ATTACHMENT B -
Appeal Application and
January 6 Letter
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1 January 5, 2025
By Electronic Mail
To: Mayor Juan González III, Vice Mayor Fred Simon, Councilmember Victor Aguilar, Jr.,Councilmember Bryan Azevedo, Councilmember Dylan Boldt, Councilmember Xouhoa Bowen and Councilmember Sbeydeh Viveros-Walton ([email protected]) From: Ariel Strauss, Of-Counsel, Greenfire Law, P.C., on behalf of Wayne Daniel Russo, Jr.
Subject: Letter Detailing Basis to Deny a CUP for 80-Foot Macro Tower on 440 Peralta Ave. (Agenda Item 8a)
Dear Honorable Mayor González, Vice Mayor Simon and Councilmembers Aguilar, Azevedo, Boldt, Bowen and Viveros-Walton:
Through Greenfire Law, P.C., I am legal counsel to Wayne Daniel Russo, Jr., the owner of 523 San Leandro Blvd., in connection with appeal of the Conditional Use Permit (PLN23-0031) for a new 80-foot AT&T Wireless Telecommunications Facility applied for by Tower Engineering Professionals (the Applicant) for 440 Peralta Ave. My practice specializes in land use and telecommunications law. I am writing to request that the City uphold the appeal and deny the CUP because the tower as proposed is inconsistent with the City’s General Plan and federal law does not obligate the City to approve the facility.
Mr. Russo’s appeal raised the following objections in his notice of appeal:
1) Denial of due process due to failure to receive notice of the Planning Commission hearing.
2) Allowing the propagation of radiofrequency emissions (RF) in excess of the human exposure limits set by the Federal Communication Commission (FCC) at the altitude of intended residential development is unacceptable from a public health standpoint, deter potential residents, reduce property values and interferes with the City’s housing objectives.
Ariel Strauss, Of-Counsel
2001 Addison Street, Suite 300
Berkeley, CA 94704
Phone: (510) 900-9502 x 702
Email: [email protected]
www.greenfirelaw.com
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2 3) The tower's height and structure pose potential hazards to adjacent development in the event of earthquake or extreme weather conditions.
4) The height and industrial appearance of the so-called monopine is compatible with aesthetic character of the area.
5) The tower will interfere with Mr. Russo's right to construct an intended residential mixed-use project.
6) The tower is not eligible for a CEQA small structure exemption.
In short, the tower “conflicts with the city's housing objectives and [imposes inappropriate] impact on adjacent properties.”
This letter provides additional detail concerning several of the issues identified in the appeal notice. In order to assist the Council, I retained Robert C. Ross of Center for Municipal Solutions, a telecommunications expert who is the outside reviewer of wireless facility applications for multiple cities, to provide an opinion regarding the application. His report is included as Attachment A.
I. Mr. Russo’s due process rights were violated by failure to provide him notice prior to the Planning Commission hearing.
The application materials show Mr. Russo’s property as within 500 feet of the project site but it does not include a proof of service or list of the addresses to which notices were sent. Mr. Russo never received any notification regarding the original application but only discovered by chance after the Planning Commission had issued its decision on November 7, 2024. As a result, he did not have an opportunity to participate in the Planning Commission hearing and is engaging with the City now at the earliest practical moment. Given the impact to his property from the RF emissions in his airspace exceeding FCC levels, as well as other issues, that interfere with Att B - Page 22 of 46
3 development of his property, this lack of notice violated his due process rights.1 Mr. Russo appreciates the opportunity to now bring these problems to the City Council’s attention.
II. The telecommunications service provider is AT&T, not FirstNet.
The first page of the Project Narrative describes the facility as a “FirstNet/AT&T/Public Safety Facility/wireless tower.” However, the application afterward only discusses the First/Net aspect without sufficiently explaining what it is. FirstNet is a subscription plan that AT&T offers to individuals associated with emergency services. This service is built off of AT&T’s towers and utilizes AT&T’s other towers. As a result, lack of a “FirstNet” tower in this area is not indicative of lack of service for FirstNet subscribers. Mr. Ross in his report offers further detail on of FirstNet.
AT&T seems to attempt to obscure that most of the antennas on the tower have nothing to do with FirstNet and are regular “AT&T LTE-5G commercial facilities.”2 FirstNet utilizes what is known as Band 14, which is a portion of the 700 MHz spectrum.3 According to the Antenna Inventory on in the Waterford EME Report, AT&T proposed to add more antennas for bands other than the 700MHz used by FirstNet (i.e., 850 MHz, 1900 MHz, 2100 MHz, 2300 MHz, 3500 MHz and 3700 MHz), than FirstNet-specific bands.
1 See Horn v. County of Ventura (1979) 24 Cal.3d 605, 614; GTE Mobilenet of Cal. v. Berkeley, Case No. 20-cv-05460-DMR, fn. 17 (N.D. Cal., March 27, 2023) (recognizing applicability of Horn to cell towers when they are nearby and impact the neighbor); California Land Use Practice (Cal. CEB 2024) §4.33. 2 Application Attachment C, p. 1.
3 https://www.digi.com/blog/post/what-is-firstnet-band-14.
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4 Yet, the application does not claim any gap in other bands used for conventional commercial service.
III. San Leandro emergency communications are not provided by FirstNet.
The applicant contends that the tower will enhance telecommunication services for emergency responders. However, FirstNet does not actually provide direct service to San Leandro emergency service providers. That is entirely the responsibility of the East Bay Regional Communications System Authority (EBRCSA).4 AT&T is trying to use this site to sell private communication services to first responders as part of their FirstNet service plan and to add antennas for its conventional AT&T customers. There is no demonstrated public safety need for this site.
IV. The proposed tower is inconsistent with General Plan Policies and Goals.
The most important problem with this application is that the tower is incompatible with the General Plan. The Planning Commission resolution considered only three goals and policies of the 4 https://ebrcsa.org/about/participating-agencies.page.
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5 General Plan Community Services and Facilities Element. However, its resolution entirely failed to analyze compatibility with any of the other goals and polices in the Housing Element and Land Use Element impacted by the proposed macro tower. Both the proposed site and Mr. Russo’s property are zoned Transit-oriented mixed use, which constitute only 1.9% of the City’s land area.5 These scarce locations present particularly valuable opportunities for infill development.
Relevant General Plan provisions include:
• Transit-Oriented Mixed Use: “The purpose of this designation is to provide for a mix of high-intensity land uses that capitalize on proximity to the San Leandro BART station.
This designation maximizes the potential for transit-oriented infill development and achieves compatible transitions to adjacent residential districts through design standards and zoning.”6
• Land Use Policy LU-3.4 Promotion of Infill. Encourage infill development on vacant or underused sites within residential and commercial areas. • LU-6.9A Taller buildings are encouraged in the area west of the station. • Housing Element Policy P.1.2 Provide and Maintain Adequate Sites to Accommodate the RHNA. The City shall maintain appropriate land use designations and densities to accommodate an increased supply of housing units by type, cost, and size to meet its share of the regional housing need in alignment with citywide housing priorities. • Policy P.1.4 Facilitate Infill Development. The City shall utilize infill development strategies to support neighborhoods and living environments that are served by public transit and services and are conducive to public health and wellness.
In order to issue a conditional use permit, the City must be able to make both of these findings:7 That the proposed location of the use is in accord with the objectives of this Code and the purposes of the district in which the site is located; [and] That the proposed location of the use and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan; will not be detrimental to the public health, safety or welfare of persons residing, or working in, or adjacent to, the neighborhood of such use; and will not be detrimental to properties or improvements in the vicinity, or to the general welfare of the City[.]
5 General Plan at 3-22.
6 Id. at 3-29.
7 San Leandro Municipal Code § 5.08.124(A)(1),(2).
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6 Additionally, specifically for wireless communication facilities, it is appropriate for the City to consider “Visual and other potential impacts to surrounding land uses.”8 The construction of the macro tower in this location is not “in accord” with the purposes of the transit-oriented mixed use district because it interferes with “high-intensity land uses.” It is also contrary to Housing Element policies to support “accommodate[ing] an increased supply of housing units.” Even if 440 Peralta, in theory, can still be built with the number of dwelling units forecasted by General Plan, the tower renders large swaths of that property, the appellant’s property, 523 San Leandro Blvd. and 695 San Leandro Blvd., the current self-storage site nestled within the “L” of the project site,9essentially unbuildable above approximately three or four stories. It makes it impossible to “maximize[] th[ier] potential for transit-oriented infill development.” It does not “encourage infill development on . . . underused sites” such as tow yards and self-storage. For basic safety and physical placement reasons, developers now have to design not around the natural site constraints and opportunities but to contend with an 80-foot industrial obstruction and its emissions.
Note how the EME Report shows future development on subject property shoved into the corner, with significant “dead space” between it and the tower, to avoid unsafe levels of RF:
8 Id. § 4.04.376(K).
9 See Application, Attachment 5, p. 15, showing the nearby 10-foot-tall roof of 695 San Leandro Blvd. at
9.7% of allowable RF exposure. Because the inverse-square law governs radiation power, tripling the height to even 30 feet will increase RF exposure many-fold, likely placing it in excess of safe levels for occupants.
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7 10
While the application site owner can accept this short-sighted devaluation, it is not appropriate to impose similar impacts on 523 San Leandro Blvd. and 695 San Leandro Blvd. It will be detrimental to properties in the vicinity and will frustrate General Plan goals for Mr. Russo’s property by locking in the low-value land uses that exist there presently, preventing high-quality, dense, transitoriented in-fill development.
As discussed in Mr. Ross’ report, the applicant’s EME Report demonstrates that RF emissions will exceed FCC limits well within Mr. Russo’s property line and below the 65-foot maximum height allowed in the D-2 zone. It is rare for a site design to project FCC-exceeding levels of RF into buildable areas of a neighboring property. The reason for this occurring here is partly because FirstNet facilities operate “at the highest allowable power levels (Power Class 1).”
11 Such towers are not appropriate in all locations. The current tenants on Mr. Russo’s property have month-to-month leases and Mr. Russo’s plans, unless the tower prevents this, to move forward in the near future with the project. The tower would render infeasible the mixeduse condominium project described in the appeal letter.12 10 Application, Attachment 5, p. 19.
11 https://www.firstnet.com/coverage/band-14.html.
12 Mr. Russo’s design is preliminary and he commits to working with the City to obtain relevant input and meet the applicable policies and goals of the General Plan.
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8 Planning Commission resolution requirements number 57 and 58 purport to address concern about future RF exceedances affecting residents of Mr. Russo’s property. However, this not sufficient in practice. Under SB 330, Mr. Russo has a ministerial right to build a residential development on his property up to the property line and up to 65-feet.13 By allowing AT&T to invade Mr. Russo’s buildable airspace with FCC-exceeding levels of RF, the City is authorizing a de facto trespass that is devaluing the property. This is a form of regulatory taking and setting up the City for a lawsuit and a conflict between the property rights of the neighbor and AT&T.
Authorizing this tower is like allowing a factory or oil refinery to be built with condition that the smoke and noise will be reduced if neighbors move next door. This is not a reasonable thing to do, particularly when the zoning and General Plan intend to prioritize the infill, not cell towers.
As legal counsel for lenders and borrowers closing loans on hundreds of multifamily residential developments, I know that lenders, especially the Department of Housing and Urban Development’s Federal Housing Administration (FHA) that insures many multifamily loans, particularly subsidized loans for affordable housing, are risk adverse and would be wary of committing to finance construction of a site with this type of environmental condition. Any developer would need to negotiate the design of the building with the tower owner and then establish a sufficient RF monitoring regimen. This is very burdensome and will make development much more costly. AT&T’s ability to remotely, mechanically adjust the power setting and angle of the antennas, as discussed in Mr. Ross’ report, would make a lender, liability insurer a developer very hesitant to go forward with this project.
13 See San Leandro Municipal Code §§ 2.08.312 (DA-2 maximum height limit is 65 feet or seven stories);
2.08.308 (no yard setback requirement in DA-2 zone).
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9 Mr. Ross’ report also explains that, to comply with FCC RF standards, significant portions of the tower would have to be shut down altogether if multi-story buildings are constructed on the neighboring properties. It is not sensible to approve a large tower of this type to only render it largely unusable when the surrounding land uses are properly improved as desired by the General Plan. This is particularly paradoxical because the tower appears to be designed to serve a growing nearby population but such service will be infeasible from this location if it is curtailed to avoid unsafe RF exposure to adjacent residents.
The Housing Element, housing opportunity site analysis, attached as Attachment B, anticipates that the property proposed for the cell tower and the appellant’s property “is lot consolidation potential[.]” Placing the tower in along the lot line makes that impossible. Even if the RF issue was addressed, the location of the tower structure, which exceeds the normal, allowable height for a building in the zone, would have a detrimental impact to the southern views of future occupants of Mr. Russo’s property and, given the southern sun exposure, cast a long shadow over the site.
The City must also recognize that, once it approves this facility, under federal law, the site owner or a future wireless service provider can increase the height of the tower by up to 20-feet as a matter of right, provided the expansion is clad with the same faux tree materials.14 Plainly, this is not an intelligent location for this macro tower.
V. The tower should be built to public safety standards.
The appeal expresses concern that the tower’s height poses a risk to adjacent properties in the event of earthquake or high winds. As explained by Mr. Ross, towers intended for public safety purposes are subject to special engineering standards known as APCO ANS 2.106.1-2019. The 14 47 C.F.R § 1.6100(b)(7).
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10 plans and specifications do not describe the tower meeting these standards. If the City is to approve the tower, it should require that it be constructed to meet the standards applicable to the purpose for which the applicant asserts it is intended.
VI. Placement of the tower on the north end of Mr. Russo’s parcel would avoid the most severe adverse impacts.
The applicant claims that it contacted the owners of several industrial parcel owners near the northern edge of Mr. Russo’s parcel. For instance, it claimed that placement in the Sempre Verde Park or Road Bear RV Rental & Sales would not meet coverage objectives but that the issue with Evergreen Nursery was that the owner was not interested.15 Given the close proximity of all these parcels to one another and to the proposes site, it is not self-evident who the rejected sites were not feasible.
AT&T does not demonstrate that it offered commercially reasonable terms to the property owners. It also does not discuss if the “feasibility” issue was the specific height to which the tower could be built on those locations. AT&T should provide examples of the coverage that 15 Application, Attachment 7, Alternative Site Analysis, p. 3.
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11 could have been obtained from these industrial-zoned areas where new towers are allowed without a CUP.16
It is also inappropriate that AT&T did not approach Mr. Russo about using his property for the tower. While Mr. Russo objects categorically to the proposed tower and believes it must be denied as incompatible with the City’s General Plan, he would be willing to host a macro tower on the northern edge of his property if there is no other feasible location in the vicinity and the applicant offered commercially reasonable terms and a sensible design.
That location would be sufficiently distant from the buildable portion of his lot and also avoid projecting RF emissions on to any other buildable parcel and would focus more of the visual impact on industrial parcels. As I was only retained late last week, I left a voicemail message and sent an email to the applicant on Friday seeking to discuss a potential resolution but have not heard back as of submittal of this letter. The City should not approve a tower in the proposed location in light of an unconsidered, far superior feasible alternative.
VII. Declaring no “LTE 700” does not demonstrate a lack of LTE service to AT&T/FirstNet customers.
16 See San Leandro Municipal Code § 4.04.376, Table 1.
AT&T should have
considered putting the
tower in this narrow area
instead of on the property
line.
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12 AT&T has provided a map showing lack of in-building “LTE 700 coverage.”17 This concedes that there is outdoor LTE 700 coverage. According to AT&T:
LTE allows the following benefits, at much faster speeds:
• Stream your favorite movies.
• Download and view HD movies.
• Download songs in a few beats.
• Share photos in a flash.
• Watch live TV in HD.
• Play multiplayer online games.18
AT&T explains LTE on its website:19
With 4G Long Term Evolution (LTE2) technology, we can meet your demands to access a variety of content over our mobile network. We use a variety of technologies and frequencies to support our network. Some areas within a market may have different spectrum portfolios depending on the area and the license they own. Our 4G LTE network is composed of the following bands:
• 700 MHz: Bands 12/17/29
• 850 MHz: Band 5
• 1900 MHz: Band 2
• 1700 MHz /2100 MHz: Bands 4/66
• 2300 MHz: Band 30
As you can see, 700 MHz is only one band on which it provides LTE-type services. AT&T has not explained in any way how significant it would be to have allegedly less “LTE 700” in-building coverage or what the actual cell signal strength would be in those areas.
Moreover, because FirstNet subscribers have access to AT&T’s full network, they have the same coverage as AT&T’s customers.
The FirstNet and Family plan gives you the best of two networks to keep your worlds connected. First responders and the extended public safety community get the missioncritical wireless network and prioritized connectivity of FirstNet, and families get to save 25%* on the world-class connectivity of AT&T.20
Here is a copy of the coverage map for this area provided on AT&T’s website:
17 Application, Attachment C, p. 5.
18 https://www.att.com/support/article/wireless/KM1008740. 19 https://www.att.com/support/article/wireless/KM1008740. 20 https://www.firstnet.com/faq.html.
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13 Given the misleading focus on LTE 700 in-building coverage, there is no factual basis for the finding in the Planning Commission resolution that DA-2 residents “would benefit from the improved wireless telecommunications service that the project would provide.” In 2023, in New Cingular Wireless PCS, LLC v. City of W. Covina, 21 a federal judge granted
summary judgment West Covina and against AT&T because there, AT&T “declined to supply information regarding the number of residents who might benefit from the Proposed Facility.” Here too we do not know anything about the number or needs of any FirstNet subscribers in the area. The Ninth Circuit has required applicants to assess the quality of service “relative to the coverage available from existing WCFs”22 and demonstrate factually that the existing equipment actually is unable to provide the services that were needed.23 The Applicant concedes that there is an AT&T macro towers within close proximity to the site.24 The Applicant has not explained whether customers can receive LTE service from one of 21 No. 2:22-cv-01642-MEMF-JCx, 2023 U.S. Dist. LEXIS 118114, at *29-30 (C.D. Cal. July 10, 2023). 22 Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 727 (9th Cir. 2009) (questioning whether the Telecommunications Act’s “anti-prohibition language even covers situations, like that presented here, in which a telecommunications service provider seeks to replace existing WCFs, as contrasted with the more typical situation in which the provider seeks to construct new WCFs.”). 23 Id. at 728.
24 Application, Attachment C, p.4.
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14 the other four bands that it utilizes. To demonstrate a deficit, the applicant must show how the functional service to be provided will actually be significantly better than whatever high-speed broadband AT&T is offering now. AT&T has not made any effort do this and hence has not carried its burden of needing this tower.
VIII. The Applicant has not proven that federal law requires approval of the application.
A. LTE is not “personal wireless services” and therefore declining to approve the CUP cannot violate federal law.
The federal Telecommunications Act of 1996 overrides local zoning authority when the local law has the “effect of prohibiting the provision of personal wireless services.”25 The statute defines personal wireless service to be “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.”
26 In short, Congress only intended to enable
wireless carriers to override local zoning regulations as necessary to assure voice calls provided by the carrier. On January 2, 2025, the Sixth Circuit confirmed this interpretation, holding that “mobile broadband does not qualify as 'commercial mobile service' under § 332(d)(1)” with the result that mobile broadband is not a form of “personal wireless services.”27 AT&T claims there is a gap in in-building LTE 700 service. In addition to the misleading, confusing and irrelevant emphasis on a “gap” in a particular band of coverage as discussed above, LTE is a form of mobile broadband used by smartphones. The first page of the Project Narrative states that the purpose of the facility is to offer “FirstNet broadband.” “Improved capacity and speed are desirable (and, no doubt, profitable) goals in the age of smartphones, but they are not 25 47 U.S.C. § 332(c)(7)(B)(i)(II).
26 Id. § 332(c)(7)(C)(i); see also, 47 U.S.C. §§ 332(c)(7)(C)(iii) (defining “unlicensed wireless service” with reference to “telecommunications services”), 153(33) (defining “mobile service” with reference to “radio communication service”), 153(20) (defining “exchange access”). 27 Ohio Telecom Assoc. v. FCC, Case No. 24-7000 (6th. Cir. Jan. 2, 2025), available at https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pdf.
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15 protected by the [Telecommunications] Act.”28 Consequently, the applicant has not carried its burden of proving that the denial of the application would result in a violation of federal law.
B. The Applicant has an alternative site from which it could provide the same coverage.
Even if LTE 700 is a form of “personal wireless services”, which is it is not, federal laws only allows overriding local zoning when there is an “effective prohibition” of personal wireless services.29 Determining whether the City’s standards would impose an effective prohibition “’involves a two-pronged analysis requiring (1) the showing of a 'significant gap' in service coverage’” and (2) some inquiry into the feasibility of alternative facilities or site locations.”30 The feasibility prong is evaluated under a “least intrusive means” test, which “requires that the provider show that the manner in which it proposes to fill the significant gap in services is the least intrusive on the values that the denial sought to serve.”31 The Ninth Circuit has explained that federal law “does not guarantee wireless service providers coverage free of small ‘dead spots.'”32 Without defining the “nature and character of that area or the number of potential users in that area who may be affected by the alleged lack of service[,]” AT&T provides no context or point of departure for a meaningful discussion of alternatives.33 For instance, could the need be met with multiple small cells? Why did AT&T constrain its search to the six sites listed in its Alternative Analysis? Moreover, because the Applicant failed to even consider the site next door, where Mr. Russo is 28 Extenet Sys., Inc. v. Vill. of Flower Hill, 617 F. Supp. 3d 125, 131 (E.D. N.Y. 2022) (holding no right of Verizon to provide 4G LTE service given customers had sufficient signal strength to make voice calls). 29 47 U.S.C. § 332(c)(7)(B).
30 MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 731 (9th Cir. 2005). 31 T-Mobile USA Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009). 32 MetroPCS, Inc, 400 F.3d at 733.
33 Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 727 (9th Cir. 2009), quoting Powertel/Atlanta, Inc. v. City of Clarkston, No. 1:05-CV-3068, 2007 WL 2258720, at *6 (N.D.Ga. Aug.3, 2007).
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16 expressing willingness to host a cell site on the portion of his property that would avoid interference with residential uses, clearly the applicant cannot demonstrate that denial of this site would result in an “effective prohibition.”
The Staff Presentation states: “If provider’s documentation shows proposed facility would close a significant coverage gap, City must allow facility if provider demonstrates it made a good faith effort to identify and evaluate feasible alternative locations.” AT&T did not demonstrate that there is any gap in LTE coverage, it did not demonstrate that LTE coverage is a form of “personal wireless services” under federal law or that it cannot meet the proposed gap through other means, such as small cells or the neighboring property. As a result, the City is not forced by federal law to approve this application.
IX. The Staff presentation is incorrect that the FCC prohibits the City from considering RF emissions in this situation.
The Staff presentation states that “Cities are prohibited from establishing different standards or denying a project due to RF emissions concerns if project complies with the FCC’s standards.” This is not fully descriptive of the instant situation. Applicant concedes that the tower will result in exceedance of the FCC limits in buildable areas of adjacent properties. Typically, cities have run afoul of federal law by considering diminution in property values that are a proxy for fear of health impacts of FCC-compliant levels of RF emissions.34 But, a city may properly consider the reduction of property values that are caused by RF emissions that exceed FCC regulations and impact the realistic usability of the site. As discussed above, those exceedances will reliably and foreseeably diminish property values. 34 See, e.g., California RSA No. 4 v. Madera County, 332 F. Supp. 2d 1291, 1310 (ED Cal. 2003); Sprint Spectrum LP v. Willoth, 176 F. 3d 630, 646-47 (2d Cir. 1999).
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17 X. The 80-foot macro tower with diesel generator does not qualify for a Class 3 CEQA Exemption.
The Planning Commission approved an exemption to the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15303. However, the Staff Report and the Planning Commission offer no discussion of why this it is appropriate here. The exemption applies to the 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.
In the case of Don’t Cell Our Parks v. City of San Diego, this CEQA exemption was upheld for a 35-foot faux tree antenna tower hidden in a stand of taller trees in a city park because it was “much smaller than a single-family residence, store, motel, office or restaurant[.]”35 However, unlike the 35-foot disguised tower among trees at issue in Don’t Cell Our Parks, AT&T’s proposed facility is much larger and not hidden among any trees. It is conspicuous from many residential properties, to future neighboring residents and to riders of BART. It also can pose air quality and noise impacts from the 30kW diesel generator.36
AT&T’s tower, by virtue of its size and position, is also even more out of place with the surrounding environment than the installations denied in the 2022 case of Saint Ignatius Neighborhood Association v. City & County of San Francisco. There, the court of appeal explained that this CEQA exemption cannot be used to exempt 90-foot-tall light standards because they are significantly taller than any other structure in the neighborhood, the city's zoning ordinance limits residential buildings in the area to 40 feet tall and typical streetlights are only 25 to 30 feet tall. . . The cell tower [in the Don't Cell Our Parks case] was small within its setting, unlike the light standards at issue here which will be by far the tallest structure 35 Don't Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338, 359-360. 36 Application, Attachment 1, Exhibit C, Sheet C-5.
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18 in the surrounding area. They are not small within the environment but instead tower over it.37
The court also specifically pointed out that “residential and commercial structures listed in the guideline are subject to applicable zoning requirements, which ensure their height will be generally consistent with the surrounding neighborhood.”38 Here too, surrounding structures are limited while the cell tower is not.39 While AT&T’s 80-foot tower is slightly shorter than 90 feet, it has the potential to grow 20 feet under federal law (as discussed above).
When a project entails a “feature that distinguishes it from others in the exempt class” it does not qualify for the exemption.40 The excessive height of the AT&T facility in this specific zone and diesel generator makes this project clearly ineligible for the Section 15303 CEQA exemption.
XI. Conclusion
As described in Mr. Russo’s notice of appeal, the report by Mr. Ross and this letter, the application is deficient in many serious respects and the proposed macro tower will detrimental to two adjacent properties and inconsistent with the goals and polices of the General Plan. The City Council should uphold the appeal and deny the application.
Respectfully,
_____________
Ariel Strauss
Cc: Richard D. Pio Roda, City Attorney ([email protected]) 37 Saint Ignatius Neighborhood Assn. v. City and County of San Francisco (2022) 85 Cal. App. 5th 1063, 1072-73 (later ordered depublished).
38 Id. at 1072
39 San Leandro Municipal Code § 4.04.376(C)(1) (“The height limitations applicable to buildings and structures shall not apply to wireless telecommunications facilities.”). 40 Berkeley Hillside Pres. v. City of Berkeley (2015) 60 Cal.4th 1086, 1105.
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ATTACHMENT A
Analysis of Robert C. Ross
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1467 Mountain Meadow Drv., Oceanside CA 92056
1 January 3, 2025
Mr. Ariel Strauss
Greenfire Law, P.C.
2748 Adeline Street, Suite A
Berkeley, CA 94703
Subj: Proposed Wireless Site at 440 Peralta Avenue, San Leandro, CA 94577 Documents Reviewed:
A - Draft Resolution (Appeal PLN24-0040)
A - Exh A - Project Statement
B - Appeal Application PLN24-0040
C - Att 1 - Exh A - Project Statement_PLN23-0031
C - Att 1 - Exh B - Project Plans_PLN23-0031
C - Att 1 Draft PC Resolution 24-XXX_PLN23-0031
C - Att 2 Vicinity Map_PLN23-0031
C - Att 3 Development Regulations_PLN23-0031
C - Att 4 Photo Sims_PLN23-0031
C - Att 5 EME Report_PLN23-0031
C - Att 6 Five-Year Plan_PLN23-0031
C - Att 7 Alternative Sites Analysis_PLN23-0031
C - Att 8 Public Comments_PLN23-0031
C - Planning Commission Staff Report_PLN23-0031
D - Planning Commission Resolution 2024-010
E - Summary of Public Noticing
Presentation
Statement of Qualifications
I have a Masters Degree in Telecommunications, and am a NATO School-trained Frequency Manager and a former Planning Commissioner for the City of Oceanside, California, and VP for Operations of JNB Telecommunications which designed and constructed over one thousand cellular sites and constructed multiple switch rooms. Currently, I am in charge of Center for Municipal Solutions in California where I professionally advise municipalities on ordinances, the review of thousands of wireless facility applications and the conduct of final inspections on wireless facilities.
Att B - Page 40 of 46
1467 Mountain Meadow Drv., Oceanside CA 92056
2 Review of Submittal Completeness
Public Safety Towers, LLC is a third-party developer for cellular sites, primarily for AT&T. FirstNet is a nationwide wireless broadband network that provides communications “tools” for public safety and emergency responders. FirstNet was created to improve public safety communications and help save lives. It was established in response to the 9/11 Commission's recommendation to provide public safety agencies with modern communication tools. The City of New York and all the cellular carriers had their communications antennas on top of the Trade Centers, when they both collapse everything went down. Thus this “New” system called FirstNet. The First Responder Network Authority is an independent federal government agency that oversees FirstNet. However, FirstNet is being deployed through a public-private partnership and service is provided commercially by AT&T. Subscribers have access to FirstNet towers and all other AT&T antennas.
AT&T offers FirstNet wireless rate plans for public safety professionals, including the FirstNet Wireless Broadband Core plan, which costs $65 per month and includes up to 25Mbps speeds and 175GB of data. This site could provide service for the FirstNet, which is no more than a paid AT&T service for first responders. First responders would be issued a prioritization code per phone number so that when the AT&T system is overloaded, their call will be complete in priority manner. Thes call are all considered “Non-Emergency,” no matter who places the call.
For example, a Firefighter can buy into the FirstNet wireless system and could receive a 1C24D priority code. Where as a Fire Chief buying into the same system could receive a 1A400B priority code, which in this case supersede the Firefighter’s 1C24D code. FirstNet is not free, each device on the system is paid for by the individual or the organization if so desired.
The antenna equipment on this tower is identical to standard antennas used by AT&T to serve its regular, non-FirstNet customers, and the application itself says as so: “In addition to AT&T LTE-5G commercial facilities, this proposed Public Safety Tower will include facilities to support FirstNet.” (ATTACHMENT C- Attachment 7- Alternative Site Analysis.) The Alternative Sites Analysis claims FirstNet has a gap in LTE 700 in-building coverage. However, because FirstNet subscribers can utilize other bands offered by AT&T, it is not at all clear that there is in fact any gap in in-building LTE coverage offered by any band. Additionally, the Antenna Inventory shows AT&T will also install 850 MHz, 1900 MHz, 2100 MHz, 2300 MHz, 3500 MHz and 3700 MHz antennas that do not address any asserted gap on 700MHz band inbuilding coverage. (See ATTACHMENT C- ATTACHMENT EME Report, p. 7.) The Application similarly does not discuss other means of addressing any LTE 700 in-building gap, such as with multiple small cells in the right-of-way.
Given that the tower is a conventional AT&T tower and FirstNet subscribers have access to all AT&T towers, this Five-Year Plan statement (ATTACHMENT C- Attachment 7) is incomplete:
Regarding future tower development in the area, aside from the currently proposed tower, PSTC has no additional projects planned for the next five years within the jurisdiction of the City or within one-quarter mile of the border thereof.
The relevant consideration is not just Public Safety Tower, LLC, but rather any planned AT&T towers, as these also provide the proposed service, which are not discussed.
Att B - Page 41 of 46
1467 Mountain Meadow Drv., Oceanside CA 92056
3 Public Safety Tower, LLC states that the proposed new 80’ Tower is to “Improve communications capabilities for local police, fire, and emergency medical services (EMS).” (ATTACHMENT C - Attachment 6 – Five-Year Plan.) However, the City of San Leandro does not use FirstNet but uses East Bay Regional Communications System (EBRCS) for its emergency services communication system. I do not see any provisions on this site for enhancement of the EBRCS at all. I would highly recommend that the applicant clarify their statement regarding exactly how they propose to “improve communications capabilities” through the EBRCS system for the City.
Additionally, documents state that this proposed site is a “Public Safety Tower.” However, the plans do not show that it meets the Public Safety Grade Site Hardening Requirements in APCO ANS 2.106.1-2019. This is the design and inspection guidelines established jointly by the Association of Public Safety Communication Officials and American National Standards Institute, which “represents public safety requirements regarding various characteristics to make mission critical communications network sites sufficiently robust to meet the service availability requirements of public safety.”1 The site needs to be redesigned under the guidelines and, if approved, the final inspection will need to be conducted as directed in the requirements.
I see that Mr. Russo was not contacted by the applicant as a potential alternative site. (ATTACHMENT C - Attachment 7 – Alternative Sites Analysis.) There is no reason to believe that Mr. Russo’s property would not be able to provide the same degree of coverage as the proposed site.
Mr. Russo states in his appeal that he was not notified of the Planning Commission meeting. ATTACHMENT E - Summary of Public Notice, shows Mr. Russo’s property on the map of noticed locations within 500’ but no proof of service or list of the addresses to which notice were sent is included that would allow verification that such letters were properly mailed.
Review of Waterford EME Report
The Planning Commission concluded that the Conditional Use Permit was appropriate because the Tower “will not be detrimental to properties or improvements in the vicinity, or to the general welfare of the City.” It seems that there potential that RF emissions from the site, if approved, would be “detrimental to properties or improvements in the vicinity” of the proposed site, in particular Mr. Russo’s property.
First and foremost, the Waterford Report is a computer-generated report that is only as good as the information used to produce the report. This report was completed with Zero mechanical antenna down tilt as stated in the Antenna Inventory on pages 7-8. To understand what that means, go to page 13 of this report where there is a Horizontal prediction of the RF Signals as inputted to the program. Note the 80-foot straight line showing 0 Degree down tilt.
This prediction is suspect because, in my experience, I have almost never seen an antenna install pointing only straight out at the horizon.
1 https://www.apcointl.org/~documents/standard/21061-2019-psg-site-hardening/?layout=default.
Att B - Page 42 of 46
1467 Mountain Meadow Drv., Oceanside CA 92056
4 All the antennas shown on the plans have a range of 2 Degrees to 12 Degrees down tilt.
So that line can be electronically, remotely tilted down 2 to 12 Degrees on each antenna on all three sectors. That tilt would significantly increase the amount of RF exposure on the adjacent property.
On page 14 of the Waterford Report, you are looking at a vertical view of the RF: the left side of the proposed tower in the Blue overlay (RF Blue overlay 100% -500%) is Mr. Russo’s property, 523 San Leandro Blvd., where he plans to build a new residential building. On page 16 I believe you are shown Mr. Russo’s proposed residential building location in the foreground.
The Antenna Inventory shows AT&T intends to operate or lease space for operation of antennas at heights ranging from 71 feet 37 feet centerline elevation. The report does not detail how many feet into Mr. Russo’s property RF in excess of FCC limits intrudes or exactly the exceedance percentages at various heights, only the very broad exceedance ranges (e.g., 100-500% etc.) and then projected levels for individual rooftops or unspecified distances from the tower. In my opinion, the proposed new residential property will be continuously radiated with RF signals in excess of FCC limits from the proposed new wireless facility. This scenario has the potential to cause serious financial harm to the developer of a residential property. Additional Horizontal views from the East to West and West to East would show a better potential view of the proposed site and the proposed structure on Mr. Russo property with regards to the potential RF Signals. Unfortunately, the Waterford Report does not include such views. It appears that the ALPHA Sector (65 Degrees) of the proposed site is pointing directly at the proposed new residential building.
The Presentation to the City Council states:
If a future EME report identifies that the project violates the FCC standards within any adjacent or neighboring residential building, the applicant shall adjust the facility until the emissions in the residential building do not exceed FCC standards.
However, if a residential/mixed-use building is constructed on the 523 San Leandro Blvd. site at the wide property line abutting 440 Peralta Ave., accomplishing this will not be simple.
Given the very close proximity, it would require that all antennae facing North are reorientated so that they are not pointing at the proposed building at all. Proposed future antenna tenants in the tiers of antenna banks shown on the tower plans (ATTACHMENT C-ATTACHMENT 1, Exh. C, p.7) would also would need to be turned off. Macro towers of this large size are a longterm investment and intended to offer co-location for numerous tenants. The construction of a building by Mr. Russo to the north would dramatically reduce the utility of the tower for colocation potential and diminish the service AT&T seeks to provide to roughly one-third to half the target area identified on the map on page 6 of the Alternative Site Analysis.
Mr. Russo has expressed willingness to host this tower on the far northern end of property, which is nearly 500’ north of the proposed site and far from where residential construction is proposed to occur. This location would enable more flexibility in future mixeduse development of the proposes site as well.
Att B - Page 43 of 46
1467 Mountain Meadow Drv., Oceanside CA 92056
5 SUMMARY
There are serious deficiencies in the completeness of the application and sufficient questions that need to be answered before this Conditional Use Permit should be issued, primarily “is there a way in which the First Net Tower, LLC site and Mr. Rousso’s proposed mixed-use residential project could co-exist together.
If you have any questions, do not hesitate to contact me Robert C. Ross
Director of Western Operations
Att B - Page 44 of 46
ATTACHMENT B
Housing Element Site Inventory Analysis
Att B - Page 45 of 46
Att B - Page 46 of 46