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AGENDA BILL Agenda Item No. 6 Date: April 1, 2014 To: El Cerrito City Council From: Sean Moss, Senior Planner Margaret Development Services Manager Subject: Appeal of the Planning Commission’s action regarding the Design Review of a wireless telecommunication facility on a utility pole near 7800 Eureka Avenue. RECOMMENDATION Conduct a public hearing and upon conclusion adopt a resolution denying an appeal of the Planning Commission’s approval of the Design Review for a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue. BACKGROUND On January 10, 2013 New Cingular Wireless PCS, LLC, doing business as AT&T Mobility submitted six applications for wireless telecommunications facilities at the locations of existing utility poles in the southern portion of El Cerrito. On May 23, 2013, the applicant withdrew one application near 859 Gelston Place. The remaining five applications are proposed as part of a distributed antenna system (DAS) that will cover a large portion of the East Bay hills. The applicant is currently processing applications in Oakland, Berkeley, and Kensington for other portions of the network. The Design Review Board conducted Conceptual Review of the project at their May 1 meeting. The DRB comments generally centered around the aesthetics of the existing poles and whether the Board could require the applicant to replace the poles with a certain type of pole (e.g. concrete). The Planning Commission approved conditional use permits to allow all five wireless telecommunications facilities at their June 19, 2013 meeting. The Planning Commission’s approval of the facility near 851 Seaview Drive was appealed to the City Council and the appeal was heard on August 20, 2013. The City Council denied the appeal and upheld the Planning Commission’s decision, adding additional conditions of approval. Due to the appeal of this application, it is no longer on a concurrent process with the remaining four applications. On August 7, 2013, the Design Review Board considered the four remaining applications and denied each application. The resolution of denial for the project near 7800 Eureka Avenue is Attachment 4. ---PAGE BREAK--- Agenda Item No.6 Page 2 On August 19, 2013 the applicant appealed the DRB’s denial of the four applications. The applications appeared on the December 18, 2013 Planning Commission agenda. Just prior to this meeting, the applicant submitted an additional letter related to the appeals of the four applications. Due to the late receipt of this letter, the applicant agreed to continue the appeals to the January meeting to allow staff time to address the additional information in the letter. The appeals appeared on the Planning Commission’s January 15, 2014 agenda, however prior to the meeting, the applicant requested that the items be continued to a future meeting. The Planning Commission formally considered the appeal of the DRB’s denial of the four applications on February 19, 2014. Upon reviewing the appeals, the Commission determined that some of the Design Review Criteria were not applicable to wireless telecommunications facilities on utility poles. The Commission determined that the projects met the remaining, applicable Design Review Criteria and granted the appeals of all four applications, thus approving the projects. The Planning Commission’s findings of approval can be found in the resolution in Attachment 5. On March 3, 2014, John Spriggs filed an appeal of the Planning Commission’s Design Review decision for the application near 7800 Eureka Avenue. The Planning Commission actions for the remaining applications (near 909 Balra Drive, 762 Colusa Avenue, and 202 Seaview Drive) were not appealed and those actions became in force on March 4 after the appeal period expired. CONTEXT OF THE APPEAL Procedure for Appeals Pursuant to Section 19.39.040.D, appeals of the Planning Commission are considered by the City Council. Pursuant to Section 19.39.040.F, the City Council may: 1) conduct a public hearing; or 2) remand the matter back to the Planning Commission to cure a deficiency in the record or the proceedings. In conducting a public hearing on the appeal, the City Council must use the same standards of review required for the original decision (Section 19.39.050). Therefore, City Council must evaluate the appeal based on the Design Review findings in Section 19.38.060 and contained in the draft resolution in Attachment 1. The subject appeal is an appeal only of the Design Review decision made by the Planning Commission. The Use Permit for this project was approved by the Planning Commission on June 19, 2013. The Use Permit was not appealed and it remains in force. Appeals are de novo, which means the City Council may consider new evidence not presented during the original public hearing and may make findings different from those made by the Planning Commission. The standard for review of these appeals is whether the City Council can make the findings required for Design Review pursuant to Section 19.38.060. The Council may rely on the Planning Commission’s findings, but must decide for itself if those findings are appropriate. If the Council finds that it agrees with the Planning Commission’s findings or that it can make alternate findings of approval, then the the Council should deny the appeals and uphold the Planning Commission’s decision to deny the appeal and approve Design Review for the project. If the Council determines that the Design Review findings in Section 19.38.060 cannot be made, it ---PAGE BREAK--- Agenda Item No.6 Page 3 should grant the appeal and overturn the Planning Commission’s Design Review approval. The required Design Review findings in Section 19.38.060 are as follows: A. Findings for Approval. The Zoning Administrator or Design Review Board may only approve a final design review application if it finds that the application is consistent with the purposes of this Chapter and is consistent with: 1. The applicable standards and requirements of this Zoning Ordinance; 2. The design policies of the General Plan and specific plans adopted by City Council; 3. Any applicable design guidelines adopted by the City Council; 4. The design review criteria set forth in the following subsection; 5. Any planning or zoning approvals by the Planning Commission or Zoning Administrator; 6. Any other relevant policies or regulations of the City. B. Design Review Criteria. When conducting design review, the Zoning Administrator and the Design Review Board shall be guided by whether the project satisfies all applicable criteria, the policies of the General Plan's Community Design Element, and by any other policies or guidelines that may be adopted by the City Council for this purpose. Criteria listed below are specific criteria that, if applicable, all projects must satisfy for approval. 1. The aesthetic design, including its exterior design and landscaping, is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community. 2. Project details, colors, materials, and landscaping, are fully integrated with one another and used in a manner that is visually consistent with the proposed architectural design. 3. The project has been designed with consideration of neighboring development. 4. The project contributes to the creation of an attractive and visually interesting built environment that includes well-articulated structures that present varied building facades, rooflines, and building heights and encourages increased pedestrian activity and transit use. 5. Street frontages are attractive and interesting for pedestrians, address the street and provide for greater safety by allowing for surveillance of the street by people inside buildings and elsewhere. ---PAGE BREAK--- Agenda Item No.6 Page 4 6. The proposed design is compatible with the historical or visual character of any area recognized by the City as having such character. 7. The aesthetic design preserves significant public views and vistas from public streets and open spaces and enhances them by providing areas for pedestrian activity. 8. The proposed landscaping plan is suitable for the type of project and will improve the appearance of the community by enhancing the building, minimizing hardscape and softening walls; and the landscape plan incorporates plant materials that are drought-tolerant, will minimize water usage, and are compatible with El Cerrito's climate. 9. The project has been designed to be energy efficient including, but not limited to, landscape design and green or eco-friendly design and materials. 10. The project design protects and integrates natural features including creeks, open space, significant vegetation, and geologic features. Projects along the Ohlone Greenway shall enhance the usability and aesthetic appeal of the Greenway by integrating it into the fabric of the City through building designs that include entries, yards, patios, and windows that open onto and face the Ohlone Greenway. Federal Telecommunications Act The regulation of wireless telecommunications facilities by local jurisdictions is governed by the Federal Telecommunications Act of 1996 as well as by local ordinance. The Telecommunications Act prevents local jurisdictions from “prohibit[ing] or hav[ing] the effect of prohibiting the provision of personal wireless services.” In addition, the Act states that cities “shall not unreasonably discriminate among providers of functionally equivalent services.” Under the Act, the City must allow all wireless providers a means of providing coverage to El Cerrito. This does not mean that if the City permits AT&T to install DAS nodes on utility poles that the City would be required to waive the public review process for the similar sites of other wireless providers. Any future proposals for wireless telecommunications facilities would be subject to the public process stipulated in Chapter 19.28 of the El Cerrito Municipal Code. The Telecommunications Act also prohibits cities from regulating wireless telecommunications facilities based on health effects or concerns. The Act states, “no State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning such emissions.” El Cerrito General Plan All development projects are reviewed in the context of the goals of the El Cerrito General Plan. The Planning Commission found that the proposed project would implement the following policies of the General Plan: LU4.2: Availability of Goods and Services, CD5.1: Design Review Process, CD6: Affordable Commerce, PS3.3: ---PAGE BREAK--- Agenda Item No.6 Page 5 Upgrading Infrastructure. In addition to upgrading the City’s communication infrastructure for residents, the proposed facility will provide infrastructure necessary for many home based businesses and will enhance the opportunity for these businesses to establish near the facility, consistent with the goals of the General Plan. El Cerrito Zoning Ordinance Within the regulatory framework of the Telecommunications Act, Chapter 19.34 of the El Cerrito Municipal Code governs wireless telecommunications facilities. However, the Use Permit for this facility has been approved pursuant to this chapter. This appeal is of the Design Review approval for the facility. Therefore, the applicable chapter is 19.38: Design Review. The relevant findings for Design Review were listed above in the section titled “Procedure For Appeal.” Project Description The DAS node is proposed to be located on top of the existing utility pole near 7800 Eureka Avenue. A 7-foot extension would be added to the top of the pole. The proposed antennas are approximately 2 feet tall would be mounted at the top of the extension or the new pole. The top of the antennas would sit approximately 3 feet above the top of the pole extension, extending the top of the utility pole structure by a total of 10 feet. All equipment for the facility would be mounted on the pole. No equipment would be ground mounted. The applicant has verbally stated that they shall paint the proposed antennas and equipment brown to match the color of the utility poles. Staff is proposing a condition of approval to ensure compliance of this statement. Since the DRB considered the project, the applicant has revised the proposal to reconfigure the locations of the pole-mounted equipment. The top of the equipment is not proposed to be any higher and the bottom of the equipment is not proposed to be any lower than what was originally proposed. Existing utility pole near 7800 Eureka Avenue. ---PAGE BREAK--- Agenda Item No.6 Page 6 In order to give the Council an idea of what the facilities would look like, staff visited similar DAS nodes that have been installed in the East Bay by T-Mobile. The site nearest to El Cerrito is near 1215 Santa Fe Avenue in Berkeley at the intersection Key Route Boulevard, on the border with Albany. This site is visible from BART trains. Other nearby sites include Cedar Street at Juanita Way, near Cedar Rose Park and Dwight Way at California Street. Photos of two of these sites are included below. These sites are different from the proposed AT&T nodes in that the T-Mobile sites use omni-directional antennas which are cylindrical in shape. The coverage that AT&T is attempting to provide with the proposed nodes has informed the applicant’s decision to propose two directional antennas per node. Coverage in all directions is not required and the applicant wishes to limit the loss of signal toward the bay and other areas where coverage is not needed. The existing examples of DAS nodes mentioned above are good examples of the scale of the proposed facilities. The pole extensions that these nodes are mounted on are approximately the same height as the extensions that AT&T is proposing. The T-Mobile antennas appear to be taller than the proposed AT&T antennas. Other examples of proposed DAS nodes are presented by recent AT&T applications for DAS nodes in Kensington (unincorporated Contra Costa County). In this example, AT&T revised the initial submittal, for sites where it was feasible (2 of 6 sites), to lower the elevation of the antenna on the pole. The antenna projects off the side of the pole below the existing PG&E lines. This configuration is shown on the photo simulations on the following page. The California Public Utilities Commission (CPUC) requires a minimum separation of 6 feet between the proposed DAS antennas and the existing PG&E lines. As a result, on one of these two sites, the pole would be raised by approximately 2 feet to provide the clearance required for the proposed DAS antennas. DAS node near 1215 Santa Fe Avenue, Berkeley DAS node near Dwight Way and California Street, Berkeley ---PAGE BREAK--- Agenda Item No.6 Page 7 Photo simulations of the proposed DAS node near 4 Stratford Road in Kensington Design Review Board Denial In August, the Design Review Board reviewed four applications for DAS nodes, including the 7800 Eureka node. The DRB denied all four applications because the Board felt that the Design Review findings could not be made. In reviewing the projects, the DRB was primarily concerned with the aesthetics of the projects. The Board stated that the poles were already cluttered and that these projects would add clutter to the poles and therefore move the City in the wrong direction with regard to attractiveness. Specifically, the Board could not find that the project satisfied the following Design Review Criteria in Section 19.38.060.B of the Zoning Ordinance: 1. The aesthetic design, including its exterior design and landscaping, is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community. 4. The project contributes to the creation of an attractive and visually interesting built environment that includes well-articulated structures that present varied building facades, rooflines, and building heights and encourages increased pedestrian activity and transit use. In denying the project, the DRB determined the following: ---PAGE BREAK--- Agenda Item No.6 Page 8 1. The additional clutter created by the proposed project will have a detrimental effect on the attractiveness of the community. The project will create a less attractive environment for the general community. 2. The project would be unattractive and inconsistent with the neighborhood and, therefore, would not contribute to the creation of an attractive and visually interesting built environment. Planning Commission Approval The applicant filed an appeal of the Design Review Board denials and the Planning Commission considered the Design Review applications on February 19. The Commission, in reviewing the Design Review Criteria, concluded that some of the Design Review Criteria were not applicable to the projects and thus the findings could be made. The following are the findings the Planning Commission made related to the Design Review Criteria. The complete findings can be found in the resolution in Attachment 5: 4. The design is appropriate for a wireless telecommunications facility. The project will increase the height of the existing utility pole. However, the extension and the proposed facility will be consistent with the existing aesthetics of the pole. 5. The facility and all associated equipment will be painted to match the existing pole. 6. The proposed project minimizes the size of the antennas required to provide wireless service to El Cerrito and minimizes the need for larger facilities with larger antennas. 7. The project does not propose any buildings and there for will not have building facades, rooflines, or building heights. This finding is not applicable. 8. The project will be located on top of an existing utility pole. The project does not propose any buildings with street frontage. This finding is not applicable. 9. The project is not in an area recognized as having historical or visual character. This finding is not applicable. 10. The project has been sited to minimize view blockage. Since the facility will be located at the top of the pole, far above street level, it will not impact public vistas from the street on which it is located. 11. No new landscaping is proposed as part of this project. This finding is not applicable. ---PAGE BREAK--- Agenda Item No.6 Page 9 12. The proposed project will consume the amount of energy required to operate the site in compliance with FCC standards. 13. The project is not adjacent to natural features or the Ohlone Greenway. This finding is not applicable. Justification for Appeals In the appellant’s letters of appeal dated March 3, 2014 (Attachment the following reasons were given for filing the appeal. Each of the justifications given for the appeal is addressed below: 1. The El Cerrito Planning Commission made procedural errors at the February 19, 2014 meeting. The appellant contends that the facility at 7800 Eureka Avenue is proposed on a new utility pole, while the Planning Commission’s resolution referred to the facility being installed on an existing pole. This contention is incorrect. The submitted plans (Attachment 6) show that the facility will be installed atop a 7-foot extension of the existing utility pole. The Planning Commission’s resolution (Attachment 5) correctly referred to the project as “a wireless telecommunication facility on an existing utility pole.” 2. The proposed DAS is not necessary for El Cerrito resident, but is designed to relay signals to Kensington. The City of El Cerrito staff must rely on the applicant to respond to technical discussion points. The applicant has informed staff that although AT&T is seeking to deploy DAS across a large portion of the East Bay Hills, each DAS node would function as an independent site providing wireless coverage to its immediate area. The proposed nodes do allow calls from moving vehicles to transition from one facility to another, just as the macro installations do. The submitted propagation maps show a gap in coverage in the area of the proposed facility near 7800 Eureka Avenue. 3. There is no independent evidence that the proposed DAS is necessary to fill existing coverage gaps and no independent evidence that the proposed DAS will be beneficial to the City of El Cerrito. As part of the application, the applicant submitted materials demonstrating a gap in coverage in the vicinity of the proposed DAS node as required by the Zoning Ordinance. City Staff have verified the information submitted with the application to the extent of the staff’s ability. This agenda bill as well as the numerous other staff reports for this project and the other DAS nodes proposed by AT&T contain the staff’s analysis of the applications. The Zoning Ordinance does not require the applicant to submit third party verification of the propagation maps that they submit. The Zoning Ordinance does require the applicant to submit engineering calculations that show that the facility will ---PAGE BREAK--- Agenda Item No.6 Page 10 comply with FCC standards. The calculations for this project was prepared by AT&T’s engineer, William Hammett of Hammett and Edison Consulting Engineers. The project will provide increased wireless coverage in El Cerrito, including 4G LTE coverage. In the Planning Commission’s approval of the Use Permit for the project, they relied upon the benefit of increased coverage to make certain findings required for approval of the Use Permit. This appeal is an appeal only of the Design Review for the project. The required findings for Design Review focus on the design and aesthetic qualities of the project. The Design Review findings do not consider any potential functional or economic benefits or lack thereof. These types of concerns are more appropriately addressed in the consideration of the Use Permit. 4. The project is not exempt from the California Environmental Quality Act (CEQA). In its action on February 19, the Planning Commission determined that the project was exempt from review under the California Environmental Quality Act (CEQA) pursuant to the Class 3 Categorical Exemption in Section 15303 of the CEQA Guidelines. Class 3 is an exemption for New Construction and Conversion of Small Structures. The exemption applies to structures such as single family homes and second units in residential zones, small commercial buildings which do not utilize hazardous materials, and accessory structures such as garages, carports, swimming pools and fences. The exemption also specifically applies to, “water main, sewage, electrical, gas and other utility extensions, including street improvements of reasonable length to serve such construction.” The appellant claims that all of the proposed DAS nodes should be analyzed together as part of a larger project. The California Court of Appeals directly addressed the issue of the applicability of the Class 3 exemption to series of DAS nodes in the decision in Robinson v. City and County of San Francisco. In April 2009, T-Mobile applied to the San Francisco Planning Department for CEQA review of approximately 40 wireless telecommunications facilities proposed to be installed on existing utility poles. In September and November of 2009, the Planning Department issued certificates of determination finding that the facilities were exempt from review under CEQA pursuant to the Class 3 exemption. In February 2010 after a facility had been installed on Randall Street, residents filed suit, claiming, in part, that the Class 3 exemption was not applicable to the project. The Court of Appeal, in deciding in favor of T-Mobile and San Francisco, noted that courts have approved the application of the Class 3 exemption for projects as ---PAGE BREAK--- Agenda Item No.6 Page 11 diverse as “the construction of a 2,700 square-foot single-family home in a residential neighborhood (Association for Protection v. City of Ukiah (1991) 2 Cal.App.4th 721 (Ukiah)), and a 1,500 square-foot addition to an existing structure that was intended for use as a firearms training facility. (Simons v. City of Los Angeles (1977) 72 Cal.App.3d 924.)” The Court further determined that, “the T-Mobile project fits squarely within the ambit of the Class 3 exemptions.” In its approval of similar DAS nodes in the neighboring community of Kensington, the Contra Costa County Planning Commission also relied upon the Class 3 exemption, specifically citing Robinson v. City and County of San Francisco. 5. The proposed DAS is located on a utility pole in a dangerous zone less than half a mile from the Hayward Fault in a known landslide zone. Utility poles are currently necessary to provide utilities to most of El Cerrito. Large portions of El Cerrito lay within the Alquist-Priolo Zone for the Hayward Fault and in the City’s mapped landslide areas. Utility poles are a necessity in these areas. Utility poles are regulated by the California Public Utilities Commission and specifically, the CPUC’s General Order 95. It will be AT&T’s responsibility to ensure that the CPUC’s safety requirements are met. The City will inspect the pole as necessary to ensure public safety. Staff does not expect that the proposed facility will diminish the safety of the existing pole in the event of an emergency. 6. The DAS at 7800 Eureka will have a negative impact on property values in the area. As stated above, pursuant to the Telecommunications Act, the City Council may not base its decision upon concerns regarding health effects of RF transmission. In AT&T Wireless vs. City of Carlsbad, the United Stated District Court held that concerns about property values also cannot be a proxy for health concerns. If decreased property values would be a result of concerns about health effects of RF transmission, the City Council may not legally consider this information. The Council may, however, consider evidence in support of this assertion, if provided and related to the findings required for Design Review approval. Pursuant to the Municipal Code, Design Review approvals must be based on the findings in Section 19.38.060. None of the required findings for Design Review or the Design Review Criteria are based on evaluation of property values. 7. There is precedent for AT&T/ Cingular relocating DAS to more appropriate alternative locations. At this point in the process, the Use Permit for a wireless telecommunications facility in this location has been approved by the Planning Commission. The ---PAGE BREAK--- Agenda Item No.6 Commission's approval of the Use Permit was not appealed and Use Permit is in force. This appeal concerns only the Design Review of the facility based upon the Design Review Criteria in Section 19.38.060 of the Municipal Code. The location of the facility is a land use decision that was pertinent to the Use Permit approval. Although location is related to design, at this point, the location has been approved, and the application before the Council is for approval of a design for a DAS facility in the approved location. The Council may deny the proposed design, if it believes that it cannot make the applicable Design Review findings, based upon the evidence in the record. It may also impose conditions if necessary to be able to make the applicable findings. Its analysis should nevertheless take into account that the City has already approved a permit to allow the use at the location and, at some point in this process, denying the Design Review based on concerns over location could be viewed as interference with the applicant's ability to act upon the approved Use Permit currently in place at this locati~n. Furthermore, the appellant suggests that Sunset View Cemetery would be a more suitable location for the proposed facility. Both City staff and the applicant have contacted the manager of the cemetery who confirmed the cemetery's strong desire not to accommodate a wireless telecommunications facility. CALIFORNIA ENVIRONMENTAL QUALITY ACT As discussed above under point pursuant to the California Environmental Quality Act (CEQA), this Conditional Use Permit, involving a wireless telecommunication facility on an existing utility pole, is considered exempt from environmental review under section 15303: Categorical Exemption Class 3: New Construction or Conversion of Small Structures. Reviewed by: Scott Hanin, City Manager Attachments: 1. Proposed Resolution denying the appeal 2. Appeal Letter from the appellant dated March 3, 2014 and addendum dated March 24, 2014 3. Planning Commission Staff Report for the appeal to the Planning Commission of Design Review for application PC13-0009 4. Resolution DRB 13-06, denying Design Review of the project near 7800 Eureka Avenue 5. Planning Commission Resolution PC14-03, granting an appeal of the Design Review Board's denial of the project near 7800 Eureka Avenue. 6. Plans, dated December 5, 2013 7. New Cingular Wireless PCS/AT&T Response to Appeal. Page 12 ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 1 RESOLUTION 2014–XX A RESOLUTION OF THE EL CERRITO CITY COUNCIL DENYING AN APPEAL OF THE PLANNING COMMISSION’S DESIGN REVIEW APPROVAL OF A WIRELESS TELECOMMUNICATIONS FACILITY ON AN EXISTING UTILITY POLE NEAR 7800 EUREKA AVENUE. WHEREAS, on January 10, 2013, the applicant submitted an application for a Conditional Use Permit and Design Review to allow a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, the General Plan land use classification of the site is Low Density Residential; WHEREAS, the zoning district of the site is RS-5 (Single Family Residential); WHEREAS, the project is located in the public right-of-way near 7800 Eureka Avenue; WHEREAS, the project is categorically exempt from the California Environmental Quality Act pursuant to Section 15303: Class 3 - New Construction or Conversion of Small Structures; WHEREAS, on June 19, 2013, the Planning Commission held a duly noticed public hearing, received public testimony and adopted Resolution PC13-12, approving a Conditional Use Permit to allow a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, on August 7, 2013, the Design Review Board held a duly noticed public hearing, received public testimony and adopted Resolution DRB13-06, denying the Design Review of a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, on August 19, 2013, the applicant, New Cingular Wireless PCS, LLC, filed an appeal of the Design Review Board’s denial of Design Review for a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, on February 19, 2014, , the Planning Commission held a duly noticed public hearing to consider the appeal, received public testimony and adopted Resolution PC14-03, granting the appeal and granting Design Review approval for a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, on March 3, 2014, John Spriggs filed an appeal of the Design Planning Commission’s Design Review approval for a wireless telecommunications facility on an existing utility pole near 7800 Eureka Avenue; WHEREAS, on April 1, 2014, the City Council held a duly noticed public hearing to consider the appeal; and WHEREAS, based upon the evidence presented in the record on this matter, including the staff report and oral and written testimony and the proceedings before the Planning Commission, the Council has considered the appeal. ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 2 NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of El Cerrito finds that: 1. The proposed project meets all standards of the El Cerrito Zoning Ordinance including the standards of Chapter 19.28: Wireless Telecommunications Facilities. 2. The proposed project will implement the following policies of the El Cerrito General Plan: LU4.2: Availability of Goods and Services, CD5.1: Design Review Process, CD6: Affordable Commerce, PS3.3: Upgrading Infrastructure. 3. There are no applicable, adopted design guidelines. 4. The design is appropriate for a wireless telecommunications facility. The project will increase the height of the existing utility pole. However, the extension and the proposed facility will be consistent with the existing aesthetics of the pole. 5. The facility and all associated equipment will be painted to match the existing pole. 6. The proposed project minimizes the size of the antennas required to provide wireless service to El Cerrito and minimizes the need for larger facilities with larger antennas. 7. The project does not propose any buildings and there for will not have building facades, rooflines, or building heights. This finding is not applicable. 8. The project will be located on top of an existing utility pole. The project does not propose any buildings with street frontage. This finding is not applicable. 9. The project is not in an area recognized as having historical or visual character. This finding is not applicable. 10. The project has been sited to minimize view blockage. Since the facility will be located at the top of the pole, far above street level, it will not impact public vistas from the street on which it is located. 11. No new landscaping is proposed as part of this project. This finding is not applicable. 12. Operation of the site is the jurisdiction of the Federal Communications Commission. Energy consumption will be appropriate to operate the facility in accordance with FCC standards. 13. The project is not adjacent to natural features or the Ohlone Greenway. This finding is not applicable. 14. The proposed facility is consistent with the Planning Commission’s Conditional Use Permit approval in Resolution PC13-12. 15. The project is in compliance with the zoning requirements and the goals and policies outlined in the General Plan. ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 3 After careful consideration of facts, correspondence, and testimony, and other evidence submitted in this matter, the El Cerrito City Council hereby denies the subject appeal of the Planning Commission’s Design Review approval of a wireless telecommunication facility on an existing utility pole near 7800 Eureka Avenue. I CERTIFY that at a regular meeting on April 1, 2014, the El Cerrito City Council passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on April XX, 2014. Cheryl Morse, City Clerk APPROVED: Janet Abelson, Mayor ---PAGE BREAK--- Agenda Item No. 6 Attachment 2 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 1 of 10 Community Development Department - Planning Division 10890 San Pablo Avenue, El Cerrito, CA 94530 (510) 215-4330 - FAX: (510) 233-5401 [EMAIL REDACTED] PLANNING COMMSION STAFF REPORT Meeting Date: February 19, 2014 I. SUBJECT Application: PL13-0007 – PL13-0010 Applicant: New Cingular Wireless PCS, LLC Location: Public Right of Way near 906 Balra Drive, 762 Colusa Avenue, 7800 Eureka Avenue, and 202 Seaview Drive APN: Public Right-of-Way Zoning: RS-5 (Single Family Residential) General Plan: Low Density Residential Request: An appeal of the Design Review Board’s Denial of four wireless telecommunications facilities on existing utility poles in the public right-of-way. CEQA: Categorically Exempt, Section 15303 – Class 3, New Construction or Conversion of Small Structures. II. BACKGROUND On January 10, 2013 New Cingular Wireless PCS, LLC, doing business as AT&T Mobility submitted six applications for wireless telecommunications facilities at the locations of existing utility poles in the southern portion of El Cerrito. On May 23, 2013, the applicant withdrew one application near 859 Gelston Place. The remaining five applications are proposed as part of a distributed antenna system (DAS) that will cover a large portion of the East Bay hills. The applicant is currently processing applications in Oakland, Berkeley, and Kensington for other portions of the network. The Design Review Board conducted Conceptual Review of the project at their May 1 meeting. The DRB comments generally centered around the aesthetics of the existing poles and whether the Board could require the applicant to replace the poles with a certain type of pole (e.g. concrete). More information on this issue is presented in the Discussion Section of this report. The Planning Commission approved conditional use permits to allow all five wireless telecommunications facilities at their June 19, 2013 meeting. The Planning Commission’s approval of the facility near 851 Seaview Drive was appealed to the City Council and the appeal was heard on August 20. The City Council denied the appeal and upheld the Planning Commission’s decision, adding additional conditions of approval. Due to the appeal of this application, it is not longer on a concurrent process with the remaining four applications. Agenda Item No. 6 Attachment 3 ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 2 of 10 On August 7, 2013, the Design Review Board considered the four subject applications and denied each application. The resolutions for denial are attached to this report as Attachments 13-16. A discussion of the DRB’s findings of denial is contained in the section below. On August 19, 2013 the applicant appealed the DRB’s denial of the applications. The applicant submitted a letter of appeal at this time. The applicant’s letter of appeal for each application are included as Attachments F-I of Attachment 17. Because the DRB’s denial of the proposed projects was based on the same findings, the resolutions of denial are therefore nearly identical and thus the letters for each appeal are nearly identical. The applications appeared on the December 18, 2013 Planning Commission agenda. Prior to this meeting on December 12, the applicant submitted an additional letter related to the appeals of the four applications. Due to the late receipt of this letter, the applicant agreed to continue the appeals to the January meeting to allow staff time to address the additional information in the letter. The appeals appeared on the Planning Commission’s January 15, 2014 agenda, however prior to the meeting, the applicant requested that the items be continued to a future meeting. Staff has since met with the applicant discuss the appeals and to confirm that the appeals will be considered by the Planning Commission on February 19, 2014. Pursuant to the Federal Telecommunications Act of 1996, local jurisdictions are not permitted to consider the health effects of wireless telecommunications facilities in their decisions. Pursuant to Federal law, the facilities will be required to meet the operational standards set by the Federal Communications Commission (FCC). III. DISCUSSION Project Description Each of the four proposed DAS nodes are proposed to be located on top of the existing utility poles. For two of the proposed sites, a 7-foot extension would be added to the top of the pole. (906 Blara Drive and 7800 Eureka Avenue) For two sites, the existing pole would be replaced with a new pole that would be approximately 7 feet taller. (762 Colusa Avenue and 202 Seaview Drive) The proposed antennas are approximately 2 feet tall would be mounted at the top of the extension or the new pole. The top of the antennas would sit approximately 3 feet above the top of the pole extension, extending the top of the utility pole structure by a total of 10 feet. All equipment for each facility would be mounted on the pole. No equipment would be ground mounted. The applicant has verbally stated that shall paint the proposed antennas and equipment brown to match the color of the utility poles. Staff is proposing a condition of approval to ensure compliance of this statement. Since the DRB considered the projects, the applicant has revised the proposal to reconfigure the locations of the pole-mounted equipment. The top of the equipment is not proposed to be any higher and the bottom of the equipment is not proposed to be any lower than what was originally proposed. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 3 of 10 Existing Pole near 906 Galvin Drive. Existing Pole near 762 Colusa Avenue Existing pole near 7800 Eureka Avenue. Existing pole near 202 Seaview Drive In order to give the Commission a idea of what the facilities would look like, staff visited similar DAS nodes that have been installed in the East Bay by T-Mobile. The site nearest to El Cerrito is near 1215 Santa Fe Avenue in Berkeley at the intersection Key Route Boulevard, on the border with Albany. This site is visible from BART trains. Other nearby sites include Cedar Street at Juanita Way, near Cedar Rose Park and Dwight Way at California Street. Photos of two of these sites are ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 4 of 10 included below. These sites are different from the proposed AT&T nodes in that the T- Mobile sites use omni-directional antennas which are cylindrical in shape. The coverage that AT&T is attempting to provide with the proposed nodes has informed the applicant’s decision to propose two directional antennas per node. Coverage in all directions is not required and the applicant wished to limit the loss of signal toward the bay and other areas where coverage is not needed. The existing examples of DAS nodes mentioned above are good examples of the scale of the proposed facilities. The pole extensions that these nodes are mounted on are approximately the same height as the extensions that AT&T is proposing. The T-Mobile antennas appear to be taller than the proposed AT&T antennas. Other examples of proposed DAS nodes are presented by recent AT&T applications for DAS nodes in Kensington (unincorporated Contra Costa County). In this example, AT&T revised the initial submittal, for sites where it was feasible (2 of 6 sites), to lower the elevation of the antenna on the pole. The antenna projects off the side of the pole below the existing PG&E lines. This configuration is shown on the photo simulations on the following page. The California Public Utilities Commission (CPUC) requires a minimum separation of 6 feet between the proposed DAS antennas and the existing PG&E lines. As a result, on one of these two sites, the pole would be raised by approximately 2 feet to provide the clearance required for the proposed DAS antennas. DAS node near 1215 Santa Fe Avenue, Berkeley DAS node near Dwight Way and California Street, Berkeley ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 5 of 10 Photo simulations of the proposed DAS node near 4 Stratford Road in Kensington Design Review Board Denial In reviewing the projects, the DRB was primarily concerned with the aesthetics of the projects. The Board stated that the poles were already cluttered and that these projects would add clutter to the poles and therefore move the City in the wrong direction with regard to attractiveness. Specifically, the Board could not find that the project satisfied the following Design Review Criteria in Section 19.38.060.B of the Zoning Ordinance: 1. The aesthetic design, including its exterior design and landscaping, is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community. 4. The project contributes to the creation of an attractive and visually interesting built environment that includes well-articulated structures that present varied building facades, rooflines, and building heights and encourages increased pedestrian activity and transit use. In denying the project, the DRB determined the following: 1. The additional clutter created by the proposed project will have a detrimental effect on the attractiveness of the community. The project will create a less attractive environment for the general community. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 6 of 10 2. The project would be unattractive and inconsistent with the neighborhood and, therefore, would not contribute to the creation of an attractive and visually interesting built environment. Procedure for Appeals Pursuant to Section 19.39.040.C, appeals of the Design Review Board are considered by the Planning Commission. Pursuant to Section 19.39.050, the Planning Commission may: 1) conduct a public hearing; or 2) remand the matter back to the Design Review Board to cure a deficiency in the record or the proceedings. In conducting a public hearing on the appeal, the Planning Commission must use the same standards of review required for the original decision (Section 19.39.050). Therefore, the Planning Commission must evaluate the appeals based on the Design Review findings in Section 19.38.060 and contained in the draft resolutions in Attachments 1-8. Appeals are de novo, which means the Planning Commission may consider new evidence not presented during the original public hearing and may make findings different from those made by the DRB. As the City Attorney discusses in his memo in Attachment 18, the standard for review of these appeals is whether the Planning Commission can make the findings required for Design Review pursuant to Section 19.38.060. The Commission may rely on the DRB’s findings of denial, but must decide for itself if the DRB’s findings are appropriate. If the Commission finds that it agrees with the DRB’s findings of denial or that it can make alternate findings of denial, then the Commission should deny the appeals and uphold the DRB’s denial of the projects. If the Commission determines that the Design Review findings in Section 19.38.060 can be made, it should grant the appeals and overturn the DRB’s denial of the projects. Justification for Appeals In the following section, staff has provided an overview of the appellant’s stated reasons for the appeals. The City Attorney has provided a more detailed response to the legal issues stated by the appellant. The City Attorney’s response is included as Attachment 18. In the appellant’s letters of appeal dated August 19, 2013 (Attachments F-I of Attachment 17), the following reasons were given for filing the appeal. No additional supporting information was provided in this initial letter. The appellant provided an additional letter on December 12, 2013 (Attachment 17) which included further justification for the appeal. Each of the justifications given for the appeal are addressed below: 1. The DRB exceeded its authority by failing to limit its review of AT&T’s Application to the applicable design review criteria specified in Section 19.38.060.B of the code. Section 19.38.060.B of the El Cerrito Municipal Code states: When conducting design review, the Zoning Administrator and the Design Review Board shall be guided by whether the project satisfies all applicable criteria, the policies of the General Plan's Community Design Element, and by any other policies or guidelines that may be adopted by the City Council for this purpose. Criteria listed below are specific criteria that, if applicable, all projects must satisfy for approval. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 7 of 10 1. The aesthetic design, including its exterior design and landscaping, is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community. 2. Project details, colors, materials, and landscaping, are fully integrated with one another and used in a manner that is visually consistent with the proposed architectural design. 3. The project has been designed with consideration of neighboring development. 4. The project contributes to the creation of an attractive and visually interesting built environment that includes well-articulated structures that present varied building facades, rooflines, and building heights and encourages increased pedestrian activity and transit use. 5. Street frontages are attractive and interesting for pedestrians, address the street and provide for greater safety by allowing for surveillance of the street by people inside buildings and elsewhere. 6. The proposed design is compatible with the historical or visual character of any area recognized by the City as having such character. 7. The aesthetic design preserves significant public views and vistas from public streets and open spaces and enhances them by providing areas for pedestrian activity. 8. The proposed landscaping plan is suitable for the type of project and will improve the appearance of the community by enhancing the building, minimizing hardscape and softening walls; and the landscape plan incorporates plant materials that are drought- tolerant, will minimize water usage, and are compatible with El Cerrito's climate. 9. The project has been designed to be energy efficient including, but not limited to, landscape design and green or eco-friendly design and materials. 10. The project design protects and integrates natural features including creeks, open space, significant vegetation, and geologic features. Projects along the Ohlone Greenway shall enhance the usability and aesthetic appeal of the Greenway by integrating it into the fabric of the City through building designs that include entries, yards, patios, and windows that open onto and face the Ohlone Greenway. The DRB reviewed the applications based on the Design Review Criteria listed above. In denying the Design Review for the projects, the Board members determined that the projects did not satisfy Criteria 1 & 4 as required by the Design Review findings. The Design Review Board’s findings of denial based on the Criteria in Section 19.38.060.B are included in Attachment 13-16. In reviewing the applications, the Board did not take into account the health effects of the facilities as prohibited by the Telecommunications Act of 1996. Members of the public did mention the health effects of the proposed facilities, however, the Board did not take these concerns into consideration in their denial of the projects. The Board did briefly discuss the need for the sites and the appropriateness of the proposed technology. However, in denying the applications the Board based their decision on the required findings and made clear findings of denial as required by the municipal code. As the City Attorney states in his memo to the Commission, this point is not germane because in considering the appeal, the Commission must evaluate the applications and the administrative record and take action based upon the Planning Commission’s own findings. The Planning ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 8 of 10 Commission is not reviewing and acting upon the DRB’s decision, but rather reviewing the applications and making an independent decision on the Design Review for the proposed projects. 2. The DRB erred in applying inapplicable design review criteria to the Application and basing its denial of the Application on those inapplicable criteria. When the DRB reviewed the applications, the Board evaluated the projects based on the Design Review Criteria stated in Section 19.38.060.B. Staff drafted a series of proposed findings that addressed each of the design review criteria. Staff determined that three criteria were not applicable. Since the projects are not in an area recognized as having visual or historic character; since the projects do not include landscaping; and since the projects are not along the Ohlone Greenway, staff determined that Criteria 6, 8 and 10 were not applicable to the projects. Nothing contained in the language of the remaining criteria makes them inherently inapplicable to the projects. Criteria 1 & 4, which the DRB used as justification for the denial, do not refer to particular types or characteristics of projects. Because a project does not meet a finding does not inherently make the finding inapplicable. Nothing contained in the language of the findings render them inapplicable to these projects. 3. The DRB incorrectly concluded that the Proposed Facility does not meet the applicable design review criteria. The appellant asserts in their December 12, 2013 letter that even if the findings used by the DRB were applicable that the DRB incorrectly made findings of denial. Findings often represent the subjective judgment of the decision-making body. In the case of these projects, the DRB determined that the projects would not provide an attractive environment for the general community (Criterion 1) and that the projects do not contribute to the creation of a an attractive and visually interesting built environment (Criterion Based on this judgment, the DRB denied the projects. In the DRB staff report, staff had drafted proposed findings for approval since staff recommended that the DRB approve the projects. However, the DRB disagreed with two of the staff’s recommended findings and thus denied the projects. The DRB, as the decision-making body for design review, is free to act differently from the staff recommendation provided the appropriate findings for denial are made. In this case, the DRB made the appropriate findings and denied the project. The presence of proposed findings for approval in the staff report does not mean the DRB findings of denial were made incorrectly. The DRB’s findings of denial were based on the Board’s judgment of the project and the facts, evidence and testimony presented to the Board. 4. The DRB’s decision denying the Application violated federal law, including the Telecommunications ACT of 1996, 47U.S.C. § 332, which preempts the City from prohibiting or effectively prohibiting AT&T’s ability to close the existing significant service coverage gap in its network in the City, preempts the City from discriminating among wireless providers, preempts the City from considering the effects of radio frequency transmissions, and preempts the City from requiring certain technologies or modes of operation. The City Attorney has addressed these claims related to federal law in his memo included as Attachment 18. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 9 of 10 IV. FINDINGS The Planning Commission is not required to rely upon the DRB’s findings of denial. For simplicity, the DRB’s findings of denial, supporting the staff recommendation, are listed here. These findings are reiterated in the Draft Resolutions in Attachments 1-4. If the Commission decides to deny the appeal and approve the project, findings for approval are contained in the alternate draft resolutions in Attachments 5-8: 1. The additional clutter created by the proposed project will have a detrimental effect on the attractiveness of the community. The project will create a less attractive environment for the general community. 2. The project would be unattractive and inconsistent with the neighborhood and, therefore, would not contribute to the creation of an attractive and visually interesting built environment. V. RECOMMENDATION Staff recommends the Planning Commission deny the appeal and uphold the Design Review Board’s denial of design review approval for four wireless telecommunications facilities on existing utility poles in the public right-of-way near 961 Balra Drive, 762 Colusa Avenue, 7800 Eureka Avenue, and 202 Seaview Drive. Proposed Motions: Move adoption of Planning Commission Resolution PC14-__ denying the appeal of the Design Review Board’s denial of design review for a wireless telecommunications facility in the public right-of-way near Appeal Period: Within ten (10) calendar days after the date of the decision, the Planning Commission action may be appealed to the City Council. Attachments: 1) Draft Resolution denying the appeal of the project near 906 Balra Drive 2) Draft Resolution denying the appeal of the project near 762 Colusa Avenue 3) Draft Resolution denying the appeal of the project near 7800 Eureka Avenue 4) Draft Resolution denying the appeal of the project near 202 Seaview Drive 5) Draft Resolution granting the appeal of the project near 906 Balra Drive 6) Draft Resolution granting the appeal of the project near 762 Colusa Avenue 7) Draft Resolution granting the appeal of the project near 7800 Eureka Avenue 8) Draft Resolution granting the appeal of the project near 202 Seaview Drive 9) Plans for project near 906 Balra Drive, dated December 5, 2013. 10) Plans for project near 906 Balra Drive, dated December 5, 2013. 11) Plans for project near 906 Balra Drive, dated December 5, 2013. 12) Plans for project near 906 Balra Drive, dated December 5, 2013. 13) Resolution DRB13-04, denying Design Review of the project near 906 Balra Drive 14) Resolution DRB13-05, denying Design Review of the project near 762 Colusa Avenue 15) Resolution DRB13-06, denying Design Review of the project near 7800 Eureka Avenue 16) Resolution DRB13-07, denying Design Review of the project near 202 Seaview Drive 17) Letter from Appellant, dated December 12, 2013, including Attachments A-K 18) Memorandum from City Attorney, dated February 7, 2014 19) Letter to the DRB from Mary Crakow, dated July 29, 2013. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005-0010 - AT&T DAS Network\PL13-0007-10 - PC Appeal Staff Report.doc Page 10 of 10 20) Letter from James-Joseph Diliberto, dated June 18, 2013. 21) Email to the DRB from Laura and Charles Neuman, dated July 29, 2013. 22) Letter from Phillipe Eberhard, dated January 8, 2014 23) Letter from Glory Merrill, dated January 9, 2014 24) Letter from Dwight Merrill 25) Letter from Merrill, dated January 19, 2014 26) Letter from Family Devine, dated December 12, 2013 27) Letter from Richard Johnson, dated August 3, 2013 ---PAGE BREAK--- Agenda Item No. 6 Attachment 4 ---PAGE BREAK--- Agenda Item No. 6 Attachment 5 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- T1 3 Agenda Item No. 6 Attachment 6 ---PAGE BREAK--- T2 Nort h USA Call before you dig 811 / 1-[PHONE REDACTED] www.usanorth.org ANTENNA & CABLE SCHEDULE WIND LOADING INFORMATION 3 ---PAGE BREAK--- A1 PROPOSED EQUIPMENT AREA SEE 3 ---PAGE BREAK--- 1 2 4 3 EUREKA AVE 1 2 4 3 EUREKA AVE 1 2 4 3 EUREKA AVE A2 PROPOSED EQUIPMENT AREA SEE 3 ---PAGE BREAK--- To prevent occupational exposures in excess of the FCC For further information, please call 1-[PHONE REDACTED] and reference Cell Site number In accordance to FCC rules 47 CFR 2.35(mW/cm XXX D1 3 ---PAGE BREAK--- S1 3 ---PAGE BREAK--- Agenda Item No. 6 Attachment 7 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ATTACHMENT A ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ATTACHMENT B ---PAGE BREAK--- 1 AT&T Mobility Radio Frequency Statement DAS Node 6A: Existing Utility Pole in Public Right-of-Way Near 7800 Eureka Avenue, El Cerrito, CA I am the AT&T radio frequency engineer assigned to the proposed wireless telecommunications facility (“Node 6A”), which is a distributed antenna system (“DAS”) node to be located on an existing utility pole in the public right-of-way near 7800 Eureka Avenue, El Cerrito (the “Property”). Based on my personal knowledge of the Property and with AT&T’s wireless network, as well as my review of AT&T’s records with respect to the Property and its wireless telecommunications facilities in the surrounding area, I have concluded that the work associated with this permit request is needed to close a service coverage gap in the area immediately surrounding the Property. The service coverage gap is caused by inadequate infrastructure in the area. As explained further in Exhibit 1, AT&T’s existing facilities cannot adequately serve its customers in the desired area of coverage, let alone address rapidly increasing data usage. Moreover, 4G LTE service coverage has not yet been fully deployed in this area. To remedy this service coverage gap, AT&T needs to construct a new wireless telecommunications facility. AT&T uses industry standard propagation tools to identify the areas in its network where signal strength is too weak to provide reliable in-building service quality. This information is developed from many sources including terrain and clutter databases, which simulate the environment, and propagation models that simulate signal propagation in the presence of terrain and clutter variation. AT&T designs and builds its network to ensure customers receive reliable in-building service quality. Exhibit 2 to this Statement is a map of the existing service coverage (without Node 6A) in the area at issue. It includes service coverage provided by existing AT&T sites. The green shaded areas depict areas within a signal strength range that provide acceptable in-building service 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 signal strength range that provide acceptable in-vehicle coverage. In this area, an AT&T customer should be able to successfully place or receive a call within a vehicle. The blue shading depicts areas within a signal strength range in which a customer might have difficulty receiving a consistently acceptable level of service. The quality of service experienced by any individual can differ greatly depending on whether that customer is indoors, outdoors, stationary, or in transit. Any area in the blue or yellow category is considered inadequate service coverage and constitutes a service coverage gap. ---PAGE BREAK--- ---PAGE BREAK--- 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 consumer utilize at a growing number. AT&T customers are using these applications in a manner that has caused a 30,000% increase in mobile data usage on AT&T's network since 2007. AT&T expects total mobile data volume to grow 8x-10x over the next five years. To put this estimate in perspective, all of AT&T Mobility’s mobile traffic during 2010 would be equal to only six or seven weeks of mobile traffic volume in 2015. 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. ---PAGE BREAK--- 2 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 El Cerrito, 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. ---PAGE BREAK--- 3 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 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. ---PAGE BREAK--- Existing UMTS 850 Coverage Legend In‐Building Service In‐Vehicle Service Outdoor Service Proposed Macro Site Existing Macro Site Proposed Node City Boundary January 15, 2014 Exhibit 2 ---PAGE BREAK--- Proposed UMTS 850 Coverage (With Node 06) January 15, 2014 Legend In‐Building Service In‐Vehicle Service Outdoor Service Proposed Macro Site Existing Macro Site Proposed Node City Boundary Exhibit 3 ---PAGE BREAK--- Existing LTE 700 Coverage Legend In‐Building Service Proposed Macro Site Existing Macro Site Proposed Node City Boundary January 15, 2014 Exhibit 4 ---PAGE BREAK--- Proposed LTE 700 Coverage (With Node 06) Legend In‐Building Service Proposed Macro Site Existing Macro Site Proposed Node City Boundary January 15, 2014 Exhibit 5 ---PAGE BREAK--- ATTACHMENT C ---PAGE BREAK--- Alternative Sites Analysis DAS Node 6 JPA Pole 110228857 near 7800 Eureka Avenue Submitted by Extenet Systems on behalf of AT&T ---PAGE BREAK--- Primary Site (6A) • The primary candidate for this site is JPA pole 110228857 near 7800 Eureka Avenue (see Development Review Application No. PL13-0009). • This site is feasible from radio frequency and construction perspectives. • This site is the least intrusive means to close AT&T’s service coverage gap in the area. This is the last utility pole in a line of poles along Eureka Avenue, and its aesthetic impact is lessened by large trees downhill. ---PAGE BREAK--- Primary & Alternative Locations • On the map above, the primary site (6A) is marked with a yellow pin and the alternative sites are marked by blue pins. ---PAGE BREAK--- • Alternative 1 is JPA pole 110228775 near 7812 Eureka Avenue. • The site is highly exposed, so it would have a greater aesthetic impact than the primary site. • This site is not feasible from a construction perspective due to no climbing space. ALTERNATIVE 1: Node 06B ---PAGE BREAK--- ALTERNATIVE 2: Node 06C • Alternative 2 is JPA pole 110228774 near 7820 Eureka Avenue. • This pole is located in a view corridor, and it would have a greater aesthetic impact than the primary site. • This site is not feasible from a construction perspective due to cross arms and a box. • This site also is not feasible from a construction standpoint because the PG&E riser interferes with climbing space. ---PAGE BREAK--- ALTERNATIVE 3: Node 06D • Alternative 3 is JPA pole 110228773 near 704 Midcrest Avenue. • This site is not feasible from a construction perspective due to cross arms and a box. • This site also is not feasible from a construction standpoint because the PG&E riser interferes with climbing space. ---PAGE BREAK--- ALTERNATIVE 4: Node 06E • Alternative 4 is JPA pole 110235769 across from 617 Seaview Drive. • This site is exposed due to its location on a corner, so it would be a greater aesthetic impact than the primary site. • This site is not feasible from a construction perspective due to cross arms and because there is no climbing space. ---PAGE BREAK--- ALTERNATIVE 5: Node 06F • Alternative 5 is JPA pole 110235772 near 650 Seaview Drive. • This site is not feasible from a construction perspective due to cross arms. • This site also is not feasible from a construction standpoint because the PG&E risers interfere with climbing space. ---PAGE BREAK--- ALTERNATIVE 6: Node 06G • Alternative 6 is JPA pole 110228851 near 7720 Eureka Avenue. • This is located in a view corridor, so it has a greater aesthetic impact than the primary site. • This site is not feasible from a radio frequency perspective because a site here will not close AT&T’s service coverage gap in the area. ---PAGE BREAK--- ALTERNATIVE 7: Node 06H • Alternative 7 is JPA pole 110228875 near 620 Seaview Drive. • The site is highly exposed, so it would have a greater aesthetic impact than the primary site. ---PAGE BREAK--- ALTERNATIVE 8: Node 06I • Alternative 8 is JPA pole 110228873 near 612 Seaview Drive. • This site is not feasible from a construction perspective due to cross arms and no climbing space. ---PAGE BREAK--- ATTACHMENT D ---PAGE BREAK--- ! # 65.1/<9);165 .194 65:<3;15/ 65 79676:-, 15 )23)5, 133: -991;6 )31.6951).69+64731)5+->1;0)7796791);-/<1,-315-:3141;15/ 0<4)5 9),16 ->15/<3)9%19-3-::79676:-:;615:;)33;>6,19-+;165)37)5-3)5;-55):65:1?-?1:;15/69 79676:-,<;131;@763-::1;-,15;0- )23)5,133:)9-)6.3-991;6#0-79676:-,67-9);165 9-8<19-: 644<51+);165: 6441::165 )+;165:.6976::1*3-:1/51.1+)5;147)+;65;0--5=19654-5;:<44)9@6.;0-E:-?76:<9-3141;: :06>5 15 3141;: )773@ .69 +65;15<6<: 796=1,- ++<7);165)3 141; 615;;6 615; B -9:65)3644<51+);165 -33<3)9 " B 56 +6476<5,15/ .964 76>-9 315- 9),16 9),16: 15,1=1,<)3 ---PAGE BREAK--- ! 10),*74$6,10 )14 9,4(.(55 5(48,&(5 $06(00$54(37,4(.,0(1)5,*+62$6+5)146+(,45,*0$.5612412$*$6(9(..$0'51$4(,056$..('$651/( 6+,5 6+$6 016 2155,%.( )14 (:21574( &10',6,105 61 $2241$&+ 9,6+ )14 :21574( 61 4(37(0&; 7*756 5174&( 9,6+ 537$4( )41/ =,08(45( 537$4( &105(48$6,8(0$674(1)6+,5/(6+1')14(8$.7$6,0*(:21574(&10',6,105+$5%((08(4,),('%;07/(4175 $5('7210,0)14/$6,102418,'('%; (9,0*7.$4",4(.(556+$6&$44,(4241215(561,056$..5,:0(9 ',4(&6,10$.2$0(.$06(00$5,056$..('10$0(914(:,56,0*76,.,6;21.(61 $%176 *4170' 917.' 14,(06(' ',4(&6,105 5+190 9$6654(24(5(06,0* 5,/7.6$0(17512(4$6,10%; 9$665)14 9$665)14<5(48,&(!+(4($4(4(2146('0116+(49,4(.(556(.(&1//70,&$6,105%$5(56$6,105 2241:,/$6(''4(55 06(00$ 4,(06$6,105 (.5610 1.75$8(07( ---PAGE BREAK--- - &80/352& ! 35$) -&"352&3 &.352& 4)"4 2&15*2&-&.43 4)"4 ---PAGE BREAK--- " 1&'0 01 .2 0 ))01 1 0 1 ---PAGE BREAK--- 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 Cell FM Power Density (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. ---PAGE BREAK--- 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 D2 h , in mW/cm2, and for an aperture antenna, maximum power density Smax = 0.1 16 Pnet h2 , in mW/cm2, 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 RFF2 ERP 4 D2 , in mW/cm2, 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.