Long Beach City Council
October 18, 2022

CITY OF Development Services Department
411 West Ocean Boulevard, 3'" Floor Long Beach, CA 90802 (562) 570-5237
October 18, 2022

HONORABLE MAYOR AND CITY COUNCIL
City of Long Beach
California
RECOMMENDATION:

Receive supporting documentation into the record, conclude the public hearing, and consider an appeal of the environmental review for a small cell permit in the public rightof-way abutting 4351 Clark Avenue by Kathryn Pettit of Chatten-Brown, Carstens & Minteer, LLP, on behalf of Moira Hahn and Mark Hotchkiss; Determine that the project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 (Class 2 - Replacement or Reconstruction) and 15303 (Class 3 - New Construction or Conversion of Small Structures) of the CEQA Guidelines and none of the exceptions in 15300.2 apply, (CE19- 013); and,
Deny the appeal, determine that the project complies with CEQA and, on that basis, affirm the approval of a Small Cell Wireless Telecommunications Facilities (Small Cell) Permit (PWRW48749-8) for the replacement of an existing streetlight pole (#HB1300) and replacement with a new streetlight pole with a small cell wireless telecommunications facility on a new foundation in the same location within the public right-of-way, abutting a property addressed as 4351 Clark Avenue in the R-1-N (Single-Family Residential - Standard Lots) Zoning District. (District 5)

DISCUSSION
On April 18, 2022, an Independent Administrative Hearing Officer approved a project on appeal for the replacement of an existing streetlight pole (#HB1300) and replacement with a new streetlight pole with small cell equipment on a new foundation in the same location within the public right-of-way, abutting private property located at 4351 Clark Avenue (Attachment A). The appeal process was carried out in conformance with Chapter 15.34 (Wireless Telecommunications Facilities in the Public Rights-of-Way) of the Long Beach Municipal Code (LBMC). The appeal before the City Council pertains to the hearing officer's decision granting approval of the small cell permit at 4351 Clark Avenue and finding that the approval is categorically exempt from CEQA.

Proposed Project
The proposed project is the replacement of an existing streetlight pole (#HB1300) with a new Concealfab streetlight pole on a new foundation in the same location within the public right-ofway, abutting a property addressed as 4351 Clark Avenue. The existing streetlight pole measures 28-feet-3-inches in height to the center of the existing luminaire. The replacement H-20

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October 18, 2022
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pole would feature a streetlight luminaire over the public right-of-way (Clark Avenue), with a vertical extension and wider pole to be able to support the installation of small cell equipment (one 14-port Gamma Nu Antenna, two 4402 Radios, one 2205 Radio, and one Raycap Surge Protector) (Attachment B). The replacement streetlight pole would measure 31-feet-5-inches in height to the highest point of the vertical extension and 28-feet-6-inches to the center of the luminaire. Conduit for power would be installed within the cavity of the light pole and connect to conduit within the paved public street (Clark Avenue).

The surrounding land uses include single-family residential uses and the public right-of-way (Clark Avenue) (Attachment C). The existing right-of-way along the west side of Clark Avenue features street trees, landscaping, and turf areas. There is no public sidewalk in this segment of the parkway abutting the location of the existing or proposed streetlight pole.

Background
The initial application for the proposed project was filed with the Public Works Department on November 16, 2020. As part of permit review protocol, the construction drawings were approved by the Public Works staff on January 29, 2021, which was followed by a "Ready to Issue" notification provided to the applicant on February 2, 2021.

In accordance with the noticing requirements in Chapter 15.34 of the LBMC, public notices for the small cell permit were mailed and posted on February 17, 2021. The noticing was mailed to the property adjacent to the proposed site and to the properties directly across the street.

The site was posted on February 17, 2021. Within the 10-business-day appeal period, a letter of appeal was filed on February 26, 2021 by Moira Hahn and Mark Hotchkiss (Appellants) (Attachment D).

An appeal hearing was held on March 18, 2022 before an Independent Hearing Officer. The topics raised during the appeal hearing included noticing, timing for review, discrepancies in the provided photo simulations, project description, noise levels, health and safety concerns, aesthetic impacts, and the CEQA determination. On April 18, 2022, the final decision of the appeal hearing was made and the hearing officer denied the appeal and upheld the issuance of small cell permit (PWRW48749-8). The Appellant's legal counsel filed an appeal of the hearing officer's decision and the Categorical Exemption CE-19-013 under the California Environmental Quality Act (CEQA) on April 26, 2022 (Attachment E).

Project Compliance
Public Works staff has analyzed the project in accordance with the requirements outlined in Chapter 15.34 of the LBMC. The project meets the objective standards outlined in the LBMC for small cell wireless facilities. Furthermore, all required documentation for compliance with the Federal Communications Commission have been provided in the record.

Appeal
The appeal subject to this public hearing is filed in opposition to the hearing officer's decision and the City's use of a Categorical Exemption under CEQA. Pursuant to CEQA, the City of Long Beach issued a Citywide Categorical Exemption (CE-19-013), for the construction and

HONORABLE MAYOR AND CITY COUNCIL
October 18, 2022

modification of small cells in various locations in the public right-of-way, in a manner consistent with the approvals allowed by Chapter 15.34 of the LBMC (Attachment F). This citywide exemption uses Sections 15301 (Class 1, Existing Facilities), 15302 (Class 2, Replacement or Reconstruction), and 15303 (Class 3, New Construction or Conversion of Small Structures) exemptions. The proposed project has been determined to be consistent with the findings made for the categorical exemption per Sections 15302 (Class 2, Replacement or Reconstruction) and 15303 (Class 3, New Construction or Conversion of Small Structures) of the CEQA Guidelines.

This appeal is limited to the CEQA determination for the project and does not pertain to the approval process under Chapter 15.34 of the LBMC. The determinations made by the Hearing Officer that are beyond the scope of the CEQA issues identified in the Appellants' initial appeal are governed by Chapter 2.96 of the LBMC and are subject to a writ proceeding pursuant to Code of Civil Procedure section 1094.6 and are therefore not subject to appeal to the City Council.

While the underlying permitting decision relative to the requirements of LBMC § 15.34 is not before the City Council, it is important to note that the installation of telecommunications infrastructure is highly regulated by federal and state laws and regulations, leaving only a limited scope of regulatory authority for local agencies such as the City. The Federal Telecommunications Act was adopted in 1996 expressly to "remov[e] barriers to entry" into the telecommunications market thereby fostering competition. (47 U.S.C. § 253.) Federal law prohibits the City from considering the health effects of wireless facilities when deciding whether to approve or deny an application to the extent such facilities comply with the Federal Communications Commission's regulations concerning such emissions, as was the case here.

Similarly, state law places an additional layer of limitations on local authority over wireless facility installations. Local agencies, like the City of Long Beach, must respect statewide franchises when making decisions on proposed facilities; they retain authority over aesthetic and public safety issues, but do not have the right to outright prohibit installations.

The City updated its telecommunications regulations to comprehensively exercise its limited authority over telecommunications installations in the public right-of-way thereby adopting the City's Telecom Ordinance (LBMC § 15.34). The City brought the proposed Telecom Ordinance to the City's Planning Commission for review and recommendation on February 15, 2018 where the Planning Commission ultimately voted 5-0 (2 members absent) to recommend approval of the ordinance. The proposed Telecom Ordinance was then brought before the City Council for introduction on April 17, 2018. After hearing and consideration, the City Council introduced the Telecom Ordinance for first reading by a vote of 8-0 (one Councilmember absent). The ordinance came for second reading and was adopted by a unanimous vote of the City Council at the following regular meeting, on May 1, 2018. This prior adoption of the citywide Ordinance included an environmental analysis of the citywide impact of the Ordinance.

The appeal documentation notes that the CEQA review requires the analysis of a project's cumulative impacts and precludes application of an exemption where a project will cause significant cumulative impacts (Guidelines Section 15300.2(b)). The appeal states that the citywide categorical exemption accepted by the City Council at the time of the adoption of small cells without analysis of the cumulative impacts violates CEQA.

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October 18, 2022
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The proposed project would not meet the provisions that result in a cumulative impact or substantial adverse impact that would disqualify the project from using a categorical exemption (Attachment G). The project entails the replacement of a streetlight pole in the same location with a new streetlight pole with the capacity to support new small cell wireless telecommunications facilities. Chapter 15.34 of the LBMC regulates the location of small cell wireless telecommunications facilities within residential zoning districts. The project is compliant with the development standards for small cell wireless telecommunications facilities, including project location. Section 15.34.030, establishes requirements and standards for wireless telecommunications facilities in the public right-of-way, including distancing requirements that would prevent cumulative impacts for previous and successive applications in the same location. None of the exceptions to the use of a categorical exemption, outlined in Section 15300.2 of the CEQA Guidelines, would be met. Because the proposed installation that is the subject of this appeal is categorically exempt from the CEQA.

This matter was reviewed by Deputy City Attorney Erin Weesner-McKinley on October 3, 2022 and by Revenue Management Officer Geraldine Alejo on September 21, 2022.

Public Hearing Notice
Public notices for the small cell permit were distributed on February 17, 2021 in accordance with public notification requirements in LBMC Chapter 15.34 (Wireless Telecommunications Facilities in the Public Rights-of-Way). Notices of this public appeal hearing were sent to the same individuals included in previous noticing on October 4, 2022. In addition, a poster notice was posted onsite and mailed to the applicant and appellant. As of the date of preparation of this report, no written comments have been received in response to the noticing of the appeal.

Any comments received prior to the City Council hearing will be provided to the City Council.

ENVIRONMENTAL REVIEW
Pursuant to the California Environmental Quality Act (CEQA), the City has issued a citywide Categorical Exemption (CE-19-013), for the construction and modification of small cells in various locations in the public right-of-way, in a manner consistent with the approvals allowed by Chapter 15.34 of the LBMC. Categorical Exemption (CE-19-013) was filed with the Los Angeles County Clerk-Recorder on January 31, 2019.This exemption uses Sections 15301 (Class 1, Existing Facilities), 15302 (Class 2, Replacement or Reconstruction), and 15303 (Class 3, New Construction or Conversion of Small Structures) exemptions. The proposed project is consistent with the findings made for the categorical exemption per Sections 15302 (Replacement or Reconstruction) and 15303 (Class 3, New Construction or Conversion of Small Structures) of the CEQA Guidelines.

TIMING CONSIDERATIONS
City Council action is requested on October 18, 2022 to hear the appeal.

FISCAL IMPACT

HONORABLE MAYOR AND CITY COUNCIL
October 18, 2022

This recommendation has no staffing impact beyond the normal budgeted scope of duties and is consistent with City Council priorities. There is no fiscal or local job impact associated with this recommendation.

SUGGESTED ACTION:

Approve recommendation.

Respectfully submitted,
~~ CHRISTOPHER KOO~

ACTING DIRECTOR OF DEVELOPMENT SERVICES
ATTACHMENTS: A-ADMINISTRATIVE HEARING DECISION - MARCH 18, 2022

B-PLANS

C - SITE PHOTOGRAPHS
0 - APPEAL - FEBRUARY 26, 2022
E - CEQA APPEAL - APRIL 26, 2022
F-CEQACE-19-013

G - CEQA STATEMENT OF SUPPORT
APPROVED:

THOMAS B. MODICA

CITY MANAGER
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ADMINISTRATIVE HEARING

CITY OF LONG BEACH
MOIRA HAHN and MARK

HOTCHKISS,

APPELLANTS
vs.

CITY OF LONG BEACH,
PERMITTING AUTHORITY.

A T & T MOBILITY,

PERMIT APPLICANT

RECOMMENDATION AND FINDINGS
HEARING DATE: 3/18/22

ADMIN HEAING

OFFICER LARRY MINSKY
I. BACKGROUND, POSITIONS OF THE PARTIES AND

DECISION
This matter came on for a remote hearing, via the Web Ex platform, on March 18, 2021 at 9:30 a.m. The hearing was conducted pursuant to the provisions of§ 15.34.030(L) of the Long Beach Municipal Code. The hearing was conducted by Administrative Hearing Officer Larry Minsky, assigned to this matter by the 1 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
Attachment A

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1/18/21 Manuel Salgado 1/29/2021 Attachment B
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Attachment C

SITE PHOTOGRAPHS
Public Right-of-Way abutting 4351 Clark Avenue (Pole #HB1300) Application No. PWRW48749-8
October 18, 2022
Site Photographs
Application No. PWRW48749-8
October 18, 2022

Attachment D

Hermosa Beach Office
Phone: (310) 798-2400
San Diego Office
Phone: (619) 940-4522
Chatten-Brown, Carstens & Minteer LLP
2200 Pacific Coast Highway, Suite 318
Hermosa Beach, CA 90254
www.cbcearthlaw.com
Kathryn Pettit
Kathryn Pettit
[email protected]
(323) 348-1877
April 26, 2022
Via e-email
Monique De La Garza ([email protected])
Long Beach City Clerk
411 W. Ocean Blvd.

Long Beach, CA 90802
Re: Appeal of Hearing Officer’s Recommendation and Findings Regarding Long Beach Department of Public Works Approval of the AT&T Wireless Telecommunications Facility at 4351 Clark Avenue, Long Beach, CA and Related CEQA Finding.

Dear Monique De La Garza:

On behalf of Moira Hahn and Mark Hotchkiss, and pursuant to the California Environmental Quality Act (“CEQA”), we hereby submit to City Council this appeal of Hearing Officer Larry Minksy’s decision to grant AT&T's application for a wireless transmission facility (“WTF”) permit at 4351 Clark Avenue, Long Beach, California and finding that the approval is categorically exempt from CEQA. Public Resources Code Section 21151 provides:

If a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to this division, that certification, approval, or determination may be appealed to the agency’s election decisionmaking body, if any.
(Pub. Resources Code section 21151(c), emphasis added.) Further, the Long Beach Municipal Code (“LMBC”) 21.21.501 provides that “Any aggrieved person may appeal a decision on any project that required a public hearing.” LMBC Section 15.34.030 (L)(2) requires a public hearing where an appeal is timely submitted. (“Public Hearing Required.”)
Moira Hahn and Mark Hotchkiss (“Appellants”) timely appealed the City Department of Public Works’ approval of a permit application by AT&T for a WTF at Attachment E
Long Beach City Council
April 26, 2022

4351 Clark Avenue. A hearing was held on March 18, 2022. Larry Minsky was the designated Administrative Hearing Officer.

On April 21, 2022, the City Clerk notified Appellants of the “attached recommendation and findings” from the hearing. Officer Minsky’s Recommendations and Findings are attached as Exhibit A. Appellants greatly appreciate the time that Officer Minsky spent in reviewing the pre and post hearing briefs. However, Appellants respectfully disagree with Officer Minsky’s final decision to deny their appeal and grant AT&T’s permit without any conditions to prevent harm to Ms. Hahn, as well as his decision to allow the use of an exemption from CEQA, for the reasons discussed below.

Appellants have attached an Application for Appeal as Exhibit B.

It should be noted that Officer Minsky made several important findings in Appellants’ favor, including that Appellant Hahn is a qualified individual with disabilities (Ex. A, p. 10), and “by way of said scientific/medical evidence, Appellants have shown that the FCC's determination as to what are safe and acceptable RF emission exposure levels are antiquated and not based on current scientific evidence and that the FCC regulations are instead industry-sponsored, outdated, and just plain wrong, causing the public to be exposed to unnecessary and harmful radiation.” (p. 7.) Officer Minsky further found that the City did correspond with Appellants about a reasonable accommodation, but its final correspondence “simply cut off Appellants from any further reasonable discussion on the issue.” (p. 11.) Officer Minsky noted that other reasonable accommodations might have been considered. (p. 21.)
However, Officer Minsky’s ultimate conclusion that Appellants failed to show they “were denied or excluded from a City benefit, program, or activity” (Ex. A, p. 11) that would entitle them to reasonable accommodation and protection under the Americans with Disabilities Act (ADA) and state laws contradicts earlier findings that the WTF may likely cause Ms. Hahn harm within her own home. Additionally, Appellants were further deprived of a City program, service or activity when the City’s ADA compliance officer ignored Appellants’ letter asking for help, and failed to provide Appellants assistance.

LMBC Section 15.34.030 (B)(viii) mandates: “The proposed wireless telecommunications facility and its location shall comply with the Americans with Disabilities Act.” At the hearing, the City stated this section only concerned placement of the WTFs as they related to wheel-chair access. ADA accommodations are not limited to one class of disabled individuals, federally or as written in the City’s own code. Further, the placement of this WTF will exclude Ms. Hahn from her home, her outside garden, the sidewalk outside of her home, and the surrounding public area.

Long Beach City Council
April 26, 2022

Additionally, as detailed in Appellants’ pre- and post-hearing briefing, CEQA requires the analysis of projects’ cumulative impacts, and precludes application of an exemption where a project will cause significant cumulative impacts. (Guidelines Section 15300.2 subd. (b).) The City’s widespread, unlimited approval of WTFs without any analysis of the cumulative impacts violates CEQA.

CEQA exemptions are also not applicable where a project will cause significant impacts, or where unusual circumstances preclude application of an exemption. (CEQA Guidelines §15300.2, 15064.) Appellants detailed in their Memorandums that placement of the WTF in this location does not qualify for a CEQA exemption due to its location near a gas line and the negative health impacts it will inflict on Ms. Hahn.

In approving the use of a CEQA exemption, Officer Minsky concluded, While Appellants may in fact be correct as to the possible cumulative effect of installing numerous WCFs throughout the City, they did not establish that either CEQA nor NEPA mandated the City or AT&T to conduct a cumulative evaluation in this case. Appellants fail to cite specific sections of the City's Telecom Ordinance nor to CEQA or NEPA which mandated that the City engage in such an analysis here. The force and clarity of 47 U.S.C. 332 (c )(7)(B)(iv) was not successfully countered by Appellants.

Ex. A, p. 19, emphasis added; see also p. 20 [“while issues of cumulative harm caused or potentially caused to Appellants and the community appear to be a real danger…”].) Yet, Appellants’ Fourth Memorandum specifically cited CEQA Guidelines Section 15300.2 subdivision (b), which precludes reliance on a categorical exemption where cumulative impacts are significant. (Appellants’ Fourth Memorandum, p. 11; see also Appellants’ Fifth Memorandum, p. 9 [describing CEQA’s express requirement to analyze cumulative impacts, including health impacts].)1 CEQA’s wide-reaching analysis, disclosure, mitigation, and public accountability requirements are not preempted by 47 U.S.C. 332.

Officer Minsky also concluded that Appellants failed to establish that the City’s use of a CEQA exemption lacked substantial evidence, premised on the City’s citations to two cases in its post-hearing brief. (Ex. A, p. 23, 18-19). The case at hand is 1 Appellants further disagree with AT&T and Officer Minsky’s characterization of their citation to AT&T’s RF report.

The Report notes in several locations that the WTF will exceed the general public limit at the antenna level. While AT&T’s Report concluded this is minimized by the ground level, Appellants included this citation in their discussion of the threat that the WTF presents to Ms. Hahn’s health. Officer Minsky agreed that FCC limits cannot be relied upon to prevent harm to Ms. Hahn. An WTF that emits above the FCC public limits at the antenna level can logically found to present a greater threat than an WTF that emits below the FCC public limits at the antenna level.

Long Beach City Council
April 26, 2022

distinguishable. Here, the City issued an exemption approving an unlimited number of WTFs at unspecified locations, in stark contrast to the City’s cited cases that approved a specified number of projects. Further, substantial evidence (demonstrated by Officer Minsky’s findings of the cumulative health impacts) indicates that the approved projects will result in significant cumulative impacts that should have been studied.

Because the City Council, the City’s elected decision-making body, has not yet been given the opportunity to consider whether a categorical exemption is applicable to the approval of the WTF at this location, CEQA mandates that the Hearing Officer Larry Minsky’s determination that the project is categorically exempt be appealable to the City Council.

Thank you for your time and consideration in this matter.

Sincerely,
Kathryn Pettit
Douglas Carstens
cc:

Long Beach City Councilmembers
Deputy City Attorney Erin Weesner-Mckinley ([email protected]) Long Beach Development Services ([email protected])
Exhibit A
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ADMINISTRATIVE HEARING

CITY OF LONG BEACH
MOIRA HAHN and MARK

HOTCHKISS,

APPELLANTS
vs.

CITY OF LONG BEACH,
PERMITTING AUTHORITY.

A T & T MOBILITY,

PERMIT APPLICANT

RECOMMENDATION AND FINDINGS
HEARING DATE: 3/18/22

ADMIN HEAING

OFFICER LARRY MINSKY
I. BACKGROUND, POSITIONS OF THE PARTIES AND

DECISION
This matter came on for a remote hearing, via the Web Ex platform, on March 18, 2021 at 9:30 a.m. The hearing was conducted pursuant to the provisions of§ 15.34.030(L) of the Long Beach Municipal Code. The hearing was conducted by Administrative Hearing Officer Larry Minsky, assigned to this matter by the 1 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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CITY OF LONG BEACH to hear the undisputedly timely appeal filed on February 26, 2021 by Appellants Ms. MOIRA HAHN and Mr. MARK HOTCHKISS (hereinafter generally referred to as Appellants unless otherwise appropriate) (Appeal). The Appeal challenges the CITY of LONG BEACH, DEPARTMENT OF PUBLIC WORKS' (City) January 19, 2021 decision to grant a Tier B Wireless Right-of-Way Facility Permit application for the installation of a small cell wireless communication facility (WCF) within the public right-of-way adjacent to and/or across from Appellants' home located at 4351 Clark Avenue, Long Beach, California (Permit). The WCF Applicant, AT&T Mobility (AT&T), seeks through its application to replace an existing light pole with a new special light pole on which a wireless telecommunication facility would be housed 1.

The Parties: Appearing on behalf of Appellants was Douglas P. Carstens of the law firm of Chatten-Brown, Carstens and Minteer, LLP. Appearing on behalf of the City were Deputy City Attorney Erin Weesner-McKinley and Jeffrey T.

Melching of the law firm of Rutan & Tucker. Appearing on behalf of AT&T was Aaron M. Shank of the law firm of Porter Wright.
1 The City describes the installation as follows: "As proposed, the WCF will be integrated into a new ConcealFab light pole that will replace the existing light pole at the site. The existing light pole is twenty-six feet and three inches high and the top of the existing luminaire is twentyeight feet and three inches at the center of the luminaire." (Ex. 7, p. 168) "The ConcealFab replacement light would be thirty-one feet and five inches at the top of the pole and twenty-eight feet and six inches at the center of the luminaire .... The ConcealFab pole design allows three radios to sit concealed inside the pole, with the antenna installed at the top of the pole. The center line of the antenna will sit thirty feet and five inches above the ground. One pull box for fiber and power will be placed adjacent to the pole with all associated cables routed inside the box ... . The proposed site does not exceed the existing street light pole's height by more than five and one-half feet and the pole-mounted equipment is installed higher than ten feet." [City's PreHearing Brief, pg. 5, line 25-pg.6, line 22] 2 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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The Hearing: Because this matter arose from the granting of the Permit, the City's Municipal Code requires the opportunity for Public Comment to be had as part of the hearing. See: LBMC § 15.34.030(1)(2). In compliance therewith, the first thirty minutes of the hearing were set aside for members of the public to orally express their concerns. Members of the public who spoke were: Corliss Lee, Khalil Gharios, Stafford Cox, Andrew Campanelli, George Jackson, Nancy Vandover, Patricia Hahn, Edwin Bembaum, and Robert Berg. None of the members of the public who spoke were sworn. Written statements were also received and reviewed by the Hearing Officer and were admitted into the Record.

The Record of this proceeding is to be maintained by the City.

Briefing was submitted by the parties both prior to the hearing and by way of post-hearing and rebuttal briefs. All exhibits from all parties were received and admitted, each to be given the weight it is due. Each party was permitted the opportunity to and did examine and cross-examine witnesses. The time within which this Decision was to issue was extended by all parties from 14 days to 30 days following the Hearing Officer's receipt of all briefs.

The Position of the Parties: The City's actions were, by its own admission, governed solely by Chapter 15.34 of its Municipal Code, referred to as the City's Telecom Ordinance. 2 The City and AT&T jointly assert that the only viable issue 2 Unless otherwise stated, all references to the Long Beach Municipal Code are to Chapter§

15.34. 3

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which can and should be addressed by way of this hearing is whether substantial evidence supports the City's decision that AT&T satisfied all factual and legal obligations under Chapter 15.34 in seeking said Permit and that the City's decision to grant AT &T's Permit application was neither arbitrary nor capricious. Having satisfied all conditions precedent for obtaining the Permit, the City and AT&T submit that the appeal must be denied. The City and AT&T further jointly assert that the objections asserted by Appellant are without merit and/or are simply inapplicable to the present proceedings.

On the other hand, Appellants contend the City violated Chapter 15 .34 in granting the Permit application and that the City's decision in granting the Permit application was both arbitrary and capricious in that the City's decision violates both Chapter 15.34's provisions as well as the intent of the Telecom Ordinance.

Appellants further assert that the City's decision cannot stand as a matter of law as the granting of the Permit here violated Appellants' rights to: (1) be free from discrimination on the basis of disability, citing Title II of the Americans with Disabilities Act, 42 USC§ 12132 et seq. (ADA), the Fair Housing Act, 42 USC §§ 3604 et seq. (FHA), and California's Fair Employment & Housing Act, CGC §§ 12900 et seq. (FEHA), and (2) a healthy environment free from the injurious effects of electromagnetic or wireless radiation. Appellants further assert that the exemption to the City's need to comply with the California Environmental Quality 4 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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Act, California Pubic Resources Code§§ 21000 et seq., and the National Environmental Policy Act, 42 USC §§ 4321 et seq. was not satisfied despite the City's receipt of a CEQA exemption.

The Decision: For the reasons set forth below, I find that on this Record substantial evidence supports the acts of the City in granting AT&T'S Permit application. I further find that the City did not abuse its discretion in its interpretation of Chapter 15 .34 in the granting AT &T's Permit application.

Accordingly, the appeal is hereby denied.

II. SUMMARY OF RELEVANT EVIDENCE
A. The Potential Harm Created by the Prospective WCF to Appellants and the Public:

Appellant Hahn is a sixty-five-year-old retired Community College Professor and artist who since 2001 has resided at 4 3 51 Clark Avenue, Long Beach, California 90808. (See: Hahn's 3/24/22 Dec.if2.) Her physician, Dr.

Richard Wexler, an internist who has treated Ms. Hahn since 2002, opined in his 2/24/21 report that Ms. Hahn has experienced severe headaches since childhood.

Dr. Wexler also noted that during the previous nineteen years, she has had four separate neurologists who have treated her for chronic migraines and cluster headaches. In his report, Dr. Wexler states that despite Ms. Hahn's use of various coping mechanisms to address her migraines and headaches, she was nevertheless required to retire from teaching due to the pain from her uncontrolled migraines. 5 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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Dr. Wexler also notes that she suffers from repeated ear infections and is 100% deaf in her left ear (Exhibit D, Appellant's Pre-Hearing Brief).

Dr. Wexler goes on to opine at page two of his report, " [C]ertain people are more sensitive to wireless radiation than others and those hypersensitive patients often experience an exacerbation of their underlying medical problems when they are exposed to continuous doses of wireless radiation." Dr. Wexler attributes Appellant Hahn's radiation hypersensitivity to the various conditions to which she suffers, such as her cluster headaches and migraines, sensitivity in her ears, and strong family history of cancer. Dr. Wexler then opinioned as follows, "In my medical opinion, if a wireless telecommunications facility is located in close proximity to Ms. Hahn's house and transmits wireless radiation continuously-even at levels within the existing FCC guidelines, Ms. Hahn may be physically harmed by the wireless radiation," concluding with a request for accommodation to be made for her by restricting any WCF to not be placed within a 1,000-foot radius of her home.

In further support of its appeal, Appellants introduced a number of credible scientific articles and offered the testimony of Ms. Theodora Scarato, all of which support Appellants' contention that radio-frequency radiation emissions or wireless radiation (RF emissions) can and do cause injury to animal and human life depending on a number of factors. This evidence sufficiently established to this 6 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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Hearing Officer that RF emissions may and can injure animals and humans and may very well cause further injury to Appellant Hahn if the WCF is installed.

These articles call into question the scientific and medical legitimacy of the legally controlling Federal Communications Commission (FCC) regulations cited and relied upon jointly by the City and AT&T here as to what is safe and acceptable RF emission exposure levels to which the public in general and Appellant Hahn in particular can and should be allowed to be exposed, especially where, as here, a WCF is projected to be erected a few yards from Appellants' home.

By way of said scientific/medical evidence, 3 Appellants have shown that the FCC's determination as to what are safe and acceptable RF emission exposure levels are antiquated and not based on current scientific evidence and that the FCC regulations are instead industry-sponsored, outdated, and just plain wrong, causing the public to be exposed to unnecessary and harmful radiation. 4 B. The City's Purported Inadequate Notice of the WFC:

Appellants cite to the City's failure, inter alia, to provide accurate photo 3 See for example: Norm Alster's article, Captured Agency: How the Federal Communications Commission is Dominated by the Industries It Presumably Regulates; Anthony Miller, et. al., Risks to Health & Well-Being from Radio Frequency Radiation Emitted by Cell Phones & Other Wireless Devises, and Martin Pall's article, Millimeter Wave & Microwave Frequency Radiation Produces Deeply Penetrating Biology and Physics; Levitt and Lai's article, Biological Effects from Exposure to Electromagnetic Radiation Emitted by Cell Tower Base Stations and Other Antenna Arrays.
4 However, Appellant here has failed to cite let alone establish a legal basis upon which the City or this Hearing Officer can disregard the legal mandate established by Congress through the Telecommunications Act of 1966 (See: 47 USC§§ 332(c) (7)(B)(iv) (Telecom Act) (hereinafter §332) in situations such as the one at bar. Resort to other judicial or legislative channels might be appropriate.
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simulations of what the WCF will actually look like when installed. Appellants assert that the photo depictions provided by AT&T and relied upon by the City inaccurately depict the WCF as being the same height as the existing light standard. In point of fact, the actual light standard is but 26 feet tall whereas the WFC will stand 31 feet tall. Appellants also cite to the fact that the address of the proposed WCF was listed by the City as 43651 Clark Avenue when in fact the correct address is 4351 Clark Avenue (Appellants' Pre-Hearing Brief, pps. 2, 5, 8- 10, and Appellants' Fourth Brief, pg.14 ). Appellants also assert that AT&T in its application fail to disclose its plans for 5G expansion by and through use of the proposed WCF (Appellants' Fifth Brief, pg.7). These objections are not material to the determination at issue here.

C. The City's Failure to Comply with Chapter 15.34:

Appellants asserts that the City's evaluation and decision making here was flawed in that the City did not: ( 1) engage in "strategic" or "smart planning" by ensuring that WCFs were strategically placed within the City generally and outside of Appellants' home in particular to ensure against enhanced RF emission exposure, (2) consider whether the proposed WCF location was, in fact, needed or even necessary, (3) consider the deleterious effects the placement of the WCF would have on both the aesthetics of their community generally and Appellants' home in particular, (4) consider the projected diminished property value Appellants would experience if the WCF is placed but a few yards from the front door of 8 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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Appellants' home, (5) failed to consider the cumulative harm to Appellants as members of the general public, and to Appellant Hahn in particular, 5 and ( 6) consider Ms. Hahn's need for reasonable accommodation as a person with a disability, by and through accommodating Appellant's disability by either placing a hold on the granting of the Permit to allow a fair and objective study of the possible ill effects of erecting the WCF within yards of Appellants' home or simply moving the WCF to a location which is not within a 1,000-foot radius of Appellants' home. For the reasons noted infra, these contentions are rejected.

D. The City's Evaluation of AT & T's Permit Application:

AT&T submitted its Permit application to the City on November 16, 2020 (City's Ex.#2), which the City approved on January 29, 2021. On February 26, 2021 , Appellants filed the instant Appeal (City Pre-Hearing Brief pg. 10, lines 12- 19). The factual mechanics of what the City actually did to evaluate and eventually approve the Permit application, such as, for example, the noise study or structural analysis, were undisputed by Appellants6•
5 In its Post-Hearing, 4th Brief, at page 7, lines 4-15, Appellants point out that by its own admission, AT&T's proposed WCF will violate FCC's RF emission regulations which should have, but did not, cause the City to reject AT&T' s Permit application. In support of this argument, Appellants quote from AT&T's Permit application that the proposed WCF will, "at the working surfaces that are nearest to AT&T antennas at the light fixture level, the maximum power density generated by the AT & T antenna is approximately 132.34 percent of the FCC's general public limit." Because the harmful exposure levels admittedly violate FCC's standards, by law, the City had no alternative but to deny the application. For the reasons articulated by AT&T in its Post-Hearing Reply Brief at pages 1-2, I find this argument unpersuasive and misleading.
6 In its Pre-Hearing Brief, the City sets forth precisely what it did to evaluate, consider, and eventually approve AT&T's Permit application in its claimed compliance with the mandates of Chapter 15.34. While Appellants dispute the City's conclusions on the Permit application as noted above and attack the approval by arguing that other considerations should have been done 9 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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III. DISCUSSION
A. Appellant's Disability Discrimination Contentions:

A key component of Appellants' argument hinges on their claim that because Appellant Hahn is a qualified person with a disability, she is, as a matter of law, entitled to reasonable accommodation, a legal right secured her by the federal and state disability discrimination statutes. Neither the City nor AT&T presented much to rebut Appellants' factual/legal conclusion that Appellant Hahn was a qualified individual with a disability and accordingly based on this record, I find that Appellant Hahn is a qualified person with a disability.

However, the right to reasonable accommodation for Appellant Hahn does not attach unless Appellants can also establish that by granting the Permit application, they/she is, was, or will be excluded from the benefits of a City program, service, or activity. 7 Under the law, if one seeks to avail her- or himself of the protections of the anti-disability discrimination statutes and to be reasonably accommodated, one must establish, that she is: (1) a qualified person with a disability, (2) she was excluded from participation in or denied the benefits of a public entity's services, programs, or activities or otherwise discriminated against but were not, Appellants did not contest what the City actually did in its evaluation process, such as its evaluation of the appropriate design for the WCF, or the noise analysis, or the structural analysis and accordingly the Hearing Officer adopts the City's factual account of what it did as spelled out at pages 5 to 11 of the City's Pre-Hearing Brief; however, the legal conclusions of the City and AT&T are not adopted here. 7 Even assuming that the ADA, like the FHA or even the Rehabilitation Act of 1973 at section 504 (29 USC § 794) are not preempted by the Telecommunication Communications Act, Appellants here cannot, for the reasons cited herein, make out a claim entitling Appellants to reasonable accommodation. 10

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by the public entity, and (3) that the exclusion from said programs, services, or activities was by reason of her disability. See: Updike v. Multnomah City (9th Cir., 2017) 870 F3rd 939, 949; Wolf v. City of Millbrae (N.D. Cal., 2021), 2021 U.S.

Dist. LEXIS 159025.

Here, there has been no showing by the Appellants that they jointly or severally were denied or excluded from a City benefit, program, or activity.

Likewise, no evidence has been presented which suggests let alone establishes that the City or AT&T has engaged in any denial of opportunities to participate in any City program because of Appellant Hahn's disability. 8 The issue of reasonable accommodation comes into play as a vehicle through which persons with disabilities can show they can participate either with or without reasonable accommodation. In the employment context, for example, the employee or applicant is able to use the opportunities provided by reasonable accommodation to prove she is qualified, that is, reasonable accommodation is irrelevant if the employee is unable to establish that she was not subjected to an adverse employment action. Here, Appellants must be able to prove they were denied access to a City benefit or program and where, as here, Appellant Hahn cannot satisfy that element, she cannot avail herself of an entitlement to be accommodated. Without such a showing, Appellants' reasonable accommodation/ 8 The Record here establishes that the City did correspond with Appellants on the issue of reasonable accommodation (see Appellants Ex. E) but a fair reading of its reply to Appellants suggests it simply cut off Appellants from any further reasonable discussion on the issue. 11

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disability discrimination arguments must and fail. 9
Focusing on a different approach to this issue of accommodation, the USDC of the Northern District in Wolf addressed this issue by focusing on the issue of reasonableness. The plaintiff there, like Appellant Hahn here, suffered from electromagnetic hypersensitivity causing him to suffer a myriad of mental and physical impairments which would be made worse by RF emissions resulting from cell towers located near his home. Mr. Wolf sought to be accommodated by moving or halting the operation of the cell tower near his home which would lessen and/or alleviate his impairments. In dismissing Mr. Wolf's ADA, FHA, and FEHA disability claims, the Court found that as a matter of law, that because Mr.

Wolf's reasonable accommodation requests (the moving of the cell tower or shutting it down) would cause the City of Millbrae to violate §332 of the Telecom Act, the accommodations sought were not reasonable.

The Telecommunications Act of 1996 provides in pertinent part, at 4 7 U.S.C. 332(c )(7)(B)(iv) that,
9 While Appellants in their briefs refer to the ADA, FHA, and FERA and provide some case authority regarding the contours of reasonable accommodations, none of the Title II, FHA, or FERA authority Appellants cite address the key issue which is missing from its analysis, that being, was Appellant Hahn denied access to a City program, service, or activity or discriminated because of her disability. If they had, then Appellants might have been able to establish the existence of what may have been a reasonable accommodation which the City might have been required to provide, despite the language of 47 U.S.C. §332(c)(7)(B)(iv). However, having failed to establish that missing factual element, their reasonable accommodation argument must fail and this Hearing Officer need not decide that issue. Moreover, Appellants' reference to the ADA set forth at LBMC §15.34.030(B)(l)(b)(viii) appears to be of no help. As noted by the City, the inclusion of ADA reference at LBMC §15.34.030(B)(l)(b)(viii) only meant that the City needed to comply with the ADA, for example, where and when a WCF or other device is erected on a sidewalk, the WCF must be constructed in such a way so as to ensure that persons in wheelchairs can ambulate around the WCF.
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"No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning said emissions." [Explanation supplied]
As noted supra, while it does appear through reliable, credible evidence that the FCC's regulations as to what are safe RF emission standards are outmoded and inadequate to safeguard the public, until those FCC RF emission standards are successfully challenged or amended, this Hearing Officer is precluded from disallowing the legal import of said mandated FCC RF emission standards. For the reasons stated, Appellants' disability arguments cannot be sustained.

B. Appellants' Failed Notice Contentions:

There is no dispute that the City failed to correctly cite the location for the projected AT&T WCF location. Likewise, it appears there is no real dispute that the photographs do not depict how the WCF would look if one were to be looking at the WCF from the vantage point if one were in Appellants' home or garden and looking toward the WCF site situated on Clark Avenue. However, it is also clear that both the public and Appellants had no difficulty in discerning prior to the hearing as to where the WCF was to be erected or what the WCF would look like once installed. Finally, as to AT&T's projected use of the WCF for 5G purposes, even if accurate, Appellants failed to prove that such an omission can and should, as a matter of law, amount to a denial of AT &T's Permit application. Accordingly, 13 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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I find Appellants' notice arguments de minimis and unpersuasive.

C. Appellants' Contentions that the Granting of AT & T's Permit Application Violated LBMC Chapter 15.34:

All of Appellants' arguments that the City violated Chapter 15.34, with the exception of its disability arguments, hinge on two claims, those being: ( 1) that the intent of Chapter 15.34 as expressed in the Purpose and Objections section of the Chapter (see: LBMC §15.34.010) were violated by the City when it granted AT &T's Permit application and (2) the City should have engaged in " smart" or "strategic" planning, which § 15.34.010 implicitly requires, the City would and should have required AT&T to prove as part of its application that: ( a) the WCF at issue was needed and/or necessary, (b) the WCF would not adversely affect the aesthetics or property value of Appellants' home or the community's homes or the community in general, and ( c) that RF emissions emanating from the WCF would not harm Appellants or the public in general.

While there are a great many things that local governments may do when evaluating how to handle the servicing of its communities and its residents, that is not what is before this Hearing Officer in this matter. Local governments possess a great deal of discretion in the enforcement of their regulations and responding to regulations imposed upon it by law. But where, as here, the acts of a city are called into question, for courts and administrative officers seeking to oversee said acts, the focus must be on what the local entity did legislate and whether it complied 14 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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with its legal obligations thereunder and not what it could or should have10 legislated.

Appellants here did not establish that the City was mandated either by California or federal law or its Telecom Ordinance to employ "smart" or "strategic" planning. The federal case law and regulatory actions of other states cited by Appellants, stand for the proposition that when local entities exercise their discretion to enact requirements such as strategic planning, the acts and course of conduct of said legislative bodies can be scrutinized to ensure compliance therewith. While the actions of those other jurisdictions are interesting, they are not controlling in evaluating the validity of the actions of the City at issue here.

Hence, if the City had exercised its discretion and had legislated into its Telecom Ordinance "strategic planning," Appellants would be correct in arguing that City's approval of AT &T's Permit application would be an abuse of its discretion in that "smart" or "strategic" planning was required but not considered.

If that were the case, this Appeal would be granted. But the City here did not include such requirements into its Telecom Ordinance and therefore the City's failure to ensure that the projected WCF was needed or was strategically necessary is of no help to Appellants here.

As to the issue of aesthetics and property values, I find that the permit 10 If Appellants believe that the City failed to properly legislate when it enacted its Telecom Ordinance, then Appellants may choose to attack the Ordinance by way of a different attack in a different forum.
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standard requirements set forth in the City's Telecom Ordinance (§15.34.030) do not require the considerations sought here by Appellants, other than those aesthetics-related requirements actually set forth at§ 15.34.030(b )(vi), requirements the City did in fact evaluate.

Like the proposition of "smart planning," Appellants' concerns relative to a potential decrease in the value of their property is a subject which the City could have but did not include in its Telecom Ordinance other than the general reference to promoting property values in the purpose clause of the Telecom Ordinance.

While it may be true that the property values of Appellants' and their neighbors' homes may suffer as a result of the WCF installation, because the City did not include into the permit requirement sections a mandate for the City to consider the individual property values where a resident's home is impacted, neither the City nor AT&T here need prove whether Appellants have or will suffer a diminution in the value of their property.

While the loss in the value of Appellants' home caused by the WCF may, in a different forum, be a viable claim, here it is not. Hence the reference to aesthetics, property values, health and safety of its residents as set forth in the City's Telecom Ordinance at(§ 15.34.0l0(D)) cannot be inserted into the specific permit requirements set forth at §15.34.030(b) through §15.34.030(K) other than as referenced within §15.34.030. (See for example the reference to aesthetics noted in the City's Telecom Ordinance at §15.34.030(b)(vi).)
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D. Appellant's CEQA and National Environmental Act Contentions:

Appellants assert that the California Environmental Quality Act, California Pubic Resources Code §§ 21000 et seq. (CEQA) and the National Environmental Policy Act, 42 USC §§ 4321 et seq. (NEPA) establish viable reasons why this Appeal should be granted.

In support, Appellants note that the law disfavors the application of exemptions obtained here by the City. Appellants cite to the case law which holds that such exemptions are to be strictly and narrowly construed, Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal. App. 4th 677, 697, and the agency invoking an exemption bears the burden of demonstrating that substantial evidence supports the factual basis of the proposed exemption, Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal. 4th 372, 386. Additionally, Appellants point out that where, as here, a party asserts that an exception to the agency's proposed exception exists, then the party asserting that an exception to the exemption exists, here Appellants, need only show a reasonable possibility of a significant effect due to unusual circumstances such as a project's size or location, Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4th 1086, 1116.

Appellants further cite to: (a) the District of Columbia decision in United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC (DC Cir., 2019) 933 F. 3d. 728 which held, inter alia, that the FCC failed to justify its confidence that small 17 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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cell deployments pose little to no cognizable environmental risks given the vast number of proposed deployments, and (b) CEQA's finding that California's Legislature seeks to ensure the long-term protection of the environment, see:

Public Resources Code§§ 21000 et seq. and more specifically §15065(a) and §21001(a)&(d).

Armed with this authority, Appellants assert that the City failed to articulate any viable or substantive support for its use of the CEQA exemption it obtained and that the granting of the Permit application at issue fails to account for the unusual circumstances which the installation of the WCF at issue creates, namely (1) cabling and excavation (Appellants' Fifth Post-Hearing Brief p.9), and (2) the cumulative effect of the unlimited installation of multiple WCFs throughout the City (Appellants' Fifth Post Hearing Brief p.9).

Countering Appellants' argument, the City posits the argument that the California Courts have consistently supported class 1, 2, and 3 exemptions as obtained here by the City in situations similar to the one at bar. See: San Francisco Beautiful et al. v. City and County of San Francisco, et al., (2014) 226 Cal. App. 4th 1012 [Court approved installation of AT&T's 726 new utility cabinets at undetermined locations on public sidewalks throughout the city within 300 feet of existing cabinets] and Robinson v. City and County of San Francisco (2012) 208 Cal. App. 4th 950 [Court held class 3 CEQA exemption applied to the installation of small telecommunications equipment on utility poles]. Supporting said 18 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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exemption, the City did introduce evidence supporting its sought-for and awarded exemption.

While Appellants may in fact be correct as to the possible cumulative effect of installing numerous WCFs throughout the City, they did not establish that either CEQA nor NEPA mandated the City or AT&T to conduct a cumulative evaluation in this case. Appellants fail to cite specific sections of the City's Telecom Ordinance nor to CEQA or NEPA which mandated that the City engage in such an analysis here. The force and clarity of 47 U.S.C. 332 (c )(7)(B)(iv) was not successfully countered by Appellants.

It is worthy of note that Appellants citation to AT &T's admission that the WCF at the antenna level is 132.43% of the FCC's general public RF emission exposure level is disingenuous (Appellants' fourth Post-Hearing Brief at page 7).

As pointed out by AT&T in its Post-Hearing Brief, FCC's general public exposure level is not in fact breached at the level where the public will be. The 132.4% measurement is predicated on the location of the antennas at 28.5 feet above the ground, whereas the actual public exposure level where the public will be is at .04% of the FCC general public exposure limit.

As to the excavation, cabling, and pulling of lines to install the WCF, the City's Deputy Director of Development Services Christopher Koontz's testimony affirmed that as such activities must and will comply with applicable building and safety codes, such activities fall outside of any special circumstances which would 19 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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trigger the need for an environmental study. See, unofficial Hearing Transcript at pps. 93-100.

Hence, while issues of cumulative harm caused or potentially caused to Appellants and the community appear to be a real danger, for the reasons noted supra such concerns do not and cannot serve, in this instance, as a viable argument to overturn the City's approval of the AT&T's Permit application, San Francisco Beautiful v. City and County of San Francisco, supra, 226 Cal. App. 4th at 1022- 1023 [An agency's determination that project falls within categorical exemption include implied finding that none of the exceptions is applicable. Burden then shifts to challenging party to produce evidence showing that one of the exceptions apply.]
V. RECOMMENDATION AND FINDINGS
This Hearing Officer Issues the following findings of fact and conclusions of law:

A. Findings of Fact:

1. Appellants Ms. Moira Hahn and Mark Hotchkiss are homeowners who, since 2001, have resided at 4351 Clark Avenue, Long Beach, California 90808.

2. Appellant Hahn is a sixty-five-year-old retired Community College Professor and artist who has been medically determined to have chronic migraines and cluster headaches since childhood, is 100% deaf in her left 20 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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ear, and has a history of cancer in her family, which impairments have not abated despite her use of various coping mechanisms.

3. Dr. Richard Wexler, Appellant Hahn's internist of over two decades, established that Appellant Hahn is hypersensitive to RF emissions and that her impairments will be exacerbated if she is exposed to RF emissions from the projected cite location of AT &T's projected WCF unless said WCF is located at a distance further than 1,000 feet of her home.

4. The evidence in the Record supports a factual finding that Appellant Hahn was a qualified and able to participate in the City's programs, services and activities.

5. Scientific and medical literature admitted in this proceeding places into question the FCC RE emission standards and establishes that the FCC RF emission standards will not and do not protect Appellants and Appellant Hahn in particular from unsafe RF emissions and from RF exposure.

6. The City engaged Appellants only in a limited interactive process because it determined that the accommodation sought, the moving of the site for the WCF, would have forced it to violate the law.

7. Reasonable accommodations other than the movement of the WCF location site might have been considered.

8. On November 16, 2020, AT&T submitted its Permit application. 21

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9. In connection with its evaluation of AT&T's Permit application, the City conducted several reviews and satisfactorily performed all aspects of its review of said Permit application in compliance with the mandates of the City's Telecom Ordinance as set forth at LBMC § 15.34.

10. In compliance with the notice provision set forth at LBMC §

15.34.030(K), on February 21, 2021, the City mailed and posted its required notice to the public and Appellants in particular.

11. On February 26, 2021, Appellants filed their Appeal.

12. On March 18, 2022, an administrative hearing was held, with the public given an opportunity to comment about the City's actions at issue here.

13. The Permit Application submitted by AT&T and reviewed by the City satisfied all obligations and requirements as set forth at LBMC § 15.34.

14. To the extent any conclusion of law identified below constitutes a finding of fact, it is hereby incorporated.

B. Conclusions of Law:

A. Appellants timely appealed the City's decision to grant AT &T's Permit application, triggering this Hearing.

B. The jurisdictional limits of this Administrative Hearing are controlled by the City's Telecom Ordinance, LBMC §§ 15.34, and by applicable law, where appropriate.

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Hahn's disabilities include but are not limited to: her family history of cancer, her hypersensitivity to RF emissions, her cluster headaches and migraines, and that she is 100% deaf in her left ear, Brown v. LA USD (2021) 60 Cal. App. 5th 1092, 1103-1104.

D. Appellants have failed to establish that either of them are entitled to invoke the protections of Title II of the Americans with Disabilities Act, the Fair Housing Act, the Fair Employment and Housing Act, or even Section 504 of the Rehabilitation Act of 1973, as neither Appellant has shown they have been deprived of a City program, service, or activity, Updike v. Multnomah City (9th Cir., 2017) 870 F. 3rd 939,949; Wolfv.

City of Millbrae (N.D. Cal., 2021), 2021 U.S. Dist. LEXIS 159025.

E. Appellants have failed to establish that the exemption to CEQA obtained by the City was inappropriate or unsupported by substantial evidence or legally deficient sufficient to grant this Appeal.

F. Appellants have failed to establish that the City's decision to grant AT&T's Permit application was an abuse of the City's obligations as imposed on it by the provisions of the City's Telecom Ordinance, LBMC §§15.34 et seq.

G. Appellants have failed to establish that the City's notice or its actions in connection with its notice obligations pertaining to the proposed installation of the WCF at issue here violated due process or Appellants' 23 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
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rights guaranteed them by LBMC § 15.34.030(K).

H. The City has met its evidentiary burden by establishing through the introduction of admissible substantial evidence that it did not abuse its discretion in granting AT &T's Permit application.

J. To the extent any conclusion of fact identified above constitutes a conclusion of law, said conclusion is hereby incorporated.

VI CONCLUSION
For the foregoing reasons, the Appeal is denied and the Permit application sought by AT&T should be granted. To the extent Appellants' arguments challenging this decision are viable, Appellants are not forestalled from seeking appropriate relief elsewhere.

Dated: April 18, 2022

LARRY MINSKY,

MINISTRATIVE HEARING OFFICER
LARRY MINSKY, ESQ., SBN 096592
Administrative Hearing Officer
Telephone: (562) 435-7878
Facsunile: (562} 432-3822
Email: [email protected]
24 HEARING OFFICER'S RECOMMENDATION AND FINDINGS
Exhibit B
An appeal is hereby made to Your Honorable Body from the decision of the Site Plan Review Committee
Zoning Administrator
Planning Commission
Cultural Heritage Commission
Which was taken on the _______ day of ________________, 20 ____.

Project Address:____________________________________________________________ I/We, your appellant(s), hereby respectfully request that Your Honorable Body reject the decision and Approve / Deny the application or permit in question.

ALL INFORMATION BELOW IS REQUIRED
Reasons for Appeal: ________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ Appellant Name(s):___________________________________________________________ Organization (if representing) ___________________________________________________ Address: ___________________________________________________________________ City ________________________ State _______ ZIP _______ Phone __________________ Signature(s) _______________________________________________ Date ____________ • A separate appeal form is required for each appellant party, except for appellants from the same address, or an appellant representing an organization. • Appeals must be filed within 10 days after the decision is made (LBMC 21.21.502). • You must have established aggrieved status by presenting oral or written testimony at the hearing where the decision was rendered; otherwise, you may not appeal the decision. • See reverse of this form for the statutory provisions on the appeal process.

BELOW THIS LINE FOR STAFF USE ONLY
Appeal by Applicant Appeal by Third Party
Received by: Case. No.: Appeal Filing Date:

Fee: Fee Paid Project (receipt) No.: ___________________________ Application For Appeal
Development Services
Planning Bureau
411 West Ocean Boulevard, 2nd Floor, Long Beach, CA 90802 562.570.6194
_X_Hearing Officer
Statutory Provisions for Appeal, from LBMC Chapter 21.21 (Administrative Procedures) Division V. - Appeals

21.21.501 - Authorization and jurisdiction.

A. Authorization. Any aggrieved person may appeal a decision on any project that required a public hearing.

B. Jurisdiction. The Planning Commission shall have jurisdiction on appeals of interpretations made pursuant to Section 21.10.045 and decisions issued by the Zoning Administrator and Site Plan Review Committee, and the City Council shall have jurisdiction on appeals from the Planning Commission as indicated in Table 21-1. Decisions lawfully appealable to the California Coastal Commission shall be appealed to that body.

21.21.502 - Time to file appeal. An appeal must be filed within ten (10) days after the decision for which a public hearing was required is made.

21.21.503 - Form of filing. All appeals shall be filed with the Department of Planning and Building on a form provided by that Department.

21.21.504 - Time for conducting hearing of appeals. A public hearing on an appeal shall be held:

A. In the case of appeals to the City Planning Commission, within sixty (60) days of the date of filing of the appeal with the Department of Planning and Building; or B. In the case of appeals to the City Council, within sixty (60) days of the receipt by the City Clerk from the Department of Planning and Building of the appeal filed with the Department.

21.21.505 - Findings on appeal. All decisions on appeal shall address and be based upon the same conclusionary findings, if any, required to be made in the original decision from which the appeal is taken.

21.21.506 - Finality of appeals.

A. Decision Rendered. After a decision on an appeal has been made and required findings of fact have been adopted, that decision shall be considered final and no other appeals may be made except:

1. Projects located seaward of the appealable area boundary, as defined in Section 21.25.908 (Coastal Permit—Appealable Area) of this title, may be appealed to the California Coastal Commission; and

2. Local coastal development permits regulated under the city's Oil Code may be appealed to the city council.

B. No Appeal Filed. After the time for filing an appeal has expired and no appeal has been filed, all decisions shall be considered final, provided that required findings of fact have been adopted.

C. Local Coastal Development. Decisions on local coastal development permits seaward of the appealable area shall not be final until the procedures specified in Chapter 21.25 (Coastal Permit) are completed.

City of Long Beach
411 W. Ocean Blvd., 3rd Floor
Long Beach, CA 90802
Visit us at longbeach.gov/lbds
LongBeachBuilds
This information is available in alternative format by request at 562.570.3807.

For an electronic version of this document. visit our website at longbeach.gov/lbds.

NOTICE of EXEMPTION from CEQA

CITY OF LONG BEACH I DEPARTMENT OF DEVELOPMENT SERVICES 333 W. OCEAN BLVD., 5TH FLOOR, LONG BEACH, CA 90802
(562) 570-6194 FAX: (562) 570-6068
lbds.longbeach.gov
TO: D Office of Planning & Research
1400 Tenth Street, Room 121
Sacramento, CA 95814
~ L.A. County Clerk
Environmental Fillings
12400 E. Imperial Hwy., Room 1201
Norwalk, CA 90650
Project Title: CE-19 - o 13
FROM: Department of Development Services
333 W. Ocean Blvd, 5th Floor
Long Beach, CA 90802

ORIGINAL FILED
JAN 31 2019

LOS ANGELES, COUNTY CLERK
Project Location/Address: Citywide, locations in the public right-of-way Project Activity/Description: Construction and modification of wireless telecommunications facilities in various locations in the public right-of-way Citywide in a manner consistent with the ministerial approvals allowed by Chapter 15.34 of the Long Beach Municipal Code.

Public Agency Approving Project: City of Long Beach, Los Angeles County, California Applicant Name: City of Long Beach, Department of Public Works Mailing Address: 333 w. Ocean Blvd., 9th Floor
Phone Number: (562) 570-6383 Applicant Signature: ___._1~··~-.,.~__,~. -~--=-+;{G_·_'-) ____ _ 7

BELOW THIS LINE FOR STAFF USE ONLY
Application Number:_N~/_A ________ Planner's Initials: _s_K __ Required Permits: Ministerial approvals per Ch. 15. 34 of the LBMC

THE ABOVE PROJECT HAS BEEN FOUND TO BE EXEMPT FROM CEQA IN ACCORDANCE WITH STATE GUIDELINES SECTION 15301 (Class 1) Existing Facilities, 15302 (Class 2) Replacement or Reconstruction, 15303 (Class 3) New Construction or Conversion of Small Structures.

Statement of support for this finding: See attached statement of support (two pages) .

Contact Person: =:~Koontz, AICP
Signature: ~- -- . ~f4:- /~---
Contact Phone: (562) 570-6194
Date:
1 / ;}tf/t1
Revised June 2016
Attachment F

CITY FL N BEACH

DEPARTMENT OF DEVELOPMENT SERVICES
333 West Ocean Blvd., 5th Floor Long Beach, CA 90802 (562) 570-6194 FAX (562) 570-6068

PLANNING BUREAU
Statement of Support for Categorical Exemption CE-19-013 Project: Wireless Telecommunications Sites in the Public Right-of-Way, Citywide The City of Long Beach has issued a Categorical Exemption (CE-19-013) applying Citywide for the construction and modification of wireless telecommunications facilities in various locations in the public right-of-way, scattered throughout the City, in a manner consistent with the ministerial approvals allowed by Chapter 15.34 of the Long Beach Municipal Code (LBMC). This exemption uses Sections 15301 (Class 1, Existing Facilities), 15302 (Class 2, Replacement or Reconstruction), and 15303 (Class 3, New Construction or Conversion of Small Structures) exemptions.

Chapter 15.34 of the LBMC sets forth the standards and procedures for the review, permitting, construction, and modification of wireless telecommunications facilities in the public right-of-way.

These facilities are commonly known as "small cells," and are most often constructed by placing wireless telecommunications antennas and radio and power equipment on an existing street light standard. Alternatively, an existing street light standard may be removed and replaced with a new one more suitable to the small cell installation. Likewise, if no light standard or other usable pole exists at the applicant's desired location, a new light standard or other pole may be installed in the right-of-way to support the small cell facility. All of these actions, as well as the modification of an existing small cell facility in the right-of-way, are regulated by Chapter 15.34 of the LBMC in a manner that allows projects that comply with the development standards enumerated in code to be permitted ministerially (by right). The development standards and review process for these facilities are designed to avoid the creation of any potentially significant effects upon the environment, and to eliminate the need for site- or project-specific mitigations by prohibiting installations in a manner that would potentially generate any impacts needing mitigation.

Class 1, Existing Facilities: Per Section 15301 of the State CEQA Guidelines, Class 1 exemptions "consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment [. . .] involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination." For the purposes of this Categorical Exemption, this class of exemption applies to projects consisting of modification to an existing wireless telecommunications facility in the right-of-way. Subsection 15.34.030.B.5 of the LBMC requires that any replacement equipment (i.e., modifications to an existing site) on a wireless telecommunications site in the right-of-way be of the same or smaller size, quantity, weight, and appearance as the previously permitted equipment; thus, there would be negligible or no expansion of the existing use.

Class 2, Replacement or Reconstruction: Per Section 15302 of the State CEQA Guidelines, Class 2 exemptions "consist of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced ... " For the purposes of this Categorical Exemption, this class of exemption applies to projects consisting of the removal and replacement of existing infrastructure in the public right-of-way (primarily street light standards) with the same or similar infrastructure that is more appropriately suited to support a

City of Long Beach
CE-19-013 Statement of Support
small cell wireless telecommunications facility. Typically, these are concrete light standards, or in some cases wood utility poles. Neither of these pole types are suitable for development with a small cell facility, since Chapter 15.34 requires all cabling for a small cell site to be routed on the interior of the subject pole. Concrete poles typically have a very small interior diameter and wood poles have none. Replacement of these pole types with a metal pole, which may be treated or finished to match the appearance of the former pole if appropriate, is necessary to allow the cabling to be routed on the pole interior, and avoids the creation of negative visual impacts from exterior cable routing. Thus, the replacement of existing infrastructure (the light standard or pole) with a new pole (in substantially the same location), will have substantially the same purpose and capacity as the structure replaced.

Class 3, New Construction or Conversion of Small Structures: Per Section 15303 of the State CEQA Guidelines, Class 3 exemptions "consist of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures, and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure." For the purposes of this Categorical Exemption, this class of exemption applies to 1) the installation of new infrastructure elements (light standards or other poles) suitable for installation of small cell wireless telecommunications facilities at new locations in the public right-of-way, scattered throughout the City, and/or 2) addition of new small cell facilities to new or existing infrastructure elements (typically existing, replaced, or new street light standards or other poles) in the public right-ofway that convert said infrastructure to small cell support structures in addition to the existing pole function. The height, size, number, and location of these new small cell sites is regulated by Chapter 15.34 of the LBMC in a manner that requires the design and location of these facilities to eliminate or substantially reduce their visual and aesthetic impacts upon the surrounding public rights-of-way and public vantage points. Thus, the installation of new poles in the right-ofway and of new small cell facilities upon said poles, and the conversion of existing poles to support new small cell facilities and the installation of new small cell facilities upon said poles, will meet the criteria for new construction or conversion of small structures for this exemption.

Additionally, this Class 3 exemption must be examined against the Section 15300.2(c) "significant effect" exception, which provides that an exemption "shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." The review process and development standards specified in Chapter 15.34 of the LBMC prohibit issuance of a permit for a wireless facility that will have a significant effect on the environment due to an unusual circumstance, including but not limited to: a project design that will create a pedestrian hazard or other physical hazard in the right-of-way, a project that will substantially detract from a designated "view street" or degrade important aesthetic attributes in the right-of-way, a project that will degrade the attributes of a designated historic resource, or a project that will not conform to the Certified Local Coastal Program and the Coastal Act. Therefore, this Class 3 exemption will not be used to allow projects that will have a significant effect on the environment due to unusual circumstances.

Contact Person:

Signature:

CK:SK
Christopher Koontz, AICP
Planning Bureau Manager

Contact Phone: (562) 570-6194
Date: _1/---',;J,'--4---'-/_t...;_1 __ _
Attachment G

CALIFORNIA ENVIRONMENTAL QUALITY ACT

STATEMENT OF SUPPORT
SECTION 15302, Class 2, Replacement or Reconstruction,
SECTION 15303, Class 3, New Construction or Conversion of Small Structures
Public Right-of-Way abutting 4351 Clark Avenue (Pole #HB1300) Application No. PWRW48749-8
October 18, 2022
Section 21084 of the Public Resources Code requires the California Environmental Quality Act (CEQA) Guidelines (CEQA Guidelines) to include a list of classes of projects which have been determined not to have a significant effect on the environment and shall therefore, be exempt from the provisions of CEQA. Section 15061, Review for Exemption, of the CEQA Guidelines outlines the process for determining whether a project is exempt from CEQA. Pursuant to this section, a project is exempt from CEQA if:
1) The project is exempt by statute (see, e.g. Article 18, commencing with Section 15260).
2) The project is exempt pursuant to a categorical exemption (see Article 19, commencing with Section 15300) and the application of that categorical exemption is not barred by one of the exceptions set forth in Section 15300.2. 3) The activity is covered by the commonsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
4) The project will be rejected or disapproved by a public agency. (See Section 15270(b)).
5) The project is exempt pursuant to the provisions of Article 12.5 of this Chapter.

The proposed project is the replacement of an existing streetlight pole (#HB1300) with a new Concealfab streetlight pole on a new foundation in the same location within the public right-of-way, abutting a property addressed as 4351 Clark Avenue (proposed project).

Refer to Figure 1, Location Map, for the siting of the proposed project. For reference, the existing streetlight pole is measures 28-feet-3-inches in height to the center of the existing luminaire (Figure 2, Existing Conditions). The replacement pole would feature a streetlight luminaire over the public right-of-way (Clark Avenue), with a vertical extension and wider pole to be able to support the installation of new small cell wireless facilities (one 14-port Gamma Nu Antenna, two (2) 4402 Radios, one (1) 2205 Radio, and (1) Raycap Surge Protector) (Attachment A – Project Plans). The replacement streetlight pole would measure 31-feet-5-inches in height to the highest point of the vertical extension and 28- feet-6-inches to the center of the luminaire. Conduit for power would be installed within the cavity of the light pole and connect to conduit within the paved public street (Clark Avenue).

CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

The City of Long Beach has issued a Citywide Categorical Exemption (CE-19-013), for the construction and modification of wireless telecommunications facilities in various locations in the public right-of-way, in a manner consistent with the approvals allowed by Chapter 15.34 of the Long Beach Municipal Code (LBMC). This exemption uses Sections 15301 (Class 1, Existing Facilities), 15302 (Class 2, Replacement or Reconstruction), and 15303 (Class 3, New Construction or Conversion of Small Structures) exemptions.

Chapter 15.34 of the LBMC sets forth the standards and procedures for the review, permitting, construction, and modification of wireless telecommunications facilities in the public right-of-way. Commonly known as "small cells," these wireless telecommunications facilities are most often placed on existing streetlight standards. Alternatively, an existing streetlight standard may be replaced with a new one structurally capable of supporting the small cell installation. Likewise, if no light standard or other usable pole exists at the applicant's needed location, a new light standard or other pole, may be installed in the right-of-way. All of these actions, as well as the modification of an existing small cell facility in the right-of-way, are regulated by Chapter 15.34 of the LBMC as permitted. The development standards and review process for these facilities are designed to avoid the creation of any potentially significant effects upon the environment, and to eliminate the need for site- or project-specific mitigations by prohibiting installations in a manner that would potentially generate any impacts needing mitigation.

Per Section 15302 of the State CEQA Guidelines, Class 2 exemptions "consist of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced... " For the purposes of this Categorical Exemption (CE-19-013), this class of exemption applies to projects consisting of the removal and replacement of existing infrastructure in the public right-of-way (primarily street light standards), with the same or similar infrastructure suited to support a small cell wireless telecommunications facility. Typically, these are concrete light standards, or in some cases wood utility poles. Neither of these pole types are suitable for development with a small cell facility, since Chapter 15.34 requires all cabling for a small cell site to be routed on the interior of the subject pole. Concrete poles commonly have a very small interior diameter, and wood poles have none. Replacement of these pole types with a metal pole, which may be treated or finished to match the appearance of the former pole if appropriate, is necessary to allow the cabling to be routed on the pole interior, and avoids the creation of negative visual impacts from exterior cable routing.

Thus, the replacement of existing infrastructure (the light standard or pole,) with a new pole (in the approximate same location), will have substantially the same capacity as the structure replaced.

Per Section 15303 of the State CEQA Guidelines, Class 3 exemptions "consist of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures, and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure." For the purposes of this Categorical Exemption, this class of exemption applies to 1) the installation of new infrastructure elements (light CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

standards or other poles) suitable for installation of small cell wireless telecommunications facilities at new locations in the public right-of-way, scattered throughout the City, and/or 2) addition of new small cell facilities to new or existing infrastructure elements (typically existing, replaced, or new street light standards or other poles) in the public right-of-way that convert said infrastructure to small cell support structures in addition to the existing pole function. The height, size, number, and location of these new small cell sites is regulated by Chapter 15.34 of the LBMC in a manner that requires the design and location of these facilities to eliminate or substantially reduce their visual and aesthetic impacts upon the surrounding public rights-of-way and public vantage points. Thus, the installation of new poles in the right-of-way and of new small cell facilities upon said poles, and the conversion of existing poles to support new small cell facilities and the installation of new small cell facilities upon said poles, will meet the criteria for new construction or conversion of small structures for this exemption.

The proposed project includes the replacement of an existing streetlight pole with a new pole in the same location. The new streetlight pole would include small cell wireless facilities consistent with the development standards enumerated in Chapter 15.34 of the LBMC. Pursuant to CEQA Sections 15302, 15303, and 15300.2, the proposed project is exempt pursuant to a Categorical Exemption and is not barred by one of the Exceptions set forth in Section 15300.2. None of the Exceptions would occur, therefore, no additional environmental analysis is warranted under CEQA.

CEQA Section 15300.2: CLASS 2, REPLACEMENT OR RECONSTRUCTION, AND CLASS 3, NEW CONSTRUCTION OR CONVERSION OF SMALL STRUCTURES:

Class 2 consists of replacement of existing structures and facilities where the new structure is located on the same site and with the same purpose and capacity as that being replaced. The proposed replacement streetlight pole will have an overall increase in vertical height of 3-feet-2-inches, a vertical luminaire height increase of 3-inches, and horizontal projection of 4-feet-6-inches. As such, it would be a negligible change from the existing conditions. Further, the height change is in compliance with Long Beach Municipal Code Chapter 15.34.030.B.1.b.(vi).5(ii).

Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures, and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. The replacement streetlight pole would have a new small cell wireless telecommunications facility. The new equipment is in compliance with Long Beach Municipal Code Chapter 15.34.

California Courts have upheld use of Class 2 and Class 3 exemptions from CEQA on the basis specified by City in factually analogous scenarios. In Francisco Beautiful, et al. v.

City and County of San Francisco, et al. (AT&T California, RPI) (2014) 226 Cal.App.4th 1012, the Court of Appeal determined that an AT&T project involving the installation of 726 new utility cabinets – most to be 48” high, 51.7” wide, and 26” deep – at undetermined locations on public sidewalks throughout the City within 300 feet of existing cabinets, in CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

order to upgrade broadband speed and capabilities using an expanded fiber-optic network was categorically exempt from CEQA and did not require an EIR. In Robinson v.

City and County of San Francisco (T-Mobile West Corporation, et al., Real Parties) (2012) 208 Cal.App.4th 950, the First District Court of Appeals specifically held that CEQA’s Class 3 Categorical Exemption applies to installations of small telecommunications equipment on utility poles.

CEQA Section 15300.2. EXCEPTIONS:
(a.) LOCATION. CLASSES 3, 4, 5, 6, AND 11 ARE QUALIFIED BY CONSIDERATION OF WHERE THE PROJECT IS TO BE LOCATED – A

PROJECT THAT IS ORDINARILY INSIGNIFICANT IN ITS IMPACT ON THE

ENVIRONMENT, MAY IN A PARTICULARLY SENSITIVE ENVIRONMENT NETHELESS BE SIGNIFICANT. THEREFORE, THESE CLASSES ARE

CONSIDERED TO APPLY ALL INSTANCES, EXCEPT WHERE THE

PROJECT MAY IMPACT ON AN ENVIRONMENTAL RESOURCE OF

HAZARDOUS OR CRITICAL CONCERN WHERE DESIGNATED, PRECISELY

MAPPED, AND OFFICIALLY ADOPTED PURSUANT TO LAW BY FEDERAL, STATE, OR LOCAL AGENCIES.

The project location (Figure 1, Project Location) is within the public right-of-way (Clark Avenue), abutting single-family residential uses. The surrounding area is developed with single-family residential uses and public streets. The project location is within the 12-foot curb face to property line area within the public rightof-way limits, which is reserved for future sidewalk areas, parkway planting, and street infrastructure. Under existing conditions, streetlight poles, street signs, sidewalk areas, and street trees are located within the curb face to property line areas (interior to the existing street curb) along Clark Avenue.

The replacement pole will be in the same location as the structure replaced and will have substantially the same purpose and capacity. The new small cell wireless telecommunications facility would be mounted at the top of the streetlight and would not represent a location that results in an impact on the environment. Streetlight poles exist within the public right-of-way and a serve public safety purpose. The replacement of the existing infrastructure in the same location would not result in a significant effect on the environment. (b.) CUMULATIVE IMPACT. ALL EXEMPTIONS FOR THESE CLASSES ARE

INAPPLICABLE WHEN THE CUMULATIVE IMPACT OF SUCCESSIVE

PROJECTS OF THE SAME TYPE, IN THE SAME PLACE, OVER TIME IS SIGNIFICANT.

The project entails replacement of an existing streetlight pole in the same location with a new streetlight pole with the capacity to support small cell wireless facilities. The project site and the subject block of Clark Avenue is within the R1-N (Single-Family Residential, standard lot) Zoning District. Chapter 15.34 of CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

the LBMC regulates the location of small cell wireless communication facilities within residential zoning districts. The project is compliant with the development standards for small cell wireless facilities, including project location. Section

15.34.030, Requirements and standards for wireless telecommunications facilities in the public right-of-way, includes distancing requirements that would prevent cumulative impacts for previous and successive applications. Ongoing maintenance of the streetlight and small cell wireless facility are required to comply with Section 15.34 of the LBMC and would be similar to the ongoing maintenance of public infrastructure within the public right-of-way that exists throughout the City of Long Beach.
(c.) SIGNIFICANT EFFECT. A CATEGORICAL EXEMPTION SHALL NOT BE

USED FOR AN ACTIVITY WHERE THERE IS A REASONABLE POSSIBILITY

THAT THE ACTIVITY WILL HAVE A SIGNIFICANT EFFECT ON THE ENVIRONMENT DUE TO UNUSUAL CIRCUMSTANCES.

The project location (Figure 1, Project Location) is within the public right-of-way (Clark Avenue) abutting single-family residential uses. The proposed construction activities would be similar to routine maintenance and replacement of street poles within the public right-of-way throughout the City of Long Beach.

All construction activities would be within the public right-of-way and comply with all Municipal Code requirements for construction activities, including the noise ordinance. The replacement streetlight pole with incorporated small cell wireless equipment is an infrastructure facility and would not generate vehicle trips associated with air quality or greenhouse gas impacts.

All work within the public right-of-way require standard permit conditions, inclusive of utility coordination. Project design and construction, including excavation for replacement pole foundations, would be completed in conformance with regulatory and engineering requirements. It is not uncommon for underground utilities, such as gas lines, to exist beneath street infrastructure, that includes streetlight and traffic signals that require foundations for installation.

The developed project location, presence of existing infrastructure, and proposed project construction do not represent an unusual circumstance that would result in a significant effect on the environment.

CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

(d.) SCENIC HIGHWAYS. A CATEGORICAL EXEMPTION SHALL NOT BE USED

FOR A PROJECT WHICH MAY RESULT IN DAMAGE TO SCENIC

RESOURCES, INCLUDING BUT NOT LIMITED TO, TREES, HISTORIC

BUILDINGS, ROCK OUTCROPPINGS, OR SIMILAR RESOURCES, WITHIN A HIGHWAY OFFICIALLY DESIGNATED AS A STATE SCENIC HIGHWAY.

THIS DOES NOT APPLY TO IMPROVEMENTS WHICH ARE REQUIRED AS

MITIGATION BY AN ADOPTED NEGATIVE DECLARATION OR CERTIFIED EIR.

The project site (Figure 1, Project Location) is within the public right-of-way (Clark Avenue) abutting single-family residential uses. According to the California Department of Transportation (Caltrans) Scenic Highway Mapping Program, there are no designated or proposed scenic highways in the vicinity of the project site.1 The nearest State Highway eligible for such official designation is a portion of Pacific Coast Highway (PCH) approximately 3 miles south of the project site.

Due to distance and intervening land uses, no portion of the project site or surrounding area is viewable from the eligible portion of PCH. Therefore, implementation of the proposed project would not impact scenic resources within a State Scenic Highway.

The Urban Design Element of the General Plan (2019) designates scenic routes along Ocean Boulevard and Livingston Drive, Ocean Boulevard on the Belmont Peninsula, the Promenade in Downtown, the Los Angeles River and San Gabriel River corridors, Appian Way along the Colorado Lagoon, Marine Stadium, Studebaker Road, the approach road to Rancho Los Cerritos, and the entire stretch of Pacific Coast Highway. These roadways are or will become Scenic Highways by 2030. Clark Avenue is not planned to become a City-designated scenic route/highway. Therefore, implementation of the proposed project would not impact scenic resources within a locally designated scenic route/highway.

The existing public right-of-way includes street trees. All construction would be limited to the location of the existing footing of the streetlight pole to be removed and ancillary electrical work. No trees would be removed as part of the proposed project. Any required tree trimming for safety clearances to electrical components would be completed in compliance with the Migratory Bird Treaty Act (MBTA).

The potential for minor tree trimming for safety clearances would not represent damage to a scenic resource.

The replacement pole would be similar to other streetlight poles that exist within the public right-of-way within the City of Long Beach. The design of the replacement pole would be in conformance with the development standards in 1 California Department of Transportation (Caltrans). 2022. California State Scenic Highway System Map.

Website: https://www.arcgis.com/home/item.html?id=f0259b1ad0fe4093a5604c9b838a486a (accessed May 18, 2022).

CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

Chapter 15.34 of the Municipal Code. The replacement pole would not represent a substantial change to the existing aesthetic context along Clark Avenue. (e.) HAZARDOUS WASTE SITES. A CATEGORICAL EXEMPTION SHALL NOT

BE USED FOR A PROJECT LOCATED ON A SITE WHICH IS INCLUDED ON ANY LIST COMPILED PURSUANT TO SECTION 65962.5 OF THE
GOVERNMENT CODE.

A search of the GeoTracker database notes that there are no cleanup sites located within 1,000 feet of the project location.2 Under Government Code Section 65962.5(a), the Department of Toxic Substances Control (DTSC) maintains a list of all hazardous waste facilities subject to corrective action pursuant to Section 25187.5 of the Health and Safety Code (“HSC”). Based on review of the EnviroStor database, there are no listed hazardous sites within 1,000 feet of the project location.3 Review of the Cortese List of Data Resources has determined that the project location is not included on any list compiled pursuant to Section 65962.5 of the Government Code.4
(f.) HISTORICAL RESOURCES. A CATEGORICAL EXEMPTION SHALL NOT BE

USED FOR A PROJECT WHICH MAY CAUSE A SUBSTANTIAL ADVERSE CHANGE IN THE SIGNIFICANCE OF A HISTORICAL RESOURCE.

The project location is not within a designated landmark historic district or in proximity to a designated historic landmark. The surrounding residential uses were largely developed in the late 1930s to 1940s. While the existing adjacent residential structures are over 45 years in age, the proposed project would be located within the public right-of-way and would not result in changes to the existing architecture of adjacent structures. The context of the residential area includes public streetlights, street signage, and street trees that are typical of residential subdivisions. Therefore, the replacement of an existing street light pole with a new street light pole with concealed small cell wireless facilities would not affect a historic resource or a historic-age resource. 2 California State Water Resources Control Board. 2022. GeoTracker.

Website: https://geotracker.waterboards.ca.gov/map/?CMD=runreport&myaddress=Sacramento (accessed May 18, 2022).
3 California Department of Toxic Substances Control. 2022. EnviroStor.

Website:
https://www.envirostor.dtsc.ca.gov/public/search.asp?page=1&cmd=search&business_name=&main_stre et_name=&city=&zip=&county=&status=ACT%2CBKLG%2CCOM&branch=&site_type=CSITES%2COPE N%2CFUDS%2CCLOSE&npl=&funding=&reporttitle=HAZARDOUS+WASTE+AND+SUBSTANCES+SIT E+LIST&reporttype=CORTESE&federal_superfund=&state_response=&voluntary_cleanup=&school_clea nup=&operating=&post_closure=&non_operating=&corrective_action=&tiered_permit=&evaluation=&spec _prog=&national_priority_list=&senate=&congress=&assembly=&critical_pol=&business_type=&case_typ e=&searchtype=&hwmp_site_type=&cleanup_type=&ocieerp=&hwmp=False&permitted=&pc_permitted= &inspections=&inspectionsother=&complaints=&censustract=&cesdecile=&school_district=&orderby=city (accessed May 18, 2022).
4 California Environmental Protection Agency. 2022. Cortese List Data Resources.

Website: https://calepa.ca.gov/SiteCleanup/CorteseList/ (accessed May 18, 2022).

CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

Figure 1: Project Location
Figure 2: Existing Conditions
Project Location
CEQA Statement of Support
Application No. PWRW48749-8
October 18, 2022

Attachment A – Project Plans
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