HomeMy WebLinkAboutMunicipal Solutions Response to Applicant's Re`
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3113BC.WF,NC27587
ILLIARD T AKE OREST ORTH AROLINA
E-Mail: Lmonroe8@nc.rr.com
Office (91)9 266-5990 Mobile (518) 573-8842
Web Site: www.telecomsol.com
Sent as Attachment to E-Mail this date
May 11, 2015
Mr. Nick Gioello, Associate Planner
Planning & Development Re: Response to Applicant’s
City of Eugene Comments to CMS Report
99 West 10th Avenue
Eugene Oregon 97401
Dear Nick:
CMS has been asked by the City of Eugene’s Planning Department to comment on the response of the
applicant to the CMS report dated April 16, 2015 re an application by Lexcom Development on behalf of
New Cingular Wireless PCS (AT&T) for a 75’ tall tower located at 4060 West Amazon Drive, Eugene,
Oregon.
The Planning Department’s request was to expressly deal only with key issues and issues related to the
City’s ordinance and not to do a paragraph by paragraph response. We agree and will limit this response
to matters of compliance based on the information provided to CMS and answers to key issue-related
questions. Thus, these comments will not deal with any of the subjective issues or the other comments,
assertions or aspects of the response of the applicant dated May 4, 2015, nor will we engage in a debate
over law or the interpretation of law. While we deal with the applicable law every day, in the context of
this, we believe that at this point in the process that is more appropriately the prevue of attorneys
licensed to practice law in the State of Oregon.
Compliance with specific portions of the City’s Code (at Section 9.5750).
The following Section 9.5750(1) sets forth clearly and concisely the City’s policies, goals and intent.
9.5750 Telecommunication Devices-Siting Requirements and Procedures.
(1) Purpose.
The provisions of this section are intended to ensure that telecommunication
facilities are located, installed, maintained and removed in a manner that:
(a) Minimizes the number of transmission towers throughout the community
(emphasis added);
(b) Encourages the collocation of telecommunication facilities;
(c) Encourages the use of existing buildings, light or utility poles or water towers as
opposed to construction of new telecommunication towers;
(d) Recognizes the need of telecommunication providers to build out their systems
over time; and
(e) Ensures that all telecommunication facilities, including towers, antennas, and
ancillary facilities are located and designed to minimize the visual impact on the
immediate surroundings and throughout the community, and minimize public
inconvenience and disruption. Nothing in this section shall apply to amateur radio
antennas, or facilities used exclusively for the transmission of television and radio
signals.
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Issues of Non-Compliance with Section 9.5750 To-Date
§ 6 - Site Review and Conditional Use Permit Applications. In addition to the application requirements
specified in paragraph (b) above, applications for site review or conditional use permits also shall include
the following information:
1. A visual study containing, at a minimum, a graphic simulation showing the
appearance of the proposed tower, antennas, and ancillary facilities from at least 5
points within a 3 mile radius. Such points shall be chosen by the provider with
review and approval by the planning director to ensure that various potential views
are represented.
2. Documentation that alternative sites within a radius of at least 2000 feet have been
considered and have been determined to be technologically unfeasible or
unavailable. For site reviews, alternative sites zoned E-1, E-2, I-2, and I-3 must be
considered. For conditional use permits, alternative sites zoned PL, C-2, C-3, E-1,
E-2, I-2, I-3 and S-WS must be considered.
Comment
: We do not feel that what has been submitted is clear and
convincing evidence of compliance with the preceding §2 of this section.
There is no verifiable technical evidence submitted that proves any existing
structure cannot be used to at least partially serve the intended service
area. What information was submitted is not verifiable in the form it was
submitted.
It has not been demonstrated by verifiable “Documentation”, i.e. technical
evidence, that it is “technologically unfeasible”, to locate on one or more
sites within a 2,000’ radius of the proposed location. It has also not been
demonstrated by verifiable evidence that a location perhaps even slightly
beyond the 2,000’ radius will not work, or could not be made to work, to
provide the intended service to at least a portion(s) of the intended service
area, thereby allowing a shorter less intrusive facility than a 75’ tall tower.
Propagation studies (e.g. as submitted) are merely predictive models that
do not necessarily represent the [f]actual real-world situation. By definition
they are approximations. The test of something being “unfeasible” is a
definitive test that does not allow for approximation. Thus, in the instant
context, the test of proving that something is “unfeasible” can only be
conclusively proven through the conduct of a ‘drive test’.
As regards the conduct of a drive test that accurately depicts and reflects
the real-world situation, whether existing and/or proposed, CMS would be
pleased to discuss what is necessary and how it should be done. It should
be noted that drive tests are the commonly and historically used means by
which the detail needed for network design is determined and on which the
actual business and design decisions are made by both carriers and tower
companies.
Also, since the propagation maps included in the application were not
accompanied by the ‘modeling’ information that was used to produce them,
i.e. the technical variables inputted into the software, the accuracy and
correctness of the propagation maps provided is not able to be verified in
an ‘apples-to-apples’ context. CMS has a simple (copyrighted) fill-in-the-
blank form that, when completed by an applicant and certified as to its
accuracy and truthfulness, can be used to provide the modeling information
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and thus enable verification of the maps. The carrier identified in the
application has done so literally hundreds of times in other applications
reviewed by CMS.
3. Evidence demonstrating collocation is impractical on existing tall buildings, light or
utility poles, water towers, existing transmission towers, and existing tower facility
sites for reasons of structural support capabilities, safety, available space, or failing
to meet service coverage area needs.
Comment
: To the best of our knowledge there were no structural analyses
and reports, spatial reports or safety analyses and reports contained in the
application proving that “collocation is impractical” on any existing structure,
i.e. that the structure would not accommodate the equipment needed and
that, in conjunction with perhaps another [new] facility(s), could serve the
intended service area.
Whether within or beyond the 2,000’ radius, it has not been demonstrated
by verifiable evidence that an existing tower or other type of support
structure cannot be structurally modified to accommodate this provider. The
only way to prove that such cannot be done is through a verifiable structural
analysis and report (with supporting calculations) of each potential support
structure, and/or as applicable an analysis of available space on existing
structures. No such analyses and reports have been provided in the
application material provided to CMS.
The application also did not contain any technical analysis or explanation
regarding the feasibility of “adjusting” or “re-engineering’ the transmission
facilities of one or more existing adjacent facilities used by this carrier to
serve at least part of the intended service area. Depending upon exactly
what is needed to be accomplished by a new facility, sometimes this can
decrease the size of a gap in service and thus the needed height of a new
facility. Such adjustments can include such matters as increasing the power
of one or more sectors, adjusting the direction of the antennas serving one
or more sectors, using of higher gain antennas, using a tower-mounted pre-
amplifier to boost the return signal from the user’s device.
4. A current overall system plan for the city, showing facilities presently constructed or
approved and future expansion plans.
5. A statement providing the reasons for the location, design and height of the
proposed tower or antennas.
9.5750(6)(2) and (3)
In light of the preceding, it would appear that Subsections of the City’s Code have
not been complied with. This is not to state or imply that they will not be met or are not able to be met by
this applicant. It is simply to state that to-date there is no evidence of compliance with these
requirements.
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Key Questions/Issues and Answers
Having dealt with the issues of fact as regards the actual contents of the application in the context
of what is required under the City’s Code, we would recommend that the City not to lose sight of,
or allow its focus to be distracted from matters of actual fact and the primary issues and concerns,
9.5750Telecommunication Devices-Siting Requirements
specifically as set forth in Section
and Procedures
. Key to these issues and concerns in the context of Section 9.5750 are the
following questions and their answers.
1. Does the City have the burden of proving that what is proposed is the only (sole)
means of accomplishing what is intended, or does the applicant bear the burden of
Answer: The applicant bears the burden of
proving its claims and assertions?
proving its case to the City vis-à-vis compliance with Section 9.5750, unless the
City decides otherwise.
2. In this instance is the City prohibited from requiring that the information contained in
and provided in support of an application be submitted in a manner that is verifiable,
using information provided by the applicant to assure a valid the comparison of ‘apples
Answer: NO.
to apples’.
3. Is the City prohibited from requiring additional information from an applicant if such
was not provided in the application and is needed for purposes of verification, i.e. to
Answer: NO
verify the truth, accuracy and correctness of submitted information?
4. Is the City’s right to do its due diligence limited by being required to accept submitted
materials as truthful, accurate and correct on their face without specific technical
Answer: NO
information and details to enable [independent] verification?
5. Location: Is the proposed location the only (sole) location, to the exclusion of all
others, singly or in combination, at which a facility(s) can be located to provide the
Answer: There was no
geographic coverage, type and level of service intended?
information provided that would enable verification or the determination
factual
of this.
6. Support Structure: Is a new tower the only type of structure, to the exclusion of all
others, which would be able to accommodate the needed equipment to enable the
geographic coverage, type and level of service intended, either singly or in
Answer: There was no technical information
combination with other sites?
provided that would enable verification or the determination of this.
factual
7. Height: Is the proposed 75’ height the only height that would enable the provision of
Answer: There
the type and level of service intended, i.e. from one or more locations?
was no technical information provided that would enable the verification or the
determination of this
factual.
8. Does the 1996 Telecommunications Act expressly state that a wireless carrier must be
allowed to do what is needed or desired in the least costly, i.e. most economically
Answer: NO
efficient, manner possible?
9. Is the City required to permit a new tower so as to enable the entire intended service
area to be served from a single facility, as opposed to using one or more less visually
sensitive, controversial or intrusive sites? In other words, must the City allow a carrier
Answer: NO
to cover the entire intended service area from a single facility?
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10. What is the test as regards what a City may not do with respect to permitting wireless
facilities under the 1996 Telecommunications Act (at (332(c) (47 U.S.C.
Answer: The 1996 Telecommunications Act states
332(c))(B)(II)(B) LIMITATIONS)?
in relevant part that:
(i) The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government
or instrumentality thereof--`(II) shall not prohibit or have the effect of
.(Emphasis
prohibiting the provision of personal wireless services
added).
The plain language of 332(c))(B)(II)(B) does not limit the community’s right to
regulate that is not inconsistent with the 1996 Telecom Act and that
anything
doesn’t have the effect of ‘prohibiting’ service. Specifically it does not limit a
community’s right to regulate the location(s), size(s) and type of structure(s) or to
require the least visually intrusive facility(s) among those options/alternatives
that are not technologically impractical. Notably, the language also says nothing
about a community being required to allow an area to be served from a single
facility; nor does it say or that not allowing an area to be served from a single
facility necessarily has the effect of prohibiting service, per se, i.e. if alternatives
exist and can singly or in combination achieve the “approximate” coverage
intended, if such is needed to meet the requirements of the community’s
regulations.
Sincerely,
L.S. (Rusty) Monroe
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