HomeMy WebLinkAboutReso - CC - 031-2012RESOLUTION NO. 31.-2012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF BURLINGAME DENYING THE APPEAL OF DOUGLAS
LUFTMAN AND MARK WILSON IN REGARD TO THE
CITY'S GRANT OF SPECIAL ENCROACHMENT PERMITS
NO. 82790-2 AND NO. 82790-3 TO EXTENET SYSTEMS OF
CALIFORNIA FOR THE PLACEMENT OF WIRELESS
COMMUNICATION FACILITIES
WHEREAS, in September 2010, ExteNet Systems of California, LLC (ExteNet), submitted eight
(8) encroachment permit applications for the placement of wireless antennas in the City of Burlingame
public right-of-way; and,
WHEREAS, in conjunction with the proposed wireless antennas, the project, as proposed by
ExteNet, includes additional fiber optic lines to be installed on existing above -ground utility poles and
installation of thirteen (13) required guy -wire safety anchors for the utility poles at various locations in the
City right-of-way; and,
WHEREAS, given the potential aesthetic and other impacts (but not including impacts of radio
frequency [RF] emissions) of the proposed sites and absent a City ordinance establishing a process for such
applications, staff developed a wireless antenna policy for processing these permits; and,
WHEREAS, in developing the wireless antenna policy, City staff collaborated with and solicited
comments from, among others, ExteNet.
WHEREAS, the wireless antenna policy was designed to minimize aesthetic and other impacts (but not
including impacts of RF emissions), to the extent feasible and to the extent permitted by Federal and State
regulations, and to inform the public through notification to residents of the proposed antenna, related
equipment and guy wire anchor sites; and
WHEREAS, fr
om December 2010 to July 2011, staff worked with ExteNet in developing and
reviewinC the public notification documents -- including photo -simulations of the proposed facilities and
maps detailing their location — which notification documents were revised several times to ensure their
adequacy, clarity, and accuracy; and
WHEREAS, after ExteNet mailed public notifications for eight (8) wireless an
tenna sites and
thirteen (13) anchor sites to the public on July 12, 2011, Public Works staff received seventy-four (74)
comments from the public, most of which were critical of the proposed facilities primarily because of
concerns of adverse aesthetic impacts, compliance with RF emission standards, and negative impacts on
property value due to the proposed facilities; and
WHEREAS, on September 2, 2011, based on the review of public comments an
d materials
submitted by ExteNet, staff requested that ExteNet provide additional information regarding possible
aesthetic improvements and/or undergrounding of the facilities, an alternative locations analysis,
compliance with FCC regulations regarding RF emissions, the necessity of the facilities to eliminate a
gap in coverage, property value impacts and alternatives to eliminate anchors; and
WHEREAS, Public Works staff conducted extensive discussions and site visits with ExteNet
regarding possible modifications to their proposed facility locations with an objective to minimize the
aesthetic impacts of the proposed facilities; and
WHEREAS, ExteNet did mod fy its original proposal to underground some of the equipment at
two (2) locations, to relocate the two (2) antennas and equipment that are the subject of this Resolution to a
nearby rear utility easement and to eliminate two (2) guy wire anchor supports for City approval; and
subsequently agreed to underground equipment at one (1) additional antenna site and eliminate one (1)
anchor after approval by Public Works Department; and
WHEREAS, on February 23, 2012, after an extensive review and consideration of all the materials
submitted and the modifications made by the applicant, the Public Works Department conditionally
approved the eight (8) special encroachment permits for the placement of eight (8) wireless antenna and
related ExteNet facilities; the permits included findings supporting the grant of the permits and conditions of
approval required prior to and after installation; and
WHEREAS, on March 5, 2012, Douglas Luftman and Mark Wilson appealed the decision of the
Public Works Department to issue the special encroachment permits to ExteNet for the placement of the
eight (8) wireless antenna and related wireless communications facilities in the public right-of-way; and
WHEREAS, on April 9, 2012, Douglas Luftman and Mark Wilson submitted a comprehensive
brief in connection with their appeal, in which they explain in detail several significant concerns with the
accuracy of the information submitted by ExteNet, the extent to which that information reconciles with
online coverage map information available on T -Mobile's website, the accuracy of field data on signal
coverage levels, field data that contradicts the conclusions regarding coverage advanced by ExteNet; and a
host of additional legal, factual, and technical issues; and
WHEREAS, on April 16, 2012, the City Council held a hearing on the appeal, at which it received
significant additional testimony from the appellants, ExteNet and the public, all of which the City has
considered and incorporated into its decision-making process.
NOW, THEREFORE, BE 1T RESOLVED, by the City Council of the City of Burlingame as
follows:
1) The Council has reviewed all 47+h
e material submitted by City staff, by the appellants and by
the applicant, and by members o£the public, has listened to and reviewed all public comment and
testimony regarding this matter, and, based upon that body of evidence, makes the decision herein.
2) The Council finds the materials presented by all of the parties to this proceeding provide the
following facts which the Council finds to be true and correct:
a. ExteNet submitted applications for eight (8) special encroachment permits for wireless
communications facilities including eight (8) antennas, related equipment, fiber optic aerially -strung
wire and thirteen (13) guy wire anchor supports in the northwestern residential areas of the City of
Burlingame.
b. The proposed placement of the antenna and equipment at this locations that are the
subject of applications 82790-2 and 82790-3 meet the "order of preference" requirement in the
Department of Public Works (DPW) special encroachment permit policy because the antenna
and related equipment and wiring will be placed upon a utility pole, the third locational
preference under the DPW policy; as there is no building at this location, the higher preferences
of "fagade mounted" and "roof mounted" are not applicable.
c. DPW requested re -submissions of photo simulations and maps of the proposed facility
locations prior to approval for public notification in order to ensure accuracy and clarity.
d. The final photo simulations, site location drawing, and notification of the proposed
facilities were sent to the residents per guidelines of the City's wireless antenna policy.
e. Per the guidelines of the wireless antenna policy, the residents responded to the ExteNet
with letters and emails regarding the proposed facilities and provided copies of the responses to the
DPW; these comments indicated a host of concerns relative to the adverse impacts of the proposed
facilities, including but not limited to adverse impacts on the residential character of the locations of
the proposed facilities.
f. The applicant responded to the residents comments with copies to DPW; the applicant on
at least one occasion, met with residents in the area of the Valdivia proposed facility.
g. Based upon the residents' assertion that the applicant did not adequately address their
concerns, DPW requested additional information from the applicant, addressing the following
issues, among others:
i) Request for alternatives to address aesthetic impacts such as undergrounding
facilities;
Alternative location analysis including Public Utility Easements;
iii) Radio Frequency (RF) emissions in regards to compliance with FCC
regulations;
iv) The need for facilities to eliminate a gap in service coverage;
v) Property value impact; and
vi) Alternative means to eliminate anchors but still satisfying safety requirements.
h. After receipt of the additional information fr
om the applicant, DPW met with the
applicant to discuss alternative locations for the antenna and related equipment; as a result, the
applicant agreed, among other things, to relocate two (2) of the eight proposed antennas to less
visually intrusive locations, in rear utility easements (those two antennas are the subject of this
(esolution); the remaining six (6) of the proposed antennas (which are not the subject of this
Resolution) were to remain on utility poles within the street right-of-way with undergrounding
equipment of three (3) of the six (6) as to mitigate aesthetic impacts.
i. DPW commissioned RCC Consultants, Inc., an outside independent wireless
communications expert, to review the technical submissions of the applicant with regard to, among
other things, the need for the facilities, RF compliance with FCC regulations and whether the
proposed project by ExteNet is consistent with industry practices. RCC's determined that
information provided by ExteNet does confirm the existence of service coverage gap (assuming that
ExteNet has a contractual relationship with T -Mobile, and assuming that the coverage standards
applied by ExteNet and RCC are appropriate in this circumstance). RCC further found that the RF
emissions from the proposed facilities will comply with FCC regulations.
j. DPW reviewed all of the materials submitted by the applicant and granted the eight (8)
special encroachment permits for wireless facilities per modifications as stated above, and accepted
in principle the conclusions offered by RCC.
k. Residents Douglas Luftman and Mark Wilson filed a timely appeal of DPW's approval
of the special encroachment permits.
3) The Council has been informed of and recognizes that while the City retains discretionary
authority over the permitting of wireless facility, that authority is constrained by federal and state
law.
4) After heazing and reviewing all the evidence and based upon the facts as found to be true herein,
the City Council hereby determines the following:
a. ExteNet is permitted by the State Public Utilities Code and regulations of the State
Public Utilities Commission, to place its facilities in the public right-of-way so long as (i) the
proposed placement does not incommode the use of the public rights of way, and (ii) ExteNet
complies with reasonable time place and manner restrictions (which may include aesthetic
considerations).
b. In regard to applications 82790-2 and 82790-3, ExteNet has substantially complied with
the Public Works Department Special Encroachment Permit Policy for Wireless Communications
Facilities by submitting the requested material, including corrected photo simulations of the
proposed facilities and location maps, certification of the need for the facilities, an alternative
locations analysis, revised photo simulations for the relocated antennas from the public right-of-way
to utility poles in the rear easements of both locations.
c. The proposed placement of the antenna and equipment at this location meets the
"order of preference" requirement in the DPW special encroachment permit policy because the
antenna and related equipment and wiring will be placed upon a utility pole, the third locational
preference under the DPW policy; as there is no building at this location, the higher preferences
of "fagade mounted" and "roof mounted" are not applicable.
d. The original proposal of the said two (2) applications was to place wireless antenna
and related equipment on City streetlight and existing utility pole, both in front of resident
homes. The original proposed location on existing City streetlight has zero existing overhead
utilities along the street fronting resident homes. The original proposed location on existing
utility pole has zero pole mounted facilities and minimal overhead wire. The original proposal of
the two locations would render the streetlight and utility pole an ugly eyesore.
e. The revised proposal for the said two (2) applications is to relocate the two (2)
wireless antenna and related equipment to nearby rear utility easements. There are existing utility
poles with overhead wires and facilities in the rear easement as well as tall trees adjacent to the
proposed pole for screening. The relocation to the rear easement has reduced the aesthetic
impacts to both neighborhoods.
f. The relocation of the wireless antenna from the City streetlight to the rear utility
easement also eliminated the original need for an electric meter pedestal in front of a resident's
home.
g. The City Council is satisfied that, in regard to applications 82790-2 and 82790-3,
although the evidence of the existence of a significant gap in coverage is equivocal, the facilities
proposed at these two locations are the least intrusive options for improving existing coverage in
the vicinity of the proposed locations.
h. The City's outside independent wireless communications expert, RCC, determined in
their independent review, that ExteNet's proposed RF emissions will comply with FCC regulations
and is consistent with industry standards.
i. Appellants and others have presented substantial evidence undermining ExteNet and
RCC's conclusions regarding the existence of a significant gap in coverage, including questions
regarding whether:
(i) ExteNet may rely on T -Mobile's asserted "gap" in coverage for purposes of
demonstrating a gap in coverage;
(ii) ExteNet has any contractual relationship with T -Mobile, and what the details
of that relationship are;
(iii) Online coverage maps available from T -Mobile are consistent with the
coverage assertions made by ExteNet;
(iv) The removal of some (but not all) proposed facilities would render any gap (if
one exists) less than significant;
(v) The signal strength standards asserted by ExteNet are in fact the level of signal
strength required to avoid a "significant gap" in coverage; and
(vi) Other factors, including but not limited to proximity to primary roadways and
significant business hubs support a "significant gap" determination.
Notwithstan
ding this information, the City Council is satisfied that, with regard to these
two facilities only, the site design and the absence of superior alternatives are sufficient to warrant
the granting of the applications to improve existing coverage even if no cognizable "significant
gap" in coverage currently exists.
5) Based upon all the factual evidence presented and the Council's fin
dings there from as stated
herein, the City Council of the City of Burlingame does hereby DENY the appeal of Douglas
Luftman and Mark Wilson to the ExteNet special encroachment permits No. 82790-2 and No.
82790-3 for the wireless communication antennas and related facilities and CONFIRMS the DPW
grant to Extenet Systems special encroachment permits No. 82790-2 and 82790-3. ExteNet shall
comply with all of the conditions contained within each special encroachment permit
I, Mary Ellen Kearney, Clerk of the City of Burlingame, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the Burlingame City
Council held on the 10 day of April, 2012, by the following vote to wit:
AYES: Councilmembers BAYLOCK,BROWNRIGG,DEAL, KEIGHR R, NAGEL
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
t
Mary Ell n Kearney, City Clerk