Moore, Tania
From:
Sent:
To:
Subject:
Attachments:
Fikes, Cathy
Monday, July 17, 2023 4:35 PM
Agenda Alerts
FW: Appellant Letter- 7/8 City Council Hearing Agenda Item 17 re CUP No. 23-006 (AT&T Wireless Facility)
2023-07-17 Price Appeal Letter to Council- inc attachments.pdf From: [email protected] <[email protected]> Sent: Monday, July 17, 2023 4:00 PM
To: CITY COUNCIL (INCL. CMO STAFF) <[email protected]> Cc: Beckman, Hayden <[email protected]>
Subject: Appellant Letter- 7/8 City Council Hearing Agenda Item 17 re CUP No. 23-006 (AT&T Wireless Facility) Honorable Mayor and Members of the City Council:
Attached, please find a letter on behalf of Christina Price, the appellant in connection with July 18th Agenda item 17 concerning appeal of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility).
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P,C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
Dste—-^2&^^3.
Agenda Item Mo.;.'9^ -JT5TT
Ariel Strauss, Of-Counsel
2748 Adeline Street, Ste. A
Berkeley, CA 94703
510-900-9502x702
', f^ [email protected]
www.greenfirelaw.com
July 17,2023
Via Electronic Mail
To: [email protected]
RE: Opposition to Approval of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility)- Agenda Item 17
Table of Contents
A. The Planning Commission Tie Vote Denied the Permit Because AT&T had the Burden of Establishing Each Required Finding.
B. AT&T'S Application is Incomplete and Fails to Consider Potential Colocation with 1,000 Feet.
C. AT&T Did Not Establish that the Facility will Not be "Detrimental to the Value of the Property and Improvements in the Neighborhood. "
D. The Council must Consider the Foreseeable Impact of a Future Taller Tower.
E. Noise from the Diesel Generator Violates the Noise Ordinance and General Plan.
F. AT&T'S Project will Spew Unacceptable Pollution and be Detrimental to the General Welfare.
G. AT&T'S Project Violates Federal Law andHBZSO Section 230.96(G)(6).
H. A 60-Foot Tower in a CO Zone with a Diesel Generator does not Qualify for the CEQA Exemption.
I. The City Must Retain an Expert if it Intends to Approve the Application Based on Asserted Preemption.
J. Conclusion.
Exhibits A, B, C
Dear Mayor Strickland, Mayor Pro Tem Van Der Mark, and Council Members Burns, McKeon, Kalmick, Moser, and Bolton:
I am writing on behalf of appellant Christina Price requesting that the Council deny a conditional use permit (CUP) for the 60-foot wireless communication facility and associated equipment proposed to be constructed at 8101 Slater Ave. A letter detailing the deficiencies in AT&T Mobility's (AT&T) application and additional background supporting the negative property value impacts of the facility were previously submitted to the Planning Commission prior to the appeal hearing held on June 13, 2023, and will be provided again separately for your review. This letter reiterates some of those materials and responds to the Staff Report and AT&T'S letter submitted on July 14,2023.
K. The Planning Commission Tie Vote Denied the Permit Because AT&T had the Burden of Establishing Each Required Finding.
Ms. Price already prevailed at the Planning Commission appeal hearing held on June 13th.
This is because, due to the absence of one commissioner, three commissioners voted to deny the appeal and three commissioners voted to uphold the appeal. As explained in the letter provided to the City Attorney and Planning Commission Chair on June 14, 2023 (see Exhibit A), the Planning Commission appeal and this City Council appeal hearing are both de novo and, according to the Huntington Beach Zoning and Subdivision Ordinance (HBZSO), "the applicant has the burden of proof at the public hearing on the application and at the public hearing on the aggeal."' "The reviewing body shall hear the appeal as a new matter. The original applicant has the burden of proof."2 State law is explicit that when an appeal is on a de novo standard and the applicant has the burden of proof, the applicant must secure a majority vote to establish all required findings for issuance of a permit.3 Therefore, a tie vote was the Commission's refusal to the make the required findings and a denial of the permit application.
This is also clarified by Section 11 of the Commission 's Bylaws, which states: "An affirmative vote of a majority of the members present and voting shall be required for the passage of any matter before the Commission, except as otherwise noted in these bylaws." Legally, according to the standards of the HBZSO, the "matter before the Commission" was whether AT&T met its burden for issuance of a permit; as quoted above this is a "new matter." • HBZSO § 248.06.
2 Id. §248.20(D).
3 See, e.g., dark v. City ofHermosa Beach (1996) 48 Cal. App. 4th 1152, 1176 n; REA Enters, v. Cat. Coastal Zone Conservation Comm. (1976) 52 Cal. App. 3d 596, 612; Anderson v. Pittenger (1961) 197 Cal. App. 2d 188, 195. 2 The Assistant City Attorney wrongly contended that a general statement in the City Council Manual, which is a guidance document for the City Council, transforms a tie vote into an approval of the permit. However, the City Council Manual does not override the clear standards intheHBZSO.4
The Council should conclude that the Commission's tie vote denied AT&T'S application and refund Ms. Price's exorbitant appeal fee of $4,001.50.
L. AT&T'S Application is Incomplete and Fails to Consider Potential Colocation with 1,000 Feet.
The Staff Report claims that AT&T need not comply with the Wireless Permit application requirements because its application is subject to the Conditional Use Permit (CUP),5 and demanding that information "would be duplicative."6 However, this is backward. First, the appeal is based on the failure of AT&T to provide missing information, such as the required number of photo simulation perspectives, "close-in photo simulations," and photos angle information stated on the City's application form,7 as well as a listing of existing antennas within 1,000 feet as required in the HBZSO. None of this missing material is "duplicative." Second, a CUP is a higher threshold precisely because the project does not qualify for a Wireless Permit on account of being a ground-mounted structure exceeding the allowed height in the zone by more than 10 feet.8 Therefore, it is illogical and backwards to claim that the minimum aesthetic and colocation information necessary to review a Wireless Permit application is somehow beyond what is needed for approval of a CUP. Larger stand-alone facilities are precisely the type that should be required to be collocated whenever possible given that they have the greatest propensity for detrimental aesthetics.
The Code states that the applicant, "at a minimum shall provide the following information . . . Locations of all other Wireless Antennas within 1,000 feet of a proposed ground- mounted Facility. Co-location of ground mounted facilities shall be required where feasible 4 The FonvardXo the Council Manual declares: "Any information contained in the Council Manual that conflicts with Federal, State or Huntington Beach law is superseded by the conflicting law." 5 See Staff Report, Section 4(c) )"HBZSO Section 230.96 (E)(l)(g) and (g)(5) apply to co-location. As previously stated, the proposed project was not subject to the review or approval of a wireless permit, and thus this section is not applicable.")
6 Staff Report, Section 3.
7 See items 2.08, 3.02, 3.06, 4.01 and 5.01 of https://wwvv.huntinetonbeachca.eov/files/users/D]annine/Wireless- Permit-Application-.pdf.
8 HBZSO § 230.96(B)(3)
3 whenever such a Facility is proposed within 1,000 feet of any existing Wireless Antenna."9 The Staff Report disparages the significance of the lack of any mapping by stating that "there is no other operating freestanding wireless facility within 1,000 feet of the proposed project site."10 Nevertheless, the Code requires identification and analysis ofcolocation potential for "any existing Wireless Antenna." According to the ordinance definitions, "Wireless Antenna" includes roof mounted antennas and "permitted Wireless Antennas that have not yet been constructed[.]"n The requirement is not limited to "freestanding wireless facilities." Staff and AT&T have simply made up this narrow condition.
A search of the City's Accela Citizen Access portal for Wireless Permits turns up hundreds of approvals. A quick initial review revealed that Wireless Permit No. 2010-0043 was approved for 17473 Beach Blvd. in 2010. On May 20, 2021, a building permit was issued for a cell site modification for six rooftop antennas. A copy of building permit B2020-005664 is attached as Exhibit B. As depicted in the GoogleEarth measurement below, this site near the corner of Beach Blvd. and Slater Ave. is within than 850 feet AT&T'S proposed facility. 9 Id. § 230.96(E)(l()g); see also § 230.96(G)(5).
10 In response to my Public Records Act request (reference C004344-062123) of June 21, 2023, for "address of wireless communication facilities 40 feet or greater that were approved by the City within the past 8 years[,]" staff informed me:
Unfortunately, we do not have a way to filter our records to show all of the cell towers in in our city. Cell towers and their associated equipment can be submitted under various types of applications (Wireless permits, building permits and conditional use permits) so you may want to refer to either our online portal or our online records library.
I do not know how staff made a determination that there no nearby stand-alone facilities. "HBZSO,§230.96(B)(6),(11).
4 AT&T was required to identify all existing Wireless Antennas within 1,000 feet but plainly failed to do so, even after the issue was pointed out in the Planning Commission appeal.
AT&T was also obligated to evaluate the feasibility ofcollocating on any nearby facility, including but not limited to the one at 17473 Beach Blvd., but this too it has not done. As a result, the application must be denied as deficient.
M. AT&T Did Not Establish that the Facility will Not be "Detrimental to the Value of the Property and Improvements in the Neighborhood."
In plain legal error, the Staff Report asserts "There is no requirement for applicants to demonstrate to the City that there would be no detriment to property values in the neighborhood."12 This is perplexingly wrong.
The HBZSO requires that AT&T "must apply for a conditional use permit (CUP) to the Zoning Administrator pursuant to Chapter 241 of the HBZSO."13 Staff concur that a CUP is the 12 Staff Report, Section 4(a).
13 HBZSO § 230.96(E)(3).
correct application process. According to Chapter 241, a required finding for issuance of a CUP is that "The establishment, maintenance and operation of the use will not be detrimental to the general welfare of persons working or residing in the vicinity nor detrimental to the value of the property and improvements in the neighborhood."14 This burden must be borne by AT&T.
The Staff Report further brushes aside property value concerns by stating that "City staff are unaware of any negative property value impact claims related to any previously approved wireless communication facility in the City. Further, the appellant has not provided any evidence to support the claim that the project would have an impact to the value of surrounding properties."15
Being "unaware" of impacts on other sites cannot carry the burden to confirm a lack of negative impact in this location. AT&T has similarly dismissed property value issue by citing to general academic studies and claiming all opposition is based on health fears. Specifically, the concern is that a 60-foot tower that can, by-right under federal law as discussed below, grow to 80 feet, will be a conspicuous commercial imposition that will diminish to the resale value of homes on Windy Sands Circle shown in this aerial photograph:
14Id.§241.10(A)(l).
i5 Staff Report, Section 4(a).
Everybody knows that good schools increase property values in a community. But that does not mean, regardless of how it is run or configured, building a school will improve the property value of a property right next door. The same is true fora cell tower. Even if people want good cell service, the facility itself can be detrimental to adjacent homes.
The property line for the closest home is within 60 feet of the proposed facility, or in other terms, less than the height of the tower itself. "[0]bjections raised by neighbors who know the local terrain and the sightlines of their own homes" do constitute "substantial evidence" of aesthetic harm.16 Many neighbors in public comment and letters to the Commission complained that they can tell the difference between a fake tree and a real tree; one comment described it as an "eyesore." If the "observations of self-interested neighbors conflict with an expert study submitted by a self-interested applicant," the Council has the authority and discretion to side with the neighbors.17 The City cannot discount valid aesthetic objections merely because neighbors also express opposition on health grounds.
The City Council itself legislatively determined that wireless faciliteis pose a threat of "potential negative aesthetic impacts of Wireless Communication Facilities, including visual blight and diminution of property value[.]"18 In fact this is a primary "purpose" of the City's ordinance and staff and AT&T must not simply waive away this concern.
A "completely stealth" Wireless Communication Facility is one "that has been designed to completely screen all aspects of the Facility including appurtenances and equipment from public view."19 Staff and AT&T concede that the proposed tower does not qualify for this designation. The HBZSO specifically determined that facilities precisely like this one, namely one that is not completely stealth, exceeds allowable height in the zone and is ground-mounted must pass discretionary CUP review.20 The fact that the Wireless Facility is clad in plastic branches cannot justify an automatic approval.
At the Planning Commission hearing, a commissioner specifically asked in the future that AT&T provide actual photos of the equipment and of this type faux tree in operation. AT&T'S representative said that AT&T could do that. However, AT&T'S visual materials have not been updated whatsoever. Given its proposed height, the tower will have full sun. Because it is to the 16 Omnipoint Comms., Inc. v. City of White Plains (2d Cir. 2005) 430 F.3d 529, 534. 17 Id.
I8HBZSO§230.96(A).
19 Id. § 230.96(B)(4).
20' Id. § 230.96(E)(2)(c).
south of the residences it will be backlit part of the year. The Council must consider whether the antenna equipment would remain hidden in full sunlight and avoid any reflecting or glinting.21 The extent of shadow cast on any neighboring properties, particularly during the winter months and near sunset must also be assessed. The opaque, simulated facility images do not allow these details to be determined. Given the Council's familiarity with community norms, the Council should determine that AT&T has not met its burden of demonstrating that this facility will not be "detrimental to the value of the" adjacent homes on Windy Sands Circle.
N. The Council must Consider the Forseeable Impact of a Future Taller Tower.
Federal law entitles AT&T, or any other carrier such as T-Mobile or Verizon, to add to this tower and expand it horizontally and vertically by up to 20 feet in each direction, regardless of any local zoning restrictions.22 The already-proposed height of 60 feet causes the facility to extend well above any of the nearest buildings, which are only two stories. The City must now consider the impact of an 80-foot tower (twice the height allowed in the CO zone).
The Staff Report misleadingly reassures that expansion of the facility "would require a new Conditional Use Permit application before any such modification could be made to an existing monopole facility such as is proposed."23 While as a formality, a wireless carrier would have to procedurally request a CUP, in substance, federal statute expressly declares that "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station."24 FCC regulations defines a "modification .. . that does not substantially change" it to include the addition ofcollocated antennas and expansion 20 feet in any direction.25 The City will lack discretion to deny or meaningfully condition a large size increase.
This should be a series concern for the Council because the CUPs may only be approved if the "establishment, maintenance and operation of the use will not be detrimental to the general welfare of persons working or residing in the vicinity nor detrimental to the value of the property and improvements in the neighborhood." 26 In this instance, uniquely, the use can expand 21 Note that the design shows that the antennas are only 18 inches from edge of the plastic "canopy." (Attach #21 the Agenda, Sheet A-2, Antenna Plan.)
2247C.F.R.§1.6100(b)(7)(i),(ii).
23 Staff Report Section 4(b).
24 47 U.S. Code 1455(a)(l).
"47C.F.R. § 1.6100.
26HBZSO§241.10(A)(1).
massively. Establishing it today can result in operations that will be detrimental to property values and general welfare because of its improper height that will draw excessive attention and cast shadows over adjacent residential backyards.
While the probability that this growth will occur is unknown, it is certainly foreseeable.
This is particularly so given that staff note there are no other stand-alone facilities in the vicinity so other carriers may wish to also locate on this site. This concern was noted by a Planning Commissioner as well. Regardless of the assumed likelihood of expansion, the purpose of a CUP is to impose sensible regulations to allow community assurance of the orderly use of property for the long-term future.27 Because uncontrolled growth of this site will be detrimental in this location context, AT&T has not met its burden for approval of a CUP.
0. Noise from the Diesel Generator Violates the Noise Ordinance and General Plan.
In a letter to the Planning Commission submitted last month, the appellant detailed how cooling systems and 20kW Generac diesel generator just feet from a residential property line is likely to violate the Noise Ordinance. Notably, AT&T has all the information, such as data sheets and design specifications, necessary to prove that it will comply, if that is indeed the case.
Instead of providing this information, AT&T stated in its letter of July 14th that "[t]here is no indication the Proposed Facility will not comply fully with the city's rules." Such a generic asserted lack of "indication" of violation does not meet the applicant's burden of proof to affirmatively establish compliance. It rather simply speaks to AT&T'S decision not to share any information.
It also is not responsive to the appellant's previous recitation in its letter to the Commission that a publicly available operating data sheet advertises a noise level of 70 dBA at 23 feet when "operating at normal load."28 This figure is just a marketing example and does not include deviations from advertised specifications, peak volumes, echoing, increase noise levels as the system ages or other issues. Under the Noise Ordinance, "fixed noise sources" may not produce noise received at the outdoor residential property line, which is approximately ten feet from the diesel generator, that is equal or greater than 50 dBA of continuous sound level late at night and 55 dBA during other times, nor a maximum sound level of 70 dBA late at night and 27 Note: State law generally prohibits permit terms less than 10 years for wireless facilities. (Gov. Code § 65964.) 28 https://www.eenerac.com/eeneraccorporate/media/library/content/all-products/aenerators/home- iienerators/protector-series/10000023 912.pdf.
9 75dBA other times.29 The Ordinance does not have any exception for emergency situations and AT&T does not offer any analysis of the expected frequency of emergency occurrences, which have been increasing with all too-common Southern California Edison outages in recent years.
AT&T also falsely claims that "AT&T would have a state-law right to install in any event (see Cal. Gov. Code § 65850.75)[.]" But Government Code, section 65850.75 provides a macro tower operator a right to install backup power on a "nondiscretionary basis if it meets all of the following requirements: . . . The macro cell tower site at which the emergency standby generator is proposed to be installed is an existing site that was previously permitted by the applicable local agency." This site has not yet been permitted so Section 65850.75 does not currently apply and it is inappropriate to seek to use this statute to force the City to reduce its present discretionary review, including the authority to deny the application. Even if this section was relevant, the generator must still "complyQ with all applicable state and local laws[,]" which includes the Noise Ordinance at issue now.
The General Plan's Noise Element Goal N-2 "[r]equire[s] an acoustical study for proposed projects in areas where the existing or projected noise level exceeds or would exceed the maximum allowable levels identified in Table N-2." It is not appropriate to defer consideration of noise for the building permit phase when the application as proposed is likely to violate the Noise Ordinance standards.
P. AT&T'S Project will Spew Unacceptable Pollution and be Detrimental to the General Welfare.
The operation a diesel generator that emits greenhouse gases, like carbon dioxide, as well as criteria pollutants like sulfur dioxide ("S02"), nitrogen oxides CNOx), coarse and fine particulate matter (PM10, PM2.5), and other hazardous pollutants like mercury, adjacent to residential backyards is detrimental to the general welfare. The conspicuous heigh of the tower and noise are also detrimental to the public welfare.
Q. AT&T'S Project Violates Federal Law and HBZSO Section 230.96fG)f6).
The HBZSO requires that "All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities."30 The appellant's June 12th letter to the Planning Commission addressed this in detail but the 29 Huntington Beach City Code § 8.40.050(A).
30 HBZSO § 230.96(G)(6).
10 appellant's Notice of Appeal in Agenda Attachment #2 cited to the wrong subparagraph (Section 230.96 (G)(7) instead of 230.96 (G)(6)). This typo was obvious because the Notice of Appeal discussed violations of federal law but the Staff Report, nevertheless, concluded: "This section does not require that the applicant demonstrate compliance with either the National Environmental Policy Act (NEPA) or the Migratory Bird Treaty Act (MBTA) as a part of its local discretionary review." Plainly, the HBZSO certainly does require AT&T to establish compliance with NEPA and the MBTA.
As explained in public comments submitted to the City, Cooper's hawks have been nesting on the Community Church site for many years. Unintentional, indirect killing of hawks or hawk eggs, or destruction of a nest, is a federal crime.31 As a result, the FCC requires assessment of actions by an FCC-licensee, such as AT&T, that "may have a significant environmental impact," including by harming MBTA-protected birds.32 The assessment must also consider whether the project is a "source of controversy on environmental grounds in the local community."33
The U.S. Department of the Interior, the agency charged with enforcement of the MBTA, has informed the FCC that radiofrequency (RF) emissions from cell towers can result in the death of migratory birds and must be considered under NEPA. The Department of the Interior explained that "[r]adiation at extremely low levels (0.0001 the level emitted by the average digital cellular telephone) caused heart attacks and the deaths of some chicken embryos subjected to hypoxic conditions in the laboratory while controls subjected to hypoxia were unaffected (DiCarlo et al. 2002)."34 Additionally, mature birds, and especially hatchlings born in cell towers, may get caught in tower equipment, necessitating special procedures to deter roosting in such towers.35
While the City is prohibited from considering the environmental effects ofRF that is within FCC limits,36 the level ofRF within the faux tree will exceed those limits according 31 16 U.S. Code § 703(a); see also, 86 Fed. Reg. 54642 (Oct. 4, 2021) (discussion of prohibition on "incidental take").
3249C.F.R.§1.1307(d).
33Id.§1.1311(a)(3).
34 Willie R. Taylor, Dept. of Interior, Letter to E!i Veewndcdl, FCC, Feb. 7, 2014, available at https://ehtrust.or.s/department-interior-]etter-impacts-birds-electromagnetic-radiation-outdated-fcc-limits/. 35 FCC, Fact Sheet: Raptor Nesting on Towers (May 12, 2016), available at https://www.fcc.gov/wireless/bureau- divisions/comDetition-infrastructure-Dolicv-division/tower-and-antenna-sitinK. 36 47 U.S. Code § 332(C)(7).
11 AT&T'S modeling.37 Given raptor's propensity for roosting on the site, those emissions will foreseeably impact the protected Cooper's hawks, and that can be considered by the Council.
Moreover, the Council must consider whether AT&T has complied with federal regulations mandating preparation of an Environmental Assessment (EA) under NEPA.
On behalf of a different client, on June 9, 2023,1 filed a complaint to the FCC contesting AT&T'S refusal to prepare an EA. A copy of that complaint is attached to the June 12,2023 letter to the Planning Commission and separately submitted to the Council. The FCC is currently in the process of determine whether AT&T'S assertion that no further action is required complies with NEPA and the MBTA (see attached Exhibit C (Email from FCC)).
AT&T'S July 14th letter includes a superficial Biological Evaluation showing no critical habitats or endangered species. However, that has no bearing on the MBTA concern. The Evaluation is dated June 2nd, the day after I notified AT&T of potential injury or death to federally-protected Cooper's hawks due to entanglement or excessive radiofrequency emissions inside the Wireless Facility faux tree. To date, AT&T has done nothing to address the problem other than to offer to perform a site study to avoid hurting hawks "actively nesting in and around the project site" at the time of construction.
Neither "the TCA [Telecommunications Act] nor any other federal law .. . forbids a local government from independently considering compliance with federal law in deciding whether to grant or deny a building permit" or planning permit.38 Moreover, under the HBZSO, the Council is obligated to determine whether AT&T has met its burden of demonstrating compliance with federal law. Presently, in light of the active FCC complaint and manifest risk of death to Cooper's hawks that will roost in the "broadleaf Wireless Antenna Facility, it has not met its burden.
R. A 60-Foot Tower in a CO Zone with a Diesel Generator does not Qualify for the CEQAExemBtipn.
City staff claim that this application qualifies for the "New Construction or Conversion of Small Structures" CEQA exemption provided for in CEQA Guidelines Section 15303. That exemption is for "construction and location of limited numbers of new, small facilities or structures [and] installation of small new equipment and facilities in small structures[.]"39 The 37 AT&T Letter to City Council, Attachment C, Appendix B, p. 12 (July 14, 2023). 38 Southeast Towers, LLCv. Pickens County (N.D.Ga. 2008) 625 F.Supp.2d 1293,1302. 39 The Notice of Public Hearing stated a new, additional basis for exemption, Section 15302, covering the "replacement or reconstruction of existing structures and facilities where the new structure will be located on the 12 regulation does not define "small" but offers a nonexclusive list of examples, such as one single- family dwelling, a store not exceeding 2,500 square feet, commercial buildings not exceeding 10,000 square feet "on sites zoned for such use if not involving the use of significant amounts of hazardous substances[,]" or"[a]ccessory (appurtenant) structures including garages, carports, patios, swimming pools, and fences." The proposed tower is not an "accessory" to anything on the Community Church property and is not covered by any of the specific examples.
The Staff Report claims that the exemption applies because it covers "a 10,000 sq. ft. commercial building, which is far larger in size and scope than the proposed project."40 This misplaced analogy demonstrates a misunderstanding of the exemption. The 10,000 square foot maximum applies specifically to a "store, motel, office, restaurant or similar structure." These structures in a zone where they are allowed, would not be out of place and could be assumed to have usual impacts. However, this example would not exempt a stand-alone parking lot or farm of the same size, because such uses are less typically. Consequently, it is wrong to assume that a cell tower is a "small structure" simply because it is smaller than 10,000 square feet in floor area.
It is necessary to look at the case law dealing with similar structures.
In the case of Don't Cell Our Parks v. City of San Diego, this CEQA exemption was upheld for a 35-foot faux tree antenna tower hidden in a stand of taller trees in a city park because it was "much smaller than a single-family residence, store, motel, office or restaurant[.]"41 However, unlike the 35-foot disguised tower among trees at issue in Don't Cell Our Parks, AT&T'S proposed facility is far more conspicuous.
AT&T'S tower, by virtue of its size and position, is also even more out of place with the surrounding environment than the installations recently denied in the 2022 case of Saint Ignatius Neighborhood Association v. City & County of San Francisco. There, the court of appeal explained that this CEQA exemption cannot be used to exempt 90-foot-tall light standards because they
are significantly taller than any other structure in the neighborhood, the city's zoning ordinance limits residential buildings in the area to 40 feet tail and typical streetlights are only 25 to 30 feet tall... The cell tower [in the Don't Cell Our Parks case] was small within its setting, unlike the light standards at issue here which will be by far the tallest structure same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced[.]" It is hard to understand how this could possibly pertain to the construction of a brand new, stand-alone cell tower that does not "replace" the preexisting palm tree. Given that the Agenda does not mention this exemption, I will assume that the City no longer is contending that it applies. 40 Staff Report, Section 5(b).
41 Don't Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338, 359-360. 13 in the surrounding area. They are not small within the environment but instead tower over it.42
The court also rejected comparison with buildings, specifically pointing out that "residential and commercial structures listed in the guideline are subject to applicable zoning requirements, which ensure their height will be generally consistent with the surrounding neighborhood."43 Here too, surrounding structures are of virtually identical height to the buildings in Saint Ignatius and the zoning height limit in the Office Commercial District (CO) zone is the same (40 feet).44 While AT&T'S 60-foot tower is shorter than 90 feet, it has the potential to grow 20 feet under federal law (as discussed above).
It also is not necessarily the case that the Church is a site "zoned for such use" because a CUP is required in order to exceed the 40-foot height limit.45 Moreover, the project entails a diesel above-ground tank, which is the "use of significant amounts of hazardous substances." The diesel generator adjacent to residents will have significant and unexplored environmental impacts due to noise and pollution that are not typical in this neighborhood (and even prohibited as discussed above).
When a project entails a "feature that distinguishes it from others in the exempt class"46 it does not qualify for the exemption. The excessive height of the AT&T facility in this specific zone and the operation of a diesel generator make this project clearly ineligible for the Section 15303 CEQA exemption.47
S. The City Must Retain an Expert if it Intends to Approve the Application Based on Asserted Preemption.
The Staff Report is correct that federal preemption is not relevant here. A detailed rebuttal to preemption was contained in the appellant's prior letter to the Planning Commission.
The most essential point is that any preemption claims are moot because AT&T has not satisfied the application requirements. Federal law does not exempt AT&T from complying with the City's reasonable application procedures, such considering colocation, and it cannot demonstrate 42 Saint Ignatius Neighborhood Assn. v. City and County of San Francisco (2022) 85 Cal. App. 5th 1063, 1072-73 (ordered depublished).
43 Id. at 1072.
44HBZSO§211.06.
45 Id. § 230.72.
46 Berkeley Hillside Pres. v. City of Berkeley (2015) 60 Cal.4th 1086,1105. 47 Note: FCC shot clocks do not prevent the City from conducting proper CEQA review because "the shot clock requirements create only presumptions.. . local officials can show that additional time is necessary under the circumstances." City of Portland v. United States (9th Cir. 2020) 969 F.3d 1020, 1043. 14 an effective prohibition of personal wireless services would exist if it were to properly apply for a site.
However, if the Council were to accept that a denial would amount to an effective prohibition, the Council still lacks the authority to approve AT&T'S application at the July 18th hearing on that basis alone. The HBZSO states as follows:
A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent and whether the gap affects a commercial district. Consequently, the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion.48
The Staff Report is incorrect that mandatory expert review is only required if the applicant appealed on the basis of "Denial of Effective Service pursuant to HBZSO Section 230.96 (F)[.]"49 Rather, the HBZSO dictates that an expert opinion be obtained whenever the City overrides its own ordinance because such action must not be taken lightly and staff lack the technical expertise to evaluate preemption claims.
T. Conclusion.
For the foregoing reasons, the Commission must reject AT&T'S application as incomplete and inconsistent with the HBZSO, Noise Ordinance and General Plan, and not compliant with federal environmental laws. It also must find that project in eligible for a Section 15303 categorical CEQA exemption.
Respectfully,
GREENFJRE LAW, PC
Ariel Strauss, Of-Counsel
48 HBZSO § 230.96(A).
49 Staff Report, Section 6(c).
15 Exhibit A
Ariel Strauss, Of-Counsel
2748 Adeline Street, Ste. A
Berkeley, CA 94703
5fo'-900-9502x702'
', r^- [email protected]
www.greenfirelaw.com
June 14, 2023
Via Electronic Mail
To: Planning Commission Chair Tracy Pellman ([email protected]) and City Attorney City Attorney Michael E. Gates (Michael.Gatesfa),surfcity-hb.org) RE: Request to Correct Error Regarding Interpretation of Tie Vote on June 13,2023 Appeal of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility)
Dear Chair Pellman and City Attorney Gates:
I am writing to seek a correction ofamischaracterization of the consequences of the votes that occurred at yesterday's Planning Commission hearing on Christina Price's appeal of Conditional Use Permit 23-006 (CUP) and the approval of a CEQA exemption.
As you will recall, Commissioner Woods was absent and only six Commissioners were present. After close of the public hearing and deliberation by the Commissioners, Commissioner Rodriguez made a motion for a vote to deny the appeal, which was seconded. The Chair then called for an alternative motion to uphold the appeal, which was also seconded. A vote was held on the motion to uphold the appeal on the basis of inappropriate aesthetic impacts and three votes were entered in favor. At that point, someone, I do not recall who, perhaps it was Assistant City Attorney Hyland, declared that the motion failed.
I raised a point of order to the Chair, who recognized me to speak. I stated the objection that because the hearing is de novo, a majority vote of the Commission is required to make each of the applicable findings necessary for granting the CUP and three votes against issuance results in the applicant having not met its burden to establish the relevant findings. Assistant City Attorney Hyland informed me that rules of procedure dictate that, on appeal, a tie vote upholds the original decision.
Thereafter, a vote was held on the motion to deny the appeal and three votes were entered in favor. Assistant City Attorney Hyland declared the appeal denied and the Commission moved on to other business.
Following the hearing, I asked Assistant City Attorney Hyland for the source of the rule dictating the treatment of tie votes in this situation. He told me that the City Council Manual applies to the Planning Commission but acknowledged something to the effect that the source is obscure and is a document that he intends to clarify in the future.
The 2022 City Council Manual, pages 32-33, provides, in short, "When there is a tie vote, the lower body is sustained." Generally, for appeals to the City Council, this statement is correct because appeals at the Council level are not typically de novo and the appellant has the burden of proof so a tie will be insufficient to constitute action by the Council finding that the prior decisionmaker erred. However, there are several problems with applying this statement to the instant vote. First, while page 33 can be read as governing the Commission as well as the City Council, the Council Manual consistently refers to it applying specifically to the Council. The Forward to the Council Manual specifically declares: "By resolution, the City Council is bound by the rules and processes established hereto." The intent to apply it to the Commission is not sufficiently clear. The Commission's own bylaws do not include any such rule.
More importantly, the Forward to the Council Manual also declares: "Any information contained in the Council Manual that conflicts with Federal, State or Huntington Beach law is superseded by the conflicting law." Here, ordinances, which are higher "Huntington Beach law," conflict with the applying the rule from the City Council Manual to this appeal.
This appeal to the Planning Commission is governed by City Code Section 248.20(D):
De Novo Hearing. The reviewing body shall hear the appeal as a new matter. The original applicant has the burden of proof. The reviewing body may act upon the application, either granting it, conditionally granting it or denying it, irrespective of the precise grounds or scope of the appeal. In addition to considering the testimony and evidence presented at the hearing on the appeal, the reviewing body shall consider all pertinent information from the file as a result of the previous hearings from which the appeal is taken.
Section 248.06 further clarifies that "In each case, the applicant has the burden of proof at the public hearing on the application and at the public hearing on the appeal." Section 248.08(A) provides "In each case where a reviewing body is designated to make a decision of an adjudicatory nature as the result of a proceeding in which a hearing is required by state law or this ordinance code to be given, the body shall make findings to support its decision." Case law is clear that when an appeal is heard de novo, a tie does not uphold the previous, lower body decision. Rather, the de novo appeal itself nullifies the original decision in its entirety and the appellate body itself then must make all applicable findings for approval.
While that approval can be done by adopting and affirming the decision below, as is common practice, this affirmance must nevertheless be a majority decision (i.e., a decision of the body empowered to make the determination). See, e.g., Clark v. City ofHermosa Beach (1996) 48 Cal.
App. 4th 1152, 1176 n.24 (tie on de novo hearing does not affirm where applicant had burden of proof); REA Enters, v. Cal. Coastal Zone Conservation Comm. (1976) 52 Cal. App. 3d 596, 612, 624 (de novo appeal entirely nullifies prior decision; defining a tie as "no action"); Anderson v.
Pittenger (1961) 197 Cal. App. 2d 188, 195 ("The tie vote was no action, and it was not an affirmance of the order of the commission."). Requiring a majority to approve the CUP is also consistent with Section 11 of the Commission's Bylaws, which states: "An affirmative vote of a majority of the members present and voting shall be required for the passage of any matter before the Commission, except as otherwise noted in these bylaws." Given the manifest error that occurred, please immediately notify the applicant that the Commission denied the CUP and that the applicant's deadline for appeal will run ten days from issuance of that notice.
Sincerely,
GREENFIRE LAW, PC
Exhibit B
City ofHuntington Beach
Department of Community Development
2000 Main Street Huntington Beach, CA 92648
For Inspections Call: (714) 536-5241
Inspector: William Ford
(714)374-1631
Building Permit
Permit Number:B2020-005664
Building Address: 17473 Beach Blvd
Block:
Valuation:
Tract:
$15,000Date Issued:
APN:
Lot:
05/20/2021
165-234-07
No. Stories:
Owner
PHAN PROPERTY MANAGEMENT
17473 BEACH BLVD
HUNTINGTON BEACH CA 92647
7145965956
Architect
Zone:
Contractor
SENIORS & JUNIORS INC
7203 VIRTUOSO
IRVINE CA 92620
9492435510
Engineer
PAUL C. PINA
Huntington Beach CA
Project Description: CELL SITE MODIFICATION - R/R 6 ANTENNAS & 6 RADIOS; CABINET AND HCS CABLES ENTERED BY: kongs
Description:Occupancy Group:Area (Sq Ft):
Code Year:
Agent
Designer
INCLDUDE AUXILARY EQUIPEMTN IN
Const. Type:Occupancy Load:
Permit Fees:
Permit Processing Fee33.92
Total Fees:
Total Paid:
Balance Due:
$1,086.55
$1,086.55
$0.00
I certify that I have read this construction application and that the information I have provided is correct and I agree to comply with all City and County ordinances and State Laws relating to building construction.
I shall be responsible to ensure all improvements are consistent with applicable HOA.
I authorize representatives of this City to enter upon the identified property for inspection purposes.
I understand that all refunds are subject to a processing fee as listed in the City Master Fee Schedule.
IF WORK IS NOT COMMENCED 1 YEAR FROM DATE OF ISSUE OF THIS PERMIT, OR IF THE WORK IS ABANDONED, THIS PERMIT SHALL BE SUBJECT TO EXPIRATION.
LICENSE & WORKERS' COMPENSATION DECLARATION (for Contractors only) I hereby affirm under penalty of perjury:
1) I am licensed under provisions of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code,and my license is in full force and effect.
2) I have and will maintain workers compensation insurance or a certificate of consent to self-insure, as required by Section 3700 of the Labor Code, for the performance of the work for which this permit is issued; Unless, in the performance of the work for which this permit is issued,I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provision of Section 3700 of the Labor Code, I shall forthwith comply with those provisions.
By my signature below, I certify I am either a Licensed Contractor, Property Owner* or Authorized Agent** 'Requires separate verification form
"Requires separate authorization form
Signature:_ Date:
Exhibit C
[email protected]
From: Paul D'Ari <[email protected]>
Sent: Wednesday, June 21, 2023 11:07 AM
To: [email protected]
Cc: [email protected]; towercomments; Allison Jones Subject: FW: [EXTERNAL]: RE: Petition for NEPA Review re AT&T Facility at 8101 Slater Ave., Huntington Beach, CA
Attachments: 2023-06-12- Certificate of Service- NEPA Complaint.pdf Mr. Strauss:
This is to confirm that we have received your request for further environmental review and it is currently under review.
Paul D'Ari
Senior Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau] FCC
From: astrauss(5)greenfirelaw.com <[email protected]> Sent: Wednesday, June 21, 2023 11:01 AM
To: towercomments <[email protected]>
Cc: Garnet Hanly <[email protected]>; 'Shank, Aaron M.' <[email protected]> Subject: [EXTERNAL]: RE: Petition for NEPA Review re AT&T Facility at 8101 Slater Ave., Huntington Beach, CA You don't often get email from [email protected]. Learn why this is important CAUTION: This email originated from outside of the Federal Communications Commission. Do not click on links or open attachments unless you recognize the sender and trust the content to be safe. If you suspect this isa phishing attempt, please use the'Report Message' feature in Microsoft Outlook or forward the email to the NSOC.
Good morning,
I am follow up on the complaint I submitted on Friday, June 9th. Please confirm that the application has been received and is under review, or notify me if any further information is required to move forward at this time. On June 13th the Huntington Beach Planning Commission approved the conditional use permit for this project.
I also wish to make also make a correction to the originally-submitted certificate of service. Due to an administrative error in my office, the complaint was not mailed to parties on June 9th and was instead mailed on June 12th. A corrected certificate of service is attached.
I look forward to hearing from you.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
From: [email protected] <[email protected]> Sent: Friday, June 9, 2023 8:53 AM
To: towercomments@)fcc.gov
Cc: [email protected]; 'Shank, Aaron M.' <AShank(a)porterwright.com> Subject: Petition for NEPA Review re AT&T Facility at 8101 Slater Ave., Huntington Beach, CA Good morning,
Enclosed, please find a petition filed pursuant to 47 C.F.R. Sections 1.1307 and 1.1312 concerning a wireless facility proposed to be constructed at 8101 Slater Avenue in Huntington Beach, California. Service has been provided as detailed in the attached certificate of service; outside counsel to AT&T is copied on this email as well.
Please confirm receipt and processing of this complaint.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meanin g of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attomey-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
Moore, Tania
From: Fikes, Cathy
Sent: Monday, July 17, 2023 4:35 PM
To: Agenda Alerts
Subject: FW: Additional Appellant Materials- 7/18 City Council Hearing Agenda Item 17 re CUP No. 23-006 (AT&T Wireless Facility)
Attachments: 2023-06-12- Price Appeal Letter to Planning Commission v2.pdf From: [email protected] <[email protected]> Sent: Monday, July 17, 2023 4:01 PM
To: CITY COUNCIL (INCL. CMO STAFF) <[email protected]> Cc: Beckman, Hayden <[email protected]>
Subject: Additional Appellant Materials- 7/18 City Council Hearing Agenda Item 17 re CUP No. 23-006 (AT&T Wireless Facility)
Honorable Mayor and Members of the City Council:
Attached, on behalf of Christina Price, the appellant in connection with July 18th Agenda item 17 concerning appeal of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility), please find a letter that was previously submitted to the Planning Commission and provide important background on AT&T'S application and this appeal.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
Ariel Strauss, Of-Counsel
2748 Adeline Street, Ste. A
Berkeley, CA 94703
51~0'-900'-'9502x702'
, r\^- [email protected]
www.greenfirelaw.com
June 12, 2023
Via EkctronicMail
To: Planning Commission Chair and Commissioners ([email protected]) RE: Opposition to Approval of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility)
Table_of Contents
A. AT&T'S Application is Incomplete.
B. AT&T'S Project will Spew Unacceptable Pollution from the Diesel Generator and be Detrimental to the General Welfare.
C. AT&T'S Cell Tower Will be Aesthetical Unpleasant and Degrade Property Values.
D. AT&T'S Facility Violates the General Plan's Noise Element and the Noise Ordinance.
E. AT&T'S Project Violates Federal Law.
F. A 60-Foot Tower in a CO Zone with a Diesel Generator does not Qualify for the CEQA Exemption.
G. AT&T has not Established that Federal Preemption Applies.
H. The City Must Retain an Expert if it Intends to Approve the Application Based on Asserted Preemption.
I. Conclusion
Exhibits A, B, C, D
Dear Chair Pellman and Commissioners:
I am writing on behalf of appellant Christina Price requesting that the Commission deny a conditional use permit (CUP) for the 60-foot wireless communication facility and associated equipment proposed to be constructed at 8101 Slater Avenue because (1) AT&T Mobility (AT&T) has not presented sufficient evidence to allow the Commission to make the required findings under the Huntington Beach Municipal Code (Code) and (2) the project does not qualify for the Small Structures California Environmental Quality Act (CEQA) exemption.
This hearing is "de novo" and the Commission "shall hear the appeal as a new matter.
The original applicant has the burden of proof' and the Commission must deny the application "irrespective of the precise grounds or scope of the appeal" if the requirements in Code Sections 230.96, particularly subsection G, and 241.10 are not satisfied.
A. AT&T'S Application is Incomplete.
AT&T'S application is plainly deficient. First, AT&T filed the wrong form. AT&T'S one- page application is attached as Exhibit A; it includes no relevant information. The correct form, attached as Exhibit B.2 is seven pages. More substantively, items 2.08, 3.02, 3.06, 4.01 and 5.01 demanding by form are missing from the materials AT&T submitted and are highlighted in red boxes on Exhibit B. Among, the deficiencies, the application form requires that the site be shown in five or more photo simulations with stated photograph angles. However, only three were provided and none indicated the angle of the photograph.3 No photos depict what adjacent residents will see from inside their homes and backyards where they spend a majority of their time.
Neighbors have also pointed out in comments that the photo simulations do not "scale properly" and under reflect the actual mass and height of the facility as compared with other trees and are misleading. The chain-link enclosure described in the narrative is also not shown in the simulations.
Wireless communication facility applicants are required to also map the "[l]ocations of all other Wireless Antennas within 1,000 feet of a proposed ground-mounted Facility. Co- location of ground mounted facilities shall be required where feasible whenever such a Facility is proposed within 1,000 feet of any existing Wireless Antenna."5 No such mapping of all antennas, including small cells in the right of way, is included in the application. Instead, AT&T has only provided slides showing its own macro towers.6 Without more information, it is impossible for the City to independently scrutinize whether the AT&T could have or should have undertaken colocation.
' Huntington Beach Code § 248.20(D); see also Id. § 348.06 ("The applicant has the burden of proof for all findings necessary for approval.).
2 Original available here: https://www.huntingtonbeachca.gov/i1les/users/planning/Wireless-Permit- Application-.pdf
See, Attachment 2 to Agenda.
4 Agenda "Supplemental Communications."
5 Huntington Beach Code § 230.96(E)(l)(g) (emphasis added); see also, 230.96(G)(5) (accord). 6 See Attachment 4 to the Agenda (LTE Justification Plots). 2 Moreover, there is no discussion of why the desired coverage cannot be addressed by collocation with one or more existing macro or small cell sites. Colocation entails the addition of antennas on an existing support structure; this includes collocation with a different provider and raising the height of the structure, as a provider is entitled to do under federal law, to facilitate colocation.7
AT&T'S Project Narrative included as Attachment 3 to the Agenda also contains serious errors that call into question the accuracy and professionalism of AT&T'S conclusions. For instance, page 2 argues that "In this specific case, this location was selected because AT&T'S radio-frequency engineers (RF) have identified a significant gap in coverage in the vicinity of and the surrounding community as demonstrated on the enclosed radio-signal propagation maps." The blank space was never filled in. AT&T similarly refers to a "justification package dated November 12, 2020," which is years before the application was submitted. Nearly all other arguments in the letter are plainly boilerplate assertions lacking specific evidence. See, e.g., "The requested height of the mono-broadleaf design is the minimum height necessary in order to fill the significant gap in coverage for this project."
B. AT&T'S Project will Spew Unacceptable Pollution from the Diesel Generator andbe Detrimental to thejGeneral Welfare.
Because the proposed tower is more than 10 feet taller than allowed in the Office Commercial District (CO) zone, a CUP is required.8 In order to issue a CUP, a discretionary determination must be made that the "establishment, maintenance and operation of the use will not be detrimental to the general welfare of persons working or residing in the vicinity [,]"9 The 20kW diesel generator proposed to be operated in the event of outages is a significant potential source ofparticulate pollution just feet from residential backyards and homes where families and children will be playing and sleeping. "The exhaust from diesel engines includes hundreds of different gaseous and particulate components, many of which are toxic."10 AT&T does not disclose how frequently the generator is expected to run, offer an analysis of the emissions or discuss the dispersal patterns of the exhaust. The wafting of fumes may constitute a nuisance to adjacent properties if it "is indecent or offensive to the senses, or an 7 Huntington Beach Code § 230.96(B)(3).
8 Id. § 230.96(E)(2)(b), (3).
9Id.§241.10(A)(l).
10 Mission Bay Alliance v. Office ofComm. Investment & Infra. (2016) 6 Cal. App. 5th 160, 203-04 (noting that CEQA EIR considered health effect ofdiesel exhaust on children 200 feet away). 3 obstruction to the free use of property" by discouraging outdoor activities while the generator is operational."
Despite the California Public Utilities Commission mandating the installation of backup power for certain cellular antennas, it acknowledged that "[l]arge diesel generators - even when localized in select areas- present potential health risks for individuals who live or work near a temporary generation site."12 The application and the City's prior findings contain no analysis of the health risks posed by the generator.13 A "no detriment" finding is not supported by substantial evidence because the Notice of Action neglects to consider and discuss a significant potential health threat.
C. AT&T'S Cell Tower Will be Aesthetical Unpleasant and Degrade Property Values.
Another finding required for a CUP is that the project will not be "detrimental to the value of the property and improvements in the neighborhood."14 The facility is not "completely stealth."15 Just because the tower is clad in plastic branches, it does not mean a structure of any size or in any location is appropriate and must be approved by the City.16 The City need not apply "objective" standards17 but can use reasonable discretion.
Code Section 244.06 requires the Design Review Board to consider The arrangement and relationship of proposed structures and signs to one another and to other developments in the vicinity; [] Whether that relationship is harmonious and based on good standards of architectural design; ... The adequacy of proposed landscaping; [and] Elements of design affecting the performance characteristics of the proposed development^]
"Civ. Code §3479.
12 CPUC, Decision No. 20-07-011 Adopting Wireless Provider Resiliency Strategies, Rulemaking 18-03- Oil, p. 113 (July 20, 2020).
13 Note: The findings for approval also do not contain any requirement for incident management plans or other operating procedures related to the transportation and storage ofdiesel. 14 Huntington Beach Code § 241.10(A)(1).
15 Id. § 230.96(B)(4) (defined as facilities "designed to completely screen all aspects of the Facility including appurtenances and equipment from public view" and where the antenna is enclosed in a conventional diameter structure).
16 See, e.g., Id. § 230.96(G)(3) (requiring compliance with Urban Design Guidelines); Urban Design Guidelines at 4-14 ("Landscaping should be in scale with adjacent buildings and be of appropriate size at maturity to accomplish its intended goals.").
17 City of Portland v, FCC (9th Cir. 2020) 969 F.3d 1020, 1041-43 (local regulations need not be "objective").
4 The Review was clearly deficient. Design Review approval is merely a recommendation and is not binding. Therefore, deficient approval by the Board does not exempt the Commission for ensuring that all City design expectations are satisfied.
The City Council itself legislatively determined that cell towers pose a threat of "potential negative aesthetic impacts of Wireless Communication Facilities, including visual blight and diminution of property value[.]"19 In fact this is a primary "purpose" of the City's ordinance and the Commission must not simply waive away this concern.
Several studies have shown that when a cell tower is visible to neighbors, there is a decline in property values. ° It is intuitive and unsurprising that buyers will prefer a home without a visible antenna structure as compared to one with one. However, this does not automatically mean, as AT&T asserts, that any aversion to cell towers is a consequence of health concerns that the Commission cannot consider. Buyers will be weary of an uncommonly tall, plastic, artificial, tree studded with electronic equipment towering in their viewshed even if the buyer has no concern about the health effects ofradiofrequency (RF).
AT&T'S letter argues that the "substantial evidence" required for the Commission to deem the tower detrimental is an exacting standard. It is not. It is deeply familiar to you and is the same standard required under state law for the Commission to lawfully make any determination. In many situations, reasonable people on both sides of an issue can correctly claim that substantial evidence supports their position.22 In the context of the a wireless approval, 18 Note: No notice of Board meetings was provided to residents, no members of the public attended the Board meeting that took place on April 13, 2023 and no public comments were received or considered. 19 Huntington Beach Code § 230.96(A).
20 Affuso, et al. "Wireless Towers and Home Values: An Alternative Valuation Approach Using a Spatial Econometric Analysis," 56 J Real Estate Finan Econ 653-676 (2018) (values declining 2.46% on average, and up to 9.78% for homes within tower visibility range); Lin & Yih-Ming Lin, "Willingness to Pay for Relocating Mobile Phone Base Stations." 36 International J. of Ecological Econ. & Stat. 1-14 (2015) ("Despite the customers' high demand for better mobile phone coverage in areas where they live or work, most of them do not favor having MBPs [mobile phone base stations] installed in their neighborhood."); Bond & Ko-Kang Wang, "The Impact of Cell Tower Phone Towers on House Prices in Residential Neighborhoods," The Appraisal J. 256-277 (Summer 2005) ("degradation in value can be only because of view, independent of health concerns."); Bond, Sandy G. et al. Using GIS to Measure the Impact of Distance to Cell Phone Towers on House Prices in Florida. (2007), available at http://www.prres.net/papers/Bond Squires Using CIS to Measure.pdf. 21 See, Code Civ. Proc. § 1094.5(c).
22 United States Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow (10th Cir. 2003) 340 F.3d 1122, 1133) ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence."); Luther v. Berryhill (9th Cir. 2018) 891 F.3d 872, 875 ("Substantial evidence is more than a mere scintilla, but less than a preponderance.").
5 this standard is intended to retain local discretion and serve as a check to ensure that decisions are not "irrational or substanceless.
In all cases of this sort, those seeking to build will come armed with exhibits, experts, and evaluations. [Wireless industry applicants], by urging us to hold that such a predictable barrage mandates that local governments approve applications, effectively demand that we interpret the [Telecommunications] Act so as always to thwart average, nonexpert citizens; that is, to thwart democracy.24
The Commission has a responsibility take seriously "objections raised by neighbors who know the local terrain and the sightlines of their own homes."25 Many neighbors complained in comments that they can tell the difference between a fake tree and a real tree; one described it as an "eyesore." If the "observations of self-interested neighbors conflict with an expert study submitted by a self-interested applicant," the Commission has the authority and discretion to side with the neighbors.26 The City must not discount valid aesthetic objections merely because neighbors also express opposition on. health grounds.
Here, the tower is conspicuously placed in an open parking lot and is larger and higher than other structures in the area. It is natural that the eye will be drawn to it and scrutinize it closely. Yet, AT&T provides no photographs of the actual equipment, screening materials or examples of this model in operation to show how this supposedly-camouflaged tower will actually appear. Section 4.01(2) of the Wireless Permit Application, highlighted in Exhibit B, requires that: "All elements of the project as proposed by the Applicant must be shown in one or more close-in photo simulations." However, this has not been done. There is no justification for failing to provide these images; without them, the City cannot decide for itself whether AT&T'S claims are correct or not.
One serious question is whether the tower in fact needs to be 60 feet to accomplish its objective. AT&T should have provided examples of4G LTE coverage with varying tower height options to enable the City to assess which height best balances AT&T'S coverage objective against the negative impacts of the tower height.
23 See, e.g., Voice Stream PCS I, LLC v. City ofHillsboro (D.Or. 2004) 301 F.Supp.2d 1251, 1257 (city was justified in denying tower permit where residents made site-specific observations and "stated they relied on the natural, residential character of the neighborhood in purchasing their homes"). 24 AT&T Wireless Pcs v. City Council of 'Va. Beach (4th Cir. 1998) 155 F.3d 423, 431. 25 Ommpomt Comms., Inc. v. City of White Plains (2d Cir. 2005) 430 F.3d 529, 534. 26 Id.
6 Given its proposed height, the tower will have full sun. Because it is to the south of the residences it will be backlit part of the year. The City must consider whether the antenna equipment would remain hidden in full sunlight and avoid any reflecting or glinting. The extent of shadow cast on any neighboring properties, particularly during the winter months and near sunset must also be assessed.
Finally, federal law entitles AT&T, or any other carrier, to add to this tower and expand it horizontally and vertically by up to 20 feet in each direction, regardless of any local zoning restrictions.27 The already-proposed height of 60 feet causes the facility to extend well above any of the nearest buildings, which are only two stories. The City must consider now the impact of an 80-foot tower (twice the height allowed in the CO zone). A 60-foot tower of this mass is not appropriate in this location.
D. AT&T'S Facility Violates the General Plan's Noise Element and the Noise Ordinance.
The minutes of the Design Review Board meeting that occurred on April 13, 2023 state that Member Fertal "noted that other similar facilities produced audible noise" but staff appeared to contend that the role of the Board was only to consider the "design, colors, and materials of the proposal," not the noise.28 Approval of the CUP must be consistent with the General Plan and the Noise Ordinance.
The noise environment relates to a community's quality of life. Noise has been linked directly to numerous human health factors; aside from general annoyances, excessive noise is a source of discomfort, interferes with sleep, and disrupts communication and relaxation.29
The AT&T facility, including any air conditioning units, fans and the proposed 20kW diesel generator, are "fixed noise sources" that are prohibited from producing levels at the outdoor residential property line, approximately ten feet from the diesel generator, that is equal or greater than 50 dBA of continuous sound level late at night and 55 dBA during other times, or a maximum sound level of 70 dBA late at night and 75dBA other times.3 27 47 C.F.R. § 1.6100(b)(7)(i),(ii).
28https://huntinetonbeach.leeistar.com/View.ashx?M=M&lD=1086170&GUID=1460220C-527E-4889- 8088-A838CE683BDE
29 General Plan, Noise Element at 6-1; see also, Baumgaertner, et al., "Noise Could Take Years Off Your Life. Here's How," New York Times, June 9, 2023, available at httDs://www.nvtimes.com/interactive/2023/06/09/health/noise-exposure-health-impacts.htinl. 30 Huntington Beach Code § 8.40.050(A).
7 The Commission must recognize that power outages triggering ignition of the generator are not rare in Huntington Beach and appear to be more common as power infrastructure ages and is overtaxed by increasing number of high-heat days and customers switching from gas to electric appliances. Major outages occurred in October and November 2022 and February 2023.31
AT&T has not provided the noise specifications for the generator. The plans describe a 20kW Generac brand generator; a data sheet for a 20kW Generac generator advertises a noise level of 70 dBA at 23 feet when "operating at normal load."32 With such a model, noise levels on the residential properties will be exceeded during operation. Of course, this figure is just an example and does not include common deviations from advertised specifications, peak volumes, echoing, increase noise levels as the system ages or other issues.33 The General Plan's Noise Element Goal N-2 "Require[s] an acoustical study for proposed projects in areas where the existing or projected noise level exceeds or would exceed the maximum allowable levels identified in Table N-2." But the record does not contain any professional analysis of noise contours or noise levels. Nevertheless, Finding for Approval 1 of the Notice of Action states "an eight foot high split faced block wall... will further reduce the likelihood of visual and noise impacts. No significant impacts related to traffic, safety or noise will be generated by the wireless communication facility." The word "further" here is odd because the record does not establish any baseline for the noise level or the acceptability of this noise level.
There is similarly no discussion of the noise level from air condition units or fans that cool the antennas. Included in Supplemental Communications attached to the Agenda are comments from two neighbors that adjacent residences lack air conditioning and people leave their windows open to take care of breezes. As a result, "people will be forced to hear the buzz all day, and there will be no escape." A finding no problematic noise impacts is unsupported by substantial evidence in the record.
31 See, e.g., Eric Lucas, "Power outage in Huntington Beach leaves as many as 15,700 Southern California Edison customers in the dark," LA Times, Oct. 24, 2022; Sara Cardine, "Huntington Beach outage leaves thousands of Edison customers in the dark — again," LA Times, Nov. 28, 2022; Julia Paskin, et al., "Thousands Remain Without Power, Dozens of Roads Closed Including Grapevine Overnight," LAist.com, Feb. 25, 2023.
32 https://www.generac.com/generaccorporate/media/librarv/content/all-products/generators/hoine- generators/protector-series/10000023 912. pdf.
33 Note: The plans do not depict any noise dampening construction.
E. AT&T'S Project Violates Federal Law.
The Code requires that "All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities."34 "[N]othing in the TCA nor any other federal law . . . forbids a local government from independently considering compliance with federal law in deciding whether to grant or deny a building permit" or planning permit. 5
AT&T is required to comply with the National Environmental Policy Act (NEPA) but has failed to do so. Unfortunately, noncompliance with NEPA requirements is not uncommon.
For instance, in December 2022, Verizon admitted "that it violated the Commission's environmental and historic preservation rules by prematurely constructing wireless facilities prior to completing the required environmental or historical reviews" in Arizona, Indiana, Kentucky, Pennsylvania and Tennessee and paid the FCC a $950,000 civil penalty.36 Verizon is now under a consent decree requiring it to undertake remedial action and hire a NEPA coordinator.
In this instance, FCC regulations require AT&T to assess the impact of construction and operation of the tower on the Cooper's hawk, a protected species under the Migratory Bird Treaty Act (MBTA). As explained in public comments submitted to the City, these raptors have been nesting on the Church site for many years. Unintentional, indirect killing of hawks and hawk eggs, or destruction of a nest, is a federal crime. As a result, the FCC requires analysis of actions by an FCC-licensee, such as AT&T, that "may have a significant environmental impact," including by harming MBTA-protected birds.38 The assessment must also consider whether the project is a "source of controversy on environmental grounds in the local community."39 The U.S. Department of the Interior, the agency charged with enforcement of the MBTA, has informed the FCC that radiofrequency (RF) emissions from cell towers can result in the death of migratory birds and must be considered under NEPA. The Department explained that 34 Huntington Beach Code § 230.96(6).
35 Southeast Towers, LLCv. Pjckens County (N.D.Ga. 2008) 625 F.Supp.2d 1293,1302. 36 FCC, In re Cellco Partnership d/b/a Verizon Wireless, DA 22-1339 (Dec. 19, 2022), available at https://docs.fcc.gov/public/attachments/DA-22-1339Al.pdf. 37 16 U.S. Code § 703(a); see also, 86 Fed. Reg. 54642 (Oct. 4, 2021) (discussion of prohibition on "incidental take").
3849C.F.R.§ 1.1307(d).
39 Id. § 1.1311(a)(3).
"[r]adiation at extremely low levels (0.0001 the level emitted by the average digital cellular telephone) caused heart attacks and the deaths of some chicken embryos subjected to hypoxic conditions in the laboratory while controls subjected to hypoxia were unaffected (DiCarlo et al. 2002).' ° Additionally, mature birds, and especially hatchlings born in cell towers, may get caught in tower equipment, necessitating special procedures to deter roosting in towers.
While the City is prohibited from considering the environmental effects of RF that is within FCC limits, the level ofRF within the faux tree will exceed those limits. While this in-of- itself can be permissible, in this instance, those emissions will foreseeably impact the protected Cooper's hawks and that can be considered by the Commission. Moreover, the Commission must consider whether AT&T has complied with federal regulations mandating preparation of an Environmental Assessment (EA) under NEPA.
AT&T'S June 8th letter includes Attachment D, which is a "Biological Evaluation" dated June 2" . This is plainly in response to my communication to AT&T between May 31st and June 2nd notifying AT&T of an intent to file a complaint with the FCC. The hastily-prepared so-called evaluation does not claim to involve any site visit or consideration of risks to MBTA-protected species from nesting in the cell tower itself. It only considers potential problem of nests in the trees that will be removed during construction. This does not satisfy the requirements ofaNEPA EA.42 On behalf of a different client, I filed a complaint with the FCC on June 9 , which is attached hereto as Exhibit C. The FCC will evaluate this complaint and determine if it concurs with my client that AT&T is required to file an EA under these circumstances.
Given that AT&T has not met the requirements ofFCC regulations, pursuant to City Code Section 230.96(G)(6), the City must not approve AT&T'S application.
F. A 60-Foot Tower in a CO Zone with a Diesel Generator does not Qualify for the CEOA Exemption.
City staff claim that this application qualifies for the "New Construction or Conversion of Small Structures" CEQA exemption provided for in CEQA Guidelines Section 15303. That exemption is for "construction and location of limited numbers of new, small facilities or 40 Willie R. Taylor, Dept. of Interior, Letter to Eli Veenendall, FCC, Feb. 7, 2014, available at https://ehtrust.org/department-interior-letter-impacts-birds-electroinagnetic-radiation-outdated-fcc-limits/. 41 FCC, Fact Sheet: Raptor Nesting on Towers (May 12, 2016), available at httDS://www.fcc.eov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and- antenna-sitmg.
42 See, e.g., 49 C.F.R. § 1.1311 (required elements of an EA). 10 structures [and] installation of small new equipment and facilities in small stmctures[.]" The regulation does not define "small" but offers a nonexclusive list of examples, such as one single- family dwelling, a store not exceeding 2,500 square feet, commercial buildings not exceeding 10,000 square feet "on sites zoned for such use if not involving the use of significant amounts of hazardous substances[,]" or "[a]ccessory (appurtenant) structures including garages, carports, patios, swimming pools, and fences." The proposed tower is not an "accessory" to anything on the Church property and is not covered by any of the specific examples.
In the case of Don 't Cell Our Parks v. City of San Diego, this CEQA exemption was upheld for a 3 5-foot faux tree antenna tower hidden in a stand of taller trees in a city park because it was "much smaller than a single-family residence, store, motel, office or restaurant[.] However, unlike the 35-foot disguised tower among trees at issue in Don't Cell Our Parks, AT&T'S proposed facility is far more conspicuous.
It is also more out of place with the surrounding environment than the installations considered in Saint Ignatius Neighborhood Association v. City & County of San Francisco where the court in 2022 explained that this CEQA exemption cannot be used to exempt 90-foot-tall light standards because they
are significantly taller than any other structure in the neighborhood, the city's zoning ordinance limits residential buildings in the area to 40 feet tail and typical streetlights are only 25 to 30 feet tall... The cell tower [in the Don't Cell Our Parks case] was small within its setting, unlike the light standards at issue here which will be by far the tallest structure in the surrounding area. They are not small within the environment but instead tower over it.44
Here too, surrounding structures are of virtually identical height to the buildings in Saint Ignatius and the zoning height limit in the CO zone is the same (40 feet). While AT&T'S 60- foot tower is less than 90 feet, it has the potential to grow 20 feet under federal law (as discussed above).
It also is not necessarily the case that the Church is a site "zoned for such use" because a CUP is required in order to exceed the 40-foot height limit. 6 Moreover, it entails a diesel above- ground tank, which is the "use of significant amounts of hazardous substances." As explained in 43 Don't Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338, 359-360. 44 Saint Ignafius Neighborhood Assn. v. City and County of San Francisco (2022) 85 Cal. App. 5th 1063, 1072-73.
45 Huntington Beach Code § 211.06.
46 Id. § 230.72.
11 connection with discussion of the General Plan, the diesel generator will have significant and unexplored environmental impacts due to noise and pollution. 20kW generators are not typical "small structures" in this neighborhood.
When a project entails a "feature that distinguishes it from others in the exempt class"47 it does not qualify for the exemption. The excessive height of the AT&T facility in this specific zone, the noise and toxic pollutants from the diesel generator and the RF emissions above FCC limits potentially affecting Cooper's hawks roosting on the tower make this project clearly ineligible for the Section 15303 CEQA exemption.48 These factors are also "unusual circumstances" that will have a significant effect on the environment, further making use of the exemption inappropriate.49
G. AT&T has not Established that Federal Preemption Applies.
AT&T claims that the City must approve its application or violate federal law by imposing an "effective prohibition." However, AT&T has not demonstrated this to be the case.
AT&T'S Project Information and Justification Letter from February 28, 2023, included as Attachment 4 to the Agenda, and its letter to the Commission dated June 8th refers to increasing use of mobile phones for calls in place oflandlines and the need for good mobile coverage to make 911 calls. However, 4G LTE, the service that AT&T asserts the facility will provide, is not usually required for voice phone calls but is rather for mobile broadband. There is no problem with phone service in the targeted area.
Moreover, the FCC National Broadband Map shows that AT&T already provides mobile broadband, including indoors and inside cars, in the area sought to be served by this facility (see map attached as Exhibit D). The FCC map states it was updated as of May 2023. FCC regulations require that AT&T submit accurate information [fjor each of the mobile broadband technologies, 3G, 4G LTE, and 5G-NR, and for mobile voice services, the provider's coverage maps must account for terrain and clutter and use terrain and clutter data with a resolution of 100 meters or better. Each coverage map must have a resolution of 100 meters or better.50
This suggests that AT&T'S purported gap in coverage is, at a minimum, overstated. 47 Berkeley Hillside Pres. v. City of Berkeley (2015) 60 Cal.4th 1086,1105. 48 Note: FCC shot clocks do not prevent the City from conducting proper CEQA review because "the shot clock requirements create only presumptions. .. local officials can show that additional time is necessary under the circumstances." City of Portland, 969 F.3d at 1043. 49 CEQA Guidelines § 15300.2(c).
5047C.F.R.§1.7004(c)(3)(iii)
12 Assuming there is a need for improved wireless broadband coverage, some courts have held that the Telecommunications Act of 1996 only prohibits the effective prohibition of voice call service, not broadband. For instance, the Town of Flower Hill, New York, recently refused to approve a distributed antenna system (DAS) that provided wireless broadband. The applicant sued and the Town prevailed because the federal district court judge ruled that the Act only applies to "personal wireless services," which does not include 4G broadband, and therefore, denying the application did not violate federal law.51
Even if the 40 LTE service sought to be provided by AT&T qualifies as "personal wireless services," "[t]he TCA does not guarantee wireless service providers coverage free of small dead spots".52 Rather, the approach should offer "the best solution for the community"53 based on the values expressed in the local ordinance. Without explaining what level of service could be obtained with a shorter tower, several small cells or collocation on multiple existing antennas (whether owned by AT&T or another carrier, whether macro or small cell), AT&T cannot demonstrate an effective prohibition.
In this case, AT&T appears to have found a willing lessor in the Church and then worked backward to generate map images that show this site, and only this site, as filling precisely the conspicuous gap shown. It is suspicious in the extreme that there is only one feasible site and only one willing lessor. Without any understanding of the underlying data or inputs used to generate these coverage maps, and lacking the technical expertise to interrogate them, it is impossible to know the feasibility of any alternatives substantially meeting AT&T'S claimed personal wireless service coverage objectives.
AT&T lists 11 potential alternatives. For several locations, AT&T reports that the "property owner were not interested in leasing space to AT&T for a WCF." This alone does not demonstrate AT&T having made a good faith effort to consider that location. The Commission 51 ExtenetSys., Inc. v. Vill. of Flower Hill (E.D. N.Y. 2022) 617 F. Supp. 3d 125;see also, Sprint PCS Assets, L.L.C. v. City ofPalos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 727 (questioning whether the Telecommunications Act's "anti-prohibition language even covers situations, like that presented here, in which a telecommunications service provider seeks to replace existing WCFs, as contrasted with the more typical situation in which the provider seeks to construct new WCFs."). 52 Sprint PCS Assets, L.L.C., 583 F.3d at 727 (internal punctuation omitted); see also Id. (discussion of distinction between "gap" and "significant gap").
53 MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715, 734. 54 Am. Tower Corp. v. City of San Diego (9th Cir. 2014) 763 F.3d 1035, 1056 (accepting the applicant's mere assertion about what is or is not feasible "would make the applicant—rather than the locality—the arbiter of feasibility and intrusiveness[.]").
13 should inquire whether AT&T had already secured the lease at the Church and was actually disincentivized to find feasible alternatives that might make the City less inclined to approve its first choice. There is no information about the commercially-reasonableness of the terms offered to the owners and no copies of the actual communications included in the record. AT&T should be required to share, in confidence, copies of the actual communications with the City.
To recap, because the FCC maps show there is already in-building 4G coverage; wireless broadband alone does not qualify as "personal wireless services;" AT&T has not demonstrated what degree of coverage could be afforded with a different, less intrusive permutation of its application, such as a shorter tower, colocation or multiple small cells; and AT&T has not documented that its efforts to obtain alternative sites were commercially reasonable, AT&T cannot establish that federal law mandates approval because even if this site is not approved, other locations may be feasible to substantially meet its legitimate coverage goals.
H. Th^City Must Retain an Expert if it Intends to ABprove the Application Based on Asserted Preemption.
Even if the Commission is inclined to believe AT&T that denial would amount to an effective prohibition, the Commission lacks the authority to approve AT&T'S application at the June 13( hearing on that basis alone. The City Code states as follows:
A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent and whether the gap affects a commercial district. Consequently, the City will reouire scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a_ lack _of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion.55
As explained above, this is a very reasonable policy. Had AT&T appealed a denial on the basis of federal preemption, it would have paid a special review fee and provided the specific information demanded by Code Section 230.96(F)(2). The Commission may not now simply accept AT&T'S say-so; the City Council has already legislatively concluded that City staff lacks the expertise to evaluate the veracity of this type of claim. Consequently, if the Commission determines that AT&T has not met its burden of proof with respect to any requirements in the 55 Huntington Beach Code § 230.96(A).
14 City Code but is concerned that federal preemption demands approval, the City is required to hire an independent expert.
I. Conclusion.
For the foregoing reasons, the Commission must reject AT&T'S application as incomplete and inconsistent with the Zoning Ordinance, Noise Ordinance and General Plan, and not compliant with federal environmental laws. It also must find that project in eligible for a Section 15303 categorical exemption from CEQA.
Respectfully,
GB^ENFIRE LAW, PC
r7?T Strauss, Of-Counsel
56 The City should consider hiring Center for Municipal Solutions www.telecomsol.com/www2/node/20, a consultancy that exclusively advises municipalities on telecommunications permitting issues. 15 City of Huntington Beach
Department of Community Development
2000 Main Street, 3rd Floor
Huntington Beach, CA 92648
(714) 536-5271
www.huntingtonbeachca.gov
Planning Application Number.
Entitlement Number(s):
Q Planning Commission
[__] Zoning Administrator
IStaff Review
[_] Design Review
Project Acidress: 8101 SLATER AVENUE HUNTINGTON BEACH, CA 92647 Assessor Parcel Number(s): -\ 67-31 2-08
Project Description / Request: AT&T Mobility Wireless Facility stealth monopole in parking of church.
Nearest Major Intersection: Beach Blvd. and Slater Ave.
Lot Area:
Property Owner: Huntington Beach Community Church
Mailing Address: 8101 SLATER AVENUE
Telephone: ((714) 403-5691
Email: [email protected]
City: HUNTINGTON BEACHState: CAZip: 92647
Applicant / Authorized Agent: AT&T Mobility: John S'lverman with Smartlink Telephone: ( 818 ) 823-0631 Mailing Address: 3300 Irvine Ave., suite #300Email: [email protected] City: Newport BeachState: CAZip: 92660
nfiy.O'A'n^r'^ Name.)am the property owner of the subject property and have read and understand alt statements including the filing requirements on the reverse side of this application. I hereby authorize (print AaonfsNamot John Silverman of SmarUink to act as my representative and to bind me in all matters concerning this application. ! hereby affirm under penalty of perjury that the foregoing statements, facts and attachments are tme and correct. I understand that this application for entitlement or variance may be denied, modified or approved with conditions and that such conditions or modifications must be satisfied prior to issuance of building permits. I understand that by filing the application, information on the application including, but not necessarily limited to, the name and address wilt be included on public records that are posted on the internet.
Cjt.c^4<^2"a~>^S^^LhtO^ 1/27/2023
Property Owner's S^natylre:Date:Applicant's S^nature:Date:
Zoning:DM:
General Plan Designation:
General Plan Sub Area:
Distributed By:
Pursuant To:
Total Fee:Receipt No.:
Received By:
Date Received:
Previous Cases:
FOR OFFICE USE ONLY
Ij Coastal Development Permit
D Conditional Use Pemiit
[_] Design Review
n Entitlement Plan Amendment
II Planned Sign Program
Q Sign Code Exception
[_] Temporary Use Permit
[I Variance
Q Administrative Perrnit
General Plan Amend
jI Zoning Map Amend
Q Zoning Text Amend
I] Local Coastal Program Amend
_a.
Fee: Environmental Review
Q Exempt
Section:
Q EA Required
EA Fee: $
m Coastal Area:
|_| Cat. Exclusion
Q Appeal Area:
Q Flood Zone
Q Earthquake Zona
Q Oil District
Q Methane District
D Noise/CNEL
I Ownership Verification
[Applicant Authorlzationl
IAPN
I Plans
Notification Req.
Narrative
I Photos/Slides
I Entertainment Permit
I HOA Approval
I Plans Date Stamped
D Seismic Hazard
Q Scenic Corridor
Q ResidenUal Inflll
Buffer
GAForms 2015\Plamimg\COUNTER/application
City ofHuntington Beach
2000 MAIN STREET CALIFORNIA 92648
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning Division Code Enforcement Division Building Division 714/536-5271 714/375-5155 714/536-5241
Fee $1.623
Wireless Permit No.
CITY OF HUNTINGTON BEACH
WIRELESS PERMIT APPLICATION FORM
This form is designed to elicit required technical information in support of an application for a new or modified permit (generally, the "Permit") for a wireless site within the City of Huntington Beach.
This application is a mandatory element of the application process. No application for a new wireless site Permit or for a modification of an existing wireless site Permit that qualifies for Director approval shall be considered for determination of completeness until this form and required attachments are provided to the City of Huntington Beach.
Every page of this form, including this page, must be completed and submitted to the City of Huntington Beach, and each page must be signed and/or initialed where indicated.
Questions about this form or the required information to be provided should be directed to the Project Planner assigned to your project or to the Department of Community Development at (714) 536-5271 for the City of Huntington Beach.
You are advised to be familiar with the Huntington Beach Municipal Code and Zoning and Subdivision Ordinance (HBZSO), which establishes standards and guidelines for the installation of wireless communication facilities in the City of Huntington Beach. <Continue to next page>
Prior to submittal of a wireless permit application, an address assignment shall be obtained for all freestanding wireless communications facilities. (http://www.huntingtonbeachca.qov/files/users/planninci/Address Assignment Application 2009.pdf)
1.00 Information
1.01 Project Address:
1.02 Project Assessors Parcel
Number:
1.03 Name of Applicant (Primary
Contact):
1.04 Applicant is: —owner—owner's Representative
_0ther
1.05 Applicant's Address Line 1:
1.06 Applicant's Address Line 2:
1.07 Applicant's Phone Number:
1.08 Applicant's Mobile Number:
1.09 Applicant's Fax Number:
1.10 Applicant's Email Address:
1.11 Name of Property Owner:
1.12 Property Owner's Address Line 1:
1.13 Property Owner's Address Line 2:
1.14 Property Owner's Phone Number:
If Applicant is the Property Owner and the name and contact information above is the same, initial here _ and proceed to 2.01.
<Continue to next Page>
2.00: Project Owner Information (i.e., carrier)
2.01: Disclose the Names, Addresses, contact persons, and telephone numbers for all Project Owners (use additional sheets if required and mark as "Attachment 2.01"):
2.02: Project Owner Name (i.e., carrier or
licensee):
2.03: Address (line
1):
2.04: Address (line
2):
2.05: City: State: _ Zip:
2.06: Contact Person
Name:
2.07: Contact Person's telephone
nnmhpr/p'Ytpncsinn'
2.08: If the Applicant is not the project owner, attach a letter of agency appointing the Applicant as representative of the Project Owner(s) in connection with this application. Designate the letter of agency as "Attachment 2.08".
Initial here if Attachment 2.08 is attached to this application, and continue to 2.09.
2.09: If the Applicant is not the property owner, attach a letter of agency appointing the Applicant or Project Owner as representative of the Property Owner in connection with this application.
Designate the letter of agency as "Attachment 2.09".
Initial here if Attachment 2.09 is attached to this application, and continue to 3.00. <Continue to next page>
3.00 Project Purpose
3.01 Justification. Provide a non-technical narrative, accompanied by written documentation where appropriate, which explains the purpose(s) of the proposed Project. Label as "Attachment
3.01."
3.02 Indicate whether the primary purpose of the Project is to add additional network capacity, to increase existing signal level, or to provide new radio frequency coverage (check only one).
Add network capacity without adding significant new RF coverage area Increase the existing RF signal level in an existing coverage area Provide new radio frequency coverage in a specific area not already served by existing radio frequency coverage by the same Owner or affiliated entity (such as roaming agreement with an affiliated entity for a cellular or PCS carrier).
Other
3.03 If the answer in 3.02 is not_"0ther" proceed to 3.05.
3.04 Attach a statement fully and expansively describing the "Other" primary purpose of this project. Designate this attachment, "Attachment 3.04".
Initial to indicate that Attachment 3.04 is attached to this application. here
3.05 Provide three (3) sets of site plans, floor plans, and building elevations a maximum of 24"x 36" in size. Plans shall conform to HBZSO Section 230.96 and the following applicable requirements:
a. Draw to scale (minimum scale 1/8"= 1' or 1"= 30'); indicate dimensions of building and floor uses; and north direction arrow. Plans shall be oriented so that north points to the top of the page.
b. Plot the entire parcel and dimension all pertinent data such as easements, driveways, landscaping, parking, fencing, and distances to all property lines. c. Plot all existing and proposed physical features, fences/watls, and structures on the subject property and abutting properties.
d. Dimension to the nearest intersecting street and identify all street names. e. Dimension height of all structures from the highest adjacent curb. f. Building elevations shall depict all sides of building and indicate colors and materials proposed.
g. Identify the legal description of the subject property on the site plan. h FnlH all nlfln<? +n a mflYimnm <?i7p> nf 8-1 /9" Y 11 ^Inwsr rinht r:nrnpr niitl
3.06 Is the project: Stealth (HBZSO Section 230.96.B.10) Completely Stealth (HBZSO Section 230.96.B.3)
Visible, Not Stealth
Office Use Only:
Zoning
General Plan
Major Intersection
DM
<Continue to next page>
4.00: Project Photographs and Photo Simulations
4.01: Where an Applicant proposes to construct or modify a wireless site, the Applicant shall submit pre-project photographs, and photo simulations showing the project after completion of construction, all consistent with the following standards:
1. Minimum size of each photograph and photo simulation must be 8.5" by 11" (portrait or landscape orientation).
2. All elements of the project as proposed by the Applicant must be shown in one or more close-in photo simulations.
3. The overall project as proposed by the Applicant must be shown in five or more area photographs and photo simulations. Photographs and photo simulation views must, at a minimum, be taken from widely scattered positions separated by an angle of no greater than 72 degrees from any other photo location.
4. For each photograph and photo simulation. Show on an area map the location and perspective angle of each photograph and photo simulation in relationship to the Project location.
5. All 'before' and 'after' photographs and photo simulations must be of the same scale. For example, do not place a smaller 'before' photo in a box on the same page as a large "after" photo simulation.
The number of site photographs, and photo simulations, and the actual or simulated camera location of these photographs and photo simulations are subject to City of Huntington Beach determination. The Applicant must submit photographs and photo simulations consistent with these instructions, and be prepared to provide additional photographs and photo simulations should they be requested by the City of Huntington Beach. <Continue to next page>
5.00: Form Certification
5.01: The undersigned certifies on behalf of itself and the Applicant that the answers provided here are true and complete to the best of the undersigned's knowledge.
Signature Title
Print Name Email Address
Print Company Name Telephone Number/extension
Date Signed
<Stop Here. End of Form.>
Ariel Strauss, Of-Counsel
2001 Addison Street, Suite 300
/, J-^ Berkeley, CA 94704
Phone: (510) 900-9502x702
Email: [email protected]
www.greenfirelaw.com
June 9, 2023
By Electronic Mail
To: Wireless Telecommunications Bureau, FCC (towercomments(a)fcc.gov) From: Greenfire Law, P.C.
Subject: Petition for an Immediate Order to Undertake NEPA Review (8101 Slater Avenue, Huntington Beach, CA 92647)
Dear Federal Communications Commission:
Pursuant to 47 C.F.R. Sections 1.1307(d) and 1.1312(a),(d), please accept this petition that the Federal Communications Commission order Smartlink Group to immediately prepare an Environmental Assessment ("EA") prior to any construction of a 18.3-meter-tall wireless facility on 8101 Slater Avenue in Huntington Beach, California, 92647, as required by the Migratory Bird Treaty Act ("MBTA"),' National Environmental Policy Act ("NEPA")2 and the Commission's regulations3 to consider potential injury to Cooper's hawks known to nest and roost on the property. To our knowledge the proposed structure is not registered with the FCC and has not filed any public environmental notice.
Pursuant to 47 C.F.R. Section 1.47, this petition has been served on the applicant, Smartlink Group by U.S. Mail. It has also been provided by email to the applicant's representative and outside legal counsel for AT&T.
The Cooper's Hawk is a protected migratory bird under the MBTA.4 The Department of the Interior recently reaffirmed an obligation of individuals and businesses to avoid unintentional "incidental take" under the MBTA.5 As explained by the FCC "even though a potentially significant effect on migratory birds is not one of the categories of proposed actions identified in Section 1.1307(a) of the rules as requiring an EA, the Commission has on several occasions considered the impact of particular proposed construction projects on migratory birds, and in ' 16 U.S.C.g 703-712.
242U.S.C.^32l,etseq.
3 See, e.g., 47 C.F.R. §§ 1.1307(d), 1.1308, 1.1311.
4 See, 50 C.F.R. § 10.13(c)(l) ("Cooper's, Accipiter cooperii"). 5 86 Fed. Reg. 54642 (Oct. 4,2021).
appropriate circumstances has required modifications to protect them." The regulations allows "interested persons ... to seek environmental review with respect to effects, such as impact on migratory birds, that do not routinely require preparation of an environmental assessment."7 Typically, there is no direct evidence of a protected migratory birds roosting within feet of the proposed wireless facility-related activity. The instant case is routine and requires particular attention.
In January 2023, Smartlink Group, on behalf of AT&T Mobility (referred to jointly herein as "AT&T"), filed an application with the City ofHuntington Beach, California, to construct a 18.3-meter (60-foot) wireless telecommunication tower clad in plastic branches and leaves. The facility was later described in filings to the City as the following:
60-foot mono-broadleaf structure, Emerson power cabinet, Purcell cabinets (stacked), twenty panel antennas (five per sector), forty-eight RRUs at antenna level (12 per sector), one GPS antenna, a 20-kilowatt compact generator on concrete pad, four DC-9 surge suppressors, and four DC-12 Outdoor units within the walk-in cabinet.
A true and correct copy of the site plan submitted by AT&T is attached as Exhibit A. On April 19, 2023, the City held a hearing and approved a planning permit to construct and operate the facility. Residents have appealed that approval and an administrative hearing is presently set for June 13, 2023.
In connection with the City's processing of the application, neighbors submitted comments that the faux tree tower would harm Cooper's hawks and spoke out at the April 19, 2023, hearing, which AT&T'S representative attended, regarding the potential for harm to the hawks. Neighbors also complained to the site owner. On May 3, 2023, the site owner's representative stated by email:
The plan calls for the cell tower to be in the form of a eucalyptus tree. As the church property already has eucalyptus trees on it, it will be hard to distinguish from the trees that are already there. I have included here a link to a project to develop this particular kind of cell tower, so you can see what it will look like.
https://www.ocregister.com/2014/07/24/eucalyptus-tree-no-irvine-co-is-helDing-make-a- cellphone-tower/
6 FCC, In re Nat'l Envtl. Policy Act Compliance for Proposed Tower Registration, 26 FCC Red 16700, 16706 (Dec. 6, 2011) (internal citations omitted); see also, Exec. Order No. 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (Jan. 10, 2001). 26 FCC Red at 16708; see also FCC, In re Effects of Communication Towers on Migratory Birds Notice of Inquiry, WT Docket No. 03-187, p. 8 (Aug. 20, 2003); 9 FCC Red 6901, 6903 (1994) (EA ordered where community groups contended that an antenna would result in the unintentional "take" of migratory birds).
Because of this design, the tower is not going to "Harm and detour" the birds in your neighborhood. They will be resting and nesting in the structure that is built.
Over the last decade, numerous neighbors have observed Cooper's Hawk adults and chicks roosting and nesting in trees on the site property and adjacent to it, such as at 8092 Windy Sands Circle, which is the residential property directly to the north abutting the proposed diesel generator area in which a eucalyptus tree is proposed to be removed per the plan in Exhibit A.
True and correct copies of letters from the neighbors are attached as Exhibit B along with of a video and photographs of Cooper's hawks on the subject and adjacent properties, including flying low over 8092 Windy Sands Circle with the red two-story primary building on the subject property site visible in the background.
Prior to submitting this petition, I contacted AT&T and their counsel to determine whether any environmental assessment had been conducted. Smartlink's representative responsible for processing permit applications with the City stated the opinion that the tower was categorically exempt from NEPA, indicating that impact to Cooper's hawks had not been considered; AT&T'S stated a plan to follow up earlier this week but no update has been received. An AT&T representative also declined to state whether any "NEPA reports" existed. A true and correct copy of that communication is attached hereto as Exhibit C. AT&T was obligated to conduct all appropriate analysis prior to obtaining City approval for a specific location, tower design and antenna configuration but has not done so.
The site owner's personal opinion aside, attracting birds to antenna towers poses serious risks to them, and is not a suitable location for birds' nests, regardless of the tower's stylistic appearance. First, FCC guidance documents warns of the risk of entanglement ofraptors in towers, noting:
Before initiating construction or maintenance activities on towers with nests it is critical to contact the state natural resource protection agency and/or the United States Fish and Wildlife Service (USFWS) field office for permits, recommendations, and requirements.
There is no indication of any consideration by AT&T of impacts to Cooper's hawks or having engaged in any consultation or undertaken any best practices to reduce the risk of entanglement in the proposed tower. AT&T also has not shown any indication of having considered the potential impact of cutting down trees and constructing and operating a diesel generator adjacent to where the Cooper's hawks roost and nest.
Second, hawks can roost on or close to antennas, as anticipated by the site owner, where the RF emissions will exceed FCC human occupational limits. It is entirely consistent with the FCC's RF human exposure regulations to recognize that exposing birds, including eggs and 8 FCC, Fact Sheet: Raptor Nesting on Towers (May 12, 2016), available at httos://www.fcc.Kov/wireless/bureau-divisions/competition-infrastructure-policv-division/tower-and- antenna-sitmg.
chicks, to RF levels that the FCC already recognizes as unsafe, even for trained workers, would have determinantal environmental effects, including potentially excess death.
Furthermore, the Department of the Interior, which is charged with enforcing the MBTA, has informed the FCC of serious concern that the FCC's current RF standards are insufficiently protective of migratory birds.9 The letter cites to several studies showing harm to birds from exposure to FCC-compliant levels ofRF. The Department of the Interior letter was specifically emphasized in a recent decision from the D.C. Circuit as a basis for ordering the FCC to conduct further review of current RF emission standards.10 Courts have recognized that members of the public may petition the FCC to require further environmental analysis when FCC-compliant levels ofRF from a federally-license project may harm wildlife." One factor that must be considered within NEPA analysis is the "degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks." AT&T was obligated to consider these RF-related risks to Cooper's hawks under the MBTA and FCC regulations but has not done so.
Even if AT&T initially was not aware of the circumstances when it first applied to the City, in light of the information provided, it is now obligated to initiate an EA prior to construction and operation of an antenna tower designed to mimic the nesting habitat of Cooper's hawks.
The information contained this petition demonstrates that AT&T'S proposed activity "may have a significant environmental impact" within the standard set by Section 1.307(d). As a result, the Commission must immediately direct AT&T to prepare and file an EA prior to engaging in any site-altering activity.
9 Willie R. Taylor, Dept. of Interior, Letter to Eli Veenendall, Feb. 7, 2014, available at https://ehtrust.ore/deDartment-interior-letter-impacts-birds-electromaenetic-radiation-outdated-fcc-limits/; see also, Thielens, A. et al., Exposure of Insects to Radio-Frequency Electromagnetic Fields from 2 to 720 GHz, 8 SCI REP 3924 (2018), https://doi.ore/10.1038/s41598-018-22271-3 (discussing impact of non-ionizing radiation to birds and wildlife).
10 Envtl. Health Trust v. FCC, 9 F.4th 893, 909-910 (D.C. Cir. 2021).
H See Jaeger v. Cellco P'ship, (D.Conn. Mar. 15, 2010, No. 3:09CV567) 2010 U.S.Dist.LEXIS 24394, at *26 (noting propriety of seeking FCC review of impact ofFCC-compliant levels ofRF on eagles despite local authorities being preempted from considering such impacts). 12 40 C.F.R. § 1508.27(b)(5); see also Sierra Club v. Norton (friends of the Earth, Inc., 207 F.Supp.2d 1310, 1336 (S.D.Ala. 2002) ("Under NEPA, it cannot use the lack of existing information as a basis for acting without preparing an EIS.").
13 47 C.F.R. § 1.312(d) ("If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by §
1.1311 of this part.").
This petition is submitted on behalf of an interested person residing in close proximity to the proposed facility. Please contact me with any questions regarding this petition.
Respectfully submitted,
Ariel Strauss
ec: Gamet Hanly Chief, Competition & Infrastructure Policy Division, ([email protected])
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HUNTINGTON BEACH, CA 92647
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Ernest & Jody Delisanti
8092 Windy Sands Circle
Huntington Beach, CA 92647
May 14, 2023
To Whom it May Concern:
We (Ernest and Jody Delisanti) have been residents at the address above for almost 32 years and have observed the Cooper's hawks for approximately the last 10-12 years. We first noticed the hawk's nest about 10 years ago in the Eucalyptus tree (which is in the church parking lot) closest to our house. We watched the hawks tending the nest and subsequent baby hawks every year for about 5 or 6 years. The nest was removed at some point a few years back, but we continually saw adult and baby hawks every spring. After some searching, we saw that they had constructed a new nest a few trees closer to Slater Avenue in the same church parking lot.
We have supplied several pictures (all taken by Jody) and a video (also taken by Jody) of hawk activity detailed below:
1. I (Jody) took the two pictures, dated June 22, 2015, which are of hawks in the Eucalyptus tree closest to our house.
2. The other picture, dated March 20, 2013, is in the Jacaranda tree in front of our neighbor's house, Craig Phillips at 8101 Windy Sands Circle, Huntington Beach, CA.
3. The video, dated June 17, 2017, was taken of the fledgling hawks in the tree in our front yard.
We have both seen the hawks every spring in the trees located in our neighborhood. They are seen eating, bathing in the water that collects in the street, and teaching their young to fly.
Thank you for your time and consideration.
Sincerely,
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Ernest Delisanti
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Video Link: httDs://drive.google.com/file/d/lFib7vPIVZHkHZvx2orZAT2- 30tgchhgU/view?usp=sharing.
David & Angela Gridley
8062 Windy Sands Circle
Huntington Beach CA 92647
June 5, 2023
To Whom it may concern,
We have been residents at the above address for the past 10 years and have observed the Cooper's Hawk on and off over the years in the area.
We first noticed the Hawk flying around between the 8092 Windy Sands Circle and 8082 Windy Sands Circle close to the open parking area. The nesting during that time was a tree near 8092 Windy Sands Circle
Around the same time we noticed that there were baby hawks in the area as they were walking around in front of 8081 Windy Sands Circle.
This is supported by the photos taken between June 18th and June 24th, 2016.
We both have seen the hawks return year over year to the trees in our neighborhood.
Thank you,
Sincerely,
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[email protected]
From: [email protected]
Sent: Friday, June 2, 2023 2:54 PM
To: 'Shank, Aaron M.'
Cc: 'Will Kazimi'; 'Alisha Strasheim'; 'John Silverman'; [email protected] Subject: RE:#EXT# RE: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No. CLL01310)
Good afternoon Mr Shank,
I appreciate your reaching out, as I believe direct communication with experienced counsel, such as yourself, will be most productive.
As you are aware, NEPA analysis should not be only "under way" at this point but must have been completed prior to seeking approval by the local agency for a specific site, design and antenna configuration. It is the responsibility of the applicant to do all appropriate due diligence early in the process. Having already obtained final local approval appears to strongly prejudice the options that would practically be considered by AT&T. While, I do wish to resolve this issue cooperatively, I intend to move forward with filing a complaint by June 7th if the materials provided do not demonstrate the appropriate level of NEPA compliance or AT&T does not agree to complete an EA.
Sincerely,
Ariel
510-900-9502 x 702
Greenfire Law, P.C,
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
From: Shank, Aaron M. <[email protected]>
Sent: Friday, June 2, 2023 2:21 PM
To: '[email protected]' <[email protected]> Cc: 'Will Kazimi' <[email protected]>; 'Alisha Strasheim' <[email protected]>; 'John Silverman' <[email protected]>; [email protected] Subject: RE: #EXT# RE: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj.
No.CLL01310)
Good afternoon, Mr. Strauss. I am AT&T'S outside counsel, and I wanted to reach back out to you following the email exchanges in the last couple of days. AT&T did not intend to appear dismissiveofthe issue that you raise. The NEPA analysis is underway, but it is not yet completed. I have spoken with AT&T'S in-house lawyer about this issue, and he is planning to look into the status and scope of AT&T'S NEPA analysis. We plan to follow up with you by mid-next week on the issue.
Have a nice weekend.
Aaron M.Shank
Outside Counsel for AT&T
AARON M. SHANK
Porter Wright Morris & Arthur LLP
Bio / ashank(5).Dorterwright.com
0:614.227.2110 / M: 614.578.5036 / F: 614.227.2100
41 South High Street, Suites 2800 - 3200 / Columbus, OH 43215 / MANSFIELD CERTIFIED PLUS
We are moving the needle on diversity, equity, and inclusion. Learn more From: [email protected] <astr_ays_s@^reenfirelawxom> Sent: Wednesday, May 31, 2023 9:30 PM
To: 'John Silverman' <[email protected]>; [email protected] Cc: Shank, Aaron M. <[email protected]>; 'Will Kazimi' <[email protected]>; 'Alisha Strasheim' <[email protected]>
Subject: #EXT# RE: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No.
CLL01310)
^External Email#
Good evening,
Thank you for the prompt response. It is much appreciated.
Section 1.1307(d) provides that "If the Bureau responsible for processing a particular action, otherwise categorically excluded, determines that the proposal may have a significant environmental impact, the Bureau, on its own motion, shall require the applicant to electronically submit an EA." The Note associated with that subsection confirms that the environmental review must encompass consideration of significant impact to species protected by the Migratory Bird Treaty Act. While the regulations specify that an EA "shall [be] require[d]" whenever the tower is 450 feet tall, this is but one example and an EA is also necessary in other instances where impacts to MBTA-protected birds are a significant possibility.
In 2014, the Department of Interior submitted comments to the FCC expressing RF-related MBTA concerns and several studies have identified harm to eggs due to RF exposure. If the Cooper's hawks nest or roost next to antennas in the faux tree (or potentially in nearby trees as well), as should be anticipated by the Pastor and neighbors, they, and their eggs and chicks, would be subject to RF levels in excess of what would be permissible for much larger and more resilient humans, with potential harm to these birds.
The FCC has considered potential harm to migratory birds from tower strikes in past EAs, courts have indicated that complaints to the FCC would be procedurally proper concerning RF-related impacts to migratory birds, the Department of Interior recently reaffirmed an obligation to consider incidental take under the MBTA (86 FR 54642 (Oct. 4, 2021)) and the FCC is also still considering a 2020 EA complaint regarding RF-related impacts to migratory birds from a proposed Verizon tower in South Lake Tahoe; it has placed the project on-hold pending a determination.
My reading of your response shows that AT&T has not yet considered impacts to the Cooper's hawk, though I have seen comments regarding this concern submitted to the City of Huntington Beach during the permitting hearing process. Is AT&T amenable to conducing environmental analysis to avoid the need to adjudicate this issue before the FCC? Sincerely,
Ariel
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged Information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 51 0-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
From: John Silverman <[email protected]> Sent: Wednesday, May 31, 2023 4:24 PM
To: [email protected]; [email protected]
Cc: Shank, Aaron M. <[email protected]>; Will Kazimi <will.kazimi@)smartlinkgroup.com>; Alisha Strasheim <[email protected]>
Subject: RE: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No.
CLL01310)
Good afternoon, Mr. Strauss.
To my knowledge AT&T'S project is categorically exempt under NEPA because it satisfies the FCC's rules under 47 CFR
1.1306 and 1.1307.
Please let us know if there is a specific rule that applies here.
Best,
smart)
John Silverman
Real Estate Specialist II
[email protected]
c: 818-823-0631
www.smartlinkarouD.com
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From: [email protected] <[email protected]> Sent: Wednesday, May 31, 2023 12:23 PM
To: [email protected]; John Silverman <[email protected]> Subject: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No. CLL01310) CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.
Good afternoon Mr. Ocegueda and Mr. Silverman:
I am counsel to neighbors living adjacent to the wireless communication facility proposed for 8101 Slater Avenue.
I have been informed that Cooper's hawks have been seen nesting and roosting in the trees in the Huntington Beach Community Church parking lot and, according to the Pastor, are anticipated to roost in the proposed faux tree adjacent to the antennas. Given that the Cooper's hawk is protected under the Migratory Bird Treaty Act (MBTA) and birds, chicks and eggs may be harmed by very close proximity to RF emissions from the proposed antennas, environmental 3 analysis is required to avoid "incidental take" of protected, migratory birds or violation of environmental protection standards (See, e.g., https://www.fcc.gov/Keneral/neDa-faq (second question); FCC NEPA Checklist, note (v); 47 C.F.R. §
1.1307(d) (an EA is required if the action "may have a significant environmental impact.").) Has AT&T undertaken any study or analysis to assure compliance with the MBTA and NEPA regulations with respect to the Cooper's hawk? Please provide copies of any analysis or pertinent documentation. In the event that I do not receive appropriate assurances, on Monday, June 5th, I will be filing a NEPA complaint pursuant to Section 1.1307 of the FCC regulations.
I am uncertain of the appropriate person, or identity of AT&T legal counsel, to whom I should direct this inquiry and see you are listed as the contact on the permit issued by Huntington Beach. Please relay this message to the appropriate person to address this issue.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALIFi' NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
NOTICE FROM PORTER WRIGHT MORRIS & ARTHUR LLP:
This message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read, print or forward it. Please reply to the sender that you have received the message in error. Then delete it.Thank you.
END OF NOTICE
[email protected]
From: PERKINS - TUBBS, AMANDA J <[email protected]>
Sent: Thursday, June 1,20233:12 PM
To: [email protected]
Cc: SILVERMAN, JOHN; OCEGUEDA, IVAN; FRANCO, LAURA
Subject: RE: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No. CLL01310)
Good afternoon.
We do not submit our NEPA reports to third parties. You may file an FCC complaint, if you feel inclined.
Thank you.
Amanda PerkinsTubbs
Manager-Regulatory Relations
AT&T Services, Inc.
o 469.295.4085 | [email protected]
From: [email protected] <[email protected]> Sent: Wednesday, May 31, 2023 12:23 PM
To: iol09k@)att.com; John Silverman <iohn.silverman@)smartlinkKroup.com> Subject: Notice of Intent to File NEPA Complaint to FCC re 8101 Slater Ave., Huntington Beach (AT&T Proj. No. CLL01310) CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.
Good afternoon Mr. Ocegueda and Mr. Silverman:
I am counsel to neighbors living adjacent to the wireless communication facility proposed for 8101 Slater Avenue.
I have been informed that Cooper's hawks have been seen nesting and roosting in the trees in the Huntington Beach Community Church parking lot and, according to the Pastor, are anticipated to roost in the proposed faux tree adjacent to the antennas. Given that the Cooper's hawk is protected under the Migratory Bird Treaty Act (MBTA) and birds, chicks and eggs may be harmed by very close proximity to RF emissions from the proposed antennas, environmental analysis is required to avoid "incidental take" of protected, migratory birds or violation of environmental protection standards (See, e.g., https://www.fcc.gov/general/nepa-faq (second question); FCC NEPA Checklist, note (v); 47 C.F.R. §
1.1307(d) (an EA is required if the action "may have a significant environmental impact.").) Has AT&T undertaken any study or analysis to assure compliance with the MBTA and NEPA regulations with respect to the Cooper's hawk? Please provide copies of any analysis or pertinent documentation. In the event that I do not receive appropriate assurances, on Monday, June 5th, I will be filing a NEPA complaint pursuant to Section 1.1307 of the FCC regulations.
I am uncertain of the appropriate person, or identity of AT&T legal counsel, to whom I should direct this inquiry and see you are listed as the contact on the permit issued by Huntington Beach. Please relay this message to the appropriate person to address this issue.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 51 0-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
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From: [email protected]
Sent: Tuesday,July 18, 2023 7:42 AM
To: [email protected]
Cc: Beckman, Hayden
Subject: Appellant's Draft Findings- 7/8 City Council Hearing Agenda Item 17 re CUP No. 23-006 (AT&T Wireless Facility)
Attachments: Draft Findings for Resolution Denying CUP- Agenda Item 17.docx Good morning Honorable Mayor and Members of the City Council:
On behalf of Christina Price, the appellant in connection with July 18th Agenda Item 17 concerning appeal of CUP No. 23- 006 (Huntington Beach Community Church Wireless Communication Facility), for the convenience of the Council, attached, please find draft findings for denial of the CUP.
Sincerely,
Ariel Strauss
510-900-9502 x 702
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
PRIVILEGE AND CONFIDENTIALITY NOTICE
This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 251 0, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attomey- client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact me immediately by return e-mail or at 510-900-9502 x 2, and destroy the original transmission and its attachments without reading or saving in any manner.
Draft Findings for Resolution Denying AT&T'S Application for CUP No. 23-006 and Approving Christina Price Appeal
Based on the information set forth in the staff report, materials submitted by the parties to this appeal, comments from the public, the de novo hearing of July 18, 2023, and the public record as a whole, be it resolved that the City Council finds that:
1. The applicant has not demonstrated satisfaction of all conditions required under the HBZSO for issuance of a CUP for the proposed Wireless Communication Facility because:
a) AT&T'S application is materially incomplete in that it does not include photo simulations from sufficient number of angles, close-in photos of equipment or information about photographic angles to determine the aesthetic impact of the proposed facility as requested by Wireless Communication Facility application form.
b) AT&T'S application is materially incomplete in that it does not include a list of "Locations of all other Wireless Antennas within 1,000 feet of a proposed groundmounted Facility." (HBZSO §§ 230.96(E)(l(g), 230.96(G)(5).) c) AT&T has not met its burden of evaluating and demonstrating that colocation is infeasible on any existing or approved Wireless Antenna within 1,000 feet. (Id.) d) AT&T has not met its burden to establish that a 60-foot facility and associated diesel generator, will not be "detrimental to the value of the property and improvements in the neighborhood" (Id. § 241.10(A)(1)), specifically the residential properties on Windy Sands Circle, the property line for some of which are setback less than the height of the facility.
e) AT&T has not met its burden to establish that the facility will remain not "detrimental to the value of the property and improvements in the neighborhood" (Id. § 241.10(A)(1)), specifically the residential properties on Windy Sands Circle, for the duration of the CUP period in light of federal law enabling the potential increase in height of the facility by 20 feet. f) AT&T has not met its present burden of demonstrating that the facility will "meet or exceed" FCC environmental regulations, as required by HBZSO Section 230.96(G)(6), in light of the ongoing review by the FCC. g) AT&T has not met its burden of evaluating potential noise impacts as required to establish that the project will "not adversely affect the General Plan" and comply with the Noise Element. (Id. § 241.10(A)(2).)
2. The proposed project composed of a 60-foot Wireless Communication Facility and associated diesel generator in this parking lot location adjacent to residents does not qualify for an exemption from CEQA under CEQA Guidelines Section 15303.
3. The Planning Commission denied the CUP at the de novo hearing held on June 13,2023, when a majority of Commissioners did not vote in favor of approving the CUP.
Consequently, Ms. Price shall receive a refund of the appeal fee.