Appeal of the Decision of the Director of Public
Works Granting Encroachment Permit No. EP-
823 for the Installation of Telecommunications
Wireless Facilities in the Public Right-Of-Way
located at
1544 W. Kenneth Road
November 7, 2023
• Applicant is Extenet Systems, LLC (“Extenet”).
• The proposed project is to install small
telecommunications wireless facilities (“Small Cell”) on a replacement street light within the public right-of-way (“Project”).
• The Project is located in a non-preferred zone.
Ø Preferred zones: commercial and industrial locations.
Ø Non-Preferred – residential zones or historic districts.
Project Description
• Applications for installations in Preferred zones are reviewed and decided by the Director of Public Works; no public hearing required.
• Applications for installations in Non-Preferred zones are subject to community notification and a noticed public
hearing prior to the Director of Public Works making a
decision.
Ø Applicant must demonstrate that the preferred location/zone is not reasonably feasible.
Ø For proposed sites inside a residential zone, or within 1,000 feet of a residential zone, the alternative site analysis must include an evaluation of the availability and feasibility of potential preferred locations and within preferred zones. Feasibility factors include, but are not limited to, coverage, ability to provide camouflage and other aesthetic treatments, construction and operations costs, and site availability.
Project Description (Cont.)
• City Council’s review is de novo – independent
examination.
• City Council’s decision is the final decision of the City.
Project Description (Cont.)
Appellant contends that the proposed Project:
• Will impact the health and safety of neighbors/tenants/public. • Decrease in property values.
• Proposed location is near a private child care facility. • Applicant never presented a study on the health and safety of 5G technology in the past 15-20 years.
• Discrimination against Armenian American property owners vs.
Lutheran Church due to Extenet’s withdrawal of an application for a proposed facility in front of Lutheran Church.
Summary of Appellant’s Appeal
5 Telecommunications Act (1996)
47 USC Section 253(a) – prohibits a state or local agency from establishing statutes, regulations or local requirements which “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”
Ø Regulatory authority of municipalities is limited to time/place/manner.
Ø Traffic safety/aesthetics/pole load/noise.
Municipal Authority Over Telecommunications Wireless
Facilities
47 USC Section 332(c)
Ø Establishes:
1. The “Shot Clock”
• 60 days to review applications for small cells attached to existing structures (poles, street lights)
• 90 days to review applications for colocations and small cells attached to new locations.
2. Radiofrequency (RF) jurisdiction
Ø Prohibits discrimination among different providers.
Ø Requires denials of applications to be in writing and supported by substantial evidence.
Municipal Authority Over Telecommunications Wireless
Facilities
Radio Frequency (RF) Safety Standards:
Ø FCC has exclusive jurisdiction over RF safety standards.
Ø “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 Commission’s regulations concerning such emissions.” 47 USC Section 332(c)(7)(iv).
Ø Municipalities are allowed to request proof of compliance with FCC.
Municipal Authority Over Telecommunications Wireless
Facilities
Radiofrequency (RF) – December 2019 FCC Order
Ø “Resolves and terminates” the inquiry to review FCC’s RF exposure standards.
Ø FCC found “no appropriate basis…to reevaluate the existing RF exposure limits” since federal agencies such as the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA) have found no evidence that links cell phones with any health problems.
Ø FCC declined to reevaluate RF exposure policy as it pertains to children.
Municipal Authority Over Telecommunications Wireless
Facilities
The proposed Small Cell facility must meet the provisions of GMC
12.08.037, the City’s ordinance rules for cell site installations in the public right-of-way.
1. Notification requirements: mailed and posted notice of the proposed project, as well as mailed and posted notice of the public hearing.
2. Proposed facility must meet the provisions of GMC 12.08.037.
3. Proposed facility must not interfere with the use of the public right -of- way.
4. Proposed facility must not interfere with vehicular, bicycle and/or pedestrian use of streets, intersections, sidewalks or driveways.
Glendale Municipal Code (GMC)
Section 12.08.037 Requirements
5. Proposed facility must comply with Americans with
Disabilities Act.
6. Proposed facility is designed to meet the City’s
aesthetic standards.
7. Alternative sites analysis.
8. “High visibility” vs. “low visibility” considerations for the proposed facility.
Glendale Municipal Code (GMC)
Section 12.08.037 Requirements (Cont.)
9. Possibility of colocation for the proposed facility.
10. Proposed facility is intended to close a significant gap (macro sites) or enhance coverage (micro sites). The application includes propagation maps of coverage. *
*2019 FCC Third Order and Declaratory Ruling prohibits cities to require carriers from proving a significant gap coverage.
Glendale Municipal Code (GMC)
Section 12.08.037 Requirements (Cont.)
Insert Photo – if there is a before an after, insert photos in different slides: first one for “before” and second slide for “after”
Proposed Project – 1544 W.
Kenneth
(Photo Simulation by Verizon)
(Source: Applicant)
Proposed site
(Source: Applicant)
Coverage Map – After
(Source: Applicant)
Proposed Project – Alternative Sites
(Source: Applicant)
Addressing Appellant’s contentions relating to the Project:
• Will impact the health and safety of
neighbors/tenants/public.
– FCC has sole jurisdiction over RF health and safety standards. – In 2019 FCC determined that a re-evaluation was not warranted. • Decrease in property values.
– No expert evidence demonstrating impact on property values. • Discrimination towards Armenian American property
owners.
– Extenet withdrew its application for a proposed location in front of Lutheran Church due to a noticing error.
– Extenet will be re-submitting the application in front of the same property but on an adjacent street light pole.
Addressing Appellant’s Contentions on
Appeal
17 Ø The City Council DENY the Appeal and UPHOLD the
Permit for the Project.
Ø The City Council GRANT the Appeal, reverse the
decision of the Director of Public Works, and continue the matter for staff to prepare written findings consistent with City Council’s direction for granting the Appeal.
City Council Options