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HomeMy WebLinkAboutReso - CC - 032-2012RESOLUTIONNO32 -901 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME GRANTING THE APPEAL OF DOUGLAS LUFTMAN AND MARK WILSON IN REGARD TO THE CITY'S GRANT OF SPECIAL ENCROACHMENT PERMITS NO. 82790-19 827904, 82790-5, 82790-6, 827904 AND NO. 82790-8 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 reviewing 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 antenna sites an d 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 and 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 modify its original proposal to underground some of the equipment at two (2) locations, to relocate two (2) antennas and equipment (which antennas are not among the six (6) antennas 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 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 Lufhnan and Mazk 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 Apri19, 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 IT RESOLVED, by the City Council of the City of Burlingame as follows: 1) The Council has reviewed all of the material submitt ed by City staff, by the appellants by the applicant, and by members of 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 fi nds a. ExteNet submitt the materials presented by all of the parties to this proceeding provide the following facts which the Council finds to be true and correct: ed 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. 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. C. The fmal 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. d. 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. e. 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. f 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 under grounding 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. g. After receipt of the additional information from the applicant, DPW met with the applicant to discuss alternative locaxions 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 (although those two antennas are not the subject of this Resolution), in rear utility easements; the six (6) of the proposed antennas that are 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. h. DPW commissioned RCC Consultants, Inc., an outside independent wireless communications expert, to review the technical submissions of the applicant with regard to, among oAber 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 — based solely on its review of data submitted by ExteNet -- that information provided by ExteNet may be used to support a fording of a service coverage gap (assuming that ExteNet had 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 RF emissions from the proposed facilities will comply with FCC regulations. i. 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. j. Residents Douglas Luftman and Mark Wilson filed a timely appeal of DPW's approval of the special encroachment permits. k. 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, the availability of superior and less intrusive alternatives to provide better coverage in the vicinity of the proposed sites, and a host of additional legal, factual, and technical issues. 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 hearing 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 82790-1, 82790-4, 82790-5, 82790-6, 82790-7 and 82790-8, the proposed antennas at these six (6) locations continue to present significant aesthetic impacts to the surrounding neighborhoods. c. There is ample evidence in the record to support the conclusion that ExteNet does not have a significant gap in coverage in the area that is the subject of this application, including, but not limited to: (i) ExteNet does not directly provide "coverage" to an y subscriber, such that a "gap" in what it provides is cognizable; (ii) The City has not received sufficient documentation of ExteNet's relationship with T -Mobile to allow ExteNet to assert T -Mobile's alleged "gap" in coverage for purposes of this application, and the City has no legal to recognize such a "gap" in any event; (iii) T -Mobile's online coverage maps contradict ExteNet's claim that there is a gap in T -Mobile coverage; (iv) There is insufficient data regarding the number of allegedly underserved T - Mobile subscribers (or potential subscribers) in the vicinity of the proposed installations to realistically assess the extent of the "gap" (if any) in coverage; (v) Field data produced by the appellants indicates that coverage is not as bad as ExteNet claims; (vi) If a gap exists, and if the gap is significant, there is insufficient evidence to determine how many of the eight proposed antennas are necessary to render that gap "less than significant"; (vii) There is no evidence of the contractual standard for coverage (if any) that is required of ExteNet through its relationship with T -Mobile; and (viii) Other factors, such as proximity to major roadways and business hubs, do not support a finding of a significant gap in coverage. d. The six (6) proposed wireless antennas and related equipment, including those with undergrounded equipment, do not present the least intrusive means to address the alleged coverage gap identified by ExteNet due to the following reasons: (i) The proposed antenna and related equipment will be placed in front of residential homes along City streets without screening to the wireless facilities; (ii) ExteNet failed to identify alternate locations to screen the wireless facilities to adequately minimize aesthetic impacts as there are over 18,000 trees throughout the City of Burlingame that could be used as advantage to screen the wireless facilities; (iii) At four (4) of the locations, the existing utility pole will be extended between five feet (5') to ten feet (10') above surrounding utility poles and at three (3) of these locations, the existing fibers will be raised five feet (5') to ten feet (10') higher. At one (1) of the locations in front of a City playground, the existing utility pole will be raised fourteen feet (14') higher. Five (5) of the proposed locations will in residential single family home neighborhoods where the zoning ordinances prevents homes to exceed a height of thirty to thirty-six feet (30' — 36'); with these five (5) proposed locations extending the existing utility poles to a height of forty-five to forty-eight feet (45' — 48'), the proposed additional height renders the utility pole and fibers an ugly eyesore; (iv) ExteNet failed to provide alternative technology analysis including, but not limited to, stealth technology and macro system to minimize aesthetic impacts; (v) ExteNet provided insufficient alternative location analysis including, but not limited to, relocating to rear utility easements. There are existing rear public utility easements in close proximity to the proposed locations which ExteNet has not performed a feasibility study on relocating to the existing utility poles in these rear easements. e. ExteNet has represented to the City in writing that it has a contractual relationship with T -Mobile, a provider of personal wireless services, to use the facilities that are the subject of the applications on appeal; however, T -Mobile did not appear at the hearing nor did ExteNet provide documentary evidence supporting this representation. I. It does not appear that ExteNet offers its services on a common carrier basis, such that n can or should be entitled to the protections of state or federal law with regard to the siting of telecommunications facilities. 5) Based upon all the factual evidence presented and the Councs findings there from as stated herein, the City Council of the City of Burlingame does hereby GRANT the appeal of Douglas Luftman and Mark Wilson to the ExteNet special encroachment permits Nos. 82790-1, 82790-4, 82790-5, 82790-6, 82790-7 and No. 82790-8 for the wireless communication antennas and related facilities and REJECTS the DPW grant to ExteNet Systems of special encroachment permits Nos. 82790-13 82790-4, 82790-5, 82790-63 82790-7 and No. 82790-8. �4 Jeff eal, MIT a or 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 16`s day of April, 2012, by the following vote to wit: AYES: CouncihnembersBAYLOCK,BROWNRIGG, DEAL, REIGHRAN, NAGEL NOES: Councilmembers: NONE ABSENT: Councilmembers: NONE I r Wary Ellen kearney, City Clerk