telecommunications facility

Transcription

FILED
C I T Y OF
opriCE oy^^^^^îr-, cAtP.t
OAKLAND
AGENDA REPORT
20I0HAY2G PM l»: 2 5
TO:
ATTN:
FROM:
DATE:
Office of the City Administrator
Dan Lindheim
Community & Economic Development Agency
June 1,2010
RE:
A Public Hearing And Resolution Denying The Appeal And Upholding The
Planning Commission's Decision Of Approval Of A Major Conditional Use
Permit For A Telecommunications Facility Within Three Hundred (300) Feet Of
The Boundary Of An R-40 Residential Zone And Regular Design Review Permit
For A Mini Telecom Facility (Telecom Civic Activity) Located At 1001 42"" Street
SUMMARY
On February 17, 2010, the Planning Commission approved (by a vote of 5 to 0) a Major
Conditional Use permit and Regular Design Review permit at 1001 42"** Street, for a
Telecommunications Facility within three hundred (300) feet of the boundary of an R-40
residential zone and Regular Design Review permit for a Mini Telecom Facility (Telecom Civic
Activity) (CMD09-205).
On March 1, 2010, Cynthia Carpenter et al filed an appeal of the Planning Commission's
Approval of the Project to the City Council (Attachment A). In summary, the Cynthia Carpenter
appeal maintains that (a) the Planning Commission failed to analyze the issues, address
inadequacies, and consider alternatives; and (b) the actions and recommendations of the Planning
Commission were premature and violated the Planning Code and General Plan; and (c) the
noticing was insufficient; and (d) the City appeal procedures impose unreasonable and onerous
filing fees and documentation requirements.
The arguments raised by the appellant are summarized below in the Key Issues portion of this
report along with staffs response to each argument. For the reasons stated in this report, and
elsewhere in the record, staff recommends the City Council adopt the attached Resolution
denying the appeals, thereby upholding the Planning Commission's approval of the project.
FISCAL IMPACT
The project involves the installation of a telecom facility, and does not request or require public
funds. As the project is for an unmanned telecommunications facility on private vacant property,
it would not require an increase in the level of municipal services. Were the appeal to be upheld
and the project overturned, it is likely that it would continue to be vacant.
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42"*^ Street
Page 2
BACKGROUND
This appeal and, accordingly, this staff report, address only the proposal for a
telecommunications facility at 1001 42" Street. The proposal does not involve any exterior
alterations to the building. The site is located within a mixed use district between 41^' and 42"''
Street and along Linden Avenue near Adeline Street. The site is in the HBX-2 Housing and
Business Mix Zone. General Plan designation is Housing and Business Mix Land Use
classification.
PROPERTY DESCRIPTION
The subject site is a 34,598 sq. ft. lot bounded by 4 l " Street, 42"'' Street, and Linden Street. The
western portion of the property crosses the city border into Emeryville. On the east side of the lot;
is a two-story 41,320 sq. ft. hght industrial building; in the middle ofthe property is a driveway
with ramps and parking areas; and on the western side is a mix of smaller industrial brick
buildings. The property is currently vacant. The west side ofthe block faces Adeline Street and
contains a row of residences. Across 42"*^ Street is the North Oakland Charter School (NOCS)
and across 41^^ Street are the Green City Lofts, a 4+-story residential condominium development.
The neighborhood also contains a mix of one-and two-story multi-family, single-family, and livework buildings.
PROJECT DESCRIPTION
The applicant, representing Verizon Wireless, proposes to place nine (9) new antennas within a
decorative screen on the roof of an existing 32' tall light industrial building. The rooftop
structure is designed to match the building in color and texture of siding materials. As presented
in the attached plans, the roof structure measures 15' in width and length and extends 10' above
the peak ofthe roof on which it is mounted. This design has small cutouts at the comers.
However, staff recommends a somewhat different rooftop design, as explained in "Key Issues"
later in this report.
The rooftop structure meets the Telecommunication Ordinance requirement of a 1:1 ratio setback
from the fapade and a maximum height of 15' above the roof An equipment cabinet is proposed
within the building, as well as a generator within a building across the site on the Emeryville side of
the property. See Attachment B, Planning Commission Report, Attachment C, "Proposed 3"
photo simulation. This application represents the first telecommunications facility on-site. The
proposed facility is intended to handle increased wireless traffic on the network, as well as ensure
quality service to residences and businesses in the neighborhood.
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City Council
June 1,2010
Dan Lindheim
Page 3
At the time ofthe writing of this report, staff has not received any written communication from
neighbors, only three inquiries for more information.
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GENERAL PLAN ANALYSIS
The General Plan Housing and Business Mix Land Use classification is intended to guide a
transition from heavy industry to low-impact light industrial and other businesses that can co- !
exist compatibly with residential development. Respect for environmental quality, coupled with ;
opportunities for additional housing and neighborhood-friendly businesses is desired, as well as |
transition fi-om industry that generates impacts detrimental to residences. The desired character of
development should be compatible with housing, and development should recognize the mixed '
business nature ofthe area.
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The proposed telecommunications facility will improve communications essential to modem-day
operation of residential uses and will improve the availability of infrastmcture to the area. It is
consistent with the following policy ofthe General Plan:
Policy N1.5 Designing Commercial Development Commercial development should be
designed in a manner that is sensitive to surrounding residential uses.
In conformance with General Plan Policy, the proposed antennas are concealed from view behind
a screen designed to match the existing building with an exterior "skin" that matches the exterior
brick walls ofthe building.
The proposed telecommunications facility will be compatible with the mixed
commercial/residential nature ofthe area.
ZONING ANALYSIS
The subject site is zoned HBX-2, Housing and Business Mix Commercial Zone. The purposes of
the Housing and Business Mix zones are to:
•
•
•
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Allow for mixed use districts that recognize both residential and business activities;
Establish development standards that allow residential and business activities to compatibly
co-exist;
Provide a transition between industrial areas and residential neighborhoods;
Encourage development that respects environmental quality and historic pattems of
development.
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42"^ Street
Page 4
The project meets the purposes ofthe Housing and Business Mix (HBX) zoning district in that it
has been designed to appear to belong on the building, and the architectural and historic features
ofthe building have been matched by the screening design.
The HBX-2 zone is intended to provide development standards for areas that have a mix of
industrial, certain commercial and medium to high-density residential development. This zone
recognizes the equal importance of housing and business.
Telecommunication facilities within three hundred (300) feet ofthe boundary of a residential
zone require a Major Conditional Use Permit. Staff finds that the proposal meets applicable
HBX-2 zoning and City of Oakland Telecommunication regulations.
ENVIRONMENTAL DETERMINATION
The project has been found to be categorically exempt from the environmental review
requirements ofthe California Environmental Quality Act (CEQA) under Section 15301, minor
alterations to an existing facility. As a separate and independent basis, this project also is exempt
pursuant to CEQA Guidelines Section 15183, projects consistent with a community plan, general
plan or zoning.
KEY ISSUES AND IMPACTS
Cynthia Carpenter et al Appeal
The Cynthia Carpenter et al appeal is included as Attachment A (filed March 1, 2010) and
summarized below.
The appellants organized the specific points ofthe appeal into.a numbered section labeled
"Issues Raised" followed by a discussion section labeled "Issues discussed." The discussion
section is not in the same order as the Issued Raised section. Staff organized the report by giving
each point in the discussion section a letterfi"omthe alphabet and by putting the corresponding
number from the Issues Raised section adjacent to that letter. The appeal appears in bold text and
the staff response follows each point in regular type. Additional sections for staff responses have
been added at the end for the items where the numbered and discussion items do not overlap.
ISSUES RAISED
1. The Planning Commission otherwise failed to analyze the issues, address
inadequacies in the project, and consider alternatives.
2. All issues raised by the speakers and letters to the Planning Commission
meeting on February 17, 2010.
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June 1,2010
Dan Lindheim
Page 5
3. All issues raised in the following sections incorporated into this appeal.
4. The actions and recommendations ofthe Planning Commission at the
meeting on February 17, 2010 were premature and violated CEQA because
of reasons including but not limited to the following:
a. The staff report incorrectly claimed an exemption for the project
under CEQA Section 15301, and did not prepare an Initial Study or
Environmental Impact Report.
b. The staff report incorrectly claimed compliance with CEQA Section
15183, consistence with a community of general plan.
meeting on February 17, 2010 were premature and violated the Oakland
Planning Code and Oakland General Plan because of reasons including, but
not limited to the following:
a. The staff report incorrectly described the project as compatible with
the existing neighborhood character as required in Section 17.134.050.
b. The staff report incorrectly described the project as providing an
attractive, convenient and functional living environment as required
in Section 17.134.050.
c. The proposed design fails to provide a quality and character that
harmonizes with and protects the value of private and public
investments in the area as required in Section 17.136.050B.
d. The proposed design adversely impacts the historic character of the
potential designated historic property as described under the historic
Preservation Element Section ofthe Oakland General Plan.
meeting on February 17, 2010 were premature and violated the California
Health and Safety Code because of reasons including but not limited to the
following: The proposed design fails to meet the requirements of Section
16000 Essential Services Building Seismic Safety Act.
7. The notice for the Planning Commission meeting and proposed project was
insufficient, and in violation of Government Code Section 54950 and the
Oakland City Code.
8. The City's appeal procedures violate the statutory right of appeal to the
elected body under public resources code section 21151c by imposing
unreasonable and onerous filing fees and by imposing unreasonable and
onerous documentation requirements.
Item:
City Council
June 1,2010
Dan Lindheim
Page 6
ISSUES DISCUSSED
1, The appeal asserts the following: The permit application requires an Alternative
Site Analysis. An HBX-2 recognizes the EQUAL IMPORTANCE of housing and
business. However, this designation does not provide any protection to the
residential component ofthe zone. In this HBX-2 zone, housing and civic
components significantly exceed the business component, coupled with the entire
surrounding area being residentiaL The building was designated as a " C " - existing
commercial or industrial commercial structures in residential zones. It should have {
been designated as a "D" - Existing commercial or industrial structures in
residential zones.
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Staff Response
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The neighborhood is a mix of uses. Furthermore, the HBX zone is not a residenfial zone
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(Section 17.09.040 defines "Residential zone" as any zone with a name that ends with the words
"Residential Zone Regulations." This HBX zone does not meet that definition. The City of
Oakland Residential zones are labeled "R" (zones R-1 through R-90). The property was, until j
2006, used for manufacturing production and distribution. The property has been vacant since I
that time.
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In the appellants' Issues Raised " 1 " it is stated that "the Planning Commission failed to analyze |
the issues and address inadequacies." Without fiirther explanation of which issues and
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inadequacies the City failed to analyze, other than what has been asked and answered in the
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discussion, staff is unable to prepare a response.
Regarding the Altemative site analysis, Secfion 17.128.110 of the City of Oakland Planning
Code requires that new wireless facilities shall generally be located on the following properties or
facilities in order of preference:
A.
B.
C.
D.
E.
F.
G.
Co-located on an existing structure or facility with existing wireless antennas.
City owned properties or other public or quasi-public facilities.
Existing commercial or industrial stmctures in non-residential zones.
Existing commercial or industrial stmctures in residential zones.
Other non-residential uses in residential zones.
Residential uses in non-residential zones.
Residential uses in residential zones.
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Facilities locating on an A, B or C ranked preference specifically exclude a site alternatives
analysis from the criteria to be considered on an application. The proposed facility is to be
located at a "C" ranked site, an existing commercial or industrial stmcture in non-residential
zone. As a result, the Code does not provide for an altemative site analysis to be conducted for
this proposal.
Item:
City Council
June 1.2010
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Dan Lindheim
Page 7
2. The appeal asserts that all issues raised by the speakers and letters to the
Planning Commission meeting on February 17, 2010 are to be considered
among the issues appealed to the Council.
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Staff Response
Staff reviewed the issues raised by the speakers at the Planning Commission meeting as well as
the emails received regarding the project and found that the issue not raised by the appellants
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above was whether the Air Quality Resources Board, Cal/EPA, Public Utilities Commission, and
Native American Heritage Commission had been consulted.
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The Planning Commission considered all testimony brought forth by the speakers at the Planningl
Commission meeting and emails received prior to the meeting. The proposal for nine cell
antennas with corresponding equipment does not trigger review by the suggested agencies and '
commission listed above. The Planning Commission is charged with reviewing the project
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because of its proximity to a residential zone on its design merits and whether the project meets i
Federal safety standards. The design recommended by staff was approved and the Federal
standards were met by the applicant and the Planning Commission therefore approved the project
with conditions.
3. The appeal asserts that the building is already an environmental safety
hazard. This building that is the site of this project is a former paint factory
and is classified as a remediation site. There continues to be no corrective
action plan to clean up the toxic chemicals that are present.
Staff Response
A corrective action plan would not be required for a telecom facility as there is no occupancy
issues related to the use. The Fire Department would be responsible for working with the
property owner on these issues, but they are not implicated by the current proposal.
4. The appeal asserts the following: Applicant has failed to show how site will
reduce public access, as it is an "attractive nuisance."
The
Telecommunications regulations in the Oakland Planning code require that
all reasonable means of reducing public access to the antenna be made.
Siting the telecom facility across from the North Oakland Charter SchooL an
elementary and middle school of 150 children as well as near Anna Yates
Elementary School of 430 students, and Linden Park make the site an
"attractive nuisance" even with decorative screens. The site is not secure for
the following reasons. Firstly, it is a vacant building with chain link fencing
that was recently installed in an inadequate manner. The fencing is free
standing and is not secured to the ground or to the building. Gaps in the
fencing provide easy access to the site, as evidenced by bedding and other
Item:
City Council
June 1,2010
Dan Lindheim
Page 8
refuse left by homeless campers. Secondly, graffiti along the roofline is
evidence that no anti-climbing measures have been taken.
Staff Response
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The Telecommunication regulations in the Oakland Planning Code require that all reasonable
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means of reducing public access to the antennas and equipment be made, including, but not
limited to, placement in or on buildings or stmctures, and the addifion of fencing, anti-climbing \
measures and/or anti-tampering devices The equipment cabinet will be concealed from public
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view as it will be contained within the first floor ofthe building. The cabinet enclosure is to be i
regularly maintained. Site location and development will preserve the preexisfing character of the j
surrounding buildings and land uses and the zone district as much as possible. Additionally, staff'
recommends that access doors to equipment areas be locked at all times and that access to the
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roof be from ladders that contain locking devices that would prevent access only to qualified
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personnel.
5. The appeal asserts the following: Federal Law does not mandate seamless
coverage and Verizon coverage is high. 911 safety should never be used as
justification to approve cellular permits. Mentioned numerous times in the
staff report is the contention that this project will improve the wireless
telecommunications services in the neighborhood and contribute to a
functional residential and civic environment. However, according to the
coverage map that is provided on the Verizon Wireless website, this
neighborhood has complete digital coverage and there are no areas without
coverage. Numerous individuals who spoke at the Planning Commission
meeting and were customers of Verizon Wireless stated that they had full five
bar coverage in this neighborhood. Verizon has not shown 911 records
demonstrating the need for this particular site, including a detailed analysis
as to how the Green City Lofts block coverage. If that is true, then why build
the site so close to the lofts? Also, Charnel James at the February 17, 2010
Planning Commission meeting implied that if this site was not approved,
someone with a Verizon phone may not get through to 911. She failed to say
that even a cell phone without a service provider will connect to any signal of
any carrier as a priority call when 911 is dialed. Verizon uses similar
technologies to other carriers, which means there are plenty of signal that
handle 911 calls. Denial of this permit will not constitute discrimination.
Staff Response
Based on information received from the applicant, staff determined that "the project would be
beneficial to the area and the City as a whole in that it would improve essential wireless
communication services to the residents, businesses, and public and emergency services in the
area. Additionally, it was designed to comply with Federal safety standards and complies with
the applicable regulations outlined in the Oakland Municipal Code for telecommunications
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42""^ Street
Page 9
facilities." The applicant states: "The maps from the stores are sales tools, and represent areas
where it is possible to get coverage. They are not representations ofthe quality of that coverage,
nor do they even address the separate issue of capacity is an important part ofthe need for this
site. " Further explanation ofthe need for this site will be provided by Verizon Wireless's
engineers.
Page A2 ofthe plans show the direction ofthe antennas. They are pointed west, north, and
southeast, not directly at Green City Lofts which are directly south.
6. The appeal states: Safety Issues related to lead acid are a major concern.
The equipment cabinets in the permit application will likely house hundreds
of pounds of lead acid batteries. Typically there are 16 one hundred pound,
lead-acid 48 volt batteries per cabinet. The batteries are filled with a sulfuric
acid solution. Sulfuric acid is on the EPA list of extremely hazardous
substances." Alternatively, Valve Regulated Lead Acid Batteries (VRLA)
may be used and are just as dangerous. A single car battery contains less
than one pint (16 oz) of sulfuric acid. 6 cabinets, each containing 1600
pounds of sulfuric acid solution equals 9,600 pounds of an extremely lethal
substance within a few hundred feet from a school and residences. The FCC
has not addressed hazards of the lead acid battery operated backup systems
(base stations) housed in the equipment cabinets. Thus, they are not covered
under Section 704 of Title 7 of the TCA. They are subject to explosion at
extreme temperatures. Air conditions and heating systems break down and
are subject to power failures. Batteries are even more apt to explode during
recharging. These batteries also leak and leakage was a major factor in the
Los Angeles Telephone Exchange fore of March 15, 1994. In addition,
cellular antennas have had an increasing propensity to self-ignite. An
explosion and fire at this location could be catastrophic.
Staff Response
Staff has found the evidence provided by the applicant is sufficient to address this concern. The
applicant provided the following information: "The Verizon Wireless facility will include two
battery cabinets that will contain a total of less than 100 pounds of electrolytic gel (in total for
the two cabinets). One reason for choosing this design is that it is inherently leak-proof in an
overabundance of caution, each cabinet also has a leak-containment tray, and is completely
enclosed in leak-proof fiberglass. Verizon Wireless uses this design throughout Northern and
Central California, and has not had a single battery leak or cause afire at any of these sites.
Furthermore, this is not a land use issue, as local fire departments typically regulate batteries
through the building permit process.
The claim about cellular antennas "self-igniting" appears to be purely fanciful. We are not
aware of any such phenomenon, and have no idea where the neighbors are getting such misItem:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42"^^ Street
Page 10
information.
We have no direct knowledge ofthe Los Angeles fire, but it appears to have had nothing to do
with either cellular telephones or batteries. The attached NY Times article describes the fire as
occurring in a Pacific Telephone (landiine) switching center, and to have been caused by a work
crew. In any event, there is no mention of batteries. "
7. EMF and RF interference and noise pollution. The high frequency EMF's
and RF's from cellular antennas will affect small businesses, residents and
school children in the area because of high frequency noise and
electromagnetic interference. For example, a video and film production
business directly across the street from the site proposal will have their
business negatively affected by the facility.
Staff Response
As stated in the Planning Commission staff report, "The telecommunications regulations require
that the applicant submit written documentation demonstrating that the emissionsfi-omthe
proposed project are within the limits set by the Federal Communicafions Commission. In a
document included with the Planning Commission report (Attachment F) prepared by Hammett
& Edison, Inc., Consulting engineers, the proposed project was evaluated for compliance with
appropriate guidelines limiting human exposure to radio frequency electromagnetic fields.
According to the report on the proposed facility, the project will comply with the prevailing
standards for limiting public exposure to radio frequency energy and, therefore, not cause a
significant impact on the environment. Additionally, staff recommends that prior to the issuance
of a final building permit, that the applicant submits a certified RF emissions report stafing that
the facility is operating within acceptable thresholds established by the regulatory federal
agency." It should be noted that the City does not have legal authority to regulate beyond FCC
standards.
In addition, the applicant provides that "the report of Hammett & Edison, consulting engineers,
shows that the facility will operate well below (less than 3%) the FCC safety limits.
Consequently, concerns about health effects are preempted by the Telecommunications Act.
This is true both for regulation expressly based on health concems, and for regulation based
indirectly on such concems through some proxy, such as property values. Federal law also
completely preempts the issue of RF interference. This has been exclusively an issue for the
FCC for many decades now, since long before the cellular industry existed."
The appellants have not provided evidence how the video and film production business directly
across the street from the site proposal wiil have their business negatively affected by the facility
and staff is therefore unable to respond to this contention.
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42""* Street
Page 11
8. The project violates CEQA and requires an environmental impact'report.
The staff report incorrectly describes this project as a "minor alteration to
an existing facility" and exempt to the provisions of the California
Environmental Quality Act per Section 15301. However, section 15301
describes exemptions to existing facilities as "...involving negligible or no
expansion of use beyond that existing at the time of the lead agency's
determination...The key consideration is whether the project involves
negligible or no expansion of an existing use..," (pg 212, 213, CEQA
Guidelines). This project represents a radical change in use. The building is
not currently a telecom facility. This project should not be exempt from
CEQA, and an initial study and an environmental impact report should be
prepared. The installation of nine antennae to create a new telecom facility is
not a minor alteration. Initiation of the EIR process will provide for a period
of public comment, and comment from relevant responsible and trustee
agencies, like the State Historic Preservation Office.
Staff Response
CEQA Section 15301 (Categorical Exemptions) for existing facilities, such as the subject
property. Class 1, "consists ofthe operafion, repair,...minor alteration of existing public or
private stmctures, facilities." An example under (e) is: "Additions to existing stmctures provided
that the addition will not result in an increase or more than: (1) 50 percent ofthe floor area ofthe
stmctures before the addition or 2,500 square feet." Therefore, the project meets CEQA as the
"addifion" is approximately 244 square feet on top of a 43,120 square-foot building. The
remaining equipment is housed in a small space within the main building and in a building on the
Emeryville side ofthe property.
The use ofthe building will not change with the addition ofthe unmanned antennas and
associated equipment as the building would still be available for occupancy. The City routinely
issues Nofices of Exemption under the same CEQA guidelines section for similar telecom
facilities.
As a separate and independent basis, the project also is exempt pursuant to CEQA Guidelines
15183 (projects consistent with the general plan and zoning).
9. The project violates the Oakland Planning Code and the Oakland General
Plan.
The proposed design will not harmonize with the existing
predominately single-family residential neighborhood. The proposed design
will disrupt the community character by placing a structure over 42' from
finish grade, interrupting a view corridor. It will be the tallest nonresidential structure in the neighborhood and will be out of character with
the existing fabric. The majority of structures in the neighborhood are single-
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June 1,2010
Dan Lindheim
Page 12
family houses. The noise from the equipment will provide a nuisance to
neighbors. The design of the rooftop enclosure is unattractive and visible
from the street. Most importantly, this project will disrupt the overall
community character. It is a radically different function in a neighborhood
comprised of single-family hoses, multi-family housing, condominiums, and
schools.
Staff Response.
The neighborhood is a mix of residential, civic, commercial, and light-industrial/industrial uses.
The project site, 1001 42"** Street, is a property that stretchesfi-om4 l " Street to 42"** Street along
Linden Street is in the HBX-2 district, a non-residential district. This property housed lightindustrial uses, such as Oakland National Engravers. It has been vacant in the past four years.
This is a list ofthe types of acfivifies and uses around the project site:
In addition to the school and park across 42"** Street, residences to the west, and Green City
residenfial lofts across 41^^ Street, the following uses exist:
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Adjacent to Green City Lofts at 4055 Linden Street is the Industrial Safety Supply
Corporation, a distribution site i.e. warehouse listed in the Assessors records and
light industrial use code.
Across from the project site, on Linden Street, at 980 41^^ Street is Applied
Materials Engineering, a consulting firm, listed in the Assessors records as
"miscellaneous, industrial (improved)."
Across from the project site, on Linden Street, is Artichoke Productions, a
mulfimedia studio for film, video, audio.
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On the comer of Linden Street and 41^^ Street is Califomia Linen Supply, listed by
the Alameda County Assessors office as "light industrial." It has an "open"
cleanup status on Geotracker, the Waterboard's list of hazardous materials
cleanup sites.
4000 Adeline Street, also adjacent to Green City Lofts, is another light industrial
building/site.
The project site at 1001 42"** Street is listed as light industrial in the Assessors
record and has an "open" status on Geotracker.
Therefore, the neighborhood character is a mix of uses rather than predominantly residential.
The addition ofthe "penthouse" stmcture is a minor element on a larger building and does not
significantly affect the building height and mass.
As stated in the Planning Commission report, the project safisfies the requirements of Section
17.128.120 ofthe Oakland Planning Code which requires that new wireless facilifies shall
generally be designed in the following order of preference:
Item:
City Council
June 1,2010
Dan Lindheim
A.
B.
C.
D.
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Building or stmcture mounted antennas concealed fi-om view.
Building or stmcture mounted antennas set backfi-omroof edge, not
visiblefi-ompublic right-of way.
Building or stmcture mounted antennas below roofline (fa9ade mount,
pole mount) visible from public right-of-way, painted to match existing
stmcture.
Building or stmcture mounted antennas above roofline visible from public
right-of-way.
Facilities designed to meet an A or B ranked preference do not require a site design alternatives
analysis. The antennas are within a decorative screen, and therefore will be designed in an "A"
ranked marmer.
Responding to staffs request for a redesign ofthe initial applicafion, the applicant submitted on
December 2, 2009 by email a revised set of photo simulations that included 6 altemative designs
for the rooftop enclosure stmcture. Staff accepted "Proposed 3" (sec Attachment C, photo
simulations) which provides deeper shadows and smaller wall planes on the sides ofthe screen.
The Proposed 3 proposal is different from the submitted plans in that it breaks up the large wall
mass ofthe boxy design ofthe decorative screen shown on the attached plans that were
submitted to the Planning Commission.
Shortly before the writing of this report, the applicant submitted revised plans that did not match
the Proposed 3 scheme. These plans are included as Attachment D to this report. This revised
design has smaller cutouts on the comers, and in staffs opinion, does not break up the large mass
ofthe roof enclosure as effectively as shown in Proposed 3 photo simulations.
Staff recommends that the applicant subrnit, prior to or concurrent with building permit
submittal, a revised plan set for planning approval that is identical, to the maximum extent
feasible, to the Proposed 3 photo simulations that was submitted by the applicant in an email
received by the Planning and Zoning Division on December 2, 2009.
The equipment is housed within existing buildings on the project site. The equipment is housed
within the main building and the generator is housed in a building on the west side ofthe
property. The generator will cycle on once a week for testing, for approximately one half
hour. This is usually done in the aftemoon. Further, the project would need to comply with the
City's Genera! Plan Noise Element and Section 8 of Oakland's Municipal Code.
10. The appeal, the appellants state that the Planning Commission staff report
incorrectly described the project as compatible with the existing
neighborhood character and providing an attractive, convenient and
functional living, working, shopping, or civic environment, as required in
Planning Code section 17.134.050.
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42"'' Street
Page 14
Staff Response.
The Planning Commission correctly made the findings that the project satisfied these conditional
use permit criteria. The project will provide increased capacity and seamless coverage to be
consistent with a convenient and functional environment. The application makes an effort to
screen the antennas on top ofthe roof of an industrial building on an industrial site in a
neighborhood with a mix of uses.
11. The appeal states following: The placement of the telecom facility will affect
neighborhood values.
The Appraisal Institute is the largest global
professional membership organization for appraiser with 91 chapters
throughout the world. The Institute spotlighted the issue of cell towers and
the fair market value of a home and educated its members that a cell tower
should, in fact, cause a decrease in home value, as much a 25%. The
California Association of Realtors maintains that "sellers and licensees must
disclose material facts that affect the value or desirability of the property,"
including "known conditions outside of and surrounding" it.
Staff Response
The effect of property values is not among the criteria the Planning Commission is authorized to
consider on a conditional use permit application. The Planning Code specifies the scope ofthe
Commission's review, which includes, in part, evaluafing the design ofthe decorative screen
around the antennas. The screen serves to camouflage the antennas, thereby removing a visual
connection to the antennas.
12. The appeal states the following: This building is a Potential Designated
Historic Property (PDHP); Minor Importance, Potentially Secondary
Importance or Superior, Survey Rating Dc3 and should be treated as such. A
redesign of the structure on the initial application was requested by the
planning staff. Although the staff accepted this revised "Proposed 3," the
Verizon representative stated that the redesign would impair the signals. The
Planning Commission accepted this explanation and approved the original
design that was described by the planning staff as "a large wall mass" with a
"boxy design" with no request for further design for this potentially historic
building. The State Historic Building code (Part 8 Title 24) requires that a
Report of Structural Integrity be made when any additional load will be
placed on an existing structure qualified historic building. The addition of a
roof top structure visible from the street would radically change the
appearance of this building facade, and destroy the historic character of the
building and neighborhood.
Item:
City Council
June 1,2010
Dan Lindheim
Page 15
Staff Response
A PDHP rating of Dc3 does not qualify the subject site as a locally designated historic resource.
Although not required, the City of Oakland's Historic Planner reviewed the project design. As
this is an industrial building that has housed industrial uses, the planner recommendation was to
allow the antennas to be constmcted without the screen to match the other rooftop equipment.
However, this recommendation was not a requirement, and as the Planning Code does not allow
for exposed antennas, this recommendation was not pursued.
The load on a building is not part of Planning Review but the project will be required to comply
with all applicable Building Code and other stmctural requirements. This review would occur as
part ofthe Building Division review when the applicant applies for a building permit.
Staff requested a design of the.screen around the antennas that would provide deeper shadows
and smaller wall planes on the sides ofthe screen to reduce the sense of massing and this was the
design (Proposed 3) that was approved by the Planning Commission on February 17, 2010.
13. The appeal states the following: The Project violates the Health and Safety
Code. Section 16000 of the Health and Safety Code requires buildings
providing an "essential service" (page 7 of the Staff Report dated 2.17.10) to
conform to the provisions of the Essential Services Building Seismic Safety
Act of 1996. Supporting design documentation does not indicate a design
compliant with these provisions, including, but not limited to: unreinforced
masonry walls, lateral bracing, bracing of primary structure, and seismic
bracing of non-structural elements including rooftop equipment.
Staff Response
The subject building is not covered by Section 16000 ofthe Health and Safety Code. Section
16000 ofthe Health and Safety Code relates to buildings which provide essential services. The
text referred to on page 7 ofthe Planning Commission report is "provide essential wireless
communication services to the residents, businesses and public and emergency services in the
area and minimize dropped calls" and, therefore, refers to a service and not the building and
therefore Secfion 16000 does not apply.
14. The appeal states the following: The notification process to neighbors was
flawed. The assessor's information that was provided to the planner was
outdated and incorrect. For example, the property description in the staff
report references the 62-unit Green City Lofts condominiums, all with
separate assessor parcel numbers and property tax bills, yet no notice was
sent to any property owner in this complex. In addition, flyers on telephone
poles were not up to the City's requirements for notification. We take this as
an act of bad faith. Despite Verizon and the City of Oakland planning for
Item:
City Council
June 1,2010
Dan Lindheim
Page 16
this facility since May of 2008, citizens, schools, and businesses found out
about the application in February of 2010,
Staff Response
In accordance with standard notification procedures, the City utilized information provided by
the County of Alameda Assessor's Office for notification purposes. The time it takes for the
information to be updated and reach staff at the City of Oakland can, at times, take up to a year or
more. The attached (Attachment E) map shows the parcels within 300 feet ofthe subject site at
1001 42" Street that were used to develop the notification list to send the public notices. When
the City receives no names and addresses associated with parcels numbers, it is not able to
provide notification to the property owners associated with the parcel. The City learned that
|
some ofthe notices that were posted on the telephone poles were removed, not by the City.
\
Regarding the assertion that the City and Verizon acted in bad faith, the City was not aware of
this project on September 30, 2009 and that was the first time planning staff was apprized ofthe
project. The City complied with the Code requirement to provide public notice to property
owners when a hearing date is set, and at least 17 days prior to said hearing.
15. The appeal states the following: The City's appeal procedures violate the
statutory right of appeal to the elected body under public resources code
section 21151c by imposing unreasonable and onerous filing fees and by
imposing unreasonable and onerous documentation requirements.
Staff Response
The City of Oakland Appeal Fee is $ 1,181.93 and has been based on the average expenditures of
staff resources for similar cases. To respond to an appeal requires work by staff from various
departments including, but not limited to the City Attorney and Zoning, and the support staff
from each of these departments and actually often times require many hours of work beyond that
covered by the appeal fee.
The appeal instmctions ask that appellants raise each issue they wish to challenge/appeal and
provide supporting documentation. Without this information, staff and the City Council would
not be able to respond to the appeal.
16. The appeal states the following: Oakland residents raised many issues
enumerated above at the City of Oakland Planning Commission meeting on
February 17, 2010, but the Commissioners only addressed the cell coverage
issue, which, again, is not a mandate for the City nor is coverage even
necessary. Furthermore, the Planning Commission claimed it does not have
jurisdiction, biit the Los Angeles Unified School District, as well as the cifies
of Albany, Glendale, and San Francisco, CA have all endorsed limiting
cellular antenna placements. Furthermore, the following decisions all
Item:
City Council
June 1,2010
Dan Lindheim
Page 17l
demonstrate the municipalities do have power to restrict cellular antenna
placement on more than simple design. The most important court cases on
this issue, which are binding law for all of California, are the Ninth Circuit
Court of Appeals' MetroPCS v. City and County of San Francisco (2005),
Sprint PCS Assets, L.L.C v. City of Palos Verdes Estates (2009) and Sprint v.
County of San Diego (2008) decisions.
Staff Response
In additional to the federal cases cited by the appeal, the Commission is bound by the City of
Oakland General Plan and Planning Code on permitting wireless telecommunications facilities.
The local codes specify the criteria for the Planning Commission's evaluafion of these
applications.
The General Plan analysis included Policy N1.5 Designing Commercial Development.
"Commercial development should be designed in a manner that is sensitive to surrounding
residential uses." Under the Planning Code, the Planning Commission was limited to reviewing
the project based on the following criteria; Section 17.136.050B - Design Review for
Nonresidenfial Facilifies, Secfion 17.128.060 (B) - Design Review Criteria for Mini Facilifies,
Section 17.134.050 - General Use Permit Criteria, and Secfion 17.128.060 (C)-Condifional Use
Permit Criteria for Mini Facilities. The facility met these findings, and was therefore approved.
While other cities may have varying regulations concerning wireless facilities, the Oakland
Planning Code govems this applicafion. None ofthe court cases provided by the appellants alter
the findings ofthe Planning Commission on this application.
RECOMMENDATION(S) AND RATIONALE
Staff recommends that the City Council adopt the attached Resolution denying the appeal,
thereby upholding the Planning Commission's approval ofthe project. Staff recommendation is
based on the following reasons: 1) The Project and the approval ofthe Project comply in all
significant respects with applicable general plan policies, conditional use permit criteria and
review procedures; and 2) the Project complies with CEQA, and 3) there was no error or abuse of
discrefion on the part ofthe Planning Commission in approving this Major Conditional Use
Permit.
ALTERNATIVE RECOMMENDATION(S)
The City Council has the option of taking one ofthe following altemative actions instead ofthe
recommended action above:
1.
Uphold the Cynthia Carpenter et al appeal and reverse the Planning Commission's
decision thereby denying the project. This option would require the City Council to
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42""* Street
2.
3.
4.
Page 18
continue the item to a fiiture hearing so that Staff can prepare and the Council has an
opportunity to review the proposed findings and resolution for denial, or
Uphold the Planning Commission's decision, but impose additional or revised conditions'
on the project and/or modify the project, such as the following additional Condition of
Approval:
33. Security Measures
Prior to or concurrent with building permit submittal
Access doors to equipment areas shall be locked at all times and access to the roof
shall be from ladders that contain locking devices so that only qualified personnel
would have access, or
Continue the item to a future hearing for fiirther information or clarification, or
Refer the matter back to the Planning Commission for further consideration on specific
issues/concems ofthe City Council. Under this option, the item would be forwarded
back to the City Council with a recommendation after review by the Planning
Commission.
ACTION REQUESTED OF THE CITY COUNCIL
Staff requests that the Council affirm the Planning Commission's environmental determination
that the Project is exempt from CEQA review as detailed in this report, and that the Council
adopt the attached Resolution denying the appeals, and thereby upholding the Planning
Commission's approval ofthe Project.
Respectfially submitted.
&'<-CtA y C r € < ^
'alter S. Cohen, Director
Community and Economic Development Agency
Reviewed by:
Scott Miller, Zoning Manager
Prepared by:
UUa-Britt Jonsson, Planner II
APPROVED A:
ITY COUNC
FORWARDED TO THE
Office ofihe City Administrator
Item:
City Council
June 1,2010
Dan Lindheim
CEDA: Appeal of Planning Commission Approval of 1001 42"^* Street
Page 19
ATTACHMENTS:
A.
B.
C.
D.
E.
F.
Cynthia Carpenter et al appeal submitted March 1, 2010.
Planning Commission Staff Report of Febmary 17, 2010.
"Proposed 3" Photo Simulations approved design by Planning Commission.
Project Plans, including "penthouse" not approved by Planning Commission.
Map used for Planning Commission Notification.
Engineer Report regarding Radio Frequency.
Item:
City Council
June 1,2010
C I T Y O F OAKLAND
ATTACHMENT A
R E Q U E S T FOR APPEAL O F DECISION T O
Cornmunlty and
Economic
Oovotopniont Agency
PLANNING COMMISSION OR C I T Y COUNCIL
, 0 ^ VISED 8/14/02)
PROJECT INFORMATION
Case No. of Appealed Project:
CMD09'
Project Address of Appealed Project:
APN. 012Ho23-ooi -o I
nd
100! 42"" St
APPELLANT INFORMATION:
Printed Name: C Y A / T M / Z J QÂR^&KfTE/^. Phone Number: . 5 ' ( 0 ) ^ 5 V - ¥ S S ^
Mailing Address:/6>0 7 -^/^^Sf- ^ ^ ^ /
Alternate Contact Number:. j7<^ ^ ^ / O ' 7 7 0 Z
City/Zip Code ^ ^ ^ / l S S f 0 L L ^ ^ ¥ ^ 0 9
ReprcsentinK:fC/ry2£A/^ / I / / i ) R^^fAjeSS CS
fi M i hit T€P^CQM F A C r ^ ^ r y
An appeal is hereby submitted on:
a
AN ADMINISTRATIVE DECISION (TO T H E CITY PLANNING COMMISSION)
YOU MUST I N D I C A T E A L L T H A T APPLY:
•
•
•
•
Approving an application for an Administrative Project
Denying an application for an Administrative Project
Administrative Determination or Interpretation by the Zoning Administrator
Other (please specify)
Pursuant to the Oakland Municipal aiid Planning Codes listed below:
Q Administrative Determination or Interpretation (OPC Sec: 17.132.020)
Q' DetenninationdfOenenil Plan Confonnity (OPC Sec. 17.01.080)
Design Review (OPC Sec: 17.136:080)
Small Project Design Review (OPC Sec. 17.136.130)'
Minor Conditional Use Permit (OPC Sec. 17.134.060)
Minor Variance (OPC Sec. 17.148.060);
Tentative^Parcel Map (OMC Section 16.304.100)
Certain Environmeiitai Detemiihatiohs (OPC Sec. 1-7; 158:220),
Creek Protection Peiinit (OMC Sec. 13.16.450)
Creek Determinafion (OMC Sec. J 3,16.460
Hearing Officer's revocation/impose or amend conditions
(OPC Sees. 15.152.150 & 15.156.160)
a Otiier (please specify)
V ED
-MAR
0 1 ZOIO
CITY PLANNING COMMISSION
ZONING niViSiOM
W A
A DECISION O F T H E CITY PLANNING COMMISSION (TO THE CITY
COUNCIIJ)
Ja Graiiting.an application IO:
OR
Q Denying an application to:
t/e/?/70A/ R ) ^ A Mi^/i TBLEÔOM FACtuiTy
OHARhJAL. J ^ ^ £ < . , U f i / 2 l Z O / \ J tAllQ/=.L£,S'=:.
(continued on reverse)
C:\Usere\Cynlhia\AppI>iUi\I.tM::aiYrcmp\Appcal npplicalion CMlX)9-l49.doc 8/l'I/p2
(Continued)
A DECISION OF THE CITY PLANNING COMMISSION (TO THE CITY G O U N C U J )
YOU MUST INDICATE ALL THAT APPLY:
Pursuant to the Oakland Municipal and Planning Codes listed below:
a ^ Major Conditional Use Permit,(bPC Sec:J7.1-34;070)
• : MajofVariance(OPC Sec. 17.148.070)
^ Design Review (QPC Scc: 17.136.090)
a Tentative MapXOMC Sec. 163.2.090)
a Planned Unit Development (OPC Sec. 17*14b;070)
E^ Eiivirohmental Impact'Report Certification (OPC Sec. 17.158;220F)
w Rezoning, Landmark Desigiiatibn,.Development GontrolMap,.Law Change
(GPGSec. r7.144.'076)
"
• Revocation/impose or aihendiconditibns (OPC Sec. .17.152;160).
a Revocation of Deemed Approved Status (QPC Sec. 17.156.17O)
a Other (please specify)
An appeal in accordance vsîtlithc sections of the Oakland Miinicipal.and Planning Codes listed above shall state
specifically wherein it is claiined.there-was an error-or abuse of discretion by, the. Zoning Administrator, other;
adminis.tTative decisionmaker or Commission (Advisory Agency)-or wherein their/its decision is not.stipported by
substantial evidence in the record, or in the case of Rezoning, Landmark Designation, Development' Coritrbl Map;
or Law Change by the Commission, shall state specifically wherein-it is claimed the Commission erred in Its
decision.
You niust raise each arid every issue you wish to appeal,on this Request for Appeal Form (or attached
additional sheets). Failure to raise each and every issue you wish to challchgc/appcal on this Request for
Appeal Form (or attached additional sheets), and provide supporting documentation along with this.Request
for Appeal Form, may preclude you from raising such issues during your appeal and/or in court.
The appeal is based on the following: (Attach additional sheets as needed.)
See attached documents - Appeal and Supporting Documentations.
^
Supporting Evidence or Documents Attached. (The appellant must submit all supporting evidence along
with this Appeal Form.)
,^-/-r 2 P I O
'iîalure ofAppeUdhl or Representative.of
pealing Organization
Date/Time Received Stamp Below:
8/14/02
Date,
Below For Staff Use Only
Cashier's Receipt Stamp Below:
MAR
1. Appeal of Planning Gommissiori Decision to City Council
0 1 201(1
CITY PLANNING GOMMISSION
ZONING DIVISIO'N,
These appeals are,taken to tlie.Cily CounciJ.frpm'the,,dccisjons,and recpmmend^^
Plannihg Commission attlie-ineeting oh February 17, 2010, regardingcaseTile number:
CMD09-149
IJ. Appeals are taken from the following decisions ofthe CitvPlanningCommission:
Approval of Regular Design Review permit for Mini Telecom Facility;
Approval of MajorConditional Use Permit for aTelecommunications Facility within three
hundred feet of aii R-40 Residential zone;
Recommendations and reports to the City Council; regarding approval of proposal;
All other actions and recommendations of tlie Planning Commission taken.at tlie council meetihg
on February 17,2010.
111.
Issues Raised
1. The planning Cbnmiissioii otherwise failed to analyze the issues,'address inadequacies in the
project,,and.consider alternatives.
2. All issues raised by speakers and letters to the Plannihg Gommissibh meeting on February 17,
2010.
3. All-issues raisedin following sections incorporated into tliis appeal;
4. Tlie actions and recommendations ofthe Planning Commission at the meeting on February 17,
2010 were premature and violated GEQA.because of reasons including but not limited to the
fbllowing:
a. The staff report incorrectly claimed an exemption for the project under CEQA Section
15301, and did not prepare an Initial Study or Environmental Impact Report.
b. TTie.staff report incorrectly clairned compliance with.CEQASection 15183, consistence
with a community or general plan.
5. Tlie actions and recommendations ofthe Planning Commission at the meeting on Februaiy 17,
2010 were premature and,violated tlie Oakland Plannihg Code arid Oakland General Plan because
of reasonsincluding butnot limitedto the following:
a. Thestaffreport incorrectly described the project-as cbinpatiblewitli the existing
neigliborhopd character as required in Section I7-.134:050;
b. Thc.staffrcportjncorrcctly described the project as providing,an attractive, convenient
and.fimctiona! living environment as required in Section 17:134.050.
c. Tlie proposed design fails to provide a quality and character that hannonizes with and
protects the value of private arid piiblic investments iri the area as required iriSectibn
17.136.0508
'
" ^
•
d. Tlie proposed design adversely, impacts the historic character of tlie potential designated
:hi_storic property as:described under the'Historic Preservation Element Section of tlie
Oakland General Plan.
6. Tlie actionsand recomrheridations ofthe Planriing Commission at the meeting on February 17,
2010 were premature and violated the California Health and Safety Code because of reasons
including but not limited,to.the following:
a. The proposed design fails to meet requirements'bf Section 16000 Essentia Services;
Building Seismic Safety Act.
7. The notice for the Plarihing Gommissiori meeting arid proposed project was ihsufficierit, and in
violation of Goyemment code section 54950 and die Oakland City Code.
8. The city's appeal.procedures violate the statutory right bf appeal to.the elected body under
Public Resources Code section 21151 (c) by imposing unreasonable and onerous filing fees and
by imposing unreasonable and,oncrous.dqcumentation requirements.
IV. Issues'Discussed
The Project violates the Oakland Planning Code and the Oakland General Plan. Tlie
proposed design will not hannonize with thecxistingpredqminatelyfsiriglcfamily.residcntial
neighborhood., Tlie proposed project will disrupt tlie community character by placing a structure
over,42' frorii finish grade, iriterruptiriga view corridor: It will be the tallest non-residential
stmcture in the neighbbriiood and will be out of character with'theexisting,fabric. Tlie majority
of stmctures in the neighborhood are single family,houses. T\\& noise-from the equipment \yili.
prbvidea nuisance to neighbors. Tlie design of tlie robftopenclosure is unattractive and visible
from the street. Most importantly tliis,project will dismpt the overall community character. It is
a radically different.function in a neighborhood comprised of single family houses, multi-family
housing, condominiums, aitd'schools.
The notification process to neighbors was flawed. The assessor's informatioii that was
provided to tlic planner was outdated and incorrect. For exaitipic, the;property:description in the
staffrepbrt references the 62 unit Green City Loft is coridominiuips, all with separate assessor
parccl.numbers and property lax bills, y.etnp notice;was,sent^tp'any property owner in this
complex. In addition', a few flyers.on telephone poles were not up;to die city's requirements for
notification. We take this as an act of bad faiUi. DespiteVerizon arid the City bf Oakland
planning.for this facility since May of 2008, citizens, schools and businesses found out about the
application ofpermits in February of 2010.
This permit application requires an Alternative Site Analysis. An HBX-2 recognizes the
EQUAL IMPORTANCE of housing &.business. However, this designation does not provide any
protection lo the residential cohiponent ofthe zone. In this HBX-2 zone, housing & civic
coinporicnts significantly exceed the business component, coupled with^the entire surrounding
area being residential. The buijding was designated as a "G" -existing.commercial or industrial
structure in a non-residential zone.. U should have been designated as a "D" -Existing
commercial or industrial.striictures in residential zories.
The Project violates CEQA and requiresenvironmentaliinpact report. The staff report
incorrectly describes this project a "minoralteration to an.existing facility'- and exempt toithe
provisions of Uie California EnyironmeritalQuahty.Act-per Section 15301 .However^ section
1530.1 describes'exemptions lo existing facilities as "... jnyplving negligible or.no expansion of
use Beyond that existing at the time of the leadâgency's detennination... The key consideration is
whether the project involves negligible or no expansion of an existing use..." (pg 212,213 CEQA
Guidelines) This project represents a radical change in use. The building is not currently a
telecom facility. Tliisproject should not be exempt from CEQA, and an initialstudyand
environmental impact report should be prepared. Th'e;ihstallatibri of riine antennae tocreate a
new telecom, facility is not a niinor alleration. Initiation of tlie EIR process will provide for a
peribdof public,comment, and comment.from relevant responsible and trastee agencies, like the
State Historic Preservation Office.
t h e Project violates the Healthand Safety Code. Section 16000 of the Health and Safety
Code requires buildings providing an "essential service'' (page 7 of Uie Staff Report dated
2.17:10) to conform to die provisions of Uie Essentia! Services BiiildingsSeismic Safety Act of
1996. Supporting design documentation does notindicate a design compliant with these
provisions, including but not limited to: unreinforced masonry walls, lateral bracing, bracing of
primary striicture, and seismic bracing bf non-structural elements incliiding rooftop equipinent.
Building is already an environmental hazard. Tins building.that is tlie site of this project is a
fbmier paint factory and isclassified as a remediation site. Tliere continues to be no corrective
action plan to cican.up the toxic chemicals that arc present.
This biiildihg is a Potential Designated Historic Property (PDHP); Miribr Importance^
Pptentially Secondary Importance or Superior, Survey, Rating pc3 and should be treated as such.
A redesign ofthe structurc;on the initial application was requested by die planning staff.
Although the staff accepted this revised "Proposed 3," the Verizon representative stated that the
redesign would inipairthe signals. The Plannirig Gommissiori accepted this explanation arid
approved; the original design that was described by die planning staff, as "a large wall mass" with
a "boxy design," with no request-Tor. further redesign for this potentially historic building. The
State Historic Building code (Pah 8 Title 24) requires that a Report of Structural Integrity be
made when any additional load will be placed on an existing structure for a qualified historic,
building. The addition ofa rooftop enclosure visiblefi-om,thestreet would radically change the
appearance of this building faâde.and'destroy the historic character of die building arid
riei^bprhopd.
Applicant has failed to show how site will reduce public access as itis an "attractive
nuisance." The'Telecpmmunicatipns regulations iri die Oakland Planning Code require that all
reasonable means of reducing public access to the antennas be made. Sitting the telecom facility
across from the North Oakland Charter School, an elementary, and middle schobi of 150 children,
as well as near AnnaYates Elementary Schopl of 430 students, and Linden Park make the site an
"attractive nuisance" even with decorative, screens: Tliis site is.not securefpr die followingreasons: Firstly, it is-a vacant building with chain Hnk.fencing that was recently installed in an
inadequate manner. This fencing is free,standiiig arid is:riot secured to .Uie ground or to'the
building. Gaps in thc-fencing provide easy, access to jhc site, as evidenced by.'^beddingandot^
reftise left by, homeless campers. Secondly^ graffitialong the rooflinejs evidence that no anticlimbing measures have been taken.
Federal Law does not mandate seamless coverage and ycrizon coverage is high. 911 safety
should never be used as justification to approve cellular permits. Meritioned numerous times in
the staff report is the contention that this project willimprove.the wirisless telecommunications
services in the neighborhood and contribute to a functional residential and civic,environment.
However, according to Uiecoverage.map diat-is provided on the Verizon Wireless website,.this
neighborhood has complete digital coverage and there are no areas without coverage. Mumerous
individiials who spoke at the Plannirig Commission meetingârid were custbrii'efs of Verizon
Wireless slated that they had full five bar coverage in this neigliborhopd. Vcrizpn has not shown
91.1 records demonstrating die need for Uiis particular site,iincluding'a detailed analysis as to how
the Green City Lofts block coverage. If that is true, then why build the siteso close to the lofts?
AUOi Chamel James at the;Febmary!l7, 2010 Planning.Commission meeting impjied Uiat ifthis
site was not approved, someone with a;Verizon phone'may riot get through to 91 ]. She failed to
say that even a cell phone without a service provider wi|l connect to any-signal of any cairiier as a
priority call when 911 is dialed. Verizon uses similar technologies to other carriers, which means
Uiere are plenty of signals t0'handle:91 Icalls..Denial of this pennit will not'constitutediscrimination.
Safety issues related to lead acid are a major concern., Ttic equipment cabinets in the permit
application will likely house hundreds of pounds of lead acid batteries. Typically there are 16 one
hundred pound, lead-acid 48 volt.batteries per cabinet. The batteries are filled with a sulftxric acid
solution. Sulfuric Acid is on the, EPA list of "extremely Hazardous Substances." Alternatively,
Valve Regulated Lead Acid Batteries (VRLA) may be used and are just as dangerous. A single
car battery contains less than one pint (l6'bz.) of sulfuric acid. 6 cabinets, each containing ,1600
pounds of sulfuric acid solution equals.-9,60p pounds oran:extremely lethal substance within a
few hundred feet from a school and residences. TIic FCC has riot addressed hazards of the lead
acid battery operated backup systems (base station's) housed in the equipment cabinets, Tluis, they
are not covered.under Section 704 pf Title 7 ofthe TCA- Theyare subject to, explosion ail extreme
temperatures. Air conditioning and heating systems break dovra andare subject to power failures:
Batteries are even,more apt to explbde during recharging. These batteriesalsb leak and leakage
was.a major.factpr in the Los Angeles Telephone Exchange fire of March 15, .19?.4..1n addition,
cellular antcnnashavc,had an increasing propensity toself-ignite: An explosion:and fire at this'
Ibcatibri could be catastrophic:
The placement of the telecom facility will affect.neighborhood values. Tlie Appraisal Institute
is the Iju'gest global professional membership organization for.appraiserS'WiUi 91 chapters
tliroughout the wbrid. The Institute spotiighted the issue of ceU towers and die fair market value
ofa home, and educated its members that a ceil towershould, in fact,.cause adecrease in home
value, as much as 25%. Tlie Califomia Association of Realtors maintains that "sellers and
licensees must disclose'material facts tiiat affect the value or desirability of die property,"
including "known conditions outside of and surrounding"it.
EMF arid RF Interference and Noise Pollution. Tlie high frequency EMFs and.RFs from
cellular antennas will affect small businesses, residents and school children in the area because of
high frequency noise arid electromagnetic.interference. Foi" exairiple, a video and film production
business directiy across the street from the site jirbposal, .will have their business negatively
affected by the facility.
Oakland residents raised many of the issues enumerated above at the City of Oakland
Planning Commission Meeting on February 17, 2010, but the commissioners only addressed
the cell coverage issue, which, again, is not a mandate for the City nor is coverage even
necessary. Furthermore, the Planning Commission claimed itdocs not have jiirisdiction,
but the Los Aiigeles Unified School District, as well as the cities of Albany, Glendale and
San,Francisco, CA, have,all endorsed limiting cellular antenna placements; Furthermore,
the following decisions all demonstrate the municipalities do have the power to restrict
cellular antenna placement on more than simply design. The most important court cases on
this issue, which are binding law for all of California, are the Ninth Circuit Court of
Appeals' MetroPCS v. City and Cquntyof San Francisco (2005), Sprint PCS Assets. L.L.C.
V. City of Palos Verdes Estates (2009) and Sprint v. County of San Diego (20O8),decisidns.
Signed,
North Oakland Community Charter School
Owners arid residents of GreenCity Lofts
GreenCity Lofts LLC:"
Longfellow Community Association.
Artichoke, Productions
Vertis Whitaker, chair of Ufe Neighborhood Gririie.Prevention Council
George F. French
Dan Prince
PTS100-01
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0 1 2010
CITY PLANNING COMMISSION
ZONING DIVISION I
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PCS ASSETS, L.L.C, a
Delaware limited liabiUly
company, wholly-owned by Sprint
Telephony PCS, LP, a Delaware
limited partnership,
SPRINT
Plaintiff-Appellee,
V.
Cnv OF PALOS VERDES ESTATES, a
California municipality; CITY
COUNCIL OF THE Crrv OF PALOS
VERDES ESTATES, its governing
body; JOSEPH SHERWOOD, in his
official capacity as Mayor Pro
Tem of the City of Palos Verdes
Estates; JOHN FLOOD, in his official
capacity as Councilmember of the
City of Palos Verdes Estates;
No. 05-56106
D.C. No.
CV-03-00825-AHS
OPINION
ROSEMARY HUMPHREY, in her
official capacity as
Councilmember of the City of
Palos Verdes Estates; DWIGHT
ABBOTT, in his official capacity as
Councilmember of the City of
Palos Verdes Estates; JAMES F.
GOODHART, in his official capacity
as Councilmember of the City of
Palos Verdes Estates,
Defendants-Appellant.
Appeal from the United States District Court
for the Central District of Califomia
AUccmarie H. Stotler, District Judge, Presiding
14535
14536
SPRINT
PCS
ASSETS V. PALOS VERDES ESTATES
Argued and Submitted
July 6, 2009—Pasadena, Califomia
Filed October 14, 2009
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Byt>ee, Circuit Judges.
Opinion by Judge Wardlaw
14538
SPRINT PCS ASSETS V. PALOS VERDES ESTATES
COUNSEL
Scott J. Grossberg, Richard R. Clouse, Amy R. von KelschBerk, and Angelica A. Arias of Cihigoyenetche, Grossberg &
Clousc, Ranco Cucamonga, Califomia, and Daniel P. Barer of
Pollak. Vida & Fisher, Los Angeles, Califomia, for the appellants.
John J. Flynn in, Gregory W. Sanders, and Michael W.
Shonafelt of Nossaman, Guthner, Knox & Elliott, LLP,
Irvine, Califomia, for the appellee.
_
14539
OPINION
WARDLAW. Circuit Judge:
The City of Palos Verdes Estates ("City") appeals the grant
of summary judgment ui favor of Sprint PCS Assets, L.L.C.
("Sprint"). We must decide whether the district court erred In
concluding that the City violated the Telecommunications Act
of 1996 ("TCA"), Pub. L. No. 104-104, 110 Stat 56 (codified
as amended in various sections of U.S.C. titles 15, 18, and
47), when it denied Sprint permission to constmct two wireless telecommunications facilities in the City's public rightsof-way. Specifically, we must decide (1) whether the City's
denial is supported by substantial evidence, as required by 47
U.S.C. § 332(c)(7)(B)(iu). and (2) whedier die City's denial
constitutes a prohibition on the provision of wireless service
m violation of 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(II).
Because the City's denial is supported by substantial evidence, and because disputed issues of material fact preclude
a finding that the decision amounted to a prohibition on the
provision of wireless service, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
The City is a planned community, about a quarter of which
consists of publicrights-of-waythat were designed not only
to serve the City's transportation needs, but also to contribute
tp its aesthetic appeal. In 2002 and 2003, Sprint applied for
permits to construct wireless telecommunications facilities
("WCF") in die City's public rights-of-way. The City granted
eight permit applications but denied two others, which are at
issue in this appeal. One ofthe proposed WCFs would be constmcted on Via Azalea, a narrow residential street, and the
other would be constmcted on Via Valmonte, one of the four
main entrances to the City. Sprint acknowledged that it
already served four thousand customers in the City with its
existing network but stated that the proposed WCFs were
nonetheless needed to replace its existing infrastmcture.
14540 SPRINT PCS ASSETS V. PALOS VERDES ESTATES
A City ordinance ("Ordinance") provides that WCF permit
applications may be denied for "adverse aesthetic impacts
arising from the proposed time, place, and manner of use of
the public property." Palos Verdes Estates, Cal., Ordinances
ch. 18.55.040(B)(1). Under die Ordinance, the City's PubUc
Works Director ("Director") denied Sprint's WCF permit
applications, concluding that the proposed WCFs were not in
keepuig with the City's aesthetics. The City Planning Commission affirmed the Director's decision hi a unanimous vote.
Sprint appealed to the City Council ("Council"), which
received mto evidence a written staff report that detailed the
potential aesthetic impact of the proposed WCFs and summarized the results of a "drive test," which confirmed that cellular service from Sprint was already available in relevant
locations in the City. The Council also heard pubhc comments
and a presentation from Sprint's representatives. The Council
issued a resolution affirming the denial of Sprint's permit
applications. It concluded that a WCF on Via Azalea would
dismpt the residential ambiance of the neighborhood and that
a WCF on Via Valmonte would detract from the natural
beauty that was valued at that main entrance to the City.
Denied permits by the Director, the Commission, and the
Council, Sprint took its case to federal court seeking a declaration that the City's decision violated various provisions of
the TCA. The district court concluded that the City's decision
was not supported by substantial evidence and thus violated
47 U.S.C. §332(c)(7)(B)(iii). This deterndnation was premised on a legal conclusion that Califomia law prohibits the
City from bashig its decision on aesthetic considerations. The
district court also concluded that the City violated 47 U.S.C.
§§ 253 and 332(c)(7)(B)(i)(II) by unlawfuUy prohibitmg the
provision of telecommunications service, finding that the City
had prevented Sprint from closing a significant gap in its coverage. The City timely appeals.
SPRINT PCS ASSETS v. PALOS VERDES ESTATES
n.
14541
JURISDICTION AND STANDARD OF REVIEW
The district court exercised jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C,
§ 1291. "We review summary judgment de novo." Nelson v.
City of Davis, 571 F.3d 924. 927 (9th Cir. 2009) (citaUon
omitted). Summary judgment is appropriate only if the pleadings, the discovery, disclosure materials on file, and affidavits
show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). All justifiable factual inferences
must be drawn in the City's favor, and we must reverse the
grant of summary judgment if any rational trier of fact could
resolve a material factual issue m the City's favor. See Nelson. 571 F.3d at 927.
m.
DISCUSSION
The tension between technological advancement and community aesdietics is nothing new. In an 1889 book that would
become a classic in city planning literature, Vienna's Camillo
Sitte lamented:
[T]here still remains the question as to whether it is
really necessary to purchase these [technological]
advantages at the tremendous price of abandoning all
artistic beauty in the layout of cities. The innate conflict between the picturesque and the practical cannot
be eliminated merely by talking about it; it will
always be present as something intrinsic to the very
nature of things.
Camillo Sitte, City Planning According to Artisttc Principles
110 (Rudolph Wlttkower ed.. Random House 1965) (1889),
The TCA attempts to reconcile this "innate conflict." On
the one hand, the statute is intended to "encourage the rapid
deployment of new telecommunications technologies." Pub.
14542
L. No. 104-104, 110 Stat 56. On the odier hand, it seeks "to
preserve the authority of State and local governments over
zoning and land use matters." T-Mobile USA, Inc, v. City of
Anacortes. 572 F.3d 987, 992 (9th Cir, 2009) (citation omitted). The TCA seeks a balance by placing certain limitations
on localities' control over the constmction and modification
of WCFs. 5ee47 U.S.C. §§ 253(a). 332(c)(7)(B). This appeal
involves a challenge to the district court's conclusion that the
City exceeded those limitations.
A. Section 332(c)(7)(B)(iii)
[1] One of the limitations that the TCA places upon local
governments is that "[a]ny decision . . . to deny a request to
place, constmct, or modify personal wireless service facilities
shall be in writing and supported by substantial evidence contahied in a written record." 47 U.S.C. § 332(c) (7) (B)(iii). As
we have explained, "The upshot is simple: this Court may not
overturn the [City's] decision on 'substantial evidence'
grounds if that decision is authorized by appHcable local regulations and supported by a reasonable amount of evidence."
MetroPCS, Inc, v. City & County ofS.R, 400 F.3d 715, 725
(Oth Cir. 2005) ."* Thus, we must determine (1) whether the
City's decision was authorized by local law and, if it was. (2)
whether it was supported by a reasonable amount of evidence.
Both requirements are satisfied here.
1. The City's decision was authorized by local law.
"[W]e must take applicable state and local regulations as
we find them and evaluate the City decision's evidentiary
^The district court did not have the benefit of our decision in MetroPCS
when it issued its order granting Sprint sununaiy judgment on its claims
under 47 U.S.C. §§ 253 and 332(c) (7)(B)(lii). hideed, there has been considerable development in this area of the law since the district court
resolved Sprint's motion. See. e.g.. Sprint Telephony PCS. L.P. v. County
of San Diego. 543 F.3d 571 (9th Cir. 2008); C/zy of Anacortes, 572 F.3d
at 987.
14543
support (or lack thereof) relative to those regulations."
MetroPCS, 400 F.3d at 724. As noted above, die Ordinance
authorizes the deiual of WCF permit applications on aesthetic
grounds. Also relevant for our purposes is the Califomia Public Utilities Code ("PUC"), which provides telecommimications companies with a right to constmct WCFs "in such
manner and at such points as not to incommode the public use
of die road or highway," Cal. Pub. Util. Code § 7901, and
states that "mimicipalities shall have the right to exercise reasonable control as to the time, place, and manner in which
roads, highways, and waterways are accessed." Id. § 7901.1.
The district court erred in concluding that the City's consideration of aesthetics vras invalid under the PUC.^ The Califomia
Constitution gives the City the authority to regulate local aestiietics. and neither PUC § 7901 nor PUC § 7901.1 divests it
of that authority.
^During the pendency of this appeal, pursuant to Cal. R. Ct. 8.548(a).
we requested that the California Supreme Court decide whether PUC
§§7901 and 7901.1 permit public entities to regulate the placement of
telephone equipmeiit in public rights-of-way on aesthetic grounds. The
California Supreme Court denied our request, concluding that a decision
on that issue may not be determinative in these federal proceedings.
Accordingly, the task now before iis is to predict how the Califomia
Supreme Court would resolve the issue. See Giles v. Gen. Motors Acceptance Corp.. 494 F.3d 865,872 (9th Cir. 2007). We may look to the state's
intermediate appellate courts for guidance. Id. While the question of
whether California's mimicipalities have the power to consider aesthetics
in deciding whether to grant WCF permit applications has been addressed
by us and the Califomia Courts of Appeals, it has not been resolved in a
published opinion on which we may rely. See Sprint PCS Assets, L.L.C.
V. City of La CaHada FUntddge. 182 Fed. Appx. 688, 690-91 (9di Cir.
2006) (city may not consider aesthetics); Sprint Telephony PCS v. County
of San Diego, 44 Cal. Rptr. 3d 754, 764-66 (Cal. Ct App. 2006) (city may
consider aesthetics) superseded by W^ P.3d 654 (Cal. 2006); see also ^\h
Cir. R. 36-3 (unpublished dispositions are not precedent); Cal. R Ct.
8.1115 (no citation or reliance on urûblished opinions).
14544
J.
California's Constitution
[2] The Califomia Constitution authorizes local govemments to "make and enforce vrithin [their] limits all local,
police, sanitary, and other ordinances and regulations not in
conflict with general laws." Cal. Const, art. XI. § 7. California's Supreme Coiut has explained that a " 'city's police
power imder this provision can be appHed only withm its own
territory and is subject to displacement by general state law
but otherwise is as broad as the police power exercisable by
die Legislature itself.' " Fisher v. City of Berkeley, 693 P.2d
261. 271 (Cal. 1984) (quoting Birkenfeld v. City of Berkeley.
550 P.2d 1001, 1009 (Cal. 1976)); see also Conn. Indem. Co.
v. Super. Ct. of San Joaquin County, 3 P.3d 868, 872 (Cal.
2000) (state constitution provides city with "general authority
to exercise broad police powers"). There is no question that
the City's authority to regulate aesthetics is contained within
tfiis broad constitutional grant of power. See Landgate, Inc. v.
Cal. CoastalComm'n, 953 P.2d 1188, 1198 (Cal. 1998) (aesthetic preservation is "unquestionably [a] legitimate govemment purposed"); Ehrlich v. City of Culver City, 9U P,2d
429, 450 (Cal. 1996) ("[AJesdietic conditions have long been
held to be valid exercises of the city's traditional police
power.").
Thus, the threshold issue is not, as Sprint argues and the
district court apparentiy believed, whether the PUC authorizes
the City to consider aesthetics hi decidhig whether to grant a
WCF permit application, but is instead whether die PUC
divests the City of its constitutional power to do so.' There*Sprint urges us to approach the question differently, relying on language from Western Union Tel. Co. v. Hopkins, 116 P. 557 (Cal. 1911),
diat
[l]t is universally recognized that the state in its sovereign capacity has the original right to control all public streets and Mghvvays, and tlrat except in so far as that control is relinquished to
municipalities by the state, either by provision of the state consti-
14545
fore, the question actually before us is whether the City's consideration of aesthetics is "in conflict wdth general laws." Cal.
Const, art XI, § 7. "A conflict exists if the local legislation
duplicates, contradicts, or enters an area fuUy occupied by . . .
legislative impHcation." Action Apartment Ass'n, Inc, v. City
of Santa Monica, 163 P.3d 89, 96 (Cal. 2007) (citation and
quotation omitted). "Local legislation is contradictory to general law when it is hiimicaltiiereto."Id. (citation and quotation omitted). Absent a specific legislative indication to the
contrary, we presiune that there is no conflict where the local
government regulates an area over which it has traditionally
exercised control. See id. Sprint has the burden of demonstrating that a conflict exists. See id. We conclude that neither
PUC § 7901 nor PUC § 7901.1 conflicts wiUi die City's
default power to deny a WCF permit application for aesthetic
reasons,
U.
PUC §7901
[3] The City's consideration of aesthetics m denying
Sprint's WCF permit applications comports widi PUC § 7901,
tution or by legislative act not inconsistent with the Constitution,
il remains with the state legislature.
. Id. at 562. The defect in Sprint's aiûment is that it contemplates a relinquishment of state sovereignty through statute only, thus turning a blind
eye to the constitutional grant of power contained in Cal. Const, art XI,
§ 7. Our observation that the City possesses constitutionally based police
powers over aesthetics is entirely consistent vi^th the Hopkins court's recognition that the utility companies' right to construct telegraph facilities
remained subject to "the lawful exercise by the city of such rights in
regard to such use as it has under the police power." Hopkins, 116 P. at
563; see also id. at 562 (city retains power to do "such things bi regaid
to the streets and the use thereof as were justified in the legitimate exercise
of the police power"); see also Pac. Tel. & Tel. Co. v. City & County of
S.F.. 336 P.2d 514, 519 (Cal. 1959) (telephone franchise is a matter of
state concern but city still controls the particular location and manner in
which public utility facilities are constructed in the streets). The Hopkins
court refrained from articulating the scope of the city's police powers
because, unlike in this appeal, that was "a question in no way involved in
[the] case." Hopkins. 116 P. at 562-63.
14546
which provides telecommunications companies with a right to
CQnstmct WCFs "in such manner and at such points as not to
incommode the public use of the road or highway." Cal. Pub.
Util. Code § 7901. To "hicommode" the pubUc use is to "subject [it] to inconvenience or discomfort; to trouble, annoy,
molest, embarrass, inconvenience" or "[t]o affect with inconvenience, to hinder, impede, obstmct (an action, etc.)." 7 The
Oicford English Dictionary 806 (2d ed. 1989); see also Webster's New Collegiate Dictionary 610 (9tii ed. 1983) ("To give
inconvenience or distress to."). The experience of traveling
along a picturesque street is different from the experience of
traveling through the shadows of a WCF, and we see nothing
es^ceptional m the City's determination that the former is less
discomforting, less troubling, less annoying, and less distressing than the latter. After all, travel is often as much about the
journey as it is about the destination.
The absence of a conflict between the City's consideration
of aesthetics and PUC § 7901 becomes even more apparent
when one recognizes that the "public use" of the rights-ofway is not limited to travel. It is a widely accepted principle
of urban planning that streets may be employed to serve
iniportant social, expressive, and aesthetic functions. See Ray
Gindroz, City Life and New Urbanism, 29 Fordham Urb. L.J.
1419, 1428 (2002) ("A primary task of all urban architectin-e
and landscape design is the physical definition of streets and
public spaces as places of shared use."); Kevin Lynch. The
Iniage of the City 4 (1960) ("A vivid and Integrated physical
setting, capable of producing a sharp image, plays a social
role as well. It can furnish the raw material for the symbols
and collective memories of group communication."); Camillo
Sitte, City Planning Accordmg to Artistic Principles 111-12
(Rudolph Wlttkower ed., Random House 1965) (1889) ("One
must keep m mind that city planning in particidar must allow
full and complete participation to art, because it is this type
of artistic endeavor, above all, that affects formatively every
d^y and every hour of the great mass of the population . . . . " ) ,
As Congress and the Califomia Legislature have recognized,
14547
the "pubhc use" of the roads might also encompass recreational functions. 5ee, e.g.. Cal. Pub. Util. Code § 320 (burying of power lines along scenic highways); 23 U.S.C. § 131(a)
(regtUation of bUlboards near highways necessary "to promote
. .. recreational value of pubUc travel. .. and to preserve natural beauty").
These urban planning principles are applied in the City,
where the public rights-of-way are the visual fabric from
which neighborhoods are made. For example, the City's staff
report explains that Via Valmonte, which is adorned with an
historic stone wall and borders a park, is "cherished for its
n u ^ character, and valued for its natural, unspoiled appearance, rich with native vegetation." Meanwhile, Via Azalea is
described as "an attractive streetscape" that creates a residential ambiance. That the "public use" of these rights-of-way
encompasses more than just transit is perhaps most apparent
from residents' letters to the Director, which explained that
they "moved to Palos Verdes for its [ajesthetics" and that they
"count on this city to protect [its] imlque beauty with the
abtmdance of trees, the absence of sidewalks, even the lack of
street lighting."
[4] Thus, there is no conflict between the City's consideration of aesthetics in deciding to deny a WCF permit application and PUC §790rs statement that telecommunications
companies may constmct WCFs that do not incommode the
pubUc use of die rights-of-way.
iU.
PUC §7901.1
[5] Nor does the City's consideration of aesthetics conflict
with PUC § 7901.1's statement that "municipalities shall have
the right to exercise reasonable control as to the time, place,
and manner in which roads, highways, and waterways are
accessed." Cal. Pub. Util. Code § 7901.1. That provision was
added to die PUC m 1995 to "bolster tiie cities* abilities with
regard to constmction management and to send a message to
14548
SPRINT
PCS ASSETS v. PALOS VERDES ESTATES
telephone corporations that cities have authority to manage
tiieir constmction, without jeopardizing the telephone corporations' statewide franchise." S. Comm. on Energy, Utilities,
and Commerce, Analysis of S.B. 621. Reg. Sess., at 5728
(Cal. 1995); 5eea/sojd. ("[IJntent of this bill is to provide the
cities with some control over their streets.").* If the preexisting language of PUC § 7901 did not divest cities of the
authority to consider aesthetics in denying WCF constmction
permits, then, a fortiori, neither does the langauge of PUC
§7901.1, which only "bolsters" cities' control.
[6] Aesthetic regiUations are "time, place, and manner" regulations,** and the Califomia Legislature's use of the phrase
"are accessed" in PUC § 7901.1 does not change that conclusion in this context. Sprint argues that the "time, place and
manner" in which the rights-of-way "are accessed" can refer
only to when, where, and how telecommunications service
providers gain entry to the pubUc rights-of-way. We do not
disagree. However, a company can "access" a city's rights-ofway in both aesthetically benign and aesthetically offensive
ways. It is certainly within a city's authority to permit the former and not the latter.*
*We cite the legislative history only to put the statute in its historical
context; we do not rely upon it to discern the statute's meanhig.
în the First Amendment context, Califomia courts have recognized that
governments' aestheUc-based regulations fall within the rubric of "time,
place, and manner" reguladons. See, e.g.. Showing Animals Respect &
Kindness v. City of W. Hollywood. 83 Cal. Rptr. '3d 134. 141 (Ct. App.
2008) {ordiiumce with declared purpose of improving city aesthetics was
valid time, place, and manner regulation); Union of Needletrades, AFLCIO V. Super. Ct. of LA. County. 65 Cal. Rptr. 2d 838, 850-51 (CL App.
1997) (requirement that leaflets comport with mall's general aesthetics
constituted valid time, place, and manner regulation). We see no principled basis on which to (istinguish aesthetic "time, place, and manner" regulations in the First Amendment context from aesthetic "time, place, and
manner" regulations in the context of PUC § 7901.1.
"Our conclusion that the language of PUC § 7901.1 does not conflict
with the City's consideration of aesthetics in denying WCF permit appli-
14549
[7] Our interpretation of Califomia law is consistent with
the outcome in City of Anacortes, in which we rejected a
§ 332(c) (7) (B)(ui) challenge to a city's denial of a WCF permit apphcation that was based on many of the same aesthetic
considerations at issue here. City of Anacortes, 572 F.3d at
994-95. There, the city determined that the proposed WCF
would have "a commercial appearance and would detract
from the residential character and appearance ofthe surrounding neighborhood"; that it "woidd not be compatible with the
character and appearance of the existing development"; and
that it would-"negatively impact the views" of residents. Id.
at 989-90. We noted that the city ordinance goveming pennit
apphcations required the city to consider such factors as the
height of the tower and its proximity to residential stmctures,
die nature of uses of nearby properties, the surroimding topography, and the surrounding tree coverage and foliage. Id. at
994. We stated that "[w]e. and other courts, have held that
these are legitimate concerns for a locality." Id. (citing TMobile Cent., LLC v. United Gov't of Wyandotte County.
Kan. City, 546 F.3d 1299. 1312 (lOdi Ch". 2008); Cellular
cations is supported by the California Legislature's use of materially identical language in the Califomia Coastal Act, which provides that
The public access policies of this article shall be Implemented in
a manner that takes into account the need to regulate die time,
place, and manner of public access depending on the facts and
circumstances in each case including, but not limited to . . . hlhe
need to provide for the management of access areas so as to protect . . . the aesthetic values of the area by providing for the collection of litter.
Cal. Pub. Res. Code § 30214(a)(4). If Sprint's narrow interpretation of
PUC § 7901.1 were correct, it would follow that, in the Califomia Coastal
Act, the Legislature explicitiy stated that the need to regulate the time,
place, and manner of access depends on the need to protect aesthetic values, but that, in PUC § 7901.1, the Legislature meant to s ^ that control
over the time, place, and manner of access excluded confrol over aesthetics. We see no reason to ascribe this inconsistency to the California Legislature, however.
14550
Tel. Co. V. Town of Oyster Bay 166 F.3d 490, 494 (2d Ck.
1999)). What was implicit in our decision in City of Anacortes
we make expUdt now: Califomia law does not prohibit local
governments from taking into account aesthetic considerations In deciding whether to permit the development of
WCFs within their jurisdictions.
Sprint warns that this conclusion will.allow municipalities
to nm roughshod over WCF permit applications simply by
invoking aesthetic concems. However, our decision in no way
relieves mimicipalities of the constraints imposed upon them
by the TCA. A city that invokes aesthetics as a basis for a
WCF permit deni^ is reqiured to produce substantial evidence to support its decision, and, even if it makes that showing, its decision is nevertheless invalid if it operates as a
prohibition on the provision of wireless service in violation of
47 U.S.C. § 332(c)(7)(B)(i)(n). Nor does our decision constitute a judgment on the merits of the City's decision in this
case. Oiu' function is not to determine whether the City's
denial of Sprint's permit applications was a proper weighing
of all the benefits (e.g., economic opportunities, improved service, public safety) and costs (e.g., the ability of residents to
enjoy their community) of the proposal, but is instead to
determine whether the City violated any provision ofthe TCA
in so doing.
2.
The City's decision was supported by such relevant
evidence that a reasonable n ^ d might accept as adequate.
[8] "[WlhUe the term 'substantial evidence' is not statutorily defined in the Act the legislative history of the TCA
explicitiy states, and courts have accordingly held, that this
language is meant to trigger 'thettaditionalstandard used for
judicial review of agency decisions.' " MetroPCS, 400 F.3d at
723 (quoting H.R. Conf. Rep. No. 104-458. at 208 (1996)). A
mimicipahty's decision that is valid under local law will be
upheld imder the TCA's "substantial evidence" requirement
14551
where it is supported by " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.* " Id. at 725 (quothig Town of Oyster Bay, 166 F.3d at
494).
[9] The City's finding that the proposed WCFs would
adversely affect Its aesthetic makeup easily satisfies this standard. The Council reviewed propagation maps and mock-ups
of the proposed WCFs and a report that detailed the aesthetic
values at stake. It had the benefit of public comments and an
oral presentation from Sprint's personnel. From the entirety of
the evidence, one could reasonably determine, as the City did,
that the Via Azalea WCF would detract from the residential
character of the neighborhood and that the Via Valmonte
WCF would not be in keeping with the appearance of that
main entrance to the City. Consequentiy, we find that the
City's decision was supported by substantial evidence, and we
reverse the district court.
B. SecUon 332(c) (7) (B)(i)(II)
[10] The TCA provides that a locality's dexdal of a WCF
permit application "shall not prohibit or have the effect of
prohibiting the provision of personal wireless services." 47
U.S.C. § 332(c)(7) (B)(i)(n). "[A] locality can run afoul of die
TCA's 'effective prohibition' clause if it prevents a wireless
provider from closing a 'significant gap' in service coverage."
MetroPCS, 400 F.3d at 731.' The "effective prohibition"
inquiry "involves a two-pronged analysis requiring (1) the
showing of a 'significant gap' in service coverage and (2)
some inquiry info the feasibility of altemative facilities or site
locations."^ Id. at 731. Because we conclude that Sprint has
'We focus on the "effective prohibition" clause because the City has not
adopted a "general ban" on wireless services. See MetroPCS, 400 F.3d at
731. To the contrary, the City's ordinance contemplates the construction
of WCFs. and the City has repeatedly granted permits for WCF construction in the past.
"We have adopted the "multiple provider rule," which focuses the "significant gap" inquiiy on the issue of whether a particular provider is pre-
14552
not shovwi the existence of a significant gap as a matter of
law, we do not reach the second element of the analysis.
The district court's legal conclusion that Sprint established
the existence of a "sigruficant gap" rests on two purportedly
undisputed facts: (1) "[wjifliout either facility, [Spruit's] network will contain significant gaps in coverage" and (2) existing wireless coverage in the City was "based on obsolete
facilities needing replacement" These factual findings were
insufficient to support summary judgment because they were
disputed in the record below.
1, Significance ofthe Gap
" '[S]ignificant gap' determinations are extremely factspecific inquiries that defy any bright-line legal mle." Id. at
733. Yet Sprint and the district court take a bare-bones
approach to this inqiury. The district court simply declared, as
a matter of fact and flat, that there was "a significant gap" in
Sprint's coverage in the City. Sprint defends this factual finding on appeal, arguing that its presentation of radio frequency
propagation maps was sufficient to establish a "significant
gap" in coverage. We disagree.
Sprint's documentation stated that the proposed WCFs
would provide "good coverage" for .2 to .4 miles in various
directions. However, it remains far from clear whether these
estimates were relative to the coverage available from existing
WCFs or to the coverage diat would be avatiable if there were
no WCFs at all (Le., if the existing WCFs were removed). In
any event that there was a "gap" in coverage is certainly not
sufficient to establish that there was a "significant gap" hi
coverage. See id. at 733 n,10 ("[T]he relevant service gap
vented from filling a significant gap in its own service coverage; the
availability of wireless service from other providers in the area is irrelevant for purposes of this analysis. MetroPCS, 400 F.3d at 733.
SPRINT
PCS ASSETS V. PALOS VERDES ESTATES
14553
must be truly 'significant....' "); id. at 733 ("The TCA does
not guarantee vdreless service providers coverage free of
small 'dead spots . . . .*").
[11] The district coxut found that there was a "gap" in
Sprint's coverage but failed to analyze its legal significance.
District courts have considered, a wide range of contextspecific factors in assessing die significance of alleged gaps.
See. e.g.. Cellular Tel Co. v. Zoning Bd. of Adjustment ofthe
Borough ofHo-Ho-Kus. 197 F.3d 64, 70 n.2 (3d Cir. 1999)
(whether gap affected significant commuter highway or railway); Powertel/Atlanta, Inc. v. City of Clarkston, No. 1:05CV-3068, 2007 WL 2258720. at *6 (N.D. Ga. Aug. 3. 2007)
(assesshig the "nature and character of thiat area or die number
of potential users in tiiat area who may be affected by the
alleged lack of service"); Voice Stream PCS I. LLC v. City of
Hillsboro, 301 F. Supp. 2d 1251, 1261 (D. Or. 2004) (whedier
facilities were needed to improve weak signals or to fill a
complete void in coverage); Nextel Partners, Inc. v. Town of
Amherst. 251 F. Supp. 2d 1187. 1196 (W.D.N.Y. 2003) (gap
covers well traveled roads on which customers lack roaming
capabilities); Am. Cellular Network Co., LLC v. Upper Dublin
Twp.. 203 F. Supp. 2d 383, 390-91 (E.D. Pa. 2002) (considering "drive tests"); Sprint Spectrum, L.P. v. Town ofOgunquit,
175 F. Supp. 2d 77, 90 (D. Me. 2001) (whedier gap affects
commercial distiict); APT Minneapolis, Inc. v. Stillwater
Twp., No. 00-2500, 2001 WL 1640069, at *2-3 (D. Mmn.
Jime 22, 2001) (whether gap poses public safety risk). Here,
the district court said nothing about the gap from which it
coidd have determined its relative significance (l.e., whether
preventing its closure was tantamoimt to a prohibition on telecommunications service), nor did Sprint's counsel offer any
support for a conclusion that the gap was significant^
"During oral argument, Sprint's counsel was unable to explain satisfactorily on what basis the district court found that the gap was significant.
He acknowledged that there was a dispute as to the significance of the gap
in Sprint's coverage within the City, and he even conceded that he had
seen nothing in the record that led him to believe fliat the matter was
uncontested.
14554 SPRINT PCS ASSETS V. PALOS VERDES ESTATES
2. Obsolescence of Existing WCF Network
We need not decide whether the TCA's anti-prohibition
language even covers situations, like that presented here, in
which a telecommunications service provider seeks to replace
existing WCFs, as contrasted with the more typical situation
in which the provider seeks to construct new WCFs. It is sufficient to note that the record does not establish the obsolescence of the old faciUties as a matter of imcontested fact.
Sprint's representatives not oidy failed to explain why the
existing facilities were no longer usable, but they actually
imdermined that position by pointing out that those facilities
were currentiy serving some four thousand residents and
acknowledging at the public hearing that Sprint service was
generally available in the City. Residents' comments at the
pubHc hearing and the drive test results contained in the staff
report submitted to the Coimcil further illustrate that Sprint's
existing network was, at the very least, functional. Consequentiy, we reverse the grant of siunmary judgment in
Sprint's favor on its §332(c)(7)(B)(i)(II) "effective prohibition" claim.
C.
Section 253
The district court also concluded that the City's ordinance
was "preempted by the Supremacy Clause, insofar as it conflicts with section 253(a) ofthe Telecom Act." However, due
to intervening changes in the law, this Supremacy Clause
claim is no longer viable. See Sprint Telephony PCS, L.P. v.
County of San Diego. 543 F.3d 571, 578 (9tfi Ch. 2008) (en
banc) (overruHng City of Auburn v, Qwest Corp., 260 F.3d
1160 (9di Ch. 2001), and holding tiiat "a plaUitiff string a
municipality imder section 253(a) must show actual or effective prohibition, rather than the mere possibihty of prohibition" (citation omitted)); see also City of Anacortes. 572 F.3d
at 993. Moreover, we need not decide whether § 253 contemplates "as appUed" challenges. Insofar as Sprint seeks to
advance an "as applied" challenge imder § 253, we conclude.
14555
for the reasons set forth above, that Sprint has not demonstrated a prohibition on the provision of wireless service as a
matter of law. See Sprint Telephony, 543 F.3d at 579 ("We
need not decide whether Sprint's suit falls under § 253 or
§ 332. AS we now hold, the legal standard is the same under
either.").
TV, CONCLUSION
[12] Because the City's decision to deny Sprint's apphcation for a permit to construct two new WCFs was supported
by substantial evidence and because disputed issues of material fact preclude a finding that the decision constituted a prohibition on the provision of vidreless service, we REVERSE
and REMAND.
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400 F3d 715 Metropcs Inc v. City and County of San Francisco
400 F.3d 71S
^
0 1 2010
CITY PLANNING CO^wiiSSfON
ZONING DlVISiUi^
METROPCS, I N C , a Delaware C o r p o r a t i o n , PlalntHf-Appellant-Cross-Appeilee,
V.
The CITY A N D COUNTY OF SAN FRANCISCO a n d The Board o f Supervisors o f t h e City o f San Francisco, DefendantsAppeliees-Cross-Appeiiants.
NO.
03-16759.
No.
03-16760.
United States Court of Appeals, Ninth Circuit.
Argued and Subm[tad October 4, 2004.
RJed March 7,2005.
Martin L Rneman, Davis WrightTremalne LLP, San Frandsoo, CA, for the plaintifF-appellant/cToss-appeiiee.
William tC Sanders, Deputy Oty Attorney, San Frandsco, CA, for the defendants-appellaes/cross-appellants.
James A. Heard, Mackenzie BiAIbritton LLP, San Frandsco, CA; Steven E. Grill, Devlne, Mllllmet & Branch, P.A., Manchester, NH; Scott J. Grossberg
and Javan N. Rad, Cihigoyenetdte, Grossberg & douse, Rancho Cucamonga, CA; Paul J. Lawrence, Preston Gates & ails LLP, Seattle, WA; and Daniel
Pascucd, Rsh & Richardson, P.C., San Diego, CA, and Paid L Weisbedcer, LitioaUon Counsel, Clngular Wireless LLC, Atlanta, GA, fbr the amid curiae.
Appeals from the United States DisWrt Court for the Northern DIstritt of Califomia; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-02-3442
PJH.
Before: CUDAHY,
GRABER and RSHER, Cirxujlt Judges.
OPINION
CUDAHY, Circuit Judge:
MetroPCS brought the Instant action in the District Court for the Northern District of Califbmla, alleging that a dedslon by the San B^ndsco Board of
Supervisors denying MetroPCS permission to constmct a wireless telecommunications antenna atop a city parWng garage violated several provisions ofthe
Telecommunications Act of 1996CTCA). Spedfically, MetroPCS alleged that the Board's dedston (1) was not 'in writing" as required by the TCA, (2) was not
supported by substential evidence, (3) constituted unreasonable discrimination among providers of functionally equh/alent wireless services, (4) prohibited
or had the effect of prohibiting the provision of wireless services and (5) was Improperly based on environmental concems about radio ^quency (RF)
emissions.
Both parties moved for summary judgment, and the district court granted the City's motion for summary judgment as to all claims except the prohibition
dalm, ruling that material questions of fade remained as Xo whether tha Board's dedôn had the effect of prohibiting the provision of personal wireless
services. Both parties now appeal the ruling below, and we affirm in part and reverse In part the district court's dedslon.
I. BACKGROUND
This case marta yet another ei^sode in the ongoing struggle between federal regulatory power and local administrative prerogatives — the kind of
political collision that our federal system seems to Invite with inescapable regularity. And as most often happens in such cases, the courts are summoned to
re-strike the balance of power between the national and the local. More spedfically, we are called upon to Interpret several provisions of the TCA, an
&(egetical efibrt having implications for Federal Communications Commission (FCC) licensing authority, wireless telecommunications companies and
munldpal zoning authorities alike. The stekes of the current dispute are espedally high since this case Involves several Important questions of law that have
not yet been authoritetively addressed by this Circuit.
The basic fads of this case are not in dispute. MetroPCS is a provider of wirelesstelecommunicationsservices. I t Is licensed by the FCC to construct and
operate radio transmltUng and receiving fadlities In San Frandsco, Oakland and San Jose, Califomia (the Bay Area). On January IS, 2002, MetroPCS
submitted to the City of San Frandsoo's Planning Department an application for a Conditional Use Permit (CUP) to instell six panel antennas on an existing
light pole located on the roof of a parking garage at 5200 Geary Boulevard (the Geary site). The proposed fadlity was to consist of (1) six panel antennas
mounted 53 feet above the sidewalk grade on an existing light pole on the roofof a 42-foothighparldng garage, and (2) equipment cabinets mounted on
an existing wall on the garage roof. Each antenna was to be five feet long and painted to match the garage. The proposed instellation was designed to
improve MetroPCS's wireless service coverage in the Richmond District, where tiie Geary site Is located. MetroPCS chose tiie Geary site after evaluating
the technical feasibility of several sites in the area and con^dering community objections to alternative site locations.
Undertime San Frandsco Planning Code, the Geary site Is located within an *NC-3* or "Moderate Scale Neighborhood Commerdal District.' In an NC-3
Zoning district, a wireless fadlity (such as a pane) antenna) Is oonsldered a public use that requires a CUP ^ m the City Planning Commission. Because the
lofl2
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Geary site is located on top of a csmmerdal structure in an NC-S zoning district, it b dassified as a Location Preferenra 4 under the City's Wireless
Telecommunications Fadlitles Siting Guidelines — It Is neither a high-priority site nor a "dls^vored" site. On April IS, 2002, the San Frandsco Planning
Commission held a public hearing to consider MetroPCS's application for a QJPatthe Geary site. At the dose ofthe hearing, the Planning Commission
voted to grant MetroPCS's application. The Planning Commls^ôn later adopted v^ritten findings and drafted a written dedston. These findings induded a
determination that the proposed MetroPCS antenna tadllty Is necessary to MetroPCS's service coverage in the Rkihmond District and "both necessary and
desirable" for the community.
On (^y 20, 2002, Richmond Distiict resident Robert Blum filed an appeal of the Planning Commission's dedslon with the Qty Board of Supervisors (the
Board). Mr. Blum was joined by some 80 local property owners, representing almost 60% ofthe land area within 300 feet of the Geary ^te, who signed
petitions in support of the appeal. Hundreds of other San Frandsco residents also signed a petition opposing construction of the MetroPCS fadlity at the
Geary site. Consistent with applicable local zoning procedures, tiie Board of Supervisors held a public hearing te consider the appeal on June 17, 2002. At
the hearing, a number of community members (induding Mr. Blum and his son) voiced disapproval of MetroPCS's CUP application. Local rasidente asserted.
Inter allB, that the antenna fadlity was not necessary for MetroPCS or the community since the Richmond District alraady enjoys excellent wireless service,
that the fadlity would create a visual blightdetrimentet to the neighborhood diaracterand that tiie ^dllty would produce harmful RF emisdons hazardous
to public health.
Representetives of MetroPCS — Induding company managers and technical steff—appeared before the Board to speak in ^vor of the proposed fodlity,
dalming that the antenna insteiiatkm is necessary for MetroPCS's service coverage of the Richmond Distrldand that it Isanunobtruave ^dllty that will not
constitute a visual or industrial blight on the neighborhood. At the condusion of the hearing, the Board of Supervisors unanimously voted to overtum the
dedslon of the Planning Commission and to deny MetroPCS the CUP. The Board's findings were later formally adopted in a five-page written dedston
disseminated on June 24, 2002.
In articulating the bases for its dedston, the Board's written opinion formally found that (1) the proposed ^dlity Is not necessary to MetroPCS's ability to
service the Richmond District around the Geary site, (2) the ^dlity is not necessary for the community, since there Is already adequate wireless service In
the neighborhood around the Geary site, (3) the proposed ^dlity would constitute a 'visual and indusblal blight" and wouU be detrimental to the character
ofthe neighborhood and (4) the proposed antenna tedilty Isnotinconfamilty with and would not further the polldes of the City's General Plan, The Board's
dedslon asserisd that Its denialof the CUP application did not reflect unreasonable discrimination against MetroPCS, did not limit or prohibit access to
wireless services and did not limit or prohibit the filling ofa significant gap in MetroPCS's service ooverage. The Board also mainteined that tha proposed
^dllty was not the least Intrusive way to provide wireless services in the Richmond District
On July 17, 2002, MetroPCS filed a-comptalnt in the CKstrict Court for the Northern Dlsti-fct of California daimingthat^ in denying its application for a CUP,
the City (via the Board) had violated several provisions of § 332(c)(7) of the TCA. Both MetroPCS and the aty moved for summary judgment on all dalms,
and on/^rll 25, 2003, the district court issued a dedslon granting in part and denying in parttheCity'smotion for summary judgment, and denying in part
MetroPCS's motion for summary judgment. MetroPCS, Inc. v. City & County of San Frandsco, 259 F.Supp.2d 1004 (N.D.Cal.2O03).
Spedfically, the district court held that (1) the Board's written denial of MetroPCS's CUP application constituted a dedslon "in writing" as required by §
332(c)(7] of the TCA, (2) the Bo a rti's dedslon was supported by 'substential evidence," (3) the Board did not unreasonably dlsolmlnate among providers of
functionally equivalent services and (4) the Board's dedslon was not impermissibly based on concems over RF emissions. The City was granted summary
judgment with respect to Its dalms on each of these issues, fd. However, the district court also heM that significant questions of material foct existed as to
whetfier the Boanj's dental of MetroPCS's CUP application prohibited or had the effect of prohibiting the provision of wireless services In violation of §
332(c)(7) of the TCA. Id. at 1012-15. Accordingly, the district court denied both parties' motionsfbrsummary judgment as to this Issue. Id. at 1015. Both
parties were granted leave to appeal the dlstila court'srollngtothis Court, and both parties now seek summary judgment on all dalms.
II. JURISDICTION AND STANDARD OF RB/IEW
Since the district court granted both parties* motions to certify tte order fbrappeal, we now have Jurisdiction pursuant to 28 U.S.C. § 1292(b). We review
motions for summary judgment (/e novo. See SuzM Motor Corp. v. Consumers Union of United States, Inc, 330 F.3d 1110,1131 (9th Cir.), cert, denied,
540 U.S. 983, 124 S.Ct 468, 157 L.Ed.2d 373 (2003); King Jewelry, Inc v. Fed. Express Corp., 316 F.3d 961, 963 (9tii Cir.2003). Summary judgment
should be granted when "there is no genuine Issue as to any material fact" such that "the moving party Is entitled to a judgment as a matter of law."
Fed.R.av.P. 56(c); see also Anderson v. Uberty Lot)by, Inc, 477 U.S. 242, 255,106 S.Ct 2505, 91 L.Ed.2d 202(1986); Sicwt/AtotorCo/p., 330F.3dat
1131.
To prevail on a summary judgment motion, the moving party carries the initial burden of demonstrating to tire court that no genuine issue of material
fact exists. Cehtex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct 2548, 91 LEd.2d 265 (1986). Onoe the moving party has carried that burden, it then
shifts to the nonmoving party, who must present evidence that there is Indeed a genuine Issue for trial. See Id. at 323-24, 106 S.Ct. 2548, All disputed
issues of fact are to be resolved In favor of the nonmoving party. Anderson, 477 U,S. at 255, 106 S.Ct 2505.
in. DISCUSSION
MetroPCS advances dalms under several sections of the TCA, none of which has been authoritetively construed by thlsdrcuit.'^ We address each of these
dalms in turn.
A. Dedslon 'In Wridng'
Under the Telecommunications Act, "[a]ny dedslon by a Stete or local government,. . te deny a request to place, constroct, or modify personal wireless
service fedllties shall be In writing." 47 U.S.C. § 332(c}(7](B)(iiJ). In the proceedings below, the district court ruled that the Board's dedsion was
adequately "in writing" under the TCA and granted the Qty's motion for Gummaryjudgment on this issue, 259 F.Supp.2d at 1009. MetroPCS now appeab
this ruling and moves for summary judgment
The TCA's simple directive that all local zoning dedôns adverse to wireless service providers be "In writing" seems dear enough, and the Qty's
five-page written dedslon overturning the grant of MetroPCS's CUP certeinly qualifies as 'In writing' under any colloquial or common-sense understending
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of that term. (See Board Dedslon, ER 12, Exh. 5.) However, while the plain meaning of the TCA's text supporte the distinct court's ruling, thedrcuiteare
split in their interprotetions of the "In writing" requirement, and this Circuit has yet to teke an authoritetive position on the Issue, See New Par v. City of
Saginaw, 301F.3d390, 395 (6th Clr,Z002) (noting the split and outilning the various interpretetions); S.bV. Bell Mobile Sys., Inc v. Todd, 244F.3d 51,59
(lstClr.20Dl) (giving o summary ofthe different interpretetions).
Atone Interpretive extreme, some courtehave required that local govemmente explicate the reasons for their ded9on and link their conduslons to
specific evidence In the written record. See, e.ff., Omnipolnt Communiaitions, Inc v. Planning & Zoning Comm'n, S3 F.Supp.2d 306, 309 {D.Conn.2000)
("A local zoning authority must issue a dedsion In writing setting forth tiie reasons for the dedston and linking ite condusions to evidence in the record.*)
(dtations omitted); Celico P'ship v. Town Plan & Zoning Comm'n, 3 F.Supp.2d 178,184 (O.Conn.l998) (dmilar standard); ///. RSA No. 3, Inc v. County of
Peoria, 963 F.Supp. 732, 743(C.D.III.1997] (same). The rationale for this approach Isthatanythlngshort of thisstendard "places the burden on [the]
1
Court to wade through the record below" In order to determine the dedston's reasoning and assess ite evidentiary support. Omnlpoint, 83F.Supp,2d at 309
(quoting Smart SAf/! of Af.v.,/nc v. Zoning Comm'n, 995F.Supp. 52, 57 (D.Conn.l998)).
At the other end of the spectrum lies the Fourth Qrcult, which has applied a s b i a textualist approach to hold that merely stamping the word "DENIED" on
a zoning permit application is suffident to meet the TCA's'in writing" requirement/STarWffnsfeasPCS,/^! v. CityCoundl, 155 F.3d 423, 429 (4th
ar.l998); see also AT& T Wireless PCS v. Winston-Salem Zoning Bd. Of Adjustment;, 172 F.3d 307, 312-13 (4tti Clr.1999). According to the Fourth Orcult,
the bare language ofthe TCA requires nothing more, and so adhering to a more stringent stendard would Involve "Importing additional language into the
itaiuba.'AT&T Wireless, 155 F.3dat429.
The Rrst and Sixth Circuite have diarted a middle course, requiring local govemmente to "issue a written denial separate from the written record' which
*cont3ln[s] a suffident explanation of tha reasons for tha . . . denial to allow a reviewing court to evaluate the evidence In the record supporting tiiose
reasons." Todd, 244 F.3d at 60; Saginaw, 301 F.3d at 395-96 (adopting the Tbcftf stendard}. This approach attempted compromise between the demands of
strict textualism and the requirements of more pragmatic policy values. The Todd court observed that while the stotutory language of the TCA does not
expiidtiy require detelled findings of fact or conduslons of law, and while local asnlng boards are often steffed with laypersons ill-equipped to draft complex
legal dsdslons, written dedslons must be robust enough to ^dlltate meaningful judldal review. See Todd, 244 F.3d at 59-60.
In the proceeding below, tiie district court ultimately chose to apply the Todd standard and held that the Board's written denial of MetroPCS's CUP
application was adequate as a dedsion "In writing" under this stendard. 259 F.Supp.2d at 1009. The distiict court asserted that the Todtf stendard best
'recondles both tiie statutory language and Congressional intent of the Mn writing' requirement" and hekj that. In accordance with Todd, the City "has
Issued a written denial separate from tite written record . . .which summaries the proceedings, articulates the reasons it rejected MetroPCS'Es]
application, and provides suffident information for judldal review In conjunction with the written record.*/d.
We agree with the district court that the Todd standard ultimately strikes the most reasonable balance between the text of the Act and the practical
demands of meaningful judldal review. While the bare language of the Act may not require more than the briefest written dispo^tion. It also does not
compel a stricUy minimalist construction, and the purposes of the "in writing" requirement would be Ill-served by allowing local zoning authorities to issue
the kind of opaque, unelaborated rollng approved by the Fourth Circuit in AT& T Wireless v. City Coundl. Indeed such a minimalist apprbadi Is In direct
tension with the Acf s requirement — discussed more fully in tin naxt section — that all local zoning dedslons be supporixd by substential evidence
contetned in a written record. 47 U.S.C. § 332Cc)(7)(B)(iii). If such an evidentiary review is to be undertaken at alt, courte must at least be able to
ascertain the basis of the zoning dedsion at issue; only then can tiiey accurately assess the evidentiary support it finds in the written record. Therefore, the
zoning dedslon must be suffidentiy elaborated to permit this assessment
Similarly, the text of the TCA does not compel the more demanding stendard outilned In Omnlpoint, 83 F,Supp.2d at 309, and we find persuasive the
Ttxfifcourtfs observation that such a standard might place an unduly heavy burden on lay zoning boards. Asa general matter, we see no reason to Insist
upon a stendard more exacting than Is required te fadlltete meaningful judldal review. We therefore adopt the Toii/t^ standard and hold that the TCA
requires local zoning authorities to issue a written dedslon separate from the written record which contelns suffident explanatton ofthe reasons for the
dedsion to allow a reviewing court to evaluate the evidence in the record supporting those reasons.
As to tiie merite of the case at bar, we are persuaded that the district court did not err In granting the City's motion for summary judgment as to this
dalm under the Totfi^ stendard. As the district court correctly noted, the Board of Supervisors Issued a five-page written dedslon, separate from the reconJ,
which summarized the fods of the dispute, recounted the proceedings it conducted, articulated Ite reasons for overturning the Commission's grant ofthe
CUP and explained the evidentiary basis for ite ruling. Whatever else might be said about the decision or ite reasoning. It does contain suffident explanation
to enable judidal evaluation of the evidentiary support for iterationale.'In fact MetroPCS itself devotes many pages of ite brief te discussing and critiquing
tiie dedslon's reasoning and evidentiary siq>port,^
In light of all these considerations, we afftrm the district court's ruling that the Board's dedsion was properiy "in writing" under g 332(c)(7)(B](iii) of the
TCA,
B, Substantial Evidence
In addition to requiring that ail local zoning dedslons be 'in writing,' ttte TCA also mandates that these dedslons be "supported by substantial evidence
- contained In a written record,* 47 U.S.C g 332(c)[7)(B)(ili). In the proceedings below, the district court granted the City's motion for summary judgment
on tills issue, ruling that the Board'sdetermlnation that the proposed fadlity Is not necessary for the community was supported by substential evidence.
259F;Supp.2dBtl011,
In Stark contrast to virtually every other aspect of this case, there appears to be universal agreement among thedrcuiteasto the substantive content of
this requirement While the term "substantial evidence' Is not statutorily defined In the Act, tiie legislative history of the TCA expiidtiy states, and courte
have accordingly held, that this language Is meant to trigger "the traditional standard used for Judldal review of agency dedslons," H.R. Conf. Rep, No,
104-453, at 208 (1995); see also Cellular Tel. Co. v. Town of Oyster Bay, 165 F.3d 490, 494 (2d ar.l999) (holding ttiat "substantial evUence" Implies this
traditional standard}; Preferred Sites, lUZv. Troup County, 296 F,3d 1210,1218 (11th Cir.2002) (same).
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However, the substantial evidence inquiry does not require incorporation ofthe substantive federal standards Imposed by the TCA, but Insteadrequiresa
determination whether the zoning dedslon at Issue Is supported by substential evidence in the context of applicable state and local law. As our sister drcuite
haverecognized,the TCA'does not affect or encroach upon the sutetant/we standards to be applied under eâbliêdprindples of state and local law.*
Oyster Boy, 166 F.3dat494 (Intemal quotation marks omitted) (emphasis added). "'Substantial evidence' review underthe TCA does not create a
substantive federal iimitaUon upon local land use regulatory power
" Todd, 244 F.3d at 58 (dtetlons omitted); see also VoiceStream Minneapolis, Inc
V.St Croix County, 342F.3dfil8, 830 (7th Clr.2003) (same rule} (dting Tbcft/)-In other words, we must teke applicable state and local regulations as we
find them and evaluate the City dedslon's evidentiary support (or lack thereof) relative to thoseregulations.If the dedsion falls that test It, of course, is
Invalid even before ^ e application of the TCA'sfederalândards,
Thlsapproach serves several purposes. First, it enables us to avoid unnecessarily reaching thefederalquestions of whetiwr a zoning dedsion vtolates the
substantive provisions of the TCA. If a zoning board's declôn, reached under ite own rules. Is not supported by substantial evidence, then we need not
consider the application of the antl-prohlbit^n or anti-discrlmlnatlon prangs of the statute. Second, localregulationsstanding alone may ofler littie Insight
into whether they vtolate the substantive requlromenteof theTCA, Zoning rules — sudi as those that allow local authorities to reject an application based
on 'necessity' -> may not suggest on theirfocethat they will lead to discrimination between providers or have the effect of prohibiting wireless services.
Thus, in most cases, only when a locality applies the regulation to a particular permit application and reaches a decision — which it supports with
substantial evidence —can a court determine whetherthe TCA has been violated.
The dissent disagrees with this approach, arguing that any zoning regulation — or application of sudi a regulation — based on considerations of
community "necessity" by ite terms discriminates against new providers, cannot be squared with the TCA's anti-discrimination provision, 47 U.S.C. § 332(c)
C7)CB)(i)(II), and Is therefore, ipsofecto,not supported by substential evidence. Yet such an interpretation may thwart congressional intent concerning the
independence accorded local zoning authorities under the TCA. As the dissent recognizes, the only direct substantive restriction the Act places on local
zoning autfioritiesisthe proscription ofdedslons based on concems overradiofi'equencyemissions contained In § 332(c)(7)(B)(tv}, (See discussion of this
provision, infra in Section III-F.)i-lad Congress desired to proscribe zoning decisions based on community necessity — or, for that matter, any other
disfevored rationale — we are confident that It could have done so. Yet as theforegoinglegal precedente and legislative history demonstrate. Congress
Instead intended that the traditional substantive prerogatives of local zoning authorities not be dlstutiied.
Perhaps more fundamentally, the dissent's conflation ofthe TCA's substentive anti-discrimination provision, 47 U.S.C. § 332Cc)(7)(B)(i)(II), with ite
procedural 'substantial evidence"requirementthreatens to render the "substantial evidence' provision superfluous. Rather than review a zoning dedslon
for basic evldenti'ary support the dissent would require, as a threshold matter, that we review the dedsion for discriminatory rationale. Butregardlessof
the rationale employed, zoning dedstons must still satisfy the TCA's anti-discrimination provision, Id., whtoh prohibiteactua/discrimination. If similarly
situated provklers are not treated differentiy in fact, there is iittie reason to obviate a zoning decision based purely on an Impermissible "necessity"
rationale.
Having thus delimited the scope of our substantial evidence Inquiry, we may now turn to the merite ofthe questton before us. The most autiioritetive and
cA-dted elaboratton of theTCA's substantial evidence standard comesfromthe Second Circuit in O/ster Ba>', where the court explained that "substantial
evidence' implies "less than a preponderance, but more than a sdntilla of evidence. ' It means such relevant evidence as a reasonable mind mijiht accept
as adequate to support: a condusion." 166 F.3d at 494 (quoting Universal Camera Corp. v. NUiB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 LEd, 456 (1951}).
Thisformulationhas been adopted by every drcuit that has had occasion to consider the Issue. See, e-ff., St. Crobi County, 342 F.3d at 830 (7th Clr,2003);
United States Cellular Tel. of Greater Tulsa, LLC. v. City of Broken Arrow, 340 F.3d 1122,1133 (10th Clr.2003}; TVoup County, 296 F.3d at 1218 (lltti
ClT.y, Second Generation Props., LP. v. Town of Pelham, 313 F.3d 620, 627-23 (1st Cir,2002); 360 Commun/catfons Co, ofCharlottesviiiev. Bd.of
Supervisors, 211 F.3d 79, 83 (4Ui Cir.2000).
Review under this standard Is essentially 'deferential," such that courte may "neither engage In [their] own fact-finding nor supplant the Town Board's
reasonable determinations." OyêrBay, 166F.3dat494. In applying this standard to the fecte of a given case, the written record must be viewed in ite
entirety, induding all evidence supporting both parties, and "local and state zoning laws govern the weight to be given the evidence." Id. As mentioned
earlier, these baseline rules are solidly eâbitshed, and the parties here do not dispute them.
The upshot is simple: this Court may not overtum the Board's dedsion on "substantial evidence' grounds if that dedôn Is authorized by applicable local
regulations and supported by a reasonable amount of evidence (i.e., more than a "sdntilla" but not necessarily a preponderance). In the proceeding below,
the district court correctiy Identified the prevailing legal standard discussed above, 259 F.Supp.2d at 1009, and granted the City's motion for summary
judgment on this Issue, ruling that the City's determination that the Richmond District community dkl not need the MetroPCS antenna was(l} authorized
by local zoning regulations and (2} supported by substantial evidence, id. at lDlO-11. Thisrolingwas legally correct
Rrst, the San Frandsco Planning Code expiidtiy authorizes the consideration of community need In evaluating conditional use permit applications. San
Frandsco Planning Code § 303(c)(1) (directing the City Planning Commis^n te consider whether "the proposed use . . , is necessary or desirable for, and
aompadble with, the neighbortmod or the community") (emphasis added). Thus, the necessity-based portion of the Board's dedslon was dearly authorized
by local zoning regulations. Even MetroPCS acknowledges this much. Accordingly, the only remaining Issue concems whether the Board's 'necessity"
condusion was supported by substential evidence.^ A perosal of the record demonstrates that It was.
The Board's inquiry into this issue was not a model of thoroughness or rfgor,^ but the record does deariy establish that the Richmond District is amply
served by at least five otêr major wireless servtoe providers and thus did not "need" the proposed Geary fedlity. One of MetroPCS's own representetives
testified before the Board that 'every carrier In San Francisco has coverage along Geary [Boulevard]," and reiterated that 'every arrier has an antenna In
this neighborhood," Another MetroPCS representative testified that "we've got Verizon, Sprint, AT &T, Singular [sic], Nextel, all in the very same vidnlty
[ofthe Geary site]," adding later that Sprint and Verizon "have great coverage. They have an excellentfoot-holdin the [Geary] area." Indeed MetroPCS
argued before the Board that it needed a fedlity at the Geary site precisely because it had te compete with other providers who had coverage in the area.
These stetementeby MetroPCS were buttressed by testimony and numerous written petitions from local re^dente, induding Robert Blum (the resident
actually diallengtng the CUP grant}, reporting that the Richmond District already enjoyed excellent wireJess coverage. The record also contains a site map
showing the locations of SprintPCS fadlities in the Richmond District, Induding one antenna instellation just 0.2 miles from tiie proposed Geary site. Taken
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In Its totality, this evidence, Induding unequhôcal statamente by MetroPCS itself, constitutes at least a showing that "a reasonable mind might accepts as
adequate. The "substantial evidencs" provision of the TCA requires nothing more.
,
In briefing this Issue, both partiesspendconslderabletimedisaissing the evidence supporting the Board's findings on neighborhood character and the
aesthetic Impad of the proposed fedlity. MetroPCS In particular spends considerable time arguing that residents' aesthetic concerns are speculative or
unsubstantiated. This may be true. Yet, since the Board'sfindingon community necessity was authorized by local regulations and supported by substantial
evidence. It Is unnecessary to consider the evklence supporting other potential grounds for the City's dedsion. See e.g.. Oyster Bay, 166 F.3d at 495
(stating that the court must 'detennlne whether the Board possessed substantial evidence on one or both of [ite permissible] grounds' for a zoning permit
denial). The district court was correct intekingthis analytical approadi as well, relegating these andliary concems te a footnote. 259 F.Supp.2d at 1011 n,
6.
As the district court below Identified the correct prevailing legal standard and applied it properiy, we afl^rm the district court's ruling that the Board's
dedsion was supported by "substential evidence" as required by the TCA,
C, Discrimination Claim
In addition to Ite more concrete procedural requlremente, ttie TCA also mandates that'[t]heregulationof the placement, construction, end modification
of personal wireless service fedllties by any Stete or local government or instrumentality thereof — (I) shall not unreasonably dlsolmlnate among
providers of hinctionaiiy equivalent services.' A7 U.S.C. § 332(c}(7)(B)(l)(I) (emphasis added). As the bulkof the cases on this Issue have recognized, by
using this language "the Act expiidtiy contemplates that some discrimination 'among providers of functionally equivalent services' is allowed. Any
discrimlnatkin need only be reasonable," ATa. T Wireless, 155 F.3d at 427; see aiso Omnlpoint Communications Enters., LP. v. Zoning Hearing Bd., 331
F.3d 386, 395 (3d Cir.) (dting AT& T Wireless, 155 F.3d at 427}, asrt denied, 540 U.S. 1108,124 S-Ct. 1070, 157 LEd.2d 894 (2004); Nextel W. Corp. v.
Unity Township, 282 F.3d 257, 267 (3d Clr.2002} (same); Sprint Spectrum, LP. v. Wliloth, 176 F.3d 630, 638 (2d ar.l999) (same).
McH'e spedfically, most courte tiave field that dlsolmination based on "traditional bases of zoningregulation"such as "preserving the character of tfte
neighborhood and avokllng aesthetic blight" are reasonable and thus permissible. AT& T Wireless, 155 F.3d at 427; see also Willotti, 176 F.3d at 639
(same) (dting AT& T Wireless). Aside from reflecting the plain meaning of the TCA's text, this Interpretation Is also supported by the Act's legislative
history. The House Conference Report on the TCA explained the Act's nondlsalmlnation dause as follows:
The conferees also intend that the phrase 'unreasonably discriminate among providers of functionally equivalent services" will provide localities with the
flexibility to treat ^dlitles that create different visual, aesthetic, or safety concerns differentiy to the extent permitted under generally appllabie zoning
requirements even if thosefydiitiesprovide Ainctionally equivalent services. For example, tha conferees do not intend that If a State or local government
grante a permit in a commerdal distiict, it must also grant a permit for a competitor's 50-foot tower in a rea'dential district
H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphads added).^
In keeping with these baseline prindpies, almost all federal courte considering such cases have ruled that providers alleging unreasonable discrimination
must show that they have been treated differently from other providers whose fedllties are 'similarly situated" in terms of the "sUixiure, placement or
cumulative Impacf' as the fadVities in question. AFTPittsburgft Ltd. P'ship v. Penn Townsh^ Butier County, 196 F.3d 469, 460 n. 8 (3d Qr.l999} (Internal
quotation marks omitted) (emphasis added); Wliloth, 176 F.3d at 643 ("[I]t is not unreasonably discriminatery to deny a subsequent application for a ceil
site that is substantially more Intrusive than existing cell sites by vlrtee of ite structure, placement or cumulative Impact"); see also Omnlpoint, 331 F.3d at
395('Permltting the erection of a communicationstower in a business district does not compel the [zoning board] to permit a similar tower at a later date
In a residential district'}; Unity Township, 282 F.3d at 267 (discrimination dalm "'requlre[5]a showing that the other provider Isslmilariy situated'")
(quotingfls/7/jTownsft/p, 196 F.3d at 430 n. 8). Infect, the sole district court case from the Ninth Circuit on this issue holds that a mere increase In the
number of wireless antennas In a ghênarea overtime can Justify differential treatment of providers. AJrtoucA Cellular v. City of 8 Cajon, 83 F.Supp.2d
1158, 1166 (S.D.Cal.20O0),
Inrollngthat the Qty's dedsion here did not unreasonably discriminate against MetroPCS, the district court employed a somewhat confusing and
contradictory analysis. The court first stated that. In order to prevail, MetroPCS must demonstrate that the City treated it differently from one of Ite
competitors for a "functionally/dent/ca/request." 259 F.5upp.2d at 1012 (emphasis added). The dIstrictcourtdtesSpjYnC Spectrum LP, v. Board of Zoning
AppealsofTown of Brookhaven, 244 F.Supp.2d 108, 117 (E.D.N,Y.2003), for this proposition, though the court'sformulationappears to reflect a
misreading of that case. The court in Spr/nC^pectru/n actually applied the broader legal pHndple that "a local board may reasonably consider the location
of the cell tower when dedding... whether to approve the application for consbruction." Id.
Later in ite opinion, the district court stated that MetroPCS must demonstrate that "other providers have been permlted to build similar strodures on
similar sites while It has been denied." 259 F.Supp.2d at 1012 (emphasis added). As discussed above, ghren that the wireless providers In questton provide
"hjnctionaity equivalent services" (which is undisputed in this case}, "simliariy situated" Is the prevailing legal standard on the discrimination Issue, The
district court then proceeded to find that the fedllties of other service providers In the Rkiimond District are 'differentiy dteated ^ m MetroPCS because
they have sought to place their antenna structures at different locations within the district." Id. Thus while It is not dear whether the decision below
ultimately tumed on the prevailing 'dmilariy siteated' analysis (similar structures on dmilar sites) or the district court's own "functionally identical requesf
stendard, it appears that the court would have ruled for the City under either test This ruling was error.
FHrst, tha district court frames the relevant legal Inquiry too narrowly. For ttte policy reasons discussed above, ttie "similariy situated* standard seems to
strike an appropriate balance between Congress's twin goals of promoting robust competition and preserving local zoning authority. The district court's
formulation ofthe discrimination inquiry, under which localities may deny use permite any time the relevant antenna structures ore at "different locations,'
ki., appears unduly narrow. Unless competing providers seek to place virtually identical antennas at tiie very same location or on the same spedfic
structure, no wireless service provider oould ever carry ite burden to show discrimination under this test. Such a stendard would give localitiesfortoo much
leeway In rejecting functionally similar requests by competing providers and wouU thwart the competition that the TCA sought to fedlltate.
As for the district court'sfinaldetermination that the City did not, as a matter of law, unreasonably discriminate against MetroPCS, this too was error.
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The tactual record Is equivocal on the discrimination issue. While the Board's dedston appears to have been authorized by the City Planning Code, it Is not
entirely dear whether the proposed MetroPCS site l&"dmllariy situated" to other approved fedllties in the Richmond District. The record shows that ttiere is
a competing SprintPCS wireless fedlity, also on Geary Boulevard, just two blocks (-0.2 miles} from tiie rejected MetroPCS site. MetroPCS also alleges that,
shortly after it denied MetroPCS's application for a QJPatthe Geary site, the Board approved the Installation of a Clngular Wireless fedlity on a rooftop in
the same neighborhood. These fects at least suggest a real possibility of discrimination between s/m/Zar sites.
While the Board maintains that the other existing wireless fedllties in the Richmond District were approved because they were placed at a more Ideal
tocation, see 259 F,Supp.2dat 1012, the record contains no systematic comparison of the sites in question, Similarty, while the record also contelns photo
simulations of the proposed Meti^PCSste, (ER31 Exh. 1), there are no similarphotographs of competing fedllties in the area. In short, while itis
undisputed that there are other wireless fedllties In the same neighborhood, there appears to have been no detailed Inquiry Into the similarity of these
existing fedllties to the proposed MetroPCS fedlity Intermsof "sûcture, placement or cumulative \mpa(^." See again Penn Township, 196 F.3dat480n. 8
(Internal quotation marks omitted}.
Given the foregoing, MetroPCS has presented suffident evidence to aeate an Issue of feet as te the discrimination dalm. Since there Is no condusive
evidence as to how MetroPCS's proposed fedlity compares to the existing sites of ite competitors In terms of 'structure, placement or cumulative impact,"
substential questtons of feet remain as te whetiier the Board of Supervisors unreasonably discriminated against MetroPCS, and thus neither party is entitied
to judgment as a matter of law.^ We accordingly reversethedistrictcourtsgrantof summary judgment in fevor of the City on this Issue and remand the
case for further proceedings to determine whether the proposed MetroPCS fedlity was similariy situated to competing fedllties approved by the City and. If
so, whether the Oty discriminated against MettoPCS with respect to the proposed and the competing fedllties.
D. Prohibition Claim
Section 332 of theTCA provides that "[t]he regulation of tiie placement, construction, and modificatton of personal wireless service fedllties by any State
or local government or any instrumenteiity thereof — (II} shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47
U.S.C. § 332(c)(7)(B)(i)(II). MetroPCIS alleges that. In denying Ite application far a CUP, the City has violated this provision by both imposing a "general
ban" on new service providers In the Richmond District and effectively prohibiting the provision of wireless services by preventing MetroPCS from filling a
"significant gap' in ite coverage.
In the proceedings below, the district court held that the City's dedslon did not amount to a "general ban" on wireless services, but that material
questions of feet remain as to whetherthe denial of MetroPCS's CUP appliotion perpetuates a "significant gap" In MetroPCS's coverage. 259 F.Supp.2d3t
1015, We find the district court's reasoning persuasive, and we affirm all aspecte of ite holding as to this dalm.
1. GenvralBan
A dty-wlde general ban on wireless services would certainly constltete an Impermissible prohibition of wireless services under the TCA, In feet, this Is the
only drcumstance under which the Fourtih Orcult will find an impermissible prohibition under the statute. See AT& T Wireless, 155 F.Sd at 428 (holding that
only "blanket prohibitions* and "general bans or polldes* affecting a/T wireless providers count as effective proNbltion of wireless services under the TCA),
Under this role, which Is based on a strict plain meaning analysis, individual zoning dedslons or persistent coverage gaps can never constitute a prohibition
under the stetute — courte must ask only whether local govemmente have (effectively} banned wireless services altogether. Id. The City asks us to adopt
the Fourth Qrcults Interpretetion as well, noting that the House Conference Committee's Report on the TCA seems to antidpate a narrow, bare-bones
approach: ' I t is the intent of this section that bans or polldes that have tiie effect of banning personal wireless services or fedllties not be allowed and that
dedslons be made on a case-by-case basis.' H.R. Conf, Rep. No. 104-458, at 208 (1996).
However, for a variety of reasons, we dedlne to adopttheFourtharcuitruleonthispoint. The language of theTCA, while sparse, does not dictete sudi
a narrow Interpretation even under a plain meaning approach. As the Fir^ Circuit has observed, given the current structure of the wireless services
market, "[t]he feet that some carrier provides some service to some consumers does not in Itself mean that the town has not eflectively prohibited services
to other consumers." Second Generation Props., 313 F.3d at 634. Additionally the Fourth ClroJirs interpretation, by permltiSng all but the most restrictive
local zoning polldes, could actually thwart Congress's twin goals of encouraging competition In the wireless services Industry and fediltating effident use of
bandwidth. The touchstone of our prohibition analysis is therefore not limited to blanket bans or general polides prohibiting wireless services. The TCA
fiamework requires a mora discriminating inquiry, (See our discussion of the "Significant Gap* analysis, /nfra.)
Turning briefly to the merits, the record offers no support for MetroPCS's assertion that the City has imposed a "general ban" on wireless services,
against new provklers or anyone else. Aside from the feet that it would be extremely dubious to infer a general ban from a single CUP denial, the record
reveals that the City has been receptive to wireless providers in general and MetroPCS in particular. It Is undisputed that the City has authorized the
installation of some 2,000 antennas at about 450 ^tes around the dty, induding 30 MetroPCS sites. This undercute any assertion that the City has placed a
general ban on new market entrants. The district court made virtually Identical observations In Ite own finding that no general ban exlste, 259 F.Supp.2d at
1013, and we uphold this ruling as entirely correct
2, Service Gap
Several drcuite have held that, even in the absence ofa 'general ban" on wireless services, a tecality can ron afoul of the TCA's'effective prohibition"
dause if it prevente a wireless provider fi-om dosing a "signifrcant gap" In service coverage. This Inquiry generally Involves a two-pronged analysis requiring
(1} the showing ofa 'significant gap" in service coverage and (2) some Inquiry Into the feasibility of alternative fedllties or site locations. Currently there is
a dear drcult spilt as to what constitutes a 'significant gap" in coverage, and the Ninth Circuit has yet to role on the Issue.^
(a) Definition of "Significant Gap"
The test employed by the Second and Third Qrculte holds that a "sfgniflcantgap'inservlceexlsteonly If/wproWdbrlsable to serve the "gap" area In
question. See Omn/po/nt, 331 F.3d at 398; Uo/ty Township, 282F.3dat 265; Penn row/jsft(o, 196 F.3d at478-80; Wliloth, 176 F.3d at 643. One district
court In the Ninth Circuit has also adopted this test. El CaJon, 83 F,Supp.2d at 1167. This test Is sometimes referred to as ttie "one provider" rule since, if
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any single provider offere coverage In a given area, localities may predude ottier providers from entering the area (as long as the preduslon Is a valid,
nondlscriminatery zoning dedston that satisfies the other provisions of the TCA).
This role has been touted as proceeding from the consumer's perspective rather than the Individual service provkJer's perspective, which the Third Orrult
argues Is more In keeping with the regulatory goals of the TCA ~ as long as asmeprovkfer offers service in the area, consumers will be adequately served
and the TCA's goal of establishing nationwide v/ireless service wiil be achieved. See Omnipokit, 331 F.3d at 397-98; Unity Township, 282 F.3d at 265. Under
ttiis view, the TCA protecte only the Individual user's ability to receive service from one provider or another; it does not protect each service provider's
ability to maintain full coverage within a ghren maricet. Omnlpoint^ 331 F.3d at 397-98; Unity Township, 282 F.3d at 265; cf. Wilhth, 176 F.3d at 641-43.
The Rrst Circuit has recently rejected the "one provider" approach ar>d held that a local regulation creates a "significant gap' In service (and thus
elfectively prohlbite wireless services) If tfte provkjer in question Is prevented from filling a significant gap in its own service network. See Second
Generation Props., 313 F,3d at 631-33, This approadi formally takes the perspective of the Individual service provider In assessing coverege gaps, but, as
the Sea9n(^Ge/)erstto/)AT?pe/ties court persuasively explain^ this approadi actually better serves both Individual consumers and the policy goals of the
TCA.® The Seco/irf feneration Properffes court notes that tiie TCA'aims to secure tower prices and better service for consumers by opening all
telecommunications markete to competition,* Id. at 631 (dting fi.R. Conf. Rep. No. 104-458, at 113 (1996)). The court: then waros against the
dysfunctional implications of the Second and Third Clrcuite"one provider rule':
A flat "any service equals no effective prohibition" rule would say that a town could refuse pemiite to buifd the towers necessary to solve any number of
different coverage problems.. , . Such a rule would be highly problematic because it does not further the Intereste of the Individual consumer. To use an
example from this case. It is of iittie comfortto the customer who usesAT8iT Wireless (or Voicestream, Verizon, Sprint, or Nextel) who cannot get service
along the stgnlllcant geographic gap which may exist atong Route 128 that a Clngular Wireless customer does get soma service In that g a p . . . , TTie result
[of such a rule] wouki be a crazy patchwork quilt of intermiOent coverage. That quilt might have the e ^ c t of driving the Industry toward a iingle carrier.
When Congress enacted legislation to promote the construction ofa nationwide cellular network, such a consequence was not, we think, the Intended
result
Id. at 633 (footnote omitted). In short, the First Circuit's multiple provider rule better fedlitates the robust competition which Congress sought to
encourage with the TCA, and It better accommodates the current stete ofthe wireless services market. The district court also found these argumente
persuasive, sines it formally adopted the Rrst Circuit role in Ite dedsion below. 259 F.Supp.2d at 1013-14.
For Ite part, MetroPCS does not object to the district court's adoption of the Rrst Circuit "multiple provider rule" (in feet MetroPCS and ite Amid argue
strenuously in fevor of the Rrst Circuit's approach), though It argues that the Oty's zoning "criteria," which allow for CUP denials based on findings that a
given fadlity Is "not necessary" for the community, are "impossible for any non-incumbent carrier to meet" and thus constitute an effective prohibition of
wireless services. Once again, the large number of permite already granted by the City — to providers new and old — belies this assertion.
Additionally, we emphasize that MetroPCS'sconcems regarding zoning dedsons based on 'necessity" can be accommodated by the Rrst Circuit's version
ofthe significant gap test Under this role, zoning dedslons expltoltiy based onredundancyof service are not per se invalid, but they are subject to the
(Tudal limitations that (1} they cannot discriminate between similariy situated fedllties and (2) they cannot result in a significant gap in service for the
provkier in question. As wiil be discussed shortly, the Rrst Qrcuif s interpretation also fully meete the preemption and supremacy argumente advanced by
MetroPCS.^
Having considered both the avowed polic/goalsof theTCAand thepro^cal Implicationsof tiie various constructional options, we elect to follow the
district court's lead and fomiaily adopt the Rrst ClroJit's rule that a significant gap In service (and thus an effective prohibition of service) existe whenever a
provkier is prevented from filling a significant gap in/teowr? service coverage. With the correct legal standard thus darifled, we now turn to the merite of
MetroPCS's prohibition dalm.
In apfriylng the Rrst Circuit's provMer-focused notion of'signtficant gap,'the district court denied both parties summary judgment, holding that
significant questions of feet still exist as to whether the Board's dedsion actually perpetoates a significant gap In MetroPCS's coverage. This condusion Is
amply supported by the existing reoord and, therefore, we affirm the distiict court's ruling on this issue. Both parties confidentiy assert that the current
record unequlvocally supporte tiielr respective positions. But to the contrary, the record is replete with contradictory allegations as to MetroPCS's need for
the Gearv site. Compare Stetemente of Sukl McCoy, SSK at 223-36 (stating that MebtiPCS has adequate coverage in the Richmond District}; Statemente of
Martin Signlthaler, SER at 134-36 (stating that the Geary site would not improve MetroPCS's effective coverage); MetroPCS Marketing Materials, SER 225,
234 (advertising that Meti-oPCS has fell coverage around the Geary site), with Stetemente of MetroPCS Technological Expert, SER at 200-02 (steting that
MetroPCS coverage Is not adequate without tiie Geary site); Dedaration of Lisa rJahmanson, ER 32 (stating that MetroPCS coverage is insuffident without
the Geary site}; Testimony of Deborah Stein, SER 191-200(same); Dedaration of John SehWBrt:^ ER 49 (challenging basis of City's contention that existing
MetroPCS service is adequate).
In urging us to grantltsummary judgment on this issue, the aty dtes a bevy of cases that, collectivêly, are meant to demonstrate that "[t]he TCA does
not assure every wireless carrier a right to seamless coverage In every area It serves," and tiiat tiie Inability to cover a 'a few blocks In a large dty" Is, as
a matter of law, not a 'significant gap." While werecognizethat the TCA does not guarantee wireless service providers coverage free of small "dead
spote,'^" the existing case law amply demondrates tiiat 'significant gap" determinations are extremely fect>spedfic Inquiries that defy any bright-line
legal role. Moreover, Oie City's assertion as to the sizeof MetroPCS's alleged service gap merely assumes the very feet in issue here — the existence and
geographic proportions of a gap In MetroPCS's coverage.
Given the conflicting contenteof the record, there Is simply no basisforgrantingeither party summary judgment on this issue. We affirm the district
court's rollng to that effecL
(b) least Zatmshre Meatts
Under all existing versions of the '^gnificant gap' test, once a wireless service provider has demonstrated that the requisite significant gap In coverage
existe, it must then make some showing as to the Intruslveness or necessity of ite proposed means of dosing that gap. Here again, the drcuite are split as
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to the required showing.
The Second and Third Circuite require the provider to show that "the manner in which It proposes to fill the significant gap In service \stt\6 least Intrusive
on the values that the denial sought to serve.'Penn Township, 196 F.3d at 480 (emphasis added); see a/soOmntPO/zit 331 F.3d at 398; Unity Township,
282 F.3d at 266; Wliloth, 176 F.3d at 643, The Rrst and Seventh Qrcuite, by contrast, require a showing that there ore "no altemative sites which would
solve the problem." Second Generation Props., 313 F.3d at 635; see aiso St Cmlx County, 342 F,3d at 834-35 (adopting the Rrst Circuit test and requiring
providers to demonstrate that there are no "viable altemadves") (dting Second Generation Properties).^^
After conduding that material issues of fact remain as to the presence (orabsence)of a significant gap in MetroPCS's coverage, the dte^lct court
attempted to recondle competing Interpretations of the introsiveness inquiry by creating ite own "feet-based test that requires the provider to demonstrate
that ite proposed soiutton Is the most acceptaUe option for the community in question." 259 F.Supp,2d at 1015 [emphasis added).
Since there is no controlling legal authority on the issue, our choice of rule must ultimately come down to policy considerations. The distria court's "most
acceptable option" robrlc seems a hopelessly subjecth/e standard, and one wonders how a proposed site could ever be proven "the most acceptable' If a
zoning proposal v/tth respect to It had already been denied by tocal authorities. On tiie other hand, the Rrst and Seventh Circuit requirement that a
provider demonstrate that Ite proposed fedlity isthe only viable option seems too exacting. As the case at t»r demonstrates, there may be several viable
means of dosing a major service gap, (see MetroPCS Alternative Site Analyds, SER 26-35}, and In such a situation, this 'only viable option' rule would
either predude the constroction of any fedlity (since no single site Isthe 'only viable'altemative) or require providers to endure repeated denials by local
authorities until only one fea^ble alternative remained. This seems a poor use of time and resources for both providers and local govemmente alike,
Tha Second and Third Circuit "least Introslve* standard, by contrast, allows for a meaningful comparison of altemative sites before the siting application
process is needlessly repeated. I t aiso gives providers an incentive to choose the least Intrushre site in their first siting applications, and it premises to
ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials.
For these reasons, we now adopt the "least Intrusive mean^ stendard and instruct the district court to apply this rule as necessary in Ite conslderatton of
the prohlWHon issue on remand.
E. PreempOoa Claim
One additional note is In order that bears, albeit indirectly, on MetroPCS's discrimination and prohibition dalms. MetroPCS vigorously asserte, as separate
dalms independent of the spedfic provisions of the TCA, that the Board's denial of Ite CUP based on an appraisal of community "necessity" violates the
FCC's exduslve licendng authority over wireless providers and is preempted by the TCA's stetutory scheme.
In support of tills dalm MetroPCS pointe out that the FCC has identified "an immediate need for cxilular service'and has estebliêd the goal of
"providing for up to two cellular systems per market' In the Matter of An Inquiry Into the Use of Bands 825-845 MHz and 870-890 MHz for Cellular
•Communications Systems, Memorandum Opinion and Order on Reconsideration, 89 F.C.C.2d 58, at 182,1982 WL 190439 (1982}, The FCC further sought
to predude stete regulation of the number of service providers in a given market: "[W]e have already determined 'need' on a nationwide basis and have
preempted the states from denying stete certification based on the number of existing carriers In the market or the capadty of existing carriers to handle
the demand for mobile services." Jtf. Congress similariy has dedared that "no State or local government shall have any authority to regulate the entry of or
the rates charged by any commerdal mobile service," 47 U.S.C. § 332(c)(3)(A), and tiiat the TCA Is "not intended te limit or affect the Commlsston's
general authority over radio telecommunications, Induding tfie authority to regulate the constrodjon, modification and operation of radio fedllties," H.R.
Conf. Rep. No. 104-458, at 209 (1996), For ite part, the City does Iittie to address these argumente diredty.
Yet wNle MetroPCS does convlndngly demonstrate that the FCC has exclusive authority to issue licenses and regulate the wireless services market — a
point which appears to be undisputed between the parties — the TCA itself fully accommodates these preemption concerns In ite anti-dlserlmlnation and
antl-prohlbition provisions. The TCA's statutory scheme ensures that tfw bandwidth usage and competitive marketdynamicssought by Congress and the
FCC will be realized, while at the same time altowing cities to prevent certain areas from being overturdened by a proliferation of wireless fedllties.
MetroPCS's vigorous perse argumente against necessity-based zoning dedslons misconstrue the delicate regulatory balancestrockby the Act.
First of all, a zoning dedslon te prohibitconstruetionof a wireless fedlity at a spedfic location — whether based on n e c e s ^ o r not — does not implicate
the FCCs ability to regulate the number of wireless providers In a given market Federel supremacy and the FCC's exduslve power to regulate wireless
markete are fully vindicated in the TCA's anti-tilsoimlnatton and anti-prohibition provisions, espedally under the Rrst Clrcuit^s 'multiple provider'
Interpretetion of the 'prohibition' dause. As discussed above, whatever a locality's judgment as to the need for a fedlity at a given site, such a
determination may not effectively prohibit service or reflect fevoritism for one provider over another. This protecte, at a macro-level, the competitive
markete that the FCC has sought to constroct Put differentiy, Ifa single siting denial does not create significant gaps in provider coverage and refieeteno
unreasonable disoiminaUon among providers, market dynamlcsand FCC authority are not threatened In the first place.
Essentially, the TCA representee congressional judgment that local zoning dedslons harmless to the FCCs greater regulatory scheme — and only those
proven te be harmless — should be altowed to stand. As discussed eariier, the TCA 'does not affed: or encroach upon the substantive standards to be
applied under established prindpies of stete and local Xaw,'Oyster Bay, 166 F.3dBt494 (intemal quotation marks omitted) (emphasis added), and It "does
not create a substentive federal ilmitetion upon local land use regulatory power,' Todd, 244F.3d at 58; see<i/so5t. Croix County, 342 F.3d at 830 (same rule) (quoting Todd). MetroPCS's preemption and supremacy claims are thus misdirected. See, e.g., B Cajon, 83 F.Supp.2d at 1168-69 (rejecting a federal
preemption dalm In a § 332(c)(7) case). The fete of MetroPCS's real concems in this area— that tocalitles may be able to reject all siting proposals that
they feel are unnecessary — Is determined by our construction ofthe TCA's prohibition pnsvision. As discussed eariier, the Rrst Circuit's multiple-provider
approach best preserves market competition and addresses these supremacy and preemption concems as well.
F. Environmetital Concents
The last dalm in this case Is ea^ly resolved. The TCA provides that localities may not base zoning dedslons on concems over radio frequency emissions if
the proposed wireless fedlity complies with FCC emissions requlremente:
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tto State or local government or instromentallty thereof may regulate the placement, construction, and modification of personal wireless service fedllties
on the basis of the environmental effecte of radio frequency emissions to the extent that such fedllties comply with the [FCC]'s regulations concsming such
emissions,
47U,S-C, §332(c)(7)(B)0v}. There Is no dispute that MetroPCS's proposed fedlity for the Geary site complies with the relevant FCC regulations. The only
Issue is whetiier tiie City's dedsion was impermissibly based on concems over RF emissions.
MetroPCS argues that the Board did base Ite dedston on environmentel consIderaOons, In support of this dalm it notes that "opponente of MetroPCS's
application made boisterous presentetions before the Board regarding RF emissions, accompanied by argument, badges and t-^lrte complaining about f ^
emissions." MetroPCS also dalms that the Board's denial motion expressly states that it was based on 'all ofthe public commente made in support of and
opposed to the appeal.'" Finally, MetroPCS notes that the Board's dedsion stated the proposed fedlity would 'not promote tiie health, safety and weifere of
the dty."
These observations are of Iittie relevance to the issue here. As the district court correctiy pointe out, the party actually challenging the MetroPCS CUP
application before the Board (Mr. ûm) took pains to darify that his appeal was not based on environmentel concerns. Additionally, the Board's formal
deddon against MetroPCS did not state that it was "based on" all public comments made insupportof and opposed to the appeal. MetroPCS's quotation on
this point is misleading. The Board merely stated that it "/«v^wei/a/K/a>/7s/(ferecr aii such commente, which Is exactly what a local zoning board is
supposed to do at a public hearing. (Emphasis added.)
Most trudally, the Board's writisn dedsion does not once mention RF emissions as a motivation for denying MetroF^CS's CUP application. Broadly stating
(presumably as a redtetion ofthe City's Policy Prindpies) tiiat the proposed fedlity "will not promote" public health, safety and weifere Is not remotely
equivalent to basing a zoning dedsion on a fearofRFemisôns. Given the foregoing, the one case dted by MetroPCS on this Issue (Te/eî?ectn;m, Inc v.
Pub. Serv. Comm'n, 227 F,3d 414 (6th Clr.2000)), which involved a stralghtfonward application of the TCA's RF provision, is inapposite. The district court
was correct in granting the City summary judgment as to this dalm, and we affirm that ruling.
IV, CONCLUSION
For the foregoing reasons, we AFFIRM the district court's roiing that the Board's dedsion was properly "in writing," supported by substantial evidence and
not Impermissibly based on concerns over radio frequencv emissions under the TCA. We aiso ARTRM the district court's ruling that material questions of
feet remain as to whether the Board's dedslon effectively prohibited the provision of personal wireless services under the TCA. Bnaily, wa REVBISE the
district court's determination that the Board's deddon did not, as a matter of law, unreasonably discriminate among provldersof functionally equivalent
services witiiin the meaning of the TCA, and we REMAND this case for forther proceedings consistent with this opinion.
GRABBl, Circuit Judge, concurring In part and dissenting in part.
I agree with the majority that genuine issues of material feet remain with reelect to whether the Board of Supervisors' (Board) denial of MetroPCS's
application for a Conditional Use Permit (CUP) to construct wireless fedllties violated the anti-discrimination and anti-prohibition provisions of the
Telecommunications Act of 1996(TCA}, 47 U.S.C. §§ 151-615.1 write separately because the Board's determination that the proposed fedllties are
unnecessary, premised on the feet tiiat at least one other service provider serves the same area, is irrecondlable with the anti-disalmination provlôn of
the TCA, 47 U.S.C. § 332[c)(7KB)(i)(U). In view of that incondstency, the Board's "necessity" finding cannot support ite denial of Meb-oPCS's request even
If substantial evidence supports that finding, I respedtiuily dissent from the majority's condusion to the contrary.
Accorxllng to the majority, a reviewing court's analysis of the reasons given by a zoning authority for denying a request to construd wireless fedllties
begins and ends with determining whether those reasons are authorized by local regulations and supported by evidence. Relying on the Second Qrcuit's
dedslon in Cellular Telephone Co. v. Town of Oyster Bay, the majority condudes that "the TCA" does not affect or encroach upon the substantive standards
to be ai^lied under established prindpies of state and local law."MaJ.op. at 724 (emphaasin majority opinion} (quoting Ce/M^r Te/. Co. v. Town of
Oyster Bay, 166 F.3d 490,494 (2d Cir.1999)}. That Is, the reasons stated by a zoning authority in denying a request for wireless fedllties are Irrelevant
under the majority's analysis. Accordingly, the majority condudes that the Board was entitled to reject MetroPCS's application for a CUP solely because
"[n]othing In the record suggeste that tiie area proximate to 5200 Geary Boulevard is not already served by at least one other vrireless service provider."
See Maj. op. at 729-30 n. 6 (finding no error In the Board's "necessity" rationale because "the TCA Is agnostic as to the substantive content of local
regulations!').
The majority overstates tiie extent of the TCA's indifference to the substantive content of localregulationswhen those regulations are applied to zoning
declôns regarding the "placement, constroction, and modification of personal wireless service fedllties." 47 U.5.C. § 332(c)(7)(B](i). Oyster Sa/tempered
ite stetement regarding the TCA's neutrality by obser^^ng that at least one provision ofthe TCA places a substentive limitatton on the permissible bases to
support a zoning authority's denial of a request for the consbiidjon of wireless fedllties: "We note . . . that [47 U.S.C.] § 332(c)(7)(B)(iv) [^ ] bars denials
based on environmental effects of rfes [radio frequency emissions,] if the appiicantfedllty would comply with FCC standards...." Oy^srBay, 166F.3dat
494 n.2. Although health and safety are undeniably a proporsutiject for local regulation, theTCA "'prevente the denial of a permit off the so/e tests that
the fedlity would cause negative environmental effecte.'"/d. at495 (quoting/owa VWre/essServs,, L R v. City ofMollne, 29F.Supp,2d915, 923
(CD. III. 1998)).
Similarly, "the anti-discrimination and anti-prahibltionprovislonsof the TCA, [47 U.S.C, § 332(c)(7)(B)(I)(I), (II),] involve federal limitetions on state
authority." S. W. Bell ftobiie Sys., Inc v. Todd, 244 F.3d 51, 58 (1st Cir.2001) (intemal quotation marks omitted). Unlike the TCA's provision relating to
radio frequency emisdons, the anti-dlscrlmtnation and anti-prohibition provisions do not expressly prohibit the consideration of spedfic grounds in zoning
dedslons regarding the constroction of wireless fadlitles. tJonetheless, those provisions do limit the ways in which a state or local government may apply ite
zoning regulations to a request for the placement of wireless fedllties. As TooU observed, a local zoning authortty is "subject to several substantive and
procedural limitations t h a t ' sul:>]ect[local govemmente] to an outer limit' upon their ability to regulate personal wireless services land use issues."/d. at 57
(alteration in original) (quoting Town of Amherst v. Omnlpoint Communications Enters., Inc, 173 F,3d 9,15 (1st Cir.1999)); see also AFT Pittsburgh Ltd.
P'ship V. Penn Township Butier County t^Pennsylvania, 195F.3d469, 473 (3d Cir.1999) (noting that the TCA "places several substentive and procedural
limite upon [local zoning],authority when it Is exerdsed In relation to personal wireless service fedllties").
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For example, the Board couhJ not deny MetroPCS'sappllcationsolely on the ground that the availability of wireless servloes In the Geary neighborhood
may lead to increased wireless telephone usage among automobile drivers in that neighborhood, with a commensurate increase In traffic acddente. Traffic
safety is certainly a legitimate zoning ccnoem, and the Board could easily produce substantial evidence to support a correlation between wireless telephone
usage among drivers and traffic acddente. Nonetheless the Board's rationale for ite dedsion would be entirely Inconsistent with the TCA's anti-prohibition
provision, as carefolly andcorredfy Interpreted by the majority, because the Board would be seeking to preserve a significant coverage gap. Accordingly, a
denial of permission to construct wireless fedllties for that reason alone ^lould not survive judldal serotiny.
The Board's necessity rationale presente the same problem. Whatever ite consistency with local zoning ordinances,^ the denial of MetroPCS's request on
the ground that the Geary neighborhood Is already served by at least one other wireless sendee provider is Irrecondlable with § 332(c)(7)(B)(l}(n}'5
prohibition of zoning dedslons that "unreasonably discriminate among providers of fonctionally equivalent services." As explained In the House Conference
Report, the chief purpose of the TCA Is to "open[] all telecommunications markete to competition." H.R, Conf. Rep, No, 104-458, a t l (1996), The TCA's
anti-discrimination provision furthers that purpose by ensuring " ^ a t a Stete or local government does not in making a dedsion regarding the placement,
construction and modification of fedllties of personal wireless services described in this section unreasonably ^ v o r one competitor over another," Id. at 208
(emphasis added).
Here, the Board's necessity determination resulte in predsely the type of unreasonable discrimination that the TCA seeks to prevent It protecte existing
service providers against potential competitors and effectively bars alt new market entrante from the area in question. Because the Board's necessity
determination Is inherantiy and unreasonably discriminatory. It cannot serve as a valid, legally relevant barfs for rejech'ng MetroPCS's application for a
CUP.
The majority misunderstands my point when it dalms that I argue "that any zoning regulation —or application of such a regulation — based on
considerations of community 'necessity'by Ite terms discrimlnatesagainst new providers." Maj. op. at 724. Indeed, I argue much more simply, and much
more narrowly, that a local agency's fact-finding about "necessity" must respect the stetetorily required definition of what "necessity" is.
Neither the majority nor the district court looked forther than the Board's 'necessity' rationale in holding that substantia) evidence supported the Board's
dedsion as a whole. Because '[a] significant number of community members that opposed the installation Indicated H a t they had adequate wireless
services [fi-om other providers] in their distiict," the district court conduded that It 'need not reach the question of whether there Is substantial evidence
supporting tiie Board's determination that MebvPCS's installation would cause visual blight, or that MetroPCS did not need the antennas for ite own
service." MetroPCS, IffC v. City & County of San Frandsco, 259 F.Supp.2d 1004, 1010-11 & n , 6 [N.D.Cal,2003}, For the reasons discussed above, I
disagree with the majority tiiat the Board's dedslon can rest on that ground alone, even if that ground is supported by substantial evidence. Accordingly, on
remand, I wouid Insb^ctthe district court to consider whether substential evidence supporte,the legally relevant and permissible reasons that the Board
gave for denying MetroPCS's request to constroct vnreless fedllties.
In all other respecte, I concur In the majority's opinion.
Notes:
*
1
The Honorable Richanj D. Qufahy, United States Circuit Judge for the Seventh Omilt, sitting t>y deslgnatton
The relevant provisions of the TCA read as follows;
(7) Piesenratton of local zoning authority
(A) General Authority
Except as provided In this paragraph, nothing in thisdaptershalillmltoraffisdttieautfiontyof a State or local government or Instrumentality thereof over dedslons
tegaiding the placement, constmction, and modlftcatton of personal wlreiess s«vice fedllties.
(B) Umltatlons
(I) The legulatkjn of the placement, constnjctton, and modincation of personal wireless service fedllties by any State or local government or Instnjmentality thereof
(!} shall not unreasonably dlscnmlnate among provldersoffonctionallyequivalent senrices; and
(II) stiall not prohibit or have the effect of prohibiting the provision of personal wireless services
(III) Any decision by a Slate or total government or Instnjmentality thereof to deny a request to place, construct, or modify personal wireless service fedllties siiali be
In writing and supported by substantial evidence contained In a v^tten record.
(Iv) No Stete or local government or Instnjmentality thereof may regulate the placement, constniaion, and modification of personal wireless service fedllties on the
basis of the environmental effects of radio frequency emissions to the extent that such fadlitles comply with the IFeiarai Communkatlons] commlsston's regulations
, concerning sudi emissions.
47 U.S.C § 332{c)t7).
2
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Inddentally, we believe that the Boanl's dedslon would arguably pass muster under any of the aforementioned legal standards. It easily passes the f ^ i t h aituit's
test, underwhidimeiily stamping the application "DENIED* Is suffidentAT jt T Idffe/ess, 155 F,3d at 429. And with regard to the more Stringent test outilned In
Omnlpoint and Its UK the Board's dedslon '[sets] foitti the reasons for the dedsion" and does at least a passable job of'linking its condusions to evidence in the
record.' Omnlpoint, 83 F.Supp.Zd at 309. While the Board's dedslon Is phrased in somewhat general tenns. It does make reference to "the record," reoaunts the
testimony ofTeied during Its hearing on the Issue, articulates Its findings BIMI discusses its oti}ect1ons to many of the spedfic findings of the Planning Commission.
Thus although the dedsion does mtofferfoimal findings of foctand conduslonsof taw as afoil-blownjudldal dedston migtit. It Is not dear that the O/n/i/poMc
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standard demands such rigor.
3
MitmPCS dtesNextel Qimmunicathns of Md-Atlaritic, Inc. v. Town o f VAylamS, 231 F.Supp.2d 396, 406-07 (D.Mass.Z002), for the pro posit ton that local zoning
regulations are not protected to the extent that they violate the TCA. This assertion lefteds a ndsreadlng of wayland. The passage dted by MetroPCS actually
speaks to the antl-proNbltion prong of the TCA, While the TCA is apparently agnostic as to the substantive content of local zoning ordinances, zoning decisions may
lie Invalidated If they unreasonably dlscrfmlnate among providers or prohibit the provlston of wireless services. See discussion of the prohibition and discrimination
issues. Mm.-
4
Partiojtarly atamiing is the general lack of reference t o the Oty Planrring CorrvnlssIon's dedslon toj7ranr tietroPCS \ha CUP Initially. At the least, one certainly
wonders why t i n Planning Cbnimlsston conduded, contrary to the Board's dedsfon, that the MetroPCS site nra5*necessary and desirable* for the community.
Unfortunately the Board did not shed any light on this Issue, and, since at least orte of Its findings Is supported by substarttlal evidence, the TCA provides no basis
for lencdylng such procedural shortcomings. As discussed above, congresskmal Intent to preserve local zoning authority — fiowever constituted — Is dear.
5
Indeed one of the primary purposesof section 332(c)(7) Is to protect the legitimate traditional zoning prerogatives of local governments, TMs seaion of the Act Is
actually entitled "Preseivatlonof local zoning authority* and states as Its baseline prindple that, '[e]xcept as provided In this paragraph, nothing In this diapter shall
limit or affect the authority of a State or local govemrnent.. . over dedslons regarding the placement, construdton, and modification of personal wireless service
fedllties.- 47 U.S.C I 332(C)(7)(A)
G
In Its brief, MetroPCS asserts that the City's community necessity rationale 'constitutes unreasonable discrimination agaln&t new providers and Is antithetical to the
pro-competitive goals of Section 332(c)(7)(B)." In support of this argument, MetroPCS relies o n t U ^ e m PCS IJ Corp. v. Extraterritorial Zoning Authority, 957 F, Supp,
1230, 1237-38 {D.N,H.1997), a n i Sprint Spectrum, L P . v. Town of Easton, 982 F.Supp, 47, 51 (D.Mass. 1997), both of which ruled that local governments may not
deny wireless providers permission to construa fodlitles merely because they believe that existing wireless service Is adequate However, as the district court notes
in Its opinion tielow, 259 F.Supp.2d a l 1012 n. 8, both of these dedslons tumed on the local government's dlsteganl of relevant evidence and improper application of
relevant zoning laws. And while the Oty does little to directly address MetroPCS's bnaader argument that necessity-based zoning dedslons are Inherently
dlscrimlnatoiy against new martet entrants, soeJi an aigoment Is of limited persuasiveness.
As discussed above, the Act spedfically preserves traditionally local zoning authority over.si ting decisions, and It has been consistently held that the TCA does not
Intrude upon the substantive content of local zoning mles. Oyster Bay, 166 F.3d at 494. Inother wonls, ferfrom prohibiting zoning dedslons tiased on redundancy or
comnunlty'necessity,* theTCA itself appears to Iw totally agnostic on this issue. Moreover, a purely aesthetic detennination that a certain neighborhood Is blighted
with too many wireless antennas — which is speddcaily permitted In the prevailing case law and antldpated in the legislative history of tiie TCA — may similariy
disadvantage new maricet entrants who wish to add new fedllties In the nelghboriiood.
As for the case at bar, tiie dalm of discrimination against new providers also rings a bit hollow coming from MetroPCS, since the leconl shows that It has tveen
allowed to construct some 30 sites In Uie d t y of San Frandsco, induding 16 fadlitles under discretionary OJPs. Wiilte this does not necessarily establish that
MetroPCS has been allowed to realize seamless coverage In the dty. It certainly does refute any dalm of discrimination against new provklers as sucA.
More to the point. Congress has already coctsidered the competing Interests of local zoning authorities and wireless providers (both new and old), artd has
constmcted a statutory scheme to acoHnmodate batfK As will be discussed nwre folly below, while the TCA Is agnostic as to tfie substantive content of local
regulations, localities are nonetheless constrained by section 332(c)(7)(B)(I)(I) and (II) of the TCA, which preclude them from unreasonably discriminating against
competing providers or (effectlvdy) prohibiting the provision of wireless services. See dlscusston infia at Section H I , f ^ r t E.
7
The high stakes invohred for both wireless servkx providers and local governments are refleded In the fact that most of the Amicus briefs filed In this case focus on
this Issue
S
It should be noted that there Is a difference between the Interests of local residents - - w h o may prefer fewer provklers to Umlt the number of antennas In the area—
and those of wireless service subscribers who may be frustrated that their particular provkier cannot offer ooverage In a given nelghborhcxxl. Both of these may be
categorized as the'consumer peispeaive,'though they lead to different results, Ouruseof the term'consumer* In the discussion here refers to wireless service
subscribers
9
10
See discussion of MetroPCS's suprenecy and preemption arguments, I n ^ at Sectkin U I , Part E.
The district court correaly notes tfiat the relevant sendee gap must be tnily'slgnlflcant* and 'not merely Individual 'dead spote'within agreatersejMcearea,*259
F.Supp.2if at 1014. Courts applying both versions of tin'significant gap'test appear to agree on this piopositlonSea a.9., second Generat/on Props., 313 F,3dat
631; 360 Communications Co., Z l l F,3d at 87; ]Mltoth, 176 F.3d at 543-44.
11
The distria court also notes that. In tlie Fourth QrcJli,' ' [ a ] community could rationally reJeo the least Intruslw proposal In fevor of a more im nisi ve proposal ttsit
provides better service or that better promotes conTnen:la[ goals of the community,** 259 F,Supp.2d at 1014 (quoUngJfiO Cb/runun/catfons CO,, 211 F,3d at 67), Titis
rule is Inapposite to the case at barslnce the Fourth Circuit, as discussed above, does not reoognlzeelther version of the 'significant gap' test. Instead, It hoMs that
the TCA prohlbite only general or *btantet' bans on wireless ser^ces. Under such a mle, denials of individual siting requests can never run afoul of the TCA, and so
the relative intmslveness of different siting proposals Is iirdevant.
1
47 U.S.C § 332(c)(7){B)(IV) provides:
No State or Icxal government or Instmmentellty thereof may regulate the placement, construction, and modification of personal wlreiess service ^ d u t i e s on the t>asls
of the environmentel effects of radio frecjuency emissions to the extent that such ^ d l l t l e s comply with the Commission's regulations concerning such ennlssions,
2
Pursuant to San Frandsco Planning Code § 303(c)(l}, the Board may consider whethera proposed devekipment 'Is necessary or desirable for, and compatible with,
the neighborhood or community,'
4O0F.3d
non2
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W'h 400 F3d 715 Metropcs Inc v. City and County of SanFrandsco | Open J...
http;//opequrist.org/400/Od/715/metropcs-inc-v-dty-and-county-of-san,
Opetilurist.org - Terms of Use
i--..:
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9tfa Circuit Holds That Wireless Zoning Ordinance Violates §253(aX Ba..
bttp://www.techlawioumal.cora/topstories/2007/20070313.asp
9th Circuit Holds Tliat Wireless Zoning Ordinance Violates § 253(a), But This Creates
No Private Right Of Action Under § 1983
March 13,2007. The U.S. Court of Appeals (9thCir1 issued its opinion [33 pages in PDF] in Sprint v.
County of San Piego. affirming the judgment ofthe District Court that the wireless zoning ordinance in
question is preempted by 47 U.S.C. § 253, but that this violation creates no private ri^t of action for
damages under 18 U.S.C. § 1983.
Sprint Telephony PCS and Pacific Bell Wireless, dba Cingular, provide wireless services. The County ofi
San Diego enacted a zoning ordinance affecting wireless services, ^ ^ c h the opinion refers to as a wireless
telecommunications ordinance, or WTO.
The Court of Appeals offered this summary ofthe ordinance: "A permit applicant must: (1) identify the
geographic area served by the site, list all ofthe apphcant's other sites in the area, and describe why the
site is ndcessaiy to the appUcant*s network; (2) submit a ' ' visual impact analysis'' that describes the
"maximum silhouette, viewshed analysis, color and finish palette and proposed screening," and includes
simulated photographs ofthe site; and (3) create a narrative detailing the site's height, maintenance, noise
emissions, altemative placement in a preferred site (if the site does not fall within one ofthe geographic
areas preferred by the County for wireless facihties), landscaping plan, fire service plan, hazardous
materials use, maintenance personal parking plan (if the site is located in a public right of way), ''a letter
stating the appUcant's willingness to allow other carriers to co-locate on their facilities whenever
technically and economically feasible and aestheticalfy desirable," and the "lease area ofthe proposed
faciHty on the plot plan." .,. The WTO also discusses the general and design regulations appUcable to
wireless faciUties ..," (Parentheses in original.)
Sprint and Cingular filed a complaint in U.S. District Court (SDCaO against the County of San Diego and
its county supervisors alleging that the ordinance is preempted by 47 U.S.C. § 253 and seeking monetary
damages under 18 U.S.C. § 1983.
Notably, this is not an action brought imder 47 U.S.C. §332, which specifically addresses local regulation
of wireless services.
On March 22,2005, the Court issued its opinion [22 pages in PDF] in Rancho Palos Verdes v. Abrams
holding that an individual who brings an action to enforce the limitations on state and local authority to
regulate the location, construction, and modification of wireless communications facihties under 47 U.S.G,
§ 332, cannot also recover damages under 42 U.S.C. § 1983. See also, story titled "Supreme Court Holds |
That Individuals Who Sue Under §332 Cannot Also Recover Damages Under §1983" in TLJ Daily E-Mafl
Alert No. 1,101^ March 23,2005.
The District Court held in the present case that the zoning ordinance is preempted by § 253, but that
violation of § 253 creates no private ri^t of action under § 1983.
Sprint and Cingular appealed the judgment ofthe District Court as to § 1983. The County of San Diego
cross-appealed the judgment ofthe District Court as to § 253.
The Court of Appeals affirmed.
47 U.S.C. 5^53 provides, in part, that "No State or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the abihty of any entity to provide any
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9th Qrcuit Holds That Wireless ZoningOrdinanceMdates § 253(a), Ba..
htlp://www.techl awj oumal. com/topstori es/2007/20070313, asp
interstate or intrastate telecommunications service." However, it also contains several limitations upon the
scope of this prohibition.
18U,S.C. S 1983 provides that "Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjecteii,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any
ri^ts, privfleges, or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress ..."
The Court of Appeals held that "local zoning ordinances regulating the construction and placement of
wireless communications facilities are within the preemptive scope of § 253(a) (removing barriers).
Moreover, the Coimty's WTO is outside the scope of permissible land use regulations because it has the
effect of prohibiting wireless communication services. We thus affirm the decision ofthe district court that
§ 253(a) preempts the WTO as a matter of law." (Parentheses in originaL)
It also held that "§ 253(a) does not create a private right of action enforceable imder § 1983".
This case is Sprint Telephony PCS and Pacific Bell Wireless v. County of San Diego, et al, US. Court of
Appeals for the 9th Circuit, App. Ct. Nos. 05-56076 and 05-56435, appealsfiromthe U.S. District Court '
for the Southern District of California, D.C. No. CV-03-1398-BTM, Judge Barry Ted Moskowitz
presiding. Judge Myron Bright wrote the opinion ofthe Court of Appeals, in which Judges Wallace
Tashima and Carlos Bea joined.
2 of 2
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iEJlVlFD
IN THE U N n E O STATES DISTRICT COURT
FOR TOE EASTERN DISTRICT OF PENNSYLVAÂ
AMERICAN CELLULAR NETWORK
COMPANY, LLC,
CITYPLANi^lNt.COMii/liSSION
ZONING UIVIbiON
requested zoning variances violaitd the TdecommunicaJlons Act of 198[i. 4? U,SC, § 332(c)(7)
("TCA1,
C i v n . ACTION
Presently bcforelhe Court areAmeriom CeUultf's Motion forSiunmaiy Judynenl
PbbiUtr,
(Documcni No. 7, fUcd June 4. 2001), and Motion for Summary Judgment of Derondanu Upper
Dublin Township and Upper Dublin Township Zoning Hearing Board (Document No. 8. fUed
UPPER DUBLIN TOWNSHIP u d
UPPER DUBLng TOWNSHIP ZONING
HEARING BOARD.
NO.01-9M
JulyO. 2000. As memorialized In the Court's May 11,2001. Scheduling Oder, the partlesagrw
'tlutlhocasc could bo resolved bythofU Ing ofamoiionormoUons for summoyJudgmonL*
Defendants.
D U B O I S . J.
For (he leosons slated bi (his Memorandum, Ihe Court grants American CeUiUar'a Motion and
May 20,2002
MPMnRAlMnilM
I-
INTRODDCTinM
Amorican Cellular Nd w r k Company, LLC, d/Wa CIngilar Wiralcn ('American
Cellular"), l$o provider of peraonal wirelesslelocommuntaillons scfvlcea. Thb llUgallon
Involva American Ccllular's efToria to conslnKl m dglUy-fooi monopoto ocll sUo In Ihc Maple
denies the Motion of Upper Dublin Town^lp and Upper Dublin Townslilp Zontag Hearing
Board.
II.
BACKGROUMn
In tilts soolon. ihc Court seta forth a summay of the facts and procedural history
concemlngAmericanCdlular'SBppllcaUonlolhcBoBidforwmlngvariances,
Thesummafyb
dorhflri from Iho record ofUio January 29, 2001, Iwartng before the Boatl ("R."). ihc exhibits
InboduaMJ at that hearing, and the Board's 'Findlngi of Fact. Opinion and Order* (-Opinion*),
Glen section of UpperDuWin Township ('the TownshlpT so 8sio remedy what American
all of which are appended to ehher American CeUular's Motion or defendants* Motion.'
Cellular percel\fes as a signlflcamgap In Us cellular services, Constmclton ofthe cdl dte In the
Addliional faclsaro set forthfaiUIQ Court's analysis ofAnwrican Cellular's suUstaniJve claims.
desired locaaon required American Cellular to applyfor variances ftom certain provisions ofthe
Sen Infta
Township Zanlng OdJnanoe ("Zoning Ordlnanoo"), After a ono^lay hearing dudng whldi
§IVAI,
American CoHutar pttscnicd icsilmony I n support of lis appUcallon, the Tovnislilp Zoning
As a commercial provide of wlrtfess Idephone services. Ametion Cellular conducts
Hearing Boaitl ("the Board") denied Amerhan CeUubr's requestrtl variance! Thwafter,
American CeUular nted Ihe present artion against ilie Board and tha Township (identined
OQlloctWclygs-dcfciidanlsl.alloglriallalUic Board's rclcctlon of American Cdlular's
'ExhlbllsA-llhroughA-lSorcappendedtoAmcricanCollular'sMotion. ExIilbllsB C
D arc appended lo defendants'MoUon.
' '
-2-
regularexaminatlonsoflhestFenglhofitsceUularslgnai,
R.al02, In one sui^ series of
Cellular planned to use a slender rust-cokired pole that wouU blend bito the undeveloped woods
ex andnallons, American Cell ular Idcnlincd the Maple Glen section of Upper Dublin Township
abuUingthcrcaroflhe DlFablo property. R.at25. AmcHotn CeUular was, allcmaitvoly,wllUng
as an area In \ ^ c h Itsslgial was sufFldendy Inadequate so as to prevent its subscribers In diat
tausea"plnetreepole.'' R.at26. The she's antennas at the top of the pole were not to be
arcafromsusuinlnguntnlcrrupledcollulartelciilionocalls.' R.al92-98. Maple Glen Is defined
supported by a trtangular idalfonn, but, rather, wercdodgncd to be flush wltli the pob, R. at 25,
by the Township boundary lines to the west and north. Susqudunnn Road to the south, and
As for llie equipment stielier, American CeUular planned to screen It with a chain-link fence
Dreslienown Rood to the east R,all89-90. TaremedyHsdeflclentcellularseivloelnMaple
which,inlum.wouldbcscreenedbyland3captng, R,at26,
Glen, American Cotlular InvcsUgatod various piopo'lbs bi that area for the conslruclion ofa now
The DlFidib property lh)s in an area <^ Ihe Township zoned "SC." for a 'Shopping
cetlsttD containing antennas for receiving and tnuumittlng signals to lb subscribers, R, at 15-16;
Center''district, R a t 23; Zonbig Ordinance §25S-S.^ Thereisa bulklbtg on (lie property whkh
Ejc.A-I.
houses a tailor sliop and a barber shop. R,Btl6, Although American Ccllular's proposed ceU
On July 24, 2000. American CeUular entered Into a License Agreement, Ex. A-l. widt
site Is a peimtited use in Ihe SC dliitricl under S 255-30,1 of Ihe Ordbumce, which governs
Mario DlFablo allovdng American Cellular to use DlF^lo's [ffoperty at 633 Welsh Road for the
"Icjelltdar communications antennas," lis proposal conOlcted with the Otdlnance's dlmcnskjnal
constmctionofacdtsltc. R.al 16. DlFabki'sptopcrtylslocalQdlntliecammercialCGnlerar
requbcniciits and required a varianciL Spociflcally, Amorican CcHular's planned structures
Maple Qen - the trtangtoof laml sunounded by Welsh Road. Limekiln Pike, and Norristown
extended to wllhlnslxloen feet of tlie teitr boundaryof the DlFablo property. Ex, A-4, and
Roatl, R.at 190; jCfiAlaiBx. A-l 5 (map portraying, inlii£Ua,Maplo Glen section of Upper
violated Ihc Zwilng Ordbiance's requliod forty-foolsctbxit for ccUular communications
Dublin Towndilp}, The License Aêemcnt perraltled Amoican Cellular to constnict behbid the
antennas. ZonliigOrdlnanceS2S5-30,l,D(2)(c), In planning die construction of the ceU site,
one^tofy building on DlFaUo's proper^ a ZZS^quare-fbot compound for shellering radio and
Ametk»n CeUular was aware thai It was not in compliance with the setback requbement: It
cledronk; equipment, and an dîy-foot monopolo. R. aL25-2&; Ex, A-l, Lease Bxlilbli ' B , '
beltovcd. however, Ihal the planned location was tlie most approprtalc means of complying with
American Ccllular's plans for the csU site bicoipoiated design technkjues intended to
'stcaltir the silo and reduce hs visual obuuslveness. R.al25-26. Spccincally, American
another provision ofthe Zoning Ordfaunce. the requbement bi § 255-30.l,B(8) (hat '(alU
wireless communtcatkMis facillllcs sItaU be of sicalili design," R. at 24,50.
In light of the setback requlicnient, on SqHember 13,2000, James R. Rodgeis, on behalf
' A nund>er ofcasesand law review srtldes dealing wiOi Ihe TCA provide detailed
backgniund explanations uftlio mechanics of wbulcsscommuntcallons networks, SPB. n.if..
Mfriri W«i Corp. V. llniivTnwnslilp, 282 F,3d 257,259-60 (3d Cir, 2002); Stephanie E.
NkllaUS. Mnio HrMyli.(ftliftfSlpninranlir^f.-TnWhalP«lrr.tnnwllioTi.|prommiinlmllot.^
Ad Of 1996 Coniftmnlfllo Scamlcn Sctvta.?. 77 Noire Dame L Rov. 641.646-S4 (20021.
of American Cellular, submitted on Appticatkin lo the Board seeking an "hterprctBdon of Stealth
* AU rolovanl provisions of the Township Zoning OrdI nance are set forth at Ex, A-5,
-4-
Provtskms'and avarianoe from die sediackiequbements E x . B a l l . On a section of the pre-
woodedlotabutttngtberearofdieDlFabloproperty, R.at 188, 'Dieemireftrcazonedasa
primed Application reading 'I/Wo bel love thai Ihc Zonbig Board slioukt approve this request
Mobile Homo Dtatrld b OHiwd by Acme Markets. IiL When American Collulir executed dw
because," Rodgers handwnte as foltows:
License Agreement with DlFabio. It believed dut Its planned sUe wouU be In compUancw with
1.
2.
AmericanCdluhrNdvwACorp.d'lACdluIajOno'^b
required by iho FCC to pravkks scrvta: bi lis licensed ana.
The Maple Glen area of Upper DubUn does not have
CellulffiOno service, nor does It roam on any other service
ptovldo-'s system,
Because the property al Issuo contains commercial
improvements, localingihe anlcnnasuppori structure bi
strict compliance widi the ordhiance may bilerfero with die
safe and ehidcnt Internal trafllc drculatton. By placing the
antenna support slmcture as Indicated on llic companion
zonbig drawbigs lo the rear of ihc property In dose
ptoxbni^ to trees, CeUulaiOne hasMihsmmuilv lessened
the vbual Impact from die proposed bistaltatlon,
Ihc 500.foot residential sctbadi rulo because U bcllovod 'diat the Mobile Homo astrict Is
technically not daisined as a naklentlal dbtrialn t)ie...Zonbig Code," R. al 23.
Upon recdpt of Barton's letter, Amcrkon Cellular filed an amendment to Its AppUcaUon
"conteiulllngt Ifiai Iho Director of Code enforomKiii erred when (te dassi/Icd (ho MtS) - Mobile
HomeKstrldasarcskientlaldlslrtc*," E x D , Asiupponlnggroundsfortldsaigumcnl,
Amcrkan Cdlularsiatcd that "Section 255-6 of die Zonbig Codc.,.^dnc])lly idcminosthc
zoning dbtrirts of A, A-I, A-2, B. and C ai "resldaitlal dbtricis.*" but the sectkm "does not
Indude die MHD - Mobile Home District 35 a'resklentlal dbtricL" i L In the event diat die
Ex. B at 2 (en^hasb suppUed}.
In response to the Application, on October 17, 2000. Towndilp Director of Code
Board agreed wliu Barton's conclusion, American Cellular furtlier amended "Its ZoningHearing
Board application to request a variance from Section 255-30.I(B)(l) to authorize a wtivless
Enforcement Richard D.Barton sent a letter to counsel for American Cellular, Ex. A-4, In the
fadlltywlthlnSOorcctofarcstdondaldlslrid,'' JiL
leuer, Barton Infonncd American Cellular dun an "addlUonal variance' wnild be nîulred.
SpeclfkaUy, Barton dted Zoning Ordinance § 255-30, l.B(t), w4dch provkles that a wlivless
Gommuniatkms fadlity Is not pcnnUlcd 'In a rcsklcnilal zoning district or wttliln 500 feet
Ihavaf.' American Ccllular's proposed locallon. Ration wrote, ' b Jess than 500 feel from the
township's MHD Mobile Home Dbtrict which the township considers to be a resldcntlat
On J«ituaiy29,2001, American CeUidarpresenled evidence to ilie Board In support of
(1) its request for a variance from die forty-foot setback requirement; (2) ItsarEunwil diat Barton
incorrccUy klenUflcd Iho Moblte Homo Dlstricl as 'rosldendal'; and (3) In Uio cveni ihc Board
rejected its a^gument as to the dassincadon of the MobUe Home Dbtiict. lb request fora
variance rroin ilic SOO-fooi seHiadc rrom a rcsidoiitiil dlsiricL AddlUonally, AitKrlon CQUUIBT
dislrid." Ex. A-4.
The Mobile Home District referencedtatBarton's letter comprises Ihe umloveloped.
presented evidence in support of l b claim that a 'slgnlflcsnl gap' in cdlutor service exbted In
Maple Ghai - evidence diat a gap existed not only In Am eric an Cdhdar'ascfvice. but also In the
American Cellular lias since cluuiged lis trade name from CcllulaiOnc to Clngular
Wbolcss,
-5-
networks ofall five oilior major cellubr provWcra scrvtelng die Townsldp.
At the concluskui of die hearing, die'slx-membef Board voted unonbnously to njed aU
estabbsbeda'slgnlfkantgiq>' bicelhdarservkre. bat did date Uiat '|l]t wouUl appear Uiat diere
ditcocomponcnu of AmerkanCdlular's AppUcaUon. R.at224-28. llio Board subsequently
Is very ctosc to adequate oovciage of tite Townslilp by some company even by lAmerican
bsued written Fbidlngs of Fact and an Oplnkm. AstodiectassiflcaUonofdieMcAileHDme
CeUular'sl standads." JU^
District, the Board concluded diat because *Ib)oth by common usago and by dennlllon In die
In llio action now before the Court, American Cdhdarargues dial dte Board's dedslons
Zoning OdInaiKs, a mobile home Is a resident*....a dbtrid conlatnbig mobile homes Is a
coiistiluled a vtolaUon ofthe TCA.* bi its first three argumenb, American Cellular argues that
resldenUnl zoning district In die e)«3 of the Board,' Opinion at 5- The Board dien stated that It
none ofdieBoanl'atluee condusions were supported •^"substandal evidence.' Asa fourth
denied both requffilcd variances because (I) dio DlFablo property 'is In fad bdng used for its
arsiment, American Cdlubr asserts duit die Boanl's dedsion had dto offcd of prohlbllbig
zoned purposes widi die existence of two operaUng business and dieb associated parking
ceUular sefvloe by allowing a 'slgdClcant gap" In cellular service to persist bi the Township,
facilities.' and (2) American CeUular's evidence tlial. In some areas of die Township, no more
Before addnssbig American CeUular's ^ d l l c arguments, die Court briefly discusses Uie leff\
dian nbiety percent of ttssubscrtiMfs had "sailsfadoty scnrke,'did not amount lo a hardship.
framework ofthe TCA.
Opinion at 5-6.* The Board dkl not i^dflcallydedde whether American Cellular had
IIL
TELECOMMUNICATIONS ACT OP Iflftfl
TheTCA has been described as an "ovcrhaid oftlic fedetd reffdaUon of oommunlcadons
* The Board's conduskms on American Cellular's requested variances arc ktiyed to
Pennsylvania munldpal plannfaig law, In applying S3 P.S. S 10910.2, the Supreme Court of
Pomsyhnjilahas hdd '(t]herearo essentlaDy four factors' to dotmnlneontitkment to a
variance:
(1) that an unnecessary hardship exbb whkh Is not created by die
party seekbig the varisice and which iscaused by uidque physical
cltcumaanoes of the property for which die variance b sought:
(2) thai a variance Is needed to enable die party's reasonable use of
llio property:
(3) that the variants wlU not allcrthe essential dtarader of the
distrid or neighborhood, or substamlaUy or permanently bnpab die
use or devdopmeot ofthe adjacent pn^Mrtysudi that it is
dotrbnental to the public's wdfare; and
(4) that Ihe variance will affcHd the least Inlrustvosolulkm,
|jirwnv.74mlT..rai.ofAdhr.im«TloflhprtivofPliNlmrok 672 A.2d 286,289 (Pa. 1996),
The Board's re|ectlan of American Cdlutor's requested variances Is based on Itsconcluslon dial
American Cellular md noldicr of Uu> first two prongs- that Is, It did noi (kanonsiiato an
"unncccssaiy hanblUp' and dto property was sUU subjcd to "reasoiuiblo use.'
-7-
companies.- Omntrwlnt Cnnim.mlr«lt»M Ritlt-rt v. Npw.n».nTownshhi. 219 F.3d 240, 242 (3d
Clf. ZOOO) fNnwinwnTownAipl (quotationomitted). In cnacdng dloTCA, C o n ^ e ^ souglii
'to create a pnMsmpetlUve, de-regulatoiy naUonal poUcy framewoHi desljêd 10 rapidly
Boceterae private sector deplctyment of advanced tdeoommuntcatlon and infonnation
technologies and services to aU Americans by qienlng aU tdooommunicatlMS mariuls lo
compdHion." Nfxiel W«i Cnm. v. »ittlvTm..nt.ititn. 282 F.3d 257.264 n.6 (3d Cir. 2002)
(quotbig HJR. Conf. Rep. No. 104-458 al 113 (I99Q, rqumted to 1996 U.S.C.CA.N, 124).
'Count DlofAmericanCdlular'sComplabttabucanabisa "StaleLaw Appeal.*
Because American Cdlulor does not raise any Independent state-bw grounds In support of lb
argimcnts on lite pending cross moiknts for summary Judgment, die Court will llmll Us
considcralton to the federal Issues - that Is, the TCA.
Ahhou^ theTCA 'expressly preserves die iradldonal authorlQr eq|o>'cd bysteie ond local
332(c)(7)®(v),
Bovcmmcnt toreipdateland use and zonlnj;.' APT PlHsfaur|[li Lid, v. Pen;i Tqwwhip. l96P.3d
In lids case, American Cellular raises arguments under boUi of the above UmllaUonsof
469.473 (3d Cir. 1999) CAEI') (dUng 47 VS.C. S 332(c)(7)).' at the same time, It places Umlts
local zoidng audiorfty.' Procedural^. American Cellular arguesthal none of die Board's
on'the ablUty of tocal auiliorttlei to regulate and control die expansion of Idcoimniunkadons
dedstons - rejedbtg American Ccllular's argument dial die Moblb; Home Dblricl b not
tedmokigles* Iqr allowing courts to 'review tdecommunicaUon zoning denials more dosely dian
'resklentbd* and d»n>1ng Its nvo requested variances - were supported by subslandal evidence.
standard zoningdfldstom' f*^wfflttn T^l^Twhfp. 2)fl F . M M ? 4 ? . . 4 1 T M llmls on local zoning
SufcslanilveJy, AmericanCdJidarargues did tfw a3BniJ's«aons"Iawrthoefr«tofprohltrWng
authorltyare botli procedural and subetanllve to nature.
tlw piovbton of personal wireless scivlcos,*
One pfocedural Ibnltation estabUshes die quantum of evidence a local zoning audwrliy
Upon its revtewof Ihe record and dw parties' orgunMUs. the Court condudes dial
must die to support ofa denial wlih icspod to tolecommunlcat tons fadUltcs: 'Any dccbion by a
American Cdlularlias Indeed proven a substanUvo violatton of die TCA - diat dto Board's
State or load {pvemtnent orfaistnimentaUtytluteof to deny a request to place, construct, or
acdons'havetheeffedofpiohlbldngdieprovlslonofpersonalvrtrelessservices.'
modify personal wireless servtoe Eidlhles stiall be bi wrttlogand supported by substantial
will dierefbre not consider American CeUular's substantial evidence ai2um«us,* but. inSead.
ovldoncfioantilnedlnawrittenrocord* 47U.S.C.§332({^(T)(B)(1U). An important substantive
wUl proceed toa disaaston of American Ccllular's •effect of prtdiUrfdntf dalm.
UmllattonbitheTCAcOvetstliequaUtyofwtreless service available InaaoningsuUiority's
IV.
Jurisdklton; "Tlia regdslkKiof dto placement,constnicdon. and modlllcatkin ofpctsonal
wbcleisservice fadltUes byai^State or local government or instrumentaUty dtereor,...dtaU not
prohibltorhavedieeffedofprohlbldngtheprovistonofpersonalwbelessservlces,"
47U.S.C.
S 332(cK7)(B)(l)(Il). Tlic TCA further provides diat any party 'advcrsdy affected' by a local
TheCourt
AMERICAN CKITinAB'5fS;CTrHCT OP W t n H I H m H G - n . A I M
TheTCA'itocsnotdcflnewhaioonsttaitcjpiohlbltlvecffcd,'
tJjBld282F.3dat265,
However, the Third Cbculi. bi a series of recent rulings, has established an analydcal ftamewortc
for evaluating whrther a ceUular provider has demonstrated a vtoladon of die TCA's "effect of
proldbldng" Umltai ion on local zoning authority. That analydcalftamoworit consists ofa two-
zoning authority's aatonsfatvtolaUon of Uiese |»ovlstons 'may, withbi 30 da)s after such actkin
or rilltnc 10 aa, amtmencc an acUon In any court oTcon^tmt JurtsdfcUon.' 47 U.S.C. §
• The Court notes dial diere Is no dbpute that American Cdlularpimrtdes'persona!
wlTDless servkin'or Uiai Ihe proposixl ccU dte al luue falls undt:r Ihc TCA's (Icnidtlon or
•personal wfrelcss sorvtec fadlltte," thus brtngbig this case under the TCA's oovcraac. 47
U,S.C.5332((4(7)(C)(l)-(ll).
* Spedfically. dte TCA stales: "Except as [vovidcd In dib paragraph, noddng hi dils
chapter shall Umllor affect the authorlqr ofa Stale or local govenunent or bistrumentaUty diettof
over dcdstomregardbig dw {daccmDut, oonstruclkui, and modlfkai ton of personal wbdcss
sovlccfacUiUcs.' 47 U,S.C,S 332(c)(7)(A),
-9-
* The Court need not addres both issues because "die subslant bd evidence review
conlemplated by subsecdon 332(c)(7)(B)(lU) b not appUcable to die bsue of whediera state's
denial of an appllcaUon to constroct a personal wlrdcsj savtce facUl^ 'has die effect oT
prohibiting Uu proviston of personal wircles services." AFT. 196 F,3d at 475.
-10-
pronged Inquiry,
Casesln dUs Circuit evaluadng whedier a cdlubr provUer has estabUdted a 'slgnlfkant
First, a cdlular service provider "must sliow that lis fadUiy wlU IIU an cxbllr\g
gap" demonstrate Ihat determining wltcthcra^pbiscrvlcebsigniBcant Involves at leost" two
slynlflrant yap in theablUty of leroote users toKcess the national telephone network." f\VT.
sub-quesUons The first quesdon Is a quaUtaltve one. The Court must ad;: has die cellular
l96F.3dal480(cniphaslsaddcd}. Bocausc.dte''rolevanlgap'bilhoslgitincanlgapbiquliy'isa
provider cslabltslied tluti the qualHyof cclluhtr service tssufllclcnlly poor so as lo rise to die
gap In dw service available to remote usen.' pmvlders must "Indude evidence that die area die
level ofa "slgnirkant" gap? SF^-Ortmlnnlnt rnnrnamlrrilnm Rni,^ v. 7/>nlnp Hwrini BH nf
new faclUtywlU serve b not already served by anodier provider.' U^ The IhbdClreull lias
EasnownTowtLOiln. 169 F, Supp. 2d 258,203-65 (ED. Pa. 2002} Oiort. MJ.) r P a ^ i o w n l
furtlicr explained dial a significant {pp bi wirdess scrvkxs cxisis 'wtteit a remoia user of dwse
(analyzing number of dropped cal Is, bistanccs of noscrvla, and signd Srcngth); Cellular TH.
servkcs is unable either to connect widi the land-based national ldq>hone network, or ID
inabiiahi a txinnodkin capable ofsupponbig a leason^ly uninterrupted oommunlcaUon.'
Celhilff Tel. Co. v. Tonttw Bd. of M\n<mmt oflh.^ Bomi.gh of Ho.H».Km. 107 F.3<) 64. 70
C o . V 7nnlna Rd r>f Arihwtnwnl n f Hnfrinirtnn Part flO F. Supp. 2d 557, 565 (D.N J , 2000)
("HaoillgllllLEatlL') (analy:dng pctccnlago of dmppod calb). The second qucsUon relates to Hie
scope of die gap - dial b . how many users are afreded by ihe gap. or how large an area Is bi the
gap. The Court must ask: has die ceUular provider established thd the puqwrted g ^ to service
(3dCir.I999)(-lIitIitKitt').
Tito second prong of Ihe Uiquliy under die TCA's "effect of [vohlbUfaig* provision
afTecis a las^ enough mmber of users so as toconsUtute a 'sledflcanl' gap? Sen Ho-Ho-Km.
requires a ceUiilar provkier to 'show dial die nwinor bi whkh It proposes to fill tin slgnUlcanl
197 F.3d at 70 n,2 (noUngllial ' b mailers a gnat deoL.whdher die "gap' In service merely
g ^ In sorvtec Is die least imruslve on die vahtcs dial die denial sou^t lo serve.' AEL 196 F.3d
coven asmallraskleRllal cul-de-sac or whether It straddlesa significant commuter highway or
at 480, Toaucceedontldsprangofdielnqulry.dieceUuIarprovlderinuslshow'tltalBgMd
continuter rd twi^*); ss££hs Nidiaus. 77 Nobe Dame L Rev. at 659 (noUng that 'courts liave
faith effort has been made to klentlfy and evaluate less Innuslve ahemaUves, eg,, that the
attempted to dlfferenttale aslgnlflcanl ^ p from a mere dead spot').
provider lias consldcicd less senslUvc sites, altemadve systems designs, alternative tower
de3lgns,placementofantennaeonexbUngstiuctures,etc' IiL
WlUi thotiwve dtscusston of die TCA SDivbig as a backdmp, Iho Court now lums 10 the
merits of American CeUular's 'effed of prohlbitbig'' datan by addressing, to turn, die requbed
Upon Its review of t lie evidence the Court condudes diat dds case presents bodi
qualitatlye and scope questtons. Before discusslngdiosequestkimmorethoroughly.dieCouit
sets forth aU of UK evidence (ffcsenicd by die parUei on the slgtuncani g ^ issue.
1,
SgntOcBid Gap Evklence
tWDprongs, The Court's review of thalclalmtmnnnvfi. S£c^£X. l96F.3dat47S,
A.
"ScsJiOiUlbKia. 197 F.3d at 70 a 2 (Theso may be any number of factors llial a
revtowtog court nay find ll necessary to consider wlum dctcrmbilng witeilicr a dgnlfteanl gap
oxbts...,X
SIGNIFICAm-GAP
-11-
-IZ-
a.
EvMcna pirsenlcd to the Board
To cstablbh die presence of a dgnUlcam gap in cdluivcovciagc In Maple Glen,
American CeUular rdies on the testbnony before die Board of lb radio frequencyenglneer and
manager, Joy Kdller." Ihe most rdevant of Hetller'stesUmoi^ for purposesof American
ceUubtr provider's servkefatMaple Glen, HettkrexplaloedihaaêndrderepitsenU
'rcUable coverage"; a jcUow d r d c represents 'unrcllabk! oovoage"; and a red cbdc reptcicnia
"really bad'coverage. R. at 113."
In his IcsUmony, Hcf Uer further explained the biformailon (o be gleaned from die m ^
Cdhdar's slpiincant gap argument concerns a 'drive test" did he conducted In Mapki Glen on
by quontUyfaig 'unifiUable' ssrvke, YeUow drdes. which rcpresem such "unrdlable' service,
November 6,2000, Hettler expldned dial to condud die 'ddve test," he drove a 'vchkle which
mean that 'appmxlmatety 10 percent ofthe Ume,' acall 'cannot fft ihrough," die call b
has nil of our compdltors' plioncs and our phono feeding a computer, wllli a GPS s ^ t a a lotal^
'bilcrtuplGd,* die coll b "dropped.* or volccson the caU are 'lolally untotelllglble.' H at 113-
automated, whk:h makes call aflercaU, and records the - whedier diecaU went through or not.'
14. A red cfade niDans that a ceU phono user would 'not |be] able to makea call whaboover."
R. al 111-12. Tile drive lest dso examined whdhCr die ^ c d i was 'garbled' and 'records signal
strength." R. 2t 112, In addltton to a phone connected to American Cdlular'ssovtee, Hettler's
drive test Involved phones connected to the services of al! Ave other major service providers
covering dw Towndilp: AT&T Wirdoa. Nextel, Sprint. Verizon, and VolccSueam. IJL,
Aflerconductlng dw drive test, Helllcr produced sbt cumputer-geneiatod maps ofthe
R, at 113.
Hader lesttfled dial his analjsb of die maps led hfan to conclude that all sbt cellular
provldeis have'unreliable servkx" to a half-mUe arelch of Norristown Road near tha Maple
Glencontnierdalcenter. R.aillO. Hcttlcrcxplatnaddiai Itwasparikularlynioanlflgful tofbid
I hb confluence of imrellabic servloe after a test conducted bi November, when dw leaves are'off
M^lo Qcn area, one for each different cdlularscrvlce provider. Exs, A-10, A-t I, A-14,"
tliotrecs." R . a i U 2 . Cdlubrdpuilsaroslrongoratsudia Ume. Hdlh!rtcsdDed.ihan'when
Superimposed on die maps* dbplajs of tlie major roadwi^ runnbig duough M^le d m are
Uie leaves are on dnttees,' R . a l l l 2 . In addltton to presendng evidence concendng the results
smsllclrdesSUedwIdiane of four colors-green, ydbw, red. or black. Each color represents a
of the drive test, American CeU ular Innoduced Healer's testimony and dfKunKntaQT evidence
difforcni lovd of 'rdlaldlli/ oTcdlular service, and, as such, portrajs die rcUabUliyof each
about dally trafllc pallcms on Norrbtown Road to suppotl lb argumcnl that a large number of
cellular users are offeded by die unreUabte savlce in dte half-mlte strdch referenced above, R.
" HtHUcT is qualincd to KSUy on dib subjeo. In 1986. ho obtained a Bacliclor of
Sdencfi degree In dedricd engineering from Pennsylvania State Unhwaity where ho
"specldtzed to communlcatiDn and propagadon and dlglcJ moduladon tectndquis,* R, al 89, and
he has more dion sU years of experience woridng BS a radio frcquencyengbieer bi die wireless
oommunl cattonsbidustiy. R.at80-90.
at 105.127; Ex. A-9.
At the hearing before die Boanl, no rdmUal evidence was presented widi rtspect to
Hdder's tesUmimyas to die rdldjUl^ of service on die rdevant half-mile portion of Norrbtown
" Hddcr produced llircc exIilUb for die sbc piovldcn because each eidiibU contaliislwo
mops.
" HoUler dkl not expldn what a black d r d e represents.
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-14-
Road, Th«Board'3 ftodlngiof fadK-fl«et£dthBundhputedevidence.asltfound: "There b a
strddi of ^proxlmatdyonc-half mile on Norrisiown RoMl where al I six carrier (sld have what
Uie^lIcamregardsBsunreliableserWee," OpInlonatS,
Notwldistandbig the fact dial die Board dkl not Went Uy any factual disputes, die Court
Supptemenlal Memorandum of Low to Owxislilon to Defendants' SupplemonUd Memorandum
or Law (DocumCTt No, 13. Blod Odobcr 22.2001), wlUi an Wadied affWavli of Jay Hdlkr
datedOctoberlS.ZOOl, lndieafQdavlt,Hdderstatesihala-pmpagattonieportisaconiputer
geiioatcd graphic did inusiiWes prodldcd ooverage from a base stadon or cdl site" Holder Od.
wncludcs llial there are two fadual disputes pnsenied In the record; one with resped lo dw
l5.2001,Afr.al17, Although'propagatkmrcponsaregenendlyrdlableandseiveasauserul
qualUadve queidon on die sufBclencyof cdluUr service, and anodier concembtg diesoopo of
tool In radki frequenty c a r e e r i n g to prodfct signal propiQSdon from a cdl site," i i , *lal
die purported gap. Tlicse factual dbputcs were dw subJcd of further dcvotopmcnt ofthe rtxont
propagation report does not have the same level of accuracy or rdlablllty OS an actual drive test."
after die parties fUcd didr summaryjudgment moUons,
llLatia,
b.
Further developmeni of ihe lecotxl befon ddsCotirt
Tlio factual dbpute on the qudltadvefcuuearises from defendants' submbdon ofa
Furt]iei.Hrtder8tffled,-lalnadualdrivettstdiamEasure3SlanolstrengthUkedteone
Hurt 1 conducted In die Mapte Glen scdlon Is mora scnslilvo, mwo njllablc, and Is more accurate
thanacoiiûtergenerdedpropÛonpredkttontooL" l i
Inllôfddsview.'ltlhereis
Supplemental Memorandum of Law (Document No. 11.filedSeptember 24.2001) wldi dtadied
nothing to the propagadon report' lo change Hetder's optokm 'concernfaie dw aOual, measured
affHavU Nrfilch ddcndanis assert shows that at least one cdlubr provider. Sprint, has rdlable
signal sirongth for Sprtm In the Maple Cten soaton-.,That Is. for a halfmllo section of
cellular s w k e bl the Maple Glen area To support Uib concUskm. defendanb pnaenled a
Norrtstown Road. Sprint's signal Is loo weak to aUow its subsolbers die abUlty to cany a rdldito
"propaôn report" prepared by Sprint which dbplojsd Sprint's.'predfcied signal strwigdi' in
wlrelosstdcphonocaU." Iil,at19,
various parts of Montgomeiy County, The prapagatkin report Usts t w dltrerent cdegories: one.
Uecdnod by green cdorfng, lo show where Sprbit predicted that fb sIgnd would be recdved to
buiUbigs, and the odtcr.kteniUlcd by blue coloring, to show sUglilly weaker signals wliCTo^nl
predicted diat die s l ^ l www not be recdved to buddings, bul diat It wmdd be recdved to cars.
On Uic pippagadon report, UK oiilroareaor Maplo Glen Iscovcnsl by gmsi coloring meaning
didSpcfail pmlkted lb signal would be strong enoughttirouglwwtMaple Glen 10 be recdved in
Tundng to the factual dispute ondiescopequesUon.thaidi5puieBrtse5 from d» Court's
own review of die reconl. AtdiehearingbeforedieBoanl.muchofIfcWer'sIesdniony focused
on the puiportcdly "unrdlable* service on a Italf-mlte strdch of Notrlstown Road. In support of
thh testimony. American CeUular ptesented Exhibit A-9. a '1999 PENNDOT Anmalliod
Avcnigj ftiily Tremc" report, wWcli Wcnlincsilwrcforcnoal liair-miic acaion ofNorrisowti
Road as extending from Its biteis^lon widi Lbnekfln PU(e m a westerly direction t o a point
bulUbigs.
Immedbtdy cast of Its tmenecdon wUh BuUer Pike. Healer's testbnony Is falrtyfaucrpietcdto
In response to defendants' addlUond evidence. American Cellular submitted a
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statollidaUslxcdlularprovldciswIioso service ho losiodliave"unrd table'cellular service on
-16-
die cndre hdf-mlle stmdi of Norristown Roal R. at 119.
Tlw Court's review of Hetder's maps, however, reveals that, for at leas) three providers.
Nextel Sprint, and VokxSiream, dieydkiw dictes representing 'unreUable' service oppear on
onlya smoll part ofthe rdevant haU'-mlle sccdon of Norristown Road - tiic part Immedlddy
westirfLlmekitoPUie- which represents, to die Court's esdmadon,otie-dghdi ofa mile. .Soi
Ex,A-IO (Sprint and VoiceStream); Ex. A-UOêxtd), Theremabiderofdiehalf-mihsecUon
of Norristown Road for each of dieso Uueo proviitcn b covered Willi ^ o i drdes. raprtscndng
'reUablo' service.
Upon flodngdicse fadualdbpulesand tlio fad llua the Court's May II, 2001. SdieilulIng
Onlo- dkl not provide a procedure for resolving ihcm. the Court conduded a telephone
conferencowldicounsd for dte parties. Asansuitofdiatldephone conference, the Court
bsued Its April 22,2002. Order embodying die parUcs' agreement that the Court should resolve
ceUubr service Isnot Umhed to the hatf-odlo sedton of Nonistown Road, but, nlher, did agap
oxbts dvoughoul Maple Glen. As support for dils argument. American Cellular relics on
Hetder'sslatemcfttthd:
Wicn I testUlcd before on Januaty 29,2001,1 conccniraied rny
testimony on dw ono-hdf mUe sccdon of Norristown Rood
bdwccn Butler PlkeandUmcklbt Pike, h andydng die drive test
data for aU six tkensed carriers Ulustmled on ExhUiUs A-IO, A-l 1
and A-14,.,It Isctear Ihd aU dx carriers hove gaps In coveiajp for a
dbtaiKO of opproxlroaldy ono-half mile atong oilier si teds In
MaploGlcn. Forexamiric, AT&T Wreloss has poor"'coverage
exiendbig more Oian one-hdf mile akmg Nonristown Road, Wdsh
Road, and Llmddbi Pike, Cbigdar Wireless has poor coverage for
mofethanone-hdfmilcatongUmddlnPike. V^zonhospoor
oovciage for a cme-lidf mile socdon of Norrbtown Rood and along
LbnckUn Pike and Tennis Avenue. Ncxid haspoor coverage
atong Limekiln Pike. Sprint has unrdl^le coverage for more dian
one-hdf mile dor% Butler Pike and along Norristown Road east of
Its bucrsectlon whh LbnekUn Pike. VoiceStream has unreUable
and poor coverage along limekiln Pike for a diaance of
approxbnaiGly one-half mllesoudt of Norristown Road.
die aforementioned fact dbputesbtdeckUng the mottons for summaiyJudfTnent. AddldonaDy,
Hddcr ^ 1 2 5 , 2 0 0 2 , AIT. d 110. Ddendants. In dieb responsive submission, do not challenge
(1)0Court granted die pardeslcovetosubmitaddlllondovldeiiceandsupplcmcnid memoranda
these factual assortlotts, bul. insload, argue dial dw purportedly unrelteblo service in Ml^)k> Glen
addressbig the factual disputes,
does not rise to the level ofa 'significant* g^f. The Court nlleson the record as supfrientented
American CeUubr subml^d a supplemental memorandum (Document No. 15. fUed
April 26.2002) and attaclicd an addldond affklavlt by Jay Hddcr dated April 25,2002,
addressbig only the factual dbpute wldi respect to the scope ofthe purported f^ bt ceUuUr
3crvk:& In dial subndsskm. American CcUular provided an altcmaUvo argument" tliat the g?f In
" American CeUular abo provided further argumcnl as to why the hdf-mlle portion of
Nonistown Road consltuted a slgnlfkanl gap and a second altemaUvc argument th^ actual
signal strengdi Is weaker dian diat portrayed on tlw nupspioduoed before the Board. Because,
asdbcusscd below, j u J l l M S [V,A,2,b., dw Court agrees with American Cellular's argumcnl
concerning Iho gap In servtoe to die endrciy of Maple Qeit, dw Court docs not address dtese two
-17-
In Its detennindkHi as to which party b entldcd lo Judgment
2.
Legal Analysb
As stded above, the Court's slgtdflcant gap analysis consbb of two questtons: a
qualltallvo biquby and a scope Inquiry.
oddUional arguments
" Hctdcr stales did 'poor* coverage Is rapresenlcd by the red cirdcs appearing on dto
maps produced asa result of the drive tcsL Hctdcr April 25.2002. AfT. at 110.
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a.
QuaUlatlveloquliy
Hettlertosdfkidihd aU sbc scrvkc provklcn cxperknced "unreliable" service In die
rdevantareaanddeflned "unreliable" as bKflcaUnga ten-percent cdlfallureraie. ThequttUon
dte Court musi ask, dien. Is wltdhcr a len-pcrecnt failure rate b SMrfldcnily poor servkc to
.oonsttmieaslgnificadgifi.
Haninytnn PaA K the seoond case bivolvfaig a slmUar andysb. In diat case, where
Cclhilar Telephone Co, d/b/a AT&T Wlrebss sought zonbig aîroval for a cellular ^to In die
boiougbofHaiTlnôn Park, testimony esIabUshed dial "five to seven percent of the calb placed
Indiboroaaratosl," Hartlnipon Vnk. flOF. .Siipp. Jri ai Rfiji Thecourt rqjededthodefendant
Zonbig Board'sargumem dial dds evktencedldnotesiabUshaslgnincantgq), 14. Rdhcr.
Two cases to dds Circuit have involved slndlar analyses. The mora retxnt of the two b
" Iglhren 'theTelecommunlcaitons A a ' s twbigoaU of encouraging rapW deptoyment of new
^lOlfiUll. a caso dcddcd by Magbtrdo Judge Hart of thb Court, In Out case, Judg) Han
Icdmologlcs and provtdbtg ndtonwlde seemlos ccUular service to tlw publk:," dte court
considered dw export report of Paul Dugan, a radio frequencyenglneer for the ccUubx' provider.
concluded "Uiat a loss of five to seven percent b a signlflcamgap.' Id. fguoUng Hn-Htvt^m IB7
OranlpoinL £asuiMa. 169F.Supp.2dd263-65, Inadrivcicstslmllartodidoondudodby
F,3dal 691:seenliflkLfcfMli.<i.';maM «a<BnrM,H„ V«ri. v IWn..yh nrF»i,l «^» 704 A2d
HettkrinddscascbutondilTerent roadways. Dugan testeddghtservfceprovMors. IjLat264.
1271.1263 (N,J. 1998)) (notingdial rdldile cdlular service provkles 'beneOts to 'dwgenaal
IndietesCappnudmatdyelghtycaUsweremadeoneochtdephone, liLdZ65. Lookbigtothe
ptdilk^ commercial entities, as well as fire, police, and odwr rescue personnd'").
mimbcr of "dropped coUs* and 'Instances where dtcrcuos no service." iho court staled Dunn's
Easilowri and Hoitlnglnn P p t t pmvlrti. mrf«l giAl.yn«u ^ ^ ^ . , r ^ ^ ] j ^ y ^ ^ i ^ [ ( ^ [ Q[-
test showed dial out of dghty c d b made on Omtilpolnts servioo, diere were eleven dropped calls
unreliability b necessary to edablbli a signincant gip. Aldiough there surety can be no horxl-
andlhlrteeninslanccsofnoscrvlce-oddflypcrcemfeilureratc, J i hsharpcontrasLcrfthc
and-fsst percentage of fhUcd calb to dofbwa dgnincanl gap. die Couri condudes did a line of
560 caUs made wUli die other seven providers'phones, only deven caUs, or 1,96% of all calls on
demarcadon foUtng somewhere between 1.96% andfive-lo-sevenpercent Is a reasonable
dte other providers' phones, experienced service problems. JiL Thb eddeow, the court
Interpretalkm of die TCA. In dils case. Hetder testified diat he defined "unreUoble" seivk» «
concluded, showed "Ihd only one provkier, Ornn^bU, was Inci^bki of providing rdlable
service rcsulttog In ten percent Idlura - dial b , one o d of every ten c d b "cannot go duough.*
service to lb customcis.' J ± Because the slgnlfkanl g ^ btqutry tequbes a showbtg thd all
are 'intenvpied," are 'dropped.' or have "totally unlntdliglWe" sound quaUly R. at 113-14.
proYldmoxperiaicc a gap In servlo!, Iho court Itdd thai Oim tpolnt'sclaiiti uiKlcr Iho TCA's
Theicn-pcrciaiiracorunnaiaMUiylStfdlbevoiidaicllncofdtmarcaitondiifiiigibvHatrtnfnn
"eHed of prohlbttbig* provision faflal, |jL (ddng AEX '36 F,3d d 480),"
EfiCLa'id.gQQjQm, In sum. the Court condudes thai.assumlninha accural of Hetder's drive
'* In EiUUmil. die court. In addresstog dw slgnlfkam gap tsa[ys\i. Uidicd its qualltathe
toqubyioUw"abllltyorremolo userstoocccsstlionatlondtdcphoiionetwork.'" EBaiDMUl. 189
F,&ipp.2dat263(quollngA£L l9SF.3dal4SO}. Thb Court oonsldets both dial qucsdon and
lite quesdon wliodicr users are able 'to malntabi a connecdoii capable afsupportinga roasonably
ujdnlcrruplndcommunlcadon." Ho-Hft-Kip. 197F.3dd70.
-19-
-20-
test, American Cellular's evklence of a ten-percenl rate of unreliability saUês Ihequallladve
gap cases because of dw unique not ure of ceUular service: * UdOie a udllly such as electricd
component of dw significant g ^ Inquiry.
power, cdlular service Is used In iransU, so agap diat covers a wcll-lrmdod toad couhl affect
The Court undeiscores dw word 'assuming,* because, as described above, the partka'
supplomontd momorenda addressbig Sprtot's propagaUott rqxiri, glvo rise lo a fad qucsdon
large numben of tiavders-and Ihe people who are trying to commurdcate with them,' LL
Much of ihaieibnony before dw Board and much of dw argument In itwfUbigs before
reganlbig Hettlcr's cotidustons. The Court'sdecbton of this fact quesUon rests on a credlbUlty
thb Court addnsses the quesdon of wtwdicr Anwrican Cdlular has shown a slgttUlcant gap to a
ddemdnaUon as to whkh exhUilts - Hdtler's drivc-tesi-gcnerated maps or Sprid's propagiUon
half-mile sectton of Norrbtown Road. The Court rejects American CeUular's argument to thb
report - more aocuraidy refiect dw quaUiy of cellular scrvkt to Maple Glen.,
r o ^ d . The maps produced as a result of Hdtler's drive lest sliowdut llircc provkkrs Itavo
In resolving dds quesdon, dw Couri finds most peisuaslvo Hetder's statement that ' | a |
-roUableservlceonnearlydlofdw half-mile secdonof Norristown Road. Because dieThUd
propagation report docs not Itavo dw same Icvd of accuracy or idlobtUty asan actud drive lost.'
Circuit bos adopted w4uit mi^ be called a common denominator approach - andjsb of die gap b
Hdller Od. 15,2001, Aff, at 16, Because Hdder's leporb are based on en^lrical tesdng, and
t led to die servtcc provider wldi the best service bt die purported gap - Uw gap on Norrbtown
because dw propagatkin report b based only ona mere predlctkm, Ihe Court finds Ihd HdUer's
Road, for purposesof theTCA, roust be viewed as extending only one-elghdt ofa mile on
reports sliowbig that d l six ccU ular service providers Itad unrdlable service to Mapio Glen
Norrbtown Road. Notwldisiafldlng American Cdhilar's ar^menis as to dw hlî level of trefllc
sccurdely reflect dw adud idiablUtyof ceUular service in Ma|rie Glen.
on llth one-dghdi-of-a-mUe scdlon of Norristown Road, dw Court concludes dwt it b not
Tlw Court condudes that Anwrkan CeUular liaseSdiUshed, qudllaUvoly, asigidflcant
gapincdhdorservtoetoMapleGleii, Next, du Court addresses die questton whdhetUw
slgnlficam - U covers loo small an area and affects too few people.
TIds conduston does not, however, end die mdler, Radier. Ihc Court fhids meritortous
i]ualltadve gap to ceUular service affects a large c n o u ^ number of usees or get^^caphlcd area to
American Cdlular's argument, supported b/Hettler'saffldavlt. diat diere h unrdlable ceUular
oonstUdo a significant gap.
service ihrouîout dw cnilre Maple Glen are^. and thd the scope of Ihb unrdldllc service
b.
renders t h e g ^ "dgnlficanL" tmportandy. It b undisputed did American Cdhdar's proposed
Scope Inquiry
The toqulty as to dw scope of dw ^ p b derived from dte TIdrd Clroill's dodslon In Uo:
Ho-Kiw. where Ihe oourt stated did 'It ntaOeisa {pod deaL..whdlwr the 'gap' to service merdy
coversa small resklenilal cul-de-sac or whether It straddles a sl^ficant commuter Id^way or
commuter railway,' Hft-Ho-KiB, 197 F,3d at 70 n.2. Suchanlnquliy bbnportanl toslgiiUIcani
-21-
lower on dw DlFablo prc^xsiy will remcdyihb problem by provkUngrollablocdlularscrvlce to
aUofMipleClcn. Seg Ex.A-l3fportrBytiigcov«agfl of proposed cdlular s l t d : R d 133.
In odopUng American Cdltdar's argument placing Ihc focus of dw significant gap
aitdysb on dw ondroty of Maple Glen, die Court notes titat American CeUular's argument is a
-22-
novd one, as the Third Circuit has not stated bow tlghdy the 'area' covered by a g/^ shocdd be
vlewed as s b i ^ roadways, but, tadier, must be viewed as dw enUrety of Maple Q e a
defined In AEL dwTWrdCircullhekl thd "(llhe provider's showing on Isignlflcant gap) wiD
The Court draws further support for dilsconduston fnm American Cdlular's
ihmha\etoirKiatiB tvideimthaixhamsi^tiew&ciiaywlilsavelsttoC dpemfysecvedby
pteseacadonsFleSiiiio^tbat. datingoaeyear, its usersaioaemade4,60&ctH phaaacaUs tatbe
anollter provider.' AEL 196 F,3d al 480 (entfdiasb added). Iho record before the Court shows
Township's 911 emcrgcncyservlce. R,atl27, AlUiouîthb testbnony does not show
did d l sbt providers tested by Hddcr dooriy have someservlce bi Maple Gkn. bi light of thb
condusbrely how many 011 c d b were made from Maple Gkn, Ihe Court draws an Inference
fact, It might be argued, foUowbig A£X ihd Amertcan Cellular cannot estabUsh a significant
thai, because Maple Glen comprises approxtouldylhlrty-dueepereent of tlw geogr^)hlc area of
gap. For oxanqite, because Sprint and Verizon are Uw only provklers to liave unrdlable service
Upper Diditln Townsldp, R. d 190, and because users of dw other five provkkrs' ccUular service
on Tennb Avenue, S££ Ex, A-10 ( ^ n t ) ; Ex. A-l 1 (Verizon), whereas dw other four provklers
undoubtedly ploceOl 1 caUs on thdr odldar tdepbonos, the number of ceUubir 911 cdls
have rdlaUs servk» on Tennis Avenue, focusbig soldy on Tennis Avenue would lead to the
origlndtng on Maph; Glen roadways b a larg: one. There b thusa weighty publlc-safdy Interest
conclusion thd there Is no significant gap there;
In fbcuslng dw dgniflcanlgap andysb on die Nidtety of MiÎe Qen.
The Court condudes, however, dial fooisbig on only one roadway Impropcriy narrows
Given iheCourt's adoption of dds analysis, and given Hetder's credUde offidavb
thescope of die signincant gap and>sb. Ftodhig no sigtificani gap In Maple Glen soldy on the
statement tliat all six provldos have unrdlabto a>fvko d some pobit In Mapki Qcn. Iho Court
ground dial each provkier has atme rdlable service Own dbreganb the fad, conduslvdy
condudes Hid Amertoan CeQulv hassdbfled lb burden of proving did the scxipo of dw gap bi
esubUsltcd In Itw record," ilial aU six pmvldcts dso ItavetUUfiUaltUlservice on extended - mora
cdlular service Is sufficiently broad to constitute a significant gqi.
dianGne4udfmlle-stretchesofvatlou3he3vlljtramckedrDadsthrou^x>utMaple Gtea The
B.
net efiectof the unreUable service paltern In M ^ e Glen is that dl cdlular subscribers driving
In evaluating American CeUular's argument that the DlFablo site b the leaa bunuive
LEAST INTRUSIVE ALTERNATIVE
dirou^Ms^leCkm. regardless of which service provider dicy use, wflL at somcpolnl.
optlon.lhcCourtmustcoiisklcr tlw values diat the Board sooght to serve In denying American
experience unrdlable service. Given the CongresstondpoUcy underlying the TCA to provide
CeUular's ^plkaUon. APT. 196 F.3d 460. The Board's Oplnkm, however, does not stale any
'naUonwldc scamlcu celhdar sorvkn to die pubUc," Hn-Hn-Km. 197 F.3d at 69, Uio Court
ammiaUvc reasons for denying dte Appl lea don: radicr, U IsIlmUcd (0 anaiulysb of Hitat die
concludes tliot. in tids case, die "area" referred to by theThtad Cbcult inAiT. must not be
Board conduded was Amerlcsn Cdlular's faUure to estabUsh a ri^ to variances under state and
local bw,
" T h e Couri agrees to all reacts widi Hdder's affidavit statement quoted al length
above. ScesupniSIV.AlJx
-23-
Neverdidcss, the record of dw proceedings before dw Board makescloar dial die
-24-
prevaUlng objectton to pladng a new ccUular site In the Maple Gloi community was based on
to die height of sonw of dw plrw trees to the undevetoped, wooded area abutting Ihe DlFabto
aeslhcUcs, Ai dw condusion of dw hearbig, Imnwdlatdy before dw Board voted lo rcjed the
property. R.al50-5I. FbuUy,therewouMbcnodangcrofdaniagclopropertybithecxtrcmoly
AppUcdton,sevenresldentsofdwTawnshlpaddresseddie Board. R. 214-23. The residents'
unlUidyeventthdIhepolesfaouldfdL R.at82-S6.
stdements unanimously rdlca an objection to dw aesUidicoblnislvencss of Uw proposed site.
Dcfondants' solo argument on Uib prong r)f Amtrican CeUular's "dfod of prahlbldng*
For example, Carol Benet a resident of die Township and Vice Prosklent of dw Maple Glen
ctdm b diat Anwrtcan Cdlular has not undertaken a good fddi effort to InvesUgate Icssscnsti tve
VUtage Assoctdton, expldned that the AssodaUon had worked wldi land planners and residents
sites. Specifically, defendants argue thd other sites were avdldile bodi wtthbi the Township and
10'create a vlQogeaunospIwre'In Maple Glen, R,ai 215-16. The biput thd Bend had received
111 nd^dioring Horsham Township, and did llie owners of diosc sties were willing to iwgolbie
from other resklents showed no support for an '80-fooi tree lookbig device in dw mkldle of our
agiecments wldi American Cdlular, The Court finds, however, diat dw tcsdmony of James
vllUgD.* R . d 2 l 6 . NotwbhslaiidbigdicMaploGkincommunltyresldcnls'aestltcUcconccnis,
Rodgers, the site dcvdopmciit consull^t to Amerkan Cellular vAm fikd tlw AppUcattonwldi
dte Court concUides that American CeUular hassdbfled l b l e ^ l duly lo adopt the least tnlrusive
the Board on American CeUular's behalf, undermines defendants' argument.
plan ttx Itsiww ceUuiv she,
Rodgsrs' teidmmiy demonslreles that American CeUular's search for a die thd woukl
Wuii rasped to American Cdlular's pursuit ofdimadvo i^lcms designs and tower
adoqoaidy address the gap In cdlular coverage In Maple Glen wasan exhaust Iva one. fri an
d e s ^ , the undbpuied evidence shows a concerted effort lo construd a safe cdl site wUh
atlompt to ovoid constructtog a new site, Amraicon CellulartovestIgated pladng antennas on an
nitolmd obtnislvcnoss, 1\K DlFablo property is In a dbtrid zoned for commcrcld use, and fa
oxbUngstmctuic, sudi as a water tower on Fort Washln0on Avenue In dw Township. R, at 20-
does not borderanyknv-denshyresldendddlstrkts. R , d 2 3 ; Ex, A-IS, Thepittposedsttels
21, A U h o u ^ ^ n t presently hasacdlslteon Ihd wderlower.lhdsUe was placed dwre before
behind a one-slory comnwrdd bulldbig whkh will provkle a degree of screening, R, at 50.
the Township amended its ZonlngOrdlnance to requfae a SOO-foot buffer befween cdl shesand
American CcUular expressed ncxlblllly to how U would design the monoptrie, propostog use of
rcsidenUd nel^dxirhoods. J(L The amendment had Uw prospective cffcd of prcvemlng ceUular
ddier a rust-colored pole w a ~pbw tree" pole so as lo blend Into the undeveloped, wooded
service i»ovideis from pladng newcdl sites on die water tower thus preventtog Anwtcan
background, R.d2S-26. TtwanlcnnasonlhcnKmopolcwauldboIlushwtdidiopolcas
CoUuldfrtsnusingit. Addltkindly.AmcrkanCclIularaqilomlcoiuirwUnga ncwsliefn
opposed to resting on a more vidble triangular slnidure, R.at 25, Tlw pole's hciglit would be
Horsham Township, but found zoningresblctionsfaiOwl township made such an option
dîly feet - dw absolute minimum necessary far Amerkan Cdlular's purposes - wtdcb Is much
unfeaslbk, R,Bt3S, AsforconstnidknofanewdtelnlîperDublbiTownship.Amerkan
tower than thostandaid ISO-loot or 160-foolpdc, R , d S l , 135-30. Tliblieigltl would be dose
Collularcxpkired several other dies ACotiuardl'sgrocoiystorehadnobUcrcsllncnlcrbigfaito
-25-
-26-
a leasing agreement with Amerkan Cdhdar, Rd38-39. The same was true for a deU owner.
Unherslty's unwllUngness to negotiate wldi American CeUular and the Board's Intcîrdatton of
R. d 39, A gplf course. Arixir Meadow Farms, expressed an intcnst to aUowbig construction of
the SOO-Toot bufict zotw to iqiply lo dw Mdiilc Home Dbtrid. effedhrcly elbntoatcd eveiy
the slw on Its property, but, upon tovestlgatlon, found that a deed restriction prevcntedsuch
potentidccU dte faiMapkCIen,
constmction, R,at39,
In sum, defendants provide no ovldcnoe to support ofdiek bare assorlton that less
Askle from Uw DlFablo property, only two propertyowners, die owner ofa vacani
Intrusive sites wen available, Tlw Court Ciwefore condudes dial, bi addition to dUlgently
property next to Ow DlFablo property, and the owner ofa Dunkto' Donuts, exprased an totettsi
pursutaig ahernaUve designs lo limit the olrirustvenessof the ceU she, American CeUular sdbfiod
todlowlngoonsbudiiHiofdwdtoonthdrpropertks,
lis kgal duty to sdcd Ihc least Intrushro property to locde Us cdl site,
R,at39. HadAmorkanCdlularclioscn
die vacant property next to dw DlFablo property, die same concems rdscd by community
Inrcachbiglhbconduslon,dwCourtbenfDrebiBdwaiandatcoftheTCA.
TheCourt
members as lotho visual dHrusbranessof the sUc woukl lisvciqipUcd. AddldonaUy. Amerkan
does not pass Judgment on dw IcghlmaW concerns of Maple Glen residents dial a cdl site In dw
Cd hilar found diat a ceUuba- site woukl bea more appropriate fit iddi zonbig reguladons at die
Maple Glen commeFCtal center will ddiad Aom die community's aesthetic viskm. By expcessty
DlFid)k piopeity dwn at the Dunkbi' Donuts slie, IfL
preserving toed zonfaig authority, while at the same time" UmUlng Uw ablUty of local authorities
Of additional ImporUtico to tlw Court'sandysb b the record evidence dial dw Boad's
lo regulate and control Uw oxponston of tdocommunkaUons technologies." Newinwn Townslilp.
InterpreiaUon of die Mobile Home Dlstrkt as a "resldenUd" dbtrid woukl ellmbide nearly every
219 F.3d at 243, Congress, In enacting theTCA, strode a balance between Ihe bitcresb of
possible dtcmatlve for American Cdlular's proposed oeUular site. At die lieari:^ before dw
communities and d» biwrcsts of wlidessscrvkcpcovldersanddidr subscribers, bt thb case.
Boanl. American Cdlular Introduced a 'Site EvduaUon' - a mapof the TowitsMp portraying d l
Ihe evidence diows did dw Township's efforts to tûlate the placement of Amerkan CeUular's
tocations where aceU site woukl be permlssdble under the ZonlngOrdlnance. Ex. A-15: R at
proposed cell dte has upset diat bdance. TheCoufl'sOider provides dw remedy to whkh. to the
1 6 6 ^ . Takbig into account tlw rcqulnd SOO-foot buffer zona from dl residcntbl dbtricis,
Judgment of Congress, American Cdlular IslcîycnUticd.'*
tochiding the MobUe Home Dbtrid, the She Evahidkm shows only one site In Maple Glen
where a cdl sBc could be kxatod-ihc Temple University Ambler campus. R.«i 190-91; Ex.AIS. As James Rodgeis testified. American Celhdar spoke wldt appro[»1de personnel d the
Temple campus about procuring a lease for a ceU site, but Temple was not toterestcd In
ncgotlaltogsudtalcase. R.at20, Ttius.acood)lnaUonoffadois,lndudlngTcmpk)
" As a coda, dw Court notes thd otw c^dw reasons died by dw Board for denying
Amerkan CeUular's application was 'thd the very cxbtence of thlsaUeged gap bi coveage
occurred only because smaUer hand-lidd cell phones are bdng sold to lb customers' and tltd
'Mhcnorigtoal larger unbs were used Uwrewasno hole bicovcnec" Oplnkm at 6 (dting R.ai
07), Thb conclusion was a response to Anwrican CeUular's presentation of evidence thd
advandngtodinokgyhasaUoueddwdevdupmentoFsniaUer cdl phones which appeal to
wtaefassusets. R.at 121-22.
Tlw Couri rejects dw Board's roasonbig as abadi for denying American Cdhdar's
-27-
-28-
V.
CONCLUSION AND REMEDY
Hearing Board for furdier proceedings consbtoitwltii dds Menurandum. SeeWtU^^tnwr^
For dw Ibwgobig reasons, American Cellular has proven tlid tlw Board's dccbion had
T^ftvnshlp- 43 F, Supp. 2d at 543.
die 'effed of prohibiting Uw proviston of persond wireless s e r v k s . ' 47 U.SC. S
An appropriate order foUoiM.
332((j(7) (B)(1) (Of), Accordingly, die Court pants American Ccllular's M>lkm for Summary
Judgment, and denio dw Motion for Summary Judgmdtl of Defendants Upper DubUn Township
and Upper DubUn township Zoning Hearing Board,
As for rdlef, dl h o i ^ dw TCA docs not specify a remedy for vktaUons of dw cdlular
sllb^ subsedlan,..,lhe majority of distrid courts that have heard dwse cases have hoM thd the
îptoprialc remedy Is injunctive rdlef In the form crf'an order to issue the rdevant perudts,"
Cellular Tel. Co. v. Tn^wi of Owti-r tW. 166 F.3d 490.497 (2d C t . 1999) (collectingcaseij; £ t t
d « Br>hm^ V. Plnnntn^ Brt of Town of Wdtfi^t. 236 F.3d 117, 120-21 (1st Ct. 2001): SUdm
Sof^nm. I,P. V, Znnlno Hewtno Hri «f WfflKtnwnTnwmhfa 43 F. Supp. 2d 534, 543 (E.D.
Po. 1099). Intillscase, howeva, even had the Board granted American CeUular's AppIkoUon,
§ 255-dO.l.C of the Zoning Ordinance would hove rcqutod Amodcan Cdlular to seek
approval of acondldond use. TherecorddononslidestitdAnwrkanCeUularlspreparedla
proceed whh such an Ûcattan. R. at 23-24.
Accordlngly.dwCourtwlU grant InJundhrereUcf as to American Ccllular's ApplkaUon
for two dlmenstonal variances, and remand the case to the Mppet DubUn Township Zonbig
rcqucacd variances. By dting Ihc dcctoased sbc of cellular telephones asa reason to deny
American Cellular's applicdkm for zoning variances, the Board lioo essenlidly blamed
advanctog leckmilogy for cousbig tlw service gap bt Maple Qen, Sudi reasoning oontravtnes
Ihc poUcy ipab underlying the TCA: to promote therapMaccel^dton of" private sediK'
dcplojnienl of advanced Idecomnninlcattonand Informdion icclinotogles and servkcs to d l
Americans," HcsJfiL 282 F.3d al 265 n,0 (quoUdon omUlcd).
-2^
-30-
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(b)
avarlancefromdwsetbadcieqdremciusofUpperDubUnTownihlpZonlngX
OrdtoanceS25S-30.1.B(l) (theSOO-footrequbcmenO;and
AMERICAN CELLULAR NETW<»tK
COMPANY, LLC.
C i v a ACTION
4. The Upper DubUn Township Zoning Hearing Board b ENJOINED TO CONDUCT
rbntwr conditional use pRxeedbigs as required by Upper Dublbi Township Zoning Onllnance S
PUnUfT,
255-30.1,C In a manner consistent with dw foregobig Memorandum,
UPPER DUBLIN TOWNSHIP and
UPPER DUBLIN TOWNSHIP ZONING
HEARING BOARD,
NO, 01-994
BY THE COURT:
Defendants,
JANE DUBOIS. J.
OHDER
AND NOW, thb 20di day of May, 2002, upon consideration <tf Amerkan Cdlular's
Modon for Summary Judgment (Cbcumcni No, 7, filed Juiw 4,2001), die Motkn for Summaty
Judgment of Defendams Upper Dublto Township and Upper Dublin Township Zodr^ Hearing
Board (Document N a 8. filed July 6,2001), d l responsive and supplemental filings lo die cross
moUons, and the record of proceedings before dw Upper MAbi Township Zonbig Hearing
Boaid, for Iho reasons staled to Ihc foregoing Memorandum, IT IS ORDERED as follows:
1. Anwrkan Cellular's Motion for Summary Judgment b GRANTED;
2.
TheMotlonforSumnsiryJud^nemofDBfendantsU|q>erDuUlnTownddpand
Uppo- Dublin Township Zoning Hearing Board b DENIED;
3. Tlw Upper DubUn Township Zonbig Hearing Board shaU b EIDOINEDIX)
APPROVE American CeUular's AppHcaUoit br
(a) a variance from die setback requirements of Upper DuUlo Township Zoning
Ordinances 2S5-30,l,D(2)(c) (Uw forty-foot requlrcmom);and
-2-
Oakland City Planning Commission
Case File Number CMD09-149
STAFF REPORT
February 17, 2010
Location: 1001 42"" Street
Assessors Parcel Numbers: 012-1023-001-01
Proposal: Establish a new Mini-telecom facility with 9 antennas located within a
decorative screen on the roof of an industrial building.
Owner: 1001 42"" Street LLC
Applicant: Chamel James, Verizon Wireless (925) 244-1890
Planning Permits Required: "Major Conditional Use Penmlt for a Telecommunications Facility
within three hundred (300) feet ofthe boundary of an R-40 residential
zone, Regular Design Review peirait for a Mini Telecom Facility,
General Plan: Housing and Business Mix
Zoning: HBX-2, Housing and Business Mix Commercial Zone
Environmental Determination: Exempt, Section 15301(k) ofthe State CEQA Guidelines:
Minor Alteration to an Existing Facility;
Section 15183 ofthe State CEQA Guidelines: projects consistent with a
community plan, general plan, or zoning.
Historic Status: Potential Designated Historic Property (PDHP); Minor Importance,
Potentially Secondary Importance or Superior,
Survey Rating Dc3
Service Delivery District: 2
City Council District: 1
Status: Pending
Action to be Taken: Decision on application based on staff report
Staff Recommendation: Approval subject to conditions
Finality of Decision: Appealable to City Council
For Further Information: Contact case planner Ulla-Britt Jonsson at 510-238-3322 or by email
at ujonssonfaioaklandnet,com
SUMMARY
The proposed project is for a new unmanned wireless telecommunications facility located on the roof of an
existing industrial building. The- project also involves the installation of an accompanying equipment
cabinet on the ground floor ofthe same building and a generator within a building on the same property
within the City limits of Emeryville, The project site is surrounded primarily by civic and residential
uses. The subject property is located within 300 feet of a residential zone.
Pursuant to Section 17.I28,80(A)(5) ofthe Oakland Planning Code, the applicant has submitted written
documentation demonstrating that emissions from the proposed telecommunications facility will be
within the limits set by the Federal Communications Commission (FCC),
The project will improve the wireless telecommunications services in the neighborhood and contribute to
a functional residential and civic environment. Staff therefore recommends approval of the Major
Conditional Use Pennit and Design Review for the proposed project, subject to the attached conditions.
The subject site is a 34,598 sq. ft. lol bounded by 41" Street, 42"** Street, and Linden Street. The western
portion ofthe property crosses the city border into Emeryville. On the east side ofthe lot is a two-story
#5
CITY OF OAKLAND PLANNING COMMISSION
Case File:
Applicant:
Address:
Zone:
CMD09-205
Charnel James
1001 42nd Street
HBX-2
Oakland City Plannins Commission
February 17,2010
41,320 sq. ft. light industrial building; in the middle ofthe property is a driveway with ramps and parking
areas; and on the western side is a mix of smaller industrial brick buildings. The property is currently
vacant. The west side of the block faces Adeline Street and contains a row of residences. Across 42""
Street is the North Oakland Charter School (NOCS) and across 41*' Street are the Green City Lofts, a 4+story residential condominium development. The neighborhood also contains a mix of one-and two-story
multi-family, single-family, and live-work buildings.
PROJECT DESCRIPTION
The applicant, representing Verizon Wireless, proposes to place nine (9) new antennas within a decorative
screen on the roof of an existing 32' tall light industrial building. The rooftop structure is designed to
match the building in color and texture of siding materials. As presented in the attached plans, the roof
structure measures 15' in width and length and extends 10' above the peak ofthe roof on which it is
mounted. This design has small cutouts at the comers. However, staff recommends a somev/hat different
rooftop design as explained in "Key Issues" later in this report.
The rooftop structure meets the Telecommunication Ordinance requirement of a 1:1 ratio setback from
the fa9ade and a maximum height of 15' above the roof An equipment cabinet is proposed within the
building, as well as a generator within a building across the site on the Emeryville side of ttie property. See
Attachments A and B, plans and photosims. This application represents the first telecommunications facility
on-site. The proposed facility is intended to handle increased wireless traffic on the network, as well as
ensure quality service to residences and businesses in the neighborhood.
At the time ofthe writing of this report, staff has not received any written communication from neighbors,
only three inquiries for more information.
The General Plan Housing and Business Mix Land Use classification is intended to guide a transition
ft-om heavy industry to low-impact light industrial and other businesses that can co-exist compatibly with
residential development. Respect for environmental quality, coupled with opportunities for additional
housing and neighborhood-friendly businesses is desired, as well as transition from industry that
generates impacts detrimental to residences. The desired character of development should be compatible
with housing, and development should recognize the mixed business nature ofthe area.
The proposed telecommunications facility will improve communications essential to modem-day operation
of residential uses and will improve the availability of infrastructure to the area. It is consistent with the
following policy ofthe General Plan:
Policy N1.5 Designing Commercial Development. Commercial development should be designed in a
manner that is sensitive to surrounding residential uses.
In conformance with General Plan Policy, the proposed antermas are concealed from view behind a screen
designed to match the existing building with an exterior "skin" that matches the exterior brick walls ofthe
building.
The proposed telecommunications facility will be compatible with the mixed commercial/residentiaj
nature ofthe area.
Page 3
February 17,2010
ZONING ANALYSIS
The subject site is zoned HBX-2, Housing and Business Mix Commercial Zone, The purposes ofthe
Housing and Business Mix zones are to:
• Allow for mixed use districts that recognize both residential and business activities;
• Establish development standards that allow residential and business activities to compatibly coexist;
• Provide a transition between industrial areas and residential neighborhoods;
• Encourage development that respects environmental quality and historic pattems of development.
The project meets the purposes ofthe Housing and Business Mix (HBX) zoning district in that it has been
designed to appear to belong on the building the architectural and historic features of the building has
been matched by the screening design.
The HBX-2 zone is intended to provide development standards for areas that have a mix of industrial,
certain commercial and medium to high-density residential development. This zone recognizes the equal
importance of housing and business.
Tel iscommuni cation facilities within three hundred (300) feet ofthe boundary of a residential zone require
a Major Conditional Use Permit. Staff finds that the proposal meets applicable HBX-2 zoning and City of
Oakland Telecommunication regulations.
The project has been found to be categorically exempt from the environmental review requirements ofthe
Califomia Environmental Quality Act (CEQA) under Section 15301, minor alterations to an existing
facility. In support of this exemption determmation, the project also conforms with CEQA Guidelines
Section 15183, projects consistent with a community plan, general plan or zoning.
Public Safety
The telecommunications regulations require that the applicant submit written documentation
demonstrating that the emissions from the proposed project are within the limits set by the Federal
Communications Commission. In a document (Attachment D) prepared by Hammett & Edison, Inc.,
Consulting engmeers, the proposed project was evaluated for compliance with appropriate guidelines
limiting human exposure to radio frequency electromagnetic fields. According to the report on the
proposed facility, the project will comply with the prevailing standards for limiting public exposure to
radio frequency energy and, therefore, not cause a significant impact on the environment. Additionally,
staff recommends that prior to the issuance ofa final building permit, that the applicant submits a certified
RF emissions report stating that the facility is operating within acceptable thresholds established by .the
regulatory federal agency.
Design of Rooftop Structure
Responding to staffs request for a redesign of the initial application, the applicant submitted on
December 2, 2009 by email a revised set of photo sims that included 6 altemative designs for the rooftop
enclosure structure. Staff accepted "Proposed 3" (see Attachment C photo sims) which provides deeper
shadows and smaller wall planes on the sides ofthe screen. The Proposed 3 proposal is different from the
Page 4
February 17,2010
submitted plans in that it breaks up the large wall mass ofthe boxy design ofthe decorative screen that is
shown on the attached plans.
Shortly before the writing of this report, the applicant submitted revised plans that did not match the
Proposed 3 scheme. These plans are included as Attachment A to this report. This revised design has
smaller cutouts on the comers, and in staffs opinion, does not break up the large mass of the roof
enclosure as effectively as shown in Proposed 3 photo sims.
Staff recommends that the applicant submit, prior to or concurrent with building permit submittal, a
revised plan set for plarming approval that is identical, to the maximum extent feasible, to the Proposed 3
photo sims that was submitted by the applicant in an email received by the Planning and Zoning Division
on December 2, 2009.
Site Location
Section 17.128.110 of the City of Oakland Planning Code requires that new wireless facilities shall
generally be located on the following properties or facilities in order of preference:
A.
Co-located on an existing structure or facility with existing wireless antennas.
B.
City owned properties or other public or quasi-public facilities,
C.
Existing commercial or industrial structures in non-residential zones.
D.
Existing commercial or industrial structures in residential zones.
E.
F.
G.
Facilities locating on an A, B or C ranked preference do not require a silc alternatives analysis. The
proposed facility Is to be located at a "C" ranked site, an existing commercial or industrial stmcture in
non-residential zones, and therefore will not require a site analysis.
Site Design
Section 17.128.120 ofthe Oakland Planning Code requires that new wireless facilities shall generally be
designed in the following order of preference:
A.
Building or structure mounted antennas concealed from \ icw.
B.
Building or structure mounted antennas set back from roof edge, not visible from public
right-of way,
C.
Building or stmcture mounted antennas below roof line (fnâde mount, pole mount)
visible from public right-of-way, painted to match existing structure.
D.
Building or structure mounted antennas above roofline visible from public right-of-way.
Facilities, designed to meet an A or B ranked preference do not require a site design altematives analysis.
The antennas are within a decorative screen, and therefore will be designed in an "A" ranked manner.
Public Access
The Telecommunication regulations in the Oakland Planning Code require thai all reasonable means of
reducing public access to the antennas and equipment be made, including, but not limited to, placement in
or on buildings or stmctures, and the addition of fencing, anti-climbing measures and/or anti-tampering
devices. The equipment cabinet will be concealed from public view as it will be contained within the first
floor ofthe building. The cabinet enclosure is to be regularly maintained. Site location and development
will preserve the preexisting character ofthe surrounding buildings and land uses and the zone district as
much as possible.
Page 5
February 17,2010
Page 6
The proposed nine (9) antennas within a decorative screen on the roof of an existing 32-foot tall building
will be beneficial to the area and the City as a whole in that it will improve essential wireless
communication services to the residents, lousinesses, and public and emergency services in the area. It has
been designed to comply with Federal safety standards and complies with the applicable regulations
outlined in the Oakland Municipal Code for telecommunications facilities. Therefore, staff recommends
that the Planning Commission approve the proposal subject to the attached findings and conditions.
RECOMMENDATIONS:
1, AfRrm staffs environmental determination; and
2. Approve the Regular Design Review and Major Conditional Use
Permit application subject totiieattachedfindingsand conditions.
Prepared by:
Ulla-Britt Jonssorj/
Planner H X^ /
I
Approved by:
"^T^d/i
Scott Miller
Zoning Manager
Approved for forwarding to the
City Planning Commission:
Cohen, Dkector
Community and'Economic Development Agency
ATTACHMENTS:
A.
B.
C.
D.
Plans
Photo Sims
Recommended Photo Sims
Radio Frequency Emissions Report
February 17,2010
Page'7
FINDINGS FOR APPROVAL
This proposal meets the required findings under Sections 17.134,050 (General Conditional Use Permit
Criteria), 17.136.050B (Design Review Criteria for Non-Residential Facilities), and Section 17.128.060
(General Development Standards, Design Review, and Conditional Use Permit for mini facilities) ofthe
Oakland Planning Code. Required findings are shown below in bold type; explanations as to why these
findings can be made are in normal type.
SECTION 17.134.050 - GENERAL USE PERMIT CRTTERIA:
A. That the location, size, design, and operating characteristics of the proposed development will
be compatible with and will not adversely affect the livability or appropriate development of
abutting properties and the surrounding neighborhood, with consideration to be given to
harmony in scale, bulk, coverage, and density; to the availability of civic facilities and utilities;
to harmful effect, if any, upon desirable neighborhood character; to the generation of traffic
and the capacity of surrounding streets; and to any other relevant impact ofthe development.
The proposed development of nine new antennas willbe compatible with the use of the existing light
industrial site. The neighborhood consists of residential, civic, and light industrial uses. The operating
characteristics have been examined by a qualified engineer who has concluded that the cumulative
emissions levels from the telecommunication facility will meet federal standards. The wireless service
provided by the facility will augment the availability of telecommunication services in the area.
B. That the location, design, and site planning of the proposed development will provide a
convenient and functional living, working, shopping, or civic environment, and will be as
attractive as the nature ofthe use and its location and setting warrant.
The facility is located on a light industrial site and will contribute to enhanced telecommunications
services in the area for residents, businesses and public and emergency services;
C. That the proposed development will enhance the successful operation of the surrounding area
in its basic community functions, or will provide an essential service to the community or
region.
The proposed antennas comply with Federal safety standards and Oakland's telecommunication
regulations. The proposed new antermas will be beneficial to the area in that it will provide essential
wireless communication services to the residents, businesses and public and emergency services in
the area and minimize dropped calls.
D. That the proposal conforms to all applicable design review criteria set forth in the design
review procedure at Section 17.136.050B.
The proposal meets the design review criteria (see responses below to criteria for Section
17.136.050B).
E. That the proposal conforms in all significant respects with the Oakland General Plan and with
any other applicable plan or development control map which has been adopted by the City
Council.
FINDINGS
February 17,2010
Page 8
The proposed telecommunications facility conforms in all significant aspects with the Oakland
General Plan and with any other applicable plan or zoning maps adopted by the City of Oakland. The
proposed mini telecommunications facility will improve mobile communications in the area essential
to modem day operation of residential uses. It will aiso be available to local law enforcement and
emergency response -services and therefore conforms in all respects to the Oakland General Plan and
thus improve the availability of infrastmcture to the area.
SECTION 17.136.050B - DESIGN REVIEW FOR NONRESIDENTIAL FACILITIES:
1. That the proposal will help achieve or maintain a group of facilities which are well related to
one another and which, when taken together, will result in a well-composed design, with
consideration given to site, landscape, bulk, height, arrangement, texture, materials, colors, and
appurtenances; the relation of these factors to other facilities in the vicinity; and the relation of
the proposal to the total setting as seen from key points in the surrounding area. Only elements
of design which have some significant relationship to outside appearance shall be considered,
except as otherwise provided in Section 17.136.060;
The telecommunications regulations require telecom facilities not to be sited to create visual clutter or
negatively affect specific views. The proposed new antennas will be located on the roof ofthe
existing two-story light industrial building and will be behind a screen designed to match the texture,
materials, color, and design of the building. Photo simulations submitted for the project show the
view ofthe proposed antennas and screen as seen from the street.
.2. That the proposed design will be ofa quality and character which harmonizes with, and serves
to protect the value of, private and public investments in the area;
The proposed telecomrnunications facility harmonizes with, and serves to protect tfie value of, private
and public investments in the area in that it will add to the availability of telecommunication services
in the area.
3. That the proposed design conforms In all significant respects with the Oakland General Plan
and with any applicable design review guidelines or criteria, dislrici plan, or development
control map which have been adopted by the Planning Commission or City Council.
See findings under Section 17.134.050,E above.
SECTION 17.128.060 ( B V D E S I G N REVIEW CRITERIA FOR MINI FACILITIES
1. Antennas should be painted and/or textured to match the existing structure.
The proposed nine (9) new antennas will be within a decorative screen designed to match the
exterior ofthe building in color and texture of materials to be compatible with the existing
building,
2. Antennas mounted on architecturally significant structures or significant architectural
detail ofthe building should be covered by appropriate casings which are manufactured to
match existing architectural features found in the building.
FINDINGS
February 17,2010
Page 9
The proposal antennas will be mounted on a Potential Designated Historic Building with a Dc3
rating. As presented in the attached plans, the roof structure measures 15' in width and length and
ex-tends 10' above the peak ofthe roof on which it is mounted. This design has small cutouts at
the comers.
However, the proposal submitted to the Planning Division as "Proposed 3" (see Attachment C
photo sims) provides deeper shadows and smaller wall planes on the sides ofthe screen. This
proposal breaks up the large wall mass ofthe boxy design ofthe decorative screen, and it is the
design accepted and prefeired by the Planning and Zoning Division.
3. Where feasible, antennas can be placed directly above, below or incorporated with vertical
design elements ofa building to help in camouflaging.
The screen surrounding the antennas is designed to match the overall building design. The
proposed structure has the same siding and roof pattem as what is existing to assist in blending
with the stmcture.
4. Equipment cabinets shall be concealed from view or placed underground..
The development proposal includes the installation of an equipment cabinet located on the ground
floor and within the same building as the rooftop stmcture, A generator will be housed within a
stmcture on the same lot across the parking lot,
5. That all reasonable means of reducing public access to the antennas and equipment has
been made, including, but not limited to, placement in or on buildings or structures,
fencing, anti-climbing measures and anti-tampering devices.
The wireless communication antennas and equipment cabinets will be located in areas not
accessible to the public.
6. For antennas attached to the roof, maintain a 1:1 ratio (example: ten feet high antenna
requires ten feet setback from facade) for equipment setback unless an alternative
placement would reduce visual impact; treat or screen the antennas to match existing air
conditioning units, stairs, elevator towers, or other background; avoid placing roof
mounted antennas in direct line with significant view corridors.
The development proposal is for the installation of nine (9) new wireless antennas meets the 1:1
setback from the fa9ade ofthe building and are screened to match the building design. There are
no significant view corridors in the vicinity ofthe project.
SECTION 17.128.060 (CV-CONDmONAL USE PERMIT CRITERIA FOR MINI FACILITIES
1. The project must meet the special design review criteria listed in subsection B of this
section.
The development proposal conforms to the design review criteria for Mini Facilities as described in
section 17.128.060 (B) design review criteria listed above.
FINDINGS
February 17,2010
Page 10
2. The proposed project must not disrupt the overall community character.
The development proposal to locate wireless communications antennas on thereof of an existing
light industrial building will not dismpt the characteristics of the neighborhood. The proposed
antennas will be screened with a decorative screen designed to match the exterior ofthe building. "
3. ID zones R-1 through R-60, inclusive, the project mu5t oot have any visual impact.
The project is not located In a residential zone.
FINDINGS
•__^_^_
.
February 17,2010
Page 11
CONDITIONS OF APPROVAL
The proposal is hereby approved subject to the following Conditions of Approval:
STANDARD CONDITIONS OF APPROVAL
1.
Approved Use
Ongoing
a) The project shall be constmcted and operated in accordance with the authorized use as described
in the application materials and the plans dated Januai-y 21, 2010 and as amended by the
following conditions. Any additional uses or facilities other than those approved with this peirnit,
as described in the project description and the approved plans, will require a separate application
and approval. Any deviation from the approved drawings, Conditions of Approval or use shall
required prior written approval from the Director of City Planning or designee.
b) This action by the Planning Commission ("this Approval") includes the approvals set forth
below. This Approval includes: Major Conditional Use Permit and Design Review to install a
telecommunications facility (9 antennas witiiin decorative screen) in a Housing and Business Mix
zone.
2.
Effective Date. Expiration, Extensions and Extinguishment
Ongoing
Unless a different termination date is prescribed, this Approval shall e.Npirc two calendar years from
the approval date, unless within such period all necessary permits for construction or alteration have
been issued, or the authorized activities have commenced in the case of a permit not involving
constmction or alteration. Upon written request and payment of appropriate fees submitted no later
than the expiration date of this permit, the Director of City Planning or designee may grant a one-year
extension of this date, with additional extensions subject to approval b\ the approving body.
Expiration of any necessary building pennit for this project may invalidate this Approval if the said
extension period has also expired.
3.
Scope of This Approval; Major and Minor Changes
Ongoing
^
The project is approved pursuant to the Planning Code only,' Minor changes lo approved plans may
be approved administratively by the Director of City-Planning or dciiyncc. Major changes to the
- approved plans shall be reviewed by the Director of City Planning or dcsiuncc to determine whether
such changes require submittal and approval ofa revision to the approved projt'ct by the approving
body or a new, completely independent permit.
4.
Conformance with other Requirements
Prior to issuance ofa demolition, grading, P-job, or other construction related permit
a) The project applicant shall comply with aii other applicable federal, stale, regional and/or local
codes, requirements, regulations, and guidelines, including but not limited lo those imposed by
the City's Building Services Division, the City's Fire Marshal, and the City's Public Works
Agency.
b)' The applicant shall submit approved building plans for project-specific needs related to fire
protection including, but not limited to automatic extinguishing systems, water supply
CONDITIONS O F APPROVAL
February 17,2010
Page 12
improvements and hydrants, fire department access, and vegetation management for preventing
fires and soil erosion.
5.
Conformance to Approved Plans; Modification of Conditions or Revocation
Ongoing
a) The City of Oakland reserves the right at any time during constmction to require certification by a
licensed professional that the as-built project conforms to all applicable zoning requirements,
including but not limited to approved maximum heights and minimum setbacks. Failure to
constmct the project in accordance with approved plans may result in remedial reconstruction,
permit revocation, permit modification or other corrective action.
• b) Violation of any term, condifion.or project description relating to the Approvals is unlawful,
prohibited, and a violation of the Oakland Municipal Code. The City of Oakland reserves the
right to initiate civil and/or criminal enforcement and/or abatement proceedings, or after notice
and public hearing, to revoke the Approvals or alter these Conditions if it is found that there is
violation of any of the Conditions or the provisions of the Planning Code or Mimicipal Code, or
the project operates as or causes a public nuisance. This provision is not.intended to, nor does it,
limit in any manner whatsoever the ability ofthe City to take appropriate enforcement actions.
6.
Signed Copy ofthe Conditions
With submittal ofa demolition, grading, and building permit
- A copy ofthe approval letter and Conditions shall be signed, by the property owner and submitted
with each set of permit plans submitted for this project.
7.
Indemnification
Ongoing
a) The project applicant shall defend (with counsel reasonably acceptable to the City), indemnify,
and hold hannless the City of Oakland, the Oakland City Council,, the City of Oakland
Redevelopment Agency, the Oakland City Plannmg Commission and their respective agents,
officers, and employees (hereafter collectively called the City) from any claim, action, or
proceedmg (including legal costs and attorney's fees) against the City to attack, set aside, void or
annul this Approval, or any related approval by the City, The City shall promptly notify the
project applicant of any claim, action or proceeding and the City shall cooperate fully m such
defense. The City may elect, in its sole discretion, to participate in the defense of said claim,
action, or proceeding. The project applicant shall reimburse the City for its reasonable legal costs
and attorney's fees.
b) Within ten (10) calendar days ofthe filing ofa claim, action or proceeding to attack, set aside,
void, or annul this Approyal, or any related approval by the City, the project applicant shall
execute a Letter Aêement with, the City, acceptable to the Office ofthe City Attorney, which
memorializes the above obligations and this condition of approval. This condition/obligation shall
survive termination, extinguishment, or invalidation of this, or any related approval. Failure to
timely execute the Letter Agreement does not relieve the project applicant of any of the
obligations contained in 7(a) above, or other conditions of approval.
8.
Compliance with Conditions of Approval
Ongoing
The project applicant shall be responsible for compliance with the recommendations in any submitted
and approved technical report and all the Conditions of Approval set forth below at its sole cost and
expense, and subject to review and approval ofthe City of Oakland.
. ,
February 17,2010
9.
Page 13
Severability
Ongoing
Approval ofthe project would not have been granted but for the applicability and validity of each and
every one ofthe specified conditions, and if any one or more of such conditions is found to be invalid
by a court of competent jurisdiction this Approval would not have been granted without requiring
other valid conditions consistent with achieving the same purpose and intent of such Approval.
10. Job Site Plans
Ongoing throughout demolition, grading, and/or construction
At least one (1) copy of the approved plans, along with the Approval Letter and Conditions of
Approval, shall be available for review,at the job site at all times.
11.
Special Inspector/Inspections, Independent Technical Review, Project Coordination and
Management
Prior to issuance ofa demolition, grading, and/or construction permit
The project apphcant may be required to pay for on-call special inspector(s)/inspections as needed
during the times of extensive or specialized plancheck review, or construction. The project applicant
may also be required to cover the full costs of independent technical and other types of peer review,
monitoring and inspection, including without limitation, third party plan check fees. The project
applicant shall establish a deposit with the Building Services Division, as directed.by the Building
Official, Director of City Planning or designee.
12. Dust Control
Prior to issuance ofa demolition^ grading or building permit .
During constmction, the project applicant shall require the construction contractor to implement the
following measures required as part of Bay Area Air Quality Management District's (BAAQMD)
basic and enhanced dust control procedures required for construction sites. These include:
a. Water all active constmction areas at least twice daily. Watering should be sufficient to prevent
airborne dust from leaving the site. Increased watering frequency may be necessary whenever
wind speeds exceed 15 miles per hour. Reclaimed water should be used whenever possible.
b. Cover all tmcks hauling soil, sand, and other loose materials or require all trucks to maintain at
least two feet offreeboard (i.e., the minimum required space between the top ofthe load and the
top ofthe trailer).
c. Pave, apply water three tunes daily, or apply (non-toxic) soil stabilizers on al! unpaved access
roads, parking areas and staging areas at constmction sites.
d. Sweep daily (with water sweepers using reclaimed water if possible) all paved access roads,
parking areas and staging areas at constmction sites.
e. Sweep streets (with water sweepers using reclaimed water if possible) at the end of each day if
visible soil material is carried onto adjacent paved roads.
f Limit the amount ofthe disturbed area at any one time, where feasible.
g. Suspend excavation and grading activity when winds (instantaneous gusts) exceed 25 mph.
h. Pave all roadways, driveways, sidewalks, etc. as soon as feasible. In addition, building pads
should be laid as soon as possible after grading unless seeding or soil binders are used,
i. Replant vegetation in disturbed areas as quickly as feasible.
' j . Enclose, cover, water twice daily or apply (non-toxic) soil stabilizers tp exposed stockpiles (dirt,
sand, etc.).
k. Limit traffic speeds on unpaved roads to 15 miles per hour.
February 17,2010
Page 14
1, Clean off the tires or tracks of all tmcks and equipment leaving any unpaved constmction areas.
13. Construction Emissions
Prior to issuance of a demolition, grading or building permit
To minimize constmction equipment emissions during construction, the project applicant shall
require the constmction contractor to:
a) Demonstrate compliance with Bay Area Air Quality Management District (BAAQMD)
Regulation 2, Rule 1 (General Requirements) for all portable construction equipment subject to
that mle. BAAQMD Regulation 2, Rule 1 provides the issuance of authorities to constmct and
permits to operate certain types of portable equipment used for constmction purposes (e.g.,
gasoline or diesel-powered engines used in conjunction with power generation, pumps,
compressors, and cranes) unless such equipment complies with all applicable requirements ofthe
"CAJPCOA" Portable Equipment Registration Rule" or with all applicable requirements of the
Statewide Portable Equipment Registration Program. This exemption is provided in BAAQMD
Rule 2-1-105.
b) Perform low- NOx tune-ups on all diesel-powered constmction equipment greater than 50
horsepower (no more than 30 days prior to the start of use of that equipinent). Periodic tune-ups
(every 90 days) should be performed for such equipment used continuously during the
constmction period,
14. Days/Hours of Construction Operation
The project appjicant shall require construction contractors to limit standard constmction activities as
follows;
a. Constmction activities are limited to between 7:00 AM and 7:00 PM Monday through Friday,
except that pile driving and/or other extreme noise generating activities greater than 90 dBA shall
be limited to between 8:00 a.m. and 4:00 p.m. Monday through Friday,
b. Any construction activity proposed to occur outside ofthe standard hours of 7:00 am to 7:00 pm
Monday through Friday for special activities (such as concrete pouring which may require more
continuous amounts of time) shall be evaluated on a case by case basis, with criteria including the
proximity of residential uses and a consideration of resident's preferences for whether the activity
is acceptable if the overall duration of constmction is shortened and such constmction activities
shall only be allowed with the prior written authorization ofthe Building Services Division.
c. Constmction activity shall not occur on Saturdays, with the following possible exceptions:
3 Prior to the building being enclosed, requests for Saturday consfiruction for special activities
(such as concrete pouring which may require more continuous amounts of time), shall be
evaluated on a case by case basis, with criteria including the proximity of residential uses and .
a consideration of resident's preferences for whether the activity is acceptable if the overall
, duration of constmction is shortened. Such constmction activities shall only be allowed on
Saturdays with the prior written authorization ofthe Building Services Division.
2! After the building is enclosed, requests for Saturday constmction activities shall only be
allowed on Saturdays with the prior written authorization of the Building Services Division,
and only then within the interior ofthe building with the doors and windows closed,
Sf No extreme noise generating activities (greater than 90 dBA) shall be allowed on Saturdays,
with no exceptions.
iS No constmction activity shall take place on Sundays or Federal holidays.
i
;
i
]
;
j
j
Oakland City P l a n n i n s Commission
February 17,2010
Page 15
-^ Construction activities include but are not limited to: tmck idling, movirig equipment
(including trucks, elevators, etc) or materials, deliveries, and construction meetings held onsite in a non-enclosed area,
15. Noise Control
To reduce noise impacts due to construction, the project applicant shall require construction
contractors to implement a site-specific noise reduction program, subject to city review and
approval, which includes the following measures:
• ^
a) Equipment and trucks used for project constmction shall utilize the best available noise control
techniques (e.g., improved mufflers, equipment redesign, use of intake silencers, ducts, engine
enclosures and acoustically-attenuating shields or shrouds, wherever feasible).
b) Impact tools (e.g., jack hammers, pavement breakers, and rock drills) used for project
constmction shall be hydraulically or electrically powered wherever possible to avoid noise
associated with compressed air exhaust from pneumatically powered tools. However, where use
of pneumatic tools is unavoidable, an exhaust muffler on the compressed air exhaust shall be
used; this muffler can lower noise levels from the exhaust by up to about 10 dBA. External
jackets on the tools themselves shall be used where feasible, and this could achieve a reduction of
5 dBA, Quieter procedures shall be used, such as drills rather than impact equipment, whenever
feasible.
c) Stationary noise sources shall be located as far from adjacent receptors as possible, and they shall
be muffled and enclosed within temporary sheds, incorporate insulation barriers, or other
measures to the extent feasible.
d) If feasible, the noisiest phases of constmction shall be limited to less than 10 days at a time.
16.
Noise Complaint Procedures
Prior to the issuance of each building permit, along with the submission of constmction
documents, the project applicant shall submit to the City Building Services Division a list of
measures to'respond to and track complaints pertaining to constmction noise. These measures
shall include:
a) A procedure and phone numbers for notifying the City Building Services Division staff and
Oakland Police Department; (during regular constmction hours and off-hours);
b) A sign posted on-site pertaining with permitted constmction days and hours and complaint
procedures and who lo notify in the event of a problem. The sign shall also include a listing of
both the City and construction contractor's telephone numbers (during regular constmction hours
and off-hours);
c) The designation of an on-site construction complaint and enforcement manager for the project;
d) Notification of neighbors and occupants within 300 feet of the project constmction area at least
30 days in advance of extreme noise generating activities about the estimated duration of the
activity; and
e) A preconstmction meeting shall be held with the job inspectors and the general contractor/on-site
project manager to confirm that noise measures and practices (including constmction hours,
neighborhood notification, posted signs, etc.) are completed.
February 17,2010
17.
Page 16
Interior Noise
Prior to issuance ofa building permit
ff necessary to comply with the interior noise requirements ofthe City of Oakland's General Plan
Noise Element and achieve an acceptable interior noise level, noise reduction in the form of soundrated assemblies (i.e., windows, exterior doors, and walls) shall be incorporated into project building
design, based upon recommendations of a qualified acoustical engineer. Final recommendations for
sound-rated assemblies will depend on the specific building designs and layout of buildings on the
site and shall be determined during the design phase.
18. Construction Traffic and Parking
Prior to the issuance ofa demolition, grading or building permit
The project applicant and constmction contractor shall meet with appropriate City of Oakland
agencies to determine fraffic management strategies to reduce, to the maximum extent feasible, traffic
congestion and the effects of parking demand by constmction workers during constmction of this
project and other nearby projects that could be simultaneously under constmction. The project
applicant shall develop a constmction management plan for review and approval by the appropriate
City of Oakland agencies. The plan shall include at least the following items and requirements:
a) A set of comprehensive traffic control measures, including scheduling of major tmck trips and
deliveries to avoid peak traffic hours, detour signs if required, lane closure procedures, signs, cones
for drivers, and designated constmction access routes.
b) Notification procedures for adjacent property owners and public safety, personnel regarding when
major deliveries, detours, and lane closures will occur.
c) Location of constmction staging areas for materials, equipment, and vehicles (must be located on the
project site).
d) A process for responding to, and tracking, complaints pertaining to constmction activity, including
identification of an onsite complaint manager. The manager shall determine the cause of the
complaints and shall take prompt action to correct the problem. Planning and Zoning shall be
informed who the Manager is prior to the issuance ofthe first permit issued by Building Services.
e) Provision for accommodation of pedestrian flow.
19.
Erosion and Sedimentation Control
Ongoing throughout demolition grading, and/or construction activities
Pursuant to Chapter 13.16 ofthe Oakland Municipal Code, the project applicant shall implement Best
Management Practices (BMPs) to reduce erosion, sedimentation, and water quality impacts during
constmction to the maximum extent practicable. At a minimum, the project applicant shall provide
filter materials deemed acceptable to the City at nearby catch basins to prevent any debris and dirt
fromflowinginto the City's storm drain system and creeks,
20.
Hazards Best Management Practices
Prior to commencement of demolition, grading, or construction
The project applicant and constmction contractor shall ensure that construction best management
practices are implemented as part of constmction to minimize the potential negative effects to
groundwater.and soils. These shall include the following:
Follow manufacture's recommendations on use, storage, and disposal of chemical products used in
construction; '
Avoid overtopping constmction equipment fuel gas tanks;
During routine maintenance of constmction equipment, properly contain and remove grease and oils;
Properly dispose of discarded containers of fuels and other chemicals.
a).
b)
c)
d)
February 17,2010
Page 17
e) Ensure that constmction would not have a significant impact on the environment or pose a substantial
health risk to constmction workers and the occupants ofthe proposed development. Soil sampling and
chemical analyses of samples shall be performed to determine the extent of potential contamination
beneath all UST's, elevator shafts, clarifiers, and subsurface hydraulic lifts when on-site demolition,
or constmction activities would potentially affect a particular development or building. The applicant
is responsible to avoid, eliminate delays with the unexpected discovery of contaminated soils with
hazardous materials.
21.
Waste Reduction and Recvcling
The project applicant will submit a Construction & Demolition Waste Reduction and Recycling Plan
(WRJEIP) and an Operational Diversion Plan (ODP) for review and approval by the Public Works
Agency.
Prior to issuance of demolition, grading, or building permit
Chapter 15.34 of the Oakland Municipal Code outlines requirements for reducing waste and
optimizing construction and demolition (C&D) recycling. Affected projects include all new
constmcrion, renovations/alterations/modifications with constmction values of $50,000 or more
(except R-3), and all demolition (including soft demo).The WRRP must specify the methods by
which the development will divert C&D debris waste generated by the proposed project from landfill
disposal in accordance with current City requirements. Current standards, FAQs, and forms are
available at www.oaklandpw.com/Page39.a5PX or in the Green Building Resource Center. After
approval ofthe plan, the project applicant shall implement the plan.
Ongoing
^^ The ODP will identify how the project complies with the-Recycling Space Allocation Ordinance,
:,-. (Chapter ,17.118 ofthe Oakland Municipal Code), including capacity calculations, and specify the
methods by which the development will meet the current diversion of solid waste generated by
operation ofthe proposed project from landfill disposal in accordance u ith current City requirenients.
The proposed program, shall be in implemented and maintained for the duration ofthe proposed
, activity or facility. Changes to the plan may be re-submitted to the En\ironnicnlal Services Division
ofthe Public Works Agency for review and approval. Any incentive programs shall remain fully
operational as long as residents and businesses exist at the project site.
22.
Lighting Plan
Prior to the issuance of an electrical or building permit
Any proposed lighting fixtures shall be adequately shielded lo a pîini bcIo\\ the light bulb and
reflector and that prevent unnecessary glare onto adjacent properties. All lighting shall be
architecturally integrated into the site.
23.
Erosion and Sedimentation Control
Ongoing throughout demolition grading, and/or construction activities
Pursuant to Chapter 13.16 of the Oakland Municipal Code, the project applicant shall implement Best
Management Practices (BMPs) to reduce erosion, sedimentation, and "ntcr quality impacts during
constmction to the maximum extent practicable. At a minimum, the project applicant shall provide
filter materials deemed acceptable to the City at nearby catch basins to prcxcnl any debris and dirt
from flowing into the City's storm draui system and creeks.
24.
Site Design Measures for Post-Construction Stormwater Pollution Management
February 17,2010
Page 18
Prior to issuance of building permit (or other construction-related permit)
The project drawings submitted for a building permit (or other constmction-related permit) shall
contain a final site plan to be reviewed and approved by Planning and Zoning. The final site plan
shall incorporate appropriate site design measures to manage stormwater runoff and minimize
impacts to water quality after the constmction of the project. These measures may include, but are
not limited to, the following;
a) Minimize impervious surfaces, especially directly connected impervious surfaces;
b) Utilize permeable paving in place of impervious paving where appropriate;
c) Cluster buildings;
d) Preserve quality open space; and
e) Establish vegetated buffer areas.
Ongoing
The approved plan shall be implemented and the site design measures shown,.on the plan shall be
permanently rnaintained.
25.
Source Control Measures to Limit Stormwater Pollution
The applicant shall implement and maintain all stmctural source control measures imposed by the
Chief of Building Services to limit the generation, discharge, and mnoff of stormwater pollution.
Ongoing
The applicant, or his or her successor, shall implement all operational Best Management Practices
(BMPs) imposed by the Chief of Building Services to limit the generation, discharge, and mnoff of
stormwater pollution.
PROJECT SPECIFIC CONDITIONS
26. Underground Utilities
Prior to issuance of a building permit
The project applicant shall submit plans for review and approval by the Building Services Division
and the Public Works Agency, and other relevant agencies as appropriate, that show all new electric
and telephone facilifies; fire alarm conduits; street light wiring; and other wiring, conduits, and
similar facilities placed underground. The new facilifies shall be placed underground'along the
project applicant's street frontage and from the project applicant's stmctures to the point of service.
The plans shall show all electric, telephone, water service, fire water service, cable, and fire alarm
facilities installed in accordance with standard specifications ofthe serving utilities.
27. Improvements in the Public Right-of-Way (General)
Approved prior to the issuance ofa P-job or building pernut
a) The project applicant shall submit Public Improvement Plans to Building Services Division for
adjacent public rights-of-way (ROW) showing all proposed improvements and compliance with
the conditions and Cily requirements including but not limited to curbs, gutters, sewer laterals,
storm drains, street trees, paving details, locations of transformers and other above ground utility
stmctures, the design specifications and locations of facilities required by the East Bay Municipal
Utility District (EBMUD), street lighting, on-sfreet parking and accessibility improvements
compliant with applicable standards and any other improvements or requirements for the project
as provided for in this Approval. Encroachment permits shall be obtained as necessary for any
applicable, improvements- located within the public ROW.
'
February 17,20io
Page 19
b) Review and confirmation of the street trees by the Cify's Tree Services Division is required as
• part of this condition.
c) The Planning and Zoning Division and the Public Works Agency will review and approve
designs and specificatioris for the improvements. Improvements shall be completed prior to the
issuance of the final building permit.
d) The Fire Services Division will review and approve fire crew and apparatus access, water supply
availability and distribution to current codes and standards.
28, Collocation
Ongoing
The applicant and owner shall allow other future wiireless communications companies including
public and quasi-public agencies using similar technology to collocate antenna equipment and
facilities unless specific technical or other constramts, subject to independent verification at the
discretion of the City of Oakland Zoning Manager, prohibit said collocation. Applicant and other,
wireless carriers shall provide a mechanism for the constmcfion and maintenance of shared facilities
and infrastmcture and shall provide for equitable sharing of cost in accordance with industry
standards. Constmction of future facilities shall not interrupt or interfere with the continuous
operation of applicant's facilities,
29. Maintenance
Ongoing
The applicant shall regularly maintain the telecommunications facility and all appurtenances
including the equipment cabinets and antennas.
.30. Sinking Fund
Prior to issuance of building permit.
The applicant shall provide proof of the establishment of a sinking fund to cover the cost of removing
the facility if it is abandoned within a prescribed period. The word "abandoned" shall mean a facility
that has not been operational for a six (6) month.period, except where nonoperafion.is the result of
maintenance or renovation activity pursuant to valid Cify permits. The sinking fund shall be
established to cover a two-year period, at a financial institution approved by the City's Office of
Budget and Finance. The sinking fund payment shall be determined by the Office of Budget and
Finance and shall be adequate to defray expenses associated with the removal of the
telecommunicafion facility,
31. Portion of Facility located in Emeryville
Concurrent with application for building permits
• The applicant shall apply for the necessary permits for the portion of the facility located within the
Emeryville City limits,
)
32. Design of screen surrounding the rooftop antennas
The applicant shall submit a revised plan set for planning approval that is idenfical, to the maximum
extent feasible, to the Proposed 3 photo sims that was submitted by the applicant in an email received
by the Planning and Zoning Division on December 2,2009.
APPROVED BY:
February 17,2010
Page 20
(date)
(vote)
Applicant and/or Contractor Statement
I have read and accept responsibility for the Conditions of Approval, as approved- by Planning
Commission action on February 17, 2010.1 agree to abide by and conform to these conditions, as well as
to all provisions ofthe
Oakland Zoning Code and Municipal Code pertaining to the project.
Signature of Owner/Applicant:
Signature of Contractor
•.
:
(date)
;
(date)
185595
MARKET IVIACARTHUR
Wireless
LOCATION MAP
PROPERTY INFORMATION
1001 42ND STREET
EMERYVILLE, CA 94608
PROJECT DESCRIPnON
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ATTACHMENT B
^^^^^^s
l&'t'.nriri^zic&M
veriTOfiwfretess
Market MacArthur
1/21/10
1001 42ncl Street
Emeryville, CA 94608
.Site:# 185595
Looking Southeast from 42nd Street
Apitfed Imaginafon 510 914^1500
I
•*•••_
verfTqnwrfreiess
Market MacArthur
1/21/10
1001 42nd Street
Emeryville, GA 94608
Site # 185595
Looking Northeast f r o m 41st Street
Applied Imagjnalton 510 914.{K0O
1/21/10
1001 42nd Street
Emeryville. CA 94608
•11/20/09
,1001 42nd StreetEmeryville, CA 94603
Attacliment D
Verizon Wireless • Proposed Base Station (Site Np. 185595 "Market MacArthur")
1001 42nd Street • Emeryville, California
Statement of Hammett & Edison, lric.,eonsulting Engineers
Tlie firm of Harnrnett & Edison, Inc., Consultmg EhgtrtêrsV has been retained on behalf of
Verizon Wireless,, a' personal wireless telecommunications carrier, to evaluate the base station
(Site No, 185595'"'^Maric'et MacArthur').proposed tp:be,located at 100! 42nd Street in Emeo'ville,
California, for cempliance with appropriate guidelines limiting human exposure to radio frequency
I
("RF") electromagnetic fields.
Prevailing Exposure Standards
The U.S. Congress requires that the Federal.Gpmitiunications Commission {"•FCC") evaluate its
actions.for possible sigriificanl im.pact on the environment, hi Docket 93-62, effective October 15,
1997, the FCC adopted tlie human exposure ii.mi.ts for field strength and power density'recommended
in Report No. 86, "Biological Effects and Exposure Criteria for Radiofrequency Electromagnetic
Fiejds," piibhshedin 198iS by theCprigressidhally chartered National Council on Radiation Protection
and Measurements ("NCRP"). Separate limits apply for occupational and public exposure^conditions,
with tJte latter limits generally five times more restrictive. The more recent standard, developed by .the
.,lnstitute,of Electrical and'ElectroniQS,Engineers and approved as American National Standard ;
ANS.1/IEEE G95..I-2006..^'Safet5' Levels with Respect lo Human E.xposure to Radio Frequency
:.ElectrOmagnetic Fiislds, 3 kHz to 30,0 GHz," includes similar exposure limits. A summary of the
FCC's exposure limits is shown in Figure 1. These limiis apply Tor continuous ©:ppsures\and are.
ihtended'to proyicie a prudent niargin of safety for all persons, regardless of age, gender, size, or
health.
.
•
The most restrictive FCC iiinit for,exposures of unlimiled duration lo radio frequency ênerg)' for
several personal wireless services are as follows:
Pcrsonfll'Vi'irelcsi^Semce
Broadband Radio ("BRS")
Advanced \^îreiess;("AWS")
%rso.nal Coitiiriuni cation ("PCS")
GeUular Têphone,'
^peciaized:Mobil.e;R.adio ( " S ^ ^
Long terra-Evolution: ("LTE").
[mG.st>restricti:ve frequency range]
Approx. FrcoiiL-ncv
2,600 MHz.
2,100
1,950
870
855
700
30-300
l.itnii
5.00 niW/cm. 5,00
5.00
2.00
2.85
IVLIIIIKIIIHIKII
2.3.1
, 1.00
PublicLiniii
l.OOmW/cm
1.00
1.00
0.58
0,57'
.0.47
0.20
General Facility Requirements
Base stations typically consist,,6f.tw6.di5tih.ct.parts; the electronic Iran.sccivcrs (also called "radiPs" or
"channels") that are connected to the ti-adi.tional vvired telephone lines, and tiie passive antennas that
.send the wireless signals created by the radios out:tO'he received by individual subscriber units. The
H A M M E T T & EDISON, INC
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Pace 1 bl'4
Verizon Wireless -Proposed Base Station (Site No. 185595 "Market MacArthur")
1001 42nd Street • Emeryville^ California,
transceivers are often located at ground leveland are connected to the antennas by ddax-ial cables
about 1 inch thicic. Because of the short wavelength, ofthe frequencies assigned by the ECC for
wireless services, the antennas require line-of-sight paths for their signals to,propagate well and so.are
installed at some height above ground. The antennas are designed to concentrate their energy toward
tiie horizon, with very little energy wasted toward the sky or the ground. Along vîth the low power of
suchTacilJfies, tliis means that it is generally not possible for exposure conditions to approach the
maximum permissible exposure limits witliout being pliysically very near the antennas.
i
Computer IVIodetIng li/Iethod
TlieFCC provides direction for determining compliance in its Office of Engineering and Techncjlogy
.Bulletin No. 65, "Evaluating Compliance with FGC-Specified Guidelines for Human Exposure, to
Radio Frequency Radiation," dated August 1997, Figure 2 attached describes the calculation
methodologies, reflecting the facts that a directional antenna's radiation pattem is not fully forined at
locations ,ye.i;y .close by (the "near-field" effect) and that at greater distances the power level,from, an
energy source decreases, with the square ofthe distance from it (the "in\-erse square law"),. 'The
conservative;'nature of this method for evaluating exposure conditions has been verified by ntiine.rpus
field tests.
Site and Facility Description
Based upon informatioa provHed 'by Yenzon, including drawings by BayStone Architectui'e
and Engineering, Inc., dated Ma^r 19, 2009; that carrier proposes to mount nine .Andrew directional
paiiel antennas - three^ Model FlBX-5S.i7DS-VTM antennas for PCS. tiiree VIodel LBX-65,14!DSVTM antennas for cellular, and tliree Model LNX65I4DS-VTM antennas for LTE scr\'ice-witlirri;^
enclosure to be built on tlie roof of the two-story office buildine locnied at 1001 42nd Streiet iri
Ôakland. The antennas would be mounted with 2° downtill in groups ol'thrct.' (one ofeach modei);at
an effective height of about 38 feet, and .the groups would be uricr.icd at about 120° spacing^ to
provide coverage in all directions. The maximum effective radiated power in any direction wptild be
2,0S0 watts, represenring the sirnuitaneous operation of two PCS ciiatmcii. ai 240 watts each, six
cellular cbahnels at 200 watts each, arid one:LTE channel at 400 wans There arc reported no other
wireless {eleeommunications base statiorrs installed nearby.
Stlidy Results
For a person anywh^reât ground,, the maximum ambient level off^F cvposure due to tiie proposed
Verizon operation woulci be :Q:0044 mW/cm', which is 0.77% of the applicable public limit. The |
maximum calculated level of RF exposure at any nfiarby building, including the taller buildings j
located to the south, is calculated to be 2.5% of theapplliizable public limit. It should be nptedtltat
z jîcrm- HAMMETT& EDISON, INC.
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Pu.g.c2ol'4
Verizon Wireless • Proposed Base^Station (Site No, 186595 "Market MacArthur")
1001 42nd Street* Emei-yville, California
these results'include, several "worst-case" assumptions and therefore are expected to overstate actual
power density levels.
Recommended Mitigation Measures
Due to their mounting locations, the Verizon antennas would-npt.be accessible to the general public,
and sp no mitigation measures are necessaiy- tccomply with the FCC public exposure guidelines. To
prevent occupational exposuresinêxcess Pf tlie FCC guidelines, no access within 4 feet directly in
front of the Verizon antennasthemselves, such as might occur duriiic maintenance work on the
building, should \>e allowed While .tlie .base station is in operation, unless other measures can be
denionstrated to ensure .that occupational protection requirements are met. Posting explanatory
warning signs' at roof access locationand on the antenna enclosure, such that the: signs would be.
readily visible from any angle of approach to persons who might need to work within thait distance,
would be sufficient to meet FCC-adopted guidelines.
Conclusion
Based on the-information and analysis above, it is the undereigned's professional-opinion that the base
station proposed by Verizon Wireless at 1001 42nd-Street in Emeryville, California, will comply with
the prevailing standards for limiting public exposure to radio frequency energy and, therefore, will not
for this reason cause a significant impact on the environment. The highest carculated level iris,publidy:
•accessible areas is much less than the prevaiUng standards allow for exposures of unlimited duration.
This finding is consistent with measurements of actual exposure conditions taken at other operating
base stations. Posting of explanatory signs is recommended to establish compVmhce witli occupational
pqjpsure Uniitations.
^ -Witruing signs should comply.^wi'th 'pBT-^5 color, s\'mliol,.and,cpnleiit recammcndations, Cohtdcl iiifbrrriatioh
.should be pro.vidcd (e.g., a lelephpncinumber) ID an'onge for acct;s.s fo resiricled.nrcns. The selection of languagc(s)
is. not an engineering mutter; uhd', guidance from the landlordi local, zoiiing or, health, authority, or appropniiic
professinna^ls may ho required.
HAMMETT.&EDISON,INC.
S.AN FRANCISCO
m, c.-PllQC J , O f 4
Verizon Wireless - P r o p o s e d Base Station (Site No. 185595 "Market MacArthur")
1001 42nd Street • Emeryville^ California
Authorship
The undersigned author of this statement is a qualified Professional Engineer, holding California
Registration Nos. £-13026 and M-20676, wliich expire on June 30; 2009, This work has been carri-ed
out under his direction, and all statements are true and correct of his own knowledge except, where
noted, when data has been supplied by others, which data.he believes to be correct.
June 12,2009
QJ- '•-/••^ H A M M E T T & EDTSON, INC.
i-.' " ' : . ,•::'" ''
COXSUL'HNG KN'ClKdiKKS
VWlS5.59559.'i
Paee 4-of4
FCC Radio Frequency Protection Guide
The U.S. Congress required (1996 Telecom Act) the Federal Communicatipns Commission ("FCC'i)
toadppt a nationwide hunian exposure standard to ensure tliatits licensees do not, cumulatively, have
a significant'impact on the environment. The FCC adopted the.limits from Report No, 86, "Biological
Effects and Exposure Criteria for Radiofrequency Electromagnetic Fields," published in 19S6 b)' the
CongressionalTy chartered Narional Council on Radiation Protectipn and Measurements ("NCRP").
Separate liiiiitis apply for occupational and public exposure conditions, with tlie latter hrriits generally
five times more restrictive. The more recent standard, .developed by the Institute of Electrical and
Electronics Engmeers and approved as American NaHonal Standard ANSJ/IEEE C95.1-2006, ''Safety
Levels with Respect to Human Exposure tp Radio Frequency Electi-omagnetic Fields, 3 ktlz to
300 GHz," includes similar limits. These limits apply for continuous exposures from all sources and
are intended to provide a prudent margin of safety for all pei-sons, regardless of age, gender, size, or
health.
I
As shown in- the table and chare below, separate limits :apply for occtipational and ,public exposure
conditiipns, withthc latter limits (in italics and/or dashed) upto five times more rcsnrictive:
Frequency
.Applicable
Electromagnetic Fields ffi.^ frequency of emission in MHzV
Hlectric
Field Strcnylh
fV/m)
•Range
(mizj
0 , 3 - 1.34
1.34,- 3;0
614
MA
3;p- 300
1842./f^
to. ,
27:5
137
61:4
300- 1.500
1,-500- lOO.OOO
614
S23:S/f
Magnetic
Field Strength
{.Mm)
1,63
1,63
4.89/f
0.163
Vf/I06
6.364
EqiJivalent l-ar-Field
Power Density
(inW/cm'),'
i.6B
2.19ff
2.Wf
0.0729
•{f/238
0.J6S
100
]00
900/' f=
LO
f/300
5.0
Jno
JSO/f
0.2
f/im
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Higher-levels are allowed, for short periods of time, such tliat total exposure. leydlSiaveraged'^bver.six or
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levels -iilsp i^r^ allqwed for exposures; to siiiall areas, such that the spatially, averaged levels dp not
exceed the'litorts: However, neither of-these allowances is incorporated in the conser\'ati,ve. calculation
formulas in tlie FCC "Office of Engineering and Technology Bulletin No. 65 (August 1997): for
projecting field levels. Hairiihett &-Edison.has;built those fonnulas into a proprietary.pEogram that,
calculates, at each location on an arbitrary rectaugular.grid, tlic total expected power dehs% frotii atiy
number of individual radio sources. Tlic prbgrani allows for the,description of buildings..ai,i:d;un&^.eu
terrain,-if required to. obtain more accurate projections.
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FIAMMETT& E D I S O N , INC.
aWSULTI.NO Ii.S'GI.\TiiKS
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adopt a nationwide human exposure standard to ensure that its licensees do not, cumxilativel}', have a
significant impact on the environment. Tlic maximum permissible exposure, limits adopted by the FCC
(see Figure 1) apply for'continuous exposures from all sources and are intended to provide .a prudent
margin of safety for all persons, regardless of age, gender, size, or healdi. Higher levels are allowed for
short periods of time, such tliat total exposure levels averaged over six or thirty minutes, for
occupational or public settings, respectively, dp not exceed the Umits.
Near Field,
Prediction methpds have been developed for the near field zone of panel (directional) and whip
(omnidirectibnal) antennas, typical, at wireless telecommunications base stations, as well as disli
(aperture) antennas, typicallyusedformicrowayelinks. The antenna patterns are not fully formed in
the near field at these antennas, and the FCC Office of Engineering aiid Teclinology BuiletinNo. 65
(August 1997) gives suitable^forimilas for calculating power density within such zones.
I
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1 Rfl
0 1XP
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where
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1] - aperture efficiency (unitless, typically 0.5-O.S).
' ^ i m^^^'/cm-.
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Far Field.
O E T - 6 5 gives this fbrtnulafprcalculatingpower'density in the far field of an individual RF source:
_, - .
power density
2.56X 1,64 X IGO xKFF" x E R P '', n,w/ :.
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(
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The factor of 2.56 accounts fpr. l i e increase in power d'ensit>' due to ground reflectipn, assuminga
reflection coefiicient of 1.6 (1,6'x. 1.6 = 2.56). The factpr of 1.64 is the gaihof a half-wave dipole
felative to an isotropic radiator The factor of 100 in the numerator'converts to the desired units of
power density. This formula has been built into a proprietary program that calculates, at each location
on an arbitrary rectangular gi*id, the total expected power density from any number of individual
radiation sources. The program also allows for the description of uneven terrain in tlie vicinity, to
obtain more accurate projections.
HAMMETT
Sc Epi£f©N, INC.
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SHOUP STEPHEN H
999 43 RD ST
OAKLAND CA 94608
CMD09-205
GREENCITY LOFTS LLC
2715 PORTER ST 207
SOQUEL CA 95073
CMD09-205
MILLER BARBARA R TR & MILLER
EUGENE C ETAL
989 41ST ST
OAKLAND CA 94608
CMD09-205
ALLEN RUBIN L
968 41ST ST
OAKLAND CA 94608
CMD09-205
SMITH REGINALD D & NARViE M TRS
3777 CHATEAUGUAY
DECATUR GA 30034
CMD09-205
GALLAGHER JOHN E & ARLEEN A
447 COLON AVE
SAN FRANCISCO CA 94127 | ,
CMD09-205
GEBREMEDHIN DEMET
986 42ND ST
OAKLAND CA 94608
CMD09-205
IO\LBACiI PAUL
4114 LINDEN ST
OAKLAND CA 94608
CMD09-205
LEWIS KERM IT M
PO BOX 24884
OAKLAND CA 94623
CMD09-205
NORTH OAKLAND COMMUNITY
CHARTER SCHOOL
410ALCATRAZAVE
OAKLAND CA 94609
CMD09-205
1001 42ND STREET LLC
130 WEBSTER ST 200
OAKLAND CA 94607
GMD09-205
MIDDLESWART DALE E TR
2005 DELAWARE ST
BERKELEY CA 94709
CMD09-205
KEELS RUBY D TR
614S PLYMOUTH AVE
RICHMOND CA 94805
CMD09-205
STEWART CATHERINE & FRANCOIS
DAVY
984 40TH ST
OAKLAND CA 94608
CMD09-205
DATHE ROBERT P & FRENCH RUTH M
TRS & DATHE RO ETAL
685 LOS PALOS DR
LAFAYETTE CA 94549
CMD09-205
GERMAIN PAUL L & RANDIP
999 42ND ST
OAKLAND CA 94608
CMD09-205
WALKER BUDELL HEIRS OF EST
989 43RD ST
OAKLAND CA 94608
CMDp9-205
FRENCH GEORGE F & MARIA N
4009 LINDEN ST
OAKLAND CA 94608
CMD09-205
THATCHER THOMAS C & WALTERS
WILLIAM
27 SONIA ST
OAKLAND CA 94618
CMD09-205
MANMOHAN DUSHYANT & SMITH
CYNTHIA L ETAL
9S0 4] ST ST
OAKLAND CA 94608
CMD09-205
DOLPHIN JAMELLE
2933 S LA BREA AYE
LOS ANGELES CA 90016
CMD09-205
YOUNG lANYA
9S7 43RD ST
OAKLAND CA 94608
CMD09-205
JANE FOLEY INVESTMENTS LLC &
NOLAN GEORGE H & ETAL
1164 BURNSIDE RD
SEBASTOPOL CA 95472
CMD09-205
1001 42ND STREET LLC
252 PARK WEST DR
PITTSBURGH PA 15275
CMD09-205
Page 1 of3
J o n s s o n , Ulla-Britt
From:
Steven Korovesis [[email protected]]
Sent;
Wednesday, February 17, 2010 3;24 PM
To: •
Jonsson, Ulla-Britt
Cc:
Wald, Zachary; Brunner, Jane
Subject: RE: Urgent: Planning Commission Meeting on Verizon Telecom Facility on 42nd Street
Ms Jonsson,
I have reviewed the link to the report you provided and disagree with a number of findings:
1. It has been determined that the project is exempt to an EIR under CEQA by classifying the
project as "a minor alteration tp an existing facility", i disagree. Nine antennas mounted on a
roof is hardly a minor alteration. It is a significant addition to a "potential designated historic
building." This project should not be exempt from CEQA. Additionally, responsible agencies
like the State Historic Preservation Office should be consulted for comment,
2. Underthe "Site Location" section itwas determined.thatthis project is exempt from site
alternatives analysis because it is not in a residential zone. While HBX-2 is not an R zone, it is
described as housing and business mix. I believe that the housing component should put the
site into the "D" category - "existing commercial or industnal structures in residential zones," and
require additional site analysis.
3. Approval for a conditional use permit under Section 17.134.050 states that the project must
not "be given to harmful effect, upon desirable neighborhood character," and Section
17.128.0600 states the proposed project "must not disrupt the overall community character." A
telecommunications center, mini or otherwise, does not fit in with a predominately residential
neighborhood with a few business cafes and corner stores.
4. The Essential Sen/ices Buildings Seismic Safety Act requires that buildings providing
essential services be capable of providing those services to the public after a disaster. Cellular
communications buildings are generally included under this act, and the report references the
'essential services' provided to the neighborhood by the project. An unreinforced masonry
"potential designated historic building" would not likely meet the requirements of this act. The . .
Division of the State Architect can provide additional consultation.
5. As this building is a "potential designated historic building," I am concerned about the.
additional load from nine antennas on the existing structure. The State Historic Building Code
(Part 8 Title 24) requires that a Report of Structural Integrity be made when any additional load,
will be placed on an existing structure for a qualified historic building.
Thank you,
Steven Korovesis
From: Jonsson, Ulla-Britt [mailto:[email protected]]
Sent: Wednesday, February 17, 2010 2:29 PM
To: Steven Korovesis
Subject; RE; Urgent: Planning Commission Meeting on Verizon Telecom Facility on 42nd Street
Dear Ms. Korovesis,
2/17/2010
|
Pages of3
Sincerely,
Steven Korovesis LEED AP
Gelfand Partners Architects
telephone: 415. 346.4040
2/17/2010
Page 1 of 1
Jonsson, Ulla-Britt
From: Steven Korovesis [[email protected]
Sent: Wednesday, Febaiary 17, 2010 10:20 AM
To:
Jonsson, Ulla-Britt; Brunner, Jane
Cc:
[email protected] [email protected]
Subject: Urgent: Planning Commission Meeting on Verizon Telecom Facility on 42nd Street
Dear Ms. Jonsson and Council President Brenner,
I am a resident of the Longfellow Community in North Oakland. This weekend I received a flyer
on my doorstep informing me of a Planning Commission meeting tonight to review plans for a
Verizon telecom facility within blocks of niy house on 42nd Street.
I am writing to voice my concerns and opposition to this proposed development Longfellow Is a
largely residential neighborhood, and this type of facility seems out of place and inappropriate.
Further, Longfellow is finally experiencing a rebirth of sorts, and I fear this type of infrastructure
would negatively affect property values. I have additional public health and safety concerns
•
about the proximity of cellular communications equipment so close to where my family and
many other families live. I am also angry that I was unaware of this plan until a concerned
neighbor informed me of it. I feel like this kind of infrastructure project would not be considered
in more affluent Oakland neighborhoods.
The California Environmental Quality Act requires regulatory agencies to consider the impacts
ofa proposed development on the environment, includingthepreservation of views. Has an
initial impact study been prepared? Have responsible and trustee agencies like the local Air
Quality Resources Board, Cal/EPA, Public Utilities Commission, and Native American Heritage.
Commission {The North Oakland/Emeryville area had extensive native American settlements)
been consulted? 1 would like to see and comment on an Environmental impact Report from the
Planning Commission.
I strongly urge the Planning Commission to reject the application for proposed development.
Sincerely,
Steven Korovesis LEED AP • '
Gelfand Partners Architects
telephone: 415. 346. 4040
2/17/2010
Page 2 of 2
m Europe, where EMF emission standards are much more stringent, tiie EU Parliament passed a resolution calling for more
regulation of ceJlular towers based on health effects.
The Oakland Planning Commission is meeting Wednesday, February 17th at 6pm at Oakland City Hall, One Frank H. Ogawa
Plaza, Hearing Room No. 1.
Regards,
Jen
•
Jen Schradle
M.P.A., Harvard Kennedy School
M.A., University of California, Berkeley
PhD Student
Department of Sociology
Berkeley Center for New Media
University of California, Berkeley
[email protected]
2/17/2010
Page 1 of2
Jonsson, Ulla-Britt
From:
Chris Chew [[email protected]]
Sent:
Wednesday, February 17, 2010 12:03 AM
To:
Brunner, Jane; Johnson, Geoffrey; Jonsson, Ulla-Britt
i
j
Subject: Proposed Verizon Cell Tower @ 41st Street & Linden St.
Dear Council Member and related Staff,
I am writing to oppose Case File number CMD09-149, a proposal before the Oakland City
Planning Commission for a mini-telecom facility at 1001 42nd Sêet.
My opposition comes at this late date due to the fact that I was never notified of this proposal. I
am a property owner/resident of the Green City Lofts at 1007 41st Street and none of my
neighbors, nor the staff at the North Oakland Charter School, were aware of this proposal, even
though we are liientioned m the property description ofthe Staff Report. A Plarming
Commission Public Hearing notice posted to a telephone pole on Linden Street alerted us to the
existence of this project and prompted my inquiry to the Planning Commission last week.
Oakland touts itself as an environmental model for cities across the country and is the fourth
greenest city in the United States. This proposal may meet Federal guidelines to limit human
exposure to radio frequency electromagnetic fields, but I would hope that Oakland would join
Albany and the City of Los Angeles in seeking and supporting legislation to repeal portions of. .
the Telecommunications Act of 1996 that limit the authority of local governments to regulate cell
towers on the basis of their health and environmental effects. The long terra health efiects of. . .
exposure of electromagnetic and radio frequency emissions are not thoroughly understood - and
this project is directly across the street from an elementary school, The Los Angeles Unified
School District has adopted a resolution opposing the placement of cellular towers on or
immediately adjacent to school property until appropriate regulatory standards have been
adopted.
Other issues with the Staff Report are as follows:
The General Plan is stated as 'Housing and Business Mix' and Zoning as 'HBX-2j Housing and
Business Mix Comraercial Zone," yet the site location is stated as "C" ranked - an existing
commercial or industrial structure in non-residential zone that does not require a site altematives
analysis. A visit to the site would confirm that this neighborhood does have housing and
residents. As stated above, 1 live directly across from the site in the Green City Lofts, a 62-unit
condominium proclaimed the greenest multifamily development by former Mayor Jerry Brown.
Around me are numerous single-family and multi-family homes.
The report mentions several times that this proposal will augment the availability of
telecommunications services in the area. Yet as I glance at my Verizon Wireless cellular phone,
I see that I have five bars (afrillsignal). I have yet to drop a call in this area.
In the conditional use permit criteria for mini facilities, item 3 states that "in zones R-1 through
R-60, the project must not have any visual impact." The staff fmdings state that the project is not
located in a residential zone. I believe the property parcel that will be the location for this minitelecom facility is in R-40 residential zone.
would appreciate a response and your views on this proposal.
2/17/2010
Page 1 of 1
i
Jonsson, Ulla-Britt
From:
KARIN MORRIS [[email protected]]
Sent:
Tuesday, February 16, 2010 7:06 PM
To:
Jonsson, Ulla-Britt
j
-
Subject: Verizon Facility proposed for 42nd street, Oakland
Dear Members ofthe Planning Commission:
[ am a parent of a fourth grader at North Oakland Community Charter School (NOCCS). I have been following the
debate at our school about the proposed Verizon telecom facility at 1001 42"^^ Street. I am concerned about all of the
stakeholders who are affected by this proposed use ~ the owners of the building, who have been unable, to rent it out
for a long period of time; the neighbors who are unhappy with the environmental and aesthetic impacts; Verizon,
which deariy needs a place to put towers in order to meet our demand for cell phone coverage; and, of course, the,kids who attend our own school as well as neighboring schools.
I know that there is no conciusive evidence about tiie potential health impacts of
electromagnetic fields on children. However, I remember clearly the 1950's, when there
was no conclusive evidence about the widespread use of DDT in the environment. And
I remember the 1970's, when there was no conclusive evidence about the use of lUD's
as birth control in women. And I remember the beginning ofthe organic foods
movement in the 1980's, when there was no conclusive evidence about the impact of
pesticides and fungicides and herbicides on our health and our ecosystems (organic
food advocates, in fact, were considered extremists). I also remember the time when
children were routinely given dangerously high levels of mercury in their vaccines,
,
because there was no conclusive evidence about the impact of heavy metals and
bioaccumulation in the human body. b\/er time, the health and/or environmental .,
concems associated with these practices became substantiated through research. And
today, we have either outlawed these practices completely or have vibrant alternative
practices and economies that are beginning to replace them.
Among all ofthe arguments (read for and against the Verizon proposal, the idea
of "precautionary risk" struck me the most deeply. I simply don't think any of u s children or adults ~ should be test cases for what might happen If, in fact, it turns out
that research supports the claims of dangerous, carcinogenic (or other) exposure. I'm
sure you and all other commissioners and regulatory officials would agree with this
principle. None of us wants to find out that we or our children developed life-threatening
diseases simply because the evidence of danger had not been substantiated. To me,
this constitutes negligence.
While I am unclear about the power that the City of Oakland has to stop the Verizon proposal, I am writing to request
that the Planning Commission do what it can to deny Verizon's request and support the company to find an alternate
location for these towers - a location far away from human inhabitants.
Thank you so much for your consideration.
Sincerely,
Karin Morris
2/17/2010
RESOLUTION OF THE BOARD OF DIREaORS.OF THE NORTH OAKLAND COMMUNITi' CHARTER SCHOOL
WHEREAS, the North Oakland Community Charter School ("NOCCS"), located at 1000 42"^
Street, Oakland, is an Oakland Unified School District charter school that has been serving Oakland for
the past ten years; and,
WHEREAS, NOCCS currently serves approximately 150 kindergarteners through seventh graders
and will expand to add an eighth grade and twenty-five additional students next year; and,
WHEREAS, the owners of the property imrhediately across 42"'' Street from NOCCS (100142"''
Street) have applied to the City of Oakland for a conditional use permit (CMD09-205) to establish a new
mini-telecom facility with 9 antennas located within a decorative screen oh the roof of the building; and,
WHEREAS, the Beard of Directors of NOCCS has reviewed the proposed site plan for the mfnltelecom facility; and,
WHEREAS, the health and safety of our students Is a fundamental concern ofthe Board pf
Directors of NOCCS; and,
WHEREAS; there continues to be considerable debate and uncertainty within the scientific
community as to the potential health effects to children from exposure to extremely low frequency
electromagnetic and radio-frequency radiation;
Whereas, the full Parliament ofthe European Union has raised concerns about the exposure of
children and young people to electromagnetic fields and continuing uncertainties about possible health
risks;
Whereas, the Los Angeles Unified School District established a policy to protect school children
by preventing location of cell towers near schools;
WHERE/VS, based on the use of 1000 42™* Street as a school, the placement ofthe
telecommunications facility directly adjacent to a building full of sensitive receptors constitutes an
incompatible land use; and,
THEREFORE, BE H" RESOLVED THAT the Board of Directors of NOCCS opposes the proposal to
grant a conditional use permit or place a mini-telecom facility with 9 antennas directly across the street
from 150 five to thirteen year-old children.
Page 1 of|l
I
i
'
•
Jonsson, Ulla-Britt
From:
Masako Hoshino [[email protected]]
Sent:
Monday, February 15, 2010 8:13 AM
To:
Jonsson, Ulla-Britt
Subject: 1001 42nd Street proposal 1 Case File Number CMD09-205
Dear Ms Jonsson:
I am writing in regards to the Telecommunications Facility project across the street from where I
and my husband live & work. My husband & I are long-time Oakland residents: my husband
has Owned and lived at this particular location since 1971.
We've received the Oakland City Plarming Commission Agenda by mail, and learned that there
is a proposal to establish a new telecom facility directly across the street from us.
We are quite concerned especially for 2 reasons.
(1) Firstof all, we are genuinely concerned about our health. There has been some research and
much discussions regarding the impact of electromagnetic fields created by cell phone towers,
such as this one proposed at this location. In general, I've heard that the WHO states that the
currently available research indicates that it is unlikely that exposure to electromagnetic fields
constitutes a serious health hazard, but at the same time, the WHO has noted that some
uncertainty still remains. I know that the FCC has established standards that are much more lax..
than those of many European nations. Since the research regarding the effects of
electromagnetic fields.on humans have not been conclusive, we think it is a bad idea to, have this •
facility built directly across from our home, and in a relatively dense residential area near a park
«fe a school.
(2) Secondly, my husband has owned & operated a video/film production business for over 30 ,
years at this location. He is quite worried that this facility will create electromagnetic
interference for the equipment he uses for recording of audio and video. This will seriously
impact his work; therefore, our livelihood.
On the whole, we strongly believe this is NOT a good idea. I understand that this building has
been vacant for a while, and the owner must be eager to rent it out. But he DOES NOT hve in
the neighborhood, we DO. I hope that the City Plarming Commission will take concems ofthe •
residents serioiisly.
Thank you,
Masalco Kalbach
ph. 510-594-1253
2/16/2010
i
i
Page 1 of 1
From:
Shana Sturm [[email protected]]
Sent:
Friday. February 12. 2010 4:39 PM
To:
Jonsson, Ulla-Britt
Subject: 1001 42nd Street Proposed Telecom Facility
Dear Ms. Ulla Britt Jonsson,
I am a concerned parent of two children who attend NOCCS, the K-8 located less than 50 feet
from the proposed Telecom facility, across 42nd Street. I understand that the health risks
from such a facility are unknown. I also understand that the European Union, as well as LA
Unified and other school districts in the United States haye already taken steps which would.
prevent an equivalent installation due to unknown health risks and possible detrimental
health effects.
The thought of my children spending 8 hours a day in a school that could possible expose
them to long-term harmful effects is unacceptable to me. Taking a chance that such exposure
could be harmful to the close to 200 children and staff of NOCCS is unacceptable. There are
many unknowns in the world. There are many health risks in our daily lives. This is not one •
that is worth taking.
I ask that you consider the ethical implications of the proposal and join me, as well as the
majority of parents at NOCCS, in opposing the proposed installation.
Sincerely,
Shana Sturm
(510)367-4161
[email protected]
2/16/2010
Page 1 of 1
Jonsson, Ulla-Britt
From:
Kayla Kirsch [[email protected]]
Sent:
Friday. February 12, 2010 11:03 AM
To:
Jonsson. Ulla-Britt
Subject: Please Deny Conditional Use Permit - No phone towers at 1001 42nd Street
TO: Ulla-Britt Jonsson , Planner II
City of Oakland Planning and Zoning Division
250 Frank H. Ogawa Plaza, Suite 2114
Oakland, CA 94612
(510)238-3322
uionsson(5)oaklandnet .com
Dear Planning Commission.
I urge you to not allow a conditional use permit for 1001 42nd Street that would eventually allow Verizon,
the mobile phone company, to install a telecom facility with 9 antennas on the roof of the vacant building
across the street from a public park (Linden) and a public school ( North Oakland Charter School), as well
as a neighborhood comprised ofthe young and old, mostly low income. Please deny this permit, as this is
your part in the process.
As you probably know, there is precedent for not allowing such towers near children and public schools.
The LA Unified School District adopted a resolution opposing placement of cell phone adjacent to
schools because of the potentially hannful impacts on children. Dr. Martin Blank, a Professor of
Physiology and Cellular Biophysics at Columbia University supported the LAUSD resolution on the
grounds that there is sufficient scientific data about the biological effects of electromagnetic filed to argue
in favor a precautionary approach, particularly with respect to school-age children.
Furthermore, The World Health Organization (WHO) has evaluated risks from electromagnetic fields. The
WHO website says that "much of the scientific research examining long-term risks from ELF magnetic
field
exposure has focused on childhood leukemia. In 2002, lARC published a monograph classifying ELF
magnetic fields as "possibly carcinogenic to humans". This classification Is used to denote an agent for
which there is limited evidence of carcinogenicity in humans and less than sufficient evidence for
\
carcinogenicity
in experimental animals (other examples include coffee and welding fumes). This classification was based
on pooled analyses of epidemiological studies demonstrating a consistent pattern of a two-fold increase in
childhood leukaemia associated with average exposure to residential power-frequency magnetic field
above 0.3 to 0,4 pT, The Task Group conduded that additional studies since then do not atter the status
of this classification."
In Europe, many countries regulate hazardous exposures based on the precautionary principle, which
restricts exposure if here is evidence that a product may be hannful. In the U.S., regulators tend to wait to
restrict exposure until there is evidence that the product is harmful (e.g, asbestos, cigarettes, etc.). This
approach, if the City of Oakland were to take it. could lead a lasting legacy of harms.
We ask that you take the precautionary principle, and do YOUR part by denying a conditional use permit.
Thank you for helping to keep Oakland's children safe,
Sincerely,
Kayla Kirsch
4118 Lyman Road
Oakland, CA 94602
•
(510)482-4049 •
[email protected]
2/16/2010
.
Message
Page 1 of ,1
i
From:
O'Brien, Chris [[email protected]]
Sent:
Thursday, February 11, 2010 2:47 PM
To'.
Jonsson, Ulla-Britt
Subject: verizon cell phone issue and NOCCS
Ulla:
I'm one of several parents from NOCCS with converns about the Verizon cell phone tower. I've seen you
response that the Planning Commission has no authority over radio frequency issues. I'm trying to
understand, then, why this is even being take up at a meeting next weel<? What are the elements that
Oakland has to approve?
And is there another agency, the CPUC or FCC, that does have to issue a permit in this case?
best,
•
.
,,
-1
I
i
I
Chris O'Brien
415-298-0207'
2/16/2010
From:
Sent:
To:
Subject:
Kathy Stinus [[email protected]]
Thursday, February 11, 2010 11:42 AM
Jonsson, Ulla-Britt
Telecom towers @ 1001 42nd St
Dear Ulla Britt Jonsson,
•I am expressing my concern over Verizon's request to install 9 telecom towers across the street from a K-7
school of over 150 children (North Oakland Community Charter School). Research indicates an increase in
cancer and break down of DNA on exposure to EMF radiation. Placing these towers so closely to a school is a
grave irresponsibility. 1 urge the Planning Commission to not dismiss the Oakland community's concern ofi this.
matter as the jurisdiction of the FCC and consider the exposure from these 9 towers on the health of
I
Oakland's school children.
t
.•
• '
. " . • • •
i
Concerned Parent of Two NOCCS School Children, Kathy Stinus
-i
2495 Best Avenue
i
Oakland. CA 94601
Page 1 o f 2
From:
Julene Freitas [[email protected]]
Sent:
Thursday, February 11, 2010 10:23 AM
To:
Jonsson, Ulla-Britt
Subject: Cell phone towers across from a public school
Dear Ulla - it Is really hard to believe that you are responding to concerned citizens and parents
re: the cell phone tovvers with your email below.
Thens isn't enough research to show the impacts on children, whose brains and organs are still
developing, which suggests that there could be impacts and problems that are not well enough
understood to take the risk of placing these things with such close proximity to so many school
children. The City should, at the very least, undertake to closely study the research that exists,
and should not grant the permit as a precautionary principle.
Cell phone towers create electromagnetic fields. I was told that the World Health Organization
(WHO) has evaluated risks from electromagnetic fields. The WHO website says that "much of ,
the scientific research examining long-term risks from ELF magnetic field exposure has focused
on childhood leukemia. In 2002, lARC published a monograph classifying ELF magnetic fields,
as '-possibly carcinogenic to humans". This classification is used to denote an agent for which
there is limited evidence of carcinogenicity in humans and less than sufficient evidence for
carcinogenicity in experimental animals (other examples include coffee and yielding fumes).
This classification was based on pooled analyses of epidemiological studies demonstrating a
consistent pattern of a two-fold increase in childhood leukemia associated with average
exposure to residential power-frequency magnetic field above 0.3 to 0.4 pT. The Task Group
concluded that additional studies since then do not alter the status of this classification." In
general, the WHO says that the currently available research indicates that it is unlikely that
exposure to electromagnetic fields constitutes a serious health hazard. At the same time, the
WHO has noted that some uncertainty remains. There does not seem to be much research on
how these fields affect children.
In the U.S., electromagnetic fields are regulated by the FCC, which has established standards
that are much more lax than many European countries. In Europe, many countries regulate
hazardous exposures based on the precautionary principle, which restricts exposure if there is
evidence that a product may be harmful. In the U.S., regulators tend to wait to restrict exposure
until there is evidence that the product is harmful (e.g. asbestos, cigarettes, etc.).
The L^ Unified School District has adopted a resolution opposing placement of cell phone
adjacent to schools because ofthe potentially harmful impacts on children. Dr. Martin Blank, a
Professor of Physiology and Cellular Biophysics at Columbia University supported the LAUSD
resolution on the grounds that there is sufficient scientific data about the biological effects of
electromagnetic filed to argue in favor a precautionary approach, particulariy with respect to
school-age children.
There's a large movement of concerned citizens and parents planning on taking this issue very
seriously. I would appreciate a more thoughtful approach in working with the community being
effective about this possible development.
Sincerely,
Julene Cirne Lima
2/1I./2010
Jonsson, Ulla-Britt
From:
Sent:
To:
Subject:
Victoria Anderson [[email protected]]
Wednesday, February 10, 2010 1:31 PM
Jonsson, Ulla-Britt
NO CELL PHONE towers next to schoolll
Dear Ms. Jonsson,
. I am a parent of two children at the North Oakland Community Charter School (NOCCS) at 1000 42nd Street,
Oakland.
|
I am deeply concerned that a proposal is on the table to build cell phone towers across the street from the
school.
I
Due to the possible negative health effects such towers may cause, it seems very unwise to allow construction
of such potentially unhealthy structures in proximity to a school where many young children will spend hours
and hours of their lives.
|"
Please do not allow this construction to proceed.
Sincerely,
' • • . . • • ;
Victoria Anderson 1781 Casteriine Rd
i
Oakland, CA 94602
"!
From:
Sent:
To:
Subject:
Amanda Gerrie [[email protected]
Jonsson, Ulla-Britt
Cell Phone Tower on 42nd Street
Dear Ulla Britt Jonsson1 just received notice that the owners of the property at 1001 42nd Street In Oakland are planning to put cell
phone towers across the street from my daughter's school I'm unable to attend the meeting to approve tHese
measures on February 17. I would like to voice my clear and loud disapproval of the installation of these |
towers so close to a school. My daughter will spend the next 9 year in this facility and I would prefer she not be
exposed to possibly harmful electromagnetic fields and radiation.
Thank you,
Amanda (Serrie
Parent of a student at the North Oakland Community Charter School
(510)325^6959
Page 1 ofi
Jonsson, Ulla-Britt
From:
Jen [[email protected]]
Sent:
To:
Jonsson, Ulla-Britt
Cc:
[email protected]
Subject: Verizon Telcom Risk to Oakland Children
Dear Ms. Ulla Britt Jonsson,
My name is Jen Schradle. My son 7 year old son attends the North Oakland Community Charter School
(NOCCS), which is directly across the street from Veri2on's proposed telcom facility on 42" Street. As both
a parent and a social scientist, I am writing to request that you deny Verizon's request for zoning approval for
this potential risk to all of the children at the school and those who use the neighborhood park. Through my
academic work, I conduct statistical analyses on a regular basis, and, of course, itis impossible to say what the
exact risk of electromagnetic fields are to our children. I suspect that Verizon, a corporation with a powerful
legal team, will present claims that there is no substantiated risk. Risks are real to laboratory animals and
people throughout the world, but because we can not directly (and morally) test such a hazzard on our
children, the exact risk is not known. Please do not make our children a test case for long-term health effects.
Regards,
Jen
lenschradle
m.p.a,, Harvard KennedySchool
m.a. University of California, Berkeley
department of sociology
berkeley center for new media
university of California, berkeley
[email protected]
2/11/2010
.•>
^
^
Page 1 of'2
From:
Terese Gjernes [[email protected]]
Sent:
Tuesday, February 09, 2010 10:33 PM
To:
Jonsson, Ulla-Britt
Subject: re: placement of cell phone towers
Dear Planning Commission.
1 am very concerned and urge you to not allow Verizon, the mobile phone company, is proposing to
install a telecom facility with 9 antennas on the roof ofthe vacant building across the street from NOCCS
- North Oakland Charter School (1001 42"^^ Street).
The LA Unified School District has adopted a resolution opposing placement of cell phone adjacent to
schools because ofthe potentially harmful impacts on children. Dr. Martin Blank, a Professor of
Physiology and Cellular Biophysics at Columbia University supported the LAUSD resolution on the
grounds that there is sufficient scientific data about the biological effects of electromagnetic filed to argue
in favor a precautionary aipproach, particularly with respect to school-age children.
Cell phone towers create electromagnetic fields. The World Health Organization (WHO) has evaluated
risks from electromagnetic fields. TheWHO website says that "much ofthe scientific research • ,
examining long-term risks from ELF magnetic field exposure has focused on childhood leukaemia. In
2002, lARC published a monograph classifying ELF magnetic fields as "possibly carcinogenic to
humans". This classification is used to denote an agent for which there is limited evidence of
carcinogenicity in humans and less than sufficient evidence for carcinogenicity in experimental animals
(other examples include coffee and welding fumes). This classification was based on pooled analyses of
epidemiological studies demonstrating a consistent pattem of a two-fold increase in childhood leukaemia
associated with average exposure to residential power-frequency magnetic field above 0.3 to 0.4 |iT. The
Task Group concluded that additional studies since then do not alter the status of this classification. " In
general, the WHO says that the currently available research indicates that it is unlikely that exposure to
electromagnetic fields constitutes a serious health hazard: At the same time, the WHO has noted that
some uncertainty remains. There does not seem to be much research on how these fields affect children.
In the U.S., electromagnetic fields are regulated by the FCC, which has established standards that are
•much more lax than many European countries.. In Europe, many countries regulate hazardous exposures
based on the precautionary principle, which restricts exposure if there is evidence that a product may be
hannful. In the U.S., regulators tend to wait to restrict exposure until there is evidence that the product is
harmful (e.g. asbestos, cigarettes, etc.).
Thank you for helping to keep our children safe,
Sincerely,
Dr. Terese Gjernes
2/11/2010
Page 1 of 2
From:
Michael Bertorelli [[email protected]]
Sent:
Sunday, February 07, 2010 8:50 AM
To:
Brunner, Jane; Johnson, Geoffrey; Jonsson, Ulla-Britt
Subject: Opposition Letter to 1001 42nd St Telecom Facility
I am writing to oppose Case File number CMD09-149, a proposal before the Oakland
City Planning Commission for a mini-telecom facility at 1001 42nd Street.
My opposition comes at this late date due to the fact that I was never notified of this
proposal. I am a property owner/resident of the Green City Lofts at 1007 41 st Street and
none of my neighbors, nor the staff at the North Oakland Charter School, were aware of
this proposal, even though we are mentioned in the property description ofthe Staff
Report. A Planning Commission Public Hearing notice posted to a telephone pole on
Linden Street alerted us to the existence of this project and prompted my inquiry to the
Planning Commission last week.
Oakland touts itself as an enviroiunental model for cities across the coimtry and is the '
fourth greenest city in the United States. This proposal may. meet Federal guidelines to
limit human exposure to radiofi:equencyelectromagnetic fields, but I would hope that .
Oakland would join Albany and the City of Los Angeles in seeking and supporting . . .
legislation to repeal portions ofthe Telecommtmications Act of 1996 that limit the
authority of local governments to regulate cell towers on the basis of their health and ,
environmental effects. The long term health effects of exposure of electromagnetic and
radiofirequencyemissions are not thoroughly understood - and this project is directly
across the street from an elementary school. The Los Angeles Unified School District
has adopted a resolution opposing the placement of cellular towers on or immediately
adjacent to school property until appropriate regulatory standards have been adopted.
Other issues with the Staff Report are as follows:
The General Plan is stated as 'Housing and Business Mix' and Zoning as 'HBX-2,
Housing and Business.Mix Commercial Zone," yet the site location is stated as "C"
ranked - an existing commercial or industrial structure in non-residential zone that does
not require a site altematives analysis. A visit to the site would confirm that this
neighborhood does have housing and residents. As stated above, I live directly across
firom the site in the Green City Lofts, a 62-unit condominium proclaimed the greenest
multifamily development by former Mayor Jerry Brown. Aroimd me are niomerous
single-family and multi-family homes.
The report mentions several tunes that this proposal will augment the availability of
telecommunications services in the area. Yet as I glance at my Verizon Wireless cellular
phone, I see that I have five bars (a full signal). I have yet to drop a call in this area.
In the conditional use permit criteria for mini facilities, item 3 states that "in zones R-1
through R-60, the project must not have any visual impact." The staff findings state that
the project is not located in a residential zone. I believe the property parcel that will be
the location for this mini-telecom facility is in R-40 residential zone.
2/11/2010
RESOLUTION OF THE BOARD OF DIRECTORS OF THE NORTH OAKLAND COMMUNfTY CHARTER SCHOOL
WHEREAS, the North Oakland Community Charter School ("NOCCS"), located at 1000 42""
Street, Oakland, Is an Oakland Unified School District charter school that has been serving Oakland for
the past ten years; and,
WHEREAS, NOCCS currently serves approximately 150 kindergarteners through seventh graders
and will expand to add an eighth grade and twenty-five additional students next year; and,
WHEREAS, the owners of the property immediately across 42"^ Street from NOCCS (100142"^*
Street) have applied to the City of Oakland for a conditional use permit (CMD09-20S) to establish a new
minl-telecom facility with 9 antennas located within a decorative screen on the roof of the building; and,
WHEREAS, the Board of Directors of NOCCS has reviewed the proposed site plan for the minitelecom facility; and,
WHEREAS, the health and safety of our students is a fundamental concern ofthe Board of
Directors of NOCCS; and,
WHEREAS, there continues to be considerable debate and uncertainty within the scientific
community as to the potential health effects to children from exposure to extremely low frequency
electromagnetic and radio-frequency radiation;
Whereas, lê full Parliament of the European Union has raised concerns about the exposure of
children and young people to electromagnetic fields and continuing uncertainties about possible health
risks;
Whereas, the Los Angeles Unified School District established a policy to protect school children
by preventing location of cell towers near schools;
WHEREAS, based on the use of 1000 42"** Street as a school, the placement of the
telecommunications facility directly adjacent to a building full of sensitive receptors constitutes an
incompatible land use; and,
THEREFORE, BE IT RESOLVED THAT the Board of Directors of NOCCS opposes the proposal to
grant a conditional use permit or place a mini-telecom facility with 9 antennas directly across the street
from 150 five to thirteen year-old children.
I ask the Planning Department, in this case Ms. Jonssen, to not approve f.hi.q
apphcation untU it can be fUrtJier reviewed and forced to be executed in an
appropriate manner. There needs to be time for pubhc comment.
I ask the Oakland City Council member. Ms. Brunner, to change the poUcy for
Oakland by seeking and supporting legislation to repeal portions of The
Teleconuntinications Act of 1996 that limit the authority of local governments
to regulate cell towers on the basis of their health and environmental effects.
Oakland prides itself in being an environmentaJl model for many cities across the
cotmtry and is the "fourth greenest city In the U.S." Please join Albany and Los
Angeles ta the effort to protect the health and environment for oup citizens.
The long-term exposure to electromagnetic and radio frequency emissions are
not thoroughly tmderstood, but there is plenty of evidence to support l^VER
allowing a telecom facility near our most sensitive citizens - in this case the
children at NOCCS and the siu?roundlng area.
There is a quote that I wish to end with
"It is worth noting that in the case of tobacco and limg cancer, debates over
whether there was a true increase In lung cancer associated with smoking raged
far longer than they should have, fomented by an active disinformation
campaign of which this Congress is weU aware. The dilemma of pubhc policy
when it comes to controlling and identU^rlng the causes of cancer is profound.
If we Insist we must be certain of human harm and wait for definitive evidence of
such damage, we are effectively saying that we can only act to prevent ftittire
cancers, once past ones have become evident. RecaUtog the 70 years that it took
to remove lead from paint and gasoline and the 50 years that it took to
convincingly establish the link between smoking and lung cancer, I argue that
we must learn from our past to do a better job of Interpreting evidence of
potential risk. In feihng to act quickly, we subject ourselves, our children and
our grandchildren to the possibility of grave harm and to hving with the
knowledge that with more rapid action that harm could have been averted.
Dr. Ronald Herberman, Director, University of Pittsburg Cancer Institute
I thank you for your time regarding this matter and hope you wiU. all do the
right thing.
Sincerely,
Cynthia Carpenter
1007 41st Street, tmlt 521
(510) 654 - 4553
From: C Carpenter <[email protected]>
To: Jane Brunner <[email protected]>; Geoffi?ey Johnson
<[email protected]>; Ulla Britt Jonssen <t:i][email protected]>
Sent: Stmt, February 7,2010 1:13:52 PM
Subject: lOOl 42nd Street Telecom Facihty
HeUo,
I am writing to oppose the minl-telecom facility, case number CMD09-149,
which is proposed before the Oakland Planning Commission.
]My opposition comes at this late date due to the fact that I was never notified of
this proposal I am a property owner and resident of The GreenCity Lofts at
1007 41st Street. I can look out my windows & see the building in mention I
have been unable to locate a single owner that was notified of this proposed
project as weU as anyone at The North Oakland Charter School, which both sit
directly across the street from this site. I only became aware of it due to a sign
posted on the comer of 41st and Linden Streets. This was less than 2 weeks
before final appi»oval.
I believe there are many errors wittdn the proposal, such as:
* In the General Plan it states this site is "Housing and Business Mix" and is
zoned as HBX-2, yet the apphcation states it is a "G" - an existing commercial or
Industrial structure In non-residential zone that does not require a site
altematives analysis. The only picture ofthe property is a frontal shot ofthe
building itself. The front door to NOCCS is directly across the street and on the
other side ofthe property is a 62 unit condominium complex. There are
ntimerous houses and condos in the direct area (much more residential than
commercial). There should have been pictures included of the a4jacent aiea, I
wotild like to beUeve it was overlooked Instead of by intent.
* As a Verizon customer, I wHl comment that m^ service here is always five bars
and I have never had a dropped call. I'm imconvinced that cell service needs
augmentation. I had Sprint service previously as never had aji issue in this area
either.
* This building is and has been deserted since I purchased my property In 2006.
It has been consistently a plaê for homeless to encamp. There is currently
some clothing ajid sleeping materials on the roof of one ofthe structures and I
don't beheve that this site cotild protect someone from getting up on the roof and
face ftirther exposure or more. The fencing they have recently put aroimd the
buUding is not only an eyesore, but put up in a very amateurish manner. It
wotild never prevent anyonefl?omgainttig access to the structure or roof. There
clearly have not made all reasonable means of reducing pubUc access to the
structure.
We contend that cell phone coverage is NOT an issue in
the area. The attached is a montage of "Verizon Wireless
Printer Friendly Coverage Maps" which do not indicate
any area without cell coverage.
veri/Oflwrefess aainm
hUp://www.veri zonwircless.com'b2c/Covera
iM[S!SS5
i^ri^êss
Verizon Wireless Printer Friendly Cove
^«^rMerF„e„<„,eo
ê^geflflap
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279 feet
295 feet
NA
161 feet
151 feet
161 feet
NA
161 feet
161 feet
161 feet
NA
NA
194 feet
194 feat
216 feet
182 feet
NA
194 feet
348 feet
348 feet
339 feet
280 feet
123 feet
98 feet
279 feet
279 feet
279 feet
305 feet
7 feet
7 feet
1.46 miles
1.46 miles
1.92 miles
1.92 mites
1.92 mites
1.92 mites
1.92 mites
1.92 miles
1.92 mites
1.92 mites
1.94 mites
1.94 mites
1.98 miles
1.98 miles
1.99 miles
1.96 miles
1.98 mites
1.97 mites
2.00 mites
2.00 mites
2.00 miles
2.00 mites
2.02 mites
2.03 mites
2.03 mites
2.03 mites
2.03 miles
2.04 miles
2.03 mites
2.03 miles
371 feet
2.05 mites
371 feet
105 feet
371 feet
359 feet
377 feet
449 feet
371 feet
371 feet
194 feet
194 feet
2.05
2.05
2.06
2.07
2,07
2.05
2.05
2.05
2.06
2.06
mites
miles
miles
miles
miles
miles
mites
mites
mites
mites
NA
2.12 mites
266 feet
266 feet
266 feet
10 feet
10 feet
110 feet
177 feet
126 feet
112 feet
NA
NA
97 feet
171 feet
NA •
180 feet
187 feet
187 feet
200 feet
187 feet
NA
118 feet
118 feet
118 feet
155 feet
154 feet
2.12 miles
2.12 miles
2.12 mites
2.44 mites
2.44 mites
2.55 miles
2.55 mites
2.54 mites
2.55 mites
2.55 mites
2.55 mites
2.55 miles
2.56 mites
2.57 mites
2,57 mites
2.57 rraies
2.58 mites
2.55 miles
2.57 miles
2.58 miles
2.58 mites
2.58 miles
2.58 miles
2.65 miles
2.65 miles
155 feet
2.66 mites
2/27/2010 10:10 PM
AntennaSearch - Search for Cell Towers, Cell Reception, Hdden Anten...
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http://www,antennasearch.com/sitestartasp7sourcepageDame=reportvi,.
Areh Paging he
Nextel Of CaCfomia Inc
Backlink h/. Lte
Hines hterests Limited Partnerstiip
Ssa Marine, he.
Ssa Marine, he.
Nextel Of Califomia he
Nextel Of Califomia, he.
Nextel Of Califomia inc
Ge Medical Systems hfomiation
Technotogies
Kaiser Medical Center
Califomia. State Of
Califomia. State Of
Califomia, State Of
Califomia, State Of
Califomia. State Of
Heafth Care Seeurifv Services
Backlink W. Lie
• CWIdrensHosoHafAndMedCefrfer
Ams Spectrum Holdinas. Lie
Childrens Hosprtel And Mad Center
Childrens Hospital And Med Center
Childrens Hospital And Med Center
Veriron VWretess (vaw) Lte
Childrens Hospitel And Med Center
Childrens Hospital Oakland
Childrens Hospital Medical Center Of No
Calif Dba Chiterens Hospital Oaktend
Alta Bates Summ't Medical Center
Alta Bates Summit Medical Center
Prentiss Properties
Prentiss Properties
Califomia. State Of
Califomia. State Of
Califomia. State Of
Califorraa. State Of
Northwest Asset Manaaement
Califomia, State Of
Piedmont. Citv Of
Atemeda, County Of
Aite BatesSummit Medical Center
Atta Bates Medical Center
Oakland Properties Lie
Oakland Properties Uc
SanFrandsco BavArea RaoidTransit
District
BavArea Rapid Transit District
San Francisco Bav Area Rapid Transit
District
WestCoastNoveltv
Home Depot 627
Piedmont. City Of
Piedmont. City Of
Kaiser Pennanente
Kaiser Permanent
San Francisco BavArea Rapid Transit
District
Kaiser Foundation Health Plaa Inc. .
Backlink Iv, Lte
Alameda Contra Costa Transit District
Alameda Contra Costa Transit Distnct
Alameda Contra Coste Transit District
San Francisco BavArea Raoid Transit
District
San Francisco Bav Area Rapid Transit
District
BacWink V. Uc
Oakterid.CitvOf
Oakland. Citv Of
Pixar Artimation Studios
145 feet
157 feet
167 feet
171 feet
199 feet
7 feet
NA
75 feet
75 feet
89 feet
89 feet
2.66 miles
Z7S mites
Z 7 5 mites
2 7 7 miles
2 7 6 mites
2.84 miles
2.84 mites
2.91 miles
2.91 mites
2 9 2 nîes
2,92 mites
NA
.44 mites
NA
128 feet
128 feet
112 feet
112 feet
128 feet
NA
68 feet
98 feet
97 feet
98 feet
98 feet
98 feet
100 feet
98 feet
93 feet
,43 miles
.76 m\es
.76 miies
.76 mites
.76 miles
.76 mites
.77 frttes
.76 mites
,77 mttes
.77 mites
.77 mites
.77 mites
.77n^les
.77n^tes
.77 mites
.79 miles
197 feet
.79 mites
148 feat
NA
82 feet
NA
t^
98 feet
242 feet
242 feet
242 feet
242 feet
NA
242 feet
NA
46 feet
NA
109 feet
NA
280 feet
.82 m'tes
.82 mites
.85 mites
.85 mites
1.34 miles
1.34 miles
1.35 mites
1.35 miles
1.35 miles
1.35 mites
1.37 miles
1.35 mites
1.53 mites
1.51 mites
1.55 mites
1.55 mites
1.57 mites
1.57 miles
NA
1.58 mites
NA
1.58 mites
NA
1.58 mites
NA
NA
NA
NA
74 feet
NA
NA
1.59 mites
1.59 mites
1.60 mites
1.60 mites
1.61 mites
1.61 mites
1.64 mites
NA
1.64 mites
79 feet
169 feet
75 feet
NA
55 feet
1.64 miles
1.65 mites
1.66 mites
1.66rr^tes
1.87 miles
NA
1.68 mites
NA
1.68 miles
NA
104 f ^ t
NA
NA
NA
.
1.68 mites
1.73
1.70
1.70
1.71
mites
miles
mites
mites
2/27/2010 10:10 PM
AntennaSearch- SearchforCell Towers, Cell Reception,Hidden Antm...
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4 of 10
bttp://www.antennasearch,coni/sitestartasp?sourcepagename=reportvi.
Pixar Animation Studios
Keith Lattin. Richard C. Gooch Dba Data
Transfer Systems
Pac West Tetecomm he
Pac-norlh Telecomm Corooration
Weboass. Inc. •
Atfit California
Adt Security Services he
Shell Stetion
Paula Ledue Fine Catering
Me Donalds Restaurants OfCa he 11834
Harman-son. Inc.
Mcdonaki S Restaurants OfCa he#1666
GrafKl Lake Gardens
JackhTbeBoxhc
Chiron Corp
Chiron Corp
The Essex On Lake Menitl Association
Aterrteda, CountvOf
The Cteremont Resort And Soa
The Claremont Resort And Soa
Burner King
Miramar Manaaement
Burger King
Jack h The Box
Blackstone Acres, Lie.
Wendvs 8
Church Chicken
Local Area Tetecommunlcatlons he
Frontier Comnnunications Sen/ices he
Occ Venture, Lie
' St Marvs Gardens
Park Oaktend Hotel
Shorenstein Comoanv Lo
Occ Venture Lie
Occ Venture Lte
Aa Acme Locksmiths he Dba Acme
Security Systems
Kaiser Foundation Health Plan. he.
Embarcadero Business Park Lie
National Surfece Cteanina he
Sic-tekeside Dr.. Lie
CloroxCorp
Chiron Corooration
Chiron Corporation
Novartis Vaccines And Dlaonosties, he.
Encinal Jackson Lte
EncinaiJackson Lte
EncinalJacksonLte
Emerwilte.CitvOf
Emerwitte. Town Of
Emerwilte.CitvOf
Emervvilte. CityOf
Califomia. Stete Of
Califomia. State Of
California. Stete Of
Califomia. State Of •
Califomia, Stete Of
Califomia, Stete Of
Califomia. Stete Of
Califomia. Stete Of
Regents Of The UniversitV Of Califomia
Regents Of The Unlversitv Of Califomia
East Bav Munldpal Utility District
East Bay Munldpal Utility Distrid
East Bav Municipal Utilitv Distrid
East Bay Municipal Utilitv Distrid
East BavMunId pal Utilitv Distrid
ShorerBteinCorrainavLp.
Shorenstein Comonav L p .
Alameda. CountvOf
East Bay Municipal Utirity Distrid
BavArea Rapid Transit Distrid
San Francisco Bay Area Rapid Transit
Distrid
36 feet
1.71 miles
195 feet
1,77 mites
NA
NA
145 feet
343 feet
134 feet
NA
NA
NA
NA
NA
NA
NA
66 feet
NA
NA
167 feet
NA
85 feet
NA
NA
NA
NA
NA
NA
NA
136 feet
213 feet
79 feet
NA
79 feet
79 feet
79 feet
NA
1.77 mites
1.77 mites
1.76 miles
1.81 mites
1.80 mites
1.83 mites
1.85 mites
1.68 mites
1,88 mites
1.88 mites
1.88 mites
1,88 miles
1.89 miles
1,89 miles
1.90 mites
1.91 miies
1.90 miies
1.90 mates
1.92n«tes
1.92n^tes
1.92 mites
1.92 mites
1.92 mites
1.92 mites
1.92 mites
1.95 mites
1.95 miles
1.96 mites
1.96 miles
1.96 miles
1.96 miles
1.96 miles
1.96 miles
NA
2.00 mites
NA
NA
NA
89 feet
NA
NA
59 feet
59 feet
NA
83 feet
NA
69 feet
NA
NA
NA
217 feet
217 feet
217 feet
217 feet
217 feet
217 feet
217 feet
217 feet
NA
NA
NA
NA
98 feet
60 feet
90 feet
318 feet
NA
165 feet
160 feet
NA
175 feet
NA
2.00 mites
2.00 mites
2,00 mites
2 0 0 mites
2.00 mites
2,01 miles
2.01 mites
2,01 miles
2 0 2 miles
2,02 mites.
2.02 n^tes
2.04 mites
2.04 miles
2,04 mites
2.04 miles
2.05 mites
2.05 mites
2 0 5 mites
2 0 5 mites
2.05 miles
2 0 5 miles
2 0 5 mites
2.05 mites
2.06 miles
2.06 miles
2.08 mites
2 0 9 mites
2 0 9 mites
2.09 mites
2.09 mites
2.08 mites
2.06 iTrites
2.06 miles
2 0 8 miles
2,08 miles
2,08 mites
2.09 mites
NA
2.09 milss
2/27/2010 10:10 PM
Antenrîiarch - Search fbr Cell Towers, Cell Reception, Hidden Anten...
(67)
(68)
ht^://www,antennaseardi.com/sitestartasp?sourcepagename=reportvi
HiHer Highlands Emergency Preparedness
Ploss, Robert E
San Francisco Bavêa Rapid Transit
Distrid
NA
NA
212 miles
212 miles
NA
220 mites
AntennaSearch - Search for Cell Towers, Cell Reception, Hidden Anten...
http://www,antennasearch,coni/sileslarLasp?sourcepagenanie=Teportvi
• Tower Structures - (42ntl St, Oakland, CA 94609)
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A l e r t ! 83 Towers (8 Registered,75 Not Registered) found v^thln 3.00 mites of 42nd St,
Oakland, CA 94609,
/';"••,
Info! The NEARESTTower is .20 mites away and Is owned by Nextel Communications
x l , / Inc.
i^J
O k ! No Applications f or Future Towers detected as of 02/27/10
Tower Type
^
Registered
ID Num
Site Owner
Height
Dlst
(1)
Nextel Of Califomia. ho
73 feet
1.45 miles
(2)
(3)
(4)
(5)
55 feet
340 feet
371 feet
49 feet
1,54
1.77
2.04
2.19
245 feet
2.52 mites
(7)
(8)
Nextel Of Califomia, he
At&t Califomia
Citv Of Oaktend
California. Stete Of
San Francisco BavArea Rapid Transit
DisWd
Sprint Communications Comoanv. Lo
Urban Radio. L.l.e.
155 feet
453 feet
2.65 mites
2.79 mites
(1)
Nextel Convnunlcatlons Inc
34 feet
2 0 mites
(2)
(3)
(4)
(5)
Btenk
Nextel CommunicatiQns Inc
Nextel CommurBcations
American Tovrer Corp
Kaiser Pernsinerrfe - Oakland Medical
Center
Blank
Nejdel Communications Inc
215 feet
31 feet
73 feet
210 feet
• ,45 mites
.51 mites
.52 mites
.53 mites
227 feet
,53 mites
212 feet
55 feet
.59 mites
,66 mites
(6)
f
Not Registered
(8)
(7)
(8)
lof2
miles
mites
mites
mites
2/27/2010 10:09 PM
AntennaSearch - Seafdi for Cdl Towers, Cdl Reception, Hidden Anten...
htlp://www.antennasearch.coin/sitestartasp?sourcepa^jiame=reportvi
BavArea CellularTetephone Company
(9)
Pacific Bell Mobite Services
(10)
CelluterOne
(11)
BavArea Cellular Tetephone Co
(12)
(13)
Cellular One
(14)
Cellular One
Crown Castle International
(15)
(16)
Cellular One
(17)
Cellular One
(18)
Gte Mobilnet Of Ca Limited Partnr
(19)
BavArea Cellular Telephone Company
Nextel Communications he
(20)
Dgs-tetecommunicatiens Division
(21)
(22)
CeHularOne
Nextel Communications
(23)
American Tower
(24)
Nextel Comunications
(25)
BavArea CelliflarTelephone
(26)
(27)
Kaiser Foundation Health Plan
(28)
Cellular One
(29)
Eh&s
(30)
Cellular One
(31)
BavArea CelluterTetephone Co
(32)American Tower Systems L P
(33)
Aegis Coroorate Services
(34)
Blai^
(35)
(36)
Cellular One
(37)
Crown Castle - West Area - Deedee Stout
(38)
Smart Smr Of Caifomla
BavArea Cellular Tetephone Co
(39)
Cellular One
(40)
(41)
Western States Teleoort
Nextel Communieatians
(42)
(43)
Nextel Communications ho
Blank
(44)
Cellular One
(45)
Schartz & Lindberah Eled ho
(46)
BavArea Celluter Tetephone Company
(47)
(48)
Nextel Communieations
(49)
Pare Oaktend Hotel
Mount Wiison Fm Broadcasters he
(50)
San Francisco BavArea Rapid Transit DIs
(51)
Cellular One
(52)
Crown Castle
(53)
(54)
(55)
Nextel Communications ho
(56)
Cellular One
Gte Mobilnet Of Ca. Limited Pship.
(57)
Nextel Con-nnunieations Inc
(58)
American Tower Coio
(59)
San Francisco BavArea Rapid Transit (60)
Distrid
(61)
Nextel Corrmunicalions
Blank
(62)
(63)
Pacific Bell Mobite Services
(64)
(65)
(66)
Cellular One
(67)
Ktvu Ineonsorated
Ne>4el Communications
(68).
(69)
(70)
Blank
Clngular Wireless. Lte
(71)
(72)
Nextel Communications
(73)
Crown Casfle Usa
(74)
Cteirtel Communieations, L.o.
Nextel Communieations
(75)
'
I '^
Lire
100 feet
165 feet
55 feet
22 feet
56 feet
120 feet
77 feet
44 feet
44 feet
47 feet
100 feet
118 feet
210 feet
62 feet
63 feet
287 feet
73 feet
115 feet
332 feet
96 feet
46 feet
342 feet
100 feet
40 feet
85 feet
415 feet
230 feet
43 feet
60 feet
194 feet
28 feet
37 feet
347 feet
194 feet
124 feet
279 feet
36 feet
310 feet
22 feet
87 feet
268 feet
197 feet
185 feet
38 feet
80 feet
177 feet
20 feet
60 feet
71 feet
128 feet
240 feet
,70 nates
.73 mites
.77 nates
,83 ntttes
.84 mites
.93 n^'les
.96 mites
.99 mites
1.01 miles
1.01 miles
1.26 mites
1.28ntites
1.35 miles
1.40 miles
1.45 miles
1.46 mites
1.51 mites
1.52 mites
1.60 miles
1.61 mites
1.62 mites
1.63 miies
1.64 miles
1.70 mites
1,73 mites
1.84 mites
1.91 mites
1.94 mites
1.97 miles
1.98 miles
1.98 mites
2.00 mites
2.00 mites
2 0 1 miles
2.02 miles
2.03 mites
2.05 mites
2,07 mites
2.07 mites
2.11 mites
2.12 miles
2.14 mites
2.16 mites
2.17 mites
2.18 mites
2.21 miles
2.36 mites
2.48 mites
2.48 mites
2,48 mites
2 4 9 mites
250 feet
2.51 mites
126 feet
118 feet
63 feet
85 feet
100 feet
48 feet
135 feet
144 feet
29 feet
66 feet
76 feet
89 feet
67 feet
29 feet
74 feet
2.55
2.58
2.59
2.59
2.59
2.61
2.69
2.70
mites
mites
mites
mites
mites
miles
mites
mites
277 mites
2.81 mites
2.82 mites
2.68 miles
2.89 miles
2 9 0 miles
2.91 m\es
t
(No Towers Detected)
O 2004-2009 by General Data Resourcas, he.
2 of 2
2/27/201010:09 PM
BUILDING FEATURES:
40,000± RSFFrê .Standing Building With Gated & landscaped Parkiiig Lots(s)
Divbiblc To 20.dOO±.RSF Suites
Gatcd/Sccurcd Parking-Ample Street Parking Also Available
30 On Site Parking Spaces With 22 More In Secure Lut Across 'ihc Street
Reccnr Renovadons Allow For Excellcnc Natural Liglic Tliroughouc The Building
Walking Distance To Multiple Public Transportation Networks
ATTACHMENTB
Case File N u m b e r CMD09-149
Location:
Assessors Parcel Numbers:
Proposal:
Owner:
Applicant:
Planning Permits Required:
General Plan:
Zoning:
Environmental Determination:
Historic Status:
Service Delivery District:
City Council District:
Status:
Action to be Taken:
Staff Recommendation:
Finality of Decision:
For Further Information:
STAFF REPORT
F e b r u a r y 17,2010
1001 42""'Street
012-1023-001-01
Establish a new Mini-telecom facility with 9 antennas located within a
decorative screen on the roof of an industrial building.
1001 42"''Street LLC
Chamel James, Verizon Wireless (925) 244-1890
Major Conditional Use Permit for a Telecommunications Facility
within three hundred (300) feet ofthe boundary of an R-40 residential
zone, Regular Design Review permit for a Mini Telecom Facility.
Housing and Business Mix
HBX-2, Housing and Business Mix Commercial Zone
Exempt, Section 15301 ofthe State CEQA Guidelines:
Minor Alteration to an Existing Facility;
Section 15183 ofthe State CEQA Guidelines: projects consistent with a
community plan, general plan, or zoning.
Potential Designated Historic Property (PDHP); Minor Importance,
Potentially Secondary Importance or Superior,
Survey Rating Dc3
2
1
Pending
Decision on application based on staff report
Approval subject to conditions
Appealable to City Council
Contact case planner Ulla-Britt Jonsson at 510-238-3322 or by email
at uionssonfgjoaklandnet.com
SUMMARY
The proposed project is for a new unmanned wireless telecommunications facility located on the roof of an
existing industrial building. The project also involves the installation of an accompanying equipment
cabinet on the ground floor of the same building and a generator within a building on the same property
within the City limits of Emeryville. The project site is surrounded primarily by civic and residential
uses. The subject property is located within 300 feet ofa residential zone.
Pursuant to Section 17.128,80(A)(5) ofthe Oakland Planning Code, the applicant has submitted written
documentation demonstrating that emissions from the proposed telecommunications facility will be
within the limits set by the Federal Communications Commission (FCC).
The project will improve the wireless telecommunications services in the neighborhood and contribute to
a functional residential and civic environment. Staff therefore recommends approval of the Major
Conditional Use Permit and Design Review for the proposed project, subject to the attached conditions.
#5
February 17,2010
The subject site is a 34,598 sq. ft, lot bounded by 41" Street, 42"'' Street, and Linden Street. The western
portion ofthe property crosses the city border into Emeryville. On the east side ofthe lot is a two-story
41,320 sq. ft. light industrial building; in the middle ofthe property is a driveway with ramps and parking
areas; and on the western side is a mix of smaller industrial brick buildings. The property is currently
vacant. The west side ofthe block faces Adeline Street and contains a row of residences. Across 42"''
Street is the North Oakland Charter School CNOCS).and across 41^' Street are the Green City Lofts, a 4+siory residential condominium development. The neighborhood also contains a mix of one-and two-story
multi-family, single-family, and live-work buildings,
PROJECT DESCRIPTION
The applicant, representing Verizon Wireless, proposes to place nine (9) new antennas within a decorative
screen on the roof of an existing 32' tall light industrial building. The rooftop structure is designed to
match the building in color and texture of siding materials. As presented in the attached plans, the roof
structure measures 15' in width and length and extends 10' above the peak ofthe roof on which it is
mounted. This design has small cutouts at the comers. However, staff recommends a somewhat different
rooftop design as explained in "Key Issues" later in this report.
The rooftop structure meets the Telecommunication Ordinance requirement o f a 1:1 ratio setback from
the facade and a maximum height of 15' above the roof. An equipment cabinet is proposed within the
building, as well as a generator within a building across the site on the Emeryville side ofthe property. See
Attachments A and B, plans and photosims. This application represents the first telecommunications facility
on-site. The proposed facility is intended to handle increased wireless traffic on the network, as well as
ensure quality service to residences and businesses in the neighborhood.
At the time ofthe writing of this report, staff has not received any written communication from neighbors,
only three inquiries for more information.
The General Plan Housing and Business Mix Land Use classification is intended to guide a transition
from heavy industry to low-impact light industrial and other businesses that can co-exist compafibly with
residential development. Respect for environmental quality, coupled with opportunities for additional
housing and neighborhood-friendly businesses is desired, as well as transition from industry that
generates impacts detrimental to residences. The desired character of development should be compatible
with housing, and development should recognize the mixed business nature ofthe area.
The proposed telecommunications facility will improve communications essential to modem-day operation
of residential uses and will improve the availability of infrastructure to the area. It is consistent with the
following policy ofthe General Plan:
Policy N1.5 Designing Commercial Development Commercial development should be designed in a
manner that is sensitive to surrounding residential uses.
In conformance with General Plan Policy, the proposed antennas are concealed from view behind a screen
designed to match the existing building with an exterior "skin" that matches the exterior brick walls ofthe
building.
Page 3
February 17,2010
The proposed telecommunications facility will be compatible with the mixed commercial/residential
nature ofthe area.
ZONING ANALYSIS
The subject site is zoned HBX-2, Housing and Business Mix Commercial Zone. The purposes ofthe
Housing and Business Mix zones are to:
• Allow for mixed use districts that recognize both residential and business activities;
• Establish development standards that allow residential and business activities to compatibly coexist;
• Provide a transition between industrial areas and residential neighborhoods;
• Encourage development that respects environmental quality and historic pattems of development.
The project meets the purposes ofthe Housing and Business Mix (HBX) zoning district in that it has been
designed to appear to belong on the building the architectural and historic features ofthe building has
been matched by the screening design.
The HBX-2 zone is intended to provide development standards for areas that have a mix of industrial,
certain commercial and medium to high-density residential development. This zone recognizes the equal
importance of housing and business.
Telecommunication facilities within three hundred (300) feet ofthe boundary ofa residential zone require
a Major Conditional Use Permit. Staff finds that the proposal meets applicable HBX-2 zoning and City of
Oakland Telecommunication regulations.
The project has-been found to be categorically exempt from the environmental review requirements ofthe
Califomia Environmental Quality Act (CEQA) under Section 15301, minor alterations to an existing
facility. In support of this exemption determination, the project also conforms with CEQA Guidelines
Section 15183, projects consistent with a community plan, general plan or zoning.
Public Safety
The telecommunications regulations require that the applicant submit written documentation
demonstrating that the emissions from the proposed project are within the limits set by the Federal
Communications Commission. In a document (Attachment D) prepared by Hammett & Edison, Inc.,
Consulting engineers, the proposed project was evaluated for compliance with appropriate guidelines
limifing human exposure to radio frequency electromagnetic fields. According to the report on the
proposed facility, the project will comply with the prevailing standards for limiting public exposure to
radio frequency energy and, therefore, not cause a significant impact on the environment. Additionally,
staff recommends that prior to the issuance ofa final building permit, that the applicant submits a certified
RF emissions report stating that the facility is operating within acceptable thresholds established by the
regulatory federal agency.
Design of Rooftop Structure
Responding to staffs request for a redesign of the initial application, the applicant submitted on
December 2, 2009 by email a revised set of photo sims that included 6 alternative designs for the rooftop
Page 4
I
February 17,2010
Page 5
enclosure structure. Staff accepted "Proposed 3" (see Attachment C photo sims) which provides deeper
shadows and smaller wall planes on the sides ofthe screen. The Proposed 3 proposal is different from the
submitted plans in that it breaks up the large wall mass ofthe boxy design ofthe decorative screen that is
shown on the attached plans.
Shortly before the writing of this report, the applicant submitted revised plans that did not match the
Proposed 3 scheme. These plans are included as Attachment A to this report. This revised design has
smaller cutouts on the comers, and in staffs opinion, does not break up the large mass of the roof
enclosure as effecfively as shown in Proposed 3 photo sims.
Staff recommends that the applicant submit, prior to or concurrent with building permit submittal, a
revised plan set for planning approval that is identical, to the maximum extent feasible, to the Proposed 3
photo sims that was submitted by the applicant in an email received by the Planning and Zoning Division
on December 2, 2009.
Site Location
Q
Secfion 17.128,110 of the City of Oakland Planning Code requires that new "wireless facilities shall
generally be located on the following properties or facilities in order of preference:
A.
Co-Jocated on an existing stmcture or facility with existing wireless antennas.
B.
City owned properties or other public or quasi-public facilities.
C.
Existing commercial or industrial structures in non-residential zones.
D.
Existing commercial or industrial structures in residential zones.
E.
F.
G.
Facilities locating on an A, B or C ranked preference do not require a site altematives analysis. The
proposed facility is to be located at a "C" ranked site, an existing commercial or industrial structure in
non-residential zones, and therefore will not require a site analysis. ,
Site Design
Secfion 17.128,120 ofthe Oakland Planning Code requires that new wireless facilifies shall generally be
designed in the following order of preference:
A.
Building or structure mounted antennas concealed from view.
B,
Building or structure mounted antennas set back from roof edge, not visible from public
right-of way.
C.
Building or stmcture mounted antennas below roof line (facade mount, pole mount)
visible from public right-of-way, painted to match existing structure,
D,
Building or structure mounted antennas above roofline visible from public right-of-way.
Facilities designed lo meet an A or B ranked preference do not require a site design alternatives analysis.
The antennas are within a decorative screen, and therefore will be designed in an "A" ranked manner.
Public Access
The Telecommunication regulations in the Oakland Planning Code require that all reasonable means of
reducing public access to the antennas and equipment be made, including, but not limited to, placement in
or on buildings or structures, and the addition of fencing, anti-climbing measures and/or anti-tampering
devices. The equipment cabinet will be concealed from public view as it will be contained within the first
floor of the building. The cabinet enclosure is to be regularly maintained. Site location and development
will preserve the preexisting character ofthe surrounding buildings and land uses and the zone district as
much as possible.
February 17,2010
Page 6
The proposed nine (9) antennas within a decorative screen on the roof of an existing 32-foot tall building
will be beneficial to the area and the City as a whole in that it will improve essential wireless
communication services to the residents, businesses, and public and emergency services in the area. It has
been designed to comply with Federal safety standards and complies with the applicable regulations
outlined in the Oakland Municipal Code for telecommunications facilities. Therefore, staff recommends
that the Planning Commi.ssion approve the proposal subject to the attached findings and conditions,
RECOMMENDATIONS:
1. Affirm staffs environmental determination; and
2. Approve the Regular Design Review and Major Conditional Use
Permit application subject to the attached findings and condifions.
Prepared by:
Ulla-Britt Jonsson
Plarmer II
Approved by:
Scott Miller
Zoning Manager
Approved for forwarding to the
Walter Cohen, Director
Community and Economic Developmeni Agency
ATTACHMENTS:
A.
B.
C.
D.
Plans
Photo Sims
Recommended Photo Sims
Radio Frequency Emissions Report
February 17,2010
Page 7
FINDINGS FOR APPROVAL
This proposal meets the required findings under Sections 17.134,050 (General Conditional Use Permit
Criteria), J 7.136,0503 (Design Review Criteria for Non-Residential Facilities), and Section 17,128,060
(General Development Standards, Design Review, and Conditional Use Permit for mini facilities) ofthe
Oakland Planning Code. Required findings are shown below in bold type; explanations as lo why these
findings can be made are in normal type.
Based on the proposed project meeting the required findings a, b, and c, by opening a minimum
of 100 rooms at the start of operation: providing a full service restaurant; and having an existing
swimming pool the existing hotel meets the goal ofa first-class, luxury hotel.
SECTION 17.134.050 - GENERAL USE PERMIT CRITERIA:
A. That the location, size, design, and operating characteristics ofthe proposed development will
be compatible with and will not adversely affect the livability or appropriate development of
abutting properties and the surrounding neighborhood, with consideration to be given to
harmony in scale, bulk, coverage, and density; to the availability of civic facilities and utilities;
to harmful effect, if any, upon desirable neighborhood character; to the generation of traffic
and the capacity of surrounding streets; and to any other relevant impact ofthe development.
The proposed development of nine new antennas will be compatible with the use ofthe existing light
industrial site. The neighborhood consists of residential, civic, and light industrial uses. The operating
characteristics have been examined by a qualified engineer who has concluded that the cumulative
emissions levels from the telecommunication facility will meet federal standards. The wireless service
provided by the facility will augment the availability of telecommunication services in the area.
B. That the location, design, and site planning of the proposed development will provide a
convenient and functional living, working, shopping, or civic environment, and will be as
attractive as the nature ofthe use and its location and setting warrant.
The facility is located on a light industrial site and will contribute to enhanced telecommunications
services in the area for residents, businesses and public and emergency services.
C. That the proposed development will enhance the successful operation ofthe surrounding area
in its basic community functions, cor will provide an essential service to the community or
region.
The proposed antennas comply with Federal safety standards and Oakland's telecommunication
regulafions. The proposed new antennas will be beneficial to the area in that it will provide essential
wireless communication services to the residents, businesses and public and emergency services in
the area and minimize dropped calls.
D. That the proposal conforms to all applicable design review criteria set forth in the design
review procedure at Section 17.136.050B.
The proposal meets the design review criteria (see responses below to criteria for Section
I7.I36.050B).
FINDINGS
February 17,2010
Case File Number CMD09-M9
Page 8
E. That the proposal conforms in all significant respects with the Oakland General Plan and with
any other applicable plan or development control map which has been adopted by the City
Council.
The proposed telecommunications facility conforms in all significant aspects with the Oakland
General Plan and with any other applicable plan or zoning maps adopted by the City of Oakland. The
proposed mini telecommunications facility will improve mobile communications in the area essential
to modem day operation of residential uses. It will also be available to local law enforcement and
emergency response services and therefore conforms in all respects to the Oakland General Plan and
thus improve the availability of infrastmcture to the area.
SECTION 17.136.0508 - DESIGN REVIEW FOR NONRESIDENTIAL FACILITIES:
1. That the proposal will help achieve or maintain a group of facilities which are well related to
one another and which, when taken together, will result in a well-composed design, with
consideration given to site, landscape, bulk, height, arrangement, texture, materials, colors, and
appurtenances; the relation of these factors to other facilities in the vicinity; and the relation of
the proposal to the total setting as seen from key points in the surrounding area. Only elements
of design which have some significant relationship to outside appearance shall be considered,
except as otherwise provided in Section 17.136.060;
The telecommunications regulations require telecom facilities not to be sited to create visual clutter or
negatively affect specific views. The proposed new antennas will be located on the roof of the
existing two-story light industrial building and will be behind a screen designed to match the texture,
materials, color, and design of the building. Photo simulations submitted for the project show the
view ofthe proposed antennas and screen as seen from the street.
2. That the proposed design will be ofa quality and character which harmonizes with, and serves
to protect the value of, private and public investments in the area;
The proposed telecommunications facility harmonizes with, and serves to protect the value of, private
and public investments in the area in that it will add to the availability of telecommunication services
in the area.
3. That the proposed design conforms in all significant respects with the Oakland General Plan
and with any applicable design review guidelines or criteria, district plan, or development
control map which have been adopted by the Planning Commission or City Council.
See findings under Section 17.134,050.E above.
SECTION 17.128.060 (BVDESIGN REVIEW CRITERIA FOR MINI FACILITIES
I,
Antennas should be painted and/or textured to match the existing structure.
The proposed nine (9) new antennas will be within a decorative screen designed to match the
exterior of the building in color and texture of materials to be compatible with the existing
building.
FINDINGS
February 17,2010
Case File Number CMD09-I49
Page 9
2. Antennas mounted on architecturally significant structures or significant architectural
detail ofthe building should be covered by appropriate casings which are manufactured to
match existing architectural features found in the building.
The proposal antennas will be mounted on a Potential Designated Historic Building with a Dc3
rating, As presented in the attached plans, the roof structure measures 15' in width and length and
extends 10' above the peak ofthe roof on which it is mounted. This design has small cutouts at
the comers.
However, the proposal submitted to the Planning Division as "Proposed 3" (see Attachment C
photo sims) provides deeper shadows and smaller wall planes on the sides of the screen. This
proposal breaks up the large wall mass ofthe boxy design ofthe decorative screen, and it is the
design accepted and preferred by the Planning and Zoning Division.
3. Where feasible, antennas can be placed directly above, below or incorporated with vertical
design elements ofa building to help in camouflaging.
The screen surrounding the antennas is designed to match the overall building design. The
proposed structure has the same siding and roof pattem as what is existing to assist in blending
with the structure,
4.
Equipment cabinets shall be concealed from view or placed underground.
The development proposal includes the installation of an equipment cabinet located on the ground
floor and within the same building as the rooftop structure. A generator will be housed within a
structure on the same lot across the parking lot.
5. That all reasonable means of reducing public access to the antennas and equipment has
been made, including, but not limited to, placement in or on buildings or structures,
fencing, anti-climbing measures and anti-tampering devices.
The wireless communication antennas and equipment cabinets will be located in areas not
accessible to the public.
6.
For antennas attached to the roof, maintain a 1:1 ratio (example: ten feet high antenna
requires ten feet setback from facade) for equipment setback unless an alternative
placement would reduce visual impact; treat or screen the antennas to match existing air
conditioning units, stairs, elevator towers, or other background; avoid placing roof
mounted antennas in direct line with significant view corridors.
The development proposal is for the installation of nine (9) new wireless antennas meets the 1:1
setback from the facade ofthe building and are screened lo match the building design. There are
no significant view corridors in the vicinity ofthe project.
SECTION 17.128.060 (CV-CONDITIONAL USE PERMIT CRITERIA FOR MINI FACILITIES
FINDINGS
February 17, 2010
Page 10
1. The project must meet the special design review criteria listed in subsection B of this
section.
The development proposal conforms to the design review criteria for Mini Facilities as described in
section 17.128.060 (B) design review criteria listed above.
2. The proposed project must not disrupt the overall community character.
The development proposal to locate wireless communications antennas on the roof of an existing
light industrial building will not disrupt the characteristics ofthe neighborhood. The proposed
antennas will be screened with a decorative screen designed to match the exterior ofthe building.
3. In zones R-1 through R-60, inclusive, the project must not have any visual impact.
The project is not located in a residential zone.
FINDINGS
February 17,2010
Page II
The proposal is hereby approved subject to the following Conditions of Approval:
STANDARD CONDITIONS OF APPROVAL
1.
Approved Use
Ongoing
a) The project shall be constructed and operated in accordance with the authorized use as described
in the application materials and the plans dated Januar>' 21, 2010 and as amended by the
following conditions. Any additional uses or facilities other than those approved with this permit,
as described in the project description and the approved plans, will require a separate application
and approval. Any deviation from the approved drawings. Conditions of Approval or use shall
required prior written approval from the Director of City Planning or designee,
b) This acfion by the Planning Commission ("this Approval") includes the approvals set forth
below. This Approval includes: Major Conditional Use Permit and Design Review to install a
telecommunications facility (9 antennas within decorafive screen) in a Housing and Business Mix
zone.
2.
Effective Date. Expiration, Extensions and Extinguishment
Ongoing
Unless a different termination date is prescribed, this Approval shall expire two calendar years from
the approval date, unless within such period all necessary permits for construction or alteration have
been issued, or the authorized activities have commenced in the case of a permit not involving
construction or alteration. Upon written request and payment of appropriate fees submitted no later
than the expiration date of this permit, the Director of City Planning or designee may grant a one-year
extension of this date, with additional extensions subject to approval by the approving body.
Expiration of any necessary building permit for this project may invalidate this Approval if the said
extension period has also expired.
3.
Scope of This Approval; Major and Minor Changes
Ongoing
The project is approved pursuant to the Planning Code only. Minor changes to approved plans may
be approved administratively by the Director of City Planning or designee. Major changes to the
approved plans shall be reviewed by the Director of City Planning or designee to determine whether
such changes require submittal and approval of a revision to the approved project by the approving
body or a new, completely independent permit.
4.
Conformance with other Requirements
Prior to issuance ofa demolition, grading, P-job, or other construction related permit
a) The project applicant shall comply with all other applicable federal, state, regional and/or local
codes, requirements, regulations, and guidelines, including but not limited to those imposed by
the City's Building Services Division, the City's Fire Marshal, and the City's Public Works
Agency.
b) The applicant shall submit approved building plans for project-specific needs related to fire
protection including, but not limited to automatic extinguishing systems, water supply
February 17,2010
Page 12
improvements and hydrants, fire department access, and vegetation management for preventing
fires and soil erosion.
5.
Conformance to Approved Plans; Modification of Conditions or Revocation
Ongoing
a) The City of Oakland reserves the right at any time during construction to require certification by a
licensed professional that the as-built project conforms to all applicable zoning requirements,
including but not limited to approved maximum heights and minimum setbacks. Failure to
construct the project in accordance with approved plans may result in remedial reconstruction,
permit revocation, permit modification or other corrective action.
b) Violation of any term, condition or project description relating to the Approvals is unlawful,
prohibited, and a violation of the Oakland Municipal Code, The City of Oakland reserves the
right to initiate civil and/or criminal enforcement and/or abatement proceedings, or after notice
and public hearing, to revoke the Approvals or alter these Conditions if it is found that there is
violation of any of the Conditions or the provisions of the Planning Code or Municipal Code, or
the project operates as or causes a public nuisance. This provision is not intended to, nor does it,
limit in any manner whatsoever the ability ofthe City to take appropriate enforcement acfions.
6.
Signed Copy ofthe Conditions
With submittal ofa demolition, grading, and building permit
A copy of the approval letter and Conditions shall be signed by the property owner and submitted
with each set of permit plans submitted for this project.
7.
Indemnification
Ongoing
a) The project applicant shall defend (with counsel reasonably acceptable to the City), indemnify,
and hold harmless the City of Oakland, the Oakland City Council, the City of Oakland
Redevelopment Agency, the Oakland City Planning Commission and their respective agents,
officers, and employees (hereafter collectively called the City) from any claim, action, or
proceeding (including legal costs and attorney's fees) against the City to attack, set aside, void or
annul this Approval, or any related approval by the City. The City shall promptly notify the
project applicant of any claim, action or proceeding and the City shall cooperate fully in such
defense. The City may elect, in its sole discretion, to participate in the defense of said claim,
action, or proceeding. The project applicant shall reimburse the City for its reasonable legal costs
and attorney's fees.
b) Within ten (10) calendar days ofthe filing o f a claim, action or proceeding to attack, set aside,
void, or annul this Approval, or any related approval by the City, the project applicant shall
execute a Letter Agreement with the City, acceptable to the Office of the City Attorney, which
memorializes the above obligations and this condition of approval. This condition/obligation shall
survive termination, extinguishment, or invalidation of this, or any related approval. Failure to
timely execute the Letter Agreement does not relieve the project applicant of any of the
obligations contained in 7(a) above, or other conditions of approval.
8.
Compliance with Conditions of Approval
Ongoing
The project applicant shall be responsible for compliance with the recommendations in any submitted
and approved technical report and all the Conditions of Approval set forth below at its sole cost and
expense, and subject to review and approval ofthe City of Oakland.
February 17,2010
9.
Page 13
Severability
Ongoing
Approval ofthe project would not have been granted but for the applicability and validity ofeach and
every one ofthe specified conditions, and if any one or more of such condifions is found to be invalid
by a court of competent jurisdiction this Approval would not have been granted without requiring
other valid conditions consistent with achieving the same purpose and intent of such Approval.
10. Job Site Plajis
• Ongoing throughout demolition, grading, and/or construction
At least one (1) copy of the approved plans, along with the Approval Letter and Conditions of
Approval, shall be available for review at the job site at all times.
11.
Special Inspector/Inspections, Independent Technical Review, Project Coordination and
Management
Prior to issuance ofa demolition, grading, and/or construction permit
The project applicant may be required to pay for on-call special inspector(s)/inspections as needed
during the times of extensive or specialized plancheck review, or construction. The project applicant
may also be required to cover the full costs of independent technical and other types of peer review,
monitoring and inspection, including without limitation, third party plan check fees. The project
applicant shall establish a deposit with the Building Services Division, as directed by the Building
Official, Director of City Planning or designee.
12.
Dust Control
Prior to issuance ofa demolition, grading or building permit
During construction, the project applicant shall require the construction contractor to implement the
following measures required as part of Bay Area Air Quality Management District's (BAAQMD)
basic and enhanced dust control procedures required for constmction sites. These include:
a. Water all active construction areas at least twice daily. Watering should be sufficient to prevent
airborne dust from leaving the site. Increased watering frequency may be necessary whenever
wind speeds exceed 15 miles per hour. Reclaimed water should be used whenever possible.
b. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at
least two feet of freeboard (i.e., the minimum required space between the top ofthe load and the
top ofthe trailer),
c. Pave, apply water three times daily, or apply (non-toxic) soil stabilizers on all unpaved access
roads, parking areas and staging areas at constmction sites.
d. Sweep daily (with water sweepers using reclaimed water if possible) all paved access roads,
parking areas and staging areas at construction sites.
e. Sweep streets (with water sweepers using reclaimed water if possible) at the end ofeach day if
visible soil material is carried onto adjacent paved roads.
f Limit the amount ofthe disturbed area at any one time, where feasible.
g. Suspend excavation and grading activity when winds (instantaneous gusts) exceed 25 mph.
h. Pave all roadways, driveways, sidewalks, etc, as soon as feasible. In addition, building pads
should be laid as soon as possible after grading unless seeding or soil binders are used,
i. Replant vegetation in disturbed areas as quickly as feasible,
j . Enclose, cover, water twice daily or apply (non-toxic) soil stabilizers to exposed stockpiles (dirt,
sand, etc.).
k. Limit traffic speeds on unpaved roads to 15 miles per hour.
February 17,2010
Page 14
1. Clean off the tires or tracks of all trucks and equipment leaving any unpaved construction areas,
13. Construction Emissions
Prior to issuance ofa demolition, grading or building permit
To minimize constmction equipment emissions during construction, the project applicant shall
require the construction contractor to:
a) Demonstrate compliance with Bay Area Air Quality Management District (BAAQMD)
Regulation 2, Rule I (General Requirements) for all portable construction equipment subject to
that rule, BAAQMD Regulation 2, Rule 1 provides the issuance of authorities to construct and
permits to operate certain types of portable equipment used for construction purposes (e.g.,
gasoline or diesel-powered engines used in conjunction with power generation, pumps,
compressors, and cranes) unless such equipment complies with all applicable requirements ofthe
"CAPCOA" Portable Equipment Registration Rule" or with all applicable requirements ofthe
Statewide Portable Equipment Registration Program. This exemption is provided in BAAQMD
Rule 2-1-105.
b) Perform low- NOx tune-ups on all diesel-powered construction equipment greater than 50
horsepower (no more than 30 days prior to the start of use of that equipment). Periodic tune-ups
(every 90 days) should be performed for such equipment used continuously during the
construction period.
14. Days/Hours of Construction Operation
The project applicant shall require construction contractors to limit standard constmction activities as
follows:
•
a. Construction activities are limited to between 7:00 AM and 7:00 PM Monday through Friday,
except that pile driving and/or other extreme noise generating activities greater than 90 dBA shall
be limited lo between 8:00 a.m. and 4:00 p.m. Monday through Friday.
b. Any construction activity proposed to occur outside ofthe standard hours of 7:00 am to 7:00 pm
Monday through Friday for special activities (such as concrete pouring which may require more
continuous amounts of time) shall be evaluated on a case by case basis, with criteria including the
proximity of residential uses and a consideration of resident's preferences for whether the activity
is acceptable if the overall duration of construction is shortened and such construction acfivities
shall only be allowed with the prior written authorization ofthe Building Services Division.
c. Construction activity shall not occur on Saturdays, with the following possible exceptions:
^ Prior to the building being enclosed, requests for Saturday construction for special activities
(such as concrete pouring which may require more continuous amounts of time), shall be
evaluated on a case by case basis, with criteria including the proximity of residential uses and
a consideration of resident's preferences for whether the activity is acceptable if the overall
duration of construction is shortened. Such construction activities shall only be allowed on
Saturdays with the prior written authorization ofthe Building Services Division.
CU After the building is enclosed, requests for Saturday construction activities shall only be
allowed on Saturdays with the prior written authorization ofthe Building Services Division,
and only then within the interior ofthe building with the doors and windows closed.
Q No extreme noise generating activities (greater than 90 dBA) shall be allowed on Saturdays,
with no exceptions.
^ No construction activity shall take place on Sundays or Federal holidays.
and off-hours);
c) The designation of an on-site construction complaint and enforcement manager for the project;
d) Notification of neighbors and occupants within 300 feet ofthe project construction area at least
30 days in advance of extreme noise generating activities about the estimated duration of the
activity; and
February 17,2010
Page 18
The project drawings submitted for a building permit (or other construction-related permit) shall
contain a final site plan to be reviewed and approved by Planning and Zoning, The final site plan
shall incorporate appropriate site design measures to manage stormwater runoff and minimize
impacts to water quality after the constmction ofthe project. These measures may include, but are
not limited to, the following:
a) Minimize impervious surfaces, especially directly connected impervious surfaces;
b) Utilize permeable paving in place of impervious paving where appropriate;
c) Cluster buildings;
d) Preserve quality open space; and
e) Establish vegetated buffer areas.
Ongoing
The approved plan shall be implemented and the site design measures shown on the plan shall be
permanently maintained,
25.
Source Control Measures to Limit Stormwater Pollution
The applicant shall implement and maintain all structural source control measures imposed by the
Chief of Building Services lo limit the generation, discharge, and mnoff of stormwater pollution.
Ongoing
The applicant, or his or her successor, shall implement all operational Best Management Practices
(BMPs) imposed by the Chief of Building Services to limit the generafion, discharge, and runoff of
stormwater pollution.
PROJECT SPECIFIC CONDITIONS
26. Underground Utilities
Prior to issuance ofa building permit
, The project applicant shall submit plans for review and approval by the Building Services Division
and the Public Works Agency, and other relevant agencies as appropriate, that show all new electric
and telephone facilities; fire alarm conduits; street light wiring; and other wiring, conduits, and
similar facilities placed underground. The new facilities shall be placed underground along the
project applicant's street frontage and from the project applicant's stmctures to the point of service.
The plans shall show all electric, telephone, water service, fire water service, cable, and fire alarm
facilities installed in accordance with standard specifications ofthe serving utilities.
27. Improvements in the Public Right-of-Way (GeneraH
Approved prior to the issuance ofa P-job or building permit
a) The project applicant shall submit Public Improvement Plans .to Building Services Division for
adjacent public rights-of-way (ROW) showing all proposed improvements and compliance with
the conditions and City requirements including but not limited to curbs, gutters, sewer laterals,
storm drains, street trees, paving details, locations of transformers and other above ground utility
structures, the design specifications and locations of facilities required by the East Bay Municipal
Utility District (EBMUD), street lighting, on-street parking and accessibility improvements
compliant with applicable standards and any other improvements or requirements for the project
as provided for in this Approval. Encroachment permits shall be obtained as necessary for any
applicable improvements- located within the public ROW,
February 17,2010
Page 19
b) Review and confirmation ofthe street trees by the City's Tree Services Division is required as
part of this condition.
c) The Planning and Zoning Division and the Public Works Agency will review and approve
designs and specifications for the improvements. Improvements shall be completed prior to the
issuance ofthe final building permit,
d) The Fire Services Division will review and approve fire crew and apparatus access, water supply
availability and distribution to current codes and standards,
28. Collocation
Ongoing
The applicant and owner shall allow other future wireless communications companies including
public and quasi-public agencies using similar technology to collocate antenna equipment and
facilities unless specific technical or other constraints, subject to independent verification at the
discrefion ofthe City of Oakland Zoning Manager, prohibit said collocation. Applicant and other
wireless carriers shall provide a mechanism for the construction and maintenance of shared facilities
and infrastructure and shall provide for equitable sharing of cost in accordance with industry
standards. Construction of future facilities shall not intermpt or interfere with the continuous
operation of applicant's facilities.
29. Maintenance
Ongoing
The applicant shall regularly maintain the telecommunications facility and all appurtenances
including the equipment cabinets and antennas,
30. Sinking Fund
Prior to issuance of building permit.
Theapplicant shall provide proof of the establishment ofa sinking fund to cover the cost of removing
the facility if it is abandoned within a prescribed period. The word "abandoned" shall mean a facility
that has not been operational for a six (6) month period, except where nonoperation is the result of
maintenance or renovation activity pursuant to valid City permits. The sinking fund shall be
established to cover a two-year period, at a financial institution approved by the City's Office of
Budget and Finance. The sinking fund payment shall be determined by the Office of Budget and
Finance and shall be adequate to defray expenses associated with the removal of the
telecommunication facility.
31. Portion of Facility located in Emeryville
Concurrent with application for building permits
The applicant shall apply for the necessary permits for the portion ofthe facility located within the
Emeryville City limits.
32. Design of screen surrounding the rooftop antennas
The applicant shall submit a revised plan set for planning approval that is identical, to the maximum
extent feasible, to the Proposed 3 photo sims that was submitted by the applicant in an email received
by the Planning and Zoning Division on December 2, 2009.
APPROVED BY:
February 17,2010
Page 20
(date)
(vote)
Applicant and/or Contractor Statement
I have read and accept responsibility for the Conditions of Approval, as approved by Planning
Commission action on February 17,2010.1 agree to abide by and conform to these conditions, as well as
to all provisions ofthe
Oakland Zoning Code and Municipal Code pertaining to the project.
Signature of Owner/Applicant:
(date)
Signature of Contractor
(date)
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PROPERTY INFORMATION
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ATTACHMENT E
ATTACHMENT F
Verizon Wireless • Proposed Base Station (Site No, 185595 "IVIarket MacArthur")'
1001 42hd Street* Emeryville,.California
Statement of Hammett & Edison; Inc., Consulting Engineers
|
The firm of Hammett & Edison, Inc., Consulting Engineers, has been retained on behalf of
Verizon Wireless, a personal wireless telecommunications carrier, to evaluate the base station
(Site No. 185595 "Market MacArthur") proposed to be located at 1001 42nd Street in Emep,'ville.
California, for compliance with appropriate guidelines:limiting human.exposure,to radio frequency
("Rr") electromagnetic fields.
I
Prevailing Exposure Standards
|
The U.S, Congress requires that the Federal Communications Goinmissioii ("FGC") evaluate its
actions for possible siiinificant impact on the environment. In Docket 93-62, effective October 15,
1997, the FCC adopted the human exposure limits for field strength and power density recommended
in Report No. 86, "Biological EfTects and Exposure Criteria for Radiofrequency Electromagnetic
Fields," published in 1986 bythc Congressionally chartered National Couficilon Radiation Protection
and Measurements ("NCR.P"). Separate limits apply for occupational and public exposure conditions,
with the latter-limits generally five times more restrictive. The more recent standard, developed by the
institute of Electrical and Electronics Engineers and approved, as American National Standard
ANSI/IEEE C95.1-2006^ ''Safety Levels with Respect to Human Exposure to liadio Frequency
Electromagnetic Fields, ^ kHz m ."lOO GHz," includes similar exposure, iimitS; A summary oft the
FCC's exposure limits is showii in Figure .1. These limits apply for continuous exposures'and iiVe
intended to provide a prudent margin of safety for al| persons, regardless of age; -gender, size, or
health.
The most restrictive .FCC limit for exposures of unlimited duration to radio frequency energ)| fpr
several personal vvireless ser^'icesare as follows:
I'crsonnI Wliolc^-; Service
Broadband Radio C^BRS")
Advanced Wireless ("AWS")
Personal Communication ("PCS'').
Cellular 'fclephone
Specialized Mobile Radiof-SMR^')
Long 'ferm Evolution ("LTE")
[most restrictive frequency range]
Appnix. l-'rctmciicv
Occupational I.imii
PulMJc l.imii
2,600 MHz
2,100
1.950.
870
855
700
30-300
5.00mW/cm5.00
5:00
2.90
2.85
233
1-00
I.OOmW/cm1.00
LOO
0.5S
0,57
0.47
0.20
General Facility Requirements
Base stations typically consist of two^distinct parts: the electronic transceivers (also called "radio's" or
"channels") ihai arc connected to the traditional wired telephone lines, and ihe.passive antennas that
send the wireless signals created l)y the radios out to be received by individual subscriber units. The
H A M M E T T &. E D I S O N , I N C .
ca:-;sui.'iiN(::iiN(-.iKi-i'.!cs
.VWJ855955y.'^
I'acc 1 lil^f
Verizon Wireless -Proposed Base Station (Site No. 185595 "IVIarket iVIacArthur");
iOOl 42nd Street- Emeryville, Califprnia
I
transceivers are often located al ground level and are connected to the mnennas by coaxial cables
about 1 inch thick. Because of the short wavelength ofthe frequencies'assigned by the FCC for
wireless services, the antennas require line-of-sight palhsTor their signals topropagate well and so are
installed at some height above ground. The antennas aredesignedto concentrate their energy toward
the horizon, with ver>' little energy wasted toward the.skyor the ground.. Along wilhthe low powerof
such facilities, this means that it is.generally not possible for exposure conditions to approaclj the
inaNimum permissible cxpgsureJihiits without beiiig physically veiY near the antennas,
\
Computer Modeling Method
I
The FCC provides direction for determining, compliance inits Office of Engineering and Technology
Bulletin No. 65, "Evaluating Compliance with FCC-Specified Guidelines for Human £xposuj-e to
Radio Frequency Radiation,'" dated August 1997.. Figure 2 attached describes the calculation
methodologies, renecting the:facts.that a directional antenna's radiation pattern is not fully form.ed at
locations yco' close by (the "near-field" effect) and that atgreater distances the power level from an
energy source decreases with the .square of the distance from it (the "inverse square law"). The
consen'aiive nature of this method.for evaluating exposure.cpnditiohs has been verified by numerous
field tests.
Site and Facility Description
Based upon information provided by Verizon, including drawings by BayStone Architecture
and Engineering, Inc.. dated May 19, 2009, that carrier proposes to-mount nine Andrew directional
panel antennas - three Model HBX-5617DS.VtM antennas for PCS, three Model ,LBX-65I.|IDSVTM aiitcnnas for cellular, and three Model LNX6514DS-VTM. antennas for LTE-.service - within;an
enclosure to be built On the roof of theuvo-story office building located at 1001 42nd Street in
Oakland. Thc:antcnnas\vouIcl be mounted with ,2° downtilt-in groups.of three (one oCeadrmodej) at.
an effective height :of about 38 feet, and the. groups would be;oriented at about 120° spacing, to
provide coverage in ail directions. The maximum, effective radiated powerin any direction would be
2.08Q watts., representing the, simultaneous operation'of two PCS channels at'240 watts eaclj, six
cellular channels at 200 watts each, and one LTE channel at 400 watts: There are reported no other
wireless telecommunications base siaiions.installcd nearby.
Study Results
For a person anywhere at ground, themaximum.ambient level of RF exposure, due to the proposed
Verizon operation would be 0.0044 mW/cm", which is 0.77% of ihe applicable public limit. The
maximum calculated level of RF exposure at any nearby building,,including the taller buildings
located to the south; is calculated to bc'2.5% ofthe applicable, pubjic limit. It should be noted that
HAMMETT-& EDISON, I N C
TC'XtiUI.TINC I-NGjNI-lilW
vvviS55955'r>
p.,o,.''-. n'f )
Verizon Wireless •Proposed Base Station (Site No. 185595 "Market-WiacArthur")
1001 42hd Street • Emeryville,, California
j
these results include several "woi"St-c;ase".assumpti6ns and therefore are expectedto overstate actual
power density levels^
'
. . . .
I
Recommended Mitigation IVleasures
Due to their mounting locations, the Verizon antennas would not'be accessible to the general pii 3iic,
and so no miugalion measures.are necessary to comply with the FCC public exposure guidelines! To
prevent occupational exposures in excess ofthe FCC guidelines, no access within 4 feet directly in
front of the Verizon antennas themselves,, such as; niight occur during maintenance work on the
tiuilding, should be allowed while the base station is in operation,.unless other measures, caii be
demonstrated lo ensure that occupational protection reqiiiremenls are met.
Posting-explanatpo'
warning signs' at roof access location.and on the.antenna enclosure, such thiit the signs would be
readily visible from any angle of approach to pefspiis who^nighr need to work within that distance,
would be sufficient fo meet FCC-adopted guidelines.
Conclusion
Based on the infomiation and analysis above, it is the under.signed-s professional opinionlhat the base
station proposed by Verizon Wireless at 100! 42nd Street in Emer>'ville, California, will comply with
the prevailing standards for limiting public, exposure to radio:frequency energy .and. therefore, will not
for this reason cause.a significant impact on the ehyii-onmeht. The highest calculated level in publicly
accessible areas is' much less than the prevailing standards allow for exposures of unlimiled duration.
This finding is consistent with measurements of actual exposure conditions taken at other operating
base stations. Posting of explanatory signs is recommended to establish compliance with occupational
exposure limitations.
.Wiuninjj .siyn,s .sJu)ti)d.ciin]|i].v will) ()J,;"r-('o color, .syjiihtil, aiul.coiill'nTivccJriimciKliiiif.iii.s. Coninci inJuj-nKilibj} ;
sliouUi tic pio\'i(lcd (*.'.(,'.. ;i Iclcplumc luiiiiliuri'Uvnniirni'e'roi- acciiss inrijsiriclcdiircn.s. Tlic sijlcciii>ii i>!' lanf:iuiL;L:(W
is iiul ill) cijyinccrin^ miillur. imd pikhin^c fron) !l)c liiiiUUud. \ocii\',y.on'm'>:^9^^'-^.^
Verizon Wireless • Proposed Base Station (Site No, 185595 "Market'MacArthur")
1001 42nd Street- Emeryville, California
j
Authorship
The undersigned .author of this siatemcrit is a qualified Professional Engineer, holding California
Registration Nos, E-13026 and M-20676, which expire on June 30,'2009, This work has;been:carried
out under his direction, and all statements are true,.and correct of his own knowledge except; where
noted, when data has been supplied by others, which data he believes to be coi-rect.
June I2,.2009
HAMME'n" &: E D I S O N , iNc:
?A^,•Fl:,\^^-||;l':^•^
VWKSil5f>55y."
FCC Radio Frequency Protection Guide
\
I
The tJ.S. Congress required (1996 Telecom Act) the Federal Communications Commission ("FCC")
to adopt a nationwide human exposure standard to ensure that itsliccnsecs do not, cumulatively, ihavc
a significant impact on the environment. The FCC adopled.thc limits from Report No. S6, ''Biological
Effects and Exposure Criteria for Radiofrequency Eleclroiiiagnctic Fields;" piiblished in 1986 by the
Congressionally chartered National Council on Radiation Pi'bteclibh and Measurements C'NCRP").
Separate limits apply for occupatibhaliand public exposure conditions, with the latter limits generally
five times more'restrictive; The more recent standard, dcvcl6pi:;d by the Institute of Electrical and
Electronics Engineers and approved as Amcricaii National Sfandard''ANSl/IEEE.:C95.1-2006,/'Safety
Levels with Respect to Mum'an Exposure to Radio Frequency Electromagnetic Fields'. 3 kHz to
300 GHz," includes similar limiis. These limits apply for cohtinubus exposures from all sources and
are intended to provide a prudent margin of safety for all persons, regardless of age, gender, size, or
health.
|
As shown in the tabic and, chart below, separate limitsjapply for:bccupatibnal and public exposure
conditions, with the latter limits (in /Va//c.v.and/or dashed) up to five timesmorc restrictive:
!
Elcctromatinctic Fields ff is frequency of emission in MHz)
rcqucncv
.Applicable
Kaiitzc
{Mll~/.)
Magnetic
iîeld Strength
(AAn)
l-leciiii;
•icici Sircniiih
(V/m) ~
{ ) . . > - l..'14
! .34 - 3.0
.i.U - 30
3 0 - 300
3(K) ~ l;50n,
1.500- 100.000
614
6)4
1842/r
61.4
3.54^1'
137
6N
H23.8/f
S23.S/f
27.5
1.5'Af.
61.4
Equi\'a!ciii l"ar-l-icki
l*uwcr IDcnsiiy
{)i)W/cm")
1.63
2.19/f
1.63
1.63
A.Wil'
0.163
Vi7106
0.364
l()0
100
900/ r1.0
1/300
5,0
2:1 Wf
0.072'/
yfr/2.-JS
O.I6.i
000-
Occupatibnal Expo.surc
I op
PCS
100.
ISO//
l.so//
0.2
f/l5(H\
LO
10-
=- c -S
I0.1-
Piibdc Expo.snre
O.J
1
TO
ido:
10'
0*
G-!'
Frequency (MHz)Higher levels arc allowed for short periods bf iimc,,sucli llial ibial exposure levels averaged over six or
thirty minutes, for occupational 6r public settings, respectively, dp not exceed the limits, and Higher
levels ixho are allowed for exposures_(o, small areas, such that; the spatially averaged levels do not
exceed the limiis, l-lowcver, neither of these allowances is incorporaied in thc-conservativc calculation
formulas in the FCC Office of Engineering and Technology Bulletin No. 65 (August 1997) for
projecting field levels. Hammeti & Edi.son has built iliosc fomiuhus. into a proprictar>' program that
calculates, al each location oh an arbitrary'rcciangular grid, the total expected power densit^,' froin any
number of individual radio;,sources. The prograni allows foi; tlic description of buildings and uncycn
terrain: if required fo obtain liioic accuraie'projcction.s.
HAMMETT & EDISON, I N C
t:oxsui:i iNO ILN'CIN'IJIJKS
5i;-.'M;,v.N'''fS('o
I'CC Guidelines
r\fiurc I
RFR-CALC*^" Calculation Methodology
Assessrhent by Calculation of Compliance with FCC Exposure Guidelines
The U.S. Congress required (1996.Telecom Act) tl^ Fcderai Comhiunications Commi.ssion ("FGC") to
adopt a halibnwide human exposure standard to ensure that its licensees do not, cumulatively, have a
.signincanlimpact on thc'cnvironment. The.maximum pemiissible exposure limits adopted by the! FCC
{.see Figure 1) apply for continuous exposures from all sources .and are, intended to provide a, prudent
margin of safety for all persons, regardless bf age,,^gaider, size; br Jiealth. Higher levels arc allowed for
short periods of time, such that total exposure, levels averaged over six or thirty minutes', for
occupational or public,settings, respectively, do not exceed the limits.
!
Near Field.
'
Prediction methods have been developed for tlie near fieldzohc bf paiicl .(ciirectional) and whip
(omnidirectional) antennas; typical at wii'dcss telecommunications base stations, as well as j dish
(aperture) antennas, typically used-for niicrowave'links. The antenna pattcnis' arc not fully formed in
the near .field at these antennas, jiiid'.thc FCC Office.bf Engineeriiig and Technology Bulletin No. 65
(.Augusi 1997) gives suitable formulas for calculating power density within such zones.
I
„
180,
O.lxP,;,,
. „-\w, .0.
For a panel or vvhip aiitenna, power densit)' ^ = — — ^ - — —
- . in'"^vcrn-,
(/ij-^Y
TV X ' . i j
I
i
X- n
\
and for an aperture antenna, nKiximiiin power density o.niiix' ^
T2
' '" ' /cm^.
Tt X i l
where
finw
Pnet
D
h
;;
=
=
=
=
=
lialf-powei-beariiw|dth of the m^
net power input to the antciiria; in \vatts,
distance from antenna, in meters,
aperture height of the antenna, in meicrs;iand
aperture efficiency (unitless. typically ().5-0.S).
.
'fhc factor of 0.1 in rhcniimcratbr's converts to the desired units of power density.
Far Field.
OET-65 gives this fomiula for calcutatiiigpower density in the-'far field of an.individual RF source
.
^
2.56X 1.64 X 100 xRFF^x.ERP , ...vx;. ,
power density ,S = "
'
. . , ^2
, in "ivv/cm-,
where ERP = total ERP (all polarizations), ih kilowatts.
RFF = relative field factor at the direction to the actual point of calculation, and,
D - .distance from the center of radiation to the pO!iilbfcalcuIation,,in meters.
The factor of 2.56 accounts lor the increase in power dcnsiry due to tiroiuid rcfieciion; assuming a
reflection coefficient of 1.6 (1.6 x 1.6 = 2,56)., The factor of 1,64 is. the gain ofa, half-wave dipole
relative to an isotropic radialor. The factor of tOO iii the,numerator convcrtsto the' desired units of
power density This formula has been built intba proprietaiy program thatcaiculates, at each,location
on an arbitrary rectangular grid, the total expected, power density from any number bf individual
radiation .sources: The program also allbw.s for'the description of uneven terrain in the-vicinity', to
obtain more accurate projections.
H A M M E T T & E D I S O N , INC
co;s'si;i,Ti:NT-.i;Nc;i:a:i:i«
, , , , ,,
Mclhodplogy
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A P P F ^ O V E DDAS
APPROVE
A TO FORM AND LEGALITY
2010HAY2O PM V-21
f-hU-^ .
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V '
L
DEPUTY CITY ATTORNEY
OAKLAND CITY COUNCIL
RESOLUTION NO.
C.M.S.
A RESOLUTION DENYING THE APPEAL (AlO-055), THEREBY
UPHOLDING THE PLANNING COMMISSION DECISION TO
APPROVE A MAJOR CONDITIONAL USE PERMIT AND REGULAR
DESIGN REVIEW AT 1001 42^** STREET TO ESTABLISH A MINI
TELECOM FACILITY (TELECOMMUNICATION CIVIC ACTIVITY),
WHEREAS, the applicant, NSA Wireless, filed an application on September 30, 2009 to
establish a mini telecom facility with 9 antennas and associated equipment within 300' of a
residential zone (Telecommunication Civic Activity); and
WHEREAS, the aforementioned application filed by the applicant, NSA Wireless, was
deemed to be complete by the City of Oakland on January 14, 2010; and
WHEREAS, the City Planning Commission held a duly noticed public hearing, took
testimony and considered the matter at its meeting held February 17, 2010, and at the close ofthe
public hearing it voted (5-0) to approve the Project, subject to conditions of approval; and
. WHEREAS, on March 1, 2010, an appeal ofthe Planning Commission's decision was
filed by Cynthia Carpenter et al. Appellant; and
WHEREAS, after giving due notice to the Appellants, the Applicant, all interested
parties, and the public, the Appeal came before the City Council in a duly noticed public hearing
on May 18,2010; and
WHEREAS, the Appellants, Applicant and all other interested parties were given the
opportunity to participate in the public hearing by submittal of oral and written comments; and
WHEREAS, The City Council independently finds and determines that this Resolution
complies with CEQA, as the Project is exempt from the Califomia Environmental Quality Act
("CEQA")' pursuant to, without limitation, each as a separate and independent basis, CEQA
Guidelines Section 15301; and Section 15183, "Projects Consistent with a Community Plan,
General Plan or Zoning"; and
WHEREAS, the public hearing on the Appeal was closed by the City Council on May
18, 2010; now, therefore, be it
I
RESOLVED: That the City Council, having independently heard, considered, anci
weighed all the evidence in the record presented on behalf of all parties and being fully informed
ofthe Application, the Planning Commission's decision, and the Appeal, finds that the Appellailt
has not shown, by reliance on evidence in the record, that the Planning Commission's decision
was made in error, that there was an abuse of discretion by the Commission, and/or that the
Commission's decision was not supported by sufficient, substantial evidence in the record. This
decision is based, in part, on the May 18, 2010, City Council Agenda Report and the Febmary
17, 2010, Approved Planning Commission Report, which are hereby incorporated by reference
as if fully set forth herein. Accordingly, the Appeal is denied, the Planning Commission's
decision approving a Major Conditional Use Permit and Regular Design Review Pennit to
establish a mini telecom facility consisting of 9 antennas and associated equipment within 300 ft
of a residential zone (Telecommunication Civic Activity) required by the Oakland Planning
Code, is upheld and the application is approved; and be it
FURTHER RESOLVED: That the project is exempt from CEQA for the reasons se:
forth in the foregoing Recitals. The Environmental Review Officer is directed to cause to be
filed a Notice of Exemption with the appropriate agencies; and be it
FURTHER RESOLVED: That, in support of the City Council's decision to approve
the Project, the City Council affirms and adopts as its findings and determinations (i) the May
18, 2010, City Council Agenda Report including without limitation the discussion, findings!
conclusions and conditions of approval (each of which is hereby separately and independently
adopted by this Council in full), and (ii) the February 18, 2010, Approved City Planning
Commission Report , including without limitation the discussion, findings, conclusions and
conditions of approval (each of which is hereby separately and independently adopted by this
Council in full), except where otherwise expressly stated in this Resolution; and be it
FURTHER RESOLVED: That the record before this Council relating to this Project|
application and appeal includes, without limitation, the following:
1. the Project application, including all accompanying maps and papers;
2. all plans submitted by the Applicant and his representatives;
3. all final staff reports, decision letters and other documentation and information
produced by or on behalf of the City.
|
I
1
4. all oral and written evidence received by the City staff, Planning Commission andl
City Council before and during the public hearings on the application and appeal;
'
5. all matters of common knowledge and ail official enactments and acts ofthe City, such
as (a) the General Plan and the General Plan Conformity Guidelines; (b) Oakland Municipal Code,
including, without limitation, the Oakland real estate regulations, (c) Oakland Fire Code; (d)
Oakland Planning Code; (e) other applicable City policies and regulations; and, (f) all applicable
state and federal laws, rules and regulations; and be it
.i
FURTHER RESOLVED: That the custodians and locations of the documents or other
materials which constitute the record of proceedings upon which the City Council's decision is
based are respectively: (a) Community & Economic Development Agency, Planning & Zoning
Division, 250 Frank H. Ogawa Plaza, Suite 2114, Oakland, CA.; and (b) Office of the City
Clerk, 1 Frank H. Ogawa Plaza, l" floor, Oakland, CA; and be it
j
FURTHER RESOLVED: That the recitals contained in this resolution are true anc
correct and are an integral part ofthe City Council's decision.
IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYESNOESABSENT ABSTENTION ATTEST:
LATONDA SIMMONS
City Cierk and Cleric ofthe Council of
the City of Oakland, Califomia
LEGAL NOTICE:
ANY PARTY SEEKING TO CHALLENGE THIS FINAL DECISION IN COURT MUST DO SO WITHIN
NINETY (90) DAYS OF THE DATE OF THE ANNOUNCEMENT OF THIS DECISION, PURSUANT TO
CODE OF CIVIL PROCEDURE SECTION 1094.6, UNLESS A SHORTER PERIOD APPLIES.

telecommunications facility

Transcription

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