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Home My Public Portal About12) 8A Appeal of Planning Commissions Decision approving a new Wireless Communications Facility at 5319 Halifax Road (OCR)City Council April 19 , 2016 Page 2 of 13 Municipal Code ; and 4 ) property values will decl in e if the wireless comm un ications facility is built. AT&T has provided a rebu tt al to th ese conte ntion s. The C it y has limited authority in regulating w ireless carriers (AT&T, V erizon , T-Mobi le , etc.). Federal law gives th ese ca rri e rs th e a uthority to install antennas as they determine necessary t o provide cell serv ice and fill gaps in ce ll coverage . The City can l imit th e wireless comm uni ca tion s f acilities to certain zo nes , but it cannot prohibit th em altogether o r restrict their locations so much th at it would prevent a wire less carrier from filling a cove rage gap. To "p rohibit or effective ly prohibi t" a w ireless carrier violates federal law. Further , the City does not have the authority to regu late radio frequency (RF) emissions from wireless communica t ions facil iti es ; th is authority rests solely with the Federal Communicat io ns Commission (FCC). So long as the RF emissions from an antenna are within the lim its establ ished by the FCC , it is deemed under the law to be safe . The Courts see property valu e arguments as proxies for health concerns and therefore limit the ability of jurisdictions to deny facilities based on those concerns . While the City has limited authori ty to regulate many aspects of wireless communications facil it ies , the City ha s more discretion in regu lating aesthetics . For exam ple t he City has regulations limiting heig ht and requiri ng significant camo ufl age. Attachment B includes a one page summary of the City's authority to reg ulate wireless comm uni ca tion facilities . City staff and the City Attorney 's office have ana lyzed the appeals and the rebuttal , and have prepared this report based on the submitta l as approved by the Planning Co mmi ssion , the appeals , and the rebuttal , as well as on staff's independent research of the con tentions raised by the appe llants and the re buttal and on the relevant legal requirements and limitati o ns applicab le to wireless communications faciliti es. Based on the analysis , and as set forth more fully below, staff makes the recommendation above that th e Co un ci l approve the proposed wire less com mun ications fa cility. BACKGROUND: 1. O n December 31 , 2013 , th e City received an app li cation for a co nditi ona l use permit to co nstruct a new 60-foot tall wire less comm unica tions fac i lity camo ufla ged as a pine tree (a "mono-pine"). Th e new wireless comm un ications faci lity is to be located o n th e camp us of the Bethlehem Luth eran Church at 5319 Halifax Road , at the intersection of H ali fax Road and Freer Street. The site is in a predominantly- reside ntial area in the southeast portion of the Ci ty. 2 . On March 26 , 2014, AT&T (i.e . AT&T) provided alternative camou flage designs for the new wireless communica ti o ns facility for the Planning Commission to consider. In additio n to th e pine tree design , AT&T prov id ed a traditiona l bell tower design , and a modern bell tower design with two diffe re nt color schemes . A determination was made to move forward with the 55 -foot tall "modern bell tower" design due to th e presumption that an a rch itectura l fea ture would be less intrusive than a mono- -·-----------------------~------~-------- City Council April19 , 2016 Page 3 of 13 pine . The modern bell tower facility was designed to match the architecture of the existing ch urch and was proposed to be placed in front of the churc h along the Freer Street frontage of the property. 3 . On April 9 , 2014 , noti ce of the Planning Commission was published in the newspaper and notices were sent to the property owners with i n 500 feet of the property . 4 . On April 22 , 2014 , the Planning Commission held a public hearing to cons ider the application . Upon viewing the full proposal for the wireless facility, the Planning Comm is sion requested that AT&T provide alternative designs and locations , and continued the item to a date uncertain . Specifically, the Planning Commission objected to the outsized look of the proposed "bell tower" facility, which made it inconsistent with the exist i ng church notwithstanding the arch itectural si milarity , and to the placement of the wireless facility on the Freer Street frontage of the site . The Planning Commission recommended a "mono-tree" look and placement with i n the existing courtya rd area of the site . See Attachment "C" for Planning Commission staff report and minutes from the April 22 , 201 4 hearing . 5 . On January 20, 2015 , the City Co un c il adopted Urg ency Ordinance No. 15-998U which enacted a 45-day moratorium o n wireless telecommunications fa cilities . 6 . On February 17 , 2015 , the City Council adopted Urgency Ordinance No . 15-1 OOOU which extended the moratorium on wireless telecommunications fac i lities for 1 0 months and 15 days. 7 . On January 5 , 2016 , the City Coun cil adopted Urgency Ordinance No . 16-1011 U and introduced for first reading Ordinance No. 16-1012 relating to wireless communications facilities and telecommunication facilities in the public right-of-way. 8 . On January 22 , 2016 , AT&T submitted revised pla ns for the project at 5319 Halifax Road with a mono-pine located in the courtyard in the m iddle of the property, as requested by th e Planning Commission . AT&T was aware of the wireless telecommunication facilities moratorium in place and was willing to delay the return of the item to the Planning Commission so that the City would not be forced into a hearing during the moratorium period . 9 . On February 25 , 2016 , the public hearing notices for the Planning Commission meeting were mailed to the property owners within 500 feet of the property . Notice of the public hearing was also published in the Temple C ity Tribune . 10 . On March 8 , 20 16 , the Planning Commission held a public hearing to consider the application . The Planning Commission received a report from staff, heard from AT& T's representative , took testimony from representatives of Bethlehem Lutheran City Council April19 , 2016 Page 4 of 13 Church and from neighb ors and others interested in the project, and after closing the public hearing unanimously approved the wireless communications facility with the mono-pine and equipment located in the church courtyard (see Attachment "D" for the March 8 , 2016 Planning Commission staff report and draft meeting minutes). 11 . On March 16 , 2016 , an appea l of the Planning Commission 's decis io n was filed with the C ity Clerk (see Attachment "E"). 12 . On March 22 , 2016 , additional members of the publi c came to City Hall to file an appeal of the Plann ing Commission 's decisio n with the City Clerk. Planning staff notified them that an appeal was already filed on March 16 , 20 16, but staff would in clude the substantive information in their appeal packet as part of the record on appeal (see Attachment "F"). 13. On Marc h 26 , 2016 , AT&T responded in writing to the two appeals with information supporting its position (see Attachment "G "). 14 . On April6 , 2016 , the public hearing notice of the City Council appeal hearing on this matter was mailed to the property owners within 500 feet of the property . Notice of th e public hearing was also published in the Temple City Tribune and posted at the City Council Chambers . ANALYSIS: Bases of Appeal The appeal that triggered City Council jurisdiction on this matter was submitted on the following grounds: 1) there is not a gap in coverage , 2) Proposition 65 warnings are not given , and 3) the height of the structu re does not comply with the City's Municipal Code . Information from the subsequent appellant states a fourth ground : that property values will decline due to the wireless communications facility. These co ntentions , and AT&T's rebuttals , are summarized below and set forth fully in the attachments hereto . Location of the Proposed Facility The subject property is located at 5319 Halifax Road on the northwest corner of Halifax Road and Freer Street. The property is zoned R-1 , Single-Family Residential and has an Institutional designation on the General Plan Land Use Map . The property is located approximately six-tenths of a mile south of Las Tunas Drive ; slightly over one-third of a mile southeast of Live Oak Park ; one half-mile north of Lower Azusa Road ; just less than one half-m ile east of Baldwin Avenue ; and approximate ly th ree-fourths of a m i le west of Santa Anita Avenue . This area is primarily made up of residential uses with the exception of Live Oak Park , Santa Anita Convalescent Hospital , Beth leh em Lutheran Church , City Council April19, 2016 Page 6 of 13 The second appella nt provided scree nshots from AT&T's website illustrating that their maps show sufficient coverage in th e immediate area . They a lso provided a screenshot from the website www .deadcellzones .com showing an aerial photo around the project site that does not have any reported dead zones for AT&T. As a primary point , market in g maps on providers' websites are used to show availability of phone service in an area generally. Th ey do not give th e same level of detail as propagation maps that show outdoor, in -automobile , and indoor service capacity. So w hil e the marketing maps do somet im es appear to co ntrad ict propagation maps , the City must look at the propagation maps to determine gaps in coverage and not rely on the marketing maps . This requirement co mes f rom a recent court case cited by AT&T in its su bm iss ion to the C ity , which case has been reviewed and determined by the City Attorn ey's office to be applicable to this matter. Based on the propagation maps supp li ed by AT&T and the appellant's reference to the www .deadcellzones .com website , City st aff researc hed the website in preparation for drafting this report , and it appears the information on that website relies primari ly on the public report ing a wireless carr ier's "dead zones ," meaning that it is somewhat effective i n s howin g where dead zones are , but totall y ineffective in showing where they are not, due to the need for members of th e public to both k now about the website and take the tim e to iden ti fy a "dead zo ne" on th e s ite . Another problem is that there are several of these types of we bsites that rely on someone from th e public to report a "dead spot" or relay informati on fro m the wireless ca rri e r's website , meaning that a person who identifies a "dead spot" or "dead zone" on one site may or may not take the time to go to every such website to make repetit ive reports . The information therefore does not rise to the level of a scientific analysis or representative s urvey and staff believes it should be viewed as solely anecdotal. In respons e to th e appe ll a nts' conte ntion th at there is no servi ce gap , AT&T provided two sets of coverage maps , one illust ra tin g th e existing and proposed coverag e for the Universal Mobile Te lecommunications System (UMTS) antennas and one i llustrating the existing and proposed coverage fo r th e Long -Term Evolution (LTE) a nte nn as . The UMTS is a type of 3rd ge nera tion (3G) wi re less antenna and L TE is a type of 4th gen eration (4G) technology wireless antenna . These coverage maps were crea ted using industry st a nda rd propagation tools to id entify areas in the network where signal strength is too weak to provide reliable indoor service . The purple areas on the propagation maps indicate outdoor-on ly service , th e ye ll ow areas indicate in-automobile service , and the green areas indicate ind oor service. A s you can see in th e AT&T propagation maps in Figure 2 and Fig ure 3, while th ere is in-automobile service throughout the mapped area there is existing clear gap in service for in door coverage. City Council April19 , 2016 Page 8 of 13 Section 25249 .5). The l ist of chemicals known to the State to cause cancer or reproductive toxicity does not include radio frequen cies. The federal Telecommunications Act of 19 96 provides rights to wireless service providers and establishes limitations upon local governments from considering any alleged health or environmental effects of radio freq uency (RF) emissions when making decisions for new facilities. As further explained in AT&T's project description (Attachment "1"), and at the Planning Commission hearing on the application , the Federal Communications Commission (FCC) regulates RF emissions to ensure public safety . The RF emission standards have been set based on peer-reviewed scientific studies and recommendations from a variety of oversight organizations , including the National Council on Radiation Protection and Measurements (NCRP), American Nationa l Standards Institute (ANSI), Institute of Electrical and Electronics Engineers (IEE E), Env ironmental Protection Agency (EPA ), the Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health (NIOSH ). Furthermore , the Planning Commission approved a condition (condition 5) requiring that AT&T provide a post-construction report showing RF emissions are at or below levels provided by the FCC. Because of the FCC emissions standards and the City 's condition requiring proof that those standards have been met, health effects are not considered as part of the City's review of the application . Decreased Property Values The second appellant provided what appears to be generally form letters signed by various real estate agents and brokers who assert that the installation of a new 60-foot tall wireless facility at the proposed site would have a negative effect on property values . However, no e vidence was provided by th e appellant or any of the real estate agents/brokers showing that property valu es have decreased in any id entifiable region or neighborhood due to the placement of a wireless facility in that region or neighborhood . A local government must have specific reasons that are both consistent with local regulations and supported by substantial evidence in the record to deny a permit. In a case arising from the Central Valley , California RSA 4 v. Madera County, an appellate court overturned the Madera County Board of Supervisors decision to deny a wireless facility due to a lack of substantial evidence that property values would decrease as a result of the new wireless facility. In that case , th e U.S. District Court for the Eastern District of California relied on the proposition that "generalized expression of concern regarding aesthetics or the effect on property values" fail to meet the substantial evidence threshold . Further, to the extent that concerns regarding property values are "proxy" for health concerns , basing a denial on property values may violate the Federal law prohibiting the City 's consideration of RF emissions . City Council April19 , 2016 Page 9 of 13 The second appellant also provided a letter from a realtor addressed to the Los Angeles Board of Supervisors in 2008 . The letter states that the realtor "must disclose to potential buyers where there are ce ll antennas nearby". Staff is not aware of any disclosure that is required by California law to disclose a nearby cellular antenna , and having researched standard disclosure forms has not found any such requirement that would apply to standard residential sales . Height of the Proposed Facility Both appellant arguments mention that the height of the proposed wireless facility would exceed the maximum he ig ht limitations specified in Ordinance No . 16-1012, which is 40 feet. The application was subm itted on December 31 , 2013 , deemed completed on March 26, 2014 , and heard by the Planning Commission on April 22 , 2014. At that time , the Commission indicated a general willingness to approve the facility but requested a modification to the location on the proposed s ite and a modifi cation in the stealth design for the wireless facility . The March 26 , 2014, date on wh ich the application was deemed complete and the April 22 , 2014 , Planning Commission public hearing predate by almost two years the development standards for wireless facilities established by Ord i nance No. 16-1012 on January 5 , 20 16 . In particular, the height limit of 40 feet for a new wireless facility camouflaged as a mono-pine was not in effect when this application was deemed complete and f i rst heard by the Planning Commission . AT&T was in the process of refining its application when the City's moratorium on wireless sites went into effect, and AT&T agreed to wait for Ord inance No . 16-1012 to be adopted and the moratorium to be removed before the application would return t o th e Planning Commission . Staff reviewed the applicable law with the City Attorney's office and reached the conclusion that this application must be treated by staff and the decision-making bodies (Planning Commission , and now C ity Council) under the law in effect when the matter was originally deemed complete and taken to the Planning Commission . Therefore , the development standards specified in Ordinance No . 16-1012 cannot be imposed on this application . Notwithsta nding the inability to force AT&T to comply with the standards in Ordinan ce No . 16-1 012 , AT&T was willing to adhere to all the other standards in the Ordinance with the exception of the height limitation . With the limited number of sites available to serve the residential area in which the wireless facility would be located , AT&T needs this facility to be tall enough to resolve its coverage gap issues . In addition , and as set forth more fully in Attachment "0 ", it is City staffs position that even more height above that sought by AT&T is preferable for this wireless facility . The additional height will "soften " the look of the mono-p i ne while stil l allowing AT&T the height that it needs to close its covera ge gap . AT&T's request for a relatively tall facility is supported by the discussion above regarding the large, predominantly-residential area in which the facility is to be placed . In the absen ce of either numerous potentia l sites or City Council April19 , 2016 Page 10 of 13 ridgelines on which to place a wire less fac ility in order to extend its coverage area , a taller facility might end up being the only means by which to address the significant gap in coverage . Legal Issues Given the information provided by AT&T and the appellants , it is important to discuss two key issues that are before the City Council as part of this appeal : (1) aesthetics , and (2) radio frequency emissions . The Telecommunications Act of 1996 (47 USC §§ 151 et seq .) and Federal regulations adopted to implement the Act govern the delivery of telecommunications services , including the delivery of wireless services . Cities are preempted from "enacting barriers" to the development of telecommunications services (47 USC §§ 253(a), 257). Cities do retain the authority to regulate the placement, construction , and modification of wireless facilities (47 USC §332 (c)(7)). With respect to aesthetics , the Ninth Circuit Court of Appeals , which is bind ing on the City, held in 2009 that a City can deny a permit application for a wireless facility if it does the following: (1) makes a finding of "adverse aesthetic impacts" based on "substantial evidence" i n the record ; and (2) estab lishes based on the record that the denial will not constitute a prohibition on the provision of wireless services (Sprint PCS Assets., L.L.C. v. City of Palos Verdes Estates (9th Cir, 2009) 583 F.3d 716). For some years since that ho lding , cities have reviewed the "aesthetic impacts" and existing and proposed coverage of wireless facilities to determine whether a proposed facility is subject to denial. But in determining whether existing coverage constitutes a "denial of services" vis-a-vis the proposed coverage, district courts within the Ninth C ircu it have used an "i n-bu il ding" coverage level rather than an "outdoor" level (See T-Mobile West Corp . v. City of Huntington Beach (C.D . Cal. Oct 10 , 2012) 2012 U.S . Dist. LEXIS 148170). This means that a ma rketing map showing outdoor co verage levels cannot be used to overrule a propagation map showing lack of in-building cove rage for tablets , "smart" appliances , and even telephones . More importantly , where a wireless facility applicant demonstrates a "significant gap " in coverage based on that in-building standard and has demonstrated that the proposed facility provides the "least intrusive means " of f ill i ng that gap , the burden of proving that a denial of the application would not constitute a denial of service shifts to the city (See T- Mobi/e USA , Inc. v. City of Anacortes (9th Cir 2009) 572 F.3d 987). This means that where an applicant prov ides record evidence of a coverage gap and provides record evidence that that the proposed site is the best site available (meaning that the site both meets coverage needs and the site owner is will i ng to lease space to AT&T for a wireless facility), it is presumed that the application should be approved . If instead the city wishes to rely on its "least intrusive means" authority to deny the application then the city has to City Council April19 , 2016 Page 11 of 13 provide evidence either that a better site is available or that a specific aesthetic look is better (and would be approved if AT&T would agree to it) for the proposed site . So with respect to "aesthetic issues " under the City's consideration , it is not enough to simply dislike the aesthetics of the proposed mono-pi ne or aspects of the proposed mono- pine . Due to the coverage maps provided by AT&T and the alternative site analys is provided by AT&T, a denial on aesthetic grounds would require record evidence of a refusal by AT&T to modify the design of the project to the City's preferable aesthetic. Turning to radio frequency ("RF ") emissions , the Telecommunications Act of 1996 specifically deals with RF emissions , stating in 47 USC 332(c)(7)(B)(iv): No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the ex tent that such fa cilities comply with the Commission 's regulations concerning such emissions. This means that once an applicant provides evidence that its wireless facility will comply with FCC regulations concerning RF emissions , the City (or any other local agency nation- wide considering a wireless application) cannot take into account concerns about RF emissions. It is understood that there is a wide variety of scholarship available regarding the RF emissions field , and that the depth and treatment of such scholarship is as varied as the scholarship itself. But for purposes of reviewing and approving or denying a wire less application , the City is limited by Federal law to reviewing compliance with FCC regu lations . As stated above , the prohibition on considering RF emissions has been extended to a prohibition on co ns ide ring informatio n that serves as a proxy for RF em iss ions concerns (See AT&T Wireless Servs . of Ca l., LLC v. City of Carlsbad (S .D. Cal 2003) 308 F.Supp.2d 1148). In the key decision on the matter, "philosophical" concerns about the aesthetics of wireless faciliti es in general were combined with concerns about property values decreasing due to proximity to a new facility . The court conclude d that , due to the lack of specific aesthetic concerns and due to the absence of an alternative rationale for property values diminishing , the concerns were actually proxies for concerns about RF emissions . Because the city could not consider RF emissions i n reaching its decision on the facility , and because considering RF emissions by proxy was deemed to also violate the Federal law, the court overruled the city 's denial of an application for a wireless facility . Should the City consider denying the application due to concerns about property values or aesthetics , it would need to have record evidence of some non-RF emissions rationale supporting those concerns . In conclusion , once an applicant has provided propagation maps showing a gap in in- building coverage and has provided an a lternative site analysis showing that the proposed City Council April19, 2016 Page 12 of 13 site is the best site available for meeting its technological needs, the burden shifts to the City to base any denial on record evidence that would support either (a) a conclusion that the aesthetics of the proposal a re incompatib le with City or neighborhood values , and that AT&T refuses to modify its proposal to meet those values ; or (b) a conclusion that a preferable site for the facility exists and is available to meet AT&T's needs. Conclusion AT&T has provided substantial information addressing concerns from the appellants relating to the gap in service , health effects , and decreased property values . The propagation maps provided by AT&T illustrate a continuing need for indoor service in the area . The City cannot take into conside rati on perceived health effects from RF emissions , as this issue has been comp lete ly precluded by Federal law and is instead regulated by the FCC . To ensure that the RF levels are in comp liance with the FCC regulations , a condition of approval has been added to provide a post-installation report showing the wireless facility is in compliance . No documented and substantial evidence was provided by the appellants to show that property values will decrease based on the presence of a wireless facility , only opinions from real estate agents and brokers . Finally , the height of the facility is not incompatible with the law governing this installation because the City cannot impose standards established in 2016 , as the application was subm itted on December 31 , 2013 . CITY STRATEGIC GOALS: Upholding the Planning Commission's decis ion and approving the proposed wireless facility will further the City's Strategic Goals of Good Governance and Economic Development. FISCAL IMPACT: This item does not have an impact on the Fiscal Year 2015-16 City Budget. ATTACHMENTS: A. Resolution No . 16-5160 B . Wireless Communication Facilities I Cell Antennas Frequently Asked Questions C. Planning Commission Staff Report and Meeting Minutes , April 22 , 2014 D. Planning Commission Staff Report and Draft Meeting Minutes , March 8 , 2016 E . First Appellant's Form F. Second Appellant's Form and Information G. Appl icant's Response to Appellant's Information City Council April19, 2016 Page 13 of 13 H. Zoning Map for Area I. Applicant's Project Description, Alternative Sites Analys is, and AT&T Mobility Radio Frequency Statement ATTACHMENT A RESOLUTION NO. 16-5160 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY APPROVING FILE NO. 13-174 TO ESTABLISH A NEW 70-FOOT TALL WIRELESS COMMUNICATIONS FACILITY CAMOUFLAGED AS A PINE TREE. THE APPROVAL ALSO INCLUDES A 315 SQUARE FOOT EQUIPMENT CABINET SCREENED BY A NEW BLOCK WALL AND EXISTING LANDSCAPING AT 5319 HALIFAX ROAD. THE CITY COUNCIL OF THE CITY OF TEMPLE CITY DOES HEREBY RESOLVE: SECTION 1. The City Council has considered all of the evidence submitted into the administrative record, which includes, but is not limited to: 1. Reports and presentation of project related data and analysis prepared by the Community Development Department. 2. The City of Temple City Municipal Code, and all other applicable regulations and codes. 3. Public comments, written and oral, received and/or submitted at or prior to the public hearing, supporting and/or opposing the applicant's request. 4. Testimony and/or comments from the applicant and its representatives submitted to the City in both written and oral form at or prior to the public hearing. 5. All related documents received and/or submitted at or prior to the public hearing. SECTION 2. Based on the following prefacing facts as more fully set forth in the administrative record, the City Council finds that: 1. On December 31, 2013, the applicant submitted the application. 2. On March 26, 2014, the applicant provided alternative camouflage designs for the new wireless communications facility for the Planning Commission to consider. In addition to the pine tree design, the applicant provided a traditional bell tower design, and a modern bell tower design with two different color schemes. 3. On April 9, 2014, notice of the Planning Commission was published in the newspaper and notices were sent to the property owners within 500 feet of the property. City Council of the City of Temple City Resolution No. 16-5160 Page 2 April 19, 2016 4. On April 22, 2014, the Planning Commission held a public hearing to consider the application. The Planning Commission requested that the applicant provide alternative designs and locations, and continued the item to a date uncertain. Specifically, the Planning Commission objected to the outsized look of the proposed “bell tower” facility and to the placement of the wireless facility on the Freer frontage of the site. The Planning Commission recommended a “mono- tree” look and placement within the existing courtyard area of the site 5. On January 20, 2015, the City Council adopted Urgency Ordinance No. 15-998U which enacted a 45-day moratorium on wireless telecommunications facilities. 6. On February 17, 2015, the City Council adopted Urgency Ordinance No. 15- 1000U which extended the moratorium on wireless telecommunications facilities for 10 months and 15 days. 7. On January 5, 2016, the City Council adopted Urgency Ordinance No. 16-1011U and introduction and first reading of Ordinance No. 16-1012 relating to wireless communications facilities and telecommunication facilities in the public right-of- way. 8. On January 22, 2016, revised plans were submitted with a “mono-pine” located in the court yard in the middle of the property, which was requested by the Planning Commission. AT&T was aware of the wireless telecommunication facilities moratorium in place and wanted to wait so that the City would not be forced into a hearing during the moratorium period. 9. On February 25, 2016, the public hearing notice of the Planning Commission meeting were mailed to the property owners within 500 feet of the property. Notice of the public hearing was also published in the Temple City Tribune. 10. On March 8, 2016, the Planning Commission held a public hearing to consider the application. The Planning Commission unanimously approved the wireless communications facility by a vote of 4-0. 11. On March 16, 2016, an appeal of the Planning Commission’s decision was filed with the City Clerk. 12. On March 22, 2016, additional members of the public tried to file an appeal of the Planning Commission’s decision with the City Clerk. Planning staff notified them that an appeal was already filed on March 16, 2016, but we would include their information as an attachment. 13. On March 26, 2016, the applicant responded in writing to the two appeals with information supporting its position. City Council of the City of Temple City Resolution No. 16-5160 Page 3 April 19, 2016 14. On April 6, 2016, the public hearing notice of the City Council appeal hearing on this matter as mailed to the property owners within 500 feet of the property. Notice of the public hearing was also published in the Temple City Tribune. 15. Notice of the public hearings satisfied the noticing requirements set forth in Government Code Sections 65090 and 65091. 16. The project site is zoned R-1, Single-Family Residential. 17. The project site is designated Institutional by the General Plan. SECTION 3. Based upon the information above the City Council finds: 1. That the site for the proposed use is adequate in size, shape, topography and circumstances; and The 1.62 acre property is rectangular in shape, level in grade, and is large enough to accommodate the proposed wireless communications structure and the associated equipment cabinets. The proposed location for the wireless communications structure and equipment cabinets are located in an existing 5,500 square foot underutilized courtyard. Therefore, the project meets this finding. 2. That the site has sufficient access to streets and highways, adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use; and The proposed wireless communications facility would be unmanned and would not generate a noticeable increase in traffic. Typically, wireless antenna facilities are serviced by a maintenance person once a month or are called out to the site in the event there is an equipment failure. The subject site is located on the corner of Halifax Road and Freer Street, and has access from both streets. Therefore, the project meets this finding. 3. That the proposed use will not have an adverse effect upon the use, enjoyment or valuation of adjacent or neighboring properties or upon the public welfare. (Ord. 92-724) The revised location of the monopine, located in the middle of the property in the church’s courtyard, will have the least impact to the surrounding properties. The proposed monopine is 60-feet tall, but staff is recommending to increase the height of the monopine tower to 70-feet to help with properly camouflaging the top of the structure. Even with the monopine being taller than the previous modern bell tower, it is set back more than 150 feet from Freer Street and 160 feet from Halifax Road. The monopine is approximately 70 feet away from the City Council of the City of Temple City Resolution No. 16-5160 Page 4 April 19, 2016 nearest residence, 5327 Halifax Road. The monopine’s new location, set back more than 150 feet from the street, addresses the massing issues raised by some members of the community. Noise was also analyzed as part of the applicant’s request. The proposed equipment cabinets are located more than 120 feet away from the nearest residence and within a courtyard. Therefore, the project meets this finding. SECTION 4. This project is Categorically Exempt from environmental review pursuant to Section 15332 (Class 32, In-Fill Development Project) and Section 15303 (Class 3, New Construction or Conversion of Small Structures) of the California Environmental Quality Act Guidelines. SECTION 5. Accordingly, File 13-174 is approved, subject to the following conditions: Project Specific Conditions 1. The project shall consist of the installation of a new wireless communication facility camouflaged as a pine tree (monopine) not to exceed 70 feet in height. The project also includes approximately 315 square foot area used to house associated equipment cabinets. 2. All improvements shall be in substantial compliance with the submitted plans, date stamped January 22, 2016, except as modified by these conditions of approval. The plans shall be corrected to increase the overall height to 70 feet, and to demonstrate that the antennas will be centered on the monopine (west elevation) and the structure shall be built to comply with the revised plans. 3. Noise shall be in compliance with the City’s Noise Ordinance. The demolition and/or construction for the new wireless communication facility shall be limited to 7:00 a.m. through 7:00 p.m., Monday through Saturday. Routine maintenance for the wireless communication facility shall also be limited to Monday through Saturday, from 7:00 a.m. to 7:00 p.m. 4. The wireless communication facility shall comply with the following development standards: a. Monopine antennas shall be designed for a minimum of two carriers. b. Monopine antennas shall have a minimum of 3.1 branches per foot for full- density coverage, limiting spacing between the branches. Seventy percent of the branches shall be 8 feet or longer. c. Branch dispersal shall be random, with intermingled long and short branches, to appear natural. d. Branches shall extend beyond all antennas by at least 12 inches. City Council of the City of Temple City Resolution No. 16-5160 Page 5 April 19, 2016 e. Branches shall begin a minimum of 14 feet above the ground. f. The top of the faux trees shall be a minimum of 5 feet above the highest antenna. g. Branch foliage must be multicolored with greens and browns, matching those of a natural pine tree. The foliage must be extruded (made from plastic) in these colors instead of painted. A sample shall be submitted for City approval prior to fabrication. h. A bark cladding sample with custom color shall be submitted for City approval prior to fabrication. i. Pine needle antenna socks that match the approved foliage colors shall cover all antennas. j. Antennas shall be mounted using stand-off mounts (frame-type mounts are unacceptable). Antenna support pipe mounts shall be painted a darker shade of green or black with a flat paint finish that reduces reflection and mountain visibility. k. Coaxial cables shall access the structure through the base. 5. Upon installation of the facility, the applicant shall demonstrate that the project will not result in levels of radio frequency emissions that exceed Federal Communications Commission (FCC) standards, including FCC Office of Engineering Technology (OET) Bulletin 65, Evaluating Compliance with FCC Guidelines for Human Explore to Radiofrequency Electromagnetic Fields, as amended. Additionally, if the Community Development Director (Director) determines the wireless telecommunications facility, as constructed, may emit radio frequency emissions that are likely to exceed FCC uncontrolled/general population standards in the FCC OET Bulletin 65, in areas accessible by the general population, the Director may require post-installation testing to determine whether to require further mitigation of radio frequency emissions. The cost of any such testing and mitigation shall be borne by the applicant. 6. Any collocation at this site shall be consistent with the Ordinance hereafter at the time of the submittal. General Conditions 7. The applicant and property owners, and their successors in interest, shall indemnify and defend the City of Temple City and its officers, employees, and agents from and against all liability and costs relating to the City’s actions concerning this project, including (without limitation) any award of litigation expenses in favor of any person or entity who seeks to challenge the validity of any of the City’s actions or decisions in connection with this project. The City shall have the sole right to choose its counsel and property owners shall City Council of the City of Temple City Resolution No. 16-5160 Page 6 April 19, 2016 reimburse the City’s expenses incurred in its defenses of any lawsuit challenging the City’s actions concerning this project. 8. Building permits shall be obtained for all construction activities of the project including tenant improvements. 9. Construction plans or tenant improvement plans shall include a sheet containing each page of these conditions of approval at the time of building plan check submittal. 10. Disposal of Construction Waste: No construction activity waste or material of any kind, including plaster, cement, paint, mud, or any other type of debris or liquid shall be allowed to be disposed of in the street or gutter, storm drain, or sewer system. All construction debris spills shall be removed daily and shall use necessary dust control measures. Failure to comply with this condition will result in charges filed by the District Attorney. 11. This approval shall automatically expire 24 months from the date of approval if said approval is not exercised within that time. If the project is not commenced prior to the expiration date, the applicant may apply in writing for an extension of time at least forty (40) days before the expiration date. The granting body may in its discretion approve or deny the extension request. 12. This conditional use permit shall automatically terminate and be of no further force or effect in the event the use approved herein is discontinued or abandoned for a period of six consecutive months. 13. This approval and these conditions may be modified or revoked by the granting body (the Planning Commission) should it be determined that the project approved herein is detrimental to the public health, safety, or welfare; is operated or maintained contrary to these conditions of approval or any federal, state, or local law; or is operated or maintained so as to constitute a public nuisance. Such modification or revocation shall occur at a noticed public hearing and in accordance with the provisions of Section 9-1F-40 of the Zoning Code. 14. By carrying out the project approved herein or otherwise using or exercising this approval, the applicant acknowledges and accepts all of the conditions imposed. The applicant acknowledges that failure to comply with these conditions of approval may be cause for revocation of the approval. These conditions are binding upon the applicant, the current and future property owners, and any other party using or exercising this approval. City Council of the City of Temple City Resolution No. 16-5160 Page 7 April 19, 2016 SECTION 6. The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED AND ADOPTED THIS 19TH DAY OF APRIL, 2016. MAYOR ATTEST: CITY CLERK I hereby certify that the foregoing Resolution, Resolution No. 16-5160, was adopted by the City Council of the City of Temple City at a regular meeting held on the 19th of April, 2016, by the following vote: AYES: Council Members: NOES: Council Members: ABSENT: Council Members: ABSTAIN: Council Members: Temple City Community Development Department Wireless Communication Facilities / Cell Antennas Frequently Asked Questions Does the City have to allow cell antennas? Yes. Wireless carriers (AT&T, Verizon, T-Mobile, etc.) have the authority under federal law to install antennas as they determine necessary to provide cell service and fill gaps in cell coverage. The decision about where to place an antenna is driven by data related to the strength and quality of a cell signal in an area. Under federal law, a city cannot “prohibit or effectively prohibit” any wireless carrier from providing service. Can the City regulate where antennas are located? Yes, with significant limitations. Temple City allows antennas to be located only in commercial or industrial areas, on institutional properties such as churches and schools, and in the public right-of-way. The City cannot prohibit antennas altogether, or restrict their locations so much that it would prevent a wireless carrier from filling a gap in wireless coverage. Since Temple City is predominantly residential and largely flat with no hills or ridgelines, the number of suitable locations for cell antennas is limited. Who determines if there is a gap in coverage? The wireless carriers’ web sites show that there are no coverage gaps in Temple City and I always have a good signal on my phone. Wireless carriers are required to prepare and submit signal propagation maps with their cell antenna applications to demonstrate gaps in coverage. These maps are prepared by radio frequency engineers and are more scientific and detailed than the maps provided online for marketing purposes, which generally show “outdoor” coverage. Courts have ruled that gaps in coverage are determined by the more detailed signal propagation maps, and that with increased numbers of families replacing their land-line phones with cell phones, poor “in-building” signal quality can be considered a legitimate gap in coverage. Can the City regulate how antennas look? Yes. Temple City has various regulations for cell antennas including height and appearance. Temple City’s regulations encourage antennas to be located on buildings and camouflaged. If built as a freestanding tower, the antennas must be well disguised, such as looking like a tree. Can the City regulate antennas based on health impacts? No. Under federal law, the Federal Communications Commission (FCC) is the only agency that is allowed to regulate radio frequency (RF) emissions from cell antennas. So long as the RF emissions from an antenna are within the limits established by the FCC, it is deemed to be safe. Temple City requires wireless carriers to provide a report showing that the RF emissions from their antennas are within the FCC limits, but the City cannot deny a cell antenna application based on concerns about health impacts. Can the City regulate antennas based on their property value impacts? No. There are no studies or evidence demonstrating that cell antennas alone impact property values, outside of the context of the perceived health impacts of antennas. Courts have ruled that arguments about property values that serve as a proxy for arguments about health impacts cannot be considered by cities. Planning Commission Staff Report April 22, 2014 Item No.: 8C FILE NO: 130000174 ADDRESS: 5319 Halifax Road, Temple City, CA 91780 PROJECT DESCRIPTION: A Conditional Use Permit to allow the establishment of an unmanned wireless antenna facility camouflaged as a 55-foot tall bell tower consisting of twelve (12) wireless antennas, a microwave dish 30 inches in diameter and related equipment cabinets. APPLICANT: Eukon Group (AT&T Wireless) and Bethlehem Lutheran Church PROJECT PLANNER: Adam L. Gulick, Associate Planner ENVIRONMENTAL REVIEW: The City’s staff has determined that the project is exempt from environmental review in accordance with Section 21084 of the California Environmental Quality Act (CEQA) and pursuant to Sections 15061(b)(3) (No possibility that the project will have a significant effect on the environment) and 15303 (New Construction or Conversion of Small Structures) of the CEQA Guidelines. RECOMMENDATION: That the Planning Commission adopt Resolution No. 14-2402PC and approve File No. 130000174 (Conditional Use Permit) CRITICAL ISSUES:  Compliance with Federal Communications Commission (FCC)/health hazards  Facility need  Site selection process  Visibility/aesthetics  Noise from equipment cabinets BACKGROUND: The subject site is occupied by Bethlehem Lutheran Church and is located at 5319 Halifax Road, the April 22, 2014 Planning Commission Meeting Staff Report – Item No. 8C File No.: 130000174 Page 2 northwest corner of Halifax Road and Freer Street. The site is zoned R-1 (single-family residence) and is designated as Institutional by the General Plan. The site is rectangular in shape and has an overall lot size of 1.62 acres, with 235 feet of street frontage on Freer Street and approximately 197 feet of street frontage on Halifax Road. There is a parking lot consisting of 52 parking spaces, located at the northwest corner of the property that has access from Halifax Road and Freer Street. According to the church’s website, the church was established in 1948, prior to the City’s incorporation. The property consists of four buildings on the lot: a 7,255 square foot sanctuary that was built in 1948; a 21,840 square foot two-story building consisting of offices, library, classrooms, social hall and auditorium that was built in 1960; a 7,656 square foot building containing chapels and meeting rooms that was built in 1964; and a 1,570 square foot single-family residence built in 1950. The applicant has submitted three different designs for staff to consider (Attachment 3). The original design submitted is a 60-foot tall tower camouflaged as a pine tree. The applicant submitted alternative designs for City staff to analyze in terms of aesthetics, rather than having only one option to take into consideration. The applicant submitted two different types of church bell towers for the alternative designs, both with an overall height of 55-feet. The alternative designs removed the structure for the equipment cabinets. The equipment cabinets instead would be located behind a proposed 7-foot tall concrete masonry unit (CMU) wall, which would be painted to match the existing buildings on the site. All three of the proposed wireless antenna facilities would consist of a 30” diameter microwave dish, nine (9) Long-Term Evolution (LTE) antennas, and three (3) Global System for Mobile (GSM)/UMTS antennas. The wireless antennas would be situated in a triangular array (facing north, east and southwest), with four antennas in each array. The wireless antennas would be approximately 18 inches wide and 8 feet tall. Staff is recommending the modern bell tower design due to the ability to accommodate future co-locations and the design complements the existing buildings and use on the property. ANALYSIS: After reviewing the proposed wireless antenna facility, staff recommends approval of the project. The following is staff’s analysis: 1. Compliance with Federal Communications Commission (FCC)/health hazards: Section 704 of the Telecommunication Act of 1996 (47 U.S.C. §332(c)) prohibits local governments from regulating proposed wireless facilities on the basis, either directly or indirectly, on the environmental effects of radio frequency emissions (RF) of such facilities, which otherwise comply with FCC standards. The applicant shall provide written verification that the proposed project RF (radiofrequency) and EMF (electromagnetic) emissions will fall within the most recently adopted FCC standards for safe human exposure to such forms of non-ionizing electromagnetic radiation when operating at full strength and capacity. Any violations relating to the Federal Communications Commission (FCC) regulations would be enforceable by that agency. April 22, 2014 Planning Commission Meeting Staff Report – Item No. 8C File No.: 130000174 Page 3 The American Cancer Society’s website has a informational page regarding RF waves and its effects on cancer, stating that it is only an issue if the RF waves are concentrated in a two inch area similar to x-rays or ultraviolet (UV) light. Several scientific studies have shown that wireless antennas at the ground level have very low RF radiation levels. When antennas are mounted at higher elevations (i.e., poles, towers, etc.) the RF levels are even lower levels, similar to RF levels emitted by radio and television towers. 2. Site Design/Building Layout: The northern (rear) portion of the property consists of a parking lot with a total of 52 parking spaces. The southeast portion of the property, fronting Halifax Road and Freer Street, consists of the three church buildings for the property and a driveway leading to the rear parking lot. The southwest portion of the property consists of a single-family dwelling, which also consists of a driveway leading to the rear parking lot. The recommended bell tower design is situated in front of the sanctuary, facing Freer Street. There is an existing tree in the proposed location that would be removed or relocated to accommodate the new bell tower. 3. Facility Need: Wireless carriers must illustrate that the facility is necessary to provide or fill a significant gap in coverage or capacity shortfall in the applicant’s service area and that the proposed installation is the least intrusive means of doing so. It is common for wireless antenna facilities to be located at a church, school, or on a commercial property, since wireless antennas need to be mounted to taller buildings, can be incorporated into an architectural feature, or at a site that can accommodate a stealth design (i.e., tree, flag pole, light pole, etc.). The applicant has provided coverage maps (Attachment 4) showing the current gap in the carrier’s service for the area, the proposed service, and a combination of the two. 4. Site Selection: The nearest wireless antenna facility is a slightly over a mile from the subject site, with the area consisting primarily of single-family residential properties. The only possible options for a wireless antenna facility in this area would be a commercial property, Live Oak Park and one of the churches in the area. The applicant initially explored the possibility of constructing a wireless antenna facility at Live Oak Park; however, they determined that the location was too far north to meet the network’s objectives. The applicant also explored commercial properties in the area, but determined that there were issues with available land area due to required off-street parking. 5. Visibility/Aesthetics: The FCC has ruled that local jurisdictions are only allowed to regulate visibility/aesthetic issues relating to wireless antenna facilities. The applicant originally submitted a proposal for the wireless antennas to be attached to a 60-foot tall pole camouflaged as a pine tree (Attachment 5). Staff feels that the pine tree does not blend in with the existing conditions on the subject property. There are two tall trees on the property, one being a palm tree with a height of approximately 90 feet and another tree (species unknown) that is approximately 60 feet tall. The use of a camouflage tree is April 22, 2014 Planning Commission Meeting Staff Report – Item No. 8C File No.: 130000174 Page 4 ideal when there are existing trees (of the same species) that can provide a realistic transition or assist with screening the new wireless antenna structure. Additionally, staff has concerns with future co-location aesthetics for the pine tree, as it is common for co-locations to overcompensate with too many tree branches where the new wireless antennas are installed, resulting in uneven branch distribution. Due to comments received from prior wireless antenna proposals, City staff requested that the applicant explore alternative designs to allow staff to analyze which option would be best suited for the site in terms of aesthetics. The applicant provided two alternative designs, both replicating a church bell tower, one being a traditional bell tower and the other a modern bell tower design. The City Attorney also advised staff that the City should take into consideration a wireless antenna facility’s ability to accommodate another wireless company on the proposed structure, which is commonly referred to as a co-location. This is necessary due to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. The Act essentially requires that a state or local government “may not deny, and shall approve” any request for co-location on an existing wireless tower, provided the request does not substantially change the physical dimensions of the tower or base station. Staff feels that the traditional bell tower does not complement the sanctuary, as the building has a steep gable roof and the traditional bell tower design is a vertical element with a hip roof. Staff believes this design would better complement a church with an architectural influence of either Mediterranean or Spanish revival. Of all of the designs submitted, staff feels that the modern design bell tower better complements the architectural style of the sanctuary. The modern bell tower consists of three poles situated in a triangle formation that support the structure, and have two sets of panels at the top with fake bells hanging in the middle. Although the proposed bell tower would be closer to Freer Street, staff feels that it would be better suited for the site and can easily accommodate a future co-location. The applicant provided two sets of photo simulations for the modern bell tower with the panels painted aqua/green to match the existing color of the trim of the sanctuary and a blue cross, and the other photo simulation with the panels painted brown to match the color of the roof and aqua/green cross. Staff feels that aqua/green color panels with the blue cross is the better option out of the two designs. To be in line with the City’s policy of undergrounding new utility lines for new developments, the applicant is proposing to underground the new electrical/utility lines for the proposed wireless antenna facility. The lines need to be placed underground because the utility pole that services the subject site is located on the south side of Freer Street. Since the applicant is undergrounding the new lines, they have also offered to underground the existing overhead lines that run to the electrical room for the sanctuary. 6. Noise from Equipment Cabinets: The equipment cabinets will be located behind a new 7-foot tall CMU wall and an existing 6-foot tall shrub. The nearest residential building would be approximately 120 feet away. In 2004, the Planning April 22, 2014 Planning Commission Meeting Staff Report – Item No. 8C File No.: 130000174 Page 5 Commission discussed decibel levels emitted from a wireless antenna facility’s equipment cabinets. The applicant for that project provided information for that the equipment cabinets showing that they emit the same sound levels as an air conditioning unit for a 2,000+ square foot residential home. The information also stated that from 10 feet away the noise level would be 70 decibels and would reduce the farther you are from the equipment cabinets. With the nearest residential building being over 120 feet from the proposed equipment cabinets, the noise level impacts on surrounding properties would be negligible. REQUIRED FINDINGS: The findings required in Section 9203 of the Temple City Municipal Code for a Conditional Use Permit are contained in the attached resolution (Attachment 1). ENVIRONMENTAL REVIEW: Staff has determined that this project is exempt for the California Environmental Quality Act (CEQA) pursuant to Sections 15061(b)(3) (No possibility that the project will have a significant effect on the environment) and 15303 (New Construction or Conversion of Small Structures) of the California CEQA Guidelines. A Notice of Exemption has been prepared and is attached (Attachment 6). CONDITIONS OF APPROVAL: The Conditions of Approval are contained in the attached draft resolution (Attachment 1). ATTACHMENTS: 1: Planning Commission Draft Resolution No. 14-2402PC 2: Application 3: Site Plan, Floor Plan and Elevations 4: AT&T Coverage Maps 5: Photo Simulations 6: Notice of Exemption ATTACHMENT 1 RESOLUTION 14-2402 PC DRAF T A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TEMPLE CITY APPROVING A CONDITIONAL USE PERMIT AT 5319 HALIFAX ROAD TO THE ESTABLISHMENT OF A NEW 55-FOOT TALL WIRELESS ANTENNA FACILITY CONSISTING OF TWELVE (12) ANTENNAS, A MICROWAVE DISH 30 INCHES IN DIAMETER, AND RELATED EQUIPMENT CABINETS. (AT&T, BETHLEHEM LUTHERAN CHURCH) The Planning Commission of the City of Temple City does hereby resolve : SECTION 1. The Planning Commission has considered all of the evidence submitted into the administrative record, which includes, but is not limited to: 1 . Reports and presentation of project related data and analysis prepared by the Community Development Department. 2. The City of Temple City Municipal Code, and all other app licable regulations and codes. 3. Public comments, written and oral, received and/or submitted at or prior to the public hearing, supporting and/or opposing the applicant's request. 4. Testimony and/or comments from the applicant and its representatives submitted to the City in both written and oral form at or prior to the public hearing . 5. All related documents received and/or submitted at or prior to the public hearing. SECTION 2. Based on the foregoing evidence, the Planning Commission finds that: 1. On December 31, 2013, the applicant submitted the application. 2. On March 26, 2014, the application was deemed complete. 3. Notice of the March 27, 2014 Planning Commission public hearing was published in the newspaper. 4. Notice of the Planning Commiss ion pub l ic hearing was mailed to property owners within a 300-foot radius at least ten (10) days prior to the hearing. 5. Notice of the Planning Commission public hearing included the notice requirements set forth in Government Code Section 65009 (b)(2). 6. The project site is zoned R-1, Single Family Residential. 7 . The project site is designated Institutional by the General Plan . Resolution 14-2402 PC Page 2 File No. 130000174, Conditional Use Permit 5319 Halifax Road SECTION 3. Based upon a public hearing for a Conditional Use Permit, File No. 130000174, the Planning Commission finds: 1. That the site for the proposed use is adequate in size, shape, topography and circumstances. The 1.62 acre lot is rectangular in shape, level in grade, and is large enough to accommodate the proposed wireless antenna structure and the related equipment. Therefore, the project meets this finding. 2. That the site has sufficient access to streets and highways, adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use. The proposed wireless antenna facility would be unmanned and would not generate a noticeable increase in traffic. Typically, wireless antenna facilities are serviced by a maintenance person once a month or are called out if there is a system failure. The subject site is located on the corner of Halifax Road and Freer Street, and has access from both streets. Therefore, the project meets this finding. 3. That the proposed use will not have an adverse effect upon the use, enjoyment or valuation of adjacent or neighboring properties or upon the public welfare. The applicant submitted three camouflaged options for staff to analyze. Staff feels that the option of the modern church bell tower will have the least impact to the surrounding properties, as it will blend in with the existing church use. Furthermore, due to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, the City needs to take into account a sites ability for future collocation from another wireless carrier. Staff feels that the modern bell tower could easily accommodate another wireless carrier on the structure and would have minimal impact in terms of aesthetics. Therefore, the project meets this finding. SECTION 4. This project is found to have no significant effects upon the environment, and is categorically exempt from the environmental review under CEQA guidelines Section 15061(b)(3) no possibility that the project will have a significant effect on the environment, and 15303 New Construction or Conversion of Small Structures. SECTION 5. Accordingly, File No. 130000174 is approved and is subject to the following conditions: 1. The proposed development shall be in substantial compliance with the approved plans and photo simulations with a March 26, 2014 date-stamp from the City of Temple City Community Development Department, except as modified herein after. 2. This approval is subject to the revocation procedures outlined in Section 9230 of the Temple City Municipal Code. Resolution 14-2402 PC Page 3 File No. 130000174, Conditional Use Permit 5319 Halifax Road 3. The operation of the wireless facility shall strictly comply with the regulations and guidelines provided by the Federal Communications Commission (FCC) to ensure public safety. The radiation emitted from this communications facility shall not exceed the applicable public exposure standards specified by the Federal Communications Commission (FCC), nor any other applicable exposure standards for this type of facility, which may be specified in the future by the FCC. The applicant shall provide written verification that the proposed project RFR (radiofrequency) and EMF (electromagnetic) emissions will fall within the most recently adopted FCC standards for safe human exposure to such forms of non-ionizing electromagnetic radiation when operating at full strength and capacity. 4. The applicant shall underground the new electrical/utility lines that have a connection point to a utility pole on the south side of Freer Street. The applicant shall also underground existing overhead lines for the electrical room next to the Sanctuary. Said right-of-way improvements shall be subject to the satisfaction of the Community Development Department and the applicant shall obtain necessary building and/or right-of-way permits. 5. Building permits shall be obtained for the new seven (7) foot tall concrete masonry unit (CMU) block wall. Construction drawings shall be submitted for the new CMU wall and is subject to review and approval of the Community Development Department. The new CMU block wall shall be painted (including trim) to match the adjacent electrical room. 6. Noise shall not exceed the City’s noise ordinance during demolition and/or construction. Construction work shall be limited to 7:00 a.m. to 6:00 p.m. Monday through Saturday. No construction work shall occur on Sundays or national holidays. 7. The property shall be consistently maintained in full compliance with all applicable ordinance and approvals, including conditions previously imposed with other applications for the subject site. 8. Building permits shall be obtained for all demolition work, all new construction, and any building improvements or building modifications. Such modifications and/or alterations shall be subject to the review and approval of the Community Development Department of the City of Temple City. 9. The applicant/property owner shall meet all requirements of the National Pollutant Discharge Elimination System (NPDES) related to pollutants, runoff or non-storm water discharges. 10. The Conditions of Approval contained in this Resolution may be enforced by the Sheriff’s Office as well as City Staff. Any violation of any condition is a misdemeanor and may be processed directly by criminal complaint. Resolution 14-2402 PC Page 4 File No. 130000174, Conditional Use Permit 5319 Halifax Road 11. This Conditional Use Permit shall expire 24 months from the date of approval if said Conditional Use Permit is not exercised within that time. If the project is not commenced prior to the expiration date, the applicant may apply in writing for an extension of time at least forty (40) days before the expiration date. 12. A copy of the approved resolution shall be included in the construction plans as construction notes. 13. This Resolution shall not become valid until such time that the applicant/property owner has signed a copy of the Resolution acknowledging acceptance of the Conditions of Approval. Section 6. The Secretary shall certify to the adoption of this Resolution. Chairman City Attorney I hereby certify that the foregoing Resolution was adopted by the Planning Commission of the City of Temple City at a regular meeting held on the 22nd day of April 2014, by the following vote: AYES: Commissioner- NOES: Commissioner- ABSENT: Commissioner- ABSTAIN: Commissioner- Secretary CLV1650 2. The property allows for use of a "stealth" tree design that avoids any potential adverse visual impacts to the public. 3. The property allows for the ancillary equipment to be completely screened from public. 4. The proposed location/design will allow for future "co-location" with other wireless facilities. EXISTING USE The subject property is currently used as a church. The placement & design of the facility will have no impact on the church or surrounding properties. PROJECT OVERVIEW AT&T proposes to construct a wireless telecommunications facility designed with antennas attached to a faux pine tree ("monopine"), and an ancillary equipment enclosure. Antenna Layout: The site will have 12 antennas divided into three (3) arrays of 4 antennas each at a centerline of 50'. The project also includes ancillary antenna equipment attached behind the antennas. The antennas and equipment will be painted and "fully integrated" into the pine tree structure so as not to appear as antennas or antenna equipment. Equipment Cabinets: The ancillary equipment cabinets will be located within a pre-fabricated equipment enclosure. The enclosure will be about 10' high and measure 11.5'W x 12'L, and be surrounded by a decorative 8' high wall. All equipment will be completely screened from public view. Construction: Construction timing for the antennas and cabling is generally 4 to 6 weeks duration. This time line is not 4 to 6 weeks of constant work. The maximwn time for construction for the City's purposes is 8 weeks or less. Construction will commence once building permits are received. OPERATIONAL OVERVIEW Once constructed and operational, the communications tacility will provide 24-hour service to its users seven days a week. Apart from initial construction activity, the facility will be serviced by a carrier technician on a periodic monthly or as needed basis. It is expected that routine maintenance of the facility will occur once a month. Beyond this intermittent service, most carriers require 24-hour access to the facility to ensure that 3 at&t 12/30/13 CLV1650-BETHLEHEM LUTHERAN CHURCH 5319 HALJF AX ROAD TEMPLE CITY, CA 91780 Purpose This letter provides an overview of the Federal Communications Commission 's {FCC) rules governing permissible exposure levels to radiofrequency (RF) emissions at FCC- licensed facilities and attests to AT & T Mobility's commitment to comply with those RF exposure rules at aU its sites. FCC's Exposure Rnles The FCC's RF exposure rules, which stem from requirements set forth in the National Environmental Policy Act of 1969 (NEPA), are published in the Title 47 of Code of Federal Regulations (47 CFR) §1.1310, "Radiofrequency radiation exposure limits." Radiofrequency exposure at levels below those maximum permissible exposure (MPE) levels defined in FCC rules are deemed to pose no hazard to human health. These rules limit exposure to emissions. Thus, a cell site may have high emissions, but comply with FCC rules by effectively limiting exposure. In its rules, the FCC defines two exposure environments and the :MPE limits within those environments that are established with a large margin of safety. • General Public/Uncontrolled-This environment applies to locations where the general public may be exposed, or where persons exposed as a consequence of their employment may not be fully aware of the potential for exposure or can nol exercise control over their exposure. The MPE limits for this environment are 5 times more restrictive than those for the Occupational/ Controlled) environment described next. • Occupational/Controlled-This environment applies to located where persons are exposed as a consequence of their employment provided they are fully aware of the potential for exposure and can exercise control over their exposure. The MPE limits for this environment also apply where an individual is transient, provided they are made aware of the potential for exposure. A TI Mobility · 12900 Park Plaza Drive, Cerritos, CA 90703 Rl 6. Existing zoning district: New wireless telecommun 7. Proposed use of site (project for which this form is being filed): __________ _ New wireless telecommunications facility ("Cell site") Project Description 58,210 sf +I- 8. LotSue: ----------------------·--------------58,210 sf. +1- 9. Square footage: ------------------------------ N/A 10. Number of floors of construction: f ff kin N/A 11. Amount o o -street par g provided: ___________________ _ yes 12. Attach plans: _____________________________ _ None, 60 day construction period 13 . Proposed scheduling: ----------------------- None 14. Associated project: __________________________ _ N/A 15. Anticipated incremental development: ___________________ _ 16. If residential, include the number of units, schedule of unit sizes, range of sale prices or rents, and type of household size expected: Unit# Size in square feet Range of prices Type of household size 0 0 0 ·- 0 I ~ .. -----··· ---- 0 ----·~'"'--------~-- 0 If more units, please attach additional paper work 17. If commercial, indicate the type, whether neighborhood, city or regional oriented, square footage of sa·les area, and loading facilities: Unit# Size in S9!!are feet Type of store Loadin~ facilities 0 u 0 1---·----· 0 I--· 0 0 If more umts, please attach add it zonal paper work Page 2 of5 CLV1650 2. The property allows for use of a "stealth" tree design that avoids any potential adverse visual impacts to the public. 3. The property allows for the ancillary equipment to be completely screened from public. 4. The proposed location/design will allow for future "co-location" with other wireless facilities. EXISTING USE The subject property is currently used as a church. The placement & design of the facility will have no impact on the church or surrounding properties. PROJECT OVERVIEW AT&T proposes to construct a wireless telecommunications facility designed with antennas attached to a faux pine tree ("monopine"), and an ancillary equipment enclosure. Antenna Layout: The site will have 12 antennas divided into three (3) arrays of 4 antennas each at a centerline of 50'. The project also includes ancillary antenna equipment attached behind the antennas. The antennas and equipment will be painted and "fully integrated" into the pine tree structure so as not to appear as antennas or antenna equipment. Equipment Cabinets: The ancillary equipment cabinets will be located within a pre-fabricated equipment enclosure. The enclosure will be about 10' high and measure 11.5'W x 12'L, and be surrounded by a decorative 8' high wall. All equipment will be completely screened from public view. Construction: Construction timing for the antennas and cabling is generally 4 to 6 weeks duration. This time line is not 4 to 6 weeks of constant work. The maximwn time for construction for the City's purposes is 8 weeks or less. Construction will commence once building permits are received. OPERATIONAL OVERVIEW Once constructed and operational, the communications tacility will provide 24-hour service to its users seven days a week. Apart from initial construction activity, the facility will be serviced by a carrier technician on a periodic monthly or as needed basis. It is expected that routine maintenance of the facility will occur once a month. Beyond this intermittent service, most carriers require 24-hour access to the facility to ensure that 3 at&t 12/30/13 CLV1650-BETHLEHEM LUTHERAN CHURCH 5319 HALJF AX ROAD TEMPLE CITY, CA 91780 Purpose This letter provides an overview of the Federal Communications Commission 's {FCC) rules governing permissible exposure levels to radiofrequency (RF) emissions at FCC- licensed facilities and attests to AT & T Mobility's commitment to comply with those RF exposure rules at aU its sites. FCC's Exposure Rnles The FCC's RF exposure rules, which stem from requirements set forth in the National Environmental Policy Act of 1969 (NEPA), are published in the Title 47 of Code of Federal Regulations (47 CFR) §1.1310, "Radiofrequency radiation exposure limits." Radiofrequency exposure at levels below those maximum permissible exposure (MPE) levels defined in FCC rules are deemed to pose no hazard to human health. These rules limit exposure to emissions. Thus, a cell site may have high emissions, but comply with FCC rules by effectively limiting exposure. In its rules, the FCC defines two exposure environments and the :MPE limits within those environments that are established with a large margin of safety. • General Public/Uncontrolled-This environment applies to locations where the general public may be exposed, or where persons exposed as a consequence of their employment may not be fully aware of the potential for exposure or can nol exercise control over their exposure. The MPE limits for this environment are 5 times more restrictive than those for the Occupational/ Controlled) environment described next. • Occupational/Controlled-This environment applies to located where persons are exposed as a consequence of their employment provided they are fully aware of the potential for exposure and can exercise control over their exposure. The MPE limits for this environment also apply where an individual is transient, provided they are made aware of the potential for exposure. A TI Mobility · 12900 Park Plaza Drive, Cerritos, CA 90703 Rl 6. Existing zoning district: New wireless telecommun 7. Proposed use of site (project for which this form is being filed): __________ _ New wireless telecommunications facility ("Cell site") Project Description 58,210 sf +I- 8. LotSue: ----------------------·--------------58,210 sf. +1- 9. Square footage: ------------------------------ N/A 10. Number of floors of construction: f ff kin N/A 11. Amount o o -street par g provided: ___________________ _ yes 12. Attach plans: _____________________________ _ None, 60 day construction period 13 . Proposed scheduling: ----------------------- None 14. Associated project: __________________________ _ N/A 15. Anticipated incremental development: ___________________ _ 16. If residential, include the number of units, schedule of unit sizes, range of sale prices or rents, and type of household size expected: Unit# Size in square feet Range of prices Type of household size 0 0 0 ·- 0 I ~ .. -----··· ---- 0 ----·~'"'--------~-- 0 If more units, please attach additional paper work 17. If commercial, indicate the type, whether neighborhood, city or regional oriented, square footage of sa·les area, and loading facilities: Unit# Size in S9!!are feet Type of store Loadin~ facilities 0 u 0 1---·----· 0 I--· 0 0 If more umts, please attach add it zonal paper work Page 2 of5 UMTS Coverage--Prior to NSB Site CLV1650 Pilot Coverage-RSCP {dBm) Baseline · Coverage • Indoor S1gMI ln·Trans1t S1gnal Outdoor S1g nal UMTS Coverage-with Site CLV1650 ONLY Pilot Coverage-RSCP (dBm) After STANDALONE Baseline -Coverage • Indoor S1gn"l ln·T rans1t S1gn"l Outdoor Signal UMTS Coverage--with CLV1650 and Neighboring Sites Pilot Coverage-RSCP {dBm} Baseline -Coverage .Indoor S tgn~l ln·Transtt Stgnal Outdoor Signal LTE Coverage ---Prior to NSB Site CLV1650 Pilot Coverage-RSRP (dBm) Baseline -Coverage .Indoor S1gn~l ln-T ransrt Srgn~l Outdoor Signal LTE Coverage-with Site CLV1650 ONLY Pilot Coverage-RSRP (dBm} STANDALONE Baseline -Cove rage .Indoor S1gnal In· T 1 ans1t S !Qnal Outdoor Signal City of Temple City NOTICE OF EXEMPTION 9 7 0 1 L A S T U N A S D R I V E , T E M P L E C I T Y , C A 9 1 780 T : 6 2 6 . 2 8 5 . 2 1 7 1 F : 6 2 6 . 2 8 5 . 8 1 9 2 W W W . T E M P L E C I T Y . U S To: X County Clerk, County of Los Angeles Office of Planning and Research 12400 East Imperial Highway, Room 1201 Norwalk, CA 90650 1400 Tenth Street, Room 121 Sacramento, California 95814 SUBJECT: FILING OF NOTICE OF EXEMPTION IN COMPLIANCE WITH Section 15062 of the Public Resources Code Project Location: 5319 Halifax Road, (8585-020-011), in the City of Temple City, County of Los Angeles Project: 130000174. A request for a Conditional Use Permit to construct a new wireless antenna facility on a 60-foot tall structure. A 138 square foot accessory structure would also be constructed to house the associated equipment; the overall height of the structure would be 10 foot 2 inches. Applicant: Jerry Ambrose, Eukon Group for AT&T Wireless, 3905 State St., #7-188, Santa Barbara, CA 93105 E X E M P T S T A T U S : Ministerial (Sec. 21080(b)(1); 15268) Declared Emergency (Sec. 21080(b)(3); 15269(a)) Emergency Project (Sec. 21080(b)(4); 15269(b)(c)) X Categorical Exemption. Section 15303: New Construction or Conversion of Small Structures, Class 3(e) and Section 15061(b)(3): No possibility that the activity may have a significant effect on the environment. Statutory Exemption. Reason(s) why Project is exempt: The project is a new wireless antenna facility comprised of a 138 square foot equipment shelter and a camouflaged 60-foot tall structure, both of which are considered small structures. The project also has no possibility of having a significant effect on the environment. Lead Agency/Contact Person: Adam L. Gulick, Associate Planner at (626) 285-2171 9701 Las Tunas Drive, Temple City, CA 91780 Monday – Friday: 7:30 a.m. to 6:00 p.m. Date: March 26, 2014 Signature: Adam L. Gulick, Associate Planner Date Received for filing and posting: 1. CALL TO ORDER - PLANNING COMMISSION TEMPLE CITY, CALIFORNIA REGULAR MEETING APRIL 22, 2014 ·7:30P.M. 2. ROLL CALL -Commissioners Curran, Horton, O'Leary, Vice-Chairman Le ung , Chairman Cordes Commissioner O'Leary made a motion to excuse Chairman Cordes for due cause second ed by Commissioner Horton and unanimously carried . AYES: NOES: ABSENT: ABSTA IN: Commissioner-Curran, Horton, O'Leary, Leung Commissioner-None Commissioner-Cordes Commissioner-None 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA 5. CONSENT CALENDAR The Planning Commission is requested to review and approve : 1) Minutes of the Planning Commission Regular Meeting of March 25, 2014 . Recommendation: Approve. Commissioner Horton moved to approve the Consent Calendar, seconded by Commissioner O'Leary and unanimously carried. AYES : NOES: ABSENT: ABSTAIN: Commiss ioner-Curran, Horton, O'Leary, Leung Commissioner-None Commiss ioner-Cordes Commissioner-None 6. UNFINISHED BUSINESS-None 7. NEW BUSINESS A. A REQUEST FOR A CONDITIONAL USE PERM IT TO DIVIDE A COMMERC IAL OFFICE BUILDING INTO TWO UNITS LOCATED AT 5828 TEMPLE CITY BOULEVARD. THE PROPERTY IS DESIGNATED COMMERCIAL BY THE CI TY'S GENERAL PLAN. FILE NUMBER: 130000145 APPLICANT: PETER C. CHI Planning Commission Minutes April 22, 2014 Page 2 of 7 Pages RECOMMENDATION: RECOMMEND THAT THE PLANNING COMMISSION CONTINUE THE PROJECT TO A DATE CERTAIN Management Analyst Sun briefed the Planning Commission regarding the request to continue the project. Acting-Chairman Leung opened the public hearing. Acting-Chairman Leung closed the public hearing. Commissioner Horton made a motion to continue to a date certain file 130000145 seconded by Commissioner O'Leary and unanimously carried. AYES: NOES: ABSENT: ABSTAIN: Commissioner-Curran, Horton, O'Leary, Leung Commissioner-None Commissioner-Cordes Commissioner-None B. A REQUEST FOR A CONDITIONAL USE PERMIT TO ESTABLISH A NEW RESTAURANT TO SERVE BEER AND WINE AND HAVE LIVE ENTERTAINMENT (CHUAN'S RESTARUANT), LOCATED AT 5807 ROSEMEAD BOULEVARD. THE PROPERTY IS DESIGNATED COMMERCIAL BY THE CITY'S GENERAL PLAN. FILE NUMBER: 140000045 APPLICANT: QU CHEN RECOMMENDATION: RECOMMEND THAT THE PLANNING COMMISSION APPROVE THE PROJECT Management Analyst Sun gave a PowerPoint presentation. Acting-Chairman Leung opened the public hearing. Jerry Jambazian, Temple City business owner, asked for clarification regarding the findings to approve a Conditional Use Permit (CUP). Management Analyst Sun clarified the findings of a CUP. Acting-Chairman Leung closed the public hearing. Commissioner Curran made a motion to approve file 140000045, and find that the project is categorically exempt seconded by Commissioner Horton and unanimously carried. Planning Commission Minutes April 22, 2014 Page 3 of 7 Pages AYES: NOES : ABSENT: ABSTAIN: Commissioner-Curran , Horton , O'Leary, Leung Commissioner-None Commissioner-Cordes Commissioner-None C. A REQUEST OF A CONDITIONAL USE PERMIT TO ESTABLISH AN UNMANNED WIRELESS ANTENNA FACILITY AT BETHLEHEM LUTHERAN CHURCH. THE APPLICANT IS PROPOSING A 60-FOOT TALL WIRELESS ANTENNA TOWER WITH A CAMOUFLAGE DESIGN CONSISTING OF 12 WIRELESS ANTENNAS AND A MICROWAVE DISH 30-INCHES IN DIAMETER. THE REQUEST ALSO INC LUDES A 138 SQUARE FOOT STRUCTURE FOR THE WIRELESS ANTENNA'S EQUIPMENT, WHICH WOULD HAVE AN OVERALL HEIGHT OF 10 FEET 2 INCHES. PER SECTION 9202 OF THE CITY'S ZONING CODE , NEW WIRELESS ANTENNA FACILITIES REQUIRE APPROVAL OF A CONDITIONAL USE PERMIT FROM THE PLANNING COMMISSION . FILE NUMBER: 130000174 APPLICANT: EUKON GROUP FOR AT&T WIRELESS RECOMMENDATION: RECOMMEND THAT THE PLANNING COMMISSION APPROVE THE PROJECT Associate Planner Gulick gave a PowerPoint presentation. City Attorney Murphy recommended that the Planning Commission enforce a limit of three minutes per public speaker. Acting-Chairman Leung opened the public hearing. Jerry Ambrose, applicant, has reviewed and will abide by all of the conditions of approval. The proposed design is in accordance to direction by staff. Dennis Biel, member of Bethlehem Lutheran Church, spoke in favor of the project as the appearance of the church would be improved as well as provide financial support for the congregation. Mark Medendorp , member of Bethlehem Lutheran Church, felt that Bethlehem Lutheran Church would benefit from the wireless antenna facility. Ruth Giese, resident, spoke in favor of the monopine design and improved cellular coverage. Stephanie Kostka , member of Bethlehem Lutheran Church, spoke in favor of the project regarding reliable cellular service. Planning Commission Minutes April 22, 2014 Page 4 of 7 Pages Michael Russell, member of Bethlehem Lutheran Church, felt that the wireless antenna facility would help the community and provide financial support for the church. He is in favor of the bell tower design. Marion Peterson, member of Bethlehem Lutheran Church, spoke in favor of the bell tower rendering. She is favor of cellular phones and wireless antenna facilities. Linda Candy, member of Bethlehem Lutheran Church, spoke in favor of the wireless antenna facility. She felt that an additional wireless antenna facility would benefit the community and may increase the property value of the church. Judy Saxberg, member of Bethlehem Lutheran Church, spoke in favor of the request. Catherine Johnson, member of Bethlehem Lutheran Church, spoke in favor of additional cellular coverage. She prefers the bell tower design. Joel Saxberg, Bethlehem Lutheran Church employee, spoke in favor of the proposed request. Burt Weiner, member of Bethlehem Lutheran Church, read a letter to the Planning Commission in support of the proposed request. He is favor of the bell tower wireless antenna. Frank Wang, resident, spoke in favor the proposed request in the bell tower design. Becky Pratt, resident, spoke in opposition of the request due to aesthetics. She submitted a petition that included 42 residents that were opposed to the request. Charles Ph an, resident, felt that the wireless antenna facility may decrease property value and does not conform to the aesthetic quality of the neighborhood. James Clery, resident, spoke in opposition to a wireless antenna facility in a residential neighborhood and expressed concern regarding adverse health effects. Mary Kokayko, resident, is not in favor of the proposed request, as rnany wireless antenna facilities are located on commercial property. Carlos lberri, resident, not in favor of the proposed the request due to aesthetics. Planning Commission Minutes April 22 , 2014 Page 5 of 7 Pages Eric Chow, resident , is not in favor of the project due to potential health effects , aesthetics, and property value . Robert May, representative of Bethlehem Lutheran Church, expressed his favor regarding the wireless antenna facility with the following points ; per studies shown no adverse health effects exist , a realtor is not required to disclose the location of a wireless antenna facility, and the Federal Communications Commission (FCC) has deemed that the proposed project is safe. Jonathan Kramer, representative of Bethlehem Lutheran Church , assisted in the FCC guide to local governments regarding radio frequency safety. The proposed wireless facility conforms to the standards mandated by FCC. Since the height of the antenna is taller than ten meters and the emitted frequencies travel upward the project is classified as categorically exempt. He provided a PowerPoint presentation to the Planning Commission and public to further clarify the function of radio frequency emissions. Acting-Chairman Leung closed the public hearing. Commissioner Horton wished to continue the request to be heard by a fully staffed Planning Commission . City Attorney Murphy suggested that the Planning Commission provide ideas regarding alternate designs should the request be continued. Interim City Manager Penman directed staff to exclude studies regarding health issues in the next Staff Report. Commissioner Horton made a motion to continue file 130000174, to a date uncerta in and to include alternative designs seconded by Commissioner O'Leary and carried by Roll Call Vote. AYES: NOES: ABSENT: ABSTAIN: Commissioner-Curran, Horton, O'Leary, Leung Commissioner-None Commissioner-Cordes Commissioner-None D. A CONDITIONAL USE PERMIT TO ALLOW: 1. SUBDIVISION OF AN EXISTING 4,571 SQUARE FOOT COMMERCIAL SPACE INTO TWO COMMERCIAL UNITS ; 2. THE ESTABLISHMENT OF A RESTAURANT IN ONE OF THE UNITS; 3. THE RESTAURANT TO SERVE ALCOHOLIC BEVERAGES. THE PROPOSED RESTAURANT IS CHIPOTLE WHICH WILL OCCUPY THE SOUTHERLY UNIT A FTER THE SUBDIVISION . THE PROPOSED FLOOR AREA FOR THE RESTAURANT IS 2 ,481 SQUARE FEET. THE PROPOSED HOURS OF OPERATION ARE FROM 11:00 A.M. TO 10:00 P.M., SEVEN DAYS A WEEK. THE SUBJECT SITE IS LOCATED Planning Commission Minutes April 22, 2014 Page 6 of 7 Pages IN THE CITY'S COMMERCIAL DISTRICT WHICH IS ZONED C-2 AND C-3, AND IS DESIGNATED COMMERCIAL BY THE CITY'S GENERAL PLAN. FILE NUMBER: 140000075 APPLICANT: FOCUS GROUP AGENT OF CALAL INVESTMENT RECOMMENDATION: RECOMMEND THAT THE PLANNING COMMISSION APPROVE THE PROJECT Associate Planner Gulick gave a PowerPoint presentation. Acting-Chairman Leung opened the public hearing. Paul Groh, representative of Chipotle Mexican Grill, has reviewed and will abide by the conditions of approval. Alcohol sales comprise to one percent of sales, all alcohol consumption will be restricted to the interior of the business. Jerry Jambazian, Temple City business owner, asked the applicant if protection will exist for outdoor patrons in the event of a vehicular accident. Paul Groh, representative of Chipotle Mexican Grill, indicated that the outdoor dining area exceeds the Americans with Disabilities Act (ADA) requirements for outdoor dining therefore, could serve as a buffer for vehicular accidents. Acting-Chairman Leung closed the public hearing. Commissioner Curran made a motion to approve file 140000075, and find that the project is categorically exempt seconded by Commissioner Horton and carried by Roll Call Vote. AYES: NOES: ABSENT: ABSTAIN: 9. COMMUNICATIONS Commissioner-Curran, Horton, O'Leary, Leung Commissioner-None Commissioner-Cordes Commissioner-None A. YOUTH COMMITTEE UPDATE BY SERENA LIN AND CYNTHIA YONG- None 10. MATTERS FROM CITY OFFICIALS-None Planning Commission Minutes April 22 , 2014 Page 7 of 7 Pages 11. UPDATE FROM INTERIM CITY MANAGER Interim City Manager Penman introduced himself to the Planning Commission. He announced that he will assist in the employment of the permanent City Manager. The candidate (once selected) is targeted to be employed in August. 12. COMMISSION ITEMS SEPARATE FROM THE REGULAR AGENDA-None 13. ADJOURNMENT NEXT MEETING OF: The Planning Commission Meeting was adjourned at 9:15 p.m . to the Planning Commission Meeting of May 13, 2014 at 7:30 p.m. in the City Council Chamber 5837 Kauffman Avenue . \ City of Temple City Planning Commission Staff Report March 8, 2016 Item: 7A FILE: 13-174 ADDRESS: 5319 Halifax Road, Temple City, California 91780 DESCRIPTION: A conditional use permit for a new wireless communications facility located at Bethlehem Lutheran Church. The request is to construct a 60-foot tall wireless antenna tower camouflaged as a pine tree. The request also includes a 315 square foot area used for equipment cabinets that will be screened by a new seven-foot tall block wall and existing landscaping. APPLICANT: Jerry Ambrose, Eukon Group PROJECT PLANNER: Adam Gulick, Associate Planner ENVIRONMENTAL REVIEW: This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15332 (In-Fill Development Project) and Section 15303 (New Construction or Conversion of Small Structures) of the California CEQA Guidelines. RECOMMENDATION: Adopt the attached Resolution finding that the project is exempt from CEQA and approving File 13-174 subject to the proposed recommended conditions of approval. SUMMARY: This application’s proposal for a new wireless communications facility requires a conditional use permit. In reviewing the application, staff has identified and analyzed the following issues:  Facility need  Site selection process  Aesthetics  Noise  Compliance with Federal Communications Commission (FCC) March 8, 2016 Planning Commission Meeting Staff Report – Item 7A File: 13-174 Page 2 EXISTING CONDITIONS: Cross Streets Freer Street General Plan Designation Institutional Zoning R-1, Single Family Residential Property Dimensions and Size Approximately 325 feet (Freer Street) by 194 (Halifax Road) (1.62 Acres) Current Use & Square Footage 7,255 square foot sanctuary; a 21,840 square foot two-story building containing offices, social hall and auditorium; a 7,656 square foot chapel and meeting room; and a 1,570 square foot single-family residence. Existing Entitlements Church was established in 1948. An entitlement was not required at the time. Existing Easements None Street Classification and Width Halifax Road, a 36-foot wide collector street Freer Street, a 40-foot wide collector street Surrounding Neighborhood North R-1, Single Family Residential South R-1, Single Family Residential East R-1, Single Family Residential West R-1, Single Family Residential PROPOSED PROJECT INFORMATION: 1. Project Description This project was continued by the Planning Commission at their meeting on April 22, 2014. At this meeting, the applicant proposed a wireless communication facility camouflaged as a modern bell tower that was located near the southeast corner of the property. Community members expressed concerns relating to the aesthetics and the proposed tower’s proximity to the street. The Planning Commission requested that the applicant consider alternative designs and other locations on the property (see Attachment 7 for Planning Commission Minutes). March 8, 2016 Planning Commission Meeting Staff Report – Item 7A File: 13-174 Page 3 The applicant is now requesting to construct a new 60-foot tall wireless communication facility camouflaged as a pine tree (monopine) located near the middle of the property. The monopine would consist of a total of 12 antennas that are split into three different sectors that face different directions. The applicant is also requesting to lease a 315 square foot area for associated equipment cabinets that would be screened by existing landscaping and a new seven-foot tall block wall. There would be a total of 10 equipment cabinets used for operating the wireless antennas. 2. Physical Aspects The proposed monopine would be located in the middle of the property surrounded by three existing church buildings. The monopine would be located in a courtyard area utilized by the church that consists of a seating area and an approximate 5,500 square foot lawn. The monopine would be approximately 155 feet from Freer Street and approximately 160 feet from Halifax Road. The nearest residence, 5327 Halifax Road, is approximately 70 feet away from the proposed location of the monopine. See Figure 1 below for aerial photograph of the site. The request also includes a 315 square foot equipment area located in the southern portion of the existing courtyard. This area will house equipment cabinets for the cellular antennas and would be screened by existing landscaping that is approximately six feet tall. The applicant is also proposing Proposed Monopine Location Proposed Equipment Cabinet Location March 8, 2016 Planning Commission Meeting Staff Report – Item 7A File: 13-174 Page 4 to construct a seven-foot tall block wall to enclose the equipment cabinets behind the existing landscaping. The monopine would have an overall height of 60 feet. The center of the eight foot tall cellular antennas would be mounted 50 feet from the ground with the top of the antennas being located at 54 feet. The applicant has also indicated that a 30-inch microwave dish will be mounted on the monopine at 37 feet from the ground. 3. Operations The operation of a wireless communications facility does not require employees on site. As with any wireless communication facility, the site requires routine maintenance to ensure that the equipment is operating correctly. In the event of equipment failure at the site, a technician would be deployed to make necessary emergency repairs. Due to the site only requiring routine maintenance, there will be no interference with the existing church operation on the site. ANALYSIS: A conditional use permit allows the City to analyze potential issues pertaining to the project and to minimize or eliminate the impacts through conditions of approval. The following is a detailed analysis on the critical issues pertaining to the proposed use: 1. Zoning Code: On January 20, 2015, the City Council adopted a moratorium on new wireless communication facilities. On January 5, 2016, the City Council adopted a new Ordinance developing comprehensive development standards for new wireless communication facilities and facilities in the public right- of-way. This project was submitted prior to the adoption of the Ordinance and therefore the Ordinance does not apply to this project. However, the applicant has agreed to comply with sections of the Ordinance, which require certain aesthetic improvements to aid in camouflaging the structure (see the Planning Division’s recommended condition of approval 4 found in Attachment 1, Exhibit A). 2. Facility Need: Jurisdictions can limit these types of facilities to locations that are necessary to provide or fill a significant gap in coverage or capacity shortfall in the applicant’s service area and that the proposed installation is the least intrusive means of doing so. It is common for wireless antenna facilities to be located at a church, school, or commercial properties, (since wireless antennas need to be mounted to taller buildings and can be incorporated into an architectural feature), or at a site that can accommodate a stealth design (i.e., tree, flag pole, light pole, etc.). The applicant has provided coverage maps (Attachment 3) showing the current gap in the carrier’s service for the area, the proposed service, and a combination of the two. March 8, 2016 Planning Commission Meeting Staff Report – Item 7A File: 13-174 Page 5 3. Site Selection: The nearest wireless communication facility to the project site is slightly over a mile away. The surrounding area primarily consists of single-family and multi-family residential properties. Alternative locations for the wireless communications facility in the immediate area would be one of the commercial properties on Baldwin Avenue or Lower Azusa Road, Live Oak Park, or a church. The applicant has provided a detailed alternative sites analysis, which illustrate locations in the area that were potential locations, but do not meet AT&T’s requirement to fill the significant gap in coverage (Attachment 3). 4. Aesthetics: The FCC has given municipalities the ability to regulate the aesthetics for new wireless communication facilities. When the applicant originally submitted their application in 2014, they proposed a monopine tree but staff had concerns with the camouflaged tree not blending in with the existing palm tree and other trees on the site. It is ideal when proposing a camouflaged tree that it match similar trees in the area to provide a realistic transition or assist with screening the new wireless communication facility. City staff requested that the applicant provide alternative designs for the Planning Commission, as they discussed alternative designs for previous applications. The applicant provided two additional wireless antenna facilities camouflaged as bell towers, one traditional and one modern design. City staff recommended that the modern bell tower best complemented the existing conditions on the site, but the community and Planning Commissioners stated that the location of the bell tower was too close to the street. The Planning Commission continued the item to a date uncertain and requested that the applicant explore alternative designs and locations on the property. The applicant has come back with a monopine in an alternative location; the original design included the monopine adjacent to the equipment area. Although the monopine is not the ideal camouflage design for the site, since there are not similar trees to help blend in and screen the monopine, staff believes that the new location in the courtyard is far enough from the street to help with the size of the monopine. Staff believes that the top of the monopine is not properly tapered to mimic a pine tree; therefore staff recommends that the overall height of the monopine be increased an additional five or 10 feet to help with tapering the top of the tree to give it a more natural look (Attachment 1, Exhibit A, Condition 1). Staff also recommends additional aesthetic items from the Ordinance (Attachment 1, Exhibit A, Condition 4). 5. Noise: In past requests, noise levels from the equipment cabinets have been a concern from the Planning Commission for nearby residential properties. Past applicants explained that the equipment cabinets emit similar decibel levels as an air conditioning unit for a 2,000 square foot residence. The proposed equipment cabinets will be located behind a new seven-foot tall block wall and existing landscaping that is approximately six-feet tall. The equipment cabinets would be located in an existing courtyard and over 120 feet from the nearest residence. Staff believes that the noise March 8, 2016 Planning Commission Meeting Staff Report – Item 7A File: 13-174 Page 6 impacts for the proposed wireless communications facility will be negligible with the new block wall and the equipment is not in proximity to a residential use. 6. Compliance with FCC Standards: Section 704 of the Telecommunication Act of 1996 (47 U.S.C. §332(c)) prohibits local governments from regulating proposed wireless communication facilities on the basis, either directly or indirectly, of the environmental effects of radio frequency emissions (RF) of such facilities, which otherwise comply with FCC standards. Since there were concerns from the public in the previous Planning Commission meeting, planning staff has included a condition (Attachment 1, Exhibit A, Condition 5) requiring that the applicant pay for post-installation testing to verify that the radio frequency emission levels are in compliance with the current FCC standards. Any violations relating to the Federal Communications Commission (FCC) regulations would be enforceable by that agency. FINDINGS: The findings required in Section 9-1F-11 of the Temple City Municipal Code for a conditional use permit are contained in the attached resolution (Attachment 1). ENVIRONMENTAL REVIEW: This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15332 (Class 32, In-fill Development Project) and Section 15303 (Class 3, New Construction or Conversion of Small Structures) of the California CEQA Guidelines. A Notice of Exemption has been prepared and is attached (Attachment 4). RECOMMENDATION: Adopt the attached Resolution finding that the project is exempt from CEQA and approving File 13-174 subject to the proposed recommended conditions of approval. ATTACHMENTS: 1. Planning Commission Resolution 2. Reduced Plans and Photosimulations 3. Project Description, Alternative Sites Analysis, and AT&T Mobility Radio Frequency Statement 4. Notice of Exemption 5. Aerial and Site Photographs 6. Land Use Map 7. Planning Commission Minutes, April 22, 2014 ATTACHMENT 1 RESOLUTION EXHIBIT A PLANNING D IVISION CONDITIONS OF APPROVAL 13-174 5319 Halifax Road Page 1 of 3 Project Specific Conditions 1. The project shall consist of the installation of a new wireless communication facility camouflaged as a pine tree (monopine) not to exceed 75 feet in height. The project also includes approximately 315 square foot area used to house associated equipment cabinets. 2. All improvements shall be in substantial compliance with the submitted plans, date stamped January 22, 2016, except as modified by these conditions of approval. The plans shall be corrected to demonstrate that the antennas will be centered on the monopine (west elevation) and the structure shall be built to comply with the revised plans. 3. Noise shall be in compliance with the City’s Noise Ordinance. The demolition and/or construction for the new wireless communication facility shall be limited to 7:00 a.m. through 7:00 p.m., Monday through Saturday. Routine maintenance for the wireless communication facility shall also be limited to Monday through Saturday, from 7:00 a.m. to 7:00 p.m. 4. The wireless communication facility shall comply with the following development standards: a. Monopine antennas shall be designed for a minimum of two carriers. b. Monopine antennas shall have a minimum of 3.1 branches per foot for full-density coverage, limiting spacing between the branches. Seventy percent of the branches shall be 8 feet or longer. c. Branch dispersal shall be random, with intermingled long and short branches, to appear natural. d. Branches shall extend beyond all antennas by at least 12 inches. e. Branches shall begin a minimum of 14 feet above the ground. f. The top of the faux trees shall be a minimum of 5 feet above the highest antenna. g. Branch foliage must be multicolored with greens and browns, matching those of a natural pine tree. The foliage must be extruded (made from plastic) in these colors instead of painted. A sample shall be submitted for City approval prior to fabrication. h. A bark cladding sample with custom color shall be submitted for City approval prior to fabrication. 13-174 5319 Halifax Road Page 2 of 3 i. Pine needle antenna socks that match the approved foliage colors shall cover all antennas. j. Antennas shall be mounted using stand-off mounts (frame-type mounts are unacceptable). Antenna support pipe mounts shall be painted a darker shade of green or black with a flat paint finish that reduces reflection and mountain visibility. k. Coaxial cables shall access the structure through the base. 5. Upon installation of the facility, the applicant shall demonstrate that the project will not result in levels of radio frequency emissions that exceed Federal Communications Commission (FCC) standards, including FCC Office of Engineering Technology (OET) Bulletin 65, Evaluating Compliance with FCC Guidelines for Human Explore to Radiofrequency Electromagnetic Fields, as amended. Additionally, if the Community Development Director (Director) determines the wireless telecommunications facility, as constructed, may emit radio frequency emissions that are likely to exceed FCC uncontrolled/general population standards in the FCC OET Bulletin 65, in areas accessible by the general population, the Director may require post- installation testing to determine whether to require further mitigation of radio frequency emissions. The cost of any such testing and mitigation shall be borne by the applicant. 6. Any collocation at this site shall be consistent with the Ordinance hereafter at the time of the submittal. General Conditions 7. The applicant and property owners, and their successors in interest, shall indemnify and defend the City of Temple City and its officers, employees, and agents from and against all liability and costs relating to the City’s actions concerning this project, including (without limitation) any award of litigation expenses in favor of any person or entity who seeks to challenge the validity of any of the City’s actions or decisions in connection with this project. The City shall have the sole right to choose its counsel and property owners shall reimburse the City’s expenses incurred in its defenses of any lawsuit challenging the City’s actions concerning this project. 8. Building permits shall be obtained for all construction activities of the project including tenant improvements. 13-174 5319 Halifax Road Page 3 of 3 9. Construction plans or tenant improvement plans shall include a sheet containing each page of these conditions of approval at the time of building plan check submittal. 10. Disposal of Construction Waste: No construction activity waste or material of any kind, including plaster, cement, paint, mud, or any other type of debris or liquid shall be allowed to be disposed of in the street or gutter, storm drain, or sewer system. All construction debris spills shall be removed daily and shall use necessary dust control measures. Failure to comply with this condition will result in charges filed by the District Attorney. 11. This approval shall automatically expire 24 months from the date of approval if said approval is not exercised within that time. If the project is not commenced prior to the expiration date, the applicant may apply in writing for an extension of time at least forty (40) days before the expiration date. The granting body may in its discretion approve or deny the extension request. 12. This conditional use permit shall automatically terminate and be of no further force or effect in the event the use approved herein is discontinued or abandoned for a period of six consecutive months. 13. This approval and these conditions may be modified or revoked by the granting body (the Planning Commission) should it be determined that the project approved herein is detrimental to the public health, safety, or welfare; is operated or maintained contrary to these conditions of approval or any federal, state, or local law; or is operated or maintained so as to constitute a public nuisance. Such modification or revocation shall occur at a noticed public hearing and in accordance with the provisions of Section 9-1F-40 of the Zoning Code. 14. By carrying out the project approved herein or otherwise using or exercising this approval, the applicant acknowledges and accepts all of the conditions imposed. The applicant acknowledges that failure to comply with these conditions of approval may be cause for revocation of the approval. These conditions are binding upon the applicant, the current and future property owners, and any other party using or exercising this approval. ATTACHMENT 2 REDUCED PLANS AND PH OTOSIMULATIONS ~~' GENERAL SIGNAGE REQUIREMENTS I Notes for Rooftop sites-: -~--J j _ at&t 11. Bher NOTICE or CAUTION signs need to be posted at each sector as close as possible to: the outer edge of the striped off area or the outer antennas of the sector. ~ I =)2. r Roofview shows:~nly blue= Notice Sign, blue and ~ellow =Caution Sign, only yellow =Caution Sign to be installed._] - INFOSIGN#1 INFOSIGN#2 INFOSIGN#3 INFOSIGN#4 Striping NOTICE SIGN CAUTION SIGN ~ structure Type 13. Should the required striping area interfere with any structures or equiprrent (AJC, vents, roof hatch, doors, other antennas, dishes, etc.), Towers please notify AT&T to rrodify the striping area, prbr to starting the work I I ~ -entrance gates, At the height of the ------12900 PARK PLAZA DRIVE shelter doors OR on clirrbing side of the On backside of On the side of first clirri>ing step, r---CERRITOS, CA 90703 Monopole/Monopine/Monopalm the outdoor Tower Antennas Antennas rrin. 9ft above I I -PLANS PREPARED BY: -cabinets ground Alerting Signs Info sign -Oi 1 Info Sign #2 ,Info sign #3 Info sign#4 T entrance gates, At the height of the r-lf lll!JUt.l!l3 1 l f •~AnoN 1 I I -_I_ +-SCETowers/ Towers with high voltage shelter doors OR on clirrDing side of the On backside of On the side of first clirrDing step, I ~~~~~~~ the outdoor Tower Antennas Antennas rrin. 9ft above 0---·~-~I ~at&t= • cabinets ground ~ :;:-·-·~--~---·-1-III!'IMIIIITlaiti r--- ---=.:=:"'.:-:=::::-.. ~ 1-=-== ---T - - entrance gates, on the pole, no less -::.::=·~~,_.. .. -g:: -A shelter doors OR on than 3ft below the On backside of On the side of r-y - - Light A:>les I Flag Poles Antenna and no =---,..,.~~-~ ...... .,. .. ~..... l'fllf=~~"" I I the outdoor Antennas Antennas I e-ATif,_(ljloo_ .. cabinets less than 9ft above INFORMACION -·-1'0 ........ A - - ground =-·--.. , ....... c on the pole, no less Beyond This Point you an: p--•••0..,,•.,.,•-,_.....,..,._ . ...,mo ... OAlll • --CLIENTS entrance gates, r GP max value of MPE. at antenna level entering an area where RF =.:-.:.":=..-=:= .... ~. ----K than 3ft below the Emissions mJ~ycxcec:d the 1:cc ~-·~·--· .. --:1 shelter doors OR on On backside of On the side of is: 0-99%: Notice sign; over 99%: -....,.._ .. _ ... ,,... .... _ Utilly Vlbod Alles (JPA) the outdoor Antenna and no Antennas Antennas Caution sign at no less than 3ft below General Popularior1 Exposure ~-G'il __ .,....____...,. .. _ F Limits -..-----~-------~Eukon@U' cabinets less than 9ft above antenna and 9ft above ground I! li•lllw oil~ wi~~ IIIII ~lie ll'*li11es fill' ...... _ .. ___ ----·-Q[]~ ground lllllltinellllitfe!lvil'OOIIIIffit ---·-··-~ II -E on the pole, no less Notice or Caution sign at no less than .... IIT~"<Y'O '"' "-. .... _____ ... _ T ~ entrance gates, . .. ..... It's all about Communication shelter doors OR on than 3ft below the On backside of On the side of 9ft above ground: only if the exposure --F -Mcrocells rmunted on non-JPA poles the outdoor Antenna and no Antennas Antennas exceeds 90% of the General A..lblic I R less than 9ft above exposure at 6ft above ground or at --0 65 POST, SUITE 1000, cabinets I IRVINE, CA 92618 ground outside surface of adjacent buildings M RoofTops ". ·' A NO. ;-DATE: DESCRIPTION:-BY:- --CAUTION ) CIIUFORNIAHEALTHMDUIFEJYCODEIEC.25148.& N 1 05/19/14 90% ZD'S TN At all access points to the roof X T I I On Antennas X X X A PROP 65 WARNING I I 2 06/05/14 SAQ COMEMNTS EC Concealed Antennas X X .. IT IS THE RESPONSIBILITY OF .. antennas m:::Junted facing outside the building X X THIS BUSINESS TO INFORM ITS A 3 12/09/14 SAO COMEMNTS FO antennas on support structure X X EMPLOYEES THAT THIS FACILITY MAY Roofview Graph: CONTAN DETECTABLE AMOUNTS ~ OF CHEMICALS KNOWN TO Radiation area is within 3ft from antenna adjacent to each Beyond This Pttint you are THE STATE OF CALIFORJ.IIA TO X antenna either Notice or Caution sign (based on entering a controlled area where CAUSE CANCER, BIRTH DEFECTS diagonal, yellow Roof view results) at antennas/barrier Rf emissions rmyexc«d the FCC OR OTHER REPRODUCTIVE HARM. Radiation area is beyond 3ft from antenna adjacent to each striping as to Occupational Exposure Li.mjts ,d"' I X antenna Roofview graph Obe~ .UJIOUlsiplmdRpidc&lab lll'l)d::ia_gin• RF •vu_. ·---===----~-adjacent to . ...,,.......,.,.,....,.,. ·-. - I Church Steeples Access to steeple antennas if On backside of On the side of Caution sign at the I antennas are Antennas Antennas antennas concealed --1 adjacent to Caution sign beside I Water Stations Access to ladder antennas if On backside of On the side of Info sign #1, rrin. 9ft I antennas are Antennas Antennas above ground I concealed -- ----SITE INFORMATION: CLV1650 GENERAL SIGNAGE GUIDELINES I SCALE: I 1 I NONE BETHLEHEM LUTHERAN CHURCH PROPOSED ANTENNA AND TRANSMISSION CABLE REQUIREMENTS REMOTE RADIO UNITS (RRU'S) 5319 HALIFAX RD. SECTOR PROPOSED ANTENNA ANTENNA TRANSMISSION LINES {LENGTH FT.+/-) RRU MIN. CLEARANCES TEMPLE CITY, CA 91780 RADCENTER SECTOR RRU UP or DOWN RRUCOUNT RRU LOCATION {DISTANCE FROM ANTENNA) TECHNOLOGY AIR or NON-AIR SIZE {4'; 6'; 8') AZIMUTH FEEDER/JUMPER LENGTH FEEDER/JUMPER TYPE DC CABLE ABOVE BELOW SIDES :< 1,1 LTE HEX g 110 ~17 8 LDF4 {1/2") +/-165' (AWG #8) ' A1 UP 1> 6 18" 8" r1' , -SEAL! 0: A2 LTE HEX g 110 SO' 0'' 8 LDF4 {1/2") +/-165' (AWG #8) 0: A2 UP 2 8 18" 8" r1' 0 LDF4 (1/2") +/-165' (AWG #8) g ~ A3 UMTS HEX g 110 50'·0" 8 A3 UP 2 8 18" 8" rr A4 LTE HEX g 110 50'-0" 8 LDF4 (1/2") +/-165' (AWG #8) ... A4 UP 2 8 18" 8" rf "' "' B1 LTE HEX 8 220 50'-0" 8 LDF4 (1/2") +/-165' (AWG #8) ?> 81 UP 2 8 18" 8' [J" 0: B2 LTE HEX 8 220 50'-0" 8 LDF4 (1/2") +/-165' (AWG #8) "' 82 UP 2 8 18" a· 0 f;> B3 UMTS HEX 8' 220 50'-0" 8 LDF4{1/2") +/-165' {AWG #8) 0 8' &l ... 83 UP 2 8 18" (j &l V1 B4 LTE HEX 8 220 50'-0'' 8 LDF4(1/2 ) +/-165' {AWG #8) V1 B4 UP 2 8 18" 8 ()" !,; C1 LTE HEX 8' 340 50'-0" 8 LDF4 (1/2") +/-165' (AWG #8) -C1 UP 2 8 18" a· o· "' C2 LTE HEX 8 340 50'-0" 8 LDF4(1/2") +/-165' (AWG #8) I;' 0 "' C2 UP 2 a 1a" a· (j ~ C3 UMTS HEX 8 340 50'-0" 8 LDF4{1/2") +/-165' {AWG #8) 0 a• ~ C3 UP 2 8 1a" 0' V1 C4 LTE HEX 8 340 50'-0" 8 LDF4{1/2") +/-165' {AWG #8) 1a" a• 0' "' C4 UP 2 a -SHEET TITl.E: SIGNAGE SURGE SUPRESSION SYSTEM REQUIREMENTS & NOTES TO CONTRACTOR· MANUFACTURER PART NUMBER QTY. LOCATION EQUIPMENT 1. CONTRACTOR IS TO REFER TO AT&T 'S MOST CURRENT RADIO RAYCAP OC6-48-60-18-8F 4 ~OUNTED TO PROPOSED ANTENNA FRAME SUPPORT SCHEDULES FREQUENCY DATA SHEET (RFDS) PRIOR TO CONSTRUCTION. RAYCAP DC12-48-60-RM I MOUNTED INSIDE PROPOSED EQUIP~ENT RACK 2. CABLE LENGTHS WERE DETERMINED BASED ON VISUAL INSPECTION ['~~R F -1 I DURING SITE-WALK. CONTRACTOR TO VERIFY ACTUAL LENGTH DURING PRE-CONSTRUCTION WALK. ANTENNA EQUIPMENT SCHEDULES I SCALE: 12 I NONE I ATTACHMENT 3 PROJECT DESCRIPTION, ALTERNATIVE SITES ANALYSIS, AND AT&T M OBILITY RADIO FREQUENCY STATEMENT 1 AT&T Project Number: CLV1650 Authorized Agent for AT&T Mobility AT&T Project Number:CLV1650 AT&T Project Name:Temple Beth David City of Temple City Amended Application for Conditional Use Permit # PL1300192 Project Information and Justification AT&T Mobility (AT&T) is requesting approval of above referenced Conditional Use Permit for the operation and construction of an unmanned wireless telecommunications facility and presents the following amended project information for your consideration. Project Specific Location Address: 5319 Halifax Road APN: 8585-020-011 Zoning: R1 Project Authorized Representative Jerry Ambrose, Eukon Group Address: 3905 State St., Ste 7-188, Santa Barbara, CA 93105 jambrose@wireless01.com / (805) 637-7407 AT&T Mobility Contact Andrew Hollihan 12900 Park Plaza Drive, Cerritos, CA 90703 (562) 293-7819 Project Description AT&T is proposing a 60-ft high antenna support structure disguised as a pine tree (“monopine”) with twelve (12), eight foot (8-ft) panel antennas, split into three (3) sectors of four (4) antennas each, ancillary antenna support equipment, and ground mounted equipment cabinets within an approximate 375 sf. walled lease enclosure. The antennas will be enclosed with “antenna socks” that match the design of the tree foliage. The “monopine” design was selected as the best solution for concealing antennas, mitigating potential adverse visual impacts, blending with the existing environment, and obscuring the symmetric nature of the antennas from public view. The proposed “monopine” will be set back approximately 155’ from Freer St. and 160’ from Halifax Rd. The ground mounted equipment will be placed behind a new 7’ high decorative CMU wall (and behind an existing 6’ – 7’ dense landscape hedge). No existing parking will be impacted or deleted. 2 AT&T Project Number: CLV1650 Project Objectives A detailed description of project objectives is enclosed in the RF Statement prepared by AT&T’s radio frequency engineer, Adil Qazi. Overall Benefits to the Community This is a critical time in the evolution of technology. People are less tethered to a home or desk phone and need access to the people and information anytime, anywhere. This requires adding new and improving existing wireless facilities to handle voice and data faster, and installing new fiber optic cables and associated equipment to route and direct traffic on our wireline network. Wireless data traffic on the AT&T network grew more than 100% from 2007 through 2014, largely due to the increasing popularity of advanced smartphones. What does this build mean for the Community: Since 2007, AT&T has invested more capital into the U.S. economy than any other public company. In a July 2012 report, the Progressive Policy Institute ranked AT&T No. 1 on its list of U.S. “Investment Heroes.” This build means our customers are expected to see better coverage, expanded broadband connections, fewer dropped calls, and faster speeds when streaming and downloading media. Investment in infrastructure enhances the community tax base. Approximately 47% of Americans have chosen to be wireless only and have given up their landlines. The new generation of homebuyers relies to an even greater degree on wireless. AT&T has designed solutions to help improve public safety operations by enabling voice, video and data communications throughout agencies. This should benefit customers not only in everyday communications, but also in emergency situations. Wireless Emergency Alert (WEA) systems notify the public (Emergency Text Messaging). Utilized during recent events in Boston, MA. Safety – RF is Radio The FCC regulates RFemissions toensurepublicsafety. Standards havebeenset based on peer-reviewed scientific studies and recommendations from a variety of oversight organizations, including the National CouncilonRadiationProtectionandMeasurements(NCRP),AmericanNationalStandardsInstitute(ANSI), Institute of Electrical and Electronics Engineers (IEEE), Environmental Protection Agency (EPA), Federal Drug Administration (FDA),Occupational Safety andHealth Administration (OSHA), and National Institute for Occupational Safety and Health (NIOSH). Although the purview of the public safety of RF emissions by the FCC was established by the Telecommunications Act of 1996, these standards remain under constant scrutiny. All AT&T cell sites operate well below these standards, and the typical urban cell site operates hundreds or even thousands of times below the FCC’s limits for safe exposure. 3 AT&T Project Number: CLV1650 Alternative Site Analysis Numerous site locations were considered in the due diligence process of finding the best location to close the Significant Gap in service. Refer to the attached “Alternative Sites Analysis” for details. AT&T Mobility Company Information AT&T is recognized as one of the leading worldwide providers of IP-based communications services to businesses. We have the nation's largest 4G network—covering more than 292 million people and serve 105.2 million wireless subscribers. AT&T will operate this facility in full compliance with the regulations and licensing requirements of the FCC, Federal Aviation Administration (FAA) and the CPUC, as governed by the Telecommunications Act of 1996, and other applicable laws. The enclosed application is presented for your consideration. AT&T requests approval of Conditional Use Permit to build the proposed facility. Please contact me at (805) 637-7407 with any questions or request for additional information. Respectfully submitted, Jerry Ambrose, Eukon Group Authorized Agent of AT&T Mobility Alternative Sites Analysis AT&T Mobility Wireless Telecommunications Facility at Bethlehem Lutheran Church 5319 Halifax Road Temple City, CA Site ID: CLV1650 Introduction New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T”) has a significant gap in its service coverage in Temple City. AT&T proposes to install a new 60-foot tall wireless communications facility (“WCF”) disguised as a eucalyptus tree on the grounds of the Bethlehem Lutheran Church, 5319 Halifax Road (“Proposed Facility”) as a means to fill this gap in coverage. This property is located in a residential zone in the city, roughly one-third of a mile to the southeast from Live Oak Park. The Proposed Facility consists of twelve panel antennas (three sets of four antennas) mounted on a pole and camouflaged as a eucalyptus tree (“monoeucalyptus”), with the related equipment to be housed entirely within a 7-foot high wall enclosure adjacent to the monoeucalyptus. The Proposed Facility is designed to minimize visual impacts, blend within the existing environment, and obscure the antennas. The antennas will be enclosed within antenna socks colored to match the tree foliage and faux branches and leaves will provide additional concealment. The Proposed Facility is the least intrusive means to fill the significant gap of the alternatives investigated by AT&T as explained below. Objective AT&T Mobility has identified a significant gap in its service coverage in Temple City, in an area roughly bordered by Bogue Street to the north, El Monte Avenue to the east, Hallwood Drive to the south, and Glickman Avenue to the west. The Proposed Facility will improve coverage to the surrounding residential neighborhoods with over 340 homes, places of worship, a residential health care facility, and various other points of interest in the immediate vicinity. The service coverage in this portion of Temple City is described in the accompanying Radio Frequency Statement. The most recent traffic data available from Google Earth Pro for this area indicate that the average traffic along Arden Drive near Freer Street was approximately 3,266 vehicles per day in 2010. Methodology and Zoning Criteria The location of a WCF to fill a significant gap in coverage is dependent upon topography, zoning, existing structures, collocation opportunities, available utilities, access and a willing landlord. Wireless communication is line-of-sight technology that requires WCFs to be in relatively close proximity to the wireless handsets to be served. AT&T seeks to fill a significant gap in service coverage using the least intrusive means under the values expressed in the Temple City Municipal Code (“Code”). Thus, AT&T is guided by Chapter 9.1 of the Code (Zoning Code), and in particular, Section 9-1F-10 regarding conditional use permits. Analysis AT&T investigated potential alternative sites for facilities to fill the identified coverage gap in this portion of Temple City. AT&T searched for, but did not find, feasible collocation opportunities in and around the coverage objective. Due to the relatively few non-residential properties in this area, AT&T also analyzed alternative sites in commercial areas in neighboring El Monte. The following map shows the locations of the Proposed Facility and the alternative sites that AT&T investigated. The alternatives are discussed in the analysis which follows. Location of Candidate Sites Proposed Facility – Bethlehem Lutheran Church, 5319 Halifax Road Conclusion: Based upon location, a willing landlord and the superior coverage as shown in the proposed coverage map included in AT&T’s Radio Frequency Statement, the Proposed Facility is the least intrusive means for AT&T to meet its service coverage objective. This church property is located at the intersection of Halifax Road and Freer Street, in an R-1 zoning district. AT&T proposes to install twelve panel antennas (three sectors of four antennas each) mounted on a pole and camouflaged as a eucalyptus tree, with the related equipment to be housed entirely within a 7-foot high wall enclosure adjacent to the monoeucalyptus. AT&T’s antennas will have a top height of 54 feet, and monoeucalyptus will have six additional feet of foliage at the top. The Proposed Facility is designed to minimize visual impacts, blend within the existing environment, and obscure the antennas. The antennas will be enclosed within antenna socks colored to match the tree foliage and faux branches and leaves will provide additional concealment. In addition, the Proposed Facility will be considerably shorter than the 71-foot tall existing live palm tree on this property. The Proposed Facility is the least intrusive means to fill the significant gap of the alternatives investigated by AT&T. Alternative Site 1 – Live Oak Park Conclusion: Not feasible This park is located approximately one third of a mile to the northwest of the Proposed Facility. Due to its location in the extreme northwest portion of AT&T’s significant service coverage gap, a WCF here would not meet AT&T’s service objective. Alternative Site 2 – Santa Anita Convalescent Hospital Conclusion: Not feasible This care facility is located across Graecwood Avenue from Live Oak Park. The property houses existing WCFs. However, due to the location in the extreme northwest portion of AT&T’s significant service coverage gap, a WCF here would not meet AT&T’s service objective. Alternative Site 3 – Jantek Electronics, 4820 Arden Drive, El Monte Conclusion: Unavailable This commercial property is located in neighboring El Monte, almost a half mile to the south of the Proposed Facility. This property is located in El Monte, CA adjacent to a residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts. Alternative Site 4 – Bank of America, 10426 Lower Azusa Road, El Monte Conclusion: Not feasible; not available This bank is located in neighboring El Monte, a half mile to the south of the Proposed Facility. The property owner was not interested in leasing space to AT&T for an WCF. In addition, due to its location well to the south of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Alternative Site 5 – Hy’s Liquor, 10336 Lower Azusa Road, El Monte Conclusion: Not feasible; not available This commercial use is located in neighboring El Monte, a half mile to the south of the Proposed Facility. Due to its location well to the south of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Further, this property is located in El Monte, CA adjacent to an R-3 residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts, including R-3 zones. Alternative Site 6 – Driftwood Dairy, 10724 Lower Azusa Road, El Monte Conclusion: Not feasible This commercial property is located in neighboring El Monte, approximately six-tenths of a mile to the southeast of the Proposed Facility. Due to its location well to the southeast of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Further, this property is located in El Monte, CA across the street from an R-1A residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts, including R-1A zones. Alternative Site 7 – Vons Trucking Center, 10150 Lower Azusa Road, El Monte Conclusion: Not feasible This trucking facility is located in neighboring El Monte, approximately six-tenths of a mile to the southwest of the Proposed Facility. In addition, this location is too close to an existing AT&T facility, which is inconsistent with the coverage objective. Alternative Site 8 – Triumphant Church, 5221 El Monte Avenue Conclusion: Not feasible This church is located about a third of a mile to the east of the Proposed Facility. Due to its location so far to the east, a WCF here would not close AT&T’s significant service coverage gap. In addition, the City Council previously denied T-Mobile’s application seeking to place a WCF here. Alternative Site 9 – Cleminson Elementary School Conclusion: This school is located over half a mile to the east of the Proposed Facility. Due to its location to the east of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Conclusion The Proposed Facility is the least intrusive means by which AT&T can close its significant service coverage gap in this portion of Temple City. AT&T Mobility Radio Frequency Statement 5319 Halifax Road, Temple City, CA STATEMENT OF ADIL QAZI I am the AT&T radio frequency engineer assigned to the proposed wireless communications facility at 5319 Halifax Road, Temple City, CA (the "Property"). Based on my personal knowledge of the Property an d w ith AT&T's wireless network, as well as my review of AT&T's records with res pect to the Property and its wire less communications fac ilities in the surroundi ng area, I have concluded that the work associated with this permit request is needed to close a s ignificant service coverage gap in an area roughly bordered by Live Oak Street Street to the north, McClintock Avenue to the east, Fairhall Street to the south, and Ryland Avenue and Zadell Avenue to the west. To remedy this service coverage gap, AT&T needs to construct a n ew wireless communications fac ility. The serv ice coverage gap is caused by inadequate infrastructure in the area. As explained further m Exhibit 1, AT&T's existing facilities cannot adequately serve its customers in the desired area of coverage, let alone address rapid ly increasing data usage. T he site wi ll not o nl y close the gap in coverage and help address rapidly in creas ing data usage driven by smart phone and tablet usage , but it will a lso include 4G LTE service coverage. This site is part of an effort to fully deploy 4G LTE techno logy in the area. AT&T uses industry standard propagation too ls to identify the areas in its network where signal strength is too weak to provide reliable in-bui lding service quality. This informat ion is developed from many sources including terrain and clutter databases , wh ich simulate the env iro nment, and propagation models that si mulate signal propagation in the presence of terrain and clutter variation. AT&T designs and builds its wireless network to ensure customers receive reliable in-building serv ice qual ity. In- buildi ng service is critical as customers increasingly use their mobile phones as their primary communication device (approximately 45% of American households are now wire less on ly) and rely o n their mobile phones to do more (E91 1, GPS, web access, text, etc.). Exhibit 2 is a map of the existing UMTS 3G service coverage (without the proposed installation at the Property) in the area at issu e. It includes serv ice coverage provided by existing AT&T s ites. The g reen shaded areas depict areas within a s ignal strength range that provide acceptable in-bu ilding serv ice coverage. In-building coverage means customers are able to place or receive a call on the ground floor of a building. The yellow shaded areas depict areas within a si&111a l stre ngth range that provide acceptable in-vehicle service coverage. In these areas, an AT&T customer should be able to successfully place or receive a call within a vehicle. The lavender shading depicts areas within a signal strength range in which a customer might have difficu lty recei vi ng a con sistently acceptable leve l of servi ce. The EXHIBIT 1 Prepared by AT&T Mobility AT&T’s digital wireless technology converts voice or data signals into a stream of digits to allow a single radio channel to carry multiple simultaneous signal transmissions. This technology allows AT&T to offer services such as secured transmissions and enhanced voice, high-speed data, texting, video conferencing, paging and imaging capabilities, as well as voicemail, visual voicemail, call forwarding and call waiting that are unavailable in analog-based systems. With consumers’ strong adoption of smartphones, customers now have access to wireless broadband applications, which consumers utilize at a growing number. Mobile data traffic in the United States grew by 75,000 percent over a six-year span, from 2001-2006. And in the eight years that followed, mobile data traffic on AT&T’s national wireless network increased 100,000 percent (from 2007-2014). The FCC noted that U.S. mobile data traffic grew almost 300% in 2011, and driven by 4G LTE smartphones and tablets, traffic is projected to grow an additional 16-fold by 2016. Mobile devices using AT&T’s technology transmit a radio signal to antennas mounted on a tower, pole, building, or other structure. The antenna feeds the signal to electronic devices housed in a small equipment cabinet, or base station. The base station is connected by microwave, fiber optic cable, or ordinary copper telephone wire to the Radio Network Controller, subsequently routing the calls and data throughout the world. The operation of AT&T’s wireless network depends upon a network of wireless communications facilities. The range between wireless facilities varies based on a number of factors. The range between AT&T mobile telephones and the antennas in and nearby Temple 2 City, for example, is particularly limited as a result of topographical challenges, blockage from buildings, trees, and other obstructions as well as the limited capacity of existing facilities. To provide effective, reliable, and uninterrupted service to AT&T customers in their cars, public transportation, home, and office, without interruption or lack of access, coverage must overlap in a grid pattern resembling a honeycomb. In the event that AT&T is unable to construct or upgrade a wireless communications facility within a specific geographic area, so that each site’s coverage reliably overlaps with at least one adjacent facility, AT&T will not be able to provide adequate personal wireless service to its customers within that area. Some consumers will experience an abrupt loss of service. Others will be unable to obtain reliable service, particularly if they are placing a call inside a building. Service problems occur for customers even in locations where the coverage maps on AT&T’s “Coverage Viewer” website appear to indicate that coverage is available. As the legend to the Coverage Viewer maps indicates, these maps depict a high-level approximation of coverage, which may not show gaps in coverage; actual coverage in an area may differ substantially from map graphics, and may be affected by such things as terrain, foliage, buildings and other construction, motion, customer equipment, and network traffic. The legend states that AT&T does not guarantee coverage and its coverage maps are not intended to show actual customer performance on the network, nor are they intended to show future network needs or build requirements inside or outside of AT&T’s existing coverage areas. It is also important to note that the signal losses and service problems described above can and do occur for customers even at times when certain other customers in the same vicinity 3 may be able to initiate and complete calls on AT&T’s network (or other networks) on their wireless phones. These problems also can and do occur even when certain customers’ wireless phones indicate “all bars” of signal strength on the handset. The bars of signal strength that individual customers can see on their wireless phones are an imprecise and slow-to-update estimate of service quality. In other words, a customer’s wireless phone can show “four bars” of signal strength, but that customer can still, at times, be unable to initiate voice calls, complete calls, or download data reliably and without service interruptions. To determine where new or upgraded telecommunications facilities need to be located for the provision of reliable service in any area, AT&T’s radio frequency engineers rely on far more complete tools and data sources than just signal strength from individual phones. AT&T creates maps incorporating signal strength that depict existing service coverage and service coverage gaps in a given area. To rectify this significant gap in its service coverage, AT&T needs to locate a wireless facility in the immediate vicinity of the Property. September 23, 2015 LTE Coverage – Neighboring Site with CLV1650 © 2014 AT&T Intellectual Property. All rights reserved. AT&T and the AT&T logo are trademarks of AT&T Intellectual Property. ATTACHMENT 4 NOTICE OF EXEMPTION City of Temple City NOTICE OF EXEMPTION 9 7 0 1 L A S T U N A S D R I V E , T E M P L E C I T Y , C A 9 1 780 T : 6 2 6 . 2 8 5 . 2 1 7 1 F: 6 2 6 . 2 8 5 . 8 1 9 2 W W W . T E M P L E C I T Y . U S To: X County Clerk, County of Los Angeles Office of Planning and Research 12400 East Imperial Highway, Room 1201 Norwalk, CA 90650 1400 Tenth Street, Room 121 Sacramento, California 95814 SUBJECT: FILING OF NOTICE OF EXEMPTION IN COMPLIANCE WITH Section 15062 of the Public Resources Code Project Location: 5319 Halifax Road, (8585-020-011), in the City of Temple City, County of Los Angeles Project: 13-174. A request for a conditional use permit to construct a new wireless communications facility and associated equipment cabinets at an existing church. Applicant: Jerry Ambrose, Eukon Group, 3905 State Street, Suite 7-188, Santa Barbara, California 93105 E X E M P T S T A T U S : Ministerial (Sec. 21080(b)(1); 15268) Declared Emergency (Sec. 21080(b)(3); 15269(a)) Emergency Project (Sec. 21080(b)(4); 15269(b)(c)) X Categorical Exemption. Section 15332, (Class 32, In-Fill Development) and Section 15303, (Class 3, New Construction or Conversion of Small Structures) Statutory Exemption. Section Reason(s) why Project is exempt: The project is exempt under a Class 32 Categorical Exemption of the CEQA Guidelines because it is a wireless communications facility (WCF) located in an urban area on a site that is less than five acres; the WCF has no value as habitat for endangered, rare or threatened species; the WCF would not result in any significant effects relating to traffic, noise, air quality, or water quality. The project is also exempt under a Class 3 Categorical Exemption, which allows for an extension of utilities and does not result in significant impacts to the environment. Lead Agency/Contact Person: Adam Gulick, Associate Planner at (626) 656-7316 9701 Las Tunas Drive, Temple City, CA 91780 Monday – Friday: 7:30 a.m. to 6:00 p.m. Date: Signature: Adam Gulick, Associate Planner Date Received for filing and posting: ATTACHMENT 5 AERIAL AND SITE PHOT OGRAPHS File No. 13-174, 5319 Halifax Road Equipment Area Monopine WEST OF SITE ON FREER STREET VIEW FROM FREER STREET Approximate Height of Monopine Equipment Cabinet Location (Behind Shrubs) EAST OF SITE ON FREER STREET VIEW FROM HALIFAX ROAD Monopine Location MONOPINE LOCATION FROM COURTYARD EQUIPMENT CABINET LOCATION FROM COURTYARD Monopine Location Equipment Cabinet Location ATTACHMENT 6 LAND USE MAP ATTACHMENT 7 PLANNING COMMISSION MINUTES APRIL 22, 2014 Planning Commission Minutes April 22, 2014 Page 3 of 7 Pages AYES: Commissioner-Curran, Horton, O’Leary, Leung NOES: Commissioner-None ABSENT: Commissioner-Cordes ABSTAIN: Commissioner-None C. A REQUEST OF A CONDITIONAL USE PERMIT TO ESTABLISH AN UNMANNED WIRELESS ANTENNA FACILITY AT BETHLEHEM LUTHERAN CHURCH. THE APPLICANT IS PROPOSING A 60-FOOT TALL WIRELESS ANTENNA TOWER WITH A CAMOUFLAGE DESIGN CONSISTING OF 12 WIRELESS ANTENNAS AND A MICROWAVE DISH 30-INCHES IN DIAMETER. THE REQUEST ALSO INCLUDES A 138 SQUARE FOOT STRUCTURE FOR THE WIRELESS ANTENNA’S EQUIPMENT, WHICH WOULD HAVE AN OVERALL HEIGHT OF 10 FEET 2 INCHES. PER SECTION 9202 OF THE CITY’S ZONING CODE, NEW WIRELESS ANTENNA FACILITIES REQUIRE APPROVAL OF A CONDITIONAL USE PERMIT FROM THE PLANNING COMMISSION. FILE NUMBER: 130000174 APPLICANT: EUKON GROUP FOR AT&T WIRELESS RECOMMENDATION: RECOMMEND THAT THE PLANNING COMMISSION APPROVE THE PROJECT Associate Planner Gulick gave a PowerPoint presentation. City Attorney Murphy recommended that the Planning Commission enforce a limit of three minutes per public speaker. Acting-Chairman Leung opened the public hearing. Jerry Ambrose, applicant, has reviewed and will abide by all of the conditions of approval. The proposed design is in accordance to direction by staff. Dennis Biel, member of Bethlehem Lutheran Church, spoke in favor of the project as the appearance of the church would be improved as well as provide financial support for the congregation. Mark Medendorp, member of Bethlehem Lutheran Church, felt that Bethlehem Lutheran Church would benefit from the wireless antenna facility. Ruth Giese, resident, spoke in favor of the monopine design and improved cellular coverage. Stephanie Kostka, member of Bethlehem Lutheran Church, spoke in favor of the project regarding reliable cellular service. Planning Commission Minutes April 22, 2014 Page 4 of 7 Pages Michael Russell, member of Bethlehem Lutheran Church, felt that the wireless antenna facility would help the community and provide financial support for the church. He is in favor of the bell tower design. Marion Peterson, member of Bethlehem Lutheran Church, spoke in favor of the bell tower rendering. She is favor of cellular phones and wireless antenna facilities. Linda Candy, member of Bethlehem Lutheran Church, spoke in favor of the wireless antenna facility. She felt that an additional wireless antenna facility would benefit the community and may increase the property value of the church. Judy Saxberg, member of Bethlehem Lutheran Church, spoke in favor of the request. Catherine Johnson, member of Bethlehem Lutheran Church, spoke in favor of additional cellular coverage. She prefers the bell tower design. Joel Saxberg, Bethlehem Lutheran Church employee, spoke in favor of the proposed request. Burt Weiner, member of Bethlehem Lutheran Church, read a letter to the Planning Commission in support of the proposed request. He is favor of the bell tower wireless antenna. Frank Wang, resident, spoke in favor the proposed request in the bell tower design. Becky Pratt, resident, spoke in opposition of the request due to aesthetics. She submitted a petition that included 42 residents that were opposed to the request. Charles Phan, resident, felt that the wireless antenna facility may decrease property value and does not conform to the aesthetic quality of the neighborhood. James Clery, resident, spoke in opposition to a wireless antenna facility in a residential neighborhood and expressed concern regarding adverse health effects. Mary Kokayko, resident, is not in favor of the proposed request, as many wireless antenna facilities are located on commercial property. Carlos Iberri, resident, not in favor of the proposed the request due to aesthetics. Planning Commission Minutes April 22, 2014 Page 5 of 7 Pages Eric Chow, resident, is not in favor of the project due to potential health effects, aesthetics, and property value. Robert May, representative of Bethlehem Lutheran Church, expressed his favor regarding the wireless antenna facility with the following points; per studies shown no adverse health effects exist, a realtor is not required to disclose the location of a wireless antenna facility, and the Federal Communications Commission (FCC) has deemed that the proposed project is safe. Jonathan Kramer, representative of Bethlehem Lutheran Church, assisted in the FCC guide to local governments regarding radio frequency safety. The proposed wireless facility conforms to the standards mandated by FCC. Since the height of the antenna is taller than ten meters and the emitted frequencies travel upward the project is classified as categorically exempt. He provided a Power Point presentation to the Planning Commission and public to further clarify the function of radio frequency emissions. Acting-Chairman Leung closed the public hearing. Commissioner Horton wished to continue the request to be heard by a fully staffed Planning Commission. City Attorney Murphy suggested that the Planning Commission provide ideas regarding alternate designs should the request be continued. Interim City Manager Penman directed staff to exclude studies regarding health issues in the next Staff Report. Commissioner Horton made a motion to continue file 130000174, to a date uncertain and to include alternative designs seconded by Commissioner O’Leary and carried by Roll Call Vote. AYES: Commissioner-Curran, Horton, O’Leary, Leung NOES: Commissioner-None ABSENT: Commissioner-Cordes ABSTAIN: Commissioner-None D. A CONDITIONAL USE PERMIT TO ALLOW: 1. SUBDIVISION OF AN EXISTING 4,571 SQUARE FOOT COMMERCIAL SPACE INTO TWO COMMERCIAL UNITS; 2. THE ESTABLISHMENT OF A RESTAURANT IN ONE OF THE UNITS; 3. THE RESTAURANT TO SERVE ALCOHOLIC BEVERAGES. THE PROPOSED RESTAURANT IS CHIPOTLE WHICH WILL OCCUPY THE SOUTHERLY UNIT AFTER THE SUBDIVISION. THE PROPOSED FLOOR AREA FOR THE RESTAURANT IS 2,481 SQUARE FEET. THE PROPOSED HOURS OF OPERATION ARE FROM 11:00 A.M. TO 10:00 P.M., SEVEN DAYS A WEEK. THE SUBJECT SITE IS LOCATED PLANNING COMMISSION TEMPLE CITY, CALIFORNIA REGULAR MEETING MARCH 8, 2016 – 7:30 P.M. 1. CALL TO ORDER – Chairman O’Leary 2. ROLL CALL – Commissioner Cordes, Leung, Marston, Haddad, O’Leary PRESENT: Commissioner – Cordes, Marston, Haddad, O’Leary ABSENT: Commissioner – Leung ALSO PRESENT: Community Development Director Forbes, Planning Manager Reimers, City Attorney Murphy, Associate Planner Gulick, and Planning Secretary Venters Commissioner Cordes made a motion to excuse Commissioner Leung for due cause, seconded by Vice-Chairman Haddad and unanimously carried by the following votes: AYES: Commissioner – Cordes, Marston, Haddad, O’Leary ABSTAIN: Commissioner – None NOES: Commissioner – None ABSENT: Commissioner – Leung 3. PLEDGE OF ALLEGIAN CE 4. PRESENTATIONS 5. PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA - None 6. CONSENT CALEND AR Recomm endation: Approve Item A per recommendations. A. APPROVAL OF MINUTES The Planning Commission is requested to review and approve: 1) Minutes of the Planning Commission Meeting of February 9, 2016. Commissioner Cordes made a motion to approve the consent calendar. Seconded by Commissioner Marston and was approved unanimously by the following votes: Planning Commission Minutes March 8, 2016 Page 2 of 5 AYES: Commissioner – Cordes, Marston, O’Leary ABSTAIN: Commissioner – Haddad NOES: Commissioner – None ABSENT: Commissioner – Leung 7. PUBLIC HEARING Planning Manager Reimers requested that the Planning Commission move Agenda item B to item A and to consider file 15-266 on April 12, 2016, as the applicant has made amendments to their proposal after the staff report was drafted. A. A request for a modification of a conditional use permit to allow exterior modifications for an approved food and drink establishment (Bistro Na’s) located at 9055 Las Tunas Drive, Unit 105 in the Camellia Square shopping center. The request includes exterior improvements around the front entrance facing Las Tunas Drive. The applicant is proposing to modify the storefront for an approved restaurant in the Camellia Square shopping center. The improvements include installing gray brick veneer around the entrance, installing a yellow/gold sign above the entrance, and installing a brown lattice panel with a circular pattern above the sign. The property is located in the C-2, General Commercial zone and is designated as Commercial by the City’s General Plan. Vice-Chairman Haddad made a motion to move agenda item B to item A and to continue file 15-266 to April 12, 2016. Seconded by Commissioner Cordes and carried by the following votes: AYES: Commissioner – Cordes, Marston, Haddad, O’Leary ABSTAIN: Commissioner – None NOES: Commissioner – None ABSENT: Commissioner – Leung B. A request for a conditional use permit that was continued from April 22, 2014, to construct a new wireless communications facility located at Bethlehem Lutheran Church. The applicant is proposing a 60-foot tall wireless antenna tower camouflaged design as a pine tree. The request also includes a 315 square foot equipment area that would be screened by a new seven-foot tall block wall and existing landscaping. The proposed monopine would be located in the courtyard area utilized by the church surrounded by three existing church buildings. The monopine would Planning Commission Minutes March 8, 2016 Page 3 of 5 consist of a total of 12 antennas that are split into three different sectors mounted 50 to 54 feet from the ground and a 30-inch microwave dish mounted at 37 feet from the ground. The property is located in the R-1 zone, and is designated as Institutional by the City’s General Plan. Associate Planner Gulick gave a brief summary of the staff report. Chairman O’Leary opened the public hearing. Jerry Ambrose, applicant, stated that he does not have additional comment to add to city staff report. He offered to answer questions of the Planning Commission. Commissioner Marston asked the applicant why the wireless communications facility site was being proposed at this site. Commissioner Cordes requested that the applicant clarify the need for a wireless communications facility at the proposed location and what would happen if such facility is not installed. Jerry Ambrose, applicant, stated that the closest wireless communications facility is approximately one mile away and clarified that due to a gap in coverage, AT&T will not have reliable cellular reception. Jonathan Kramer, volunteer legal counsel, offered to answer technical questions that the public or the Planning Commission may have regarding radio frequency emissions and cellular sites. Burt Weiner, President, Board of Directors, Bethlehem Lutheran Church, stated that the revenue from the proposed facility will allow Bethlehem Lutheran Church to expand the services that they provide to the community and help with existing church expenses. Linda Candy, resident, emphasized the need for cellular coverage in the general area and echoed the churches desire to serve the community. Wendell Beard, asked Planning Manager Reimers if there will be a negative impact on the surrounding area should the wireless communications facility be approved. Planning Manager Reimers stated that staff has reviewed and determined there will be a less than significant impact on impacts such as aesthetics and noise. He clarified that the Federal Communications Commission (FCC) has sole discretion in regulating the radio frequency emissions of wireless communications facilities. Planning Commission Minutes March 8, 2016 Page 4 of 5 James Cleary, resident, spoke against the request due to location and presumed negative health effects. Danny Sam, resident, expressed concern regarding property value. Mr. Shah, expressed concern in regards to radiation exposure. John Su, spoke against the request due to health concerns. Edith Nelson, resident, spoke in opposition of the location of the proposed wireless communications facility. Patrick Tseng, resident, spoke against the request. Jerry Ambrose, applicant, stated that the gap in coverage is coincidentally located in a residential zone and that relocating the cellular site to a commercial area would not sufficiently reduce the gap in coverage. Jonathan Kramer, volunteer legal counsel, stated that the FCC has set it’s 100 percent exposure limit to two percent of the level where physiological change could be measured by radio frequency emissions. Chairman O’Leary closed the public hearing. Vice-Chairman Haddad made a motion to approve File 13-174, adopt the resolution, and find that the project is categorically exempt. Seconded by Commissioner Cordes and carried by the following roll call vote: AYES: Commissioner – Cordes, Marston, Haddad, O’Leary ABSTAIN: Commissioner – None NOES: Commissioner – None ABSENT: Commissioner – Leung 8. UNFINISHED BUSINESS – None 9. NEW BUSINESS – None 10. COMMUNICATIONS – None 11. UPDATE FROM THE PLANNING MANAGER Planning Manager Reimers stated that he would like to schedule a mixed-use tour with the Planning Commission on a Tuesday, Friday, or Saturday. He also announced that the next Planning Commission meeting will take place on April 12, 2016. Planning Commission Minutes March 8, 2016 Page 5 of 5 12. COMMISSION ITEMS SEPARATE FROM THE COMMUNITY DEVELOPMENT DIRECTORS REGULAR AGENDA A. COMMISSIONER CORDES – Announced that he will not attend the Planning Commission meeting of April 12, he would like to attend the mixed-use tour, and asked if another Commissioner would like to serve as a liaison for the State Route 710 North Study Stakeholder Outreach Advisory Committee (SOAC). B. COMMISSIONER LEUNG – Absent C. COMMISSIONER MARSTON – Stated that she enjoyed the Camellia Festival. D. VICE-CHAIRMAN HADDAD – Stated that he volunteered at the Camellia Festival and updated the Planning Commission regarding what he had learned at the Planning Commissioners Academy. He asked staff to include in the General Plan a policy regarding emerging vehicular technologies such as self-driving vehicles or sharing applications and Uber. E. CHAIRMAN O’LEARY – None 13. ADDITIONAL PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA – None 14. ADJOURNMENT The Planning Commission Regular Meeting was adjourned at 8:35 p.m. ____________________________ Chairman ____________________________ Secretary ----------- . ~· ~:· ' .. Al~ -lk -\--oLJU" ~r~ ~ 0 1'e~i\ 1/J-Ul AA--J +h~t-b 2b t~t-ftA~S Ciode, R rJu u_.-c~_. roo r . ;o ,f-./ ~ 1 Basis for Appeal of a Planning Commission or Community Development Director Decision 1. The granting of the conditional use permit violates Ordinance No. 16-1012. On or about January 19, 2016, the City Council adopted Ordinance No. 16-1012 which sets forth requirements relating to the design of wireless communication facilities, including wireless cell towers. The ordinance specifies the design standards that the City “shall” apply to proposed wireless communication facilities, including those involving monopine antennas, which is what is at issue here. California Courts have explained that the term “shall” in the law means it is mandatory and that there is no discretion for deviations. (See In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (“Use of the mandatory language ‘shall’ indicates a legislative intent to impose a mandatory duty; no discretion is granted”)(emphasis added).) Ordinance No. 16-1012 indicates that where an applicant seeks to install a monopine antenna, “the maximum monopine height is 40 feet.” Here, AT&T’s proposed monopine is 60 feet tall. That is a clear and express violation of the ordinance. Because the ordinance uses the term “shall” as it applies to the design standards for wireless communications facilities, the Planning Commission had no authority to deviate from the requirements imposed by the ordinance. As such, the Planning Commission’s decision to approve the conditional use permit despite the fact the design at issue undeniably violates the City’s ordinance is an abuse of discretion and should be reversed. 2. The Applicant failed to demonstrate with substantial evidence that the proposed use is the least intrusive means for the applicant to provide wireless service. Ordinance 16-1012 provides that the applicant “shall” “submit a justification study indicating the rationale for selecting the proposed use, a detailed explanation of the coverage gap that the proposed use would serve, and how the proposed use is the least intrusive means for the applicant to provide wireless service. “ (emphasis added) The ordinance requires that the manner in which the applicant seeks to provide service is the least intrusive means, not less intrusive, but the least intrusive means, meaning there must be no other alternative means of providing the service that may be less intrusive. While the applicant claims that other sites are not feasible based on their various locations, the applicant has failed to demonstrate with substantial evidence showing whether there are other technologically feasible alternative methods of providing the service without the use of an overhead, obtrusive out of place 60 foot (the approximate height of Mount Rushmore) antennas (12 in number in three different sectors) along with an almost 3 feet microwave dish in a residential neighborhood, which undoubtedly is extremely intrusive for the residents who live in the immediate surrounding areas. 2 Because the applicant has failed to demonstrate a necessary element for the approval of the installation of a wireless communications facility, the Planning Commission’s approval should be reversed. 3. The applicant has failed to present substantial evidence showing a significant gap in coverage exists which warrants the installation of the intrusive 60 foot wireless pole with 12 antennas. While the applicant provided coverage maps which make it appear to indicate there is a significant gap in the area at issue, the applicant failed to present sufficient evidence substantiating it, particularly given conflicting evidence showing that AT&T, itself, has advertised that the area in question is fully covered by voice and 4G LTE data, as shown below and on its own website. Thus, either AT&T has misrepresented to its customers the extent of its coverage, or the data set forth in its submission to the Planning Commission has been manipulated to show a gap where none exists. Further, as shown below, the website DeadCellZones.com does not show any gaps in coverage or “dead zones” in the area in question. Additionally, the applicant has not shown there is a critical mass of complaints by its customers in the area indicating that there is a need for the installation of a 60 feet communications antenna at the location at issue. In fact, the applicant did not present any evidence at all of any specific complaints of its customers of “dead zones” in the area. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 3 / / / A. Voice Coverage - This coverage map shows there is full voice coverage in the area. B. Data Coverage – This coverage map shows there is full 4G LTE coverage in the area. 4 Source: https://www.att.com/maps/wireless-coverage.html C. DeadCellZones.com Because of the discrepancy that exists and the lack of evidence of any actual complaints from residents indicating a need for the installation of the 60 foot antenna at the location, the Planning Commission should have, at the very least, retained a qualified, independent consultant to evaluate the veracity of the data provided by the applicant in its submission before approving the conditional use permit. Because it failed to do so, its decision approving the permit is not based on substantial evidence and is an abuse of discretion that should be reversed. 4. The applicant failed to establish all of the elements necessary for approval of a conditional use permit under the City’s municipal code. Under Section 9-1-F-11 of the municipal code, an applicant for a conditional use permit “shall” (must/has the burden) establish all of the foregoing: (1) that the site for the proposed use is adequate in size, shape, topography and circumstances; (2) that the site has sufficient access to streets and highways, adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use; and (3) that the proposed use will not 5 have an adverse effect upon the use, enjoyment or valuation of adjacent or neighboring properties or upon the public welfare. (Ord. 92-724) At the various hearings relating to the applicant’s requested conditional use permit, numerous residents voiced their opposition to the requested permit on the grounds that the proposal would have an adverse effect upon their use, enjoyment, and valuation of their properties. Specifically, many residents voiced their concerns with the aesthetics of the proposed structure. The area is a residential neighborhood that has views of the San Gabriel Mountains. The installation of the 60 feet tower would be out of place and obstruct the views of various homes. Although the applicant proposes to disguise the tower as a fake pine tree, it would clearly be out of place as there are no other pine trees in the area in which this fake tree would be able to blend in. Therefore, this proposed 60 foot tower would be a clear eyesore in this purely residential area. This ground alone is a sufficient basis for the denial of the conditional use permit. (See Building Commissioner of Franklin v. Dispatch Communications of New England, Inc. (2000) 48 Mass.App.Ct. 709 (Appellate court affirmed a lower court that found that the wireless tower erected in a residential neighborhood was so incongruous and damaging to the neighborhood that it must be dismantled).) Additionally, the installation of the wireless antenna will have a significant impact on the fair market values of the properties neighboring the proposed site of the antenna. Peer reviewed, published studies have shown that the placement of cellular towers in residential areas have a negative impact on surrounding residential property values. These studies, include, but are not limited to a published study entitled, “The Impact of Cell Phone Towers on House Prices in Residential Neighborhoods” by Sandy Bond, PhD and Wang Ko-Kang in the Summer 2005 edition of “The Appraisal Journal”, page 256. This study shows that the construction of a cellular tower in a residential area results in an approximate 21% decrease in residential property values. A published study entitled, “The Impact of Wireless Towers on Residential Property Values” by Carol C. McDonough, PhD in the Summer 2003 edition of “Assessment Journal”, page 25, similarly shows that such towers lead to a reduction in the valuation of nearby residential properties. Realtors in other cities that have dealt with this specific issue attest to the fact that the construction of a cellular phone tower affects the surrounding residential property values. Additionally, real estate professionals in the San Gabriel Valley and in neighboring cities have attested to the fact that installing the type of monstrosity at issue in a purely residential neighborhood will have a devastating effect on property values. (See Exh. “A” through Exh. “C” to this Appeal Form.) Further, article published by the National Association of Realtors in July 25, 2014 (http://realtormag.realtor.org/daily-news/2014/07/25/cell-towers-antennas-problematic-for- buyers) states that "an overwhelming 94 percent of home buyers and renters surveyed by the National Institute for Science, Law & Public Policy (NISLAPP) say they are less interested and would pay less for a property located near a cell tower or antenna." "What's more, of the 1,000 survey respondents, 79 percent said that under no circumstances would they ever purchase or 6 rent a property within a few blocks of a cell tower or antennas." The foregoing statistics are a significant concern to the residents who live in the surrounding area of the proposed site. The applicant and Planning Commission did not address with particularity the foregoing issue despite it being a specific concern raised by the numerous residents that were in attendance at the various hearings. Unlike the supporters of the project, who do not actually reside in the surrounding area, but will benefit financially for the project, the actual residents and constituents of the City expressly voiced their concerns about the effect of their property values. Despite this, the applicant failed to present any evidence showing that the installation of the tower “will not have an adverse effect upon the use, enjoyment or valuation of adjacent or neighboring properties or upon the public welfare.” As such, the applicant failed to meet its burden in establishing all three of the necessary elements required to obtain a conditional use permit under the City’s municipal code. Accordingly, the Planning Commission’s decision should be reversed. For all of the forgoing reasons, the residents and homeowners of the City of Temple City respectfully request that the City Council reverse the Planning Commission’s approval of the conditional use permit. / EXHIBIT "B" ·~ 0 LST TC:rE~; j......£ .... ,.~,._ , . .;-·, •. ·~·.•;t •• J .gt.~Q~~OQ ".. \.[ ~ 20 1 3 2 PAcilic CoAS T Hi(iHWAY M/\libu, CA 90265 } 1 0-4 56-1 4 7 5 To the L.A. Board of Supe rvi sors Kenneth Hahn Ha ll of Administration 500 W est Temple Street Lo s Angeles, CA 900 I 2 August 3 1 , 2008 Regarding CUP n 200700020/Project No. R2006-03 164-(2)-CVS/T-Moblle Dear Supervisors: My nam e is Donna Bohana. I grew up in Baldwin Hills and currently have family in View Park where the proposed ce ll antenna faci lity will be placed. I hav e been in rea l esta t e for over 14 years with Coldwell Bank er and now own my own compa ny. 1 must express my pro fessio n al op in ion and a sin cere conce rn fo r th e comm uni ty in its entirety. Th e greatest co ncern to my clients, as wel l as ochers in th e neig hborhood is this placement of such a telecommunications facility will affect h ow some pote ntial future buyers of hom es in this n eighborhood would vi ew thi s as an obstacle and ultimately affect the sa la bi lity of these homes by diminish ing the buyer pool. It is therefore my opinion ba sed on my experience that th e presence of this facili ty in t his location will have a substantial n ega tive effe ct on the property valu es o f the sur roundin g properties. As a realtor, I mu st disclose to potential buyers where there are cell antennas nearby. I have found in my own experience that t here is a v ery rea l stig ma and ce llular facilities n ear hom es are perce ived as undesirable. This is an estab lish ed neighborhood with a tremendous se n se of com munity. I t is my h ope that you will recog nize t hat this poss i bl e addition will impa ct a res i de n t ial neighborhood in many way s. Sincerely, ~c/)L_c_(L_ DON'IA Boii/\NA -PREsidcNr/REAlTOR March 26. 2008 Hall of Records Los An geles County Regio n al Plann ing Boord (1 3 th Floor) 320 Wes t Temple Street Los Angeles. CA 900 12 Rc: Conditional Use Permi t -T-Mobile /CVS Case 1i 200700020/Projec l No . R200 6-03 164-(2) To Whom It May Concern: 1om writing to oppose the cons tr uc tion of the T-Mobile facili ty with nine cell phone ante nnas on the rooft op of C VS Pharm acy ot Slauson a n d Overhill. I om very familiar with th e homes and Rea l Es tat e market in I his area and more specifically th e orca of Windsor Hills and View Pork as both a resid ent and o re altor. own o Real Es ta te office on the corner of Slauson and Overhill and hove sold many propertie s in Windsor Hills. View Park. surrounding orcas and throughout all of Los Angeles over t he past 40 years. I om also very familiar with th e irn poc t th a t nearby telecommunicati ons an te nna or facility may hove on o home's marketability. Based on my experience. I believe .th e installation of the proposed facility at CVS wi ll hove on immediate and adverse impact on the su~rounding neighborhood. Thos e who wou ld otherwise purchase o home. now considered desirable. con be deterred by o fac ility like th e one proposed and this significantly reduces soles prices and does so im medi~tcly. The perceived h ealth and sotety ris ks of living n ear cellular faci liti es are of concern to many p eople. As o resul t. I believe o facility suc h as the one proposed will diminish th e buyer pool. signif icorilly reduce home soles prices. alter th e character or th e surrounding area and impair the use of the residential p roperties for their primary uses . 1 e ncourage th e County to w o rk' with T Mobile on finding an o llernoliv e sit e ond to keep sit es away fr om res idential a reas. Thank you for your li me and considerat ion. Sincerely. y~~~ ( fo~ Be v erly Clar&'-7 . " The definitive work on this subject was done by Dr. Sandy Bond, who concluded that "media attention to the potential health hazards of [cellular phone towers and antennas] has spread concerns among the public, resu lting in increas ed resistance" to sites near those towers. " Percentage decreases mentioned in the study range from 2 to 20% with the percentage moving toward the higher range the closer the property. In today's market, can we afford th i s? " Recent CNN/Larry King Live poll shows 72% now believe cell technology is dangerous. Increased awareness of health risks posed by living near cell antennas lowers property values even more. Cont. There may be a legal obligation the County is forcing onto the Windsor Hills and View Park Residents-to disclose even the potential existence of this facility when selling a home which will erode property value-as long as the matter remains unsettled. • 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. This includes "nuisances" and zoning changes that allow for commercial uses. • We have submitted letters from realtors ALL SAYING THIS WILL AFFECT HOME VALUES UNITED HOMEOWNERS ASSOCIATION P.O. BOX 433p8 LOS ANGE LES, CA 90043 March 17 , 2008 L os Angeles County Dept. ofRc&,rionnl Planning 320 Wt:st Temple Street Los Angeles, CA 9 001 2 R e: Conditi o nal lJse Permit -Case# 2 00700020/Projcct NO. R2006-03164-(2) 450 1 West Slauson Avenue Dear Regional Planning l3 oard find Zoning Admini s tratnr, T he United Homeowners A ssociation (VIlA) represents approxim a tely 5000 households in the Windsor H ills, View Park and Vie w Heights commtmiticsas well as those portions of the unineoiporuted Los A ngeles County area abutting the C ity ofJnglewood to the n o rth and east. Since the early 1970s, UHA h as workecl to majntnin pwperty values, increase the qual ity of life <md preserve these and surrounding communities. 1\.s part of our conservation and · preservation efforts, we have worked c losely with City ru1d County officials and neighboring c ities to add ress issues of aesth e ti cs, as well ns visual and CCO!lOilliC bli g ht. We res pectfully re qu est th a t you DENY the Conditi o nal Usc Permit 200700020/Proj c ct NO. R 2 006-03 I 64-(2) to preserve and protect the property values, safety and p<.;ace of mind for homeown ers in the area. 1\ cell facility of thi s magnitude (9 an te ru1as ) upproxinw tely 50 feet away fro m a borne and across the s treet from a Nursery Sch ool will b e prc(;cdcnt-sctting and open the doo r for other cell carriers to have s imilar faciliti es easil y approved thro ughout our community. Further, thi s facility will lower property va lues o f the s ing le family h omes in thi s residenti a l community. Residents would seck lower tax a c;s cssmcnts as a result of U1 is install ation. There arc various nppmiser journals and ind u stry publications that confinn that cell p hone antennas reduce property values and adversely affect h o use sales.' Many nearby residents are prepared to sell in a n a lready d e pressed market or, in th e case of one ne w reside nt with l ittle to no cqui ty. s im ply walk away if these a nre nnas a rc install ed. 1 See. r:.g, Snody Bond, PhD and Ko-Kan g Wang., "'l11 c lmpact of Cell Ph one Towers on House Pri ces in Residen tial Neighborhoods ;• The Appraisal Journal (Summ er 2005): 256-277 (both a s urvey examin in g residents' perce ption of living ncn r cellu lar phon e base st ations (CPO S) and a market sales study analyzing act ual pro perty sn lcs data found that CPBS have a ne gativ e impac t on the prices of ho uses in th e ~tu dy nrens). See o lso Sa nd y Bond, PhD , "'l11c Effec t of Dis tanc e to Cell Phone Towers on Hou se Prices in Florida,'' Tire Appmi.wl Journal (Foil 2007): 362-3 70. 2 Local governme nt control o f land u s~, i.e . :wning, in the United States dates back to 19 1 G. A 1926 S upreme Court decision, Euclid v. AmiJ/a Realty Co., reinforces the principle that the s in g le-family residential use i s at th e top of the hierarchy of land uses t o he protected by zonin g regulatio ns. Zonin g regulations a re writt e n to im ple m ent municipal phmning priorities whose purpose is to miti gate neg ative externalities thut one real estate owne r's use could impose o n other mcmbcrs of the community.2 T he local gove rnment offic ial s of Los A ngeles County mus t no t leave it up to ce llular site d e ve lo pers or personal wire le ss se rvices providers to interpret the re quirements of th e T e lecommunications A c t (TCA) of 1996. ·n1ere is an ample record from Cali fornia State and federal appeals co urts and fro m professional rea] estate appraisers and a gents to jus tify denying permits for in a ppropriate ante nna s ite proposals. Denying a s peci fic pennit does not equal dcnyi.ng wirele ss service. Loca l zoning autho rity has not been removed by the language of tl1e TCA of 1996. See MctroPCS v. C ity and County of San Francisco, 4 00 r .3d 71 5 (9111 Cir. 2005); sec also Sa n Diego Gas & Electric Co. v. Daley, 205 D I.App.3d 1334; }349 (1988) ("The trinl court h ~re was correct in its analys is and dete rmination that the tru th or lack oftrufb in whether dcctromagnetic projections caused a he alth hazard ... -was irnn1atc r ial. Rather the questi on w as whether the fear oflhe danger cx ist.c d and would ·affec t market value"). UHA STRO NG LY OPPOSES the approval fo r ·thc c o nd itional use pcm1 it being re quested ' at 450 I West Slm1son t\ venue nne! urges Lo s A nge les County Regional PlmUl in g and Zonin g Official s to overturn th e decisio n of the hearing officer to approve the application filed under Case IJ 20070002 0/Proj ec t NO. R2006-03164-(2). By denying the in sta llation nt Slauson nnd O verhill, the County of Los Angeles wjJI be protecililg our'eommunity from future econom ic bli ght and bli~tcd hOIT\C sales as a result o f inappropriate p lacement and, at the sam e tim e, e nsure the health, s afe ty aud well being of the community ns we seck to examine the potential impacts o f this new and rnpid ly g (owing technolog y. Thank you for s upport in this very important matter. BT\t T~ard s ,1 ~ ·~~-, ( A j ~ ... : Y v\..;~·\ \r ~1-hv-. Theodore lrvin Y \" ~ PRE SrDENT "-- 2 Carol C. McDonou gh, "11lc Price of Zoning Rcvi s il cd: Zoning Issues Raised by th e T clccornmunicntions Act of 1996," J/1111o is Real f:f tat e l .elfcr , \Villlcr 1999, p.l , OOi cc of Real Es t:t le Rc s c:~rch, Unive rs ity of Illino is at Urbana-Champai gn. Participating in Neighborhood Excellence To: Los Angeles County Department of Regional Plnnnin g Rc: Conditional Usc Pe rmit -Cnse II 200700020/Project No. R2006-03 t64-(2) To Whom Tt May Concern: Wlnd5or Hills Block Club W indsor Hills. C/\ 90043 Man.:h 20, 2008 Windsor Hills Block Club (WH13C) re presents over 200 hom es in tltc mea of Windsor Hills nnd was c reated fo r th e purposes of reinstating our neighborhood wat ch and to build a strong comnnmity alli ance that will e mpower n s to effectively address and resolve issues that impact our community. We held a community m eeting (with approx.imately 80 in attendance) on March 15th :W08 ·to cartfulty consider the pros and cons ofthe proposed T-Mobile cellular facili ty at CVS on Ot e corner ofSl;mson ;m el Ovcrhill and to ta ke a vote on whcOtcr to s upport or oppose this project. In a un animous cieclsion WHBC vo ted to OPl•OSF. th e 1 '-Mobilc fa c ility. On behalf o fWHBC I arn writing today to r espectfully request you overturn the d ecision of the 11eari ng officer, Janu :uy 8 th , 2008, r egarding the condilionalttsc penni! to authorize cortstmction, operation nnd maintenance of an unmanned wireless telecommunications facility consisting of9 antennas and G BTS equipm e nt cabinets on the roof of an exis tin g C VS Phannacy at 4501 West Slauson Avenue. Many in ou r community hnve expressed co nccms over th e negative impac t that would be caused by s uch a n i.nsta ll ation of thi s ccltul nr facility on th e roof o f CVS :u1d residents arc growing incre as ingly voca l in the ir obj ec ti ons. T he psychological impact cau adversely a ffect the marke tability of nearby busim:ss in the same way that· union picke tin g reduces the va lu e of U1 c s to c k in large con,1panies invo lve d in host il e labor negotiations, And thi s is what we arc facin g with growing numb ers wishill g to b oycott th e C VS pharmacy and owner of the property, Alexander U a agen. Residents arc most conccmcd that th is cellular facility will lowt.:r th e propc r1 y values of our homes. Jn som e ins tances, it will a lso impact the views our ne ighbo rs curren tl y enjoy from the ir resid ences. Based o n their professional expe ri e nc e, Rea l Estate brokers a nd age nt s recogn ize that the presence of a nearby cell tower brings on a d e fUlite and ullim:~t c decline in the potential buyers poo l for homes in the vi c inity. They point o ut that allowing t.:onstruc ti o n of u ce ll fa c ility which is a commercial/industria l use in or ncar a designated reside ntial zone a lt e rs the character :u1d aesthet ic s o f th e surrou ndine area. They have stated that this s hrink-i ng o f the buyer pool can translate to a loss of30 to 50% in the value o f a home. Som e ho mes in thi s situation arc impossibl e for a gents to se ll. The propose d facility tloes no t c on(o nn to th e area 's hi s toric and cultural clement. Windsor Hills was o ri ginally designed as a "fashi o nable" r esidential district with s pecific int en t of banning businesses that ge nerated a "noxious" influence upon ilie surrounding residential area. Sec attached document regarding deed ed prohibitions extended to 57 bus ines s classifications (and ove r 80 sub-classi ficati ons) in total. Add ing rooftop antennas visible from the s tr eet will have a negative impact on the marketabili ty of th e property and s urrounding properti es who arc always concerned w it h tl1 c image the Pa rticipating in Neighborhood Excellence Windso r Hills Block Club Wintk:or Hills, CA !l0043 properly conveys to p assersby. It would forever alter the character of our nei g hborhood and simply doesn't fit tlirectly across th e street from a Nursery School, Health food Store, above a drug store and immediately adjacent single f.'lmily homes. I n nd cl itio n , there arc mn n y safety issues thn t h ave n ot been th orou g hl y examined nnd seriou s pote ntial h ealt h and envi romne nt al imp acts ofrooflop ante nn as a t cl ose range which req u ire fe nces, signage and other m echanisms to prev en t one from injury. For these reason s Courts hav e a lso recognized that communit ies can d e ny antennas where "it is n o t unreasonably di scrimin atory to deny a subsequ ent application for a cell si te that is substantjaJly more intmsivc than ex is ting cell sites by v irtue o f i ts stn1ct ure, placement or cumulathlc impact." The "least intru s ivc manner'' takes iuto consideration the ad verso impacts oftlm d evelopment on the character ofU1c neighborhood in which the site is found, an d th e potenti al for prop erty devaluatio n o f th e adjo ining la ndow ners . We do not want cellular antennas p laced close to homes or schools and believe th is i1: not about providing us a service but more for the market share of one company. Many of us arc. already satisfied with the existin g cellular cov.cragc in tbe area and/or have land lines. Those who want improved cellular coverage are not willing to obta.in It at the cost of our propetty values or o th e r associated risks. P lease h e lp us to p reserve and protect o u r property va lues, safety uml peace of min rl and the c~mti n ue d support of n earby b n s it \csses by de ny ing a Con ditional Use Penni!-Case 1/200700020/Projcct No. R2006-03164-(2) 4501 West S lauson Avenue. On behalf of Ute. resident s of Windsor Hills, we thank yo u for your consideration and h opefully cooperation. Toni Me Donald-Tabor csident Windsor Hills Block C l ub The Temple City Neighbors wou ld lil<e to app eal the Planning Commission decision made on March 8, 2016 to the City Council for project 13-174, 5319 Halifax Road , Temple City, California 91780 (APN : 8588-020-011); Bethlehem Luth e ran Church . -· 1 C/;z crheft1 l"Je qe-*'-. S:SdY; .IJrd.e11 OY' 7&J J7 t: 04/j 1 J7<(. 2 -:Jf:~"lY B.u.l+h_vt A's LLJ 1 2 3 L1 ~5\?~ ~wrle "'-''fre'\ //?, 3 V\VlO.f\ He&((t ~ .YS~c1 _R ___ JA ~-'.c . 9 J7ffi 4 n Q rz.. I s \) J I l A-I I> 13 a ~ ) 0 'L ~ {, £a F E a s r +· (I c, ll y 0 5 T I rV} chen ~YIJP) 0 slj 0 I/{# 5 -fy e ei ) UY>1fle c;--ly I cA 9 / ~ Pr)' l < . 6 S--e/111 Clt.t ~ ezuv-e ~' ~~lie Ct~ 1 c?(ap• 1'Yhlw1 ~ t tM~fi.'l ~ A -:f:rmf £. c.fj • C:Z "' · 8 C-1'.\~\ \V\A ~~ \O.f3 Z. 0\...\"J ~ ~ ~~ CA.~~, 9 ~'b·HII C:{,d>,"f lo>.'f:l. Oljve. Sf_,f~le. c.~ , 'i';Zil'b 10 ulenn J'e Kuo f>uwm Ku:nl IDI/ R Dair;e_?:_ {)y I Temple Citt;j u ijeM.M 5337 P!tL M lt·L I!Y<L-. l~piQ_Cfty . \ 12 Jb h n Sk, 23:.J-7 Ho. f i :&x. 1<-d leW\ pi~ Crty 13 5'1/vrJ ztfttr!, y /h t/lf 4!}." L S../. ~ (!,•/ 14 L&ut!~, t&r:-r-ri toZ>8 t>L{ v'e {jj-:re..rU-Cl§ 7'!780 1s ~~6dl ~ :Sunj , fo3t''d Q t.\(f__ t TeM-'tf i -LC~t:-.-¥ g I Tfl D 16 1 7 18 19 20 21 22 23 24 25 ,-, (J) Page I LexisNexis(f) BlJ I LDI NG C OI\11\II SS IO NE R OF FRA i\ h: L1 N ,·s. UI S P ATCII COI\11\IliN ICAl 'IONS OF NEW EN G LA ND, I 'IC'. (and thrrt• com p a ni o nl·asr s). I I Di s patch Communi cati ons of New En g land. Inc. v ~. Bui ld in g Comm iss io ner o f Franklin and Zon ing Board o f Appeal s or Frank lin : Di s palch Co mmuni catio ns o f 1cw Engla nd . Inc. vs. Zon in g 13onrd o f Ap pcab or !"rank lin : and Comm o nw ca llh vs. Brian McAu ley. (McAu ley is th e prc side rlt ol' Di s patc h Co mmunicati o ns o r cw En g land. In c .). Nos. 98-P-030 9, 98-1'-03 1 0, 9H-P-03 75 APP EALS C O URT OF 1\IA S ACIJliSETTS 4X Muss. App. Ct. 709: 725 N .E.2tl /f/59: 2000 \Inn. App. L/:'X/.') 9 7 December J, 1998 , ,\r!!,ucd i\l arch 9. 2000. Dr<"i tl ctl PIU OR IIIST ORY: I*** ll No rfo lk. C ivil acti ons commenced in the S uperi o r Co urt Department o n Decem bcr :10. I 996. and January I 0. I 997. re s pectivel y. and in th e Land Court Departm ent o n Janu ary 6. 1997 . 1\ Iter the cases were co nsolidated in the Sup eri or Court Department. moti o ns fo r summary judgment were heard by Paul /\. C hernoff . .1 .: entry of se parat e and fi nnl j udgment wa s ordered by Mitchell J. S ik ora, Jr .. J.: nnd a motio n lo r relief from judgment wa s heard by Nonn ie S. Burnes. J. Compl a int received and sworn to in the Wrent ham Divi s io n of th e Di strict Co urt Department o n February 12. 1997 . Q uesti o ns o f law were reported by Daniel 13. Win s lo w. J . DI S POS IT ION: In th e cases numbered 98 -P-309 and 98-P-3 1 0. th e j ud gment s arc artinncd and the o rd e rs d eny in g th e moti o ns fo r relie f fro m judgrne nt arc affirmed . In th e case numbered 98-P-3 75. the reported q ue sti o ns an: an sw ere d as fo ll ows: Qu esti o n I : "Ye s." Qu es ti o n 2: " o ." Questi o n 3: "No ." Questi o n .t : "No.'' Qu esti o n 5: "No .'' Q uesti o n 6 : "No.'' Questio n 7: "No.'' II EADNOTES /.o11 i 11g. By-la". Pub I ic ut il it ics. I Iei g ht re stric t io n. Commu n i c ati o n ~ tow.:r. Building. permit. Board of npp .:al s: dec is io n. l'mcticc, ( 'il'i/. S ummary judg.m.:nt. R.:li .:r liw njudgmellt . R.:port. C o lls titutinnal l .lllr. Public utilili es. Equa l protec tion o f laws . 1-'c ·clem/ T<!lenJ/1111/IIIIic utions .lei. ll'ord~. "lvlono po ly .'' C Ol lNS E L: Mark \\'. Corne r lo r Di s patt:h Comnlll l l i Ctlli on ~ or Ne\\ Eng land . In c. Mark t\. lk11hiaum.: for bui ldin g COllllll iss io ncr o r Franklin & an o ther . .Ill OG ES: Pre .:nt : La ur .:ncc. l.e nk . & Beck . .JJ. OP I N IO N BY : BEC K OP I 'I I O~ [''10(•21 1'7 10[ B EC K. 1***2] J . Between Oc to ber. 199:'. an d j\ In). 19%. Di spnt ch Commun ica ti o ns o r l\c" Eng land. In c .. do ing. b us ine ss ns Ncxld t ·ommuniea ti o ns. In c. (Ncxtcl). co nstructed a t.:lc co mm uni cati o ns to w.:r o n pri vntcl) o wned pro p.:rt y in a ru ral r .:~id c ntia l di strit:t in th e IOWn o f Franklin. rh e 48 Mass. Ap p. Ct. 709. •710: T25 ~.E .2d 1059 ... 1062: :WO O Mass. App. I.EX IS 97 .... ~ fo ur cases con so l ida t ~d in th is npp enl a re the res ult o f the to wn's e ffo rts to have the tower re mo ve d. Proced ural a11d f ac tual hackg rou11d. We tak e the fac ts fro m the fi ndin gs of th e S up eri or Co urt j udge and th e undi s pute d s umm ary judgme nt mat eria ls before h im. as we ll as fro m th e st ip ula ted facts in th e Dist rict Court cri mi na l case. In Oc tober. 1995. 'ex tel app lie d to the Fra nk lin bui ldin g commi ssio ne r. A ll an B. Frase r. for a buil d in g permit to co nstruct a communi cat io ns tower 011 pri va te ly o wned pro perty loc at ed at 7 6 5 Linc o ln Stree t. in n rura l re siden ti nl I (RR I) zo ni ng d istr ict. Tw o we eks lat er. the co mm issio ner iss ued the pe rm it. The Lincoln Stree t towe r. whi c h is 120 fee t high . wa s co mplet ed in May. 1996. Frase r had iss ued a si m ilar pennit to Nex tcl a yea r be fo re. Pu rs ua nt to th at pc nn it. Nex tcl had co nstruc ted a I 00 foo t tower in the Fo rge Hill Road area. an indu stri a l zo ning d istric t where two other mobile ( .. *J l service providers . Ce llu lar One and Bell Atlanti c 1y nex Mo bile. a lso have co mmuni cati o n towers. Nex te l is a mu lti -bi ll io n do lla r co rporati o n in the commerc ial mo bi le rad io se rv ices indu stry . See .f7 l '..'i.C .~· 332(c)(7}(C}(i): .\i Jri111 .\jJec/rt/111 . I. P. 1'. l l'i lloth. I i (i F 3d 630. 6 ./1 -6./2 (2d C ir. 199 9). It s serv ices inc lude d ig it al cel lu la r te le ph o ne serv ice . text a nd num eric pagin g . [**I 063] voice mai l. nnd o th er features. "Dig it al . . . tec hn ology provides nu mero us advant ages to consum e rs : 'better quality. fewer dropped call s and better securit y th a n [an a log] ce llul ar ph o nes."' No te. Wire less Servic e Prov id e rs v. Zoning Co mm iss io ns: Preserva tio n o f State and Local Zo ning Aut ho r it y Under the Te leco mmun ic a tio ns Act o f 1996. 32 Ga. [*7 1 I] / .. Ne1· 96 5 . 98 0 (19 98). f o r a mo re de ta iled d isc uss io n o f th e industry and th e tec hno logy. sec Nohe rts 1·. 5io utlnrest e m /Je ll .llobile .\I'S .. Inc .. ./29 .lfm ·s . ./78 . ./7 9-./80. 7fJ9 .\'L2d 798 (/999). Sec a lso Spriw Spectm111. 1 .. 1'. I' ll'illotll. 176 F3d at 63./-635.: Spri111 .\iJec trulll I .. I'. r .le,ffer.wm Comlly. 968 I·. Supp. l.f 5 -. 1./60 (.\'.f) . I Ia 1997). See gen erally No te. Wadi ng Th rough 1 .. *-t I th e Rhet oric o f th e Te lecommun ic at io ns Ac t o f 1996: Unce rtai nt y of Loc a l Zonin g Auth o ri ty Over Wi rel ess Teleco mmuni cati o ns Towe r Sit in g . 22 Vt. L. Rev. -16 1. 467-472 ( 1997). O n Augu st 14 . 1996. th re e mo nt hs aft er the Lin co ln S tre et tower was co mp le ted. the bu ild ing co mm issio ner sent Ncx tcl a lett er orde ri ng it to re move bo th towers b) Se pt ember 15 . 19 96. l ie too k this ac t ion at th e behest or th e Fra nklin town counc il. th e tow n's leg islati ve body . In th e lc ll e r. th e buildin g co mmi ss io ner c lai med that the t o w e r ~ vio la ted the he ig ht and usc re str ict io ns in the Fra nk lin zo nin g by-law . l'he lc lt c r a lso menti o ned an un re la ted proc e edin g ill\ o l\'in g 1ex tc l at the De partm e nt o f Publ ic Uti lit ie s (now th e Dep artm e nt o f Tclc;;om muni ca tio ns and Encrg). sec St. 1997. c. 16-1 . * ~8). whic h we shall di sc u~s fu rther in due course. In mid -September. 1996. ~cx t e l appealed the bu ild ing comm iss io ner'" re mova l o rde r to Frank lin's :~o ni ng board of app eal s (hoa rd). Sec ( i. 1 .. c .fiJ. I. _{,, 8 & 15. Ncxte l a rgu ed that it s to wers co mpl ied in a ll res pe cts with th e Fra n klin t.o ni ng hy-law and that th e re mov a l o rde r vio la ted sec tio n 70 -1 or th e Fed e ra l Teleco mmuni ca ti o ns Ac t or 1996. , ... 5 , wh ich th e Pre sident had signed int t) l:m o n Feb ru ar) 8. 1996. Pub . 1.. ~o . 10-t -10-t . 110 St .n . 56 (codified at .r l SC .~/ /5/ ..:1 S< Cf .. as amended). r he board held a pu blic hearing o n 0 ·t· •her 3 1 a nd '\o' cmhc r 1-t. 1996. and. on Dece mber 12. 1996. i. sued it s fi ndings and deci s ion s usta inin g the buildin g co mmi ss io ner's o rd e r to re move the to we rs. l'he parties th en prm:ec dcd to the co ur ts of th e Co mm onwea lt h. On Decc m be r 30. 1996. the bu ildin g com mi s~io n c r ti led s uit in S up erior Court purs uant to (i 1 .. c ./0.1. .~ -. th ird pa r .. seek ing a dec lara tory judg ment an d injuncti ' c relief to compel com pliance '' ith hi rcmovnl order. One ''eel. later. o n Jan uar~ 6 . 1997. N.:-x tcl co unt e red by liling an appea l fi·o m the dec ision o f th e oa rd in th e Land Court . Fo ur days a ft er th at. on Jan uary I 0. 19 9 7 . 1 ex tel fi led it s o wn ac ti o n in Sup eri o r Court li11· declarat ory and inj un cti ve reli e f tmclc r the Federa l Tele commun icati o ns !\ct. In Feb ru ar y. I 997 . pur s uant to a Dece mber I:\. (*7 121 19 96. ap pli catio n o f th e bu ildi ng CO IIlllli ss ioncr und er* 185 --t-t (H)( I) o r th e Fra nk lin zon ing by-la\\. the Wre nt ham Di strict Court iss utd two crim inal wmplaint agai nst )/cxtcl fo r cont inui ng vio lation s (* .. 6 I o f the by -law. In ,\pril. 1997 . thc Land Court ca se \\aS conso lid at ed in Superi o r Court w ith the two Su peri o r Court ca ses . In lul y . I 997. th e to wn move d lo r sum mary judg men t in eac h or the co nso lida ted c ivil ca se s. On Se pte mb er I 9. 199 7. a fte r hearin g. a Sup eri o r Cour t j udge denie d th e tow n's mo ti on. lor summ a t)' j ud gment as to the Fo rge I I il l Road Hl\\c r a nd gra nt e d the moti o n as to the Lincoln Street tO\\cr. II O\\ever. noti ng th at "Ncx tcl ha s arg u.:d that it must lta \c both co mmun icatio n to\\crs in o rckr to prO\ ide ti1ll ~en icc to its clientele ... [and[ 48 Mass. App. Ct. 709. *712: 725 .E .2d I 059. **I 06:>: 2000 Mass. App. L.EX IS 97. ***6 assumi ng. but not deciding. th at removal o f one tower would seriously impede extcl's operation." the judge stayed his order to remove the Lincoln Street towe r for fo ur mon ths. to give Ncxtc l ti me to explore alternati ve s ite s for its tower. Final judgments in the consolidated civil cases entered o n December 26. 1997. and Jan uary 5. 1998. more tha n three month s later. Later in January. 1998. a different j ud ge of th e S up erior Court [**1064 1 stayed the o rd er requiring remova l of th e Lin col n St reet tower pend in g app ea l. and s ubsequent ly denied n mlc 60(h) mo t ion for relief fro m judgment. Sec .\lass. U. Cil'.l' 60(h). 365 .\lass. 818-829 (19 7./). [***7] Meanw h ile. o n De ce mb er 12, 1997. purs uant to an ag reed stnt e mcnt of 1:1cts. th e c riminal ca se in the Wrentham District Court was report ed to th is cour1 on qu es ti ons of law. Sec c;. I . c. 1 18 .. ~ 2 7A(d): .1/ass.U.Crim.l '. 3./. 3 78 .\lass. 905-90(. (197 9); ,\/ass.I?.A .I'. 5. as amended . 1 78 ,\/ass. 910 (/ 9 79). Ncx tc l appeals from the judgment s in fa vor of the town concerning th e Linc ol n Street tower and from the denial of it s motion s for relief under mle 60(hJ. Nex te l is also the appellant in the criminal case that ha s been conso lida ted with th e civi l cases now be fore us. Sec .1/ass./L I. I'. 5. l)ist·ussion. The core issues in this appeal concern interpretation s of the Franklin zoning by-law. Stripped to its essential s. ex te l's argument is that the Lin col n Street tower complies wi th th e by-law a nd that th e town's cla im to th e contra ry wou ld lead to a re s ult wh ich v iolates th e Federal Telecommun icati ons Act. Spec ifi ca ll y . Nex te l claims that it is a pu blic utilit y under ~ 18 5-3 of th e Frank lin zonin g by-law and may therefo re construct its to wer in a res iden tial d istri ct as a matter o f r ight. It al so claim s that th e tower co mes within th e height [***81 exe mpti o n o f 1*713 1 the by-law,* 185-13. Acco rdin g to Nex tc l. the re mova l o rd er consti tut es unreasona bl e discriminati o n under th e Federal Teleco mmun ications Ac t. violates the equ al pr ote ction guarantees of th e Federal and Massac hu setts Constituti ons. and in effect prohibit s the provision of personal wireless serv ice s in violation of the Federal Telecommunications Act. On th e other han d. the town argues th at 1extel is not a public utili ty beca use it is not a monopoly and that it is not iu comp lia nce with the hei g ht requiremen ts in a RR I dis tric t. The town denies its action ei th e r disc ri minate s agains t 1 cxtcl or prohibits the prov isi o n o f persona l wireless serv ices. t\ccording to cx tc l. th e di s pute ab o ut the mean in g of Frank lin's :;ron in g by-law as appl ied to the Lin co ln Street communicati o ns tO\\er ··gives ri se to a genuine i!'s ue of m ~1 t e rial th ct." llowevcr. the meaning of a phrase in a zonin~ 11~ -hm i. a question o f law. no t a questi o n o f fact. See l·:ur: 1· /loon/ of . lppeals t!/ S . /?e(l(/ing. J.J I I lass. II II. Ill. I fi-\ /:·. !t! 6!-(/ 960). See al so .\jwim .\jJec /rl/111 I I' 1'. /:'aston. 98] F. .'·:upp . .J -. 50 & 11./ (I). \Ius,·. /1Jir1 (Differences in o pini o n as to the inferences I * .. C) I to be drawn in dctcrm inin g proper in ter pre tati on of by -law i:; a n "int erpre tation of the legal standards involve d a nd no t th e material t~1ct s "). I .. 11111/iwh/c legal .l·fwtt!ard,·. t\ Lo nin g board of appeal s is e ntitled to "all ra ti o nal pre s umpti ons in favor of its in te rp re tati o n o f it s ow n by -la w. lprov ided] th ere li s ! a rationa l relation be tween it s decisi o n and th e purpo se of the reg u lation s it is c harged with enforci ng." Ft!/(m/ r . ( ·onscn·ufi C/11 ( "omm11 . <!1' Ne ading . .J I .\la ss. .lflt'· 0 5fi5. 5-!. fi-2 \.1·.'.1c/11 (199M S uc h a bo ard ha s "the power to deny I a I perm it as long as its deci s ion [i s] n N 'based on a legally untenable ground . o r ... [i s not[ unrea so nable. whim sical. capricious or arbitrar~ .... Golden r Uourd t!/ .'-ic/..:c lmc'' t!f Falmouth 35 8 .\lass. 519. 5.;1. !fi5 \ 1·.' !cl 5-3 (/1rfiJ. qu o ting from .\lac( ;;h/mn 1· /Jourd o/ .lf1J ieals t!l lluxhw:1·. 1j(o \las'. 635. 6J'J. :!55 \./:'.lei Jr (/()i {)J. Sec /.im/i 1·. /.oning /Jd il{. I (Jfh!t lis of Sowlthorouglt. .J! I lass. I pp. Cl. 9! /. 9:!3. (>-6 \ /· .. !c/68 (/1)9-) ("A rcaso nabl~: interpretati o n o f its own ;oning by-law by a loca l boa rd . such as a bonr<l or appea ls. is enti tl ed to deference"). [* .. 101 Summary judgment is appro priate if th e pl eadi ng s and o tl 11:r re leva nt and appro priate matc rinls "show that th en: is no gen uin e issm: a s to a ny materi a l fac t and that the lll OVi ng part y is entitled 10 a judg ment as a matt e r Of law ." llclss ./U"il'.!'. 5o(c). 165 .\fuss. 8:!./ (/97./). "We ha ve held tirmly to the prin c iple thnt well pleaded cases and motion s I (H s ummary f*7 14l judgment [**I 065] s upp ort~d hy r1 rtidavit ~ and o ther material s serve a 's alutar) purpos e' which should not be 'set at naught' where the o pp os in g party merely rai ses 'vague and genera l :l llc gatiOilS Of C:-opec tcd prOOf."' ( .IJII/111/11/ily \alf. /Jon !.,. /)1/11"1!1". J(j9 \/(1.1~. 550. 555-55o. 1./0 .\' t:.:!cl s -- (/9-6). qu o tin g fr o m .1/hrl! .1/arh/e & 1ile C o. , . .1o1m /Jm r!ll < ·o .. 338 \fuss . 39./. 39-. 155 \".l ·.'.!ci.Jr (/IJ59 ). The issues here arc appro pri ate for re soluti o n on s unun ;~r~ judgment. Indeed . man) o f the tele communi ca ti ons cases \\C have reviewed were decided o n mo ti o ns for s umma!) judgm en t. Sec. e.g .. . lmlt<!rSI 1·. ( Jmnipoilll ( ·omlllllllicmions l :·lllerpriscs. l11c . I 73 1: 3d IJ. 10 (/sl Cir. 1999): .\jJrinl .\j)eCin/111. / . .!'. 1·. 48 Mass. App. 0. 709. *71-l: 725 N.E.2 d 1059. ,...106:": 2000 Ma ss . App. LEX I. 97. ***I 0 ll'illoth. 1 76 /·:3d at 63-1. 2. Th e Franklin :tming hy-lmr. nder Fra nklin's l ***l l J usc regulations schedu le. part Il l. :1.6. a pub lic uti lit y usc is permi tt ed a s o f ri g ht in al l zo ning d istri cts of the town . The definition section o fthc by-l aw.~ 185-3 of article I of chapter 185. defines a public utilit y as: "A pub lic se rv ice corporat io n. ei th er priva te or mun icipal. supplying o r tran s mtttmg gas. water. electrici ty or communications to an y o r all members of the public and s ubject to federal. state or town regu lat ions by vi rtu e of it s na tural o r lega l mo nopo ly." The board found that whether or not l'ex tcl qualifies as a "public serv ice corporati o n.'' an issue the parties dispu te. it is no t a public uti lity un der th e town's zo ning by-law beca use it "is not regulated by virtue of its na tura l or legal monopoly." The Superior Court judge ag reed. concluding that "Nextel cannot have a natural or legal mo no po ly in the CM RS [commerc ial mobi le radio serv ice s! ind ustry in Franklin because Ce llu lar One and Bell Atlantic 1 'yncx lobi le also provide th e same serv ices in tha t town." Nex tcl clai ms that the "de li niti on of 'pub li c uti lit y' contained in the by-law docs not require I it] to be regulated bc.:cause it is a monopoly. Ra ther laccording to Ne xte l]. 1***12] consistent with the plain language of th e defi n iti on contai ned in the by-law. Ncxtel is plai nly s ubject to regulation 'hy virtue t?l its natura l or legal mo nopoly.' ... because it operates ove r an exclusive.: s pectrum under a federally regu lated licens ing scheme." Ncx te l's clai m to be a "lega l mo nopo ly" in th e se nse of' hav ing received from the sovereign an exc lusive right to usc it s narrow 1*715] radio spectrum. sec Com/110/IIIWllth , .. Dyer. 2-13 .\lass. -172 . .J8ri. 138 .\'.E 296 (1922). cc rt. den ied. 262 US. 751. 6 7 1 .. l :'cl. 12/.J. -13 5·:. Cl. 700 (1923). as well as a "natura l mon opoly ." in the sense o f being the sole pro vi der of mobile radio communications within that narrow band . may be litera lly correc t. llowever. th e board's construc ti o n of the wo rd "monopoly" reflect s econom ic and market rea lities o ur cou rt s ha ve long recognized. The term "monopoly " has been defined under Massachusetts law as "a combination. organi za ti on o r entity so e:-;tc nsive and uni licd th at i t~ tende ncy is to s uppre ss co mpetiti o n. to acqu ir e a dominance in the market and to secure the power to control pri ces to the public harm with respect to an) com modity wh ic h peo pl e arc un de r a pr actica l compulsion 1***131 to buy." Conmwmrealth 1' •. \le i/ugh . 3:!fJ .\lass :!-19 . .!ril . 93 \'/:' . .!d -51 f/1)50). qu oting from Ctmmwllll'l'alth ,. l~t-..:r . .!-13 lias., at .J8ri. Sc.:c ( 11it.td S !a/c.' ,. 1-:.1 IJ11 !'ow ell' .\L'I//tl//1'.' & Co .. 351 /.' .. \' 3 1-. 380-381. 31J/. /0() 1 .. l ·.'d I.!M 76 S . C!. IJ9.J ( /956J: I 'llift •d S!tlll'S S!cel ( 'o rp. v. For(//cr l ·.'nlclpriscs. Inc . .J.!'J I .'; ri/IJ. fi:!ll . 51 / .. 1-.'d .!d 811. 9-S 0 .'ir./ (/1)--,. \\'i th at least two direct compl!ti tors wi thin the tow n of Franl..lin. Ncx tel i~ not in a p o~ition to s uppre ss compet it ion or control prices . As l'c:-;tcl's director of tech nica l se rv ice s acknowledged. "Ci'viRS prov iders co mpe te aga inst one ano th er lo r end use cu sto mers ." Inde ed '\Jex tel's brief itself state s that "in 1:1ct ... no CM RS pro\'idcr is an ac111al monopol~ ." Sec Uohc ns ,. .\·owlnreslem /Jt!ll .1/ohlle .\rs .. Inc .. .J.!9 .\loss. at riJ (federal Te leco mmun ica ti o ns i\ct "opened ma rke ts 1**1 066 1 to multiple providers c.:mploying va ri ous service deliver~ technol og ies"). There was no erro r on this point. Co mpare.: Omnipoinl Co/1/lllllllie(/(ioiiS. Inc. , .. Scranton. HI F. S"t'fl· .!d l .!1. .!3 .J (.\I. 0 . l'a. 1999J (cellular service providers not public utilities): Crmm CWIIII/UIIic(/(itiiiS 1', /.onillg 1/earill,~ /ld or ( ile l!/idd 550 /'a. !66 !-3-.!7'5. -o5 . I .!d.JJI (/91FJ f*** 1-ll (p ri va te. no n-regu lat ed bus in c.:ss no t pub lic uti li ty. th erclo re no t entitled ro variance). The building commi ~s ioncr's orig inal conclusion that the tow er did fa ll under the de li n ition of public utilit y docs not preclude thl' boa rd's lat<.:r cnforccm<.:nt or a co nt rar) pos tuon. It is well established that a municip a lit ) is no t e stopped b) th e act s of its o flicers . includin L! it s buildin g in s pec tors. from cn lo r<.:ing its zo n ing b~·-l aws. Sec Cape Uesortl/mcls. l 11e . , ... 1/coho/ic /.ic. jjd. 'o( /·almoulfl. 385 \lass .!05 . .!!.J . .JJ I \.F..ld 213 (19.'JJ . and cases cited. S. C. 388 .\lass. /IJ/3 . .J.J(i .\'./:·. 2d /fnl r /983). "The rig ht of the public to have the 1.o n in~ by-law proper ly c.:n lo rccd cannot be lo rfc.:i ted by th e act ion o f (a municipality'!>l ofliccrs." /lui/ding /nsp.:uor 1*716] t!( l.wu·uster ,. SaiiCier.wm. 3-.! \lass. /5 1. 1 r..,. 3611 \'./:'. ]d I 115 1 ( 19--J. qu o ting from Cullen , .. /Juilding lmpcc /or <!1' \' .. 111/ehorough. 353 \lass. (i -;f , (i -5 . :!3 .J ,\'F. !till-r/%8). Nor can a permit le ga li ze a structur<· or usc that viola te s the w ning b~ -law . Sec.: /Juilding Commr. t!f' .\l,•c/fonl r. C & II Co .. 3 II) .\lass. 173. lSO. r.5 .\'.1-.'.ltl 53 i (/9./6). Sec gc nc rnll y cases collected 1* .. 15] in Annot.. Ri ght of ~luni cipa lity or Oth er Public Aut horit y to Enlorcc.: Zoning or Fire Limit Reg ulatinn s as A fleeted b) its Previ o us Condu c t in Perm itt ing o r Encou rag ing Vio lati 0n Thereo f. I l 9 t\.L.R. Page 5 -t8 Mass. App. Ct. 709. *7 16: 725 '\!.E..~d I 059. **I OM1: :WOO Mass. Ap p. LEX IS 97. ***15 1509 ( 1939). In setting fonh his anal ys is of Ncx tel's claim under Franklin 's zoni ng by-law, the Superior Court judge conclud ed that "be cn use Ncxte l is not a public utility company within ~ 185-3 of . . . Franklin's zo ning by-laws. it is s ubject to the by-laws." Nextcl co mplains that the motion judge then proceeded directl y to an analysis of Ncx tcl's claim s und er the Federal Telecommunications Act. "[w ith out] w~1 · analysis of whether the Linco ln Street tower met the usc and dimensional requ iremen ts of th e by-law ." \Ve thin k th e mo tion judge 's d ecis io n abo ut th e applicability o f th e zon in g by-law is an implicit finding that the Lincoln St reet tower is not a pe rm ittcd usc. Sec C(u~1· 1· l'lymouth-Con·er l?et!ional .'·ich. I Jisl .. 17 .\fuss .. lpp. Cl 2 11. 2 12-2/J. -15 7 .V.I ·.'.2d 29 -1 (1983) (court ma y s urmi se basis for s ummary judgment even th ough the judge did not state his reasons). If the tower is no t a permitted usc in th e RR I di strict. there is no nee d to reach the 1***16] height issue. However. si nce both panics argu ed the hei gh t iss ue before the board and briefed and argued the iss ue on appeal. we comm e nt o n Ne xtel's argu ment o n thi s point. The Lincoln Street tower is located in an RR I dis trict. It is 120 fe e t high. The height limitati on for buildings in that district is thirt y-five fee t. The limitation for structure s is twenty feet. (The by-law defines n structure as "anything constructed or erected at a fixed locati on on the ground to give suppo n. provide shdter or satisfy o th er purp oses." A bu ildin g is defined as an "independ ent st ru cture hav in g a roof s uppo rt ed by co lumn s o r walls, re sting on it s ow n foundations and des igned for the shelter. housing o r enclosure of persons. an im als. chattel o r pro per1 y of any kind.") Section 185-13 of the zoning by-law is a general provision which sets o ut the exceptions to the by -law\ height limitations. It provides: "The limit ation on height of buildin gs and structures in [*717 J the Schedule of Lo t. Area. Fro ntage. Yard and !Ieig ht Requirements shall not apply in a ny d istri ct to chimneys. ventilators. towers. s pires or other ornamental features o f buildings. which fea tures arc in no way used for living 1***17) purp oses ." [**1 06 71 Seizing on th e \\Ords "the limitatio n o n height o f bui ld incs and structures ... shall no t apply ... to ... t ower~" ar~d ignoring th eir cont ext. 1 e;o.;tel clai ms that it s Lin coln Street tower is exempt fi·om any height limitati on hcenu sc it i:-a structure and a to wer. rtu: board rejected thi s argument. Citing Camie 1·. l?idmumcl. IJI) \.II. ! I. (i.JN .I 1.1 1fl5 ( 199-1). the board concluded th nt "it seems lik e ly that the [Frankl in! town meetin g of 1960 !which cvidenth enacted the orig in:~ I vers ion o f the b) -law at iss ue h ~·rc 1-. . co ntemplated towers on the top o f buildinc ~. no t free standing towers." Alth o ug h th e lan.,u a•~e o r Fra nklin's bv-law is inl cctcd with certai n .::0 ,::. .; imprec 1 ~1o ns . particular!: in it s usc of the word "s tru c tul<:" --e.g .. the dclinition o r "build in g height" provide!-that "height limiwtion s shall no t apply to chin 111e) '· s pires . cupolas. televi sio n a nt enna s o r ot her pam or stru cture s \\h lch do no t enclose po tentia ll y habi ta bk fl oo r s pace" (c o mpare with * 185-1 :>. ·'"IJra) -- th e board's in terpretation is consistent with basic prin c ipl e s o r statut ory co nstru cti on as well as co mm o n sen s.:. Sec l .imli 1· /.m1i11t! lief t!( . IIII IL't lfs t!/. .\'oulhhomugh. .J! .\lass lpp. Cl . al9!3.j ***l8l In ( ·amie 1·. Ui dmumcl. s upra. the zo nin g ordi nance in ques t io n excepted chimneys and antenna s fro m the thiny-fi , e foo t height limitati on. The to wn had granted a s pecia l l"\ccption to a ninety to o ne hundred foo t tower to s upp or t antcnnns for a propose d cab le televi s ion receivi n:,: facilit y. con struing the entire s tructure as an nnten na. r\ Superior Coun judge upheld the tO\\ n's deci s ion . The 1 cw llampshi re Supreme Court reversed. No tin g that the term antenna w:l s no t defined in th e zo ni ng o rdi nance . th e court turned to the dict io nal') and "common se nse." I 39 \ II. 111 !!. r he co urt concluded that ··when I the town] ad o pted the zonin g ordi nan ce ... it is more likel y that what was con templat ed by the te rm 'antenna' was the o rdin ary. pre-cable telev is io n receivi ng an tenna." ld 111 .! 3 . "In the absence o f s pccilic precedent o n the meaning of a word o r phr nse in a statut e. we arc g uid ed by accepted principles of co nstruction . One such principle lead s us to relate th e wo rd s in que sti o n to the a ssociated wo rd s and phra ses in the s tatutory l *7 181 con te xt." Commoii1 1'C'IIIIfl ,._ !Jaka. 368 .\lass. 58. o8. 330 .\'Y.lcl -9./ ( 19 -5 ). If ere. in addition 1***19] to to wer s. the o the r fe ature s includ~d in the Franf..lin b) -Ia\\ ·~ general heicht e xemptio n --"chimneys. ve ntilators .... s pires Iandi o th er o rnamental fcnt ures o f buildings." a s well as Pa ge 6 48 Mas s. App . Ct. 709, *7 18 ; 725 N.E.2d 1059. ** 1067: 2000 Ma ss. Ap p. LEX IS 97. *'-'*19 the cupolas and te lev ision ant e nna s me nti o ned in th e definition of bu ild ing he ight. arc all cl ement s o f a bu il di ng. Comp are A:enney 1·. /Juildinp. Co111111r. r!f Melrose. 315 ,\lass. 29 1. 295. 5 2 :\'.E.ld 683 (/9.13 ) (conservatory): Conuuomrealth , .. !Jaker. 368 .\lass. al 68 (ba il bond s ). See generall y 2A S in ge r. Sutherland Statutory Constructi o n * 47 .16. at 183 (5th eel. 1992). In co nt ext. the boa rd 's concl usion that the excep ti o n applies to structures appurtenant to o r o rnam ental to a bu ild in g a nd tha t the refore a free-stand in g 120 foot tower wo uld no t be within th e int e nd ed me an in g o f the by -law's he ig ht exception, is a reaso nabl e int erpretation o f th e by-law. See Murray v. /J oard of Appeals <!( 8amstahle. 22 .\lass App. Ct . .J 73 . .J 78 . .J9.J X.Cld 13 6 .J (1986): l.i1•o li v Zoning !Jd <!f Appeals of So/llhborou?,h. .J ] :1/ass. App Cl. 01 921 . 2 2 On Ju ly 23, 1997. be fo re the town fil ed it s mot ions for s ummary judg me nt . Frank lin pa ss ed an amendment to its zo n ing by-law. Th e am e ndment excl udes "cell ular telephone se rvice . perso nal commu ni cations service. rand] enhanced s pec ialize d mob il e radi o services " fro m th e definitio n o f "publ ic utilit y": add s a new definition for "wi reless co mmuni cations to we r": and establi she s an o ve rl ay "wi rel ess com muni ca ti o ns services district." Frank lin subm itted a copy of the ame ndment al o ng w ith an affidav it from th e bu ild in g commi ssioner in s upp ort of its moti o n fo r summ ary j udgmen t. Howeve r, the Superior Co urt jmlgc mad e no mention of th e a mendment. Alth o ug h th e amend me nt is included in the reco rd appendix. ne ither part y arg ues that it is re levant to th is appea l. (***20] [**I 068] 3. 'I h e Fed em / Telecol/llllunicalions Acl. Nc xte l al so argues . as it did in opposing the town's mo ti ons for summ ary jud gment . that th e town's order v iola ted prov is ion s o f the Federa l Tel ecommunicatio ns Ac t (Act ) --that it di scrimin ated aga in st Nextel as compared with o th er carri ers and that it in e ffect proh ibit ed perso nal wire less se rvice s. See .J 7 U.S.C. § 332(c:){7)(/J){i){l) & (II). Th is was an appropriate argument in Sup eri or Co urt becau se th e tow n had o rdered Ne xtc l to rem ove both the Lin coln Street tower and th e Fo rge Hill Road to wer. However. th e S up eri or Court judge d ec! in ed to g rant th e to wn's mo t io ns for summary j udgment as to th e Fo rge Hill to wer. The tow n is no lo nge r demand in g th e re mova l of that tower. and a ll c la ims regarding that stru ctur e have bee n di sm issed by a greem ent o f the pa ni cs. [ *7 19[ As to the Lin co ln Street to wer. the Super io r Co urt judge lo und that th ere was no ba s is fo r a claim of di sc rim inat io n o r d en ia l o f eq ual protec ti o n because th e Lin co ln Stree t towe r is the o nl y co mm un icat ions tower in a resi de nti a l area in th e to wn . The judge furth er lo uncl that wi th to we rs o f th ree different prov id e rs in the Fo rge Hill area . Ncx tc l cann o t sho w [***2 11 th at th e town ha s prohibit ed perso na l wireless services . We sec no error in th e Sup e ri o r Court jud ge 's d ec is io n o n th ese iss ue s. "The s ta tu to ry prov is io n [o f th e r\c tJ before us . .J i (:.S.C. .::. JJ](c)(i ). is a del ibe rate co mpro mi se between two co mpetin g aim s --to fa c il itate nati o na ll y the growth o f wirek ss teleph o ne serv ice a nd to maint a in sub sta ntial loca l contro l over sitin g o r [co mmuni cations [ to we rs." ..imhers/ , .. O mnipoinl Conmlllllh'Wic ms F:.lllertwises. Inc .. 17 3 F J.t al I J . The prov isio ns settin g o ut th e prin c i ples gov ernin g th is co mpro mise arc as lo ll ows: "(7) Preservation o f loca l zo nin g a uth o r ity "( t \) Genera l aut ho r it y Exce pt as pro v ided in thi s para graph. not hin g in thi s chapter shall li mi t o r affect the auth o rit y o f a State or loca l J,:Ove rnm e nt o r in strum entalit y thereo f ewe r dec is io ns re gardin g the pla ce ment. co nstru cti o n. and mod ifi cati o n of perso nal wirele ss service faci lit ies. "(13) Limit ati o ns (i) The regu lati o n o r th e placement. constru cti o n. and mod ificati o n of persona l wire less serv ice faci lit ies by any State or lo cal governm e nt o r in strumentalit y the reof -- (I ) shall nCll unr easonably 1'***22 1 disc riminate amo ng provi ders o f lun ct ionall y eq ui va le nt services: and (II ) shall no1 proh ibit o r ha ve th e cflcc1 of proh i bitin g Pn gc 7 48 1\•lass. App. Ct. 709. *7 19: 725 ·.E.2d I 059. **I 06X: :WOO Mass. App. I.EXI. 97. ***22 th e provis ion ofpersonn l wireless services ." -1 7 li.S.C. § 332(c:)(7). In order to succeed in it~ claim under .~ 332(c)(7)(1J)(i)(l). Ncx tel mu st show that there is a material questi o n o f fact as to whether tlw town's order to rem ove th e Lincoln Street tower constit ut ed unreasonable di sc rimination. Ncx tcl's arguments on this po int arc confu sing a nd unpers ua sivc. [*720] Ne xtel claims that the Superior Co urt judge's findings "she lt er Ce llular O ne and Bell Atla nti c Mobi le from competi ti o n with 'cx te l" a nd therefore discriminate against cxtcl in vio lation of -1 7 (/ .. 'I.C. .s 332(c)(7}(1J)(i)(l). However. we have found no ev idence in the record to support thi s claim. (Perhaps it. too. is a remnant of Nex tel's argument in Superior Co urt in re s po nse to th e town's e ffo rt to require the rem oval of both of Nextel's towers.) 'cxtel further argues that "the removal of the Lincol n Street tower woul d prevent 'cxtel from providing uninterrupted serv ice in the vi tal Route 495 , Route I 09 and Route 126 tran s portati o n co rridor -- uninterrupt ed (***23 J service wh ich Cell u lar One and 13cll Atlant ic Mobile arc able to prov ide their customers with th e ir current faciliti es." Its only ci tation to th e record in s upport of thi s argument is to a concl usory stat eme nt to that effect in th e affidavi t o f Do uglas Smith. cxtcl's director of technical serv ices. The Rules of C iv il Procedure [**I 069] req uire more. Sec .\lass. R. Cil'.!' j6(e). 36 j .\lass. 82j (19 7-1) ("a ffida v its sh all be made o n personal knowledge. shal l se t fo rth s uch facts as wou ld be admissible in evidence. and s hall show affirmatively thn t the nffiant is competent to te s tify to the nHlltt:rs stated therein"). See a lso Sm ith & Zobe l. Ru les Practice ~ 56.(> (Su pp. 2000) ("[An nffidavi tl mu st purvey fact s. no t expre ss ions o f belief o r understanding: and the fact s mu st be specific and ndmi ss iblc in evidence"). Moreove r. the affidavit claim s on ly that without hoth towers there would be a gap in 1cx tcl 's service. 1extcl also argue s in supp ort o f its cl aim o f discriminati o n that it uses "digital technology different from the cellular techno logy o f it s com petit o rs " and that it provides "a unique com bination of function s." Eve u assumi ng th at Ncx tcl successfully fo rm u lat ed au argument [***24 1 ba sed o n thi s all egat ion bel ow. it s argument before thi s court do cs not ri se to the level of appellate argument required by .1/ass.R.A .P. l{)(a)(.J). 367 .\lass. 92 1 (19 7j). Sec l'mrers 1·. 11.13. Smith Co .... ,-: .1/ass .. tpp. Ct . 6j 7, 66.J-fl6j, 6 79 .\'.£.2d ]j] (1 99 7). o r docs the record contai n th e requi red s upport fo r thi s argument. Sec .\Ieiss . U. ( ·;,·.1'. j fl{e): 0'/lrion. Russell & Co. 1·. l .t ·.l!uy. 3 10 .\lass . ].IJ. J-16 .\'.1-:.ld 8fll (19 7M. In r111y event. th e "A c t exp licitl y co ntemplates that so me d isc riminati o n among pro vi ders of fun cti o nall y equi va lent se rv ices is allowed . An~ di scri minatio n nc.:c.:d only be: re asonabl e." .\jJrill/ .\jJt.!ctrU/11. 1 .. 1'. , .. II 'if Iolii. 1-fl I · Jd at rl38. quoting from .If' & 7' ll'ircless I'CS. Inc ,. Ci1y Council r!f' r·a IJcuch. [•721 ) 15j 1·.3ci.J13 . .JT (.Jt/i ( ·;r 1998). 'The confe ree s [did)no t intend that if a Stntt or local govcrument g rant s a permit in a eo mm cr..:ial d istri ct. it mu st a lso grant a permit lo r a co mpe ti to r's 50-toot tower in a re sidential distri ct." H.R. Con f. R..:p. 1o . I O..J--158 at 208 ( 1996). reprint ed in I 996 U.S.C .C.A .N. 222. "L oc al gove rnm ents mn y reaso nab ly take tlh· location o f the te lecommu n ications tower (***25 1 int o cons iderati o n in decidi ng whether ... to approve: an app lication l(lr constru cti o n o f w irdc.:ss tdccomm unications fn c ilit ic.:~. even th o ugh thi s may res ult in di scriminatio n bctw cc.:n providc.:rs o f fun cti o nal ly equivalent services." .\'twin! .\jll!c tmm. 1 .. P. 1·. ll'illolli. 176 1·:3d (1/ (}J9. c itin g ., r & T ll'ir£'lt'SS /'( 'S. Inc. \'. ( ·;~,. Coullcil l!f' l'a. lkadr. I j5 1·:3cl (1/ n :. Sec :I T & r ll'in less Sen·s. <!f't-1a .. Inc. 1·. Ormrge Counl)'. 13 F. SUfJI '· ld !Jjj_ 1363 (\1.1>. Fla. 1998) ("It is wi thin the prerogatives o f a local gove rnment to determine that a tower ... is to o imposin g lo r a pa rti c ular neighbo rh ood"). The Superio r Co urt j ud ge did not err in rejecting Nextel's clnim tha t the town 'iola tc.:d the Ac t's bar agni ns t unrea sonable discrimi nation. For the snme rea so ns. there is no meri t to Ncx tc l's cla im that it s constituti o nal right to equa l protecti o n wa s v iol ated. lc.\tcl al so argues that by detc.:rmi nin g th at ex tcl is no t a pub li c uti lit y. the hy -law "effec ti ve ly pro hi bi ts" co mmer..:i nl mo bile radio se rvice s earners fi·om mai ntain in g f.-tci litics in franklin because th e tel ecomm uni cati ons tO\\Cr s arc not ot herwi se a permitted usc. Assum ing thi s argumen t 1***26] wns raised be low . it is "itho ut merit o n . evc ral g ro und s. f irst. in view of the liu:t that Franklin is making no effort to rem ove an y o f the F .. 1rgc Hill Road towc.:rs (in c ludin g th at o f Ne xtcl). th ere is no ba sis for Nex tcl 's arg ument that the to wn has pro hi bit ed mobil e rad io serv ices. Seco nd. "the int ent of I th e Ac t's bar nga inst prohibi t io n o f services islthat ban s o r po li c ies that ha ve th e cflcct o f banning perso nal wire less services or faci litie s not be allowed and that dcci ~;i o n !> be made on a ca. e-b) -case: basis." H.R. Co n f. Re p. ;-.,!.,. 104-4 58 at :ws ( 1996 ). repr inted in 1996 .S.C.C'.A.K 2n. "The burden for the cnrrier imoking Pag~: S 48 Mass. A pp . Ct. 709. *72 1: 725 :>~.E.2d I 059. **I 069: :WOO Ma ss. t\pp. LEX IS 97. ***26 thi s provision is a heavy o ne: to show fro m language or c irc um stances no t j ust th at 1his app lica t io n has been rejec ted but that furth er rea so nab le e fforts are so li kely 10 be fruit less that it is a wa ste of tim e even to try." .·lmlu:rsl 1·. Omnipninl Cummunicalions r:w e rprise s. Inc .. I 73 1·:3d at I .f. 1 extcl's [**I 0701 nrgument thnt Frnnklin's by-law effectivel y prohibit s the siting of communicntio ns [*7221 towers is also und ermined by the fnct thnt Ncx tcl never sought a variance o r s pecial permit under th e by-law. Sec id. (On s ummary judgment record. app licant [* * *27] fai led to s how that by -law's variance requ ireme nt const itut ed prohibition o f servic es). Nor did Nex tel seek an exempti o n unde r Ci. !.. c. -10 .. 1. .~· 3. second par .. or make use of either o f the sta ys in ord er to fi nd a lt ernati ve sit es or prove that it cou ld not do so. Sec icl. al 15: .SiJrinl Spec/rum. L 1'. 1'. ll"illoth. supra at 6./3. In stead cxtcl ha s consistently claimed it could locate it s tower as a matter of right. The denial of a permi t under these circumstances docs not constitute a prohibiti on und er th e Act. See . t e~e rter 1'. /Je lt!fie ld. 17-1 F. 3d 886 89 1 (71h Cir. 1999) (Ac t docs no t pro hibit the appl ica ti on o f ge neral nondi scriminatory standards a s set o ut in th e town's zo ning by-law): National Tel ecoumumicatio n A1M.wrs. I.I.C v. Se l ectme n c?f" ll"est Stockbridg e. l i F Supp. 2d 28-1. 287 (/). ,\lass. 1998) (difficu lt to a rgue that denial of s in gle applicati o n for s pecial permit cons titutes a p rohibition): Omnipoint Comnllmicmions. Inc 1· Scranton. 36 1-: Supp. ld at 233 ("s ing le denial. even where it resu lt s in a gap in serv ice s. does not constilll te a pro hibition against persona l 1***281 wireless services"). 4. Denial <!( .\'extel's mle 60(h) m otion. In April. 1995, in an unre lat ed matt er concerning th e constru cti on o f communications towers in the town o f Sterlin g. Nex te l so ught an exempti on fr o m th e Ste rling by-law from the Department of Public Uti liti es (DP ). on the ground that it was a public serv ice corpo ration under G. !.. c . ./0.·1. 3' 3. second par. (authorizing petition to DP tor exemptions fro m local zo ning by -laws for public service corporati o ns). In February . I ?96. before constructi on o f the Lincoln Street to wer had commenced. the DP U de nied th e exemption and ruled th at Nex te l was not a publ ic serv ic e cor poratio n. Th e buildin g commi ssio ner re lied on the fac t th at Ncx tc l th ilcd to di sclose the DP U ru ling as n basis tor orderi ng the dismantling of the Nextel towers in Augu st. 1996. In Jul y. 1996. the DP LI vncatcd its February ruling. consolidated several s imiln r pending cases . and reopened the reco rd for the fi lim.! of additional infonmllio n o n the iss ue by interested pa.;ies. Subsequently. on Janual)• 8. 1998. the DP re ve rsed it s Fchrua r~. 1996 . rul in g nnd conc lu ded th at "providers of co mme rc ial mob ile rad io service qua li fy for public [•**2'>] se rvice co rporati o n statu s ... pursuant to ( i. 1 .. (", .f{J.I. .•' J ... Nc:-.tel hn s consistent!) argued that the DP matter is nN I "7231 rele vant to the issue s conceming Nex tcl's tower:-in Franklin . '\le, c rthcle!>~. to ll ow in g th e Jnnu:tr). J99 S. DP U dec is io n. '\lex te l moved to r relief fr o m judgment in the cases nt i s ue here under .1/oss .IU 'il·l'. 60(/JI(]J. f5J . and (oJ. Wh il e maintaining it s "pos iti o n that it s sta tu ~ as a 'p ub lic serv ice co rp o rati o n' un der (i. 1 .. c .J0.-1. ·'' J is o r no releva nce with res pec t to th e iss ue wheth er th e Lin co ln Stree t tower is permitted ns a matter o f right und er the Franklin t.oning by-lnw[l ." Ncxtc l c laims it wn s entitled to re lief fr o m judgment because the DP L ru ling "is a sign ificant c han g ed ci rcumstnncc which const ituh:s the di sco\'CI) o f 'ncwl~ di scovered evidence'" und e r rull! 60fh)(!J . or r..:prc sent s c hanged circumsta nce s wnrrnn tin g relief und er rule oO(hH5J. o r req uire s relief undlr m lc 6fl(h)(6). A judge of th e Superior Cou11 denied Nextel's motion o n the ba!>is that the judgment was sta ye d pe nd in g appeal in any ca se. The j ud ge did no t abuse her di scretion. Sec C hiu-A."un ll'oo I ' .11<~1 ·. I i .\lass . .-l f'l'· 0 . 9./IJ. 9.JIJ-IJ5fl. -15-.u ·:.1d MJ (1983). [***30) exte l is correc t that the DP proc eeding is not rclevnnt. £3oth the board and the Superior< 'o 1111 j udge made clcnr that their determinations as to whether '>.!ex tcl ""s a public utility depended o n their anal) ~i s o f th e Frank li n zoning by-lnw and no t the proceedin gs at the DP U. 5. ( rimilwl p e naltil's. Pu rs uant to the reque st of th e partie ~. a [**I 071 1 Wrent ham Di stri ct Court judge o rdered th at cert ai n que sti o ns o f law in the criminal ac ti o n regarding the Li nco ln Stre et tower be reported to thi s court. Wh ile we have so me do ubt ns to wheth er thi s cnsc i:-nppropriate fo r a rep o 11 un der .\lass. R. Crim.l' 3 .f. sec. e.g .. C o mll/o m realth 1· 1·:11(/icoll. r .\lass .. lpp Ct. 1015. 111]5-10]6 . .J6f! ,\ t-:.ld 615 rl98.f). we conclude thnt in th e circumstnn ccs "enicienc) in the administrn ti o n of j us tic.:: would be best served by o ur nn swering [most o fl thC' r .:p011Cd questi o ns regardless or whether ... I they arc I p roperl y befo re us ." Conui/OIIII 'ealtll 1·. llw111 ~<' . .J /IJ .\lass. 51 -1. 515 11.1. 6-16 .\'.t·: . .!d 38i (/91)5). qu oti ng fi·o m .1/ul/er !1" a .John /)ol' (imlld ./m y lnn!sligation . ./08 .\lass. -ISO. -181. 56.! \.1-:.ld 69 (I 991JJ. O ur an swers to the ti rst seven o f th e eight quest io ns of lnw (a ll [***3 II of \\lu ch nrc set o ut in the Ap pendix) are ns to ll ows: ( 1) The cri minnl co mpl ai nt agai nst Nex tcl wns not prematu re. Sec Cnii/11/0I/\1\'mth 1·. I ( iru::iww. Inc .. 35 Page 9 -18 :'>.lass. App. Ct. 709. •n:>: 725 '-.E.2d I 059. ••1 071: 2000 ~lass. Ap p. LEX IS 97. ***:>I M ass. App. Ct. 69. 71-73. 6/6 N.l~.ld 825 (1993). (2) Th e Lincoln Street to wer does no t compl y with th e Fran kl iu zonin g by-law. (3) The deci siou of th e boa rd docs no t vio late th e Telecommuni ca ti ons Ac t of 1996. (4) Nor docs th e board's decisio n vio late 1ex te l's right to eq ual protection. (5) The board's interpretation o f the words "public uti lity" [*72-1 1 is not unconsti tutional und er the ex post fact o clause o f the Federal o r Massachusett s Constituti o n. See .llal/er t!( l.ake. ./JH .\lass. .J.J() .f./3-.J.J.f. 702 ,\'.C. 2d II.J5 ( 1998). Sec gcncmll) SanliaKo v. Coii/11/0/Il r eafll!. .J28 ,\/ass. 39. .f I . (i9 ·· ,\'.1~'.2d 979. ce rt. denied. 525 t:.s. 1003. l .f2 1 .. /:'d. l ei .f26. 11 9 S . Cl. 5 /.J (1998). (6) The prosec uti o n is not ba rred by th e d oc trin e o f ent rapm e nt by estoppe l. (7) Th e prosec ution is not a v io lat ion of the equal protecti on cla use of the Federa l or Massach usetts Constitution. The e ighth questi o n asks. "Whether th e prosecution v io lates Nex tel's fund amenta l ri ght s. guaranteed by tin: United States l *,...32 l Constituti on and thc Ma ssachu sett s Declarati o n o f Rights. by pre ven tin g Ncx te l's ab il ity to purs ue it s stntut o ry civi l appea l ri g ht s pursuant to G . 1 .. c . .JOA ." The parti es' briefs o n thi s iss ue in c lud e arguments re gard ing the fai rn ess o r ass e ss in g fin es during the sta y pendi ng app eal. Ind ee d. Nex te l argues that by granting its mo ti on(s) for stay. th e S up e ri or Co un judges essentially "authorized [Ne xtel) to maintaiu the Lincoln Street towe r th rough the course of thi s appe al." and that therefo re no penalties shou ld accrue durin g th e pend e ncy o f the appeal. The case law docs not s upp o n this argument. Sec IJurlington Sand & Grorel Inc. v. 1/arvard. 3 1 ,\lass . ..lpp. Ct. 26 1. 266. 5 7(i .\'./:·. ]d 707 (199/) (pre lim in ary injun c ti o n granted at appli ca nt 's req ues t did no t preclude imp osi ti on of criminal fine s for violati ons o f zo nin g by-law during pe ri od o r th e injun cti on). Moreover. cxtel's motion for sta y did not mention the iss ue of th e fin e. 3 3 We note. howe\er. that o n May 19. 19 98 . a s ing le justice of thi s cou rt o rdered th a t "there shall be no impos iti o n o r fine s tor da ily v iolati o ns fr o m April 23 . 1998 ([th e] day thi s case was dee med ready by thi s court) until de terminati o n of lthel app eal." There wa s no app ea l tak e n fro m th e o rd e r o f the s in gle justi ce. [***33] Howeve r. in the ir "agreed statement or facts and ques t ion s of law fo r report of case." the panic~ stip ulated that "the issue o f an y fine s. if not rendered moot by the Appeals Court 's action. sh a ll th erea ft er be dete rmin ed by the Di str ic t Court after a hea rin g. Nex td reserves a ll right s as to th e iss ue o f tin es in c ludin g . but not limi1 ed to . th e date s s uch fi nes ma y be lev ied and th e amou nt o f such tine s." Si nce th e Di stri ct Court j ud ge who reported th e case adopted thi s provis io n in hi s repo rt. and s ince we ha ve some do ubt about the appropriateness o r the repo n o n the se fa cts in an) case. we dec lin e to anS\\Cr the c igluh question. Bu t sec Uurlingltm 5ial/(l & ( ;rari!l. Inc. '. 1/urnml. .wpru Compare /Jc(/cr ,. /Juiltfi11 g Commr. (!( /Josl oll. 3fJJ \lass . .J31J. '!9.f \' 1-.'.lt! 85- 1*72 5] fi913J: Coiiiii/OI/I!'t'allh r . )(uneen. -101 .\fuss . 331. 333-33-1. 5 16 .\'.l·.'.lt! 11 ./9 (1987). ce rt. d eni ed . .J 8(i I ' .. \·. I 008. I 00 1 .. l ·.'cl. '!d HIS. I 08 S. Cl. f 7 35 i ** I 07 2 1 ( 1988; t co urt ha s d iscret io n to sta y li ce nse revocatio n pen d in g appea l wh e re pcna lt ) irre pnrnb le becau se no prac tical comp ensa t io n nvailable after appea l): \lass N.Crim.l'. 31 (h). rs lim .,. 90'!-903 f 19-9). I*** ]-II Co nclusion . In the cases numbered 98-P -~09 and 98-P-] I 0. the judgments arc affirmed and th e orders den y in g the motions to r rel ief fr o m judgme nt arc nfli rmed . In the ca se numbcn:d ()8-P-37 5. th e re po rt ed que sti o ns a rc an swe red as fo ll ows: Ques ti on I: "Ye s." Ques ti o n 2: "No ." Ques ti o n 3: "l"o." Ques ti o n -k "No." Qu\'Sti o n 5: "No." Quc,ti o n 6: "No." Om'sti o n 7: "N o." 1io ordered. ,\pf'l'llllix. "1. Whe th er a cri mina l complaint can iss ue agai nst 'cxtel 1->eforc Ncx te l has ex hau sted it s statut o ry ri g ht to appeal the ZI3A l '-onin g hon rd of app ea ls ! d eci sio n pursuan1 to ( ;. 1 .. c . -I fl. I. "~. Whet he r Ne.xtc l's l .incoln St re et tower complies with th e Frank lin Zon in g 13y-l.aws. "~. Whether th e ZI3A deci sion violate the TcleCflmm uni ca t io ns Act of I 996. Page 10 48 Mass. A pp. Ct. 709. *725 : 725 .E.2 d 1059. **1072: :WOO Mass. App. LEX IS 97. •••:>-t "4 . Whe th e r th e ZBA's decis io n has d eni ed e;-;tcl it s r ig ht to Equa l Pro tec t io n of th e Laws. "5. Whe th e r the ZOA 's decis io n constitut es a re troact ive a ppl ication o f a new definiti on of 'publi c util it y' wh ic h is un co nstituti onal under the F.x Post Facto c:lausc of the United States Constitlllion. Art. I .. ~ 10. or o f the .\lass aclmsel/s /Jeclaration of IU[!.III s. Art. .nn ·. [*726] "6. Whether the prosecution is barred under th e [***35] doc tri ne of e nt rapment by esto pp el. "7 . Whe ther the pro~ec uti o n de nie s Nexte l it!' right to Equa l Pro tecti o n o f th e Laws by virtu e of th e C'ommonw ea llh's refusa l to prosec ute Ce llula r O ne and Be ll Atl a ntic. "f'. Whether the prosec uti o n vio lat es Ncx tcl 's fundanwntal rights. guaranteed by the Unit ed States Constitu tion and the \ lassac hu sett s Declaration o f Ri gh ts. hy preventin g ' exte l's ability to pursue it s statut o r: c ivi l appea l right s purs uant to (i. / .. c -10.1." Michael van Eckhardt Executive Director - Senior Legal Counsel AT&T Mobility P.O. Box 97061 Redmond, WA 98073 michael.vaneckhardt@att.com T: 425.580.7033 F: 425.580.7825 March 29, 2016 Via Email Temple City City Council City Hall 9701 Las Tunas Drive Temple City, CA 91780 RE: New Cingular Wireless PCS, LLC d/b/a AT&T Mobility 5319 Halifax Road, CUP Application No. PL1300192 Dear Mayor Yu, Mayor Pro Tem Sternquist, and Councilmembers Chavez, Fish, and Man: I write on behalf of New Cingular Wireless PCS, LLC dba AT&T Mobility (“AT&T”) to respond to the appeals of the Planning Commission’s unanimous approval of AT&T’s conditional use permit application No. PL1300192 (“Application”). The Application seeks to construct a stealth wireless telecommunications facility in the courtyard of the Bethlehem Lutheran Church, 5319 Halifax Road (“Proposed Facility”). The Proposed Facility is necessary to close a significant gap in AT&T’s service coverage in this portion of the City. The purpose of this letter is to provide an overview of the Proposed Facility, to address the issues raised by the appeals, and to discuss applicable federal law. AT&T’s Proposed Facility AT&T has identified a significant service coverage gap in a large residential portion of Temple City in the vicinity of the Proposed Facility. AT&T’s gap is depicted in Exhibit 2 (3G UMTS coverage) and Exhibit 4 (4G LTE coverage) to the Radio Frequency Statement that AT&T filed with the City on January 22, 2016. As explained in the Alternative Sites Analysis that AT&T also filed on January 22, 2016, this coverage gap includes residential neighborhoods with over 340 homes, a park, places of worship, and a residential health care facility. AT&T investigated numerous alternative locations in the area at which to install the Proposed Facility. As explained in the Application, and because wireless telecommunications is a line-of-sight technology, AT&T needs to place its antennas at a height that is sufficient to close its significant service coverage gap. AT&T investigated eight properties in the area in order to identify the best available and least intrusive means to close its coverage gap. The properties in the several surrounding blocks were ruled out because they are primarily single-family residential homes. Other properties in the area were ruled out as either unavailable or unfeasible. Several properties are unavailable because they do not meet zoning criteria. Other properties evaluated are unfeasible because the distance from the coverage objective was too far to provide reliable service coverage. Bethlehem Lutheran Church is willing to lease space to AT&T and AT&T 2 determined that it can close its significant service coverage gap with a stealthy and aesthetic facility at this location. To close this gap, AT&T initially proposed to camouflage its wireless telecommunications facility as a bell tower near the southeast corner of this church property. But the City Planning Commission did not favor this design, and asked AT&T to consider redesigning the facility and relocating it into the church courtyard. With input from the City staff to develop an appropriate solution, AT&T now proposes to install twelve panel antennas (three sectors of four antennas each) mounted on a pole and camouflaged as a pine tree within the courtyard of this church. The related equipment will be housed within a separately enclosed equipment area inside of the courtyard, which will be screened by a decorative wall and tall landscaping. AT&T proposed a 60 foot tall monopine that would have six feet of branches above the camouflaged antennas. City staff has requested, and the Planning Commission approved, additional height in order to provide a more tapered top to the monopine. At this height, the monopine will still be shorter than a nearby palm tree. The Proposed Facility will hardly be noticeable as anything but a natural pine tree at this property, and it will fit in well in this part of Temple City. The proposed coverage from the Proposed Facility is depicted in Exhibit 3 (3G UMTS coverage) and Exhibit 5 (4G LTE coverage) to the Radio Frequency Statement. Applicable Federal Law – Telecommunications Act of 1996 The federal Telecommunications Act of 1996, 47 U.S.C. § 332 (“Act”), provides rights to wireless service providers and establishes limitations upon state and local zoning authorities with respect to applications for permits to construct personal wireless service facilities. This important law was enacted in part to prioritize and streamline proliferation of wireless technologies on a national basis.1 Thus, the Act limits local regulation of wireless communications facilities in pursuit of increasing deployment of the necessary wireless infrastructure. Rapid deployment of wireless communications facilities, like the Proposed Facility, is an important national issue, especially given the trend of Americans eliminating traditional landline telephone service in favor of wireless communications. The Center for Disease Control and Prevention (“CDC”) tracks “wireless substitution” rates as part of its National Health Interview Survey, and the CDC publishes the statistics every six months in its Wireless Substitution reports. The most recent report, issued on December 1, 2015, finds that 47.4% of American homes have only wireless telephones, and another 14.6% receive all or almost all calls on wireless telephones despite also having a landline.2 1 See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115-16 (2005) (explaining that Congress intended to promote rapid deployment of wireless technologies by removing impediments to construction imposed by local governments). 2 The CDC’s December 2015 Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, January-June 2015 is available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201512.pdf. 3 The Act defines the scope and parameters of the City’s review. Importantly, the Act prohibits a local government from denying an application for a wireless communications facility where doing so would “prohibit or have the effect of prohibiting the provision of personal wireless services.”3 Courts have found an “effective prohibition” exists where a wireless carrier demonstrates (1) a “significant gap” in wireless service coverage; and (2) that the proposed facility would provide the “least intrusive means,” in relation to the land use values embodied in local regulations, to provide the service coverage necessary to fill that gap.4 If a wireless carrier satisfies both of these requirements, state and local standards that would otherwise be sufficient to permit denial of the facility are preempted and the municipality must approve the wireless facility.5 When a wireless provider presents evidence of a significant gap and the absence of a less intrusive alternative, the burden shifts to the local government to prove that a less intrusive alternative exists. In order to meet this burden (and overcome the presumption in favor of federal preemption), the local government must show that another alternative that fills the significant gap in coverage is available, that it is technologically feasible, and that it is “less intrusive” than the proposed facility.6 AT&T has a significant service coverage gap. AT&T’s service coverage gap exists because existing radio frequency signals in this portion of the City are not strong enough to provide reliable in-building service in the gap area. The coverage gap is described in AT&T’s September 28, 2015 Radio Frequency Statement, which includes propagation maps to illustrate the gap.7 As explained in the Radio Frequency Statement, AT&T designs and builds its wireless network to ensure customers receive reliable in- building service quality. This is a standard benchmark in the wireless industry, and federal courts recognize that areas lacking reliable in-building wireless service qualify as service coverage gaps within the meaning of the Act.8 Federal courts regularly accept propagation maps like Exhibits 2-5 of AT&T’s Radio Frequency Statement as evidence of a service coverage gap that can support an effective prohibition claim under the Act. As the propagation maps in the record show, AT&T has a service coverage gap in 3G (UMTS) and 4G (LTE) service coverage in the vicinity of the Proposed Facility. Specifically, Exhibit 2 to AT&T’s Radio Frequency Statement demonstrates AT&T’s significant gap in in- 3 47 U.S.C. §332(c)(7)(B)(i)(II). 4 See e.g., Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 734-35 (9th Cir. 2005); Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009). 5 See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir. 2009). 6 Id., 572 F.3d at 998-999. 7 See AT&T Radio Frequency Statement filed with the City on January 22, 2016. 8 The in-building standard has been approved by the United States district courts within the Ninth Circuit. See, e.g., T-Mobile West Corp. v. City of Huntington Beach, No. CV 10-2835 CAS (Ex), 2012 U.S. Dist. LEXIS 148170, *11- 12 (C.D.Cal. Oct. 10, 2012) (“[p]roviding reliable in -building service in the area * * * is essential, and its absence constitutes a significant gap in coverage”). The same conclusion is reached nationwide. See, e.g., T-Mobile Northeast, LLC v. City Lowell, No. 11-11551-NMG, 2012 U.S. Dist. LEXIS 180210, *30-31 (D.Mass. Nov. 27 2012) (“courts that have addressed the issue have routinely concluded that a significant gap in in-building coverage may result in an effective prohibition of personal wireless services”). 4 building service coverage by the lack of UMTS (3G) indoor signal (depicted by green shading) near the Proposed Facility (denoted CLV1650 on the propagation maps). As you can see by the additional green-shaded area on Exhibit 3, this specific coverage gap will be closed after the Proposed Facility is on air. Similarly, AT&T’s significant gap in in-building service coverage is demonstrated by the lack of LTE (4G) indoor signal (depicted by green shading) near the Proposed Facility on Exhibit 4. As you can see by the additional green-shaded area on Exhibit 5, this specific coverage gap will be closed after the Proposed Facility is on air. AT&T’s Proposed Facility is the least intrusive means. Under the Act, AT&T seeks to identify the least intrusive means to close its service coverage gap. In adopting the least intrusive means test, the Ninth Circuit explained that the virtue of the test is that “it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials.”9 In the context of the Application, AT&T investigated several alternatives sites, worked with the City on an appropriate design, and concludes that the Proposed Facility is the least intrusive means to close its significant service coverage gap from among the available and feasible locations.10 The Planning Commission agreed, and the City has not identified any less intrusive locations. Because the Proposed Facility is least intrusive means by which AT&T can close its significant service coverage gap, federal law requires the City to approve AT&T’s Application. Appeal Issues The appellants’ grounds for their appeals lack merit as explained below and should be rejected. The issues raised by the appellants are animated by unfounded fears about radio frequency emissions, which cannot support denying of the Application. Moreover, whether or not the Council finds a code-based reason to disfavor AT&T’s Proposed Facility, the Council is preempted by the Act from taking action that would prohibit or have the effect of prohibiting AT&T from providing personal wireless service. The City cannot consider environmental effects of radio frequency emissions The appeals take aim primarily – if not exclusively – at fears about the effects of radio frequency emissions. During the Planning Commission hearing on the Application, some members of the public spoke in favor of the Proposed Facility, and some spoke against it. Those who spoke against it, including appellant Mr. Cleary, based their opposition on fears about the health effects of radio frequency emissions. Mr. Cleary referred to the Proposed Facility as a “cancer causing entity” that will be “messing with your DNA.” Another resident complained that a wireless telecommunications facility “causes radiation.” Another opposed AT&T’s Application because she does “not want to get sick.” Yet another opponent compared the radiation from a cell tower to dropping an atom bomb and said wireless telecommunications facilities “can cause cancers.” 9 Metro PCS, Inc., 400 F.3d at 734-35. 10 See Alternative Sites Analysis filed with the City on January 22, 2016. 5 But the City is preempted by federal law from considering these effects. The federal Telecommunications Act of 1996, 47 U.S.C. § 332 (“Act”), provides rights to wireless service providers and establishes limitations upon zoning authorities with respect to applications for permits to construct personal wireless service facilities. Specifically, the Act precludes state and local governments from considering any alleged health or environmental effects of RF emissions in making decisions as to the siting of wireless telecommunications facilities “to the extent such facilities comply with the FCC’s regulations concerning such emissions.”11 Here, it is beyond dispute that the proposed equipment will comply with applicable FCC limits. Under these regulations, antennas more than 10 meters above ground level, such as those on the Proposed Facility, are categorically excluded from routine monitoring requirements.12 Following the Planning Commission hearing and the appeals, and in order to alleviate public concerns and further demonstrate compliance with the FCC regulations, AT&T engaged Hammett & Edison, Inc., Consulting Engineers, to perform an engineering analysis of the Proposed Facility. According to the attached engineering analysis report by Hammett & Edison, the Proposed Facility will operate well within (and actually far below) all applicable FCC public and occupational exposure limits. In addition, Jonathan Kramer, who represents the church and describes himself as a national expert on RF transmissions, explained that the Proposed Facility will comply with applicable FCC regulations concerning radio frequency emissions. Moreover, the Planning Commission’s approval is subject to Condition of Approval No. 5, which requires AT&T to obtain a post- construction report showing RF emissions at or below levels provided by the FCC. Given the compliance with the FCC standards, the Application cannot be rejected based on health concerns of RF emissions. The Application cannot be rejected whether health concerns are raised explicitly or indirectly through some proxy such as “property values” or even, in some instances, aesthetics. For example, a federal district court in California has held that in light of federal preemption of RF emissions, “concern over the decrease in property values may not be considered as substantial evidence if the fear of property value depreciation is based on concern over the health effects caused by RF emissions.”13 Citing the applicable legislative history the court explained: * * * Significantly, the conference report on the [Act], adopted by Congress, makes clear that local government may not indirectly base its decision to deny an application to place a cell site upon concern over the environmental effects of RF emissions: The conferees intend section 332(c)(7)(b)(iv) to prevent a State or local government or its instrumentalities from basing the regulation of the placement, construction, or modification of CMS facilities directly or indirectly on the 11 See 47 U.S.C. § 332(c)(7)(B)(iv). 12 See 47 C.F.R. § 1.1307(b)(1) & Table 1. 13 AT&T Wireless Servs. of Cal., LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1159 (S.D. Cal. 2003) (quoting H.R. Conference Report No. 104-458, 201 (1996)). 6 environmental effects of radio frequency emissions if those facilities comply with the Commission’s regulations… H.R. Conference Report No. 104-458, 201 (1996) (emphasis added). Given this legislative history, the court concludes that concern over the decrease of property values may not be considered as substantial evidence if the fear of property value depreciation is based on concern over the health effects caused by RF emissions. Thus, direct or indirect concerns over the health effects of RF emissions may not serve as substantial evidence to support the denial of an application. Accordingly, when public testimony in the record is almost exclusively directed to health effects, there must be some legitimate reasons for rejecting the applications to avoid the conclusion that the denials were based on the impermissible health effects ground. * * *14 The court then analyzed the city’s argument that the facility at issue was not compatible with the neighborhood. The court concluded that the compatibility argument lacked evidence and that resident concerns about turning their neighborhood into “antenna alley” were based only on a fear of health effects. The same is true here. The public testimony during the Planning Commission hearing and the appeal issues are “based on the impermissible health effects ground.” In fact, the evidence shows that these are misperceptions. The claim raised by appellant Josephine Chan that property values may be negatively impacted by the Proposed Facility is merely an indirect way to raise concerns about radio frequency emissions. After all, the Proposed Facility is designed to mimic the appearance of a pine tree, and there is no reason to expect property values would decrease by the proximity to a new pine tree. To the extent that objections to this application are animated by concerns over RF frequency emissions, the Council cannot consider them. There is not substantial evidence to support the concern that property values would decrease The Act states that the City may deny AT&T’s application based only on “substantial evidence.”15 Even if we could ignore the obvious link between the concerns about the health effects of RF emissions and the assertion that property values will decrease (which case law and legislative history instruct we cannot), there still is no substantial evidence to support this speculation that property values would decrease. The “substantial evidence” requirement means that a local government’s decision must be “authorized by applicable local regulations and supported by a reasonable amount of evidence.”16 In other words, a local government must have specific reasons that are both consistent with the local regulations and supported by substantial evidence in the record to deny a permit. Courts within the Ninth Circuit and elsewhere have long agreed that 14 Id., at 1159-60 (internal citations omitted). Federal courts across the country have come to the same conclusion that concerns of RF emissions masked as claims of decreasing property values are not substantial evidence to support denial. See, e.g., Telespectrun, Inc. v. PSC, 227 F.3d 414, 424 (6th Cir. 2000); American Towers, Inc. v. Wilson County, 2014 U.S. Dist. LEXIS 131, *24-28 (M.D. Tenn. Jan. 2, 2014). 15 47 U.S.C. § 332(c)(7)(B)(iii). 16 Metro PCS, Inc., 400 F.3d at 725 (9th Cir. 2005). 7 a “generalized fear of decline in property values” does not constitute substantial evidence supporting the denial of a permit to install telecommunications facilities.17 In Madera County, the U.S. District Court for the Eastern District of California cited authority from the Second, Sixth, and Eleventh Circuits for the proposition that “generalized expressions of concern regarding aesthetics or the effect on property values” fail to meet the substantial evidence threshold.18 Appellant Ms. Chan has provided letters signed by real estate agents and brokers who assert that installing a 60-foot tall wireless telecommunications facility in this neighborhood will have a negative effect on property values. But these statements are not supported by any evidence. The statements do not consider that the Proposed Facility will appear as a pine tree. And there are no market studies of the area showing that property values in and around Temple City fall when a stealth facility (or a pine tree) is installed.19 In fact, the federal courts consistently hold that unsupported opinions about property values do not constitute substantial evidence.20 Moreover, such conjecture is contrary to the trend that more and more people want access to personal wireless services in their homes. Again, the CDC finds that near half of American homes have only wireless telephones.21 Thus, it seems that wireless connectivity can make a community more attractive for home buyers. Appellant Ms. Chan also provides one letter from realtor that was addressed to the Los Angeles Board of Supervisors in 2008. In that letter, the realtor claims that she “must disclose to potential buyers where there are cell antennas nearby.” But there is no requirement under California law that the seller of a home disclose the existence of a nearby cell tower or other wireless facility. To the contrary, the statutorily prescribed Real Estate Transfer Disclosure Statement, which contains an exhaustive list of the specific environmental and other issues that must be disclosed by home sellers in California, is notable for the conspicuous absence of any 17 See California RSA No. 4 v. Madera County, 332 F.Supp.2d 1291, 1309 (E.D. Cal. 2003) (citing Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 409 (3d Cir.1999)). 18 Id. at 1308 (citing Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2nd Cir. 1999), Telespectrum v. Public Service Com'n. of Kentucky, 227 F.3d 414 (6th Cir. 2000), and Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1219 (11th Cir. 2002)); see also T-Mobile USA, Inc. v. The City of Anacortes, No. C07-1644RAJ, 2008 WL 3412382, *5 (W.D. Wash. July 18, 2008) (holding that citizen comments regarding a proposed facility’s effect on property values did not constitute substantial evidence upon which to deny a permit where the provider showed that it had made a good faith effort to identify and evaluate less intrusive alternatives), affirmed 572 F.3d 987 (9th Cir. 2009. 19 We note that appellant Ms. Chan attached to her appeal what appears to be part of a presentation that refers to studies performed by Sandy Bond. But these studies, which were performed many years ago, mainly in New Zealand, rely heavily on fears about the health effects of radio frequency emissions. These reports (which are not part of the record here) considered the impact of very tall non-stealth towers. One report that Sandy Bond performed in Florida specifically warns that the results cannot be generally applied. Her studies have no application here and now, where AT&T seeks to install a facility that will appear as a pine tree in a California neighborhood in 2016. This is not market study research that comes anywhere close to approximating Temple City residential properties before and after a stealth facility is constructed, so it is not substantial evidence. 20 See Madera County. 21 See n.2, supra. 8 mention of cell towers.22 And, to the extent it may be argued that a cell tower falls into the category of a “nuisance” that must be disclosed, such an argument must fail as a matter of law based on section 3482 of the California Civil Code, which states that “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Such express authority for the construction and operation of cell towers is found in the Act, which not only authorizes but encourages the proliferation of wireless facilities by placing stringent limitations on the ability of local governments to regulate them.23 In addition, at least one California appeals court has held that, even disregarding the issue of statutory authorization, a lawfully existing cell tower next-door to a residential property cannot, as a matter of law, constitute a nuisance simply because the former, even if aesthetically displeasing, does not constitute a substantial interference with the enjoyment of the latter.24 Height of the Proposed Facility The appellants complain that the Proposed Facility will be taller than allowed under new provisions of the City’s Code, effective this year. But as the City has clearly explained, AT&T’s Application was filed long before the new provisions were effective. The key to the height issue is aesthetics. AT&T is proposing an attractive faux pine tree facility in order to be the least intrusive means by which AT&T can close its significant service coverage gap. At the Planning Commission, City Staff agreed, describing the Proposed Facility as “the best aesthetic response” to AT&T need. Moreover, the City staff requested AT&T to provide additional height in order to better camouflage the Proposed Facility. And even with the additional height requested by City staff, this monopine will be shorter than the existing palm tree that is also in the church’s courtyard. Appellant Ms. Chan points to a decision by a Massachusetts state appeals court that concluded that a town properly ordered removal of a wireless telecommunications facility that far exceeded the applicable height limit and that this did not cause an effective prohibition within the meaning of the Act.25 But that case is inapposite to AT&T’s Application. There, the wireless services provider built two towers that were well above the height limit at the time they were constructed (the height limit was 35 feet, and the towers were 100 and 120 feet tall). Here, AT&T’s Application predated the new height limit, so the City is properly processing the Application without applying the new and more restrictive height limit. Furthermore, the Massachusetts court decision is inapplicable for two reasons that have since been fully developed in the case law and by FCC order. First, the Ninth Circuit Court of Appeals has made clear that a code-based reason to disfavor an application is not enough to avoid 22 See Cal. Civ. Code § 1102.6. 23 See 47 U.S.C. § 332(c)(7). 24 Oliver v. AT&T Wireless Services, 76 Cal. App. 4th 521, 525, 535 (Cal. App. 3d Dist. 1999). 25 Appellant provides Building Com’r of Franklin v. Dispatch Communs. of New England, Inc., 48 Mass. App. Ct. 709 (2000). 9 an effective prohibition claim.26 Second, the Massachusetts case concluded “that with towers of three different providers in the Forge Hill area, Nextel cannot show that the town has prohibited personal wireless services.”27 That conclusion rested upon case law that had developed in the late 1990s where some federal courts held that an effective prohibition could only be proved if the area is not already served by any wireless services provider.28 Under that so-called “one provider rule,” a claim for effective prohibition was doomed even if only one wireless provider served the area.29 But just two years after this Massachusetts court ruling, the First Circuit Court of Appeals (where Massachusetts is located) rejected the one-provider rule, explaining that “[a] straightforward reading [of the Act] is that ‘services’ refers to more than one carrier. Congress contemplated that there be multiple carriers competing to provide services to customers.”30 Indeed, this comports with one of the Act’s primary purposes to “encourage competition and provide services to the largest feasible number of users.”31 Even so, these conflicting interpretations of the Act’s effective prohibition provision persisted until 2009. Then, as part of its Shot Clock Order, the FCC formally ruled that “this limitation of State/local authority applies not just to the first carrier to enter into the market, but also to all subsequent entrants.”32 Thus, had the same Massachusetts court upon which appellant relies considered the same question today, it would have to consider the evidence supporting an effective prohibition of that carrier’s services. The case is simply outdated and its holding on this point is bad law. AT&T’s significant service coverage gap AT&T’s Radio Frequency Statement and the propagation maps attached to it demonstrate its significant service coverage gap. But the appellants argue that AT&T does not have a coverage gap in this portion of Temple City. They point to online wireless coverage maps for Temple City that they are not entirely consistent with these propagation maps in the record. As explained in Exhibit 1 to AT&T’s Radio Frequency Statement, AT&T’s online wireless coverage map can be used by customers to obtain a high-level approximation of wireless coverage, but it does not show actual coverage, which may be affected by a number of existing conditions. While this map helps wireless customers identify general areas where AT&T’s 26 See City of Anacortes, 572 F.3d at 999 (held city’s denial constituted an effective prohibition in violation of the Act even though facts regarding height and visibility of the proposed facility qualified as substantial evidence to support denial); City of Palos Verdes Estates, 583 F.3d at 725 . 27 Id., at 719. 28 See, e.g., APT Pittsburgh L.P. v. Penn Township Butler County of Pa., 196 F.3d 469, 480 (3d Cir. 1999); AT&T Wireless PCS, Inc. v. City Council of Va. Beach , 155 F.3d 423, 428-29 (4th Cir. 1998). 29 Id. 30 Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 634 (1st Cir. 2002) (also holding, “[t]hat one carrier provides some service in a geographic gap should not lead to abandonment of examination of the effect on wireless services for other carriers and their customers”). 31 47 U.S.C. § 332(a)(3). 32 See In Re: Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Etc., FCC 09-99 (FCC November 18, 2009), at ¶¶54-65. And in City of Arlington v. FCC, 133 S.Ct. 1863 (2013), the United States Supreme Court upheld the FCC’s interpretations of the Act in its Shot Clock Order. 10 wireless network provides some outdoor coverage, the coverage maps are not intended to show actual customer performance on the network, nor are they intended to show future network needs or build requirements inside or outside of existing AT&T coverage areas. The “learn more” links on the wireless coverage map website and the statement “Map displays approximate outdoor coverage and actual coverage may vary” below of the map provide further explanation for the purpose and limitations of the online wireless coverage map. Significantly, this information states “[t]here are gaps in coverage that are not shown by this high-level approximation” and “[a]ctual coverage may differ from map graphics and may be affected by terrain, weather, network changes, foliage, buildings, construction, signal strength, high-usage periods, customer equipment, and other factors.” Indeed, as stated in Exhibit 1 to AT&T’s Radio Frequency Statement, customers may experience service problems even in locations where the online wireless coverage map indicates that coverage is available. Conversely, AT&T’s propagation maps are created using industry-standard tools, including computer models and data sources, so that they depict and predict service coverage in a specific area based on specific network design engineering criteria (service coverage levels measured in dBm) and specific existing conditions (such as existing terrain, clutter, etc.). AT&T uses these data and tools to evaluate network performance and needs for new or upgraded wireless telecommunications facilities. And, again, while the maps on the website are a high- level approximation of outdoor coverage, AT&T needs to close its gap by providing in-building service coverage. This distinction between maps developed by network design engineers using detailed site- specific data and online approximations of coverage has been considered by the United States District Court for the Central District of California in the context of evaluating the existence of a significant service coverage gap under the Act. In the Huntington Beach case, the court examined T-Mobile’s online “Personal Coverage Check” (PCC) maps and its detailed propagation maps.33 This analysis came in the context of a similar concern about T-Mobile’s maps as appellants now raise about AT&T’s maps. The court explained that T-Mobile’s web- based maps allow customers to estimate available wireless coverage, whereas its propagation maps are more detailed based on technical analysis of the wireless network. Finding that T- Mobile’s PCC maps and propagation maps “are designed for and serve different purposes,” the court further explained that the propagation maps are more accurate in predicting radio frequency coverage at specific signal strengths to provide reliable residential in-building coverage.34 The court concluded that T-Mobile’s propagation maps, and not its PCC maps, should be relied upon to evaluate service coverage gaps.35 The same analysis and conclusion apply here. AT&T’s propagation maps are used to design AT&T’s wireless network based on specific data using engineering tools. AT&T’s online wireless coverage maps are approximations and are not used for network design. Importantly, 33 Huntington Beach, 2012 U.S. Dist. LEXIS 148170, at *31-38. 34 Id., at *37-38. 35 Id., at *38. 11 AT&T’s propagation maps illustrate differences in signal strength as between in-building, in- vehicle, and outdoor coverage. In evaluating whether AT&T has a significant service coverage gap in the vicinity of the Proposed Facility, the city should look to AT&T’s propagation maps, which clearly show a significant in-building service coverage gap.36 Conclusion AT&T is diligently upgrading its network to meet the growing wireless communications demand within Temple City. It is doing so in a manner that takes prudent and careful consideration of the aesthetic impacts of its facilities and the values the city seeks to promote. AT&T’s proposed design is fully consistent with the city’s land use regulations and its General Plan, and the Proposed Facility is the least intrusive means by which AT&T can fill the significant service coverage gap in the area. I urge the City Council to uphold the Planning Commission’s unanimous decision to approve AT&T’s Application. Very truly yours, Michael van Eckhardt Executive Director – Senior Legal Counsel AT&T Attachment: Hammett & Edison engineering report cc: Gregory M. Murphy, Esq., Assistant City Attorney Adam Gulick, Associate Planner 36 See AT&T Radio Frequency Statement. AT&T Mobility • Proposed Base Station (Site No. CLV1650) 5319 Halifax Road • Temple City, California P7QE Page 1 of 3 Statement of Hammett & Edison, Inc., Consulting Engineers The firm of Hammett & Edison, Inc., Consulting Engineers, has been retained on behalf of AT&T Mobility, a personal wireless telecommunications carrier, to evaluate the base station (Site No. CLV1650) proposed to be located at 5319 Halifax Road in Temple City, California, for compliance with appropriate guidelines limiting human exposure to radio frequency (“RF”) electromagnetic fields. Executive Summary AT&T proposes to install directional panel antennas on a tall steel pole, configured to resemble a pine tree, to be sited at 5319 Halifax Road in Temple City. The proposed operation will comply with the FCC guidelines limiting public exposure to RF energy. Prevailing Exposure Standards The U.S. Congress requires that the Federal Communications Commission (“FCC”) evaluate its actions for possible significant impact on the environment. A summary of the FCC’s exposure limits is shown in Figure 1. These limits apply for continuous exposures and are intended to provide a prudent margin of safety for all persons, regardless of age, gender, size, or health. The most restrictive FCC limit for exposures of unlimited duration to radio frequency energy for several personal wireless services are as follows: Wireless Service Frequency Band Occupational Limit Public Limit Microwave (Point-to-Point) 5–80 GHz 5.00 mW/cm2 1.00 mW/cm2 WiFi (and unlicensed uses) 2–6 5.00 1.00 BRS (Broadband Radio) 2,600 MHz 5.00 1.00 WCS (Wireless Communication) 2,300 5.00 1.00 AWS (Advanced Wireless) 2,100 5.00 1.00 PCS (Personal Communication) 1,950 5.00 1.00 Cellular 870 2.90 0.58 SMR (Specialized Mobile Radio) 855 2.85 0.57 700 MHz 700 2.40 0.48 [most restrictive frequency range] 30–300 1.00 0.20 General Facility Requirements Base stations typically consist of two distinct parts: the electronic transceivers (also called “radios” or “channels”) that are connected to the traditional wired telephone lines, and the passive antennas that send the wireless signals created by the radios out to be received by individual subscriber units. The transceivers are often located at ground level and are connected to the antennas by coaxial cables. A small antenna for reception of GPS signals is also required, mounted with a clear view of the sky. Because of the short wavelength of the frequencies assigned by the FCC for wireless services, the AT&T Mobility • Proposed Base Station (Site No. CLV1650) 5319 Halifax Road • Temple City, California P7QE Page 2 of 3 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 the horizon, with very little energy wasted toward the sky or the ground. This means that it is generally not possible for exposure conditions to approach the maximum permissible exposure limits without being physically very near the antennas. Computer Modeling Method The FCC provides direction for determining compliance in its Office of Engineering and Technology Bulletin No. 65, “Evaluating Compliance with FCC-Specified Guidelines for Human Exposure to Radio Frequency Radiation,” dated August 1997. Figure 2 describes the calculation methodologies, reflecting the facts that a directional antenna’s radiation pattern is not fully formed at locations very close by (the “near-field” effect) and that at greater distances the power level from an energy source decreases with the square of the distance from it (the “inverse square law”). The conservative nature of this method for evaluating exposure conditions has been verified by numerous field tests. Site and Facility Description Based upon information provided by AT&T, including zoning drawings by National Engineering & Consulting, Inc., dated March 15, 2016, it is proposed to install twelve CCI Model HPA-65R-BUU- H8 directional panel antennas on a new steel pole, configured to resemble a 70-foot pine tree, to be sited in the courtyard of the Bethlehem Lutheran Church, located at 5319 Halifax Road in Temple City. The antennas would employ up to 4° downtilt, would be mounted at an effective height of about 50 feet above ground, and would be oriented in groups of four toward 110°T, 220°T, and 340°T, to provide service in all directions. The maximum effective radiated power in any direction would be 14,460 watts, representing simultaneous operation at 1,460 watts for WCS, 3,370 watts for AWS, 6,320 watts for PCS, 1,000 watts for cellular, and 2,310 watts for 700 MHz service. Also proposed to be mounted on the pole, at an effective height of about 37 feet above ground, is a microwave “dish” antenna, for interconnection of this site with others in the AT&T network. There are reported no other wireless telecommunications base stations at the site or nearby. Study Results For a person anywhere at ground, the maximum RF exposure level due to the proposed AT&T operation is calculated to be 0.046 mW/cm2, which is 4.6% of the applicable public exposure limit. The maximum calculated level at the second-floor elevation of any nearby church building is 7.4% of the public exposure limit. The maximum calculated level at the second-floor elevation of any nearby residence* is 2.4% of the public exposure limit. It should be noted that these results include several * Located at least 70 feet away, based on photographs from Google Maps. AT&T Mobility • Proposed Base Station (Site No. CLV1650) 5319 Halifax Road • Temple City, California P7QE Page 3 of 3 “worst-case” assumptions and therefore are expected to overstate actual power density levels from the proposed operation. No Recommended Mitigation Measures Due to their mounting location and height, the AT&T antennas would not be accessible to unauthorized persons, and so no mitigation measures are necessary to comply with the FCC public exposure guidelines. It is presumed that AT&T will, as an FCC licensee, take adequate steps to ensure that its employees or contractors receive appropriate training and comply with FCC occupational exposure guidelines whenever work is required near the antennas themselves. Conclusion Based on the information and analysis above, it is the undersigned’s professional opinion that operation of the base station proposed by AT&T Mobility at 5319 Halifax Road in Temple City, 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 calculated level in publicly accessible areas is much less than the prevailing standards allow for exposures of unlimited duration. This finding is consistent with measurements of actual exposure conditions taken at other operating base stations. Authorship The undersigned author of this statement is a qualified Professional Engineer, holding California Registration Nos. E-13026 and M-20676, which expire on June 30, 2017. 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 correct. _________________________________ William F. Hammett, P.E. 707/996-5200 March 29, 2016 FCC Radio Frequency Protection Guide FCC Guidelines Figure 1 Frequency (MHz) 1000 100 10 1 0.1 0.1 1 10 100 103 104 105 Occupational Exposure Public Exposure PCS CellFM PowerDensity(mW/cm2)The U.S. Congress required (1996 Telecom Act) the Federal Communications Commission (“FCC”) to adopt a nationwide human exposure standard to ensure that its 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 1986 by the Congressionally chartered National Council on Radiation Protection and Measurements (“NCRP”). 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 Radio Frequency Electromagnetic Fields, 3 kHz 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 persons, regardless of age, gender, size, or health. As shown in the table and chart below, separate limits apply for occupational and public exposure conditions, with the latter limits (in italics and/or dashed) up to five times more restrictive: Frequency Electromagnetic Fields (f is frequency of emission in MHz) Applicable Range (MHz) Electric Field Strength (V/m) Magnetic Field Strength (A/m) Equivalent Far-Field Power Density (mW/cm2) 0.3 – 1.34 614 614 1.63 1.63 100 100 1.34 – 3.0 614 823.8/ f 1.63 2.19/ f 100 180/ f2 3.0 – 30 1842/ f 823.8/ f 4.89/ f 2.19/ f 900/ f2 180/ f2 30 – 300 61.4 27.5 0.163 0.0729 1.0 0.2 300 – 1,500 3.54 f 1.59 f f /106 f /238 f/300 f/1500 1,500 – 100,000 137 61.4 0.364 0.163 5.0 1.0 Higher levels are 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, and higher levels also are allowed for exposures to small areas, such that the spatially averaged levels do not exceed the limits. However, neither of these allowances is incorporated in the conservative calculation formulas in the FCC Office of Engineering and Technology Bulletin No. 65 (August 1997) for projecting field levels. Hammett & Edison has built those formulas into a proprietary program that calculates, at each location on an arbitrary rectangular grid, the total expected power density from any number of individual radio sources. The program allows for the description of buildings and uneven terrain, if required to obtain more accurate projections. RFR.CALC ™ Calculation Methodology Assessment by Calculation of Compliance with FCC Exposure Guidelines Methodology Figure 2 The U.S. Congress required (1996 Telecom Act) the Federal Communications Commission (“FCC”) to adopt a nationwide human exposure standard to ensure that its licensees do not, cumulatively, have a significant impact on the environment. The 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 health. Higher levels are 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 the near field zone of panel (directional) and whip (omnidirectional) antennas, typical at wireless telecommunications base stations, as well as dish (aperture) antennas, typically used for microwave links. The antenna patterns are not fully formed in the near field at these antennas, and the FCC Office of Engineering and Technology Bulletin No. 65 (August 1997) gives suitable formulas for calculating power density within such zones. For a panel or whip antenna, power density S = 180 BW 0.1 Pnet D 2 h , in mW /cm 2, and for an aperture antenna, maximum power density Smax = 0.1 16 Pnet h 2 , in mW /cm 2, where BW = half-power beamwidth of the antenna, in degrees, and Pnet = net power input to the antenna, in watts, D= distance from antenna, in meters, h= aperture height of the antenna, in meters, and = aperture efficiency (unitless, typically 0.5-0.8). The factor of 0.1 in the numerators converts to the desired units of power density. Far Field. OET-65 gives this formula for calculating power density in the far field of an individual RF source: power density S = 2.56 1.64 100 RFF 2 ERP 4 D2 , in mW /cm 2, where ERP = total ERP (all polarizations), in kilowatts, RFF = relative field factor at the direction to the actual point of calculation, and D= distance from the center of radiation to the point of calculation, in meters. The factor of 2.56 accounts for the increase in power density due to ground reflection, assuming a reflection coefficient of 1.6 (1.6 x 1.6 = 2.56). The factor of 1.64 is the gain of a half-wave dipole relative 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 grid, the total expected power density from any number of individual radiation sources. The program also allows for the description of uneven terrain in the vicinity, to obtain more accurate projections. 1 AT&T Project Number: CLV1650 Authorized Agent for AT&T Mobility AT&T Project Number:CLV1650 AT&T Project Name:Temple Beth David City of Temple City Amended Application for Conditional Use Permit # PL1300192 Project Information and Justification AT&T Mobility (AT&T) is requesting approval of above referenced Conditional Use Permit for the operation and construction of an unmanned wireless telecommunications facility and presents the following amended project information for your consideration. Project Specific Location Address: 5319 Halifax Road APN: 8585-020-011 Zoning: R1 Project Authorized Representative Jerry Ambrose, Eukon Group Address: 3905 State St., Ste 7-188, Santa Barbara, CA 93105 jambrose@wireless01.com / (805) 637-7407 AT&T Mobility Contact Andrew Hollihan 12900 Park Plaza Drive, Cerritos, CA 90703 (562) 293-7819 Project Description AT&T is proposing a 60-ft high antenna support structure disguised as a pine tree (“monopine”) with twelve (12), eight foot (8-ft) panel antennas, split into three (3) sectors of four (4) antennas each, ancillary antenna support equipment, and ground mounted equipment cabinets within an approximate 375 sf. walled lease enclosure. The antennas will be enclosed with “antenna socks” that match the design of the tree foliage. The “monopine” design was selected as the best solution for concealing antennas, mitigating potential adverse visual impacts, blending with the existing environment, and obscuring the symmetric nature of the antennas from public view. The proposed “monopine” will be set back approximately 155’ from Freer St. and 160’ from Halifax Rd. The ground mounted equipment will be placed behind a new 7’ high decorative CMU wall (and behind an existing 6’ – 7’ dense landscape hedge). No existing parking will be impacted or deleted. 2 AT&T Project Number: CLV1650 Project Objectives A detailed description of project objectives is enclosed in the RF Statement prepared by AT&T’s radio frequency engineer, Adil Qazi. Overall Benefits to the Community This is a critical time in the evolution of technology. People are less tethered to a home or desk phone and need access to the people and information anytime, anywhere. This requires adding new and improving existing wireless facilities to handle voice and data faster, and installing new fiber optic cables and associated equipment to route and direct traffic on our wireline network. Wireless data traffic on the AT&T network grew more than 100% from 2007 through 2014, largely due to the increasing popularity of advanced smartphones. What does this build mean for the Community: Since 2007, AT&T has invested more capital into the U.S. economy than any other public company. In a July 2012 report, the Progressive Policy Institute ranked AT&T No. 1 on its list of U.S. “Investment Heroes.” This build means our customers are expected to see better coverage, expanded broadband connections, fewer dropped calls, and faster speeds when streaming and downloading media. Investment in infrastructure enhances the community tax base. Approximately 47% of Americans have chosen to be wireless only and have given up their landlines. The new generation of homebuyers relies to an even greater degree on wireless. AT&T has designed solutions to help improve public safety operations by enabling voice, video and data communications throughout agencies. This should benefit customers not only in everyday communications, but also in emergency situations. Wireless Emergency Alert (WEA) systems notify the public (Emergency Text Messaging). Utilized during recent events in Boston, MA. Safety – RF is Radio The FCC regulates RFemissions toensurepublicsafety. Standards havebeenset based on peer-reviewed scientific studies and recommendations from a variety of oversight organizations, including the National CouncilonRadiationProtectionandMeasurements(NCRP),AmericanNationalStandardsInstitute(ANSI), Institute of Electrical and Electronics Engineers (IEEE), Environmental Protection Agency (EPA), Federal Drug Administration (FDA),Occupational Safety andHealth Administration (OSHA), and National Institute for Occupational Safety and Health (NIOSH). Although the purview of the public safety of RF emissions by the FCC was established by the Telecommunications Act of 1996, these standards remain under constant scrutiny. All AT&T cell sites operate well below these standards, and the typical urban cell site operates hundreds or even thousands of times below the FCC’s limits for safe exposure. 3 AT&T Project Number: CLV1650 Alternative Site Analysis Numerous site locations were considered in the due diligence process of finding the best location to close the Significant Gap in service. Refer to the attached “Alternative Sites Analysis” for details. AT&T Mobility Company Information AT&T is recognized as one of the leading worldwide providers of IP-based communications services to businesses. We have the nation's largest 4G network—covering more than 292 million people and serve 105.2 million wireless subscribers. AT&T will operate this facility in full compliance with the regulations and licensing requirements of the FCC, Federal Aviation Administration (FAA) and the CPUC, as governed by the Telecommunications Act of 1996, and other applicable laws. The enclosed application is presented for your consideration. AT&T requests approval of Conditional Use Permit to build the proposed facility. Please contact me at (805) 637-7407 with any questions or request for additional information. Respectfully submitted, Jerry Ambrose, Eukon Group Authorized Agent of AT&T Mobility Alternative Sites Analysis AT&T Mobility Wireless Telecommunications Facility at Bethlehem Lutheran Church 5319 Halifax Road Temple City, CA Site ID: CLV1650 Introduction New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T”) has a significant gap in its service coverage in Temple City. AT&T proposes to install a new 60-foot tall wireless communications facility (“WCF”) disguised as a eucalyptus tree on the grounds of the Bethlehem Lutheran Church, 5319 Halifax Road (“Proposed Facility”) as a means to fill this gap in coverage. This property is located in a residential zone in the city, roughly one-third of a mile to the southeast from Live Oak Park. The Proposed Facility consists of twelve panel antennas (three sets of four antennas) mounted on a pole and camouflaged as a eucalyptus tree (“monoeucalyptus”), with the related equipment to be housed entirely within a 7-foot high wall enclosure adjacent to the monoeucalyptus. The Proposed Facility is designed to minimize visual impacts, blend within the existing environment, and obscure the antennas. The antennas will be enclosed within antenna socks colored to match the tree foliage and faux branches and leaves will provide additional concealment. The Proposed Facility is the least intrusive means to fill the significant gap of the alternatives investigated by AT&T as explained below. Objective AT&T Mobility has identified a significant gap in its service coverage in Temple City, in an area roughly bordered by Bogue Street to the north, El Monte Avenue to the east, Hallwood Drive to the south, and Glickman Avenue to the west. The Proposed Facility will improve coverage to the surrounding residential neighborhoods with over 340 homes, places of worship, a residential health care facility, and various other points of interest in the immediate vicinity. The service coverage in this portion of Temple City is described in the accompanying Radio Frequency Statement. The most recent traffic data available from Google Earth Pro for this area indicate that the average traffic along Arden Drive near Freer Street was approximately 3,266 vehicles per day in 2010. Methodology and Zoning Criteria The location of a WCF to fill a significant gap in coverage is dependent upon topography, zoning, existing structures, collocation opportunities, available utilities, access and a willing landlord. Wireless communication is line-of-sight technology that requires WCFs to be in relatively close proximity to the wireless handsets to be served. AT&T seeks to fill a significant gap in service coverage using the least intrusive means under the values expressed in the Temple City Municipal Code (“Code”). Thus, AT&T is guided by Chapter 9.1 of the Code (Zoning Code), and in particular, Section 9-1F-10 regarding conditional use permits. Analysis AT&T investigated potential alternative sites for facilities to fill the identified coverage gap in this portion of Temple City. AT&T searched for, but did not find, feasible collocation opportunities in and around the coverage objective. Due to the relatively few non-residential properties in this area, AT&T also analyzed alternative sites in commercial areas in neighboring El Monte. The following map shows the locations of the Proposed Facility and the alternative sites that AT&T investigated. The alternatives are discussed in the analysis which follows. Location of Candidate Sites Proposed Facility – Bethlehem Lutheran Church, 5319 Halifax Road Conclusion: Based upon location, a willing landlord and the superior coverage as shown in the proposed coverage map included in AT&T’s Radio Frequency Statement, the Proposed Facility is the least intrusive means for AT&T to meet its service coverage objective. This church property is located at the intersection of Halifax Road and Freer Street, in an R-1 zoning district. AT&T proposes to install twelve panel antennas (three sectors of four antennas each) mounted on a pole and camouflaged as a eucalyptus tree, with the related equipment to be housed entirely within a 7-foot high wall enclosure adjacent to the monoeucalyptus. AT&T’s antennas will have a top height of 54 feet, and monoeucalyptus will have six additional feet of foliage at the top. The Proposed Facility is designed to minimize visual impacts, blend within the existing environment, and obscure the antennas. The antennas will be enclosed within antenna socks colored to match the tree foliage and faux branches and leaves will provide additional concealment. In addition, the Proposed Facility will be considerably shorter than the 71-foot tall existing live palm tree on this property. The Proposed Facility is the least intrusive means to fill the significant gap of the alternatives investigated by AT&T. Alternative Site 1 – Live Oak Park Conclusion: Not feasible This park is located approximately one third of a mile to the northwest of the Proposed Facility. Due to its location in the extreme northwest portion of AT&T’s significant service coverage gap, a WCF here would not meet AT&T’s service objective. Alternative Site 2 – Santa Anita Convalescent Hospital Conclusion: Not feasible This care facility is located across Graecwood Avenue from Live Oak Park. The property houses existing WCFs. However, due to the location in the extreme northwest portion of AT&T’s significant service coverage gap, a WCF here would not meet AT&T’s service objective. Alternative Site 3 – Jantek Electronics, 4820 Arden Drive, El Monte Conclusion: Unavailable This commercial property is located in neighboring El Monte, almost a half mile to the south of the Proposed Facility. This property is located in El Monte, CA adjacent to a residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts. Alternative Site 4 – Bank of America, 10426 Lower Azusa Road, El Monte Conclusion: Not feasible; not available This bank is located in neighboring El Monte, a half mile to the south of the Proposed Facility. The property owner was not interested in leasing space to AT&T for an WCF. In addition, due to its location well to the south of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Alternative Site 5 – Hy’s Liquor, 10336 Lower Azusa Road, El Monte Conclusion: Not feasible; not available This commercial use is located in neighboring El Monte, a half mile to the south of the Proposed Facility. Due to its location well to the south of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Further, this property is located in El Monte, CA adjacent to an R-3 residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts, including R-3 zones. Alternative Site 6 – Driftwood Dairy, 10724 Lower Azusa Road, El Monte Conclusion: Not feasible This commercial property is located in neighboring El Monte, approximately six-tenths of a mile to the southeast of the Proposed Facility. Due to its location well to the southeast of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Further, this property is located in El Monte, CA across the street from an R-1A residential zoning district, and Section 17.82.080.A.2 of the El Monte Municipal Code prohibits rooftop WCFs within 100 feet of residential zoning districts, including R-1A zones. Alternative Site 7 – Vons Trucking Center, 10150 Lower Azusa Road, El Monte Conclusion: Not feasible This trucking facility is located in neighboring El Monte, approximately six-tenths of a mile to the southwest of the Proposed Facility. In addition, this location is too close to an existing AT&T facility, which is inconsistent with the coverage objective. Alternative Site 8 – Triumphant Church, 5221 El Monte Avenue Conclusion: Not feasible This church is located about a third of a mile to the east of the Proposed Facility. Due to its location so far to the east, a WCF here would not close AT&T’s significant service coverage gap. In addition, the City Council previously denied T-Mobile’s application seeking to place a WCF here. Alternative Site 9 – Cleminson Elementary School Conclusion: This school is located over half a mile to the east of the Proposed Facility. Due to its location to the east of AT&T’s service objective, a WCF here would not close AT&T’s significant service coverage gap. Conclusion The Proposed Facility is the least intrusive means by which AT&T can close its significant service coverage gap in this portion of Temple City. AT&T Mobility Radio Frequency Statement 5319 Halifax Road, Temple City, CA STATEMENT OF ADIL QAZI I am the AT&T radio frequency engineer assigned to the proposed wireless communications facility at 5319 Halifax Road, Temple City, CA (the "Property"). Based on my personal knowledge of the Property an d w ith AT&T's wireless network, as well as my review of AT&T's records with res pect to the Property and its wire less communications fac ilities in the surroundi ng area, I have concluded that the work associated with this permit request is needed to close a s ignificant service coverage gap in an area roughly bordered by Live Oak Street Street to the north, McClintock Avenue to the east, Fairhall Street to the south, and Ryland Avenue and Zadell Avenue to the west. To remedy this service coverage gap, AT&T needs to construct a n ew wireless communications fac ility. The serv ice coverage gap is caused by inadequate infrastructure in the area. As explained further m Exhibit 1, AT&T's existing facilities cannot adequately serve its customers in the desired area of coverage, let alone address rapid ly increasing data usage. T he site wi ll not o nl y close the gap in coverage and help address rapidly in creas ing data usage driven by smart phone and tablet usage , but it will a lso include 4G LTE service coverage. This site is part of an effort to fully deploy 4G LTE techno logy in the area. AT&T uses industry standard propagation too ls to identify the areas in its network where signal strength is too weak to provide reliable in-bui lding service quality. This informat ion is developed from many sources including terrain and clutter databases , wh ich simulate the env iro nment, and propagation models that si mulate signal propagation in the presence of terrain and clutter variation. AT&T designs and builds its wireless network to ensure customers receive reliable in-building serv ice qual ity. In- buildi ng service is critical as customers increasingly use their mobile phones as their primary communication device (approximately 45% of American households are now wire less on ly) and rely o n their mobile phones to do more (E91 1, GPS, web access, text, etc.). Exhibit 2 is a map of the existing UMTS 3G service coverage (without the proposed installation at the Property) in the area at issu e. It includes serv ice coverage provided by existing AT&T s ites. The g reen shaded areas depict areas within a s ignal strength range that provide acceptable in-bu ilding serv ice coverage. In-building coverage means customers are able to place or receive a call on the ground floor of a building. The yellow shaded areas depict areas within a si&111a l stre ngth range that provide acceptable in-vehicle service coverage. In these areas, an AT&T customer should be able to successfully place or receive a call within a vehicle. The lavender shading depicts areas within a signal strength range in which a customer might have difficu lty recei vi ng a con sistently acceptable leve l of servi ce. The EXHIBIT 1 Prepared by AT&T Mobility AT&T’s digital wireless technology converts voice or data signals into a stream of digits to allow a single radio channel to carry multiple simultaneous signal transmissions. This technology allows AT&T to offer services such as secured transmissions and enhanced voice, high-speed data, texting, video conferencing, paging and imaging capabilities, as well as voicemail, visual voicemail, call forwarding and call waiting that are unavailable in analog-based systems. With consumers’ strong adoption of smartphones, customers now have access to wireless broadband applications, which consumers utilize at a growing number. Mobile data traffic in the United States grew by 75,000 percent over a six-year span, from 2001-2006. And in the eight years that followed, mobile data traffic on AT&T’s national wireless network increased 100,000 percent (from 2007-2014). The FCC noted that U.S. mobile data traffic grew almost 300% in 2011, and driven by 4G LTE smartphones and tablets, traffic is projected to grow an additional 16-fold by 2016. Mobile devices using AT&T’s technology transmit a radio signal to antennas mounted on a tower, pole, building, or other structure. The antenna feeds the signal to electronic devices housed in a small equipment cabinet, or base station. The base station is connected by microwave, fiber optic cable, or ordinary copper telephone wire to the Radio Network Controller, subsequently routing the calls and data throughout the world. The operation of AT&T’s wireless network depends upon a network of wireless communications facilities. The range between wireless facilities varies based on a number of factors. The range between AT&T mobile telephones and the antennas in and nearby Temple 2 City, for example, is particularly limited as a result of topographical challenges, blockage from buildings, trees, and other obstructions as well as the limited capacity of existing facilities. To provide effective, reliable, and uninterrupted service to AT&T customers in their cars, public transportation, home, and office, without interruption or lack of access, coverage must overlap in a grid pattern resembling a honeycomb. In the event that AT&T is unable to construct or upgrade a wireless communications facility within a specific geographic area, so that each site’s coverage reliably overlaps with at least one adjacent facility, AT&T will not be able to provide adequate personal wireless service to its customers within that area. Some consumers will experience an abrupt loss of service. Others will be unable to obtain reliable service, particularly if they are placing a call inside a building. Service problems occur for customers even in locations where the coverage maps on AT&T’s “Coverage Viewer” website appear to indicate that coverage is available. As the legend to the Coverage Viewer maps indicates, these maps depict a high-level approximation of coverage, which may not show gaps in coverage; actual coverage in an area may differ substantially from map graphics, and may be affected by such things as terrain, foliage, buildings and other construction, motion, customer equipment, and network traffic. The legend states that AT&T does not guarantee coverage and its coverage maps are not intended to show actual customer performance on the network, nor are they intended to show future network needs or build requirements inside or outside of AT&T’s existing coverage areas. It is also important to note that the signal losses and service problems described above can and do occur for customers even at times when certain other customers in the same vicinity 3 may be able to initiate and complete calls on AT&T’s network (or other networks) on their wireless phones. These problems also can and do occur even when certain customers’ wireless phones indicate “all bars” of signal strength on the handset. The bars of signal strength that individual customers can see on their wireless phones are an imprecise and slow-to-update estimate of service quality. In other words, a customer’s wireless phone can show “four bars” of signal strength, but that customer can still, at times, be unable to initiate voice calls, complete calls, or download data reliably and without service interruptions. To determine where new or upgraded telecommunications facilities need to be located for the provision of reliable service in any area, AT&T’s radio frequency engineers rely on far more complete tools and data sources than just signal strength from individual phones. AT&T creates maps incorporating signal strength that depict existing service coverage and service coverage gaps in a given area. To rectify this significant gap in its service coverage, AT&T needs to locate a wireless facility in the immediate vicinity of the Property. September 23, 2015 LTE Coverage – Neighboring Site with CLV1650 © 2014 AT&T Intellectual Property. All rights reserved. AT&T and the AT&T logo are trademarks of AT&T Intellectual Property.