government from state restrictions) and related Federalism concerns (Feds improperly inhuding on state local relations). 4. Municipalities in affected states need to determine whether they should comply with both Section 6409(a) and state law, or only Section 6409(a). To avoid litigation, they may try to comply with both. G. Practical Considerations 1. The obvious impact of Section 6409 is on zoning proceedings to allow cell tower collocations or modifications. 2. Section 6409 is likely to have a significant effect on zoning proceedings to approve new cell towers, because zoning authorities will need to consider the impact, etc. of the proposed tower not only as initially proposed, but with likely changes due to possible modifications or collocations covered by the Section. In other words, municipalities in the zoning process for a new 73 145 PA2015-094(Appeal to Planning Commission) VARa, �ATT91Lul%5 Ai'i.A15'i9e� tower may have to consider that they are approving the tower not just as applied for, but as it may exist in the future with the modifications allowed by the Section. a. For example, the claimed impact of a tower in a residential area on property values or aesthetics may be much greater for a monopole with multiple antenna arrays, as opposed to one small set at the top. Thus, in the zoning proceeding a proposed new tower may need to be analyzed on the former(more intrusive)basis. b. This may especially be the case for camouflaged installations, where changes could reduce the camouflaging. 3. One result could be keeping the initial installation as small as possible, so that any changes are "substantial" and outside the Section - - height, base station, diameter of flag pole installation. 4. A different approach could be to plan for modifications and multiple antennas from the start- - conducting the zoning proceeding on that basis, including assuring that the tower is tall enough for multiple antennas, planning screening for multiple antennas, etc. 5. Possible industry challenges to local zoning under Section 6409 include: a. Challenges to zoning codes that treat collocations, modifications and new tower similarly. b. Challenges to zoning codes which for covered "modifications" require the submission of information in addition to "physical dimensions" or allow the consideration of other factors. C. Challenges to zoning codes limiting changes to towers which are non- conforming uses. 6. Municipalities under Section 704 can still require compliance with the FCC's RF emission rules. VII. EnvironmentaUHistoric Preservation Law Compliance: A. Environmental Laws: 1. Many environmental laws require studies or analysis of any Federal action potentially affecting the environment, or prohibit actions affecting certain categories of items (such as endangered species,bald eagles, and migratory birds). 2. There has been a striking lack of compliance by the FCC, PCS and conventional cellular companies with these laws, even though the FCC's PCS licensing program will lead to around 125,000 new towers, and each tower has to be individually licensed. 74 1�(o PA2015-094(Appeal to Planning Commission) t�AYTU �AR.I�TUM,1 I<YIiYS Al'LAN� 3. Among the applicable laws are: a. The National Environmental Policy Act of 1969 Pub. L. 91-190, 83 Stat. 852 (1969) ("NEPA11), which requires environmental impact statements for Federal actions potentially affecting the environment. (1) Note that NEPA generally applies to Federal actions affecting sites listed or eligible for listing in the National Register of Historic Places. (2) The FCC Wireless Facilities Sitings Issues web page provides some links and information on NEPA compliance, see http://www.fcc.gov/wtb/siting. b. Endangered Species Act, Pub.L. 93-205, 87 Stat. 884 (1969). C. Migratory Bird Treaty Act,40 Stat. 755 (1918). d. Bald Eagle Protection Act, 54 Stat. 250 (1940) and Golden Eagle Protection Act, Pub. L. 87-884, 76 Stat. 1246 (1962). 4. The FCC as a Federal agency, and the towers of PCS and conventional cellular companies (as Federal licensees), are subject to these statutes. 5. Items that generally trigger NEPA or the other acts are items such as a. Actions potentially having a significant effect on the environment, which includes impacts on.historic properties listed in or eligible to be listed in the National Register of Historic Places. b. Towers or other structures that may affect birds, their flyways and the like. There are well-documented instances of major bird kills from encounters with towers at night and in unusual weather conditions. Such a kill could have a major impact on an endangered or similar species. C. Many Federal programs, including major grants to municipalities, require review under the Endangered Species Act. 6. In implementing NEPA in the 1970's the FCC expressly recognized the potential environmental impact of towers on a. Bird kills b. Visual/scenic landscape blight C. Plus, construction related concerns. 75 :L47 PA2015-094(Appeal to Planning Commission) VARN[JM,,, dq®CA]TUPM1IiYi AT LAW Wfip 7. The FCC has since retreated from compliance with the analyses and other requirements of these laws. a. One of the few exceptions was the FCC vetoing a proposed cellular tower which would overlook the Gettysburg battlefield. It did so only after citizens in the area brought the tower and noncompliance with NEPA to the FCC's attention. b. In the spring of 2001, the Friends of the Earth and Forest Conservation Council filed petitions at the FCC in many pending cell tower cases to require the FCC to prepare an environmental impact statement and comply with NEPA, the Endangered Species Act and other environmental laws. See www.foresteonservation.org/programs/greenspacesinitiative/greenspaces.htm#tower. c. Among one of the cases relating to NEPA, specifically in the context of FCC rules for towers under NEPA and several of the bird related statutes cited above, challenging in part successfully FCC rules to protect migratory birds in the Gulf Coast region from the impact of new cellular, broadcast and similar towers. American Bird Conservancy v FCC, 516 F. 3d 1027 (D.C. Cir, 2008). 8. In an appropriate case municipalities may wish to require a PCS or conventional cellular provider (especially one proposing a tower for a sensitive area) to demonstrate compliance with the preceding laws, or seek court redress for noncompliance. B. National Historic Preservation Act: 1. Section 106 of the National Historic Preservation Act, codified at 16 U.S.C. §470f ("Section 106") requires all Federal agencies to take into account the effects of their actions on historic properties. 2. The Advisory Council on Historic Preservation has promulgated a detailed set of regulations regarding this process. See 36 CFR § 800.1 - 800.16 (2001).9 The regulations are summarized and available with their accompanying explanation on the website of the Advisory Council on Historic Preservation. See http://www.achp.gov. 3. The following is a brief general description of the historic preservation process which Federal agencies are supposed to follow: a. The responsible federal agency must first determine whether it has an "undertaking" that could "effect" any"historic property." 9The rules were originally adopted in 1999. They were challenged in court due to claimed constitutional defects in the manner of their adoption. In response, the Advisory Council on Historic Preservation suspended the 1999 rules,see 65 Federal Register 55,928, and went forward with a new rulemaking to correct the claimed constitutional defect. The rules were readopted on November 17,2000 and became effective January 11,2001. The cellular industry has sued to overturn the new rules. 76 PA2015-094(Appeal to Planning Commission) VARNUM,,, �AT'CURNkri AI'MW W0{NI (1) An "undertaking" is defined to include projects, activities, or programs that are funded, directly or indirectly, by federal agencies or those projects, activities or programs that require a federal permit, license, or approval. 36 CFR § 800.16(y). On cellular matters, due to there being an FCC license there is an undertaking and the FCC is the responsible agency. (2) A "historic property" is "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places." 36 CFR§ 800.16(1)(1). (3) The criteria for inclusion in the National Register of Historic Places are fairly broad, including association with events, activities or broad patterns of history (e.g.--site of a major union dispute, collection of typical workers housing) and association with historical figures. (4) "Effect" means "alteration of the characteristics of a historic property" eligible for inclusion in the National Register. 36 CFR§ 800.16(i). (5) "Adverse effects" are discussed at length in 36 CFR § 800.5. Of importance to cellular antennas they include the "introduction of visual . . . elements which diminish the integrity of the property's significant historic features," and changes to the "character of the property's use or of physical features within the property's setting that contribute to its historic significance," such as affecting the views or viewsheds associated with historic properties. b. A key point is that if the responsible federal agency determines that it has such an "undertaking," it must then identify and consult with the appropriate "consulting parties", normally the State Historic Preservation Officer ("SHPO") or (for Indian/Native Hawaiian lands) the Indian tribe/Tribal Historic Preservation Officer ("THPO"). 36 CFR § 800.2 (a) and (c). For a listing of all SHPO's by state, see the National Conference of State Historic Preservation Officers web site, www.sso.org.hcshpo/shpolist.htm. (1) With respect to cellular antennas, this means that the appropriate SHPO has to be consulted on each new cellular antenna. (2) For simplicity, the balance of this discussion focuses on SHPOs. Note that Indian tribes and lands are in certain respects unique. The regulations require the agency to deal with Indian tribes for matters which may affect tribal lands. Such tribes for Federal purposes are sovereign governments and may have concerns over impacts on archaeological resources or traditional cultural properties which are more spiritual than material in nature. Tribes are becoming increasingly knowledgeable and influential on Historic Preservation Act matters. C. Most important for municipalities, the regulations specify that "A representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party." 36 CFR § 77 11f J° PA2015-094(Appeal to Planning Commission) VARNUM �AI"tt]MYS AT LAW 800.2(c)(3) (emphasis supplied). In addition, the agency is required to "plan for involving the public in the process," including notifying the public, and "shall invite any local government" described in§ 800.2(c)(3) to participate. 36 CFR§800.3 (e) and (f). d. If the undertaking could affect any historic property, the agency must proceed to identify those historic properties in the undertaking's "area of potential effects." (1) The area of potential effects includes "the geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking." 36 CFR § 800.16(d). As noted above, this may include views and viewsheds. (2) At this point in the process, the agency reviews existing information, consults with the SHPO, seeks information from other knowledgeable parties, and conducts any studies, as needed. e. Next, the agency assesses the potential adverse effects on identified historic properties. This assessment is based on the Advisory Council on Historic Preservation regulations described above. See 36 CFR § 800.5(a)(2). For matters involving cellular antennas, adverse effects include the "introduction. of visual, atmospheric, or audible elements that diminish the integrity of the property's significant historical features." 36 CFR § 800.5(a)(2)(v). f. If the agency and the SHPO agree that there are no adverse effects, the agency proceeds with the undertaking and any conditions agreed upon with the SHPO. In order to resolve a dispute about how to manage any adverse effects, the agency may consult with a number of parties, including the SHPO, local governments, and the public. The Advisory Council on Historic Preservation may become involved at this point. This consultation usually results in an agreement among the parties called a Memorandum of Agreement, which is a legally binding document that outlines the agreed-upon mitigation measures. 4. According to historic preservation officials, the FCC has been notable for its general lack of compliance with Section 106 on cellular matters, including delegating the Section 106 review process to the cellular providers to act on behalf of the FCC. a. Such delegation is unusual, and was only approved by the Advisory Council on Historic Preservation by letter dated September 21, 2000, subject to the FCC remaining involved in the Section 106 process, such as if there is an adverse effect or there are objections from the public. 5. On December 26, 2000, the FCC requested public comment on an expedited basis on a "Draft Programmatic Agreement with Respect to Co-Locating Wireless Antennas on Existing Structures" between the FCC, Advisory Council on Historic Preservation and National Conference 78 1150 PA2015-094(Appeal to Planning Commission) VMRRplS AT IASV Y®® of State .Historic Preservation Officers. See FCC DA 00-2907 (December 26, 2000). The FCC, Advisory Council on Historic Preservation and National Conference of State Historic Preservation Officers signed a modified version of the agreement on March 16, 2001. See FCC DA 01-691 (March 16, 2001). In general the agreement as signed is more favorable to the cellular industry than the draft. The agreement states that it: a. Exempts from the Section 106 process co-locating additional cellular antennas on most existing or new cellular/radio towers, with some exceptions, such as allowing the public or others to challenge such exemptions. b. Exempts from the Section 106 process locating cellular antennas on buildings and structures other than towers, except for (1)--buildings that are more than 45 years old, (2)--buildings that are located in or within 250 feet of a historic district, (3)--buildings that have been designated as a landmark or are eligible for listing in the National Register of Historic Places, or (4)--cases where the public or others have filed a written challenge (meeting certain requirements)to the exemption. C. See CTIA v. FCC, 466 F.3d 105, (D.C. Cir, 2006) upholding the FCC's 2004 programmatic agreement regarding the application of the historic preservation process to cell towers against challenges that the construction of cell towers is not subject to the Historic Preservation Act and the agreements coverage of both properties listed in and eligible for listing in the National Register of Historic Places. C. Effect on Local Zoning: 1. Zoning laws take into consideration and promote (among other things) many of the same values as environmental laws and historic preservation laws. 2. In the zoning process municipalities may wish to require cellular providers to state whether an environmental impact statement has been prepared, whether state approval under Section 106 of the National Historic Preservation Act has been obtained, and if not, why not. In an appropriate case, the municipality may wish to participate in the environmental and National Historic Preservation Act proceedings. 3. In an appropriate case, the municipality may wish to defer zoning approval until the FCC and/or state have acted on environmental and National Historic Preservation Act matters. There is little point in the municipality acting if State or Federal authorities are going to impose conditions upon the cellular tower-zoning request that would affect local zoning (or deny approval for a cellular tower at the location for which zoning approval is sought). VIII. Leasing Municipal Property for Cellular Antennas,Towers A. Municipal Property: Municipal buildings (especially water towers) and lands are very attractive to cellular providers to lease for their antennas. 1. Height avoids need for tower. 79 151 PA2015-094(Appeal to Planning Commission) VAIRXNi1'S 2. Appropriate zoning already in place. 3. Are attractive to municipalities as well: a. Aids tower consolidation, avoids unnecessary intrusion on residential areas-if a tower has to be located in/near a residential area, better to put in the corner of a park or on a fire station than in the middle of a subdivision. b. Provides revenues. B. Not Required to Lease Municipal Property 1. Cellular providers sometimes argue that under § 704 (a) of the 1996 Act municipalities are required to lease any property they own for a cellular antenna or tower, or make comparable arguments under§253 of the 1996 Act. 2. These arguments are not correct. Among other things: a. § 704 (a) added § 332 (c) (7) to the Communications Act of 1934. Subsection (7) is titled "Preservation of Local Zoning Authority." Its text and the accompanying portion of the Conference Committee Report make clear that § 704 "preserves the authority of State and local governments over zoning and land use matters." Conference Committee Report at 208. It is not intended to provide a means for cellular providers to condemn municipal property. b. § 704 (c) does require government property to be made available for cellular providers--but only Federal property. It is titled, "Availability of Property" and requires the Federal government to adopt procedures making Federal property available to cellular providers. The General Services Administration did so in 1996. General Services Administration, "Government-Wide Procedures for Placing Commercial Antennas on Federal Properties." 61 Fed. Reg. No. 62, 14101 (March 29, 1996). C. The last sentence of' 704(c) requires the FCC to "provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for" cellular providers. Such language would not have been necessary if cellular providers already had access/condemnation authority under§ 704 (a). d. The Second Circuit has found the preceding types of arguments rejecting the cellular companies' position persuasive (although it ultimately found it unnecessary to decide the issue). Omnipoint Communications v. Port Authority of New York and New Jersey, 99 Civ. 0060 (BJS), 1999 U. S. Dist. LEXIS 10534 at *44, fn. 21, 1999 WL 494120 (2d Cir. 1999). e. To a similar effect is T-Mobile West v. Crow, 2009 WL 5128562 (D. AZ, 2009) holding inter alia that Sections 253 and 704 must be harmonized because they were 80 152 PA2015-094(Appeal to Planning Commission) KPtO VA�NUM,., II �Y lfti[YS AT L4W 1� adopted at the same time as part of the same statute, and holding that Section 253's prohibitions do not apply to state or local governments acting in their proprietary capacity: "A state or local government entity has the same right in its proprietary capacity as the property owner as does a private individual to refuse to agree to permit a wireless carrier to erect a cellular tower on its property." (slip opinion at 15, citing Sprint Spectrum PCS v. Mills, 283 F.3d 404, 421 (2nd Cir. 2002), C. Bankruptcy Related Issues 1. This is important due to failures (bankruptcy) to date of several cellular providers (Pocket, Nextwave), one satellite provider (Iridium), a wireless modem provider (Metricom) and several other providers. There is a possibility that other providers may fail, too because there are many competing providers and technologies proving telephone service and not all will survive. Specifically,in each area there may be: a. Conventional phone company. b. New landline phone companies. C. Phone service from cable company. d. Two (2) cellular companies. e. Five(5)to six (6)new PCS companies. f. One (1)to two (2) satellite phone companies. g. Internet phone companies, such as Skype and Vonage. 2. There are not enough telephone revenues to support all these providers, even if each home has two phone lines and a cell phone. 3. The question is not whether some companies will fail, but a. Which ones, and b. When. 4. To protect municipalities, leases should have bonds, security deposits, sufficient to cover several months rent and provide for removal of the antenna or tower. 5. Most important, the lease should be drafted to fit within the "commercial lease" safe harbor provisions of the Federal bankruptcy laws, See Section 365 of the Bankruptcy Code, 11 U.S.C. §365(d) (3) and (4). This ensures that if the provider files for bankruptcy that as an "executory contract" it either accepts the lease, and fully complies with it, including paying rent, or 81 153 PA2015-094(Appeal to Planning Commission) VMnn:itxs nr xnw i rejects the lease, such that the municipality can remove the antenna/tower or lease the space to another provider. a. If the lease does not fit within this provision there is a severe risk that so long as the provider is in bankruptcy (which can be years) that under the "automatic stay" provision of. the Bankruptcy Code it can continue to use the property without paying rent. The chances of receiving unpaid rent at the end of the bankruptcy are low-getting 100 on the dollar owed is a good result in such bankruptcy situations! b. And if the lease does not fall within this provision, there is a risk that if the tower falls into disrepair or is unsafe the municipality cannot require the provider to fix it or have it removed. 6. If part of the business arrangement is that the municipality puts police/fire radio antennas, tornado sirens, microwave dishes or the like on the cellular tower (usually for free), this should be by separate sub-lease from the provider (as landlord) to the municipality (as tenant). Reason--in terms of upholding leases tenants fare better in bankruptcy court than landlords: A provider in bankruptcy who is a leasing space on a tower to tenants gets no enhanced right to terminate its tenants' leases (see Section 365(h) of the Bankruptcy Code, 11 U.S.C. §365(h)), but MAY (see above) obtain an enhanced right to terminate leases where the provider is the tenant. 7. All compensation provisions of the lease should receive a bankruptcy law review. D. Major Lease Terms: Significant issues for cellular antenna and tower leases include:10 1. Base Compensation. a. Base amount per month b. Escalator-including a high cap (if any) on inflationary increases and frequent recomputation (e.g.--annually, not every three to five years). 2. Compensation from Collocation a. Clearly specify how much additional rent the municipality receives if an additional cellular provider places its antenna on the tower(collocates). b. To avoid non-cash barter "swaps" the lease should specify a minimum additional rental for each additional tower, or have comparable provisions (rental set on arms length basks). 3. Term of lease 10Thefirm has two model forms of leases available, drafted from a property owners' perspective, one where a municipality leases land for a cell tower, the other where it leases space on a building (or water tower) for a cellular antenna. Go to www.varnumlaw.com/lease or contact John Pestle or Barbara Allen at 616/336-6000 for details. 82 1154 PA2015-094(Appeal to Planning Commission) �ATSG ��IRNUM, ILYIiYS AT L4YV XCld�tl 4. Encourage Collocation a. Leases should have provisions encouraging other providers to place their antenna on the tower so as to minimize the number of towers. b. For example, the tower should be designed to accommodate multiple providers C. The lease terms and conditions should be such that later providers (who may compete with first provider) are encouraged to use the tower. 5. "Non Interference" clauses need to be carefully scrutinized and worded, so as not to restrict the landowners use or development of its property and buildings over the lengthy (often 50 year)term of the lease. 6. Leases for antennas should encourage placing multiple antennas on one water tower or building. Avoids tower proliferation. a. Such leases should be non-exclusive, so that other providers can place their antennas on the water tower or building as well. b. Leases should allow the relocation of existing antennas (at the expense of the new provider) so as to accommodate additional antennas. 7. Broad insurance and indemnity provisions. a. Municipality's general fund not placed at risk. b. Indemnity for all permits, other costs created/contributed to by cellular provider, including newly broadened FCC registration, lighting and painting requirements for radio towers, supporting structures. C. Provisions to update, increase insurance amounts over the likely long term of lease. 8. Transfer Provisions a. Lease should require municipal approval of any transfer or change in ultimate ownership of the lessee/cellular provider, at minimum a review of the financial qualifications of the transferee. b. This is especially the case where the cellular company wants the lease to state that it is automatically released from all liability and responsibility under the lease if it transfers the lease another entity. 83 155 PA2015-094(Appeal to Planning Commission) VARRN@Y4 c. Otherwise, there is a major risk that the cellular company can avoid payment, and other liabilities and responsibilities under the lease, simply by assigning the lease to a shell company or other entity with no assets. 9. Parental. guarantee--some providers structure their operations such that the antennas are owned by separate affiliates (such as partnerships or limited partnerships). It may be desirable to obtain a parental guarantee of the lease. 10. Early termination clause--if property is harmed or destroyed, or if the municipality needs the property for another use incompatible with the continued lease to the cellular provider. 84 ISO PA2015-094(Appeal to Planning Commission) UARNU ., 1BiYY,Ib AYTUI<M4Y5 AT LAW Section 704 of 1996 Act (a.) National Wireless telecommunications Siting Policy. Section 332 (c) (47 U.S.C. 332 (c)) is amended by adding at the end the following new paragraph [now partially codified at 47 U.S.C. § 332 (c) (7)] (7) Preservation of local zoning authority. (A) General Authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof: (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (Il) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause(iv) may petition the Commission for relief. (C) Definitions. For purposes of this paragraph; (i) the term "personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term "personal wireless service facilities" means facilities for the provision of personal wireless services; and (iii) the term "unlicensed wireless service" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)). 85 157 PA2015-094(Appeal to Planning Commission) VARNU m-ronrevs rer uw §704 (b) and (c) of the Act,which have not been codified, state: (b) Radio Frequency Emissions. Within 180 days after the enactment of this Act, the Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules regarding the environmental effects of radio frequency emissions. (c) Availability of Property. Within 180 days of the enactment of this Act, the President or his designee shall prescribe procedures by which Federal departments and agencies may make available on a fair,reasonable, and nondiscriminatory basis,property, rights-of-way, and easements under their control for the placement of new telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. These procedures may establish a presumption that requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted absent unavoidable direct conflict with the department or agency's mission, or the current or planned use of the property, rights-of-way, and easements in question. Reasonable fees may be charged to providers of such telecommunications services for use of property, rights-of-way, and easements. The Commission shall provide technical support to States to encourage them to make property,rights-of-way, and easements under their jurisdiction available for such purposes. Note: Much of the language helpful to municipalities on the interpretation and application of Section 704 appears in the relevant portion of the Conference Committee Report dealing with Section 704. For copies of this portion of the Conference Committee Report, contact John Pestle at 616-336-6000. 86 15�' PA2015-094(Appeal to Planning Commission) .'`JARNUM,.. 41mB0 AITORNCS3AT I,AW OdQ- Section 6409 of 2012 Act 47 U.S.C. § 1455(a) on Modifications The following are the two sections relating to wireless siting of the Middle Class Tax Relief and Job Creation Act of 2012,Public Law 112-96. They have been preliminarily codified at 47 U.S.C. §§ 1403 and 1455(a). TITLE VI—PUBLIC SAFETY COMMUNICATIONS AND ELECTROMAGNETIC SPECTRUM AUCTIONS SEC. 6003. [47 U.S.C. § 1403] ENFORCEMENT. (a) In General.—The [Federal Communications] Commission shall implement and enforce this title as if this title is a part of the Communications Act of 1934 (47 U.S.C. 151 et seq.). A violation of this title, or a regulation promulgated under this title, shall be considered to be a violation of the Communications Act of 1934, or a regulation promulgated under such Act, respectively. (b) Exceptions.— (1) Other Agencies.—Subsection (a) does not apply in the case of a provision of this title that is expressly required to be carried out by an agency(as defined in section 551 of title 5, United States Code) other than the Commission. (2) NTIA Regulations.—The Assistant Secretary [of Commerce for Communications and Information] may promulgate .such regulations as are necessary to implement and enforce any provision of this title that is expressly required to be carried out by the Assistant Secretary. SEC. 6409. [47 U.S.C. § 1455(a)] WIRELESS FACILITIES DEPLOYMENT. (a) Facility Modifications.— (1) In General.—Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104-104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. (2) Eligible Facilities Request.—For purposes of this subsection, the term "eligible facilities request' means any request for modification of an existing wireless tower or base station that involves— (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment. (3) Applicability of Environmental Laws.—Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969. (b)Federal Easements and Rights-of-Way.— (1) Grant.—If an executive agency, a State, a political subdivision or agency of a State, or a person, firm, or organization applies for the grant of an easement or right-of-way to, in, over, or on 87 PA2015-094(Appeal to Planning Commission) VAIRRtiL+Y9 AT SAl\'OkWM a building or other property owned by the Federal Government for the right to install, construct, and maintain wireless service antenna strictures and equipment and backhaul transmission equipment, . the executive agency having control of the building or other property may grant to the applicant, on behalf of the Federal Government, an easement or right-of-way to perform such installation, construction, and maintenance. (2) Application.—The Administrator of General Services shall develop a common form for applications for easements and rights-of-way under paragraph (1) for all executive agencies that shall be used by applicants with respect to the buildings or other property of each such agency. (3)Fee.— (A) In General.—Notwithstanding any other provision of law, the Administrator of General Services shall establish a fee for the grant of an easement or right-of-way pursuant to paragraph(1) that is based on direct cost recovery. (B) Exceptions.—The Administrator of General Services may establish exceptions to the fee amount required under subparagraph (A)— (i) in consideration of the public benefit provided by a grant of an easement or right-of-way; and (ii) in the interest of expanding wireless and broadband coverage. (4) Use of Fees Collected.—Any fee amounts collected by an executive agency pursuant to paragraph (3) may be trade available, as provided in appropriations Acts, to such agency to cover the costs of granting the easement or right-of-way. (c)Master Contracts for Wireless Facility Sitings.—. (1) In General.—Notwithstanding section 704 of the Telecommunications Act of 1996 or any other provision of law, and not later than 60 days after the date of the enactment of this Act, the Administrator of General Services shall— (A) develop 1 or more master contracts that shall govern the placement of wireless service antenna structures on buildings and other property owned by the Federal Government; and _ (B) in developing the master contract or contracts, standardize the treatment of the placement of wireless service antenna structures on building rooftops or facades, the placement of wireless service antenna equipment on rooftops or inside buildings, the technology used in connection with wireless service antenna structures or equipment placed on Federal buildings and other property, and any other key issues the Administrator of General Services considers appropriate. (2) Applicability.—The master contract or contracts developed by the Administrator of General Services under paragraph (1) shall apply to all publicly accessible buildings and other property owned by the Federal Government, unless the Administrator of General Services decides that issues with respect to the siting of a wireless service antenna structure on a specific building or other property warrant nonstandard treatment of such building or other property. (3) Application.—The Administrator of General Services shall develop a common forun or set of forms for wireless service antenna structure siting applications under this subsection for all executive agencies that shall be used by applicants with respect to the buildings and other property of each such agency. (d) Executive Agency Defined.—In this section, the term "executive agency" has the meaning given such term in section 102 of title 40, United States Code. 3881736_15.DOCX 88 100 Attachment No. PC 5 Applicant's Project Description and Justification 1�1 V� QP �P 2�� PA2015-094 G= CORPORATE OFFICE Mountainville.NY (800)829-6531 Practical Solutions,Exceptional Service 2081 Business Center Drive,Suite 219 (949)502-8555 FAX:(949)502-8557 Irvine,CA 92612 w .tectonicengineenng.com May 8, 2015 City of Newport Beach Planning Division I Community Development Department 100 Civic Center Drive Newport Beach, CA 92660 SUBJECT: Minor Use Permit Application for Approval to Install Wireless Communication Facility and Equipment within City of Newport Beach Right of Way-Bay Hill Search Ring Dear City of Newport Beach Staff: The project being submitted for consideration is the replacement of one existing light standard with a new wireless telecommunication facility stealth light standard. The light standard would be 35' feet high with a 30" radome and three antennas. The related support equipment would be placed within an adjacent controlled environmental underground vault as specified in the zoning drawings attached as part of this application. The project would be connected to exiting electrical and telephone connections needed to serve to the site. Contact: Ryan Birdseye, Agent c/o Tectonic Engineering and Surveying, Inc. 2081 Business Center Drive,Suite 219, Irvine CA 92612 Office: 949-502-8555 Cell: 760-712-2199 Location and Zoning: The light standard is an existing concrete SCE pole (3596) located on the east side of Spyglass Hill Drive approximately 100' north of El Capitan Drive. The sites are public right of way. Adjacent zoning is park and single family residential. Description of Proposed Project The project entails construction of an unmanned telecommunications facility for Verizon Wireless. The project would replace one existing SCE streetlight with one new stealth light standards with a 30" diameter radome and three antennas on top of the pole. The project would also construct a controlled environment T-71/2" X 17-11/2" X 16'-4 7/8" vault with manhole equipment cabinets needed to accommodate three remote radio heads, one electrical meter pedestal, twelve underground coax and one hybrid cable and connection to the existing electrical and telephone utilities as needed to service the site. PLANNING . ENGINEERING . CONSTRUCTION AND PROGRAM MANAGEMENT An Equal Opportunity Employer 163 PA2015-094 Practical Solutims,EMceptioml Service Noise Post construction, the infrastructure installed would not generate audible noise. The project would not have a generator or related elements that would be a long-term source of noise. Wireless Communication Facility Site Plan See attached zoning drawings. Landscape Plan The project would replace one existing light standard and install and underground equipment vaults. The vault size was minimized to avoid impacts to an adjacent tree during construction. Construction would incorporate methods recommended by the City's Arborist to minimize impacts to the root system during construction. Post construction, the sites would be visually consistent with existing conditions. No new landscaping is proposed. Site Photograph(s)/Visual Simulations Site photographs and visual simulations are provided as an attached to this application. Justification for Location/Co-location Verizon Wireless currently has a gap in coverage in the residential areas including and in proximity to the Spyglass Hill Drive and El Capitan Drive intersection. Providing effective and reliable service coverage to fill this gap is important because of the development in this area. This site is an integral part of Verizon s network of services and is designed to facilitate the locationally dependent nature of cell sites. The Bay Hill facility has been designed to provide coverage and adequate call capacity to Newport Beach in combination with existing facilities shown on the attached coverage maps. With the growing amount of data usage and volume of calls over the past year,it is important to provide the coverage and capacity required to ensure quality service to Newport Beach residents and visitors. There are three facilities in proximity to the Bay Hill site:San Joaquin Hills Park to west, Newport Ridge to the east and St. Laurent to the south. As designed, Verizon Wireless's network in the Newport Beach area provides a dominant signal adjacent to each existing wireless facility. This dominant signal diminishes as the customer moves from one facility to the next. Facilities within Verizon Wireless's network are spaced and located to provide the most efficient use of each dominant signal from adjacent facilities. Verizon Wireless's facilities in Newport Beach also provide capacity relief to the adjacent sites. As part of a dynamic network, adjacent sites will off-load capacity from each other at times of high call or high data usage. Together,with the Bay Hill site,Verizon Wireless customers will be able to travel from one area of Newport Beach to another,while maintaining seamless voice and data connectivity. 104 PA2015-094 Practical Solutims,EMceptioml Service It is understood that the City of Newport Beach has requested documentation regarding the site selection process. The Bay Hill search ring was established to expand wireless coverage within a geographic area determined by Verizon Wireless to have less than optimal service. Because the Bay Hill site is located within a residential area,development options are limited. As part of the site selection process,VZW evaluated options at the San Joaquin and Big Canyon Reservoir sites. These are blocked by hills which would adversely affect radio frequency (RF) transmission. San Miguel Park was evaluated;however, the proximity to residential properties to the east was a concern for VZW. For that reason,San Miguel Park was dropped from further consideration. A right of way site in the median of San Miguel Road was considered;however, it was dropped based on construction constraints and access for equipment maintenance. Options to locate the facility within Spyglass Hill Park and on the traffic signal pole located at the San Miguel Drive and Spyglass Hill Drive intersection were not supported by the City. Other locations for a standalone wireless facility were evaluated in the field but rejected because of topography,zoning and related factors. There are no co-location options with existing carriers in the search ring. Verizon elected to pursue a lease agreement with SCE to replace an existing light standard as the preferred option for achieving coverage objectives while minimizing the aesthetic impact on the neighboring Spyglass Hill Park and residential properties. FCC/Signal Standards See attached Electromagnetic Energy Study Map of Applicant's Existing Wireless Communications Facilities A map showing Verizon's existing wireless communication facilities is provided as an attachment. Coverage Assessment As noted above, there are no alternative locations in the search ring that would achieve the coverage objectives. The proposed site and design was selected to achieve coverage objectives and minimize aesthetic changes to the surrounding residential properties. Thank you in advance for your and consideration of our application. Please contact us with questions or requests for additional information Regards, Ryan Birdseye, Principal Birdseye Planning Group Agent to Tectonic Engineering and Surveying, Inc. 105 PA2015-094 \ / VerIZQnwireless Radio Frequency Exposure Pre-Installation FCC Compliance Assessment Site Specific Information Site Name Bay Hill Categorically Excluded? NO NE CORNER SPY GLASS HILL Street Address DRIVE AND EL CAPITAN DRIVE 1% Contributor To Areas YES City, State,Zip NE PORT BEACH, CA 92662 Requiring Mitigation? Multi-Licensee Facility NO Max %MPE Predictive 10.0% Structure Type Light Pole Max %MPE (Measured) N/A Broadcast Equipment YES Assessment Date N/A #of Access Points 1 Assessment Purpose I Site Audit Compliance Status IN COMPLIANCE X Worst-case RF power density levels are BELOW the MPE for General Population/Uncontrolled Environments in accessible areas. ❑ Worst-case RF power density levels are ABOVE the MPE for General Population/Uncontrolled Environments but BELOW the MPE for Occupational/Controlled environments. Worst-case RF power density levels are ABOVE the MPE for Occupational/Controlled Environments but BELOW 1 Ox the MPE for Occupational/Controlled environments. ❑ Worst-case RF power density levels are ABOVE IOx the MPE for Occupational/Controlled environments. Compliance A NOTICE • AGAUTION aWARNING Requirements .wo',.EW�`�_� «»�. • - • Ocg) Tn�szvewnwo-.iesa Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Additional Compliance Re uirements(s): Site Access Locations No Action Required. Alpha Sector Location No Action Required. Beta Sector Location No Action Required. Gamma Sector Location No Action Required. Consultant Legal Name Telnet Inc. Phone/Fax 301-840-7110 Address 7630 Standish Place, Rockville,MD 20855 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 100 PA2015-094 Contents 1. Executive Summary.........................................................................................................................................................3 2. Proposed Site Characteristics .....................-..................................................................................................................4 a. Structure........................... .......................4 b. Accessibility.................................................................................................................................................................4 c. Verizon Wireless Signage............................................................................................................................................4 d. Antenna Inventory.............................................................................................. _ .......5 3. Analysis ...........................................................................................................................................................................6 a. Predictive Model :All Transmitters ............................................................................................................................6 b. Predictive Model: Significant Contribution of Verizon Wireless.................................................................................7 4. Conclusion.....................................................................................................................................................................10 a. Conclusion Narrative.................................................................................................................................................10 b. Compliance Requirements........................................................................................................................................11 Signage/Barrier Diagram...................................................................................................................................................11 Signage/Barrier Installation Detail....................................................................................................................................12 5. Appendix C: RF Consultant Certifications .....................................................................................................................13 a. Preparer Certification................................................................................................................................................13 b. Reviewer Certification...............................................................................................................................................13 6. Appendix D: Reference Information.............................................................................................................................14 a. FCC Rules& Regulations...........................................................................................................................................14 b. Occupational Safety and Health Administration (OSHA) Requirements..................................................................14 c. RF Signage.................................................................................................................................................................15 d. Barriers......................................................................................................................................................................15 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 167 PA2015-094 1. Executive Summary Verizon Wireless has contracted with Telnet Inc. , an independent Radio Frequency consulting firm,to conduct a Radio Frequency Exposure (RFE)Compliance Pre-Installation Assessment of the Bay Hill cell site. The following report contains a detailed summary of the Radio Frequency environment as it relates to Federal Communications Commission (FCC)and Occupational Safety&Health Administration(OSHA)Rules and Regulations for all individuals. The Verizon Wireless antenna data was provided by: Name Emanuel Higgins Title Assistant Project Manager Date 4/9/2015 Region CA This post-installation compliance assessment and report has been prepared and reviewed by: Preparer Reviewer Name Steve Fruit Keihan Farhadian Title RF Engineer RF Engineer Date 04/14/2015 04/14/2015 This report utilizes the following for predictive modeling of the ambient RF environment: MPE Modeling Program: Roofview 4.15 Required Modeling Assumptions: 100% Duty Cycle and Maximum Total Power Output. Additional Modeling Assumptions: General Model Assumptions In this report, it is assumed that all antennas are operating at full power at all times. Software modeling was performed for all transmitting antennas located on the site. Telnet, Inc. has further assumed a 100% duty cycle and maximum radiated power. The site has been modeled with these assumptions to show the maximum RF energy density. Telnet Inc. believes this to be a worst case analysis, based on best available data. If at any time power density measurements were to be made, Telnet Inc. believes the real time measurements would indicate levels below those shown in this report. By modeling in this way, we have conservatively shown exclusion areas (areas not to be entered without a personal RF monitor, carriers reducing power or performing real time measurements to show real time exposure levels). Use of Generic Antennas For the purposes of this report, the use of 'Generic' as an antenna model, or 'Unknown' for a wireless carrier, means that the information about the carrier, their FCC license and/ or antenna information was not provided and could not be obtained while on site. In the event of unknown information, Telnet will use our industry specific knowledge of equipment, antenna models and transmit power to model the site. If more specific information can be obtained for the unknown measurement criteria, remodeling of the site is recommended. If no information is available regarding the transmitting service associated with an unidentified antenna, using the antenna manufacturer's published data regarding the antenna's physical characteristics makes more conservative assumptions Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 102 PA2015-094 2. Proposed Site Characteristics a. Structure Physical Description Light Pole Site Latitude (NAD 83) 33.612556 Site Longitude (NAD 83) -117.847722 Site Elevation(AMSL) N/A Structure Height(AOL) 33' Overall Structure Height 35' b. Accessibility Open Area. c. Verizon Wireless Signage ®NOTICE® • QCAUTION .n�.� a�;��a�e�.e�es, Existinsr a es SiEnase aoo -0� Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha 111#1 ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] 1-11#1 ❑ [#] ❑ [#] ❑ [#] ❑ Existing Signage Adheres to VZW Signage& Demarcation Policy? N/A Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 1O9 PA2015-094 d. Antenna Inventory t TX Freq ERP Azimuth X y $ x ID Operator Type Model Q 3 w r (MHz) (Watts) (deg.) E -0 0 ba a mo MW V (ft) (ft) C9 N Q m N 1 LTE Panel 746 1443 SBNHH-1D65A 90 4.6 66 103 100 29 0 1 PCS LTE Panel 1900 4562 SBNHH-1D65A 90 4.6 64 103 100 29 0 1 AWS LTE Panel 2100 4668 SBNHH-1D65A 90 4.6 62 103 100 29 0 2 LTE Panel 746 1443 SBNHH-1D65A 210 4.6 66 99 97 29 0 2 PCS LTE Panel 1900 4562 SBNHH-1D65A 210 4.6 64 99 97 29 0 2 AWS LTE Panel 2100 4668 SBNHH-1D65A 210 4.6 62 99 97 29 0 3 LTE Panel 746 1443 SBNHH-1D65A 330 4.6 66 99 103 29 0 3 PCS LTE Panel 1900 4562 SBNHH-1D65A 1 330 4.6 64 99 103 29 0 3 AWS LTE Panel 2100 4668 SBNHH-1D65A 1 330 4.6 62 99 103 29 0 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 170 PA2015-094 3. Analysis a. Predictive Model: All Transmitters at Ground Level o i 0 N v W 200 ft Max Verizon Simulation Level 10.0% -+-33 ftp e Exterior Wall Rooftop Object CARRIER RF careen ---- VERIZON METRO PCS fable Tray ANTENNA: Barrier Area Anchor PWW Ea TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-893-5638/fax:301-840-0162;Web:www.Telnet-I nacom Color % Occupational MPE 0 to 20 20 to 100 Greater Than 100 _j Greater Than 1000 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 21 PA2015-094 b. Predictive Model: Significant Contribution of Verizon Wireless at Ground Level Ad SWI 3 x 0 0 N 2 200 ft Max Verizon Simulation Level 10.0% -+-33 ft--+- a Exterior Wall Rooftop Object CARRIER RF Screen aaaaaa� VERIZON METRO PCS Cable Tray ANTENNA: Barrier Area Anchor Point O TELNET,INC., 7630 Standish Place,Rockville,M D 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Te1net-0nc.com Color % Occupational MPE 0 to l ® > 1% Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 272 PA2015-094 c. Predictive Model: All Transmitters at Light Level I 3 O 1 O N _ 3 200 ft Max Verizon Simulation Level 1795.5% +33 ft--+- F Exterior Wall Rooftop Object CARRIER RF Screen ——— VERIZONSPgINTMETRO PCS ANTENNA: Cable Tray Barrier Area Anchor Point TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www+Teinet-Inc.com Color % Occupational MPE 0to20 ® 20 to 100 Greater Than 100 Greater Than 1000 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 1 ;r PA2015-094 d. Predictive Model: Significant Contribution of Verizon Wireless at Light Level AdIr N 3 O O N 2 200 ft Max Verizon Simulation Level 1795.5% -4-33 ftee—jee a Exterior Wall Rooftop Object CARRIER A RF Screen ---- ANTENNA: VERIZON METRO PCS Cable Tray Barrier Area Anchor Point ❑e TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-8400162;Web:www.Teinet-inc.com Color % Occupational MPE 0 to 1 > 1% Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 1,74 PA2015-094 4. Conclusion a. Conclusion Narrative Description of MPE-Limit Exceeding Areas: (Ground level) VZW Alpha sector is not exceeding 20%Occupational population limits VZW Beta sector is not exceeding 20%Occupational population limits VZW Gamma sector is not exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Ground level) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding I%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Description of MPE-Limit Exceeding Areas: (Light level) VZW Alpha sector is exceeding 20%Occupational population limits VZW Beta sector is exceeding 20% Occupational population limits VZW Gamma sector is exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Light level) VZW Alpha sector is exceeding I% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 2715 PA2015-094 b. Compliance Requirements Signage/Barrier Diagram Sector C Sector A 3 a w 0 A 1 N ha 2 Sector B 200 ft X33 ft--+-- MEN— Exterior tpExterior Wall Rooftop Object CARRIER RE screen —-— SPRINT AT& 't ' CRICKET UNKNOWN ANTENNA: Cable Tray Barrier Area Anchor Point O TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inc.com Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 170 PA2015-094 Compliance ®NOTICE Requirements ( QCAu7roN �<< '�) a•a Thu• .mow,..,. ....NN Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Signage/Barrier Installation Detail Site Access Locations No action required. Alpha Sector Location No action required. Beta Sector Location No action required. Gamma Sector Location No action required. Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 177 PA2015-094 5. Appendix C: RF Consultant Certifications a. Preparer Certification 1, Steve Fruit,the preparer of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage &Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. stege qua b. Reviewer Certification 1,Keihan Farhadian,the reviewer and approved of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions (FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage&Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. Ke uwvFCwha&anv Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 172 PA2015-094 6. Appendix D: Reference Information a. FCC Rules& Regulations The Federal Communications Commission(FCC)has established safety guidelines relating to RF exposure from cell sites.The FCC developed those standards,known as Maximum Permissible Exposure(MPE)limits,in consultation with numerous other federal agencies,including the Environmental Protection Agency,the Food and Drug Administration,and the Occupational Safety and Health Administration. The standards were developed by expert scientists and engineers after extensive reviews of the scientific literature related to RF biological effects. The FCC explains that its standards"incorporate prudent margins of safety." The following represents explanations of the most applicable information: Two Classifications for Exposure Limits Occupational—Applies to situations in which persons General Population—Applies to situations in which are"exposed as a consequence of their employment' persons are"exposed as a consequence of their and are`fully aware of the potential for exposure and employment may not be madefulli,aware of the can exercise control over their exposure". potential for exposure or cannot exercise control over their exposure". Generally speaking,those without significant and documented RF Safety&Awareness training would be in the General Population classification. Environment Classification Controlled —Applies to environments that are restricted Uncontrolled—Applies to environments that are or"controlled"in order to prevent access from members unrestricted or"uncontrolled"that allow access from of the General Population classification. members of the General Population classification. Limits or Occu adonal/Controlled Exposure Frequency Power Density Averaging Time Range (S) E 2, H', or S MHz) (MW/CM2) (minutes) 300-1500 f/300 6 1500-100,000 5 6 Limits or General Population/Uncontrolled Exposure Frequency Power Density Averaging Time Range (S) JE12, IH12,or S (MHz) (mW/cm2) (minutes) 300-1500 f/l500 30 1500-100,000 1 30 f=frequency in MHz Significant Contribution to the RF Environment Any carrier contributing an aggregate MPE percentage of 5 or more(to the applicable RF Environment Classification) is defined as a significant contributor. This means that if any area is determined to be out of compliance with FCC rules, all significant contributors are jointly responsible for correcting any deficiencies. b. Occupational Safety and Health Administration(OSHA)Requirements A formal adopter of FCC Standards,OSHA stipulates that those in the Occupational classification must complete training in the following: RF Safety,RF Awareness, and Utilization of Personal Protective Equipment. OSHA also provides options for Hazard Prevention and Control: Hazard Prevention Control • Utilization of good equipment • Employ Lockout/Tag out • Enact control of hazard areas • Utilize personal alarms&protective clothing • Limit exposures • Prevent access to hazardous locations • Employ medical surveillance and accident • Develop or operate an administrative control response program Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 2J PA2015-094 e. RF Signage Areas or portions of any transmitter site may be susceptible to high power densities that could cause personnel exposures in excess of the FCC guidelines. These areas must be demarcated by conspicuously posted signage that identifies the potential exposure. Signage MUST be viewable regardless of the viewer's position. GUIDELINES NOTICE CAUTION WARNING Used anytime hazard signage is Used to distinguish the Identifies RF controlled Denotes the boundary of employed to achieve FCC compliance. boundary between the areas where RF areas with RF levels This sign will inform visitors of the General exposure can exceed the substantially above the basic precautions to follow when Population/Uncontrolled Occupational/Controlled FCC limits, normally working around radiofrequency and the MPE but below 10 x the defined as those greater equipment. Occupational/Controlled Occupational/Controlled than ten(10)times the areas. The limits MPE. Occupational/Controlled associated with this MPE. notification must be less than the Occupational/Controlled MPE. i ® NOTICE ® QCAUTION -Awl NG GUIDELINESFOR WORKING IN RADIOFREQUENCY ENVIRONMENTS P wess bay"'tltllwaeleNRao Wwe IEMQ ISM. ®NRwaelel emarbglM¢¢tte mml Geallvrkat ��•�� Ohryell poNwl¢pa. ®AwmeaY .. . ..em . . Av) anmenn mtlfy wnerseMaimEkepgapik ®Mairdain"i .3Fwla®ra—h—sO.rder— YFa4ae 8,d wa Rola 11ne Fs,Poem: ®NMabpinfiwM1daKmao Nle'PUIm� YemeaemeFCC Rale Fraeawms-edea,Xi-. RJb!,plume FWIeaTienile ®14e0aINe1PFnMlpnwMleNOatYg lmrerllvxeA 0—I Pwer exe intt FCCNulu niim gRoanael M®ror �nlano ®Nwe+WaMe"areaitlenwYbts"19asarYg mrnelocemlon, aeinpaRvw®' "ewe m la ®WMOW+Ie M¢e sllbna�mr¢Nqulpmad rtcrn. "'^'"•n• twOr~.M'u wu�m� W��ram�.�r..e�'.w�.�v INFORMATION SIGN • • Information signs are used as a means to provide contact information for any questions or ""naY`.��.si "IeS concerns. They will include specific cell site identification information and the Verizon Wireless — Network Operations Center phone number. d. Barriers A barrier is any physical demarcation employed as a preventative and/or notification measure that one is entering into an area with RF power density levels greater than the General Population/Uncontrolled limit. Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 18O Without NTEATERS 9� BISON ZO 11 BIG CYN BE 0UCI 11 CfE�VPORT BAY ■ w SANTA BARBAR NEWPORT CTR NJ p BAY HILL NEWPORT RIDGE ■ BIG ■ SJ HILLS PARK ALBOA ISLAND G7 0 -1_ NEWPORTER TB LTE RSRP 7CL 4+° To Or: RSRP(dBm) >'-75 IN al ST LAUREN >.-65 N . >--95 ON FOOT IRVINE COASIL Y >--105 MARGNAL g1 Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by Written agreement. i VerIZOnwireless NTEATERS BISON ZO BIG CVN TBAV RE C 1 F ' ■ SANTABARBAR NEWPORTCTR RVOIH ■ BAY HILL NEWPORT RIDGE rBIG SJ HILLS PAR 3ALBOA ISLAND ke O Efl �E7J LTE RSRP 'fie 7CL Cir: RSRP(dBm) .� >=-75 INBUIL STIAUREN >=-85 INCAR ■ >=-95 ON FOOT ' >=-10SMARGINAL FRANE COAS f2 Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. 2 B . y Hill - Coverage ANTEATERS R of BISON a 4 BIG CV TA RESERV� O „UCI' ORT BAY Y a\a m p 1 a �1 '(NEWPORT.S A BARBARA CTR ■ CC a NEWPORT RIDGE �yp,T�P� ' � BAV HILL 1 p P SJ HILLS PARK BALBOAISLANO f tfk y+ 0 NE DATER �W SI{fsr�7r ■ RSRP 7CL VE{i Of: RSRP(d6m) i IN >=-75 INbUILDINC G ST 1 >=-85 IN CAR E >--95 ON FOOT IRVINE COAST MARGINAL W Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. 3 V� QP �P 2g� Attachment No. PC 6 Photographic Simulations and Project Plans 125 V� QP �P 2g� PA2015-024 Attachment No. PC 6 - Project Plans LOS ANGELES SMSA LIMITED PARTNERSHIP venLonwireless d/ b/ a 15505 SAND CANYON AVENUE BUILDING "D" 1ST FLOOR IRVINE, CA 92618 Practical Solutions, Exceptional Service TECTONIC Engineering Consultants P.C. 2081 Business Center Drive, Suite 219 Irvine, CA 92612 _ ■ Phone: (949) 502-8555 (800) 829-6531 www.tectonicengineering.com PROJECT APPROVALS ve ri 0 nWer APPROVED BY: INITIALS DATE e ess LANDLORD ZONING VZW SITE ACQ. VZW RF VZW INTERCONNECT VZW UTIL COORD. VZW CONST. MGR. SITE NAME VZW PROJ. MGR. WORK ORDER NUMBER DRAWN BY 7288.23 TJB NO. DATE ISSUE BAY HILL ROW 0 03/11/15 FOR COMMENT 1 03/25/15 UPDATED VAULT LOCATION 2 04/01/15 FOR ZONING ADDRESS 3 05/01/15 UPDATED CEMH SIZE 4 7/27/15 PER CITY COMMENTS E /S SPY GLASS HILL DR, APPROXIMATELY 1007 N /O EL CAPITAN DR NEWPORT BEACH , CA 92662 N VICINITY MAP SITE INFORMATION SHEET INDEX CODE COMPLIANCE �Ye.,� Mea P1 7 rl o� 1oCRZ PROJECT NUMBER: 20141105921 ALL WORK AND MATERIALS SHALL BE PERFORMED AND INSTALLED IN ACCORDANCE NO. NO DATE 3 a Sit J LOCATION CODE: 306160 SOT. DESCRIPTION REV REVISION WITH THE CURRENT EDITIONS OF THE CODES AS ADOPTED BY THE LOCAL GOVERNING Exp.L 30 17 AUTHORITIES. NOTHING IN THESE PLANS IS TO BE CONSTRUED TO PERMIT WORK NOT � Saab° �\pJ c SITE NAME: BAY HILL ROW T-1 TITLE SHEET 4 7/27/15 CONFORMING TO THE LOCAL CODES. l9lF CIVI1 SITE ADDRESS: E/S SPY GLASS HILL DR, �FCA1�F A Kai �a 9 0 APPROXIMATELY 100' N/0 EL CAPITAN DR LS-1 SITE SURVEY 1 3/17/15 °�i ¢ °�' MUNICIPALITY: CITY OF NEWPORT BEACH ` y PROJECT DESCRIPTION 7/27/15 ryP/SO!) o 1' y Z-1 SITE PLAN 4 7/27/15 COUNTY: ORANGE A� .91 �. 0 9c Z-2 ELEVATIONS 4 7/27/15 Z-3 EQUIPMENT DETAILS 4 7/27/15 PROJECT DESCRIPTION ZONING DATA Z-4 CONTROLLED ENVIRONMENTAL MANHOLE DETAILS 4 7/27/15 0 9 (D COPIES OF THIS DOCUMENT WITHOUT A FACSIMILE OF J P' m Z-5 VENT DETAILS 4 7/27/15 THIS IS AN UNMANNED WIRELESS TELECOMMUNICATIONS FACILITY FOR VERIZON THE SIGNATURE AND AN ORIGINAL EMBOSSED SEAL OR ZONING DESIGNATION: N/A WIRELESS CONSISTING OF: ORIGINAL STAMP IN BLUE OR RED INK OF THE 5a° SITE O EXISTING SITE USE: ROW LIGHT POLE REPLACE (1) EXISTING STREETLIGHT WITH (1) NEW STEALTH LIGHT STANDARD WITH 30" PROFESSIONAL ENGINEER, ARCHITECT OR LAND e s # DIAMETER RADOME WITH (3) PANEL ANTENNAS AND (1) GPS ANTENNA ON TOP OF SURVEYOR SHALL NOT BE CONSIDERED VALID COPIES. ?� y PROPOSED SITE USE: TELECOMMUNICATIONS FACILITY POLE, VERIZON WIRELESS CONTRACTOR TO PLACE (1) 7"-6"X17'-6"X19'-8.875" (D) 0 2 Vacr v (CEMH #616-12RJM-40) CONTROLLED ENVIRONMENT MANHOLE WITH 40" RISER, (1) ELECTRIC METER PEDESTAL, (18) UNDERGROUND COAX AND CONNECTION TO THE o °' _ ; £ ^�' c CONSTRUCTION DATA EXISTING ELECTRICAL AND TELEPHONE UTILITIES AS REQUIRED TO SERVICE THE SITE. ORIGINAL SIZE IN INCHES yo+ o c PROPOSED EQUIPMENT LEASE AREA: 178.7 SQ. FT. 0 �"o a ¢ ° CJ SITE INFORMATION C4 Q PROPOSED STRUCTURE HEIGHT: 35'-0" °°,0 FSC 40 San OCCUPANCY CLASSIFICATION: U BAY HILL ROW TYPE OF CONSTRUCTION: TYPE V—B A " PN: 2141105921 w �� THIS SET OF PLANS SHALL NOT BE UTILIZED AS CONSTRUCTION DOCUMENTS UNTIL ALL ITEMS Pacific View Memorial c,`ay d "o o d Q° OF CONCERN HAVE BEEN ADDRESSED AND EACH OF THE DRAWINGS HAS BEEN REVISED AND LC: 306160 Park and Mortuary yQ� o 36 ° 0r o ISSUED "FOR CONSTRUCTION". a SITE ADDRESS SPY GLASS HILL DRIVE DIRECTIONS PROJECT TEAM INSPECTIONS 8c APPROVALS PROPRIETARY INFORMATION NOT FOR USE OR DISCLOSURE OUTSIDE VERIZON WIRELESS CITY OF NEWPORT B EAC H EXCEPT UNDER WRITTEN AGREEMENT. PROPERTY OWNER ENGINEER ORANGE COUNTY FROM VERIZON IRVINE OFFICE CA 92662 CITY OF NEWPORT BEACH TECTONIC ENGINEERING CONSULTANTS P.0 D O N 0 T SCALE DRAWINGS MERGE ONTO I-405 NORTH FOR 2.61 MILES, TAKE THE CULVER DR EXIT. TURN LEFT ATTIC: JIM AUGER 2081 BUSINESS CENTER DRIVE ONTO CULVER DR, FOLLOW FOR 2.81 MILES. CONTINUE ONTO BONITA CANYON DRIVE, 100 CIVIC CENTER DR IRVINE, CA 92612 SHEET TITLE FOLLOW FOR 1.5f MILES. TURN LEFT ONTO PRAIRIE RD, TURN RIGHT ONTO FORD RD, NEWPORT BEACH, CA 92660 (949) 502-8555 TURN LEFT ONTO SAN MIGUEL DRIVE. TURN LEFT ONTO SPY CLASS HILL RD AND PHONE: (949) 718-3477 THESE DRAWINGS ARE FORMATTED FOR 22"x34" FULL SIZE AND 11"x17" HALF SIZE. TI TLE FOLLOW FOR 0.71 MILES, SITE WILL BE ON LEFT. SITE ACQUISITION ZONING OTHER SIZED VERSIONS ARE NOT PRINTED TO THE SCALE SHOWN. CONTRACTOR APPLICANT / SHALL VERIFY ALL PLANS, EXISTING DIMENSIONS & CONDITIONS ON THE JOB SITE & SHALL IMMEDIATELY NOTIFY THE ENGINEER IN WRITING OF ANY DISCREPANCIES BEFORE SHEET VERIZON WIRELESS SITE ACQ: PROCEEDING WITH THE WORK OR BE RESPONSIBLE FOR SAME. 15505 SAND CANYON AVE. TECTONIC ENGINEERING CONSULTANTS P.C. BUILDING "D", tat FLOOR 2081 BUSINESS CENTER DRIVE IRVINE, CA 92618 IRVINE, CA 92612 CONTACT: PROPERTY MANAGEMENT (949) 502-8855 PHONE: (907) 286-7000 SHEET NUMBER ZONING: SURVEYOR BIRDSEYE PLANNING GROUP, LLC AMBIT CONSULTING (760) 712-2199 HUNTINGTON BEACH, CA 92648 (480) 659-4072 tC� PA2015-024 Attachment No. PC 6 - Project Plans r 562.4 �± p� TREE i LE6aEIVD0STREET LIGHT VICINITY MAP � CMU CONCRETE MASONRY UNIT N. T.S. CONC EDGE OF CONCRETE � FIRE HYDRANT s� PROJECT AREA ' 523.1 ' S4. R I / FC FACE OF CURB /W D TREE POSITION OF V rI�nWireIeSS m 1 FC TREE 1 � GEODETIC COORDINATES 0 4 LP LIGHT POLE ® f(CAP/T9��R N 30 RDE OELEVATION /W RIGHT OF WAY TOE TOE OF SLOPE T� WATER CONTROL VALVE e ' 15505 SAND CANYON AVENUE TOP TOP OF SLOPE @ GAS VALVE WALL TOP OF WALL BUILDING CAD92618 FLOOR BELL SYSTEMS / / WIF WROUGHT IRON FENCE Ma I MANHOLE wiF'7 / ' 528.3 TREES PLANNING N BEL SYSTEMS TOP ENGINEERING ci - SURVEYING SAN do MSN iT DR / CMU WALLS ® CONSTRUCTION DR MANHO €/off MANAGEMENT AOU�NN�([SRD F�0 WROUGHT IRON FENCE F °� F o / CURBLINES TECTONIC Engineering & Surveying Consultants P.C. POSITION 0 2081 Business Center Drive, Suite 219 W GEODETIC 526.7 525.6 - - - - STREET CENTERLINES Irvine, CA 92612 DIRECTIONS TO SITE ' COORDINATES i WIF �NG 561.2 - - - - - - RIGHT OF WAY LINES Phone: (949) 502-8555 FROM THE VERIZON OFFICES IN IRVINE CA: ' n TREE - _ _ _ _ _ _ _ _ _ _ _ Fax: (949) sots ass? ' I �524.ON - _ _ _ _ _ _ _ _ _ _ _ - MAJOR CONTOUR INTERVAL gi g.cam www.tectonicen neerin NG � - MINOR CONTOUR INTERVAL START OUT GOING SOUTHWEST ON SAND CANYON AVE 4 PROJECT APPROVALS TOWARD BARRANCA PKWY. MERGE ONTO I-405 N SAN PULLBOX / J If 523.6 APPROVED BY: INITIALS DATE DIEGO FWY N. TAKE THE CULVER DR EXIT, EXIT 5. TURN ' J / NG p __# LEFT ONTO CULVER DR. CULVER DR BECOMES BONITA 2 552.4 L525TRE LANDLORD 1 CANYON DR. TURN LEFT ONTO NEWPORT COAST DR. LAMP 523.5 52 / ZONING NG TURN RIGHT ONTO SAN JOAQUIN HILLS RD. TURN RIGHT NO ONTO SPY GLASS HILL RD. SITE IS ON RIGHT. 528.2 1 5 3.4 ' VZW SITE ACO. WALL ' S.s Q / PEDESTALS CONC �NGVZW RF 526.5 "'V J n ' VZW INTERCONNECT WIF I 'Y523.5 558.1 VZW UTIL COORD. I TREE / ,,JJ��✓✓►► / NG � 554.6 NO 528NO VZW CONST. MGR. S LEGAL DESCRIPTION TREE ' LESSORw o TO BE PROVIDED BY TITLE. ---- \ ' co 526.3 TREE VZW PROJ. MGR. y WIF WORK ORDER NUMBER DRAWN BY 19 / ' CK IF 523.7 NO. DATE ISSUE NG 524.8 0 02/27/15 SUBMITTAL SCE VENT W -�2 j NG TOP 1 UTILITY NOTES � 03/17/15 UTILITY LOCATE I SURVEYOR DOES NOT GUARANTEE THAT ALL UTILITIES 524.2 5217 oNC / ARE SHOWN OR THEIR LOCATIONS ARE DEFINITE. IT IS CONC TNG 557.7 ' THE RESPONSIBILITY OF THE CONTRACTOR AND TREE DEVELOPER TO CONTACT BLUE STAKE AND ANY OTHER / 52 .6 INVOLVED AGENCIES TO LOCATE ALL UTILITIES PRIOR TO -E E E \ 5248 ING NG I CONSTRUCTION. REMOVAL, RELOCATION AND/ OR ESCE MANHOLE O TRTS1,7 WALL' REPLACEMENT IS THE RESPONSIBILITY OF THE E CONTRACTOR. I Ewe\E o e\E � 23.4 I 524.9 I ONO NG ' COMMUNICATION PEDESTAL APs 527.3 -n / BENCHMARK 5212 SCE VENT S28.1 TOP TOE 528.1 PROJECT ELEVATIONS ESTABLISHED FROM GPS DERIVED FC 525.4 524.9 NG ORTHOMETRIC HEIGHTS BY APPLICATION OF NGS 'GEOID / wALL I�NG 12A' MODELED SEPARATIONS TO ELLIPSOID HEIGHTS / CABLE PULLBOX dd \ STORM DRAIN DETERMINED BY OBSERVATIONS OF THE 'SMARTNET' O GRATE REAL TIME NETWORK. ALL ELEVATIONS SHOWN HEREON I 526.4 ARE REFERENCED TO NAVD88. 535.5 / STORM DRAIN 521 2 NG 1 TOE 1 bit TREE MANHOLE FC 525.6 / dl/ NO \ LIMITS OF LANDSCAPING \ \ 5 8.1 \ ® o BASIS OF BEARING I I TO 5279 528.3 BEARINGS SHOWN HEREON ARE BASED UPON U.S. STATE / / �TREE1 528.2 TOE �NG 428 MAIN STREET SUITE 206 PLANE NAD83 COORDINATE SYSTEM CALIFORNIA STATE 535.1 CMU 1% TOP HUNTINGTON BEACH, CA 92648 (480)659-4072 PLANE COORDINATE ZONE SIX, DETERMINED BY GPS TREE RETAINING s26.a /pp OBSERVATIONS. / WALL No 525.3 NG 526.6 528.8 / 525.3 NG1TOP 535.7 b 527.4 SURVEY DATE 02 TREE 521.6 525.3 WALL _WAL= � �NG 22 2015 FC / / / WALL 524.7 f77�5327535.7 CONC 525.3 � TREE F CONC NG TREE POSITION OF GEODETIC COORDINATES \F \ 526.3 _ LATITUDE 33° 36' 45.2" NORTH (NAD83) -E 525.2 NG SITE INFORMATION LONGITUDE 117° 50' 51.8" WEST (NAD83) N 5ziz?C-E- NG�\ 7� _ BAY HILL - SPY GLASS GROUND ELEVATION @ 523.5' (NAVD88) TREE � 524.7 WATER METER HILL ROW 528.5 /� STORM DRAIN WIF ® 528.1 MANHOLE 526.3 ` NG 536.1 CONC SITE ADDRESS � TREE i NEWPORT BEACH, 2 0� / \ 525.1 °"� ORANGE COUNTY FG CA 92662 E gPDRIVE 536.1 TREE ' l \ ` C �TAN SHEET TITLE S \ , GRAPHIC SCALE 525.6 10 0 5 10 20 40 WALL \ SITE SURVEY 535.7 518.8 ( IN FEET ) TREE FC SHEET NUMBER 1 inch = 10 ft. 522.0 _ 519. FC 9 554.3 LS - 1 FC LAMP L J PA2015-024 Attachment No. PC 6 - Project Plans NOTE: ITEM# DESCRIPTION VAULT IS TO BE EQUIPPED WITH PULLING IRONS (LID TO BE MARKED VZW) O LT TO CEMH 1G24"1 SCH. 4PVC CONDUIT POSED FIBER U(VZW FIBER) vergonwireiess NOTE: 8'-6" MYERS METER TO CEMH CONTRACTOR TO STUB AND CAP 2' OF SCH. 80 PVC CONDUIT OUT FROM ALLO 1-2" SCH. 40 PVC CONDUIT (VZW POWER) VACANT PORTS ON VAULT BEFORE SLURRY BACKFILL IS POURED 15505 SAND CANYON AVENUE 3-4" O VZW SITE CEMH TO PULL BOX A BUILDING "D" 1ST FLOOR 3-4" SCH. 40 PVC CONDUIT (VZW COMM) / 3'-O"t PULL BOX TO SITE POLE / / IRVINE, CA 92618 VERIZON WIRELESS CONTRACTOR TO PLACE I / VERIZON WIRELESS SITE POLE MAKE READY INFORMATION O 3-4" SCH. 40 PVC CONDUIT (VZW COMM) / / (2) 21.25" DIA X 42' TALL VENTILATION STACKS / (VENT STACKS TO BE PAINTED TO MATCH ilMD CA LANDSCAPE A. CONTRACTOR TO REMOVE EXISTING 31.7' TALL STREET LIGHT POLE# 1 (SCE / SURROUNDINGS) . POLE# 963462E) AND 31.2' TALL STREET LIGHT POLE# 2 (SCE POLE# 9634161E) / 0000 CTR OF VENT STA: 9+55.22 AND REPLACE WITH NEW 35' TALL STEALTH LIGHT STANDARD 1' SOUTH OF / Practical Solutions, Exceptional Service EXISTING. / B. VERIZON WIRELESS TO PLACE 5" VERIZON WIRELESS COMM. CONDUIT IN BASE OF / OFF. 108.44' LT / / TECTONIC Engineering Consultants P.C. NEW CONCRETE FOUNDATION. 2081 Business Center Drive, Suite 219 CTR OF VENT Irvine, CA 92612 C. VERIZON WIRELESS TO PLACE RADOME WITH (3) DIRECTIONAL ANTENNAS ON TOP / -TRUE CUE STA: 9+54.93 OF NEW CONC. STREET LIGHT ANTENNA POLE. / Phone: (gas) 502-6555 OFF: 98.44' LT (aoo) e29- 531 M D. VERIZON WIRELESS CONTRACTOR TO CONTACT AT&T (SBC) INSPECTOR AMINIMUM / www.tectonicengineering.com OF 72 HOURS IN ADVANCE FOR CONDUIT INSPECTION BEFORE BACKFILL TO COORDINATE TO HAVE AT&T (SBC) PENETRATE THE AT&T (SBC) MANHOLE. / / / / PROJECT APPROVALS APPROVED BY: INITIALS DATE LANDLORD NOTE: CRNR OF CEMH I ALL FACILITIES INSTALLED SHALL MEET ALL CLEARANCE REQUIREMENTS FROM / EXISTING LANDSCAPING ' STA: 9+67.30 ZONING �� OVERHEAD POWER LINES AS SPECIFIED IN GENERAL ORDER NO. 95. / I OFF: 89.88' LT VZW SITE ACQ. I ' / I I I Z-2 VZW RF .000, 0000 \ ' / I I / SIDEWALK I VZW INTERCONNECT \ 47'-6" VZW UTIL COORD. / VERIZON WIRELESS CONTRACTOR TO PLACE- STREET WIDTH (1) 17'-6`X7'-6'X19'-8 7/8'(D) (CEMH 616-12JM-40) VZW CONST. MGR. ooe CONTROLLED ENVIRONMENT MANHOLE WITH 40' RISER .0000 SPY GLASS HILL PARK \ NOTE: CONTRACTOR TO PLACE 12" WIDE PAD AROUND ACCESS"HATCH. I / ROW THICK 50' VZW PWORK MGR. � K ORDER NUMBER DRAWN BY \ 7288.23 TJB \ i 1 1 i NO. DATE ISSUE 1� STA: OF CEMH APPROXIMATE ROW � � I 2 I STA•9+66.73 Q! 0 03/11/15 FOR COMMENT \ J OFF: 72.78' LT Q � 1 03/25/15 UPDATED VAULT LOCATION 3 2 04/01/15 FOR ZONING EXISTING TREE (TYP) PROPOSED VERIZON WIRELESS-, UNDERGROUND COAX CONDUITS 3 05/01/15 UPDATED CEMH SIZE PROPOSED VERIZON WIRELESS '�� I / PROPOSED VERIZON WIRELESS FIBER VAULT W / METER PEDESTAL ON PAD U 4 7/27/15 PER CITY COMMENTS v PROPOSED GAS i' W y = MAIN CROSSING �� EXISTING CMU RETAINING WALL (TYP) Ah lo I I _ PROPOSED VERIZON WIRELESS 3'x5' PULLBOX GAS GAS AS I 1 GPS AS GAS GAS 11 GALS GAS Ja PROPOSED PULLBOX FOR - I / / EXISTING UG ELECTRIC 3 STREETLIGHT DISCONNECT —--- EXISTING / (TYP) NEXISTING SCE PEDESTAL COMMUNICATION / ^ VENT (TYP) _ — — AS = I �---L - _ _AC _ - - _ S GAS GAS �A [� - !gyp E E — — — — — — E — — — I — �� _?tp�— _ >,c EXP.L 3o i7 CIVIL Gp� EXISTING SCE EXISTING UG GAS MAIN 9r�OFCa`1��Q� II p1 MANHOLE AND VAULT W EXISTING STORM (TMP) EXISTING HYDRANT L1J 3 DRAIN MANHOLE EXISTING BELL EXISTING PULLBOX27/ /15 SYSTEMS MANHOLE EXISTING PEDESTAL (TYP) 7 z x EXISTING CABLE o� 3 EXISTING BLOCK AND II CTR OF LIGHT POLE w LLl PULLBOX METAL FENCE TYP PROPOSED VERIZON WIRELESS STA: 8+81.19 (TYP) / COPIES OF THIS DOCUMENT WITHOUT A FACSIMILE OF w LIGHT POLE REPLACEMENT Z-2 OFF: 31.52' LT THE SIGNATURE AND AN ORIGINAL EMBOSSED SEAL OR STEALTH LIGHT STANDARD ORIGINAL STAMP IN BLUE OR RED INK OF THE PROFESSIONAL ENGINEER, ARCHITECT OR LAND SURVEYOR SHALL NOT BE CONSIDERED VALID COPIES. 0 2 3 9+4 0 W — 1 — 1 00 8+00 I ORIGINAL SIZE IN INCHES SITE INFORMATION EXISTING UG FIBER \ SPY GLASS HILL DRIVE BAY HILL ROW (TYP) EXISTING WATER PN: 2141105921 VALVE (TYP) oo P) wLC: 306160 M � Y 0 < oSITE ADDRESS U) SPY GLASS HILL DRIVE ____--- CITY OF NEWPORT BEACH - - - - _ _ _ _ _ ORANGE COUNTY — — — — — � CA 92662 SHEEP TITLE SITE PLAN NOTE: COMBINED GROUND LEASE AREA FOR NOTE: CEMH AND CABINET IS (178.7 SQ. FT.) SITE INFORMATION BASED ON A SITE VISIT PERFORMED BY TECTONIC ENGINEERING CONSULTANTS P.C. ON 02/25/15, AND THE "SITE SURVEY" BY AMBIT, DATED 02/27/15. SHEET NUMBER SITE PLAN • CONTRACTOR SHALL NOTIFY UNDERGROUND SERVICE ALERT OF SOUTHERN CALIFORNIA (DIGALERT) BY DIALING 811 PRIOR TO EXCAVATION AT SITE Z-1 SCALE: 1" = 20' (1107 SIZE) • CONTRACTOR TO LOCATE AND VERIFY ALL EXISTING UNDERGROUND 1" = 10' (2204 SIZE) UTILITIES PRIOR TO EXCAVATION • ALL EXCAVATION WORK WITHIN 36" OF EITHER SIDE OF UNDERGROUND UTILITIES MUST BE DONE BY HAND EXCAVATION METHODS 1 G� PA2015-024 Attachment No. PC 6 - Project Plans ven7onwireless 15505 SAND CANYON AVENUE BUILDING 'b" 1ST FLOOR IRVINE, CA 92618 PROPOSED GPS ANTENNA PROPOSED GPS ANTENNA . TOP OF GPS ANTENNA TOP OF GPS ANTENNA PROPOSED 2'-6" DIAMETER RADOME 35'-0" AGL 35-0" AGL PROPOSED 2'-6" DIAMETER RADOME CURBFACE Practical Solutions, Exceptional Swvk o TOP OF RADOME TOP OF RAYDOME 9�� 12:00 TECTCN10Engineering Consultants P.C. PROPOSED VERIZON WIRELESS PANEL ANTENNAS 34'-9" AGL q4V 34'-9" AGL PROPOSED VERIZON WIRELESS PANEL ANTENNAS 9� y LUMINAIRE 2081 Business Center Drive, Suite 219 (1 PER SECTOR, 3 SECTORS TOTAL) (1 PER SECTOR, 3 SECTORS TOTAL) Irvine, CA 92612 (INSIDE 2'-6• DIAMETER RADOME) (INSIDE 2'-6" DIAMETER RADOME) 1010. Phone: (949) 502-8555 F_ ro ' 80829-6531 1 1 1 1 1 www.tectonicengineering.com j 1 ANTENNA RAD CENTER ANTENNA RAD CENTER I I PROPOSED GPS ANTENNA I I 1 32'-5• AGL 32'-5" AGL 1 PROJECT APPROVALS PROPOSED 8' BRACKET ARM AND APPROVED BY: INITIALS DATE PROPOSED 8' BRACKET ARM AND 1 1 1 1 LUMINAIRE TO MATCH CITY OF LUMINAIRE TO MATCH CITY OF L I I L J NEWPORT BEACH STANDARDSEXISTING POWER LANDLORD NEWPORT BEACH STANDARTDS TOP OF POLE TOP OF POLE F4-4" REET LIGHT) ZONING PROPOSED STEALTH LIGHT STANDARD 29'-3` AGL 29'-3_ AGL ALPHA SECTOR VZW SITE ACO. (TO REPLACE IXISTING)(BY OTHERS) 9:00 • • 3:00 AZ = 90' • VZW RF VZW INTERCONNECT VZW COMM VZW UTIL COORD. —PROPOSED 2'-6" DIAMETER RADOME VZW CONST. MGR. PROPOSED 6:00 VZW PROJ. MGR. SUPPORT POST WORK ORDER NUMBER DRAWN BY 7288.23 TJB NO. DATE ISSUE PROPOSED STEALTH LIGHT STANDARD �P b (TO REPLACE EXISTING)(BY OTHERS) 0� Q 0 03/11/15 FOR COMMENT 1 03/25/15 UPDATED VAULT LOCATION 2 04/01/15 FOR ZONING 3 05/01/15 UPDATED CEMH SIZE 4 ANTENNA ORIENTATION PLAN 5 RISER DETAIL 4 7/27/15 PER CITY COMMENTS Z 2 SCALE: 1" = 4' (11x17 SIZE) Z 2 SCALE: 1" = 4' (11x17 SIZE) 1" = 2' (2204 SIZE) 1" = 2' (2204 SIZE) EXISTING FENCE PROPOSED 3'x5' PULL BOX PROPOSED 3'x5' PULL BOXY VERIZON WIRELESS CONTRACTOR TO PLACE- (BEYOND) (2) 21.25" DIA X 42" TALL VENTILATION STACKS (VENT LEXISTING DEWALK STACKS TO BE PAINTED TO MATCH SURROUNDINGS) o33Y IVO >tL EXP.L 30 17 URB slgr CIVIL ii i i i i i i 7/27/15 L - - i - - - - - J L - - - - I i -PROPOSED VERIZON WIRELESS I I i UNDERGROUND COAX IN CONDUIT PROPOSED VERIZONWIRELESS ICOPIES O FACSIMILE_ NDERGROUND COAXXI THESIGNATURE AND AN ORIGINAL EMBOSSED OR L J N CONDUIT�L _ _ J ORIGINAL STAMP IN BLUE OR RED INK OF THE PROFESSIONAL ENGINEER, ARCHITECT OR LAND SURVEYOR SHALL NOT BE CONSIDERED VALID COPIES. PROPOSED FOUNDATION PROPOSED FOUNDATION O3 ORIGINAL SIZE IN INCHES PROPOSED BASIN W/SUUM(TYPP OPF 2,—/ SITE INFORMATION PROPOSED VERIZON WIRELESS-7BAY HILL ROW UNDERGROUND COAX IN CONDOR PN: 2141105921 VERIZON WIRELESS CONTRACTOR TO PLACE-/ LC: 306160 (1) 17'-6"X7'-6"X19'-8 7/8"(D) (CEMH 616-12JM-40) CONTROLLED ENVIRONMENT MANHOLE WITH 400 RISER NOTE: CONTRACTOR TO PLACE 12" WIDE x4" THICK SITE ADDRESS CONCRETE PAD AROUND ACCESS HATCH SPY GLASS HILL DRIVE CITY OF NEWPORT BEACH ORANGE COUNTY SOUTH ELEVATION 2 WEST ELEVATION 3 EAST ELEVATION CA 92662 SHEEP TITLE Z-2 SCALE: 1" = 8' (11x17 SIZE) Z-2 SCALE: 1" = 8' (11x17 SIZE) Z-2 SCALE: 1" = 8' (11x17 SIZE) 1" = 4' (2204 SIZE) 1" = 4' (2204 SIZE) 1" = 4' (22x34 SIZE) ELEVATION SHEET NUMBER Z - 2 � �D PA2O15-024 Attachment No. PC 6 - Project Plans HINGED HOOD � � DEMAND RESET REMOVABLE METER COVER. HINGED, SOCKET COVERver�gonwireiess METER READING PADLOCKABLE, AND // I SEALABLE MANUAL BYPASS (TEST WINDOW METER SECTION BLOCKS) W/SEALABLE 15505 SAND CANYON AVENUE METER o SAFETY SOCKET- COVER METER GPS ANTENNA BUILDING 'b" 1ST FLOOR ADDRESS i UTILITY LANDING LUGS 30" IRVINE, CA 92618 SEALABLE PADLOCK HASP MAIN P.E. CELL NAME BREAKER , WINDOW PLATE v m LATCH REMOVABLE UTILITY . LOAD CENTER ACCESS COVER 12 CIRCUIT III o W/PADLOCK Practical Solutions, �,�{i NEUTRAL BAR V)) TECTONIC Engineering Consultants Service III2081 Business Center Drive, Suite 219 Irvine, CA 92612 CUSTOMER SECTION Phone: (949) 502-8555 HINGED II (Boo) 829-6531 DOOR PADLOCK www.tecton;cengineering.com � o HASP PROJECT APPROVALS APPROVED BY: INITIALS DATE 0 FRONT VIEW FRONT VIEW (INSIDE) SIDE VIEW LANDLORD ZONING O VZW SITE ACQ. RADOME (30 X 60") VZW RF CD VZW INTERCONNECT VZW UTIL COORD. VZW CONST. MGR. 36" X 10" MINIMUM CLEARANCE VZW PROJ. MGR. — 20.25 REQUIRED PER NEC 110-16, 18.75 36" RECOMMENDED GROUND TYPICAL FRONT AND BACK. WORK ORDER NUMBER DRAWN BY ROD LOCATION. -i 7288.23 TJB RECOMMENDED 3' MIN. NO. DATE ISSUE ° SERVICE ENTRANCE __ —T 3.00 /,I}�\ CONDUIT LOCATION. 0 03/11/15 FOR COMMENT L �—+—F Pi 6" 1 03/25/15 UPDATED VAULT LOCATION 17.25 --1 ° LINE ° 12.25 14 3/8" 2 04/01/15 FOR ZONING 2„ 3 05/01/15 UPDATED CEMH SIZE 2 GQ H LOAD 9 4 7/27/15 PER CITY COMMENTS o al 17 1/4" 101, 3� MIN. SLOTS FOR BASE INSTALLATION I a z RADOME DETAIL BOTTOM VIEW PLAN VIEW SIDE VIEW z-3 SCALE: r'=r 1/2"-13 OR 5/8"-18 BOLTS Q 4- 3 MIN. SUPPLIED WITH BASE FY IONS 3 6" MIN. EXP.L ?217 SPECIFICATIONS sf crviL �� 1/2" OR 5/8" ANCHOR BOLTS 9lFOf CAU��Qa ALTERNATE ANCHOR AS REQUIRED BOLT INSTALLATION 7/27/15 USE 1/2"-13 BOLTS OR 5/8"-18 BOLTS FRONT VIEW BASE DETAIL COPIES OF THIS DOCUMENT WITHOUT A FACSIMILE OF THE SIGNATURE AND AN ORIGINAL EMBOSSED SEAL OR " ORIGINAL STAMP IN BLUE OR RED INK OF THE 1, I .9 7 PROFESSIONAL ENGINEER, ARCHITECTOR LAND P 0 WE R PEDESTAL Its ►li IFS--►il SURVEYOR SHALL NOT BE CONSIDERED ViWD COPIES. 0 1 2 3 Z-3 SCALE: NTS FINISHED GRADE, TO MATCH SLOPE ORIGINAL SIZE IN INCHES AND THICKNESS OF EXISTING SITE INFORMATION TRENCH WARNING TAPE (TYP) BAY HILL ROW \�\ 306160 UNDISTURBED SOIL SITE ADDRESS LOi Ln SPY GLASS HILL DRIVE �j COMPACTED BACKFILL CITY F NEWPORT BEACH LEAN CONCRETE ORANGE E C O U Y iVAA OR SAND BEDDING PER UTILITY COMPANY SPECIFICATIONS CO (�Q/'1 92662 6" MIN li (TYP) PROPOSED SHEET TITLE POWER/TELCO CONDUITS TES: 1. EQUIPMENT DETAILS 1. BACKFILL SHALL BE CLEAN FILL WITHOUT STONES AND SHALL BE THOROUGHLY COMPACTED IN 12" LAYERS BY TAMPING OR APPROVED EQUAL METHOD. NO BELLYING OF TRENCH SHALL BE ALLOWED. 3.87" 2. SCH 40 PVC CONDUIT SHALL BE USED BELOW GRADE. 3. SCH 80 PVC CONDUIT SHALL BE USED UNDER SHEET NUMBER ROADWAY. VIC-100 GPS ANTENNA COMMSCOPE MODEL SBNHH-lD65A WEIGHT = 10.58 OZ 3 TRENCH DETAIL (2) GPS ANTENNA 5 ANTENNA DETAIL Z -3 Z-3 SCALE: N.T.S. Z-3 SCALE: N.T.S. Z-3 SCALE: 1"=1' r -, I PA2015-024 Attachment No. PC 6 - Project Plans REV DESCRIPTION BY DATE ven Lonw►reless 15505 SAND CANYON AVENUE 1 F61lshadGrade BUILDING "D" 1ST FLOOR \ \ \ \ \ \ IRVINE, CA 92618 10 BILL OF MATERIALS PARTS LIST ITEM QTY NAME NOTE Practical SOlutlorle, Exceptional Service 1 1 CEMH Slobtop Avon 3636 Hatch 36" x 36" Clear Opening) 2 1 40" Riser NEngineering Consultants P.C. 2081 B � ^ 2081 Business Center Drive, Suite 219 o 3 1 CEMH 610 Doghouse Special Irvine, CA 92612 CD \ 4 1 CEMH 616 Top Standard Phone: (949) 502-8555 C \ \/��/\\� / 5 1 CEMH 616 Bose Standard (aoo) 829-6531 www.tectonicengineering.com \ O Ductwork \ 6 1 3" Threaded Coupling AssemblyElectrical Entrance (By Others) / / \ /\ �/ \/\ 1' rr12" g" g" g > 7 1 3" Threaded Plug Apply Recto Seal PROJECT APPROVALS 1 8 1 2—Hole Copper Ground Plate (Interior and Exterior) See Detail Sheet 11 APPROVED BY: INITIALS DATE \ 3'-102 /\� "GROUND PLATE DETAIL" LANDLORD / 9 50 12" Joint WrapWraps Around Doghouse Joint ZONING ------ -------------- 22 \ //� 10 40 Gasket 1.5" (CS-101) Ship Loose (See Detail Sheet 11 "Keyway • \ \ VZW SITE ACO. 0 0 0 12 13 $ Detail") /\ \ Goo 20 12 12 5" Int./4" Ext. Threaded Coupling See Detail Sheet 11 "COUPLING EXTENSION VZW RF e o DETAIL" VZW INTERCONNECT //\ \ 7 6 13 12 4" Threaded Plug Apply Recto Seal VZW UTIL COORD. \ \ 14 1 6" Threaded Coupling For DC Fan VZW CONST. MGR. ® / 1'-10" 15 1 6" Threaded Plug Apply Recto Seal 16 2 Link Seal Ship Loose, See HVAC Seal Detail on Sheet VZW PROD. MGR. "ventvault–Detail-1" WORK ORDER NUMBER DRAWN BY / \ 17 2 Foam Seal Inlet & Outlet Oof HVAC Units, See HVAC Seal 7288,23 TJB Detail on Sheet "VentVault–Detail-1" NO. DATE ISSUE 40 C 19 8 1-1/2" Coil Insert Tie Down Inserts \\� \ 20 1 Sump Discharge Piping & Washed Rock Backfill Supplied & 0 03/11/15 FOR COMMENT Installed By Others O \ �' 21 2 Vent Vaults Exhaust & Intake (SEE "VENT VAULT" SHEETS ' 1 03/25/15 UPDATED VAULT LOCATION 1 & 2) 2 04/01/15 FOR ZONING 22 1 2 RL-24 8–TON PLATE ANCHOR (JACKET SIDE) See "CEMH616-12JM-40–C 2&3" 3 05/01/15 UPDATED CEMH SIZE \ \ \ • /\ �, /, /\/�y/,, � � � \ \ /\ T-6" 4 7/27/15 PER CITY COMMENTS EXTERIOR ELEVATION VIEW "A" EXTERIOR ELEVATION VIEW "B" Finished Glade o \\� S-2" 2'-2" L Ductwork "N Cn h. Int. NOTES: �fC)yl\F (By Others) 16 1. Locations and Installation details of power connection and meter pedestal shall be submitted to City Engineer for approval. 17 7/27/15 2. Submit location and installation details of sewer connection for ----- --------------------- \ --------- the sump pump discharge and A.C. condensation to City ^C? Engineer for approval. � 13 COPIES OF THIS DOCUMENT WITHOUT A FACSIMILE OF �\ _ o oO O° \ THE SIGNATURE AND AN ORIGINAL EMBOSSED SEAL OR ao4. 12 ORIGINAL STAMP IN BLUE OR RED INK OF THE N� o 0 PROFESSIONAL 1 \ ENGINEER. SURVEYOR SHALL NARCHITECT DD NOT CONSIDERED V COPIES. �\ "? 20 1 _ $„ $„ 1' 62,. /\� 14 15 0 2 3 ORIGINAL SIZE IN INCHES \ / (0 ySITE INFORMATION 0 (1) i � \�/ 10 `p BAY HILL ROW �// OldCastle Precast PN: 2141105921 a = C 411 E FRYE RD.CHANDLER,AZ 8=5 1 s PHONE(480)0832878 FAX:(480)899.1937 LC: 30 6160 N \/ THIS DOCUMENT IS THE PROPERTY OF OLDCASTLE PRECAST,INC. IT IS CONFIDENTIAL, SUBMITTED FOR REFERENCE PURPOSES ONLY,AND SHALL NOT BE USED IN ANY WAY IDURIOUS TO THE INTERESTS OF,OR WITHOUT THE WRITTEN PERMISSION OF OLDCASTLE SITE ADDRESS ./ PRECAST,INC. COPfRIGHi®2014 OLDCASTLE PRECAST,INC ALL RIGHTS RESERVED r� �� i/? /,i/ /�/,,/:;/;/;/�•�,• /. /, /'NN co ENVIRONMENT MANHOLE SPY GLASS HILL DRIVE EXTERIOR ELEVATIONS CITY OF NEWPORT BEACH 17'-6" 7'-6" MODEL:CEMH616-12JM40 ORANGE COUNTY CUSTOMER I CA 92662 EXTERIOR ELEVATION VIEW "C" EXTERIOR ELEVATION VIEW "D" ---- SHEET TITLE DATE SALES I DRAWN ENGINEER CHECKED SALES ORDER Vent Pipe Caps and All Vent Piping 12/1612014 — RL FS - - CONTROLLED is to be Supplied and Installed by Others. DRAWING NUMBER REVISION SHEET ENVIRONMENTAL CEMH61602JM-40 REV DATE 3 OF 14 MANHOLE DETAILS SHEET NUMBER CONTROLLED ENVIROMENTAL MANHOLE SCALE: N.T.S Z _4 1 �� PA2015-024 Attachment No. PC 6 - Project Plans PROPOSED EXCAVATION REPLACE BASE AND ver� onwireiess FINISHED SURFACE EQUAL TO OR GREATER THAN EXISTING AS PER AGENCYSTANDARDS AND APPROVAL OF CITY, COUNTY OR STATE INSPECTOR. 15505 SAND CANYON AVENUE ?//�//�/ //Y// //�// /�//�� BUILDING "D" 1ST FLOOR IRVINE, CA 92618 PLACEMENTNOTES: 30' MIN. 1) Vent stacks shall be used in conjunction with CEMH model#616-12JM-40. Final location and COVER installation details shall be submitted to City Engineer for approval. 2) Vent stacks shall not impede with the pedestrian traffic or egress to on street parking and shall maintain 4 feet wide sidewalk or path of travel around the vent stacks. ' \ 3) Unless otherwise approved by the City Engineer the face of the vent stacks must be located in �1f 'lam \ the furniture zone and 24 inches from face of curb and a minimum of 5 feet apart. �{ / As `\ 4) The vent stacks shall be located outside anyvisibility triangle of all street comers,25 feet from Prootkal Solutions" E7fospl ionol Service : n / \ any bus stop,passenger or commercial loading or unloading zone,alley intersection and 1 / BACKFILLOF VENT PIPES SHALL BE IN I \ driveways. TECTONIC Engineering Consultants P.C. ACCORDANCE TO GREEN BOOK I 1 5) Vent stacks must haves minimum Sfeet clearance from any hydrant,streetlight standard, 0' TD 20' 2081 Business Center Drive, Suite 219 SECTIONS 3061.2 AND 376.1.3 I 2.5" 1 utility pull box and its access,parking meter,street tree and tree well,and storm water CTYP.) Irvine, CA 92612 AIR VENTS Infiltration systems. AIR VENTS 6) Unless otherwise approved by City Engineer no vent pipe shall be located under any vehicular Phone: (949) 502-8555 1 I traffic or any loading other than pedestrian traffic load. (800) 829-6531 AIR VENTS DETAILwww.tecton;cengineering.com IDENTIFICATION NOTE: 16" TO 30' IT SHALL BE THE RESPONSIBILITY OF EITHER VERIZON WIRELESS OR THE SITE CONTRACTOR TO PLACE PROJECT APPROVALS AN EMERGENCY CONTACT PLAQUE ON THE VENT STACKS LISTING THE FOLLOWING: APPROVED BY: INITIALS DATE NOTE: PVC SCHEDULE 40 VENT PIPE SHALL BE MANUFACTURED FROM A TYPE I, fii \ i 1) VENT MANUFACTURER-ARMORCAST NO.(818)982-3600GRADE I POLYVINYL CHLORIDE (PVC) COMPOUND WITH A CELL CLASSIFICATION OF LANDLORD 2) VENT MODEL NO.P600-2610-SND EDISON 12454 PER ASTM D1784. THE PIPE SHALL BE MANUFACTURED IN STRICT _____ 3) VENT OWNER-VERIZON WIRELESS COMPLIANCE OF ASTM D1785 AND D2665 (WHERE APPLICABLE), CONSISTENTLY ZONING DETAIL"A" 4) OWNER EMERGENCY CONTACT-N.O.C.NUMBER(800)299-0826 MEETING AND/OR EXCEEDING THE QUALITY ASSURANCE TEST REQUIREMENTS OF 5) SITE I.D.NO. THESE STANDARDS WITH REGARD TO MATERIAL, WORKMANSHIP, BURST PRESSURE, VZW SITE ACQ. FLATTENING, AND EXTRUSION QUALITY. THE PIPE SHALL BE MANUFACTURED IN THE NOTE:PLAQUE TO BE I/8"THICK ALUMINUM PLATE 4"x61/2"WITH ENGRAVED LETTERING VZW RF ATTACHED TO VENTS WITH EPDXY OR AS DIRECTED BY THE CITY ENGINEER. USA, USING DOMESTIC MATERIALS. BY AN ISO 9001 CERTIFIED MANUFACTURER, 11 1 STANDARD LENGTHS OF PIPE SIZES 6" AND LARGER SHALL BE BEVELED EACH END VZW INTERCONNECT TOP CAP INSTALLED ON VENT BY THE PIPE MANUFACTURER. VZW UTIL COORD. 19"0 OPENING UNDER CAP GREEN BOOK SECTION 30612.9 FIELD JOINTING OF SOLVENT—WELDED PVC PIPE. SOLVENT—WELDED JOINTING OF VZW CONST. MGR. S.S. N0. 14x10NE WAY ROUND PVC PIPE SHALL BE IN ACCORDANCE WITH THE APPROVED MANUFACTURER'S VZW PRO 1. MGR. HEAD SHEET METAL SCREWS(4x) PRINTED INSTRUCTIONS WHICH SHALL BE FURNISHED TO THE CONTRACTOR. SOLVENT CEMENT SHALL BE IN ACCORDANCE WITH 207-17.3.3 FOR PVC PIPE. WORK ORDER NUMBER DRAWN BY AIRVENTING250SQ.INCHES - VENT PIPE PLACEMENT MINIMUM OPEN AREA ;' 2 7288.23 TJB 2.5" I( c-s SCALE: N.T.S. NO. DATE ISSUE 21.25" AIR VENT i/ 0 03/11/15 FOR COMMENT 20.75" 4 EACH LEVEL (24X) SEE DETAIL BACKFILL OF VENT PIPE SHALL BE IN 1 03/25/15 UPDATED VAULT LOCATION ACCORDANCE TO GREEN BOOK 20.75' D.D. VENT STACK SECTIONS 306-1.2&3061.3 2 04/01/15 FOR ZONING 3.75" 3 05/01/15 UPDATED CEMH SIZE NOTE:20" LOUVERED VENT SHALL FINISHED GRADE FINISHED GRADE CONFORM TO GREEN BOOK SECTION 207-19 4 7/v/1 s PER CITY COMMENTS POLYETHYLENE(PE)SOLID WALL PIPE. I DETAIL"A" I I 15" I 1/4"-20S.S. HEXHEAD UNDISTURBED SOIL I UNDISTURBED SOL � I L i BOLTS WITH WASHER I I & NUT(4 TYP.) I I 42" 114"0 HOLES WITH I ) �--2.5" BOLTS ATTACHED(4X) POLYETHYLENE 1/4" POLYETHYLENE VENT I 21,2`-5 r® s SCH.40 PVC 2(r I 18' TO 30' (TYPJ I O.D.PIPE EXCAVATION LIMITS 20.25" E 144343 �c xp.L 3o 17 ac FINISHED FINISHED 3 VENT STACK PLACEMENT Fofcau��' GRADE GRADE a C-5 SCALE: N.T.S. 0>\/\\/ SILICON SEALANT 7�27�15 114'-20S.S. HEX HEAD � ��j 18.743" (I.D.) �j�� BOLTS WITH WASHER BETWEEN PVC AND i POLYETHELENEALL &NUT(4 TYP.) \j �j' a AROUND a OF THISDOC _ 1 \\/ " THEI SIGNATURE AND AN ORIGINALO OUT EMBOSSEDFACSI S LE OF SCH. 40 PVC EAL OR 2 3/4 y ORIGINAL STAMP IN BLUE OR RED INK OF THE VENT PIPE �� /� PROFESSIONAL ENGINEER, ARCHITECT OR LAND 20" 0.D.. SURVEYOR SHALL NOT BE CONSIDERED VALID COPIES. GREEN BOOK SECTION 306-1.2.9 0 1 2 3 COUPLER FIELD JOINTING OF SOLVENT-WELDED PVC PIPE. 20"0 SCH,40 21.25"X42" TALL 20" LOUVERED VENT SOLVENT-WELDED JOINTING OF PVC PIPE SHALL BE IN PVC VENT PIPE 1" PVC SCH 40 PIPE VENTILATION STACK ORIGINAL SIZE IN INCHES ACCORDANCE WITH THE APPROVED MANUFACTURER'S SANDSTONE FINISH - PART #20SPVA PRINTED INSTRUCTIONS WHICH SHALL BE FURNISHED TO THE PULL ROPE SITE INFORMATION GRANITE FINISH - PART #20SPVAG CONTRACTOR. SOLVENT CEMENT SHALL BE IN ACCORDANCE POWER CONDUIT TO CEMH BAY HILL ROW WITH 207-17.3.3 FOR PVC PIPE. GRADE TQ-' PN: 2141105921 VEN T DETAIL LC: 306160 C-5 SCALE: 1"=2' % PUMP OUTLET SITE ADDRESS TO CURB SPY GLASS HILL DRIVE 20" DIA. A/C UNIT AIR—/ ��/�� CITY OF NEWPORT BEACH INLET/EXHAUST PIPE SUMP PUMP-- r_ _1 ,/�//��\//�\ ORANGE COUNTY X CA 92662 SHEEP TITLE 12" 3/4" GRAVEL BASE ' � ��, �� CONTROLLED VENT DETAILS VENT DRAINAGE MANHOLE DETAILS 4 SHEET NUMBER Z-5 SCALE: N.T.S. Z -5 '44, olf 20' ft 5C 'A 0081C E Wi ,.�+ J TECTONIC if . . PA2015-094 MF •1 r,y� �� .. , �3 �1 ( y+h i.�_ '. f,�►. �' 1 -t{f. R four;' +—. . Looking east from Spy Glass Hill Drive. P-1 Proposed antenna will be visible from this location. Practical Solutions,Exceptional Service NOT TO SCALE—RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 88.23 PA2015-094 FEE&" i • ' u ;,.. nr- •:#sem t �� Yy�• r r �z _ s.' �• / .tea lip . Looking east from Spy Glass Hill Drive. S-1 Proposed antenna is visible from this location. Practical Solutions,E.cepaonai Service NOT TO SCALE- RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY T288.23 1• k' �4 _'" � {2` -?1. 'i.L'' ..►' r _ _ I TECTONI C ,� • rO Y. _.16 ., e TECTONI Cvisible: Drive. -Y TECTONIC ' TECTONIC NO ' PA2015-094 L s 1 . Looking east from the intersection of Spy Glass Hill Drive & EI Capitan Drive. 4 �-Proposed vault & vents will be visible from this location. Prari ai sowtions.Exceptional service NOT TO SCALE— RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 7 88.23 PA2015-094 L i Aft, f a }...c.. y` . i r r . Looking east from the intersection of Spy Glass Hill Drive & EI Capitan Drive. 4 �-Proposed vault & vents are visible from this location. Prari ai sowtions.Exceptional service NOT TO SCALE— RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 8$•23 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094). ADDENDUM TO APPEAL TO THE CITY PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH Appellants,Mr. and Mrs. Bruce Horn and Concerned Citizens of Spyglass Hill,Harbor Ridge,and Harbor Hill submit the following Addendum to their Appeal,filed September 24, 2015,to the City Planning Commission of the City of Newport Beach regarding the Zoning Administrator's approval of Verizon's cell phone tower at Spyglass Hill Park. A. THE COVERAGE ASSESSMENT ON WHICH VERIZON RELIED TO GAIN ZONING APPROVAL IS INACCURATE AND NO LONGER VALID SINCE IT DOES NOT ACCOUNT FOR VERIZON'S INCREASED SIGNAL STRENGTH FROM TWO NEW MAJOR CELL SITES. On March 12,2105,the City Planning Commission approved Verizon's application for a new cell tower installation at the corner of MacArthur Boulevard and Bonita Canyon Road. Similarly,on October 8,2015,the City Planning Commission approved another Verizon application for a Class 4 Eucalyptus Tree Cell Tower for Corporate Plaza,near the corner of Avocado Avenue and Civic Center Drive. These two major projects,and the increased cell coverage they will provide,is not reflected in the Coverage Assessment(Tectonic Report) submitted by Verizon on which it bases it's supposed need for the Spyglass Hill Cell Tower. (See Staff Report, 42-45, attached hereto as Exhibit'To. Verizon claims that there is a gap in coverage in the residential areas including and in proximity to the Spyglass Hills Drive and El Capitan Drive intersection as highlighted in red on the Coverage Assessment map. Verizon's application to the city for the Spyglass Hill Park cell tower states that this location is needed because Verizon needs to provide"effective and reliable service coverage to fill this gap"and that this "is important because of the development in this area."(Exhibit D,page 26). However, there is no new development in Spyglass Hills,Harbor Hill,or Harbor Ridge. Further,Verizon states that"Verizon Wireless facilities in Newport Beach also provide capacity relief to the adjacent sites." (Exhibit D,page 26) When these other two major sites are up and running,by Verizon's own words, enough capacity relief could be provided in Newport Beach so as to render the Spyglass Hill Park installation unnecessary. Appellants submit that Verizon's Spyglass Hill Park may not be needed given the City's approval of these two new major sites for Verizon. Appellants request that the Planning Commission revoke zoning approval for Verizon's Spyglass Hill Park cell tower. In the alternative,Appellants request that the Coverage Assessment be redone after Verizon's two Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) . major cell tower sites at Ford Rd. and Civic Center Drive are up and running to assess whether the cell tower installation is even"needed." B. CELL TOWERS DO NOT BELONG IN RESIDENTIAL NEIGHBORHOODS. As part of the site selection process,Verizon evaluated options at other sites including San Miguel Park. This park was dropped from consideration due to "proximity to residential structures"to the east. (Exhibit D,page 27) Similarly, Spyglass Hill Park(Bay Hill site)is surrounded by"residential structures,"much closer to the cell tower, and thus should receive the same consideration. Tectonic states that"There are no alternative locations in the search ring that would achieve the coverage objectives". SMP would work and we believe other sites could be found along Bonita Canyon and San Joaquin Hill. This statement is untrue. C. ADDITIONAL ONLINE POLLING RESULS SHOW NINTY-SEVEN PERCENT OF RESIDENTS ARE AGAINST THE SPYGLASS HILL PARK CELL TOWER. As set for in the Appeal,the online polling site, which was created to give residents on Spyglass Hill an opportunity to vote either in favor or against the planned cell tower,has continued to accumulate votes. The latest tally for the poll are 242 against and 8 in favor of the cell tower. Ninety-seven percent of the residents are against the Bay Hill tower being placed in a residential neighborhood D. THE AESTHETIC IMPACT OF THE CELL TOWER IS NOT ACCURATELY REPRESNETED IN THE MATERIALS VERIZON PROVIDED TO THE CITY IN ORDER TO GAIN APPROVAL. The current city light standards surrounding Spyglass Hill Park are 6.5"wide at eye level, slimmer towards the top,and have no steeple. The new Verizon light pole is 12"wide with a 30"barrel of antennas protruding from a steeple above the light post, This isnot a stealth pole and will be recognized for what it is at the main entrance to an upscale community. The drawings and mock up diagrams of the park with the Verizon tower shown do not accurately reflect this much larger,taller tower,but rather deceptively depict a light standard with a very small cap on it. Given the measurements provided by Verizon in its own report,the drawings purporting to show what the new cell tower would look like are inaccurate, (Exhibit D,page 64) Appellants contend that Verizon's cell tower in Spyglass Hill Park will be a visual eye sore and will obviously not be a light post as Verizon contends it will be disguised to be. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) E. CONCLUSION For the foregoing reasons, Appellants respectfully request the City of Newport Beach Planning Commission revoke authorization granted to Verizon for installing the cell tower at Spyglass Hill Park. Znrg+ rhission - November 5, 2015 1 . 4 dditional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) �EwroRT COMMUNITY DEVELOPMENT DEPARTMENT F PLANNING DIVISION Z 100 Civic Center Drive, P.O. Box 1768, Newport Beach, CA 92658-8915 (949)644-3200 Fax: (949) 644-3229 www.newoortbeachca.aov CITY OF NEWPORT BEACH ZONING ADMINISTRATOR STAFF REPORT September 10, 2015 Agenda Item No. 2 SUBJECT: Verizon Wireless Right-of-Way Telecom - (PA2015-094) 1 (CS) Narbonne (Northeast Corner of Spyglass Hill Road and EI Capitan Drive) • Minor Use Permit No. UP2015-024 APPLICANT: Verizon Wireless OWNER: City of Newport Beach PLANNER: Benjamin M. Zdeba, AICP, Assistant Planner (949) 644-3253, bzdeba@newportbeachca.gov ZONING DISTRICT/GENERAL PLAN • Zone: N/A (Public Right-of-Way) • General Plan: N/A (Public Right-of-Way) PROJECT SUMMARY A minor use permit to construct a new Class 3 (Public Right-of-Way) wireless telecommunications facility within the public right-of-way at the northeastern corner of Spyglass Hill Road and EI Capitan Drive adjacent to Spyglass Hill Park. The applicant proposes to replace an existing city light standard with a new 35-foot-high stealth light standard that includes screening for three (3) panel antennas and one (1) GPS antenna. The proposed support equipment would be installed within a new underground vault approximately 90 feet southeast of the stealth light standard. RECOMMENDATION 1) Conduct a public hearing; and 2) Adopt Draft Zoning Administrator Resolution No. ZA2015-_ approving Minor Use Permit No. UP2015-024 (Attachment No. ZA 1). 2 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Verizon Wireless flight-of-Way Telecom MUP Zoning Administrator, September 10, 2015 Page 2. DISCUSSION • The subject site is located generally at the northeastern corner of the intersection of Spyglass Hill Road and EI Capitan Drive within the public right-of-way abutting Spyglass Hill Park. Being that It is located within the public right-of-way, the site Is not designated by the General Plan Land Use Element and, therefore, is not located wtihin a zoning district. • The proposal is to construct a new wireless telecommunications facility which will entail the replacement of an existing city light standard in the public right-of-way with a new 35-foot-high stealth.light standard. The new standard will Include a. 30-inch diameter radome housing three (3) panel antennas and, one (1') GPS. antenna. All support equipment will be housed within an underground vault adjacent to the light standard location., • Pursuant to Chapter 20.49 (Wireless Telecommunications Facilities), thefacility is defined as a Class 3 (Public Right-of-Way) Installation given that it will be located within the public right-of-way. Class 3 facilities require the approval of a minor use permit. The proposal will allow the establishment of a new facility that, as designed and conditioned within the draft resolution, will not visually dominate the existing development rather it will blend while providing improved coverage within the area. • Section 20A9,040(A) prioritizes wireless telecommunication facilities as follows: 1) collocation of a new facility at an existing facility; 2) Class 1 (Stealth/Screenedy 3) Class 2 (Visible -Antennas) and Class 3 (Public Right-if- Way); and Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility is designed such that it will not visually dominate the surrounding area and is intended to blend seamlessly into the Infrastructure of the neighborhood. The opportunity to collocate or construct a facility on existing strictures (Classes 1 or 2) is limited given the lack of viable nonresidential structures in the area that would provide a similar benefit. • Being that the proposed location Is within the public right-of-way, the City's Public Warks and Municipal Operations Departments have reviewed the proposal and have provided conditions of approval to ensure compliance with the applicable sections of the Municipal Code while minimizing any potential damage or detriment to the existing improvements at the site (e.g., landscaping and pavement). • If approved, the carrier will be required to work with the City's Real Property Administrator to enter into a license agreement as the facility will be located within the public right-of-way: . 7Ytiph:04.17-14' Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) RESOLUTION NO. ZA2015- A RESOLUTIONOF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT NO. UP2015-024 FOR A WIRELESS TELECOMMUNICATIONS FACILITY WITHIN THE PUBLIC RIGHT-OF-WAYLO'C,ATED AT 1. (CS) NARBONNE (PA2015.094) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1, An application was filed by Verizon Wireless with respect to public right-of-way area located at 1 (CS) Narbonne requesting approval of a manor use permit, 2. The applicant proposes to construct a new CC6.3 (Public Right-of-Way) wireless telecommunications facility installation at the nor ea- corner of Spyglass Hili Road and EI Capitan Drive. The project will mclCl2ie the replacement of an existing light standard with a new 35-foot-high stealth Ii t sta dard with 30-inch radome screening three panel antennas and a GPS antenna i s ort equipment w01 be installed within a new underground vault approytimatelK 90 fel southeast of the stealth light standard within the public right-of-way. �� 3. The site is within theublic p 01a, �f f-wa`y�rtl is, flierefore, not designated within the Land Use Element of the Gene 4 'Ian;. r is i r�ocated within a zoning district. 4. The site is not locat Uhl Gone boundary, 5. A public hearm s held Member 10, 2015, in the Corona dei Mar Conference' Room (Bay E-is or) at 0 Civic Center Drive, Newport Beach. A notice of time; place and purpose e. ting was given in accordance with the Newport Beach Municipal Code.Evid e oth written and oral, was presented to, and considered.by, the Zoning Administrator at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt pursuant to Title 14 of the California Code of Regulations (Section 15303, Article 19 of Chapter 3, Guidelines for Implementation of the California Environmental Quality Act) under Class 3 (New Construction or Conversion of Small Structures,). 2. The Class 3 exemption covers the installation of small new equipment and facilities in small structures. The proposed project will include replacement of an existing light standard with a new stealth light standard that has been modified to;contain screened antennas. The support equipment will be housed In a small vault below ground approximately 90 feet southeast of the light standard. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wir;Weba R*40WW,,r3eTc NDA abs EA2015-094) Page 2 of 11 SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Cade, the following findings and facts in support of such findings are set forth: Findin A: The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The site is not designated within the Land Use Element of the General Plan as it is located within the public right-of-way, 2. The site is not In a specific pian area. ``%Fi in : , B, The use is allowed within the applicab onin district d complies with all other applicable provisions of this Zoning Code kTMunicipal Code. Facts in Support of Finding:: M _- 1. The site is not located withip,*&L ni rict as it is located within the public right-of- way. 2. Zoning Code Cha i7i (Wireless, Telecommunications Facilities) identifies wireless telecomr�fle 3gns cilities within the public right-of-way as a Class 3 Installation whi is permi J lee--` ;object to the approval of a minor use permit. Section 20.49.040 (Tele Facile Preferences and Prohibited Locations) lists certain prohibited locations th roposed facility is not a prohibited location. 3. Section 20.49.040(A) prioritizes wireless telecommunication facilities as follows: 1) collocation of a new facility at an existing facility; 2) Class 1 (Stealth/Screened); 3) Class 2 (Visible Antennas) and Class 3 (Public Right-of-Way); and Class 4 (Freestanding Structure). Although lower on the listing of priority facilities the proposed facility is designed such that it will not visually dominate the surrounding area and is intended to blend seamlessly into the infrastructure of the neighborhood. 4. Support equipment will be installed in an underground vault located southeast of the site. As conditioned, the existing landscaping will be protected and replaced as necessary such that the streetscape and access along the street is unaffected by the facility. 5. With construction as shown on the plans and visual simulations with the Implementation of the conditions of approval, the proposed facility will comply with applicable requirements of the Zoning Code. 03-03-2015 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wiftejas Mgfnfiatrf-!WJ�p!ToW etroidw U-(P82015-094) Page 3 of 11 Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The proposed design will replicate that of a street light standard which will help to blend in with the existing development of the residential neighborhood. 2. The support equipment for the site will be placed In an underground vault such that the facility will not hinder use of the existing sidewalk or public right-of-way along Spyglass Hill Road or EI Capitan Drive. 3. The proposed telecom facility will be unmanned, h.ve no impact on the circulation system, and, as conditioned, should not generat Ise, odor, smoke, or any other adverse impacts to adjacent land uses. 4. The proposed facility will enhance covera Ynd cac for visitors and to residents of the area by providing wireless access, oicnd data=transmission services. The proposed facility will not result in any maria, h anges to the character of the local community.. I � ° � Finding:: t D. The site is physically � le th terra of design, location, shape, size, operating characteristics, and th ovilic and emergency vehicle (e.g., fire and medical) access and blicrvices alio utilities, Facts in 5u ort of Fin m 1. Adequate public a em envy vehicle access, public services, and utilities are provided to and aroun a subject site and the proposed use wilt not change this. 2. The proposed telecom facility will be unmanned, have no impact on the circulation system, and, as conditioned, should not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. 3. The Public Works Department, Building Division, Police Department, and Fire Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. 03-03-2015 q A Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wire Rd"iota%ia�eiosieioomoAZe�m5(PA2015-094) Page 4 of. 11 Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health; Interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use, Facts in Support of Finding: 1: The proposed facility will comply with the applicable rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC), thus ensuring public health and safety. 2. The proposed facility is not located in an area adjacent to<a coastal view road or public coastal view point. 3. The proposed wireless telecommunications feel ' ill be effectively screened based upon the design and location with the incorpor i n e conditions of approval. As a result, the proposed telecommunication �ty ai location will not result in conditions that are materially detriment ne%i prop owners, residents, and businesses, nor to public health or safety.'1 4. Although the proposed facility is a p Sp , ss Hit! Park, it will be located within the public right-of-way and will not in ewe zli, tise of the park. 5. The proposal has been ew byt-e Building Division, Public Works, Fire, and Police Departments, an co d onditions of approval have been included to limit any detriment t e r genal welfare of persons visiting or working in the surrounding neig In accordance with SecTi r 20.4 I60 (Permit Review Procedures) of the Newport Beach Municipal Code, the foilowl ad i" nal findings and facts in support of such findings are set forth:_ Finding: a. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support Of Finding: 1 The proposed facility will include a new 35-foot-high stealth light standard with support equipment vaulted below ground. Installation of the new light standard will replace an existing light standard and will not appear out of character with the surrounding neighborhood as the facility will blend with existing infrastructure. 03-03-2015 10 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wir7bieisg tAigt kdrfaW,t eiTa hiaA IG(PA2015-094) Page 5 of 11 Findina: b. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Finding_ 1. The proposed telecom facility will be of similar height with the existing light.standard and will not exceed 35 feet in height above existing grade as stipulated by the design standards. 2. The stealth light standard will utilize a radome to screan all antennas which will be treated with exterior coating to match the existing light standard thereby creating a more inconspicuous facility that blends with the existing development and the surrounding neighborhood. 3. As conditioned, the design of the stealth replac light standard:Vll be consistent with the design of the existing light standard. 4. The support equipment will be locatedwt n an ndergr d vault that is completely below finished grade. ; .� Finding: +nl g �o G. An alternative srta(s) locaf her - a r s1dential district, public park or public facility cannot feasibly f th` cov , e needs fulfilled 6y the installation at the proposed site. Facts in Support of Find" ' 1. Alternative sites ted fu- er away from Spyglass Hill Park or nearby residential uses would limit th ver objectives and would not fulfill the need demonstrated by Verizon Wireless , ance coverage and capacity. The applicant has provided maps that demonstrate improved coverage within the immediate vicinity as a result of the proposed facility. 2. Alternative sites to serve the area are limited as the immediate vicinity is primarily residential. Findin d. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably'feasible and desirable under the circumstances. 03-03-2015 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon WifteiseRghtiabi WdA eToWWoNDA aiS{PA2015-094) Page 6 of 11 Facts in Support of Finding: 1. The opportunity to collocate or construct a facility on existing structures (Classes 1 or 2) is limited given the lack of viable nonresidential structures in the area that would provide similar service coverage. 2. The proposed stealth light standard (Class 3 — Public Right-of-Way Installation) will blend well with the existing residential development in the area and precedes Class 4 (Freestanding) Installation in order of priority. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Begch hereby approves Minor Use Permit No. UP2015-024 subject to the condition ,.At forth in Exhibit 'A", which is attached hereto and incorporated by reference 2. This action shall become final and effective '# days foIng the date this Resolution was adopted unless within such tim �?an appeal is 'led with the Community Development Director in accordance wit�F tt Vorovisions of Title 20 Planning and Zoning,of the Newport Beach Muni al Codi; PASSED, APPROVED, AND ADOPTED TNt OF SEPTEMBER, 2015. N Brenda Wisneski,ACCP, Zoni Afbq&Strator 03-03.2015 12 Planning Commission - November 5, 2015 ' Item No. 4a: Additional Materials Received Verizon Wir�rleise Mgihti"Wa/ efar k6 mN Pg4MB A2015-094) Page 7 of 11 EXHIBIT"Ar, CONDITIONS OF APPROVAL 1, The development shall be in substantial conformance with the approved site plan, equipment plans and elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approvai,) 2- The project is subject to all applicable City ordinances,, policies, and standards, unless. specifically waived or modified by the conditions of approval. 3. The telecom facility approved by this permit shall comply with all applicable rules, regulations, and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). 4. Prior to issuance of building permits, the applica Othnall, obtain an effective license agreement with the City regarding use of the pu ht-of-way for private purposes. g 5. Prior to Issuance of building permits, the appant shall mit to the Planning Division an additional copy of the approved arch' Wturasplans fo nciusion in the Minor Use Permit file. The plans shall be identical t � o ,approved by all City departments for building permit issuance. The appvied co shall Include architectural sheets only and shall be reduced in size to 1 i r e by`; inches. The plans shall accurately depict the elements approved by�e „ x. ,se Permit and shall highlight the p a roved elements such th are, ernibe from other elements of the plans. 6. Prior to issuance of buil er` I I applicant shall pay any unpaid administrative costs associated wit e p sing f is application to the Planning;Division. �4 7. The operator a a tele fa #}ity shall maintain the facility in a manner consistent with the original roval 'the facility and all conditions of approval. Anything not specifically app rov y permit is not permitted and must be addressed in a separate and subsequ view; 8. Ali noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher. Between the hours of 7:00AM Between the hours of and 10:00P *00PM arnd 7:00AM Location Interior Exterior Interior Exterlor Residential Property 45dBA 55dBA 40dBA 5OdBA Residential Property located within 45dBA BOdBA 45dBA 50dBA. 100 feet of a commercial property Mixed Use Property 45dBA 00dBA 45dBA 50d8A ....... ... Commercial Property N/A e5dBA N/A WdBA. 03-03-2015 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon WiroieftK gklM"oReigilgi*rpo4pp"15(PA2015-094) Page 8 of 11 9. The applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. Should interference with the City's Public Safety radio equipment occur, use of the telecorn facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance Is reported. 1.0. The facility shall transmit at the approved frequency ranges established by the FCC. The applicant shall inform the City, in writing, of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 11. The applicant recognizes that the frequencies used by the facility are extremely close to the frequencies used by the City of Newport Beach for public safety. This proximity will require extraordinary "comprehensive advanced planning and frequency coordination" engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware. ThiRe ouraged in the "Best Practices Guide" published by the Association of Puety Communications Officials- Internationali Inc. (APCO), and as endoe Federal Communications Commission (FCC); 12. The applicant shall provide a "single f' contact'" in its. Engineering and Maintenance Departments that is nitored ours per day to ensure continuity on all interference issues; and to w n rfei a problems may be reported. The name telephone numbsfax num r ileil address of that erson shall be provided to the Communit velo , '``hit De"'soment and Newport Beach Police Department's Su ort Sew&ces mm&'er prior to activation f the facility. arW 13. Appropriate info " w hI, sign`s plates shall be posted at the access locations and each trans ' e In addition, contact information (e.g., a telephone number) shall pro o the warning signs or plates. The location of the information war " . signs plates shall be depicted on. the pians submitted for construction permit . 14. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning; and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans.submitted for issuance of building permits. 15. The telecom facility shall not be lighted except as deemed+necessary by the Newport Beach Police Department for security lighting. The night fighting shall be at the lowest intensity necessary for that purpose and such lighting shall be shielded so that direct rays do not shine on nearby properties. Prior to the final of building permits, the applicant shall schedule an evening inspection with the Code Enforcement Division to confirm compliance with this condition. 16. At all times, the operator shall ensure that its telecom facilities comply with the most current regulatory operations standards; and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining 03-03-2015 14 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wire RkhMWaY 'fagt000WDAppMb(EA2015-094) Page 9 of 11 the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director. 17. The applicant shall ensure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. 18. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator or property owner shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, transfer the rights to use the facility to another operator,,or remove the.teiecorn facility and restore the site. 19. The City reserves the right and jurisdiction to revi and modify any telecom permit approved pursuant to Chapter 20.49 of the New, each Municipal Code, including the conditions of approval, based on changed.c u ces. The operator shall notify the Planning Division of any proposal toiAnge the ,eight or size of the 'facility increase the size, shape, or number ofennasz hange the facility's color, materials, or location on the site; or increase the s1`i' 111111111 .put above the maximum permissible exposure (MPE) limits imposed by he radii requency emissions guidelines of the FCC. Any changed circumstances l require`tl ,.,operator to apply for a modification the original telecom permit and b" in ified permit prior to implementing any change. "` ' 20. This Minor Use Permit be d r revoked by the City should they determine that the facility or r toviola�K any law regulating the telecom facility or has failed to comply :"11 ut rents of Chapter 20.49 of the NEMC, or this permit: •.��. 21. This approval sh pira a" become void unless exercised within 24 months from the actual date of revi th approval, except where an extension of time is approved in compliance with the sions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 22. A copy of the Resolution, including conditions of approval Exhibit "K shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 23. To the fullest extent permitted by law, applicant shall "indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims; demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Spyglass Mill. Right-of-Way Telecom including, but not limited to, the Minor Use Permit No. UP2015-024 (PA2015-094), This indemnification shall include; but not be limited to, damages awarded against the City, if any, costs of 03-03-2015 �u� Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wirfte8vh&jht4stfa"e1w[meombApWl5�PA2015-094) Page 10 of 11 suit, attomeys'fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. BUILDING DIViSION 24. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction pians must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. 25. Prior to the issuance of grading oer its, a Stor ater Pollution Prevention Plan (SWPPP) and Notice of intent (NOi) to with the General Permit for Construction Activities shall be prepared, sub. ed , he State Water Quality Control Board for approval and made part of thel truction its ram. The project applicant will provide the City with a copy of the NG nd t eir eppliction check as proof of riling ME with the State Water Quality Controlr ,fhis plan will detail measures and practices that will be in effect duri constr i�On to minimize the project's impact on water quality. � z: PUBLIC WORKS DEPARTMENT 26. If any of the existing p Im § . es surrounding the site are damaged by the private work, new co ret walk, and gutter, alley/street pavement, and other public improvem e r c uired by the City at the time of private construction completion. S eterminton"#nd the extent of the repair work shall be made at the discretion of the lie Wory " inspector. 27. The storage of all pro) lated equipment during construction shall not be within the public right-of-way, unless otherwise approved by the Public Works and Municipal Operations Departments. 28. Prior to the issuance of building permits, an approved Encroachment Permit is required for all work activities within the Spyglass Hill Road and EI Capitan Drive rights-of-way: Any lane closures will require Traffic Control plans, which shall be prepared by a registered California Traffic Engineer, unless otherwise approved by the City Traffic Engineer. 29. All work in the public rights-of-way shall follow City's Municipal Code Chapter 13.20 (Public Rights-of-Way). 30. Although the proposed location is currently not within an Underground Assessment District; if or when there is,an approved Underground Assessment District in the future, 0308-2015 16 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon WiRdeft Mg rtismrfaW&f esTWec mftA abkPA2015-094) Page 11 of 11 the applicant shall relocate the facilities underground pursuant to Municipal Code Section 13.20.030 (City Policies Regarding Use of the PROW).. 31. The construction plans shall satisfy NBMC Chapter 13,20. 32. The applicant shall assume 100 percent of all costs associated with any alterations to the existing improvements along Spyglass Hill Road and El Capitan drive for development of the telecom facility. 33. The applicant shall be responsible for the repair and/or replacement of any curb and gutters, concrete sidewalk, allay/street pavement that may be damaged through the. course of construction, as directed by the Public Works Department.. 34. Appropriate informational. RF warning signs or plates shall be posted at the access locations and each transmitting antenna. The locati n of the informational warning signs or plates shall be depicted on the plans sub l:.- for construction permits,. ! 35 The applicant is required to protect all City Ian ADI 3 treas, and Irrigation in place. if any damage should occur, the contractor wi e requir n o replant as directedby the City and guarantee work for a minimum Qf$,ne (1,0ear. 36. Newporteiting street utilities Yarbe rem o d she The to i� salvaged and delivered to the City of �I - 37 All exposed elements of thtieudink but not limited to screening, coaxial cables and appurtenan attaq edfrthe reconstructed street light pole shall be color-matched or paint to 17h }pole to the satisfaction of the Community Development and Util' 'es ors eir respective designees, 38. The replacem ` street [F , s Idard is subject to the review of the Public Works Department and all ma the design, style, color, height, and location of the existing street light nda, to be removed. in no case shall any portion of the light standard exceed 35 fe ove existing grade: 39. Prior to issuance of building_permits, a letter shall be obtained from Southern California Edison acknowledging that a new single-meter pedestal will be installed as opposed to converting the existing single-meter pedestal to a double-meter pedestal. Said letter shall be documented within the building permit plan check set. 40. Stand pipe vents shall be per the City's 8-inch and 10-inch standard vents. Reference City Standards STD-537-L-A and STD-537-L-8, 41. A soils report shall be provided as part of the building permit plan check. If said document demonstrates that dewatering is required, a formal dewatering plan shall.be provided. 42. A sound attenuation study shall be provided.as part of the submittal for building permit plan check. 03-03-2015 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) it + � x'�•, i!.,., "I .{. i{{moi" iR• -,.L � .. AL posed F -lacement Q alih Standard w .;� " �,r■c� '' `- •� d Vapygult r im o i Nql Prk ,r '. EL CApITAW) e t • + ` a .� "' k. 77 7 ; �. s� W. A Wil � •`41Y,•," ,4 ., � r'. / MID P-0 r , 0 X'� "J � Vit! "J' r '>��`,.� `r ��o��• Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided,however.The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to V any results obtained in its use. 0 210 420 Imagery: 2009-2013 photos provided 6y Eagle Feet Imaging www.eagleaerial.com 8/24/2015 21 PA2015.094 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telma%4la l (PA2015-094) Mountainville,NY (800)829.6531 PranicaiSotvtionzrx�eylianal5ervke 2081 Business Canter Drive.Suite 219 (949)502-8566 FAX:-(949)502-8557 Irvins,_CA 92812- www:tedonicangineedng.com. May 8,2015 City of Newport Beach Plamung Division :l Community Development Department 100 Civic Center Drive Newport Beach,CA 92660 SUBJECT: Minor Use Permit Application for Approval to Install Wireless Communication Facility and Equipment within City of Newport Beach Right of Way Bay Hill Search Ring Dear City of Newport Beach Staff.- The taff:The project being submitted for consideration is the replacement of one existing light standittd, with a new wireless telecommunication facility stealth light standard: The light standard would be 35'feet high with a 30"radome and three antennas. The related support equipment would be placed within an adjacent controlled environmental underground vault as specified in the zoning drawings attached as part of this application. The project would be comiected to exiting electrical and telephone connections needed to serve to the site. Contact: Ryan Birdseye,Agent c/o Tectonic Engineering and 5urveylog,Inc. 2081 Business Center Drive,Suite 219,livine CA 92612 Office:949-502-8555 Cell:760-712-2199 Location and Zoning: The light standard is an existing concrete SCE pole,(3596)located on the east side of Spyglass Hill Drive approximately 100'north of E1 Capitan Drive, The sites are public right of way. Adjacent zoning is park and single family residential. Description of Proposed Project' The project entails construction of an unmanned telecommunications facility for Verizort Wireless. The project would replace one existing SCE streetlight with one new stealth light standards with a 30"diameter radome and three antennas on top of the pole. The project would also construct a controlled environment 7'-71/2" X 17-11/2" X 16'-4 7/8" vault with manhole equipment cabinets needed to accommodate three remote radio heads,one electrical meter pedestal,twelve underground coax and one hybrid cable and connection to the existing electrical and telephone utilities as needed to service the site. PLANNING . ENGINEERING . CONSTRUCTION AND PROGRAM MANAGEMENT An Equal opportunity Employer 25 PAM15-M Planning Commission - November 5, 2015 Item No. 4a: Adj";' Received Verizon Wireless Right-of-Way Tele 015-094) Pladcal SQN0OnS EUeptloiM15*Y*e Noise Post construction,the infrastructure installed would not generate audible noise. The project would not have a.generator or related elements that would be along-term source of noise. Wireless Communication Facility Site Plan See:attached zoning drawl igs. Landscape Plan The project would replace one existing light standard and install and underground equipment vaults. The vault size was minimized to avoid impacts to an adjacent tree during consb-uction. Construction would incorporate methods recommended by the City's Arborist to minimize impacts to the roof system during construction,Post construction,the sites would be visually consistent'with existing conditions: No new landscaping is proposed, Site Photograph(s)f Visual Simulations Site photographs and visual simulations are provided as an attached to this application. justification for Location/Calocation Verizon Wireless currently has a gap in coverage in the residential areas including and in proximity to the Spyglass Hill Drive and El Capitan Drive intersection. Providing effective and reliable service coverage to fill this gap is important because of the development in this area. This site is an integral part of Verizon's network of services and is designed to facilitate the locationaRy dependent nature of cell sites. The Bay.Hill facility has been designed to provide coverage and adequate call capacity to Newport Beach in combination with existing facilities shown on the attached coverage maps.With the growing amount of data usage and volume of calls over the past year,it is important to provide the coverage and capacity required to ensure quality service to Newport Beach residents and visitors. There are three facilities in proximity to the Bay Hill site:San Joaquin Hills Park to west, Newport Ridge to the east and St.Laurent to the south. As designed,Verizon Wireless's network in the Newport Beach area provides a dominant signal adjaceritto each existing. wireless facility.This dominant signal diminishes as the customer moues from one facilityto the. next.Facilities within Verizon Wireless s network are spaced attd located to provide the most efficient use of each dominant signal from adjacent facilities. Verizon Wireless's facilities in Newport Beach also provide capacity relief to the adjacent sites. As,part of a dynamic network,adjacent sites will off-load capacity from each other at times of high call or high data usage.Together, with the Bay.Hillsite;Verizon Wireless customers will be able to travelfnom one area of Newport Beach to another,while maintaining seamless voice and data connectivity. 20 w�2ot5Dsa Planning Commission - November 5, 2015 Item No. 4a: Ad ' ' Received Verizon Wireless Right-of-Way Teletwom 015-094) kactical Solutions,Enepflowl Service It is understood that the City of Newport.Beach has requested documentation regarding the site selection process.The Bay Hill search ring was established to expand wireless coverage,within a geographic area determined by Verizon Wireless to have less than optimal service. Because the Bay Hill site is located within a residential area,development options are limited.. As part of the site selection process,VZW evaluated options at the San Joaquin and Big Canyon Reservoir sites: These are blocked by hills which would adversely affect radio frequency (RF) transmission,San Miguel Park was evaluated,;,however, the proximity to residential properties to the east was a concern for VZW. For that reason,San Miguel Park was dropped from further consideration.A right of way site hi the median of San Miguel Road was considered;however, it was dropped based on construction constraints and access for equipment maintenance. Options to locate the facility within Spyglass Hill Park and on the traffic signal pole located at the San Miguel Drive and Spyglass Hill Drive intersection were not supported by the City. Other locations for a standalone wireless facility were evaluated fil the field but rejected because of topography,zoning and related factors. There are no co-location options with existing, carriers in the search ring. Verizon elected to pursue a lease agreement with SCE to replace an existing light standard as the preferred option for achieving coverage objectives while ininimizing the aesthetic impact on the neighboring Spyglass Bill Park and residential properties. FCC/Signal Standards See attached FJectromagnetic Energy Study Map of Applicant's Existing Wireless Communications Facilities A map showing Verizon`s existing wireless communication facilities•'is provided, as an attachment. Coverage Assessment As noted above,there are no alternative locations in the search ring that would achieve the coverage objectives. The proposed site and design was selected to achieve coverage objectives and minimize aesthetic changes to the surrounding residential properties. Thank you in advance for your and consideration of our application. Please contact us with questions or requests;for additional information Regards; Ryan Birdseye, Principal Birdseye Planning Group Agent to Tectonic Engineering and Surveying,Inc. 2 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) veru Onwireless Radio Frequency Exposure Pre-Installation FCC Compliance Assessment Site Specific Information Site Name Bay Hill Categorically Excluded? NO Street Address NE CORNER SPY GLASS HILL DRIVE AND EL CAPITAN DRIVE I% Contributor To Areas YES City,State,Zip NE PORT BEACH,CA 92662 Requiring Mitigation? Multi-Liceusee Facility NO Max ,MPE redictiye 10.0% Structure Type Light Pole Max % MPE(Measured) N/A Broadcast E ui ment YES Assessment Date N/A #of Access Points 1 Assessment Purpose Site Audit Com fiance Status IN COMPLIANCE X Worst-case RF power density levels are BELOW the MPE for General Population/Uncontrolled Environments in accessible areas. • Worst-case RF power density levels are ABOVE the MPE for General Population/Uncontrolled Environments but BELOW the MPE for Occupational/Controlled environments. ❑ Worst-case RF power density levels are ABOVE the MPE for Occupational/Controlled Environments but BELOW 10x the MPE for Occupational/Controlled environments. ❑ Worst-case RF power density levels are ABOVE IOx the MPE for Occupational/Controlled environments. Compliance -- - -- - _A NOTICE A • QCAOTNNi Requirements t t %u•I-I.•II. ..._ —:.rte' - 's- '��:�; _■ Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] 1 ❑ [#] I ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] 1 ❑ r#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Additional Compliance Re uirements(s): Site Access Locations No Action Required. Alpha Sector Location No Action Required. Beta Sector Location No Action Required. Gamma Sector Location No Action Required. Consultant Legal Name I Telnet Inc. Phone/Fax 301-840-7110 Address 7630 Standish Place,Rockville,MD 20855 Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 22 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Contents 1. Executive Summary.........................................................................................................................................................3 2. Proposed Site Characteristics.........................................................................................................................................4 a. Structure.....................................................................................................................................................................4 b. Accessibility.................................................................................................................. ...................................4 c. Verizon Wireless Signage............................................................................................................................................4 d. Antenna Inventory......................................................................................................................................................5 3. Analysis...........................................................................................................................................................................6 a. Predictive Model :All Transmitters............................................................................................................................6 b. Predictive Model:Significant Contribution of Verizon Wireless.................................................................................7 4. Conclusion.....................................................................................................................................................................10 a. Conclusion Narrative.................................................................................................................................................10 b. Compliance Requirements........................................................................................................................................11 Signage/Barrier Diagram...................................................................................................................................................11 Signage/Barrier Installation Detail....................................................................................................................................12 5. Appendix C: RF Consultant Certifications.....................................................................................................................13 a. Preparer Certification................................................................................................................................................13 b. Reviewer Certification...............................................................................................................................................13 6. Appendix D:Reference Information.............................................................................................................................14 a. FCC Rules&Regulations...........................................................................................................................................14 b. Occupational Safety and Health Administration (OSHA) Requirements..................................................................14 c. RF Signage.................................................................................................................................................................is d. Barriers......................................................................................................................................................................15 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 29 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2O15-094) 1. Executive Summary Verizon Wireless has contracted with Telnet Inc. ,an independent Radio Frequency consulting firm,to conduct a Radio Frequency Exposure(RFE)Compliance Pre-Installation Assessment of the Bay Hill cell site. The following report contains a detailed summary of the Radio Frequency environment as it relates to Federal Communications Commission (FCC)and Occupational Safety& Health Administration(OSHA) Rules and Regulations for all individuals. The Verizon Wireless antenna data was provided by: FName7 Emanuel Higgins Title Assistant Project Manager Date 4/9/2015 Re ion CA Thispost-installation compliance assessment and report has been re ared and reviewed by: Preparer Reviewer Name Steve Fruit Keihan Farhadian Title RF Engineer RF Engineer Date 04/14/2015 04/14/2015 This report utilizes the following for predictive modeling of the ambient RF environment: MPE Modeling Program: Roofview 4.15 Required Modeling Assumptions: 100%Duty Cycle and Maximum Total Power Output. Additional Modeling Assumptions: General Model Assumptions In this report, it is assumed that all antennas are operating at full power at all times. Software modeling was performed for all transmitting antennas located on the site. Telnet, Inc. has further assumed a 100% duty cycle and maximum radiated power. The site has been modeled with these assumptions to show the maximum RF energy density. Telnet Inc. believes this to be a worst case analysis, based on best available data. If at any time power density measurements were to be made, Telnet Inc. believes the real time measurements would indicate levels below those shown in this report. By modeling in this way, we have conservatively shown exclusion areas (areas not to be entered without a personal RF monitor, carriers reducing power or performing real time measurements to show real time exposure levels). Use of Generic Antennas For the purposes of this report, the use of 'Generic'as an antenna model, or'Unknown'for a wireless carrier, means that the information about the carrier, their FCC license and/ or antenna information was not provided and could not be obtained while on site. In the event of unknown information, Telnet will use our industry specific knowledge of equipment, antenna models and transmit power to model the site. If more specific information can be obtained for the unknown measurement criteria, remodeling of the site is recommended. If no information is available regarding the transmitting service associated with an unidentified antenna, using the antenna manufacturer's published data regarding the antenna's physical characteristics makes more conservative assumptions Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 30 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received 2. Proposed Site Characteristics Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Structure Physical Description Light Pole Site Latitude NAD 83 33.612556 Site Longitude NAD 83) - 117.847722 Site Elevation(AMSL) N/A _ Structure Height(AGL) 33' Overall Structure Height 35' b. Accessibility Open Area. c. Verizon Wireless Si2nalle .A,�® puuraa SI!,naee •=`www - _ .__ - �: �� .`.^-,o:,,,,,m Guidelines Notice 1 Caution I Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ # ❑ #] ❑ Alpha ❑ (#] ❑ [#] ❑ [#] ❑ (#] ❑ (#] ❑ Beta ❑ [#] ❑ L#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Existing Signage Adheres to VZW Signage& Demarcation Policy? N/A Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 31 Planning Commission - November 5, 2015 PA2015-04 Item No. 4a: Additional Materials Received d. Antenna 111%entory Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) x — TX Freq ERP Azimuth72° 0 ( 3 0o X Y c ID Operator Type ) Model (de o neo MHz (Watts (deg.) E vW x° v ,— (ft) (ft) N Q m N 1 LTE Panel 746 1443 SBNHH-1D65A 90 4.6 66 103 100 29 0 1 1 PCS LTE IPanel 1900 4562 1 SBNHH-1D65A 90 4.61 64 11031100 29 0 1 1 AWS LTE jPanel 2100 4668 SBNHH-1D65A 90 4.61 62 11031100 29 0 2 1 LTE Panel 746 1443 SBNHH-1D65A 210 4.61 66 1 99 197 29 0 2 PCS LTE Panel 1900 4562 SBNHH-1D65A 210 4.6 64 99 97 29 0 2 AWS LTE Panel 2100 4668 SBNHH-1D65A210 4.6 62 99 97 29 0 3 LTE Panel 746 1443 SBNHH-1D65A 330 4.6 66 99 103129 1 0 3 PCS LTE Panel 1900 4562 SBNHH-1D65A 330 4.6 64 99 103129 1 0 3 AWS LTE Panel 2100 4668 SBNHH-1D65A 330 4.6 62 99 103 29 1 0 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 32 Planning Commission - November 5, 2015 Pn201e-094 Item No. 4a: Additional Materials Received 3. Analysis Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Predictive Model: All Transmitters at Ground Level —a �a O N J 200 ft Max Verizon SLnulalion Lexel 10.0% —+-33 ft--f— a Farerb Wall R.11.p Obl.d �— CANa1En Nr k, ANTENNA: _ cabl.tray Baner Brea gaaha.Pab, o TELNET,INC., 76305tandixh Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840.0162;Web:w Jelnet-Inc.com Color % Occupational MPE 0 to 20 20 to 100 ® Greater Than 100 Greater Than 1000 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 33 PA2015-094 Planning Commission - November 5, 2015 �c Item No. 4a: Additional Materials Received h. Predictive Model: Significant Con trlerizon VVireltesslr�i l� cb�"My'rblecom Appeal (PA2015-094) AJAO IN o - N :f k 200 ft Max Verizon Simulation Level 10.0% —I)-33 ft—F a Ev4ripr Wall Rooftop Obled CARRIERof areae ---- ANTENNA: QKxET axrxOMlx cabw Tray fianier Area Anrxo,roam Ell TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inc.com Color '% Occupational NIP E 0 to 1 1% Confidential& proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement i Verizon Wireless 34 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2O15-094) c. Predictive Model: All Transmitters at Light Level 0 N -200 ft-- Max Verizon Simulation Level 1795.5% -}-33 ft--4- ERe,W Wail Rooftop Oblea CARRIER RE k'.n --- ANTENNA: TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840.0162;Web:w Jelnevinc.com Color % Occupational MPE 0 to 20 F7 20 to 100 Greater Than 100 Greater Than 1000 Confidential& proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 35 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received III Predictive Model: Significant Contri�YtQi;yy .Vi elie�steRis h�ro ffla�yelTelecom Appeal (PA2015-094) Old1 s r 0 c N J - 200 ft Max Verizon Simulation Level 17955% —�-33 ftp--I-- Eatenor wan aoonw,oblen -- — CARRIER RF ser«R M T ANTENNA: ON Cable T.ry ..-_ aaMer area Anchor Point Q. TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax,301-840-0162;Web:wwmTelnet-Inc.com Color % Occupational MPE 0 to I > 1% Confidential &proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless s6 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received 4. Conclusion Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Conclusion Narrative Description of MPE-Lintit Exceeding Areas: (Ground level) VZW Alpha sector is not exceeding 20%Occupational population limits VZW Beta sector is not exceeding 20%Occupational population limits VZW Gamma sector is not exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Ground level) VZW Alpha sector is exceeding 1%Occupational population limits VZW Beta sector is exceeding I%Occupational population limits VZW Gamna sector is exceeding 1%Occupational population limits Description of MPE-Limit Exceeding Areas: (Light level) VZW Alpha sector is exceeding 20%Occupational population limits VZW Beta sector is exceeding 20%Occupational population limits VZW Gamma sector is exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Light level) VZW Alpha sector is exceeding 1%Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement i Verizon Wireless 37 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received b. Compliance Requirements Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Signage/Barrier Diagram N I If 1i 1 ' Sector C Sector A � l _ a N A . _ 1 Sector B 200 ft X33 ftp F Exterior wall Rooftop Object CARRIER a SPRINT RF Sween —-— ANTENNA: Cable Tray Barrier Area Anchor ftkrt ❑i TELNET,INC., 7630 Standish Place,Rockville,MO 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-inc.com Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless s8 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received Compliance 911 094) ®TOfiCE® • F Requirementsr 139_-_...._..._ Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] Cl [#] ❑ [#] 111#1 ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Signage/Barrier Installation Detail Site Access Locations No action required. Alpha Sector Location No action required. Beta Sector Location No action required. Gamma Sector Location No action required. Confidential&proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement i Verizon Wireless 39 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received 5. Appendix C: RF Consultant Certii7e9t10jpn Wireless Right-of-Way Telecom Appeal (PA2O15-094) a. Preparer Certification 1,Steve Fruit,the preparer of this report,am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC)and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. 1 am also fully aware of and familiar with the Verizon Wireless Signage&Demarcation Policy. 1 have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. b. Reviewer Certification 1,Keihan Farhadian,the reviewer and approved of this report,am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC)and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage&Demarcation Policy. 1 have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. Confidential&proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 40 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received 6. Appendix D: Reference Informatio erizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. FCC Rules& Regulations The Federal Communications Commission(FCC)has established safety guidelines relating to RF exposure from cell sites.The FCC developed those standards,known as Maximum Permissible Exposure(MPE)limits,in consultation with numerous other federal agencies,including the Environmental Protection Agency,the Food and Drug Administration,and the Occupational Safety and Health Administration. The standards were developed by expert scientists and engineers after extensive reviews of the scientific literature related to RF biological effects. The FCC explains that its standards"incorporate prudent margins of safety." The following represents explanations of the most applicable information: Two Classifications for Exposure Limits Occupational—Applies to situations in which persons General Population—Applies to situations in which are"exposed as a consequence of their employment" persons are"exposed as a consequence of their and are`fully aware of the potential for exposure and employment may not be madefully aware of the can exercise control over their exposure'. potential for exposure or cannot exercise control over their exposure'.Generally speaking,those without significant and documented RF Safety&Awareness training would be in the General Population classification. Environment Classification Controlled —Applies to environments that are restricted Uncontrolled—Applies to environments that are or"controlled"in order to prevent access from members unrestricted or"uncontrolled"that allow access from of the General Population classification. members of the General Population classification. Limits rOccupadonallCoittrolledExpo.vure Frequency Power Density Av raging Time Range (S) IIEI', H11,or S MHz mw/ems minutes 300-1500 V300 6 1500-100,000 5 6 Limits for General Population/Uncontrolled Exposure Frequency Power Density raging Time Range S IEII, JH11,or S MHz mw/cmz) minutes 300-1500 fl1500 30 1500-100,000 1 30 =fre uencr in,MHz Significant Contribution to the RF Environment Any carrier contributing an aggregate MPE percentage of 5 or more(to the applicable RF Environment Classification)is defined as a significant contributor.This means that if any area is determined to be out of compliance with FCC rules,all significant contributors are jointly responsible for correcting any deficiencies. b. Occupational Safety and Health Administration(OSHA)Requirements A formal adopter of FCC Standards,OSHA stipulates that those in the Occupational classification must complete training in the following: RF Safety,RF Awareness,and Utilization of Personal Protective Equipment. OSHA also provides options for Hazard Prevention and Control: Hazard Prevention Control • Utilization of good equipment • Employ Loekoutrrag out • Enact control of hazard areas • Utilize personal alarms&protective clothing • Limit exposures • Prevent access to hazardous locations • Employ medical surveillance and accident • Develop or operate an administrative control response program Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 41 Planning Commission - November 5, 2015 PA2015-094 Item No. 4a: Additional Materials Received c. RF Signage Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Areas or portions of any transmitter site may be susceptible to high power densities that could cause personnel exposures in excess of the FCC guidelines.These areas must be demarcated by conspicuously posted signage that identifies the potential exposure. Signage MUST be viewable regardless of the viewer's position. GUIDELINES NOTICE CAUTION WARNING Used anytime hazard signage is Used to distinguish the Identifies RF controlled Denotes the boundary of employed to achieve FCC compliance. boundary between the areas where RF areas with RF levels This sign will inform visitors of the General exposure can exceed the substantially above the basic precautions to follow when Population/Uncontrolled Occupational/Controlled FCC limits,normally working around radiofrequency and the MPE but below 10 x the defined as those greater equipment. Occupational/Controlled Occupational/Controlled than ten(10)times the areas.The limits MPE. Occupational/Controlled associated with this MPE. notification must be less than the Occupational/Controlled MPE. ® NOTICE ® • QCAUTION GUIDELINES FOR WORKING IN RPIOFREOUENCY ENVIRONMENTS ,��Npsrn OYUR11rrv�AwPngFMn^.rrry RMfl I�INWsvml MrrlTnY w..analmniFMtrnX �<<�'�� - a.,n,IR.JrvIaU.. J `1 v,ugmm�enna'nVl,.aaasn Kn4Y!.YX'•V a! ((ti), n ?IM rlrnrmv alnni nF nrrinrn Rtlls M1epurYRKtlaMyeb RayorW rlua VOYx 9batlMYRXYp Ipl ilryurli vtl.l ry/n.na papyri astl Yra,<C Rnb�rryun[Y IItl ar XYa ya RaiRXRiryCYYtliXly yRrR1/Wa4pwaa Yrtt eMiCC rul�la i�1tlIXFCCIIMMRNI� a pnvnlPo ni. nlKowaaXl rµnr nrAnrna ^w' Inarar µn �b - - uFIW YaJJr OaYXlrumY opraalur� 4Ma�rYrWbia WM.nr - -.ws.^n RFrnbYp MMu.XrnM.l aX .a. ��nn TA mni Wn+rl la J .FmmsF nRTmni mm •w •"'d• WRNarb�raRaaaVp rn— aunisnaW.�rn—ea F1.I INFORMATION SIGN Information signs are used as a means to provide contact information for any questions or concerns.They will include specific cell site identification information and the Verizon Wireless Network Operations Center phone number. d. Barriers A barrier is any physical demarcation employed as a preventative and/or notification measure that one is entering into an area with RF power density levels greater than the General Population/Uncontrolled limit. I dt Confidential&proprietary material for authorized Verizon Wireless personnel only. Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless 42 Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) E v v W �+ u n 0 ¢ n � u O m w C O n t o o 0 L^ n �I 2 w o u � � � c ¢ 10 � o m c E 0 S m - 4 m i m E N �o 0 � W O � 5 0 - a� ■ o 0 „ a m N O S V N D O O O C C m � ¢ P V 8 S O N . H cc n n n p L ¢ s n. N . r o m 3 cc U E � o n D C N N � d V oC U Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) m E m m u loc3 0 � n � n K N o Oat m w m_ o Y a / £ `o 0 2 c w m tc 5 u S � 10 T C tc m W O Fi� m G E m n 'o c = c > m m 16 40 i E � W 52 a N „ 9 Q O a m 1 j mO u m v to m •P {� O w e16� m n i 2 z U v nJ o d_ `! ZZ cc U m ti to E r _ ■ m , ac a a c m A w m U Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) L� � Oq V W n Old p n m `o o, g 1 = as =i H O N J 1 C m 0, g p W b Y am o IL b �• u u / 3 A n n p A cc e NJ F m 8 "I 40r7r� 1 \LA-7 1 CL LU iy I 4 � + N .• , u tit I(1j/ CL 0u CL LU P J � 4 e Ott- LU � V J �' n 1 v.� � ' ..•ri G i SSC • � � � ,•I �r. ,4 Y41K T. Ry • r w Yr rl. r. r ui co 0 Cl- u LL 0 LU co •, 1p 41 ILno ` e AdW e!. ! . r ' • r �+ co R CL AW . . g !+ . . . -. s Zr; y �. ::•.moi, R&WSI I I 1111 • • • ' ' D.." � • i _ 3 " _ X07 � . • ,•� 1 C6 co i • VA c Ir • / 1 f r 0 LU y 1 Lu 7 i • uj ui �-I 5 rl . : 3 A + ( U Planning Commission - November Item No. • • • ' • Ivy LU "R J) • • 1 . yA CO u LL 0 LU s 5� Q Lu CL LO r.. - • 4 G � i • } 7 CD C • R. col Lul Uj t y • . a `, y.. in ' {_. W co A Mfs' y v..rt s • • i WN, Z rt pv _ W Planning Commission - November 5, 2015 gIt e fa.@Wir a ht (,p I App a�,(+' 2015-094) a�E�E} a� ��o$ Z t �} 3B3BY y w K � �6 1 E Q ga w 0 `o\ z Q sl a � .r 0 r . � s yf tl ESE ,, E V 9 9 :, � 5f i Rig R N EQ a Planning Commission - Novembr5, 2015 . l R miAd } , , | mEe ' h ' T[ plR gGOy P � : ! Q g ! ( •■ % E) | \ / ( ' �� & 2� K �k, , w. d i■g §�! � < : , | # | . !�� § % _ 9 3 \ it ) { � ` �2 2 � ,2� Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2O15-094) Name Email Vote Street Comments Auther Yes Calvados We need this pole to guarantee us Verizon customers full time service.As it stands I now have only a very weak signal at best g0%of the time at my home! Please please install this pole!!! Car!Zylstra Yes Port Charles We must have a pole somewhere on the south side of Fashion Island. Doris Williams Yes Sandbar Dr George Kent Yes Gorham Dr. Lana Smith Yes Spyglass NOT included in%Calc. The only one with no email and generic street. Marsha Whitehill Yes Monterey Cir We need better cell reception in Spyglass Hill. It has definitely deteriorated in the past several months for some reason. Marty Shapiro Yes Montecito Cons listed above are scare tactics. I believe there is bias against and that there are more advantages having strong cell signals. Health hazard concerns are not substantiated. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Stanley King Yes Port Stirling Pl. Having worked 36 years in telecom, I never heard of any harm from microwave radio, cell antennae, or radio transceivers unless someone put their head in direct contact or within a few feet...so 30' high is not a problem in my view. Thousands of locals will benefit from improved reception] --- ASKED Explicitly&firmly not to reveal his name&any other info.SO PLEASE Do NOT USE THIS ROW&any info related to Stanley King Alan Miller Yes Bodega Bay lisa helton Yes harbor ridge drive Anita lindstrom No Drakes Bay drive The pole will be a horrible impact on our community, Please find another location at the end of EI Capitan towards San Joakim hills drive Aviles No Muir Beach cell phone radiation is a danger for kids and adults Betty Leu No San Mateo Way Brenda McCroskey No Goleta Point We do not need the pole. It's the Port Streets that complain about Verizon coverage not Spyglass,so the pole would be better placed closer to them. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Brian &Sandy Stransky No Goleta Point Drive Please consider placing the cell tower in a location that is not adjacent to either homes or a park where we bring our children&dogs to play. Bruce and Laurie Horn No Cambria drive Carol Cohn No Bodega Bay Drive I would like to see any cell tower(this and any future towers)placed In an area farther away from current residences and not in a community park. Charles Champion No Cambria Drive Cyrus Mehrfar No 20 Morro Bay Dr For the health of my loved ones 1 am voting NO on wanting a Verizon cell phone pole in our neighborhood. E. C Sheffield No Morro Bay drive Elaine Hyatt No Jade Cove Francesca and Stan No Morro bay drive Solomon Francesca and Stan No 16 morro bay drive solomon Fullerton No half moon bay Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Gerri Shah No 40 Mission Bay Drive We don't feel that a cell pole should be installed within our neighborhood at EI Capitan and Spyglass Hill Road. These poles should be installed within certain feet allowance from residential neighborhoods for the health and safety concerns for all. Put these cell poles up on the highest hillsides where there is an open space away from neighborhoods as well. Gretchen Benes No 15th street NB Harry Skinner, MD, PhD No Muir Beach Circle IAUSD has decided that there should not be cell phone towers near schools:possible detrimental health effects.we should not have them near where our children are playing either. The financial benefits of a cell phone tower are negligible. A cell phone tower in our neighborhood is a very very bad idea .There is growing evidence that this type of exposure is dangerous for our health. We will no longer use the park if this is approved. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Harry, Renee, Lacey and No 1 Muir Beach Circle We all understand that medicine and Lauren Skinner scientific evidence lags during the period of experimentation and discovery. Potential environmental health hazards sometimes require years of investigation and the accumulation of convincing evidence before deemed a true hazard. In the interim,the public?s health becomes part of a ?natural experiment?that ends up inadvertently contributing to the evidence(i.e. Cigarette smoking,asbestos, lead-based paint?) ,We ask that the HOA or City of Newport Beach take prudent precautionary action on the issue of the cell phone tower(microwave radiation)given the need for further scientific evidence. The American Academy of Pediatrics has called for more studies, pointing out that children are especially vulnerable to harmful environmental exposures. In August,the American Academy of Pediatrics wrote a letter to the FCC,asking for a review of cell phone and cellphone tower safety regulations,which were written in 1996. ?It is essential that any new standard for cellphones, cell phone towers or other wireless devices be based on protecting the youngest and most Hedemann No Hidalgo NO CELL PHONE TOWERM I have small grandchildren who play there and I live near- by. Ivan Yee No San Mateo Way Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Jake Easton III No 1100 Newport Center Drive Suite 110 Jake Easton III No Montecito Dr. JAMES&SUSIE CROUL No 49 CAMBRIA DR. Spyglass Hill park was created as a condition for the developer to obtain approval,of his tract map.The purpose was to have a park for the enjoyment for the residents of Spyglass Hill. NOT FOR A COMMERCIAL CELL TOWER. EVERY RESIDENT SHOULD GO TO THE HEARING. HOW CAN THE ZONING ADMINISTRATOR GIVE APPROVAL WITHOUT A PUBLIC HEARING? Karen Odell No Monterey Circle khosro mehrfar No 20 morro bay Kurt J. Miner No 7 Muir Beach Circle It is absurd that the Zoning Administrator has approved this in a residential area. Laurie easton No Montecito Liu No Cambria drive Lore Waechter No Cambria Drive Lorina Duran No Monterey Marcia Bernhardt No 6 Chaminade No.No. No. Health Risks are a major concern. Will lower property values. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Mary Renter No San Martin Way We do not need this phone pole in Spyglass, our service works fine. DO NOT INSTALL. michelle miner No 7 muir beach circle Please consider the children's health. I have four children who reside here and they all wish to vote"NO" which makes 6"NO" votes for the Miner residence Michelle Miner No 7 Muir Beach Circle Cell towers pose a health hazard to our community. Patience Bethel No Cambria Drive Patricia Rodewald No Morro Bay Drive Paul Brailsford No Morro bay drive Purvis Carol No 3 Jade Cove I have Verizon and get great reception and I don't think we need anymore "eyesores" in the neighborhood. People don't want to "live"next to these type of installations. They belong in commercial areas not residential. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Renee Skinner No Muir Beach Circle As a healthcare practitioner myself there is A LOT of Scientific data to suggest that sell phone tower radiation is harmful! Having it at a park is even worse because children's brains are much more susceptible to radiation then adults. Their brains have more water In them, and they are growing ata rapid rate. If this cell phone tower gets put in our community,we will move for sure. Reza Lotfi MD No 22 Mission Bay Dr Richard Afable No Montecito Dr. Roya Mehrfar No Morro Bay Dr Sally Afable No Montecito Dr. Shannon McCroskey No Goleta Point We don't need a Verizon cell tower-our service is fine. shari ciko No monterey circle Solomon No Morro bay dr Steven Kirsch No Point Sur Stuart McCroskey No Goleta Point Our Verizon service is fine and we do not want the pole! Susan Champion No Cambria Drive Why not install this in a commercial spot rather than in a neighborhood?Why not over in the land near the 73 freeway or along the 73 corridor? Tammie Brailsford No Morro bay drive Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Therese Loutherback No 53 cambria dr Tina Kim No Belfort Tustin No Half Moon Bay Dr We're all for improving the signal but none of the companies are interested in a 'tree' pole that looks even close to something real. No thanks Vander veen No Drakes bay we don't want our kids to be exposed A Ruiter No Morro Bay Drive A.Amy Moayeri No Rocky Point Rd Afsaneh Farivar No 7 Goleta Point Drive Alain MONIE No 5 Trafalgar Albert Lin No 31 Half Moon Bay Dr. Alex Krall No Poppy Alyssa Chong No Rocky Point Amir Yazdi No Morro Bay Dr Amy Denoon No Tustin Amy Moayeri No 9 Rocky Point Thank you for your hard work Andrew Struve No Narbonne Anita Lindstrom No Drakes bay There are many other suitable locations where the tower would not hurt people and or propertiesOur property values would be severely impacted with a 20%drop in price and desirability In addition severe health risks have also been found Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Anonymous No Harbor Ridge These poles can be designed to look very much like trees. Also as flagpoles with the American flag and California state flag flying high. arico kim No Napoli Armen gugasian No Goleta (harbor rider residents are greatly affected by this also Armen gugasian No Goleta AUDE ZIBELL No LITTLE RIVER Azar Kutchemeshgi No Jade Cove Bahram Farshidi No tiburon bay dr Bernstein Rosella No Saint Tropez The cons far outweigh the reasons for putting up a tower--better recepton is not worth it. Bill denham No Monterey cir. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Bonnie Harrington No 14 Monterey Circle The health issues, home values and the "slippery slope"for other carriers ro invade must be studied 1 What is the rush ??? AND where is our Board MI They did not attend the city's mtg-derelict with their responsibilities H I am angrythat I had not learned of this til today. Shame on our Board for not communicating this in a timely manner. I want the action on this to halt until all Spyglass households speak their concerns. Let the Point install this in THEIR tract. Spyglass Verizon reception is already excellent. I resent being railroaded by the city. Bonnie Scidmore No 11 Montecito Drive Brenda McCroskey No Goleta Point There is plenty of raw land,away from playgrounds and homes to place this in. It impacts home values,people's perception of home values and desirability,and our enjoyment of our City's Parks. Brian Stransky No Goleta Point Drive Put the tower somewhere besides in a residential neighborhood by a playground! Brielie Fisher No Goldenrod Cameron Massoudi No Muir beach circle I won't play in that park any more Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Cathy Udall No 7 Rocky Point Road CHAD MCAFEE No Drakes Bay Or I am for having tower installed closer to our community as service is extremely poor however I am against installing one in a children's Park given that there are plenty of open locations in the general area that can be away from houses and where children play. charline howell No Vienna Cindy Cooper No Malibu Circle cindy thomas No lucerne First 1 have heard of this so I do not think that community involvement or input was properly considered. I do not want a cell tower in a children's playground. Nor do I want a cell tower in such a visible an awkward location and certainly not if it leads to additional towers from other companies. I emphatically vote NO! Constance Quarre Moses No Monterey Circle Craig Rodewald No morro bay drive cramer No harbor ridge drive D.Kumar Ramisetti No 19 Cherbourg Dan Perlmutter No Mission Bay Drive Danny Behboodikhah No Cambria dr dar!ene dillon No Napoli David Fishman No Geneve Dean CHong No Rocky Point Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Dean Wiener No 5 Malibu Circle This is a really bad idea to have a base cell tower at the entry point of our Spyglass neighborhood close to many homes who will have to see this unsightly tower and having this at a park where people are and children play Is not a good idea. In addition there is clear evidence that home values will decrease as a result. We are very opposed to this and look forward to positive interactions with the planning commission for the city to find a more appropriate location.Absolutely not. No way. This does not belong in the middle of a residential neighborhood. I strongly oppose. Dean& Holly Wiener No Malibu Circle We highly contest the location of the Verizon cell phone tower to be placed at the Spyglass Park. Debby Manning No Belmont Deborah Anderson No bodega bay drive Deborah Oldham No Muir Beach Circle This will cause a significantly lower property value to our family home. Please do not install this cell tower. It won't look natural in our beautiful community park. Debra Dajee No Narbonne Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Di Giorgio Tracy No 36 Shoreridge we do not want a cell tower anywhere near where we live for personal and Medical reasons. Doug Ediund No Half Moon Bay Drive EC Sheffield No Morro Bay drive Elis Chong No Rocky Point Rd We cannot have a cell tower next to the park where my kids play everyday. I stronger believe that there will be radiation and potential health hazard !!1! NO TOWER PLEASE !111! EIIA massoudi No Muir beach circle i can't play in the park anymore eric panahi No trafalgar Eva &graham Branton No 17 harbor ridge dr Eva &graham Branton No 17 harbor ridge dr Eva Khwaja No Monterey Circle I'm am voting a big NO. Under no circumstances I would be in favor of the cell phone tower I am totally against it Evyatar levy No Drakes bay Against[The tower Farzad Massoudi M.D. No Muir beach Circle Absolutely against it! Fay Morisseau No Montecito Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Floriana Anhood No 7 Napoli,Newport Having a tower in a children's playground is Beach unacceptable...Safety/health issues being my first concern.,Also,there must be other areas available that are not part of an existing residential area. How about an Industrial or commercial area?I That would make more sensel frank and keets No monterey circle burlingham Frank Nese No Bodega Bay Dr. No or home is straight across from where they want to put this tower-It will even obstruct more of our view and it will be an eye sore for our community-It makes no sense that it be put there when there are so many places they could put this-I'm furious and it is also a danger to all of our health..l seriously can't even imagine this being considered.Frank and Frances Nese Fred Khonsari No 10 San sebastian Gary Quinlan No 5 Monaco Genia Panahi No Trafalgar George Gemayel No Rocky Point Road ghanshyam Lohiya No Rocky Point gharoon panahi No trafalgar Ghity Mandara No Morro Bay Drive Gina Kiziroglu No 41 Montecito dr. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Gordon Fishman No Ridgeline Gwenola&Pierre-Edouard No Narbonne Hamid No 3 Goleta Point Dr. Harpreet sandhu No Rocky point rd I would like to vote no against this proposed cell tower primarily on the basis that it is unfair to burden our community with reduced property values.There are clear studies showing most people don't want to live near a cell tower due to perceived or unknown health effects and unsightliness of the tower. By installing one in the midst of our community you will clearly cause us all financial harm.This tower should be placed at an alternate site away from residential structures where people live all day and all night. Harry Esayian No Monaco Opposed to any cell towers in residential areas surrounding Harbor Ridge. HASSAN MAHDARA No 8925 Research Drive Himmet Dajee No 5 Narbonne Hoda Abazari No Morro bay dr Houshang Moayeri No Rocky point Rd Good luck... Hugo F.Aviles No 17 Muir Beach Circle Hugo F.Aviles 11 NO 17 Muir Beach Circle Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Irene Aviles No 17 Muir Beach Circle Jaden Boreyko No 14 Rocky Point Rd We have small children and we are not in favor of this because of the health risk as well as property decrease. Jan Kovac No 5 Coventry Jane Liu No 57 Cambria Drive jasmine moini No monterey circle Jason Boreyko No 14 Rocky Point Rd. We are against this tower because it will reduce our property values. Jerry Carlton No Rocky Point Jerry Harrington No Geneve Jim Damon No 4 Mission Bay Drive We do not want the Pole.Let the Zoning Administrator who approved it have it installed in his backyard! Johanna Kim No 8 Narbonne i definitely think we need a cell tower but why don't they put one further up on EI Capitan pass harbor ridge where there is plenty open space?? John Strahl No Montecito Drive John Stranberg No 27 Bodega Bay Drive Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Judy cwiertnia No Goleta point drive we are definitely opposed to the cell tower being placed in such an inappropriate place. Health is more important than any other factor. Move it away from children playing &adults enjoy that park also. How unfair of you to lower our property values that we have worked so hard to get to live here. Junie Chong No Rocky Point Kamran Taghdiri No Drakes Bay Karen Odell No Monterey Circle I strongly oppose the cell tower installation due to the negative impacts listed above. Verizon should find another location that won't negatively affect anyone's property values or health. Karen Thurston No Morro Bay Don't wreck our property values and risk the health of our children. Karen Ursini No Cambria Katalina Aviles No 17 Muir Beach Circle Katherine Morisseau No Montecito Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Ken Krantz No Mission Bay Dr. We are strongly opposed to this pole for the reasons mentioned above. I attended the HOA meeting the other night and heard the attorney state that HOA funds could not be used in efforts regarding projects outside the HOA area. I was wondering if that is accurate if the effect of the project directly causes harm through the electromagnetic radiation entering into the HOA area. Thanks. Kendra gugasian No Goleta Kenneth Chong No Rocky Point Kim Massoudi No Muir Beach Circle I am bs utile against the pole for property depreciation eye sore and the damaging Kristen Vander Veen No Drakes bay Laura Daniels No Carmel Bay Drive Lauren May No Trafalgar Laurie and Bruce Horn No Cambria Drive Please reconsider installing this pole at this Iocation.,Not only will it be an eye sore,but it is not something that should NOT be close to families especially and children in our neighborhood.. Leanne Cohen No Mission Bay Please inform residents to call their cell phone carrier and request a personal "booster"for their home if they are experiencing poor service. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Lehn Clarice No 15 Goleta Point Drive Health hazard for our children &families playing in park. Looks very bad for the entrance to our neighborhood. Lehn Clarice No Goliath Point Dr. Lehn Richard No 15 Goleta Point Drive Severe health hazard for family's playing in parkil Leo Pinsky No Morro Bay Levon gugasian No Harbor ridge Iharbor rider residents are greatly affected by this also Lil Carney No Little River Circle Linda Hedemann No Bodega Bay Dr. Lore Waechter No Cambria Drive lucinda bloom No Vienna Lynn Stranberg No 27 Bodega Bay Drive Marcy Kim No Bodega Bay Drive Maria Fitzpatrick No Saint Tropez I oppose this for the following reasons:a. Health impacts of a cell tower being placed at a children's playground/dose to homes. b. Impact on property values. c.Visual and community impact Maria Paredes-Sunshine No 2 Salzburg Marilyn Skarin No Montecito Dr. Marlis No Point Loma drive My mother passed from a brain tumor. We used to live near a cell tower. Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Marsha Stein No San Sebastian I oppose the installation of the cell tower at the corner of EI Capitan Drive and Spyglass Hill Road. This tower will negatively impact my view present a potential long-term health hazard and will diminish the property value of my home. Martin Cooper No Malibu Circle Martin Cooper No Malibu Circle Maryhelen Richey No Point Loma McCallum michael& No Coventry Marilyn mike mahmoud yamin No 33 goleta point drive Milford Dahl No Belmont Mohammad Naheedy No Goleta Monigal No Point Loma Drive Nancy Armijo No East Coast Highway Nancy Armijo No East Coast Highway Nancy Bunn No Half Moon Bay Drive Nancy Khoo No Rocky Point Nancy Morisseau r No Montecito Naomi Nagasawa No 6 Windsor Naz Irene Valer No Balboa blvd Norbert Foigelman No Harbor Ridge Drive Norman No Bain Olivia Dajee No Narbonne Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Pam Munro No Hillsborough A cell tower is not needed as Verizon coverage is already very good in the neighborhood.A cell tower would be unsightly and belongs in a commercial area not a purely residential one. It will obstruct views and lower property values as new buyers will look elsewhere to live. Paul Fitzpatrick No Saint Tropez I oppose this for the following reasons: a. Health impacts of a cell tower being placed at a children's playground/close to homes. b. Impact on property values. c.Visual and community impact Paul Morisseau No Montecito Penelope Parmes No Vienna Peter Helton No Harbor ridge Peter Liao No Goleta Point Drive Powell Thurston No Morro Bay Don't wreck our property values and risk the health of our children. Randy and Janice Berg No Cambria Rasheen Ataian No Point Loma Drive Raymond Moayeri No Rocky Point rodewald No 8 Morro Bay Drive Ronald Katz No Tiburon Bay Drive Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) rosemary jadia No rocky point rd please don't bring this cell phone tower into our neighborhood thereby causing us a large loss in property value. in general people do not want to live near cell towers and having one here will reduce values. can it be placed in a non-residential commercial area where lives are not near it 24hrs a day 7 days a week and where it won't cause financial harm for example near fashion island or on a tower nearby? Ross Panahi No Trafalgar Ruth Tollman No 61 Cambria Saied naaseh No Lucerne im concerned about the usual impacts Sandra Perlmutter No Mission Bay Drive We do not want a cell tower in our neighborhood...especially near a park where children will be playing. Sandy Stransky No Goleta Point Drive Please put it somewhere else away from residential homes&playgrounds! Shakman No Vienna shari ciko No monterey circle SHARON ALLUMBAUGH No RIDGELINE DRIVE Silverstein No Montecito Drive simpson No crestwood Sirus Farivar No 7 Goleta Point Drive Planning Commission - November 5, 2015 Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Skye Boreyko No 14 Rocky Point Rd. We are opposed to this! Sonia Greer No 26 Drakes Bay Dr. I believe that a cell phone tower that is known to have serious health risks should have no place in a residential area, especially not at a playground. Steven Tallman No Cambria Stuart Nagasawa No windsor Sue Foigelman No Harbor Ridge Drive Susan Sinclair No Wellington Put this on empty land!!! There is alot around that is NOT near to homes children's playgrounds,etc. Tamar gugasian No Drakes bay Against!The tower Tara Brooke No 14 Rocky Point Rd I am totally opposed to this!!! We have lived here for 18 years and worked to hard for the value of our home to go down by 10- 20%this is NOT an option! Tara Lotfi No 22 Mission Bay Dr Terrence Greeson No 29 Montpellier N earned a out the health hazards and property devaluation Trevor Chong No Rocky Point WAECHTER FRED NO 41 CAMBRIA DRIVE There are other locations an possibilities. Also 1 understand that the City of Newport Beach collect fees from Verizon for their coffins. William Buchan No Carmel Bay Drive Planning Commission - November 5, 2015- Item 015Item No. 4a: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) william Littlefield No vienna no cell phone tower in HR. This is private property with no governmental agency involved. If the master board has approved this,they need to be recalled immediately.lf they have discussed it without informing the master association,they likewise should be recalled. William Warren No Bodega Bay Drive Put it further up the hill way from the park even better reception and more out of sight Xianghua No 7 Narbonne Zar gugasian No Harbor ridge Batch 1 Polls:Started on 9/1412015 Batch 2 Polls:Started on 9/23/2015 Batch 3 Polls:Started on 9/24/2015 Batch 4 Polls:Started on 9/26/2015 Batch 5 Polls:Started on 10/09/2015 Biddle, Jennifer Subject: ADDITIONAL MATERIALS RECEIVED - PC MEETING - NOVEMBER 5, 2015 Attachments: Bay Hill-040715.pdf PLANNING COMMISSION — NOVEMBER 5, 2015 ITEM NO. 4b: ADDITIONAL MATERIALS RECEIVED VERIZON WIRELESS RIGHT-OF-WAY TELECOM APPEAL (PA2015-094) From: Harry Skinner rmaIto:h.skin ner(abcox.net] Sent: Thursday, September 24, 2015 3:15 PM To: Zdeba, Benjamin Cc: Brenda McCroskey; bhornCla pri-mark.com; IauriehornCla cox.net; 'R Lotfi'; 'k.e. mehrfar' Subject: FW: Bay Hill Dear Ben, I had a long discussion with this person, it turns out that they had no idea that there was a hill adjacent to the proposed cell tower. This is important because the RF going out from the cell tower is not 30 feet above grade, because the grade of the grassy play area is about 5-6 feet above sidewalk grade and then the hill raises another maybe 10 feet to the monkey bars. If the RF goes out horizontally, people standing by the monkey bars (or ON the monkey bars) would be 15-20 from grade and could be getting significant RF. She said they would do a re-analysis when they got the information on the topography. I think that this email points out that Telnet overlooked a potentially serious flaw in analyzing the radiation distribution of the tower, and it may not meet FCC safety requirements. I would recommend that this tower be put on hold until Verizon provides further analysis. Harry Harry B. Skinner, M.D. , Ph.D. Professor Emeritus, Orthopedic Surgery, Bioengineering, Mechanical and Aerospace Engineering Univ. of California, Irvine Current Private Practice, St Jude Heritage Medical Group Work: (714) 626-8630 E-mail: hskinner@hskinnernet; harry.skinner@stioe.org From: Maryann Ovichi rmailto:maryam.ovichi(catelnet-inc.com] Sent: Thursday, September 24, 2015 2:18 PM To: 'Zablocki, Lynne' Cc: hskinner(ahskinner.net Subject: Bay Hill Hi Lynne We need the height and the exact location of the hill compare to the light pole in order to simulate from the Hill level. Thank you for helping us in providing those information. Regards Maryann Ovichi, Ph.D. Project Manager 1 Telnet Inc. 7630 Standish Place Rockville, MD, 20855 Office: (301) 840-7110 ext. 61062 maryam.ovichi@teinet-inc.com z Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received Verizon "ss ss Right-of-Way Telecom Appeal (PA2015-094) VerIZQnwireless Radio Frequency Exposure Pre-Installation FCC Compliance Assessment Site Specific Information Site Name Bay Hill Categorically Excluded? NO NE CORNER SPY GLASS HILL Street Address DRIVE AND EL CAPITAN DRIVE 1% Contributor To Areas YES City, State,Zip NE PORT BEACH, CA 92662 Requiring Mitigation? Multi-Licensee Facility NO Max %MPE Predictive 10.0% Structure Type Light Pole Max %MPE (Measured) N/A Broadcast Equipment YES Assessment Date N/A #of Access Points 1 Assessment Purpose I Site Audit Compliance Status IN COMPLIANCE X Worst-case RF power density levels are BELOW the MPE for General Population/Uncontrolled Environments in accessible areas. ❑ Worst-case RF power density levels are ABOVE the MPE for General Population/Uncontrolled Environments but BELOW the MPE for Occupational/Controlled environments. Worst-case RF power density levels are ABOVE the MPE for Occupational/Controlled Environments but BELOW 1 Ox the MPE for Occupational/Controlled environments. ❑ Worst-case RF power density levels are ABOVE IOx the MPE for Occupational/Controlled environments. Compliance A NOTICE • AGAUTION aWARNING Requirements .wo',.EW�`�_� «»�. • - • Ocg) Tn�szvewnwo-.iesa Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Additional Compliance Re uirements(s): Site Access Locations No Action Required. Alpha Sector Location No Action Required. Beta Sector Location No Action Required. Gamma Sector Location No Action Required. Consultant Legal Name Telnet Inc. Phone/Fax 301-840-7110 Address 7630 Standish Place, Rockville,MD 20855 Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Contents 1. Executive Summary.........................................................................................................................................................3 2. Proposed Site Characteristics .....................-..................................................................................................................4 a. Structure........................... .......................4 b. Accessibility.................................................................................................................................................................4 c. Verizon Wireless Signage............................................................................................................................................4 d. Antenna Inventory.............................................................................................. _ .......5 3. Analysis ...........................................................................................................................................................................6 a. Predictive Model :All Transmitters ............................................................................................................................6 b. Predictive Model: Significant Contribution of Verizon Wireless.................................................................................7 4. Conclusion.....................................................................................................................................................................10 a. Conclusion Narrative.................................................................................................................................................10 b. Compliance Requirements........................................................................................................................................11 Signage/Barrier Diagram...................................................................................................................................................11 Signage/Barrier Installation Detail....................................................................................................................................12 5. Appendix C: RF Consultant Certifications .....................................................................................................................13 a. Preparer Certification................................................................................................................................................13 b. Reviewer Certification...............................................................................................................................................13 6. Appendix D: Reference Information.............................................................................................................................14 a. FCC Rules& Regulations...........................................................................................................................................14 b. Occupational Safety and Health Administration (OSHA) Requirements..................................................................14 c. RF Signage.................................................................................................................................................................15 d. Barriers......................................................................................................................................................................15 Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) 1. Executive Summary Verizon Wireless has contracted with Telnet Inc. , an independent Radio Frequency consulting firm,to conduct a Radio Frequency Exposure (RFE)Compliance Pre-Installation Assessment of the Bay Hill cell site. The following report contains a detailed summary of the Radio Frequency environment as it relates to Federal Communications Commission (FCC)and Occupational Safety&Health Administration(OSHA)Rules and Regulations for all individuals. The Verizon Wireless antenna data was provided by: Name Emanuel Higgins Title Assistant Project Manager Date 4/9/2015 Region CA This post-installation compliance assessment and report has been prepared and reviewed by: Preparer Reviewer Name Steve Fruit Keihan Farhadian Title RF Engineer RF Engineer Date 04/14/2015 04/14/2015 This report utilizes the following for predictive modeling of the ambient RF environment: MPE Modeling Program: Roofview 4.15 Required Modeling Assumptions: 100% Duty Cycle and Maximum Total Power Output. Additional Modeling Assumptions: General Model Assumptions In this report, it is assumed that all antennas are operating at full power at all times. Software modeling was performed for all transmitting antennas located on the site. Telnet, Inc. has further assumed a 100% duty cycle and maximum radiated power. The site has been modeled with these assumptions to show the maximum RF energy density. Telnet Inc. believes this to be a worst case analysis, based on best available data. If at any time power density measurements were to be made, Telnet Inc. believes the real time measurements would indicate levels below those shown in this report. By modeling in this way, we have conservatively shown exclusion areas (areas not to be entered without a personal RF monitor, carriers reducing power or performing real time measurements to show real time exposure levels). Use of Generic Antennas For the purposes of this report, the use of 'Generic' as an antenna model, or 'Unknown' for a wireless carrier, means that the information about the carrier, their FCC license and/ or antenna information was not provided and could not be obtained while on site. In the event of unknown information, Telnet will use our industry specific knowledge of equipment, antenna models and transmit power to model the site. If more specific information can be obtained for the unknown measurement criteria, remodeling of the site is recommended. If no information is available regarding the transmitting service associated with an unidentified antenna, using the antenna manufacturer's published data regarding the antenna's physical characteristics makes more conservative assumptions Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received 2. Proposed Site Characteristics Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Structure Physical Description Light Pole Site Latitude (NAD 83) 33.612556 Site Longitude (NAD 83) -117.847722 Site Elevation(AMSL) N/A Structure Height(AOL) 33' Overall Structure Height 35' b. Accessibility Open Area. c. Verizon Wireless Signage ®NOTICE® • QCAUTION Existinr SiEnase Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha 111#1 ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] 1-11#1 ❑ [#] ❑ [#] ❑ [#] ❑ Existing Signage Adheres to VZW Signage& Demarcation Policy? N/A Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received d. Antenna Inventory Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a L g a X y $ TX Freq ERP Azimuth ID Operator Type ModelQ 3 w r (MHz) (Watts) (deg.) E v o °q a mo 2 V (ft) (ft) C7 N Q m N 1 LTE Panel 746 1443 SBNHH-1D65A 90 4.6 66 103 100 29 0 1 PCS LTE Panel 1900 4562 SBNHH-1D65A 90 4.6 64 103 100 29 0 1 AWS LTE Panel 2100 4668 SBNHH-1D65A 90 4.6 62 103 100 29 0 2 LTE Panel 746 1443 SBNHH-1D65A 210 4.6 66 99 97 29 0 2 PCS LTE Panel 1900 4562 SBNHH-1D65A 210 4.6 64 99 97 29 0 2 AWS LTE Panel 2100 4668 SBNHH-1D65A 210 4.6 62 99 97 29 0 3 LTE Panel 746 1443 SBNHH-1D65A 330 4.6 66 99 103 29 0 3 PCS LTE Panel 1900 4562 SBNHH-1D65A 1 330 4.6 64 99 103 29 0 3 AWS LTE Panel 2100 4668 SBNHH-1D65A 1 330 4.6 62 99 103 29 0 Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received 3. Analysis Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Predictive Model: All Transmitters at Ground Level 0 2 0 N 2 200 ft Max Verizon Simulation Level 10.0% -+-33 ftp e Exterior Wall Rooftop Object CARRIER RF careen ---- VERIZON METRO PCS fable Tray ANTENNA: Barrier Area Anchor Polyd Ea TELN ET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/fax:301-840-0162;Web:www.Telnet-I nacom Color % Occupational MPE 0 to 20 20 to 100 Greater Than 100 _j Greater Than 1000 Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received b. Predictive Model: SignificantTelecom Appeal (PA2015-094) 3 w O 0 N 2 200 ft Max Verizon Simulation Level 10.0% -+-33 ft--+- a Exterior Wall Rooftop Object CARRIER RF Screen aaaaaa� VERIZON METRO PCS Cable Tray ANTENNA: Barrier Area Anchor Point O TELNET,INC., 7630 Standish Place,Rockville,M D 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Te1net-0nc.com Color % Occupational MPE 0 to 1 ® > 1% Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) c. Predictive Model: All Transmitters at Light Level 3 O 1 O N _ 3 200 ft Max Verizon Simulation Level 1795.5% +33 ft--+- F Exterior Wall Rooftop ObjM CARRIER RF Screen ——— VERIZONMETRO PCSSPRINT ANTENNA: Cable Tray Barrier Area Anchor Point ❑i TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www,Telnet-Inc.com Color % Occupational MPE 0 to 20 ® 20 to 100 Greater Than 100 Greater Than 1000 Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received d. Predictive Model: Significant CoiWgriODM(NV(iioe es8ARtgis -afi WayeTelecom Appeal (PA2015-094) 3 Cr 0 0 N 2 200 ft Max Verizon Simulation Level 1795.5% -4-33 ftee—jee a Exterior Wall Rooftop Object CARRIER METRO PCS RF Screen ---- ANTENNA: VERIZON Cable Tray Barrier Area Anchor Point ❑e TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-8400162;Web:www.Teinet-inc.com Color % Occupational MPE 0 to 1 > 1% Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received 4. Conclusion Verizon Wireless Right-of-Way Telecom Appeal (PA2O15-094) a. Conclusion Narrative Description of MPE-Limit Exceeding Areas: (Ground level) VZW Alpha sector is not exceeding 20%Occupational population limits VZW Beta sector is not exceeding 20%Occupational population limits VZW Gamma sector is not exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Ground level) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding I%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Description of MPE-Limit Exceeding Areas: (Light level) VZW Alpha sector is exceeding 20% Occupational population limits VZW Beta sector is exceeding 20% Occupational population limits VZW Gamma sector is exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Light level) VZW Alpha sector is exceeding I% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received b. Compliance Requirements Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Signage/Barrier Diagram OAA i Sector C Sector A 3 y w A i N m h Sector B 200 ft X33 ft--+— Rooftop tpRooftop Object CARRIER RF Screen --- ANTENNA: SPRINT ATBTOEM= CRICKET UNKNOWN [able Tray Barrier Area Anchor Point ❑. TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-inc.com Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received Compliance i I Q NOTICE - lecom Appeal ) ® CAU N Requirements M_ 1/ a o • • • AMam.■N Ot IS Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Signage/Barrier Installation Detail Site Access Locations No action required. Alpha Sector Location No action required. Beta Sector Location No action required. Gamma Sector Location No action required. Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received s. Appendix C: RF Consultant certWel Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Preparer Certification 1, Steve Fruit,the preparer of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage &Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. stege qua b. Reviewer Certification 1,Keihan Farhadian,the reviewer and approved of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions (FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage&Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. Ke uwvFCWha&anv Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received 6. Appendix D: Reference Informattlp/tHrizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. FCC Rules& Regulations The Federal Communications Commission(FCC)has established safety guidelines relating to RF exposure from cell sites.The FCC developed those standards,known as Maximum Permissible Exposure(MPE)limits,in consultation with numerous other federal agencies,including the Environmental Protection Agency,the Food and Drug Administration,and the Occupational Safety and Health Administration. The standards were developed by expert scientists and engineers after extensive reviews of the scientific literature related to RF biological effects. The FCC explains that its standards"incorporate prudent margins of safety." The following represents explanations of the most applicable information: Two Classifications for Exposure Limits Occupational—Applies to situations in which persons General Population—Applies to situations in which are"exposed as a consequence of their employment' persons are"exposed as a consequence of their and are`fully aware of the potential for exposure and employment may not be madefulli,aware of the can exercise control over their exposure". potential for exposure or cannot exercise control over their exposure". Generally speaking,those without significant and documented RF Safety&Awareness training would be in the General Population classification. Environment Classification Controlled —Applies to environments that are restricted Uncontrolled—Applies to environments that are or"controlled"in order to prevent access from members unrestricted or"uncontrolled"that allow access from of the General Population classification. members of the General Population classification. Limits or Occu adonal/Controlled Exposure Frequency Power Density Averaging Time Range (S) E 2, H', or S MHz) (MW/CM2) (minutes) 300-1500 f/300 6 1500-100,000 5 6 Limits or General Population/Uncontrolled Exposure Frequency Power Density Averaging Time Range (S) JE12, IH12,or S (MHz) (mW/cm2) (minutes) 300-1500 f/l500 30 1500-100,000 1 30 f=frequency in MHz Significant Contribution to the RF Environment Any carrier contributing an aggregate MPE percentage of 5 or more(to the applicable RF Environment Classification) is defined as a significant contributor. This means that if any area is determined to be out of compliance with FCC rules, all significant contributors are jointly responsible for correcting any deficiencies. b. Occupational Safety and Health Administration(OSHA)Requirements A formal adopter of FCC Standards,OSHA stipulates that those in the Occupational classification must complete training in the following: RF Safety,RF Awareness, and Utilization of Personal Protective Equipment. OSHA also provides options for Hazard Prevention and Control: Hazard Prevention Control • Utilization of good equipment • Employ Lockout/Tag out • Enact control of hazard areas • Utilize personal alarms&protective clothing • Limit exposures • Prevent access to hazardous locations • Employ medical surveillance and accident • Develop or operate an administrative control response program Planning Commission - November 5, 2015 Item No. 4b: Additional Materials Received c. RF Signage Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Areas or portions of any transmitter site may be susceptible to high power densities that could cause personnel exposures in excess of the FCC guidelines. These areas must be demarcated by conspicuously posted signage that identifies the potential exposure. Signage MUST be viewable regardless of the viewer's position. GUIDELINES NOTICE CAUTION WARNING Used anytime hazard signage is Used to distinguish the Identifies RF controlled Denotes the boundary of employed to achieve FCC compliance. boundary between the areas where RF areas with RF levels This sign will inform visitors of the General exposure can exceed the substantially above the basic precautions to follow when Population/Uncontrolled Occupational/Controlled FCC limits, normally working around radiofrequency and the MPE but below 10 x the defined as those greater equipment. Occupational/Controlled Occupational/Controlled than ten(10)times the areas. The limits MPE. Occupational/Controlled associated with this MPE. notification must be less than the Occupational/Controlled MPE. i ® NOTICE ® QCAUTION -Awl NG GUIDELINESFOR WORKING IN RADIOFREQUENCY ENVIRONMENTS P wess bay"'tltllwaeleNRao Wwe IEMQ ISM. ®NRwaelel emarbglM¢¢tte mml Geallvrkat ��•�� Ohryell poNwl¢pa. ®AwmeaY .. . ..em . . Av) anmenn mtlfy wnerseMaimEkepgapik ®Mairdain"i .3Fwla®ra—h—sO.rder— YFa4ae 8,d wa Rola 11ne Fs,Poem: ®NMabpinfiwM1daKmao Nle'PUIm� YemeaemeFCC Rale Fraeawms-edea,Xi-. RJb!,plume FWIeaTienile ®14e0aINe1PFnMlpnwMleNOatYg lmrerllvxeA 0—I Pwer exe intt FCCNulu niim gRoanael M®rorlano ®Nwe+WaMe"areaitlenwYbts"19asarYg mrnelocemlon, aeinpaRvw®' "ewe m la ®WMOW+Ie M¢e sllbna�mr¢Nqulpmad rtcrn. "'^'"•n• twO�u wu�m� W��ram.�.�r..e�n�'.a�..�v INFORMATION SIGN • • Information signs are used as a means to provide contact information for any questions or ""naY`.��.si "IeS concerns. They will include specific cell site identification information and the Verizon Wireless — Network Operations Center phone number. d. Barriers A barrier is any physical demarcation employed as a preventative and/or notification measure that one is entering into an area with RF power density levels greater than the General Population/Uncontrolled limit. Subject: ADDITIONAL MATERIALS RECEIVED - PC MEETING - NOVEMBER 5, 2015 Attachments: Ltr to City PC re VZW Responses to Appeal 110315.pdf PLANNING COMMISSION — NOVEMBER 5, 2015 ITEM NO. 4C: ADDITIONAL MATERIALS RECEIVED VERIZON WIRELESS RIGHT-OF-WAY TELECOM APPEAL (PA2015-094) From: Kevin Sullivan [mailto:ksullivan(absanlawyers.com] Sent: Tuesday, November 03, 2015 10:15 AM To: Hillgren, Bradley; Koetting, Peter; Kramer, Kory; Lawler, Ray; Brown, Tim; Weigand, Erik, Zak, Peter Cc: Zdeba, Benjamin Subject: Verizon Bay Hill Project- Verizon Responses to Appeal Issues Chair Kramer and Commissioners— Attached is a letter submitted on behalf of Verizon Wireless that addresses the appeal issues raised about Verizon's proposed facility within the public right-of-way adjacent to Spyglass Hill Park (Bay Hill). Hard copies of this letter are also being delivered to the City today. Thank you. Kevin Sullivan, outside counsel for Verizon Wireless. Kevin P. Sullivan, Partner LAND USE AND ENVIRONMENTAL PERMITTING AND LITIGATION, REAL ESTATE Schwartz Hyde & Sullivan, LLP 401 "B" Street, Ste. 2400 San Diego, CA 92101-4200 619 696-3500 (recpt.) 619 696-3555 (fax) This message is confidential and intended to be sent only to the designated recipient, and may be legally privileged. If the reader of this message is not the intended recipient, then you are notified that any distribution or copying of this message is prohibited. If you have received this message in error,then please re-send this message to the sender and delete the original and any copy of it from your computer system. Thank you 1 Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Wz y Telecom Appeal (PA2015-094) Tiwmrc K.OAxrm.0 MAR SCHWARTZ HYDE & LP LAuRu LII.HY1R' . SULLIVAN,/ KININ P.Su1l.IVAN WIII IM W $RWART/,A (1941-2011) W W W.SANLA W YERSXOAI WRmR's Emmi RSL1.I.IVAN@8ANI AW3'I:KS.CIR.1 EIN. 33A718779 November 3, 2015 Via Email and Hand Delivery Chair Kramer and City of Newport Beach Planning Commissioners 100 Civic Center Drive Newport Beach, CA 92660 Re: Appeal Of City Zoning Administrator Approval For Verizon Wireless Bay Hill (Spyglass Hill Park) Facility; City Minor Use Permit No. UP2015-024 (PA2015-094). Chair Kramer and Planning Commissioners: Our office represents Verizon Wireless ("Verizon") regarding its wireless tele- communications facilities proposed to be located in the public right-of-way adjacent to Spyglass Hill Park at the corner of Spyglass Hill Drive and EI Capitan Drive. This letter provides information to support the City Zoning Administrator's approval of a permit for Verizon to construct and operate a wireless communication facility in the public right- of-way adjacent to Spyglass Hill Park. The proposed stealthed and visually integrated limited facility will provide improved coverage and expanded capacity to customers within the surrounding area. The facility fills a substantial gap in Verizon's network coverage in the area, and does so in the least intrusive manner. On September 10, 2015, the City Zoning Administrator approved the project as proposed. An appeal of the minor use permit approval was filed citing supposed factual errors and unsupported findings. Supplemental appeal materials were filed with the City late on October 30 and forwarded to the Verizon on the morning of November 2. As explained below, the appeal lacks merit and the Zoning Administrator's detailed decision approving the project should be affirmed. Notably, the appeal did not identify or address the categorical exemption that was approved for the project under the California Environmental Quality Act ("CEQA"). In the September 10, 2015, Resolution approving the project, the Zoning Administrator determined that Verizon's facilities qualified for an exemption from environmental review under CEQA Guidelines section 15303, which applies to the construction of small facilities. The categorical exemption for the project necessarily determined that Verizon's facility did not have any potentially significant environmental impacts on a range of environmental factors, including aesthetics. 401"B"STREET.SURE 2400 - SAN DIEGO.CA 921014200 TELEPIIONE 619-696-3500 - Rcsimax 619-696-3555 Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received �SCHWARTZHYDE&SULLIVAN,LLVIprizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 2 I. PROJECT DESCRIPTION Verizon Wireless requests approval of a wireless communication facility located in the public right-of-way adjacent to Spyglass Hill Park. An aerial photograph of the project location is provided at Tab 1, page 1. The proposed wireless communication facility has the following elements: • Replaces an existing 29-foot-high light pole with another light pole having substantially the same diameter, and substantially the same texture and appearance, in the same location within the public right-of-way as the existing light pole. (Tab 1, pp. 2-3.) • Includes three (3) antennas within a 2.5-foot-wide by 6-foot-long radome at the top of the replacement light pole (for a total pole height of 35 feet) to shield the antennas from view. (See Tab 1, p. 3.) • Utilizes a stand of existing mature trees, which are up to 40+ feet in height, to shield the radome from views in most directions. The existing mature trees will provide a visual backdrop for the facility and contribute to its integration within the area. (See Tabs 1 and 2.) • Locating the equipment cabinet in an underground vault about 100 feet to the south of the light pole. The underground vault is limited in size to avoid impacts to an adjacent tree. (See Tab 1, p. 7.) Based on engineering analyses contained in materials submitted with the project application in May 2015 and in an October 2015 Report prepared to address a resident's specific question, Verizon's facility is under (comes within) the safety standard established by the Federal Communications Commission ("FCC") and other agencies for facility emissions. Even assuming that all three antennas are operating at full power at all times, the facility functions at below the maximum permissible emissions limits of the federal health safety standard. II. VERIZON'S COVERAGE OBJECTIVES Verizon identified the need for a wireless communication facility in this area based on engineering drive test results, modeled propagation maps and usage data from adjacent existing Verizon facilities. In addition, Verizon has received customer complaints in this area. Coverage plots found at Tab 3 demonstrate the existing and (predicted) proposed coverage conditions for the area. The coverage plots show how a facility in this proposed location will fill a substantial Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received 41"6 SCHWARTZHYDE&SULLIVAN,LL6prizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 3 gap in coverage and in capacity in the surrounding area. Verizon's Radio Frequency engineer, Scott Lee, prepared a detailed letter explaining the need for the proposed wireless communication facility in this area to address a substantial gap in service, the methodology used to identify that need, as well as the proposed site as the solution. (See Tab 3.) The network coverage deficiencies involve not just weak or poor signal conditions, but also significant data transmission capacity stresses that adversely impact nearby network facilities. These data capacity demands and requirements will increase for Verizon's network. The FCC notes that the volume of consumer data transmissions utilizing carriers' national mobile networks will increase by almost 800% between 2013 and 2018.1 III. SITE CONSIDERATIONS AND POSSIBLE ALTERNATIVES The intended coverage area for this site is difficult to serve due to the surrounding topography and limited locations on which to place a wireless communication facility. The primary coverage objective for the proposed facility is the substantial coverage gap in the residential developments located generally southeast of the intersection of San Miguel Drive and Spyglass Hill Drive and near Spyglass Hill Park. (See Tab 3.) The proposed Verizon Bay Hill facility is intended to work with three hand-off sites: San Joaquin Hills Park to the west located near the intersection of San Joaquin Hills Road and Crown Drive; Newport Ridge to the east; and St. Laurent, located to the southeast near the intersection of San Joaquin Hills Road and Newport Coast Drive. As described in a letter from Verizon's planning consulting firm (found at Tab 4), candidate sites within the search ring that were evaluated by Verizon included: • Industrial Sites. No industrial properties are located within or close to the search ring. • Commercial Sites. No commercial properties are located within or close to the search ring. • Collocation Options. No existing wireless telecommunication sites providing colocation opportunities exist within the search ring. • The San Joaquin Reservoir site located northeast of the search ring is impacted by intervening topography which would adversely affect radio frequency (RF) transmission. This site would not meet RF objectives. Further, no existing features at the San Joaquin FCC Report and Order No. 14-153(October 21,2014)page 4, note 6(which materials are incorporated by reference into this letter). Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received f.�SCHWARTZHYDE&SULLIVAN,L&rizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 4 Reservoir site allow a stealthed wireless facility to be installed there in a visually integrated manner. • The Big Canyon Reservoir located to the southwest of the search ring is also impacted by intervening topography which would adversely affect RF transmission. This site would not meet RF objectives. Further, an existing Verizon wireless site at San Joaquin Hills Park is located very close to Big Canyon Reservoir, and would cause signal interference for a facility at this Reservoir. Further, as discussed in the planning consultant's May 2015 letter to the City on this site, options in and around San Miguel Park were evaluated but rejected. In addition, as shown at Tab 5, intervening topography between San Miguel Park and the coverage gap area would adversely affect RF transmission, and thus this site would not meet RF objectives. The site that was ultimately selected within the Bay Hill search ring was the existing street light standard and utility infrastructure at the Spyglass Hill Park right-of-way location that is mostly screened by existing mature trees immediately adjacent to the facility. IV. NATIONAL POLICIES TO FACILITATE THE DEPLOYMENT OF TELECOMMUNICATIONS NETWORKS Federal law and regulations recognize Verizon's telecommunications network to be national critical infrastructure, and part of communications systems that are integral to the U.S. economy and to the use of the 911 emergency system.'- The Federal Communications Commission ("FCC") states the growing consumer capacity demands by mobile device users demonstrate the importance of wireless broadband communications networks to the U.S.'s economic growth, global competitiveness, and civic life.3 Also, as of 2011, about 70% of all 911 calls originated from wireless devices, and that percentage will continue to increase. One of the main reasons that many people own a wireless phone is the ability to call 911 for help in an emergency. '-See 42 USC section 5195c(b)(2):see also U.S.Department of Homeland Security materials on the national critical infrastructure status of the Communications Sector. 'FCC Report and Order No. 14-153 (October 21,2014)page 4, note 8(which materials are incorporated by reference into this letter). 'Federal Communications Commission(FCC)Consumer and Governmental Affairs Bureau,Wireless 911 Services Fact Sheet(originally issued Feb. 1,2011)(updated version found at hums://transition.fec.gov/c Lb/consumerl'acts/wirciesN91,1srcc.Fdq(which materials are incorporated by reference into this letter). Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received o61SCHWARTZHYDE&SULLNAN,LYIPrizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 5 Use of mobile devices as the exclusive means of personal communications is growing. According to a U.S. Department of Health and Human Services report, as of 2013, 41% of U.S. homes had only wireless telephones, up from 30% in 2010.5 Verizon's proposed facility in the public right-of-way near Spyglass Hill Park is part of a communications network that is encouraged by Federal government policies as a means to enhance economic development, to improve emergency responses, and to provide equitable universal access to communications capabilities. V. APPROVAL BY THE CITY ZONING ADNIINISTRATOR The Zoning Administrator held a noticed public hearing and received testimony from Verizon's representative and from members of the public on September 10, 2015. The Zoning Administrator approved the project as proposed based on detailed findings under the City Zoning Code. The Zoning Administrator's approval resolution also determined the project was categorially exempt from CEQA review under CEQA Guidelines section 15303, which covers the installation of small new equipment items and facilities in small structures. VI. APPEAL ISSUES An appeal of the Zoning Administrator's detailed decision was filed, along with supplemental materials sent to the City late on October 30. The appeal materials did not address the determination that the project was categorially exempt from CEQA review under CEQA Guidelines section 15303. The CEQA exemption decision is therefore not pan of this appeal. Responses to each of the appeal issues are as follows: LA Finding C In Resolution No. ZA2015-053 Is Allegedly Unsupported. This appeal item asserts that the facility is incompatible with the neighborhood and will adversely affect property values. The primary bases of this claim relate to health concerns about the facility. 5 FCC Report and Order No. 14-153(October 21,2014)page 4,notes 34,and hup://www.cdc.env/nchVJatalniiis/earltrelease/wireles%201407,pd1'_(which materials are incorporated by reference into this letter). Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received lr�a r�' SCHWARTZHYDE&SULLIVAN,LYPrizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 6 Permits for this facility cannot be regulated either directly or indirectly based on health concerns 6. The facility comes within the safety standard established by the FCC in conjunction with the Environmental Protection Agency, the Food and Drug Administration, and the Occupational Safety and Health Administration. The appeal arguments on this item are without merit. This appeal item also asserts that the facility is not needed because there is "good coverage" and the facility will change the community character. As explained in the memorandum from Verizon's RF Engineer and as shown on the coverage maps (Tab 3), the new facility is needed to address a substantial coverage gap related to poor signal quality in this area that degrades the user experience by providing slow data speeds, unreliable network access and frequent connection drops. Further, the limited unmanned stealth facilities located at the top of a replacement light pole, with equipment undergrounded in a vault, will not impair community character or aesthetics. The radome feature is less than 15 square feet in size (a 2.5 foot wide by 6 foot tall cylinder) and the pole is flanked, and even partially enveloped, by a stand of existing mature trees. The facility does not block or impact any significant views. Further, claims about the project's alleged significant aesthetic impacts, as well as any other claims about potential significant environmental impacts, were all determined to be without merit under the Zoning Administrator's unchallenged decision that the project is categorically exempt from CEQA review. Photos showing the visual integration of the light pole in the area are found at Tabs 1 and 2. 1.B Finding D In Resolution No. ZA2015-053 Is Allegedly Unsupported. This appeal item repeats that the facility will have claimed aesthetic, view and property value impacts. As explained above, the limited unmanned stealth facilities located at the top of a replacement light pole that is flanked by a row of mature trees, with equipment undergrounded in a vault, will not significantly impact aesthetics and views. Also, the primary bases of the property value claim relate to health concerns about the facility. But the permits for this facility cannot be regulated either directly or indirectly based on health concerns. I.0 Finding E In Resolution No. ZA2015-053 Is Allegedly Unsupported. This appeal item repeats that the facility will have claimed aesthetic, view and property value impacts. For the reasons stated above, these appeal issues are without merit. 'Federal Telecommunications Act,47 U.S.C.section 332(c)(7)(B)(vi):AT&T Wireless Semites of CA, LLC v. City of Carlsbad. 308 F.Supp.2d 1148, 1 159(S.D.Cal.2003). Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received "SCHWARTZ HYDE&SULLIVAN,LYPrizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 7 1.D Additional Findings In Resolution No. ZA2015-053 Are Allegedly Unsupported. This appeal item repeats that Verizon does not need this site, and asserts that alternative locations would address the coverage gap. As explained in the letter from Verizon's RF Engineer and as shown on the coverage maps (Tab 3), the new facility is needed to address a demonstrated substantial coverage gap. Further, Buck Gully Reserve is not a viable location for a substitute facility. There is intervening topography between Buck Gully Reserve and the coverage gap area (especially if a facility was placed in the Gully), which would adversely affect RF transmission. This suggested location would not meet RF objectives. In addition, the area is an open space Reserve, and significant construction and operational impacts to biology may result from a facility at that location. For these reasons, the appeal issues are without merit. 2. Property Value Claims. This appeal item repeats that the facility will have claimed property value impacts. As explained above, the permits for this facility cannot be regulated either directly or indirectly based on health concerns. Perceived health concerns are used as the basis for the property value claims. Further, as discussed above, the facility comes within the safety standard established by the FCC in conjunction with other federal agencies. The appeal arguments on this item are without merit. 3. Claimed Aesthetic Impacts. This appeal item repeats that the facility will have claimed aesthetic impacts. As explained above, the limited unmanned stealth facilities located at the top of a replacement light pole that is flanked by a row of mature trees, with equipment undergrounded in a vault, will not significantly impact aesthetics and views. (Tab 2.) Further, claims about the project's alleged significant aesthetic impacts were determined to be without merit under the project's unchallenged categorical exemption from CEQA review as found by the Zoning Administrator. 4. City Zoning Discretion. This appeal item states that the City generally has discretion under the law to review wireless facility permits. Verizon agrees. In this case, substantial evidence supports the Zoning Administrator's approval of the facility, which is needed to address a substantial gap in coverage and does so in the least intrusive manner. Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received �SCHWARTZHYDE&SULLIVAN,L&rizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 8 This appeal item also states that other locations could be used for the facility. Verizon's RF engineer's letter and its alternative site analysis (Tabs 3 and 4) shows that no other viable locations are available for this needed facility. 5. Alleged Adequate Verizon Coverage. This appeal item repeats that Verizon has adequate coverage in the area and does not need this site. As explained in the memorandum from Verizon's RF Engineer and as shown on the coverage maps (Tab 3), the new facility is needed to address a demonstrated substantial coverage. This appeal issue is without merit. 6. Alleged Commercial Operation. This appeal item states that Verizon will install a supposed "commercial" facility and repeats that the facility will have claimed aesthetic impacts. The limited unmanned stealth facilities located at the top of a replacement light pole that is flanked by a row of mature trees, with equipment undergrounded in a vault, does not constitute an installation that is overly commercial in nature and will not significantly impact aesthetics. (See Tabs 1 and 2.) Claims about the project's alleged significant aesthetic impacts were determined to be without merit under the project's unchallenged categorical exemption from CEQA review as found by the Zoning Administrator. Further, no applications for colocation at this site are pending or anticipated. Any such possible application would be reviewed on its separate merits and impacts. 7. Community Opposition. This appeal item (including the referenced petitions) repeats that the facility will have claimed property value impacts. As explained above, the permits for this facility cannot be regulated either directly or indirectly based on health concerns. Perceived health concerns are used as the basis for the property value claims. Further, as discussed above, the facility comes within the safety standard established by the FCC in conjunction with other federal agencies. The appeal arguments on this item are without merit. 8. Addendum Item A. This appeal item also generally asserts that Verizon does not need the Bay Hill site, and contends, without any technical support, that alternative locations near (i) MacArthur Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received "SCHWARTZ HYDE&SULLIVAN, L�qrizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 9 Boulevard and Bonita Canyon Road, and (ii) Avocado Avenue and Civic Center Drive would supposedly address the coverage gap. The claims are not accurate. These other sites are not viable alternatives to the proposed facility. As explained in the letter from Verizon's RF Engineer and as shown on the coverage maps (Tab 3), the new facility is needed to address a demonstrated substantial coverage gap around Spyglass Hill Park. The letter also explains that the other two sites (a) are about 1.3 and 1.5 miles away from Spyglass Hill Park, (b) are much lower in elevation so that terrain will block the RF signal from those sites to the area around Spyglass Hill Park, and (c) are designed and located to provide coverage and data capacity needs for the localized areas around those sites. (Tab 3, Scott Lee letter at p. 4). Further, Verizon would not incur significant expenses to build the Spyglass Hill Park site if other facilities in the area provided adequate coverage to meet the needs and demands of the Bay Hill neighborhood. 9. Addendum Item B. This appeal item notes that the proposed facility is in a residential area, and contends, without any technical support, that alternative locations at San Miguel Park, near MacArthur Boulevard and Bonita Canyon Road (the SM park site), and along San Joaquin Hills Road would supposedly address the coverage gap. As explained in the letter from Verizon's RF Engineer and as shown on the coverage maps (Tab 3), the new facility is needed to address a demonstrated substantial coverage gap. Also, the San Miguel Park site and along San Joaquin Hills Road are much lower in elevation than Spyglass Hill Park. The terrain would block the RF signal to the coverage gap area from those other lower locations. (See Tab 5). Further, as explained above, SM Park is not a viable alternative site. (Tab 3, Scott Lee letter at p. 4). 10. Addendum Item C. This appeal item notes that there is opposition to the facility. The limited unmanned stealth facilities located at the top of a replacement light pole that is flanked by a row of mature trees, with equipment undergrounded in a vault, is sensitive to community concerns and will not significantly impact aesthetics. (See Tabs 1 and 2.) 11. Addendum Item D. This appeal item repeats that the facility will have claimed aesthetic impacts. As explained above, the limited unmanned stealth facilities located at the top of a replacement light pole that is flanked by a row of mature trees, with equipment Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received S oM SCHWARTZ HYDE&SULLIVAN,L&rizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Chair Kramer and Planning Commissioners November 3, 2015 Page 10 undergrounded in a vault, will not significantly impact aesthetics and views. (See Tabs 1 and 2). The radome feature is less than 15 square feet in size (a 2.5 foot wide by 6 foot tall cylinder), and the replacement pole will still be narrow (although a bit wider than the existing pole to address structural support and internal conduit requirements). Further, conditions of approval require that the replacement pole shall match the design, style, color and location of the existing light standard. Further, claims about the project's alleged significant aesthetic impacts were determined to be without merit under the project's unchallenged categorical exemption from CEQA review as found by the Zoning Administrator. VII. CONCLUSION The proposed wireless communication facility located in the public right-of-way adjacent to Spyglass Hill Park will provide improved coverage and capacity to the surrounding area. The facility has been designed to comply with the all City regulations, and to be the least intrusive option for coverage needs, Verizon therefore respectfully request that the City Planning commission affirm the Zoning Administrator's decision by denying the appeal and approving the project as proposed. Sincerely, �- lC�rhGtcf� Z0,4,m� Kevin P. Sullivan Copies: Benjamin Zbeda (via email and hand delivery) Shannon Champion, Esq. (via email) Andres Matzkin (via email) Linh Nguyen (via email) Attachments Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) TAB 1 TAB 1 , f -� '• � • SITE M6 I Planning Commission - November 5, 2015 Materials Received Verizon Wireless Right-of-Way Telecom Ap al (PA2015-094) , � �" - t i1 • � • A ► 1 ri 7. Awr . Looking eastantenna from Spy Glass Hill Drive. �-� Proposed will be visible from this location. Pracncai Sou,ons.E.cepoonai service NOT TO SCALE- RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 7288.23 Planning Commission - November 5, 2015 lteFa Ne, 4e� Addition Materials Received Verizon Wireless Right-of-WayTelecomAp al (PA2015-094) � i • Yi • � i V y R y . y ti . Looking eastantenna from Spy Glass Hill Drive. �-� Proposed is visible from this location. Pracncai solutions.E.cepoonai service NOT TO SCALE— RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 7288.23 Planning Commission - November1 Received Verizon • •f-Way Telecom ' ••- " 1 1•• TECTONIC Planning Commission - November1 Received Verizon • •f-Way Telecom ' ••- " 1 1•• .,7"M - - I TECTONIC , : ; Planning Commission - November 5, 2015 Materials Received 011111111111FIRWay Telecom al ' i 1 /•• 2 y . , TECTONIC ' Planning Commission - November 5, 2015 Materials Received 011111111111FIRWay Telecom al ' i 1 /•• 2 y . , JAW jw '�'4'^•.� 1j �'� � -� ` ice- fry TECTONIC ' Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) TAB 2 TAB 2 �aA •Q•! �� • �November materials Received • • i ` t • - . a 0•a v i• 1 + bs x . I � S C I _ ', fo Verizon " r aI 4 H. . YFy A _z w 4µ% �i I s ,I F .r f s_ - . s Item i .. Verizon Wireless - . 4 i I I 1 i i r 1 FN t� V �' T •, 4 s I • T 9 Y Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received VerizonVMI aW*Ek* RjOht-of-Way Telecom Appeal (PA2015-094) a -Now �4 Looking West Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) TAB 3 TAB 3 Bay Hill - Coverage ANTEATERS R of BISON a 4 BIG CV TA RESERV� O „UCI' ORT BAY Y a\a m p 1 a �1 '(NEWPORT.S A BARBARA CTR ■ CC a NEWPORT RIDGE �yp,TQP� ' � BAV HILL 1 p .f N 1\{\ P BJ HILLS PARK BALBOAISLANO f ttk y+ 0 NE DATER �WS/Ssr�<¢. ■ RSRP 7CL Or RSRP(d6m) ST L4UPST INBUILDINi y ■ ``y IN CAR >=-95 ON FOOT MARGINAL `Ri Ca AST Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. 3 NTEATERS Bay Hill - VVithout VerIZOnwireless 9� BISON ZO BIG CYN RE UCI WI 41. T BRY ■ w SANTABARBAR NEWPORTCTR NJ IR BAY HILL NEWPORT RIDGE r &G SJ HILLS PARK ALBOA ISLAND 0 --' NEWPORTER VEff LTE RSRP 7CL 4+° T✓[Q Of: RSRP(dBm) �- 7SST LAUREN MBUILDWO CAR . >--95 ON FOOT IRVINE COAS >=-105 MARGINAL Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. i Bay Hill — VVith NTEATERS W BISON ZO BIG CVN C i FIE TBAV 1 F ' ■ ' SANTABARBAR NEWPORTCTR RVOIH ■ BAY HILL NEWPORT RIDGE rBIG SJ HILLS PAR 3ALBOA ISLAND NFwPn O ER Wig LTE RSRPe 7CL CF:RSRP(IJBIM) 0 >--75 rygU STIAUREN >.-85 AR 0 >.-gj ON FOOT --I >.-��MARGW-.L RVINE COAS Confidential and proprietary material for authorized Verizon Wireless personnel only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. 2 Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) verizont' October 29, 2015 Benjamin M. Zdeba AICP, Assistant Planner City of Newport Beach Department of Community Development 100 Civic Center Drive Newport Beach, CA 92660 SUBJECT: Bay Hill —RF Justification Memo Dear Mr. Zdeba: This letter is in reference to the proposed VZW telecommunications facility named `Bay Hill". Verizon Wireless has identified a deficiency in its wireless service along Spyglass Hill Road and surrounding neighbor hoods. The deficiency in service was based on modeled propagation maps, drive data and traffic data from neighboring sites. Due to the difficult terrain challenges in the surrounding area, signal from the neighboring sites San Joaquin Hills Park and Newport Ridge, and UC Irvine do not provide adequate or reliable coverage to the Spyglass Hill community. The poor signal quality that serves this area degrades the user experience by providing slow data speeds, unreliable network access and frequent connection drops. The Verizon Wireless "Bay Hill" project was strategically placed to resolve to coverage deficiencies and improve network reliability to the Verizon Wireless customers in the area. Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Figure hriz jg4tibbU*Pght-of-Way Telecom Appeal (PA2015-094) I 1(ssa canyon Dr 20T kz Au n I.• Z J� r ? O^ r,y sonira CanYoa 01 oar' c o Park BIG CANYON IURRON VII W dol it c tub O` niunl pC i 6 "1 N b K )1 yr L 1 � D ' iHills NEWPORT pa�K San Joaquin Hills RIDGE F2 Vn Hil Manwnol SJ HILLS Port L'YGI Ass lila Q,oin Hills Its I PARK F2, HIM Rd p � Ncwpolt Coast ri Mai B O Coverage Area The coverage plots below provide information regarding the anticipated level of signal, and therefore the projected coverage provided by a site at a given location. The area in green reflects good coverage that meets or exceeds thresholds to provide consistent and reliable network coverage in vehicles and in homes. The areas in yellow depict decreasing levels of coverage, respectively, the purple areas represent poor/weak signal suitable for outdoor use only. RF signal penetration should be clear of obstruction to avoid interference in signal path. You can clearly see how the surrounding terrain quickly degrades the signal strength. z Planning Commission - November1 Item • Additional Figure 2 VECyS0rqqk&W -of-Way Telecom Appeal (PA2015-09 E HIL HILL r� .. �••I I./. �� 1� �ir Y � 1 I: a �1 . r - ` � 'fir• 1 •.• OKAY •• FigureProposed Coverage a1y/f��y, jt E HILL r� • •I I•• ` 1 1 .f�Y 1 11► j• •_y • 1 J • 11 � � t r i ... r • •' Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received ' Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Capacity i In addition to the unreliability and poor performance observed by the users in weak/poor signal conditions, it also puts a stress on the effective capacity of the surrounding sites. When a cell ' site serves a mobile/device in poor coverage conditions, it must use up more time and spectrum resources in order to try and deliver the user content reliably. This uses up the limited physical resources quickly and can deprive other users connected to the site from gaining access to those resources impacting user experience for all customers in the area. Currently, Verizon Wireless has modified its adjacent facilities in an effort to maximize the available capacity; however, increased demand for voice and data services has already outstripped the capacity of adjacent sites such as San Joaquin Hills Park, Newport Ridge, and UC Irvine. Due to the terrain composition in the area the current "Bay Hill" candidate at Spyglass Hill Park was the only viable solution to provide the required signal level and quality to effectively offload the neighboring sites. Achieving capacity exhaustion severely compromises the Verizon Wireless network, leading to failed call attempts, dropped calls, poor call quality and slow data speeds (The "Capacity Gap"). Nonviable Alternative Sites i i I'm informed that two other Verizon Wireless sites in Newport Beach were recently suggested as facilities that could address or solve the substantial gap in coverage in the Bay Hill neighborhood where the facility is proposed at Spyglass Hill Park. Those two sites are SM Park (near MacArthur Boulevard and Bonita Canyon Road) and Farallon (near Avocado Avenue and Civic Center Drive). Neither SM Park nor Farallon can provide coverage to the Bay Hill neighborhood. 9 SM Park is located about 1.3 miles away from Spyglass Hill Park (Bay Hill). SM Park is at about 200 feet in elevation, where Spyglass Hill Park is at about 530 feet in ' elevation. Intervening terrain between the SM Park site and Spyglass Hill Park will block the RF signal and prevent SM Park from covering the Bay Hill neighborhood. Also, SM Park was designed to address a coverage and data demand gap in the localized area, and the site does not have a coverage footprint that could extend to the Bay Hill neighborhood even if significant terrain issues due to elevation changes did not exist. i s Farallon is located about 1.5 miles away from Spyglass Hill Park (Bay Hill). Farallon is at q about 135 feet in elevation, where Spyglass Hill Park is at about 530 feet in elevation. The Farallon antennas are mounted at about 32 feet high on a facility and are intended to provide coverage and data capacity needs for the Fashion Island shopping center. Given the height of the antennas at about 32 feet, the site has a coverage range of about one-half(1/2) mile. Further, intervening terrain due to significant elevation changes between the Farallon site and Spyglass Hill Park would block the RF signal and prevent Farallon from covering w' the Bay Hill neighborhood even if the antennas at the site were mounted higher at the facility. 4 Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Summary Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) As an RF Design engineer with over 3 years of experience, I have spent over 3 years working in the LA market where I designed and analyzed telecommunications facility sites. I received my BSEE in Electrical & Electronics Engineering from UC Irvine. After analyzing the j performance data, coverage plots and local knowledge of the area, it is in my professional judgement that the current location and the design of the "Bay Hill" project is vital for improving the network reliability, service and performance to Spyglass Hill. Neighboring sites cannot provide adequate coverage due to terrain challenges in the area. Regards, C�-�_,�-rte. G, Scott Lee RF Design Engineer Verizon i e f t r fi S s a 5 c B 5� S Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) TAB 4 TAB 4 Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Wayf@@.6f�T �i@�Is�P�?�t��1 -094) ountainvi le, )8 3 Practical Solutions,Exceptional Service 2081 Business Center Drive,Suite 219 (949)502-8555 FAX:(949)502-8557 Irvine,CA 92612 w .tectonicengineering.com October 28, 2015 Benjamin M. Zdeba AICP, Assistant Planner City of Newport Beach Department of Community Development 100 Civic Center Drive Newport Beach, CA 92660 SUBJECT: Alternative Site Analysis/Site Selection- Verizon Wireless Bay Hill Search Ring (Spyglass Hill Park Facility); City of Newport Beach Minor Use Permit No. UP2015-024 (PA2015-094). Dear Mr. Zdeba: This memorandum was prepared to provide background material on the site selection process for the Bay Hill Wireless Telecommunication Facility. During our review of candidate sites for overall feasibility from a land use and zoning perspective the following represents our alternative analysis of candidate sites. The Bay Hill search ring was identified to address a substantial coverage gap generally southeast of the intersection of San Miguel Drive and Spyglass Hill Drive and surrounding Spyglass Hill Park. The proposed Bay Hill facility is intended to work with three adjoining sites: San Joaquin Hills Park to the west located near the intersection of San Joaquin Hills Road and Crown Drive; Newport Ridge to the east; and St. Laurent located to the southeast near the intersection of San Joaquin Hills Road and Newport Coast Drive (see attached RF propagation map for reference). Because existing land use in the Bay Hill search ring is predominantly residential, it was recognized that development options are limited. No industrial or commercial properties are located within or in proximity to the search ring; therefore, neither commercial nor industrial sites were pursued as a development option. Additionally, no existing wireless telecommunication sites providing colocation opportunities exist within the search ring. Verizon considered two government-owned properties, Big Canyon and San Joaquin Reservoirs, site located southwest and northeast respectively of the search ring area. These candidate sites were impacted by intervening topography which would adversely affect radio frequency (RF) transmission. San Joaquin Reservoir, for example, sits about 40 feet below a ridge running along Coventry Road and Ridgeline Drive to the west, which ridge prevents RF signals from reaching the coverage gap area from this Reservoir. This site would not meet RF objectives; and thus, was removed from consideration. Further, there are no existing poles, structures or tall mature vegetation at the San Joaquin Reservoir site to allow a stealth wireless facility to be installed there with visual integration into existing natural or man-made vertical features (i.e.trees,buildings). Big Canyon Reservoir has similar constraints. PLANNING . ENGINEERING . CONSTRUCTION AND PROGRAM MANAGEMENT An Equal Opportunity Employer Planning Co Jr5, 2015 Item No. 4c: eceived Verizon Wireless Right-of-Way T 015 094) Practical Solutions.Exceotional Service The site ultimately selected and approved by the Zoning Administrator would replace the existing city-owned concrete light standard located on the east side of Spyglass Hill Drive approximately 100' north of El Capitan Drive. The area around the light standard is mostly screened by existing mature trees immediately adjacent to the facility. The site is in the City of Newport Beach public right of way and is the least intrusive option for meeting coverage objectives related to a substantial gap in coverage in the area. More importantly, the proposed design will have no aesthetic impact to the surrounding residential properties. Regards, Ryan Birdseye, Principal Birdseye Planning Group Agent to Tectonic Engineering and Surveying, Inc. Planning Commission - November 5, 2015 Item No. 4c: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) TAB 5 TAB 5 1/> I � 40 i �r LOV NO 04 ,, a> c ► � � _ .fit a 0^r i r 1.. E N 1 I _ 0 5 0 M � N w 1111 •'I� 1 ` \ �� 1 ' U \ Nil / TP a � m i, CD 0 o m I N N I 1 y J 1 r' Il,p d1. Subject: ADDITIONAL MATERIALS RECEIVED - PC MEETING - NOVEMBER 5, 2015 Attachments: Bay Hill- 2nd EME Report.pdf PLANNING COMMISSION — NOVEMBER 5, 2015 ITEM NO. 4d: ADDITIONAL MATERIALS RECEIVED VERIZON WIRELESS RIGHT-OF-WAY TELECOM APPEAL (PA2015-094) From: Kevin Sullivan [mailto:ksullivan(5)sanlawyers.coml Sent: Tuesday, November 03, 2015 1:37 PM To: Zdeba, Benjamin Cc: Nguyen, Linh; Matzkin, Andres Subject: Verizon Bay Hill Project- Second EME Report/Assessment Good afternoon Benjamin — Attached is a copy of a second EME Report/Assessment that Verizon Wireless prepared to address a specific question by a resident relating to the possible effect of two small "hills" in the area of the proposed facility. The attached second Report modeled the small "hills" and assessed facility compliance with FCC regulations in light of them. The analysis and modeling is shown at pages 6-13 of this second Report as indicated by the "Ground Level 1" and "Ground Level 2" designations. The second Report and additional analysis confirmed that the proposed facility complies with FCC regulations. Please contact Linh at Verizon if you have any questions about this second Report. Thank you. Kevin Sullivan. 619 238-5849. Kevin P. Sullivan, Partner LAND USE AND ENVIRONMENTAL PERMITTING AND LITIGATION, REAL ESTATE Schwartz Hyde & Sullivan, LLP 401 "B" Street, Ste.2400 San Diego, CA 92101-4200 619 696-3500 (recpt.) 619 696-3555 (fax) This message is confidential and intended to be sent only to the designated recipient, and may be legally privileged. If the reader of this message is not the intended recipient, then you are notified that any distribution or copying of this message is prohibited. If you have received this message in error,then please re-send this message to the sender and delete the original and any copy of it from your computer system. Thank you 1 Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizonoi,e[ess Right-of-Way Telecom Appeal (PA2015-094) verlLnwireless Radio Frequency Exposure Pre-Installation FCC Compliance Assessment Site Specific Information Site Name Bay Hill Categorically Excluded? NO NE CORNER SPY GLASS HILL Street Address DRIVE AND EL CAPITAN DRIVE 1% Contributor To Areas YES City, State,Zip NE PORT BEACH, CA 92662 Requiring Mitigation? Multi-Licensee Facility NO Max% MPE (Predictive) 10.0% Structure Type Light Pole Max % MPE (Measured) N/A Broadcast E ui ment YES Assessment Date N/A # of Access Points 1 Assessment Purpose Site Modification Compliance Status IN COMPLIANCE X Worst-case RE power density levels are BELOW the MPE for General Population/Uncontrolled Environments in accessible areas. ❑ Worst-case RF power density levels are ABOVE the MPE for General Population/Uncontrolled Environments but BELOW the MPE for Occupational/Controlled environments. El Worst-case RP power density levels are ABOVE the MPE for Occupational/Controlled Environments but BELOW l Ox the MPE for Occupational/Controlled environments. ❑ Worst-case RF power density levels are ABOVE IOx the MPE for Occupational/Controlled environments. Compliance uA NOTICE • eCAUTION QWARNING Requirements "`°�"°"��d.=�� • • a ....®�..•., ...... (010 ax..m.•.r..u...•v..xrwmp..i�w. 'P J:.d...• k:..',:a'�.:f`•"' �. . ^'f: ._...... '„ .... �' Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Additional Compliance Re uirements s : Site Access Locations No Action Required. Alpha Sector Location No Action Required. Beta Sector Location No Action Required. Gamma Sector Location No Action Required. Consultant Le al Name Telnet hic. Phone/Fax 301-840-7110 Address 7630 Standish Place, Rockville,MD 20855 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Contents 1. Executive Summary...................................................................................................................................................3 2. Proposed Site Characteristics....................................................................................................................................4 a. Structure...............................................................................................................................................................4 b. Accessibility...........................................................................................................................................................4 c. Verizon Wireless Signage.......................................................................................................................................4 d. Antenna Inventory.................................................................................................................................................5 3. Analysis.....................................................................................................................................................................6 a. Predictive Model :All Transmitters........................................................................................................................6 b. Predictive Model:Significant Contribution of Verizon Wireless..............................................................................7 4. Conclusion ..............................................................................................................................................................14 a. Conclusion Narrative...........................................................................................................................................14 b. Compliance Requirements...................................................................................................................................16 Signage/Barrier Diagram.............................................................................................................................................16 Signage/Barrier Installation Detail...............................................................................................................................17 5. Appendix C: RF Consultant Certifications.................................................................................................................18 a. Preparer Certification..........................................................................................................................................18 b. Reviewer Certification.........................................................................................................................................18 6. Appendix D: Reference Information ........................................................................................................................19 a. FCC Rules& Regulations......................................................................................................................................19 b. Occupational Safety and Health Administration (OSHA) Requirements................................................................19 C. RF Signage...........................................................................................................................................................20 d. Barriers...............................................................................................................................................................20 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) 1. Executive Summary Verizon Wireless has contracted with Telnet Inc. , an independent Radio Frequency consulting firm, to conduct a Radio Frequency Exposure (RFE) Compliance Pre-Installation Assessment of the Bay Hill cell site. The following report contains a detailed summary of the Radio Frequency environment as it relates to Federal Communications Commission (FCC)and Occupational Safety&Health Administration(OSHA)Rules and Regulations for all individuals. The Verizon Wireless antenna data was provided by: Name Emanuel Higgins Title Assistant Project Manager Date 4/9/2015 Region CA Thispost-installation compliance assessment and reort has been prepared and reviewed by: Preparer Reviewer Name Steve Fruit Keihan Farhadian Title RF Engineer RF Engineer Date 04/14/2015 04/14/2015 This report utilizes the following for predictive modeling of the ambient RF environment: MPE Modeling Program: Roofview 4.15 Required Modeling Assumptions: 100%Duty Cycle and Maximum Total Power Output. Additional Modeling Assumptions: General Model Assumptions In this report, it is assumed that all antennas are operating at full power at all times. Software modeling was performed for all transmitting antennas located on the site. Telnet, Inc. has further assumed a 100% duty cycle and maximum radiated power. The site has been modeled with these assumptions to show the maximum RF energy density. Telnet Inc. believes this to be a worst case analysis, based on best available data. If at any time power density measurements were to be made, Telnet Inc. believes the real time measurements would indicate levels below those shown in this report. By modeling in this way, we have conservatively shown exclusion areas (areas not to be entered without a personal RF monitor, carriers reducing power or performing real time measurements to show real time exposure levels). Use of Generic Antennas For the purposes of this report, the use of'Generic' as an antenna model, or 'Unknown' for a wireless carrier, means that the information about the carrier, their FCC license and/ or antenna information was not provided and could not be obtained while on site. In the event of unknown information, Telnet will use our industry specific knowledge of equipment, antenna models and transmit power to model the site. If more specific information can be obtained for the unknown measurement criteria, remodeling of the site is recommended. If no information is available regarding the transmitting service associated with an unidentified antenna, using the antenna manufacturer's published data regarding the antenna's physical characteristics makes more conservative assumptions Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received 2. Proposed Site Characteristics Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Structure Physical Description Li ht Pole Site Latitude(NAD 83) 33.612556 Site Longitude AD 83 - 117.847722 Site Elevation(AMSL) N/A Structure Height AOL 33' Overall Structure Height 35' b. Accessibility Open Area c. Verizon Wireless Signage ®NOTICE® QCAOTION This ba Verladn Wireless Existing „.�.s�� Signagem o soo:�«<azo Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Gamma ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Existing Signage Adheres to VZW Signage & Demarcation Policy? N/A Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received d. antenna Inventory Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) L Y E d —y v TX Freq ERP Azimuth v v X y > r ID Operator Type Model m y A J J r (MHz) (Watts) (deg.) o v v o m a (ft1 (ft1 cu 1 c c N a o 2 N U' l7 O N N 2 1 LTE Panel 746 1443 SBNHH-1D65A 90 4.6 66 103 100 29 24 19 0 1 PCS LTE Panel 1900 4562 SBNHH-1D65A 90 4.6 64 103 100 29 24 19 0 1 AWS LTE Panel 2100 4668 SBNHH-1D65A 90 4.6 62 103 100 29 24 19 0 2 LTE Panel 746 1443 SBNHH-1D65A 210 4.6 66 99 97 29 24 19 0 2 PCS LTE Panel 1900 4562 SBNHH-1D65A 210 4.6 64 99 97 29 24 19 0 2 AWS LTE Panel 2100 4668 SBNHH-1D65A 210 4.6 62 99 97 29 24 19 0 3 LTE Panel 746 1443 SBNHH-1D65A 330 4.6 66 99 103 29 24 19 0 3 PCS LTE Panel 1900 4562 SBNHH-1D65A 330 4.6 64 99 103 29 24 19 0 3 AWS LTE Panel 2100 4668 SBNHH-1D65A 330 4.6 62 99 103 29 24 19 0 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) 3. Analysis a. Predictive Model: All Transmitters at Street Level 17 I / 3 I C Oo A i ry s Street�� Ground evel B Ground Level u Leven N 2 I 200 ft — Max Verizon Simulation Level 10.0% -4-33 ftp F Extenor Wall Rooftop Object CARRIER RF Screen ---- VER17ONMETRO PCS s?RIRT ANTENNA: Cable Tray Barrier Area Anchor point 0 TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inccom Color % Occupational MPE 0 to 20 0 20 to 100 Greater Than 100 Greater Than 1000 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received b. PredictiNe Model: Significant Condole¢it(DprWj WeTgdR ht� offWayvT)elecom Appeal (PA2015-094) `WI i I I 3 i O m N 2 8 Z? Street Ground _ � y level Ground Level 2 Levell 200 ft Max Verizon Simulation Level 10.0% —4-33 ft—I x Exterior Wall RaoaoP Oblect CARRIER RF screen .. VERIZONSPRINT pTaTMETRO PCS ANTENNA: table Tray BarderArea Anchor Point ❑i TELN ET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inc.com Color % Occupational MPE ® 0 to 1 > 1% Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received c. Predictive Model: All TransmittersW0mgpd%A&Fdikss Right-of-Way Telecom Appeal (PA2015-094) I ,I A 1 N ' ST,='tR Ground Ground _vel neve:.2 Levell 2 200 ft Max Verizon Simulation Level 14.6% X33 ft--+- a Extertor Wall Rooftop Object CARRIER VERIZON METRO PES RF Screen ---- ANTENNA: Cable Tray Barrier Area Anchor Raba O TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inc.com Color % Occupational MPE 0to20 _j 20 to 100 Greater Than 100 Greater Than 1000 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) d. Predictive Model: Significant Contribution of Verizon Wireless at Ground Level 1 3 C\ CO A — 6 tl 2 200 ft Max Verizon Simulation Level 14.6 e/ X33 ft--4— Exterior wall Rooftop Object CARRIER VERIZON SPRIMMETRO PCS RE Screen ANTENNA: 4ble Tray Barrier Area Anchor Paint Ei TEL NET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-In c.conn Color % Occupational MPE _ 0 to 1 1% Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received e. Predictive Model: All TransmittersVfe0awdIA1 lass Right-of-Way Telecom Appeal (PA2015-094) N N 0 o a N 2 200 ft Max Verizon Simulation Level 23.6% x-33 ftp a Exterior W It Rooftop Obits RF Screen --—- CARRIER SPRINT ` CM uN ta ANTENNA: table T7, Barrier Area Anchor Point ED TELNET,INC., 7630 Standish Place,Rockville,N1D 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Teinet-inc.com Color % Occupational MPE © 0to20 20 to 100 Fj Greater Than 100 Greater Than 1000 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) f. Predictive Model: Significant Contribution of Verizon Wireless at Ground Level 2 3 C C A — 6 tl 2 200 ft Max Verizon Simulation Level 23.6 e/ X33 ft--4— Exterior wall Rooftop Object CARRIER RF Screen SPRINTCRICKET Cable Tray ANTENNA: Barrier Area Anchor Paint O TEL NET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-Inc.com Color % Occupational MPE _ 0 to 1 1% Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received g. Predictive Model: All Transmitters\i b.VAYOWSSnF4ffi*O+f+ ipslw@com Appeal (PA2015-094) Ad LN 3 x o 0 N 3 200 ft Max Verizon Simulation Level 1795.5% X33 ft—H P Exterior Wall Rooftop Object CARRIERSPRIN RF Screen ANTENNA: 11POOCZZ7MqW Cable Tray Rarrler Area Anchor Point Q. TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:3D1-840-0162;Web:www.Telnet-Inc.com Color 11 % Occupational MPE _1 0 to 20 ®j 20 to 100 Greater Than 100 Greater Than 1000 Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received It. Predictive Model: Significant Contijlg¢il(Dpf Widaiegi itR #k(bfgl( tiyvcTO@(g(DoAs Cio ##RA 1)0145-094) areas) Ill Al Y W O 0 N Grow 1 d Lvel 2 200 ft Max Verizon Simulation Level 1795.5% +33 ftaaa-�- F Exterior Wall Rooftop Object RF Screen CARRIERVERIZON spairar ArsT ANTENNA: table Tray Barrier Area Anchor point ❑e TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Telnet-inc.com Color % Occupational MPE _ 0 to 1 > 1% Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received 4. Conclusion Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Conclusion Narrative Description of MPE-Limit Exceeding Areas: (Street level) VZW Alpha sector is not exceeding 20% Occupational population limits VZW Beta sector is not exceeding 20%Occupational population limits VZW Gamma sector is not exceeding 20% Occupational population limits Verizon Significant Contribution Areas: (Street level) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding I% Occupational population limits Description of MPE-Limit Exceeding Areas: (Ground level 1) VZW Alpha sector is not exceeding 20% Occupational population limits VZW Beta sector is not exceeding 20%Occupational population limits VZW Gamma sector is not exceeding 20% Occupational population limits Verizon Significant Contribution Areas: (Ground level 1) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Description of MPE-Limit Exceeding Areas: (Ground level 2) VZW Alpha sector is exceeding 20%Occupational population limits VZW Beta sector is exceeding 20%Occupational population limits VZW Gamma sector is exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Ground level 2) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Description ofMPE-Limit Exceeding AVoFi2(t)i-%lUUit<ebassRigkof4WiaycT�6kbcormAppeal (PA2015-094) VZW Alpha sector is exceeding 20%Occupational population limits VZW Beta sector is exceeding 20% Occupational population limits VZW Gamma sector is exceeding 20%Occupational population limits Verizon Significant Contribution Areas: (Light level)(max emissions in inaccessible areas) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding 1%Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received b. Compliance Requirements Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Signage/Barrier Diagram Sector C Sector A 3 Y W 0O o` A N 2 �a Stree Ground Z lev Ground Leve 12 Level 1 Sector B 200 ft X33 ft--j— Exterlor Wall Rooftop Object CARRIER RP Screen • ••PCSCable Tray ANTENNA: Barrier Area Anchor Point TELNET,INC., 7630 Standish Place,Rockville,MD 20855;Phone:888-883-5638/Fax:301-840-0162;Web:www.Teinet-Inc.com Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received Compliance i I - - elecom A ea 4) ®NO ICE • QCANTIo Requirements tea 1 ` t ' • • - • ten: ans,n— a - ��.I�• Thia k a Vema S Wiraleaa Rn renne J Slre •�••`•• .....^ 600-3664630 ' 'A Guidelines Notice Caution Warning NOC Information Barrier Access Points ❑ [#] 1:11#1 ❑ [#] ❑ [#] ❑ [#] ❑ Alpha ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ [#] ❑ Beta ❑ [#] ❑ [#] ❑ [#] ❑ [#] 711#1 ❑ Gamma 1-11#1 ❑ [#] 1-11#1 ❑ [#] ❑ [#] ❑ Signage/Barrier Installation Detail Site Access Locations No action required. Alpha Sector Location No action required. Beta Sector Location No action required. Gamma Sector Location No action required. Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received s. Appendix C: RF Consultant CertifW,(Ndion Wireless Right-of-Way Telecom Appeal (PA2015-094) a. Preparer Certification 1, Steve Fruit,the preparer of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage &Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. steue b. Reviewer Certification I, Keihan Farhadian,the reviewer and approved of this report, am fully aware of and familiar with the Rules and Regulations of both the Federal Communications Commissions(FCC) and the Occupational Safety and Health Administration(OSHA)with regard to Human Exposure to Radio Frequency Radiation. I am also fully aware of and familiar with the Verizon Wireless Signage &Demarcation Policy. I have reviewed this Radio Frequency Exposure Assessment report and believe it to be both true and accurate to the best of my knowledge. WuLiv Fcwhad"V Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received 6. Appendix D: Reference informatioWerizon Wireless Right-of-Way Telecom Appeal (PA2015-094) a. FCC Rules & Regulations The Federal Communications Commission(FCC)has established safety guidelines relating to RF exposure from cell sites. The FCC developed those standards,known as Maximum Permissible Exposure(MPE)limits,in consultation with numerous other federal agencies,including the Environmental Protection Agency,the Food and Drug Administration,and the Occupational Safety and Health Administration. The standards were developed by expert scientists and engineers after extensive reviews of the scientific literature related to RF biological effects. The FCC explains that its standards"incorporate prudent margins of safety." The following represents explanations of the most applicable information: Two Classifications for Exposure Limits Occupational—Applies to situations in which persons General Population—Applies to situations in which are"exposed as a consequence of their employment' persons are"exposed as a consequence of their and are`fully aware of the potential for exposure and employment may not be made fully aware of the can exercise control over their exposure". potential for exposure or cannot exercise control over their exposure". Generally speaking,those without significant and documented RF Safety&Awareness training would be in the General Population classification. Environment Classification Controlled —Applies to environments that are restricted Uncontrolled—Applies to environments that are or`controlled"in order to prevent access from members unrestricted or"uncontrolled"that allow access from of the General Population classification. members of the General Population classification. Limits for Occupational/Controlled Exposure Frequency Power Density Avera in Time Range (S) E� , in ,or S (MHz) (mw/cm) (minutes) 300-1500 f/300 6 1500-100,000 5 6 Limits or General Po ulation/Uncontrolled Exposure Frequency Power Density Averaging Time Range (S) JE12,JH1 ,or S (MHz) mw/cm ) (minutes) 300-1500 V1500 30 1500-100,000 1 30 f=frequency in MHz Significant Contribution to the RF Environment Any carrier contributing an aggregate MPE percentage of S or more(to the applicable RF Environment Classification)is defined as a significant contributor. This means that if any area is determined to be out of compliance with FCC rules,all significant contributors are jointly responsible for correcting any deficiencies. b. Occupational Safety and Health Administration(OSHA)Requirements A formal adopter of FCC Standards,OSHA stipulates that those in the Occupational classification must complete training in the following:RF Safety,RF Awareness,and Utilization of Personal Protective Equipment.OSHA also provides options for Hazard Prevention and Control: Hazard Prevention Control • Utilization of good equipment • Employ Lockout/Tag out • Enact control of hazard areas • Utilize personal alarms&protective clothing • Limit exposures • Prevent access to hazardous locations • Employ medical surveillance and accident • Develop or operate an administrative control response program Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4d: Additional Materials Received c. RF Signage Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Areas or portions of any transmitter site may be susceptible to high power densities that could cause personnel exposures in excess of the FCC guidelines. These areas must be demarcated by conspicuously posted signage that identifies the potential exposure. Signage MUST be viewable regardless of the viewer's position. GUIDELINES NOTICE CAUTION WARNING Used anytime hazard signage is Used to distinguish the Identifies RF controlled Denotes the boundary of employed to achieve FCC compliance. boundary between the areas where RF areas with RF levels This sign will inform visitors of the General exposure can exceed the substantially above the basic precautions to follow when Population/Uncontrolled Occupational/Controlled FCC limits, normally working around radiofrequency and the MPE but below 10 x the defined as those greater equipment. Occupational/Controlled Occupational/Controlled than ten(10)times the areas. The limits MPE. Occupational/Controlled associated with this MPE. notification must be less than the Occupational/Controlled MPE. i ® NOTICE ® • QCAUTION NG GUIDELINESFOR WORKING IN RADIOFREQUENCY ENVIRONMENTS p wess bayptltllwaeleNpao Wwe IEMQ ISM. ®NPwamel bderbglRl¢¢Re mml Geallvrhat ��•�� Ohryell poN.rl¢pn. ®AwmeaY .. . ..em . . Av) andennmtlfy wnerseMaimEkepgapik ®MartNM niro[um3M1eltl®raiv M1anaO aMmrea yfitleie ¢syaiawisyoe[ R newspoem: ® abpinfiwM1daKmao noY`mraameF[C Rr0o[ea�am[fiulu¢lu elan ParyJa l,glumC Mmllor[lafno ®WBPaINe1PFnMlpnwMleNOatYg lmremvxe& gma+IPWlr gposae irlt gpaenn vPoana f ®Nwe+WaMe4areaitlenwYb1sF19asarYg mrnelocemlon. �• aaegvevw •i�ae• neje �nIn ®WMOW+IeM¢esllbne�m[¢Nqulpmad rtcrn. �^`"'ei'n wO�avM..p°°.m.B y^'�^"^•� •'Y'�''n INFORMATION SIGN • • - • Information signs are used as a means to provide contact information for any questions or �1e Ant q a 9l,r•IeN concerns. They will include specific cell site identification information and the Verizon Wireless Network Operations Center phone number. �-z 4620 d. Barriers A barrier is any physical demarcation employed as a preventative and/or notification measure that one is entering into an area with RF power density levels greater than the General Population/Uncontrolled limit. Confidential & proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement I Verizon Wireless Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting 094) Verizon • Telecom Appeal .i... 1,v..VANMai Ir 4, I j A ��111111«• T - t V +11� �EWIPp�,T Planning CommissionO� T Public , . • U y�g S November • P q[/FO RN KIIIIIIHOKIWO3111111 • • • ' Y. ' - I. - R' �� • ill �° i �I/�. '•� � r, �� i�,, � « 'ri\fry �TIII � , ! � Vim.., ♦. a ) vV. San Joaquin . a '� ^• " ' tt�� Reservoir w ' " Project Site a a�Y.w,; '�• to r, ,y�� '.y , ♦` ✓ i y, 1 5J Civic Center y '-� •>� t �:. ' � � s ;va Pacific View FEp�� J Memorial Park ti Ort' V Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting T (PA201,W94) spy 1A Aga �yttp'. A 144 H jai'.. •j: � ' ._� :�•� - Imo.: ,�: i h>.• r .q`• - .f+� V Ir. �� R HJI Parts "�` � r • � ry { • W wn {A pf y( k, loci VA k'",� � Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting ego i Benzo Rig o - ay Telecom Appeal (F'AZU I b. 094) AI10%LINE DR A Y O I Ax = RS-D -.i OS RS•D RS-D z RS-D !a a RS-D _ y RS-D � 1rpy. 0 rc RS-0 o RS,D J RS-D (� 'v r0laes PR tj 64, r / -♦ o R3.D RS.D L7 S'D d' MOao • g ;:::�. O RS $Pv9I+a:Hal oR O Reaervdi Park - RSD 'OR a FCS `iS 0 y� RS-D J RSQ + Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting 094) Project Details a a.C'dt/FORNP Replacement of existing light standard • 5 . 5 -foot-tall by 2 . 5 -foot-wide radome screen Three panel antennas and one GPS antenna 35-foot overall height maximum Support equipment in underground vault ■ Class 3 ( Public Right- of-Way Installation) Minor Use Permit ( MUP) 11/05/2015 Community Development Department - Planning Division 5 Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting 094) Existing Street Light e. CqC + 'T . r.- r • • • • • . 1 Proposed Project r• � " IV - i gay Yi= "ems_ Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting 094) .n Background a z a a.C'dt/FORNP May 11, 2015, application filed by Verizon Wireless (applicant) ■ September 10, 2015, Zoning Administrator approved ■ September 24, 2015, appeal filed by Laurie and Bruce Horn (appellants) Property values, aesthetics, existing coverage and adequacy of facts to support findings for MUP 11/05/203-5 Community Development Department - Planning Division 8 Planning Commission - November 5, 2015 Item No. 4e: Additional Materials Presented at Meeting 094) Recommendation .n a.C'dt/FORNP Conduct a de novo public hearing; and ■ Adopt a resolution upholding the Zoning Administrator's decision approving Minor Use Permit No . UP2015 - 024 11/05/203-5 Community Development Department - Planning Division 9 • 0111 • • . • . • � � � • • • r '• 1 • r *i a ti 4 M 46 I _ For more information contact: - Benjamin M. Zdeba,AICP 949-644-3253 — bzdebaQa newportbeachca.gov www.newportbeachca.gov Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) BAY HILL TOWER APPEAL BRUCE AND LAURIE HORN APPELLANTS Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) PURPOSE OF THE APPEAL We are here today to ask the City of Newport Beach to deny the Bay Hill permit to place a cell tower in Spyglass Hill Park. We will show Verizon misrepresented the information submitted to gain approval . We will also show the facts supporting the findings in PA2015-094 are incorrect . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) CURRENT CELL TOWER LOCATIONS Map on c`` ) • tj Ila 0 11 • ip *1a Mesa �„ • „c f Share on Facebook Planning Commission - November Item No. Additional Materials Presented at Meeting Verizon • •f-Way Telecom Appeal • FORD ROAD SITE .1 r S yi.• r •y aj ; • . rti 7 �Fi s•r� 4Y • ! . •� J 4 Y ffY , Planning Commission - November Item No. Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) r � �yy i Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) CAMELBACK STREET SITE i / ♦1' f 4 ' I�r3rr (y l -'J ,� a ^;, 1 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (P 094) 4 1 f` • } f k i s 110OF % A`•' 1 At c y�Lly ` ,j •.p„e' ,..u; c "fir � s • �, a fir'<' '� ��'1 L S� 'C _ •�.�+ <.:'f,��,nf l I IL - � � ti. �I • ,•fie � • � ■ mss �r = 1 � • `r x'17, r _ "' e!� 71 ' � c G • : 3 y Oji n F '� AL m-M 1 Planning Commission - November Item No. Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) 3.V1jqjLMf- NMI- wwwA �Ya .yam • • • • 7 • • 't44 AL Y . moi'\ ti. i�' sI. �tt •� r ,� �5 ' Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) The Bay Hill Site is Residential Planning Commission - November 5, 2C Item No. 4c: Additional Materials Recei% Verizon Wireless — Bay Mdtizon Wireless Right-of-Way Telecom Appeal (PA2015-0! " � 'tib � • c Ga " Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) According to the Tectonic Report, Verizon evaluated options at other sites including San Miguel Park. This park was dropped from consideration due to "proximity to residential structures" to the east. How is it possibl.e for the Spyglass Hill site to not be given the same consideration? N . r 1 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) � 4 is r� . s s ,r r` f� t N 'v ris Jop Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) MISREPRESENTATION BY VERIZON • RENDERINGS OF WHAT THE "STEALTH " CELL POLE WOULD LOOK LIKE SUBMITTED BY VERIZON TO THE ZONING ADMINISTRATOR WERE NOT DRAWN TO SCALE . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) STEALTH POLE nwm�u OfiEMTATION PE.w m�TAIL — �� Tlrl� mne .Otlt!' �_�T a+r Hu aow M.-2141105921 � lC: 506160 SN'CUSS M11 ORM OOY I7 BF/a aawD CN E wn (.150U1N ElEyTION (�7(Si1LEY�1 til r1FwST a[yA7roN L.7C2i �L� 7C� EdYAn Z-2 6y Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Rendering of "Stealth " Pole Not to Scale Planning Commission-November 5,2015 Materials Received Verizon al (PA2015-094) yrs a ' igr ' � J n Ilk--- T ® Looking east fromSpy Glass Hill Drive. �+ Proposed antenna is visible from this location. c�� .,n�.v sa„iwr•..F.oed,,,;s,.�f0 NOT TO SCALE—RENDERINGS ARE FOR DISCUSSION PURPOSES ONLY 7288.23 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting RAD O M E SIZerizon WireLass Right=ofOWTelecom Appeal (PA2015-094) E 66 I � It — 0 sae las.�Y I r- ter.r •ry w� A r eu .an rwa.r.a.avc xx Jnr R.i.� 4d7d7..f1� -46 Im E DETAIL PEDESTAL &Y NILL LIL 7fl1=105971 � LC: .N16160 .R 4 SPf am IAL OM M OF WWW WACH OCANOO COUNTY f Ewwuar I[TAhS . ,REII�CN OEML CPS ANTENNA . 2?MA DETNL Z-3 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) MORE MISREPRESENTATION BY VERIZON THE COVERAGE MAPS SUBMITTED BY VERIZON TO SHOW GAPS IN COVERAGE WERE INCOMPLETE , THEY DID NOT ACCOUNT FOR VERIZON ' S INCREASED SIGNAL STRENGTH FROM TWO NEW CELL SITES APPROVED AT FORD RD ( 3/ 12/ 15 ) AND CORPORATE PLAZA ( 10/8/15 ) . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) BveriZonay • 's EMY ■ ■ r 0 ■ lR � L V INt O11T IUGGE M L3P ■ EwTO�R �B LTE RSRP 7CL VB CY RSRP(dBm) / srIAIMIE >�-75 NBl► >�-85 Jr4 cm ,..95 ONFOOT Cr�prlpY wd piopnowy mat"1v a nz"vwzon W wel u wsop My.We.O$OO aOsNMMn d 11P n M ftl is M p n"w b ww urnuOIMaE Pt a NN prva eyow by"n W reemeN 1 Ve Bay Hill — With ■� �► l.I/m ■ .Y ]MOP . r LTE ASAP � 1 .85 �M-Tm 30 r � . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Verizon states that "Verizon Wireless facilities in Newport Beach also provide capacity relief to the adjacent sites . " The coverage maps submitted by Verizon to gain zoning approval were misleading by not including the additional service strength from the two new sites . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) ONLINE POLLING RESULTS ALL RESIDENTS IN THE SURROUNDING NEIGHBORHOODS WERE GIVEN A SIX WEEK WINDOW TO VOTE EITHER IN FAVOR OF THE CELL TOWER OR AGAINST IT. THE RESULTS WERE 8 VOTES IN FAVOR OF AND 240 VOTES AGAINST. 9 7 % OF RESIDENTS VOTED AGAINST ! Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) FINDINGS IN THE STAFF REPORT ARE NOT SUPPORTED BY THE FACTS , Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) FINDING C • FACT 3 STATES- "the proposed telecom facility should not generate any other adverse impacts to the adjacent land uses". We contend that property values will be diminished by the presence of the cell tower. Several declarations from prominent realtors with many years experience selling high end homes in Newport Beach were submitted as evidence . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) FINDING C • We also contend approval of Bay Hill will lead to co- location opportunities for other telecom companies resulting in many more cell tower installations in residential communities . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) FINDING E • FACT 3 STATES- "the proposed cell tower will not result in conditions that are materially detrimental to nearby property owners, residents, nor to public health or safety". We contend property values will be diminished , community aesthetics will be compromised , and that public perception of potential health and safety risks from cell towers will continue to persist . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Additional Findings • FACT 1 STATES- "the new light standard will not appear out of character with the surrounding neighborhood ". We contend the 66" by 30" Radome on top of a lamp post will look completely out of place and be an eye sore for anyone walking or driving up and down Spyglass Hill Road . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Harry B . Skinner, M . D . , Ph . D . Professor Emeritus, Orthopedic Surgery, Bioengineering, Mechanical and Aerospace Engineering Univ. of California, Irvine Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Analysis of Microwave Radiation from Antenna SBNHH - 1D65A (Andrew Tri- Band Antenna ) Harry B Skinner MD, PhD Professor Emeritus, Orthopedic Surgery, Bioengineering, and Mechanical and Aerospace Engineering Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) FCC Limits for Maximum Permissible Exposure (MPE) Frequency Range(MHz) Power Density (mW/cm2) Occupational General Population 300-1500 f/300 f/1500 1500-100,000 5 1.0 Reference: "Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields" : FCC Office of Engineering & Technology Bulletin 65, Edition 97-01 August 1997 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) rL .Aw ', J h e p glassr Hill Bark CAPITACO L '� - Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Predicted RF Radiation from Verizon cell transmitter at light level (Telnet) Color % Occupational NTPE 0 to 1 0 100 ' C =i A is I I I 0 50 ft 100 ft Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Telnet Report- Level 1 Description of MPE-Limit Exceeding Areas: (Ground level 1) VZW Alpha sector is not exceeding 20% Occupational population limits VZW Beta sector is not exceeding 20% Occupational population limits VZW Gamma sector is not exceeding 20% Occupational population limits Verizon Significant Contribution Areas: (Ground level 1) VZW Alpha sector is exceeding 1% Occupational population limits VZW Beta sector is exceeding 1% Occupational population limits VZW Gamma sector is exceeding 1% Occupational population limits Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Specifications of the proposed Verizon antenna _ SBNHH-1D65A Andrew® Tri-band Antenna, 698-896 and 2x 1695-2360 MHz, 65' horizontal beamwidth, internal RET. Both high bands share the same electrical tilt. Frequency Band, 698-806 806-896 1695— 1850— 1920— 2300— MHz 1880 1990 2200 2360 Gain, dBi 13 .4 13 . 5 16. 5 16. 7 17.2 17. 5 Beamwidth, 66 61 70 65 62 61 Horizontal, degrees Beamwidth, 157. 1 6.6 6. 2 5. 5 Vertical, degrees Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Microwave radiation from cell antenna > 1% of FCC Maximum Occupational Exposure (> 5% of Maximum General Exposure) 0 50 00 15 0 Distance from Antenna (feet) Surrounding area at grade ` , . r,is Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Microwave radiation from cell antenna >1% FCC Maximum Occupational Exposure ( Greater than 5% of Maximum General Exposure) 20%of Max Occupational exposJ`urree (MPE) Y >1%of Maximum Occupational exposure(MPE) -7-S%occupational MPE Level 2 (35-40%General MPE) Level 1 ... •. _ _ .. . .. . In arca a gratild Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Microwave radiation from cell antenna >1% FCC Maximum Occupational Exposure ( Greater than 5% of Maximum General Exposure) 20%of Max Occupational exposure (MPE) -- >1%of Maximum Occupational exposure(MIRE) .0 ial MPF 6� urroun ing area a ove grade Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) ... . the signal of a cell mast is . . . . . in many cases tilted downward to limit its reach . This allows covering an area small enough not to have to support more conversations than the available channels can carry. " Wikipedia: "Cell Site" 2015 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Microwave radiation from cell antenna >1% FCC Maximum Occupational Exposure ( Greater than 5% of Maximum General Exposure) 20%of Max Occupational exP0SUrree (MPE) Microwave radiation exposure >1%of Maximum with a 5 deg downward tilt Occupational exposure(MPE) 7-8%occupational MPE (35-40%General MPE) 1 11 1 rng aria a v ra Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Summary • Significant levels of microwave radiation may be produced at ground level in the Spyglass Hill Park due to the proposed Verizon cell tower • While technically within FCC limits, these ground radiation levels may be high enough to be deleterious to active individuals playing in the park on warm days for periods of time due to over- heating. • These levels of radiation arise due to the topography of the proposed site and cannot be rectified with design . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) K. Eddie Mehrfar, PhD Engineering Management - Natural Resources, Environmental Science & Renewable Energy Mentor; MBA Students UCI Merage School of Business Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) BACKGROUND • Grass root effort to have the voice of the people living in Spyglass Hill, Harbor Ridge, Harbor View, and Harbor Hill heard by elected officials • Site creation started on September 10th 2015 & operational on September 14tH • A simple 2 page website; a polling page and a News update page . • People were encouraged to let their voice heard and asked to provide feedback and comments either for or against the cell tower. • A full copy of the results included in the appeal for review by commissioners . Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Results • Total of 287 online votes • 37 votes were duplicates, all from the "NO" side • Total of 250 unique votes • Total of 10 "YES" and 240 "NO" • One "YES" asked not to be identified and info not shared • One "YES" provided bogus email under a name "Lana Smith" • Both were removed, making total YES to be 8 • Final results as of COB Nov 4th 2015 • All results included in public record Total "YES" : 8 N3% Total " NO" : 240 ^'97 Planning Commission - November 5, 2015 Item No. 4f: Additional Materials Presented at Meeting 094) Renee L . Barton , PA-C I am a Current Verizon Wireless customer with excellent reception in Spyglass Neighborhood International Agency for Research on Cancer (IARC) of the World Health Organization (WHO) Classified "Radiofrequency Electromagnetic Fields" "emitted by wireless communication devices" as Type 2B Possible Carcinogen (possible cancer risk to humans). Group 2B Possibly carcinogenic to humans Other "M" items: Lead , DDT, HIV Virus, Methyl Mercury, Chloroform , Diesel Engine Exhaust Los Angeles Unified School District OFFICE OF COMMUNICATIONS News Release : May 29, 2009 LOS ANGELES BOARD OF EDUCATION MEMBERS VOTE TO PROHIBIT CELL PHONE TOWERS NEAR SCHOOLS http://notebook.lausd.net/pls/pti/docs/PAGE/CA—LAU S D/FLD R—LAU SD—N EWS/FL DR_ANNOUNCEMENTS/JKWIRELESS.PDF Huntington Beach Independent City moves cell tower After concerns arise from over 200 angry residents over possibilities of children getting cancer, council decides against placing cell tower near school (Harbour View Elementary School). April 29, 2009 By Saneyee Purandare http://articles.hbindependent.com/2009-04-29/news/hbi- celltower043009_1_cell-phone-tower-council-meeting-city-officials Spyglass Hill Park 'WILL Become Deserted EVERY family that was polled about the proposed Verizon Radiofrequency Radiation tower installation said "We will not use that park anymore" . Spyglass Hill Park will no longer be an acceptable venue for our annual community outreach gatherings with N . B . Police , Neighborhood Watch , etc . Families with children and pets stated they will not attend . Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) Verizon Wireless Bay Hill Newport Beach , CA City Minor Use Permit No. UP2015-024 November 5, 2015 verizon Confidential and proprietary matelots for authorized Verizon personnel and outside as excel only Use, agree disclosure or disVibulion of this material is not permitted to any unauthorized persons or third parties except by written agreement. Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Project Description Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) • Replaces existing 29'-high light pole with light pole having substantially the same diameter, and substantially the same texture and appearance, in the same location within the public right-of-way as the existing light pole. • Includes 3 antennas inside a 2.5-foot-wide by 6-foot-long radome at the top of the replacement light pole. • Utilizes a stand of existing mature trees that are up to 40+ feet in height to shield the radome from views in most directions. • Locates equipment cabinet in an underground vault about 100 feet to the south of the light pole. • Facility complies with health safety standard set by the FCC in coordination with the EPA, FDA and OSHA. verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement 2 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Bay Hill Aerial Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) _ k T. er 1 —Yt f , verizonNI Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement 3 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Spyglass Hill Drive, Lod kii ffliElaigVuL°ENMInUA,SiteA2015-094) 'l y • verizon Confidential and proprietary materials on authorized any u Verizon personnel and outside agencies only.Use,disclosure tof . distribution of this material isnot permitted to any unauthorized persons or third parties except by mitten agreement. 4 • 'i:INILM' • • • � '!/ • it .� �� • �� 1 1 •� a�.'1. �i 1C ilf q�„Ief 1 � - , ,� - ~. X61' �� '•+. ) '-� ' r t` y P �4 1. • - 6��.' � �� *y 1�. �� . F • Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Spyglass Hill Drive, Loo'klirrfe fttiftt--Qf-` xii gpSit'2015-094) T ti. i - q - - verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure of distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement 6 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Spyglass Hill Drive, Lod hIf SW-of-"P-iIp diSffC5-094) ` 4 I} 1 r verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement 7 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting EI Capitan Drive, Lookh1gz1N)6giEki -ft4om Appeal (PA2015-094) 4 4 IIIb J I f_Y verizon to any u Confidential and proprietary materials For Verizon personnel and outside agencies only.Use,disclosure or distribution of this material isnot permitted to any unauthorized persons or third parties except by mitten agreement. 8 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting EI Capitan Drive, Lookirtgo N'O(+t]hPQh1"ddIse,{ C8A2015-094) I ` �Yr 1 II .,� -doom verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement 9 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Aerial Showing Distancon Wireless Right-of-Way Telecom Appeal (PA2015-094) _#c ii F �v P 1 r` r r a` verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 10 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) The Proposed Site Will Not Significantly Impact Views verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 11 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting EI Capitan Drive LookirYigZs4ts Right-of-Way Telecom Appeal (PA2015-094) .sz 1 Y. verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 12 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting From East Side of Park \Lroolklliftg F "Itay Telecom Appeal (PA2015-094) verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 13 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting From Northeast Area ofvParW 1,&dki't.frWW n Appeal (PA2015-094) Ir. verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 14 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Spyglass Hill Drive Looki-rj"15ftthht-of-Way Telecom Appeal (PA2015-094) verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 15 t� � V le 34 *0 maw , r • Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Corner Spyglass Hill an riE1 "O�it fLW&�' � 15-094) r Y { 1. All ed JIM verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 17 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Spyglass Drive Looking'Nofthless Right-of-Way Telecom Appeal (PA2015-094) verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 18 _ � fir• `� _ Y r Ir �� 9 Planning Commission - November 5, 2015 Item lr No. 4g: Additional Materials Presented at Meeting Spyglass Hill Drive LodkhVill th§tIt-of-Way Telecom Appeal (PA2015-094) verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 20 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Bay Hill Existing Covert a fVWrtft+ \Srtr6)com Appeal (PA2015-094) nrrlr�. w 1 4 y S1 Xlr51AN u S WV LTE RMP 7CL fT T&r C, P9BR(WO) ;r et�rex ■ '••7`+ xeLLxr r °a4i atlVRY�Ya�tYlb... ... m+YArniii 1 verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 21 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Bay Hill Coverage With 'SiteWireless Right-of-Way Telecom Appeal (PA2015-094) .. r Bay Hill - With p maen5 f b°-ex t LIL fEP(+i CMV F � r � LAi MLL MrN4GL 51 H L L 5 rM bF i lll� t r T63 LTE RSAF 7CL pp *B Of F69XF'{Al Sse � ,�•�T5 x 5r uurex I Y-'96 -5 .�`-'G+4Mrx>•Y[albliloY�l'.Mmt�PTs.xa��r.'rel .o tvaM1 �wlHmM• raGGmva P.x cv q�r.Vx>•rl verizon Confidential and proprietary materials authorized Verizon personnel or third par agencies only.Use, agreeme tor . distribution of this material is not permitted to any unauthorized persons or third parties except by written agreement. 22 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Radio Frequency Engin#eflki i&1 ffdtttd"eal (PA2015-094) • Verizon identified a coverage and data capacity deficiency in the area based on modeled propegation maps, drive data and traffic data from neighboring sites. • The proposed Spyglass Hill Park (Bay Hill) facility was strategically placed to resolve the coverage deficiencies and improve network reliability to the Verizon customers in the area. • Neighboring (proposed sites) such as San Joaquin Reservoir, Big Canyon Reservoir, SM Park, and Farallon would not resolve the capacity or coverage issues because of terrain blockage and distance from the coverage objective. • Due to the terrain in the area, Spyglass Hill Park (Bay Hill) was the only viable solution to provide the required signal level and quality to effectively offload stresses to the neighboring sites. • Incurring capacity exhaustion severely compromises the Verizon network and leads to failed call attempts, dropped calls, poor call quality and slow data speeds (the Capacity Gap). verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 23 KI 11 MII R • • • • ' _ Ridgeline Dr, elev 603 ft.=- —_ Sari, Mlgue! Park -elev 300ft - 1 '. ' - - Skyglass Hill Park. el_ev 537 fl ' J <Big Canyon Reservoir elev 324 ft �-_-�. �` : � __ � '��''.wt•.> rte- '� ,f San Joaauin-HiIIs-Road=eIev-452-ft _ _ - —_ —san—loaquln rLll R<i-- - magakandsat 11 H ®2015 Geogle arth- � Imagery Date:3(24(2015 33°36'31.16"N I17°50'54.32"W Ole 546 R eye A°2q7,8 11,40 (San:JI 'Skygla55 Hill PaB tlev 537 It- 7— moi / San M9ue Par, v300 II - r— Mm I x .f< . % 5, .. .►.. � js (Big Canyo&Reservolr. Elev 324 ft or 0angzal�' . �low N—I —x 016� 0 - N�ll '0g1f -Vna/ yply.py(e:4�11/2015 33C3634t D"Il lll°51'OJ.51'M alev 439& eye aft 1386 R 0 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Alternative Locations CbhSjff6redg1t-of-Way Telecom Appeal (PA2015-094) • No industrial, commercial or co-location sites within the search ring. • San Joaquin Reservoir site cannot cover the gap area due to intervening terrain that will prevent RF transmission. No existing features at this Reservoir site allow a stealthed wireless facility to be installed there in a visually integrated manner. • Big Canyon Reservoir site cannot cover the gap area due to intervening terrain that will prevent RF transmission. Also, installing a site as this reservoir would interfere with the signal from a nearby existing Verizon site. • SM Park is about 1 .3 miles away from Spyglass Hill Park, and is about 330 feet lower in elevation. Intervening terrain will block the RF signal to the gap area. Also, SM Park is designed to address a coverage and data demand gap in the localized area. • Farallon is about 1 .5 miles away from Spyglass Hill Park, and about 400 feet lower in elevation. Intervening terrain will block the RF signal to the gap area. Also, antennas at Farallon are at about 32 feet high on a facility and are intended to provide coverage and data capacity needs for the Fashion Island shopping center. • San Miguel Park is about 230 feet lower in elevation than Spyglass Hill Park. Intervening terrain will block the RF signal to the gap area. verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 26 Planning Commission - November 5, 2015 Item No. 4g: Additional Materials Presented at Meeting Verizon Wireless Right-of-Way Telecom Appeal (PA2015-094) VERIZON WIRELESS REQUESTS THAT THE PLANNING COMMISSION DENY THE APPEAL AND AFFIRM THE ZONING ADMINISTRATOR' S APROVAL OF THE PROJECT AS PROPOSED . verizon Confidential and proprietary materials for authorized Verizon personnel and outside agencies only.Use,disclosure or distribution of this material is not permittedto any unauthorized persons or third parties except by written agreement. 27