HomeMy WebLinkAboutMINUTES - 07082014 - D.7RECOMMENDATION(S):
Option A
1. OPEN the hearing on the appeal of the County Planning Commission's approval of County File #LP14-2014,
ACCEPT public testimony, and CLOSE the hearing.
2. FIND that the proposed project is categorically exempt from the California Environmental Quality Act - Class 3
(CEQA Guidelines § 15303 (d)).
3. DENY the appeal of Chris Hall et. al.
4. SUSTAIN the decision of the County Planning Commission.
5. ADOPT the findings contained in County Planning Commission Resolution Number 8-2014.
6. DIRECT staff to file a California Environmental Quality Act Notice of Exemption with the County Clerk and pay
the statutory filing fee.
Option B
Accept a letter from the project applicant withdrawing County File #LP14-2014.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 07/08/2014 APPROVED AS RECOMMENDED OTHER
Clerks Notes:See Addendum
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Francisco Avila, (925)
674-7801
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: July 8, 2014
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
D. 7
To:Board of Supervisors
From:Catherine Kutsuris, Conservation and Development Director
Date:July 8, 2014
Contra
Costa
County
Subject:Appeal of the County Planning Commission's Approval of LP14-2014, for a Wireless Cell Site in the Kensington
Area (801 Coventry Road).
RECOMMENDATION(S): (CONT'D)
>
FISCAL IMPACT:
The applicant has paid the initial application deposit, and is obligated to pay supplemental fees to cover any and
all additional staff time and materials costs associated with the application processing.
BACKGROUND:
This is an appeal by a coalition of more than two dozen residents and property owners of the County Planning
Commission's (CPC) decision in CPC Resolution No. 8-2014 to approve a proposal by New Cingular Wireless
(AT&T) to attach a wireless telecommunications facility to a utility pole in the Coventry Road public right-of-way.
In January of 2013, AT&T submitted nine cell site applications within the Kensington boundaries. Due to
community comments/concerns, AT&T reduced the number of proposed cell sites to six. At the December 17,
2013, Board of Supervisor's (the Board) hearing, the Board approved five of the applications and continued the
sixth application (County File #LP13-2020, 110 Ardmore Road) so that AT&T could prepare an alternative site
analysis for that project. The Board indicated that visual intrusiveness was a concern for the Ardmore Road
project and based on the completed alternative site analysis, gave the applicant specific direction to pursue County
approval of a potential site near 801 Coventry Road. In response, AT&T submitted County File #LP14-2014 on
March 17, 2014, which proposes to replace the existing 39-foot-tall utility pole with a new pole and attach two
antennas atop the pole for a maximum height of 50 feet 5 inches.
Prior to the CPC hearing on May 13, 2014, staff routed LP14-2014 to various agencies for comments, including
the Kensington Municipal Advisory Council (KMAC). At the April 29, 2014, KMAC meeting, KMAC members
unanimously recommended denial of LP14-2014 based on potential view and sunlight impacts of the project. As
part of the public review process, additional comments/concerns for and against the project were received from
Kensington residents. All agency and community comments were made available to the CPC and are also attached
to this report for the Board's review and consideration. LP14-2014 was unanimously approved by the CPC on
May 13, and the appeal of the decision, the full text of which is attached, was timely filed on May 23, 2014.
GENERAL DISCUSSION
1. Project Description: The proposal is a request to attach an AT&T distributed antenna system (DAS) node to a
utility pole. The project consists of replacing the existing 39-foot-tall pole with a 47-foot 5-inch tall pole and
attaching 2 panel antennas atop the new pole for a total height of 50 feet 5 inches above-ground-level. The project
also includes attaching the associated electrical equipment to the pole between 7 feet and 19 feet
above-ground-level.The proposed panel antennas are 2 feet 2 3/4 inches tall, 6 1/4 inches deep and 10 5/8 inches
wide. The largest associated electrical equipment is smaller than the proposed antenna. Construction of this
project is anticipated to take 5-7 days. The DAS node would be connected to the cellular network via fiberoptic
cable running through a 1 1/4- inch diameter conduit strung between utility poles. Because PG&E and AT&T
have the right to install conduit in the public right-of-way without County review or approval, the conduit
installation is not included in this application.
2. Site and Area: The project site is located within the Kensington Park subdivision of Kensington. The maps for
this subdivision were recorded in the very early 1900s. Generally, lots in the area are 50- to 60-foot wide
rectangles, yielding a high-density single-family residential neighborhood. The neighborhood consists primarily
of custom built homes. Numerous mature trees and landscaping are located in the area. Most homes are two
stories tall to maximize views. The topography of the public right-of-way at this location is generally flat, with the
adjacent residential properties sloping upward toward the east and downward toward the west.
The subject pole is located on the east side of Coventry Road along the frontage of 801 Coventry Road. The pole
is within a 50-foot wide public right-of-way with a paved width of 25 feet. The pole is 39 feet tall and currently
supports multiple utility lines between 24 and 39 feet above-ground-level. There are no other wireless
telecommunication providers located at the site.
3. General Plan and Zoning: The property is designated Single-Family High-Density (SH) in the Contra Costa
County 2005-2020 General Plan. This designation allows for single-family residential units and the uses that are
normally necessary to support single-family residential neighborhoods. Utilities, including the infrastructure
necessary to support telephonic communication, are allowed uses.
The County's 2005-2020 General Plan includes specific policies for the Kensington area, enumerated as policies
3-206 through 3-210, which state:
3-206 - Allow for the review of new residential development that provides reasonable protection for existing
residences in the Kensington Community with regards to: views, design compatibility (including building bulk,
size, and height), adequate parking, privacy, and access to sunlight.
3-207 - Preservation of views of scenic natural features (e.g. bay, mountains) and the developed environment (e.g.
bridges, city skyline) should be incorporated into the review of development applications.
3-208 - Review proposed residential development for design compatibility with nearby development (e.g. building
mass, height, mechanical devices) and provisions for adequate parking.
3-209 - New residential development will be reviewed against realistic impacts of privacy and sunlight on
surrounding neighbors.
3-210 - Consideration will be given to review of non-residential development in the Kensington Community with
policies 3-206 through 3-209 herein.
Do These General Plan Policies Apply to the Consideration of this Land Use Permit Application ?
Policies 3-206 through 3-209 apply to residential development within Kensington. The Board of Supervisors
adopted these policies in 2004 to support adoption of the Kensington Combining District Ordinance. The
overarching purpose of this ordinance, which regulates residential development, is to minimize impacts on
neighboring properties through preservation of views, light and solar access, privacy, parking, and residential
noise levels.
Under General Plan Policy 3-210, the Planning Agency should consider General Plan Policies 3-206 through
3-209 in the review of nonresidential development. These policies should be considered in light of the whole of
the County General Plan. As conditioned, the project will not conflict with the policies for the Kensington area as
identified in the Land Use Element of the General Plan. Approval of the project will be consistent with policies
related to preserving views of the natural and built environment. The sunlight and privacy considerations in Policy
3-209 are not affected by the proposed development due to the small size of the equipment and the fact that the
project is not a residence. Given the size of the equipment, there is no evidence of incompatibility with nearby
residential development.
Does the Kensington Combining District Ordinance Apply to this Land Use Permit Application?
The Kensington Combining District Ordinance (K-Ordinance; attached), Chapter 84-74 of the County Ordinance
Code, does not apply to this Land Use Permit application. The K-Ordinance was adopted for the purpose of
regulating residential development within Kensington. Wireless telecommunication facilities are not regulated
under the K-Ordinance. Under section 84-74.404(f) of the ordinance, “development” is defined as “any building
or structure that requires a building permit….” Section 82-4.270 of the County Code defines a “structure” as
“anything constructed or erected on and permanently attached to land, except for: ...poles, wires, pipes and other
devices, and their appurtenant parts, for the transmission or transportation of electricity and gas for light, heat
or power, or of telephone and telegraphic messages…” Section 82-4.210 defines a “building” as “any structure
with a roof supported by columns or walls and intended for the shelter, housing, or enclosure of persons, animals,
or chattels.” The proposed wireless facilities are exempt from the provisions of the K-Ordinance because they do
not qualify as either “structures” or “buildings" according to the definitions in the ordinance.
4. Contra Costa County’s 1998 Telecommunication Policy: According to Section IV.A.1. (General Development
Guidelines) of the County's 1998 Telecommunications Policy (attached), “All proposed commercial wireless
telecommunication facilities shall be located so as to minimize their visibility.” Additionally, Section IV. A. 24,
states, “In appropriate cases, the proposed wireless communication facilities can be located on County-owned or
controlled property or County rights-of-way.” AT&T has met the intent of these guidelines by proposing a slim
design and by identifying an existing utility pole upon which to attach their equipment. According to the
applicant, this approach was selected over larger “macro sites” due to the topography and line-of-sight issues in
this part of the County. Given that the equipment is slim and positioned in-line with the existing pole, the site will
only be marginally visible to residents in the immediate vicinity.
The photo simulations submitted with this application show the proposed antennas being painted a brown color.
The CPC approved Condition of Approval (COA) #16, which requires the proposed antennas to be painted a
brown color to match the pole. The CPC also approved COA #17 which requires the applicant, CDD staff, and the
Public Works Department to engage adjacent neighbors to identify options for the least intrusive aesthetic options
(e.g., color, but not antenna height) for this project. COAs #16 and 17 provide additional assurance that the
project will be consistent with the 1998 Telecommunications Policy.
5. Radio Frequency (RF) Emissions and "Preferred" Technology: Federal law limits the County’s ability to
regulate wireless telecommunication facilities. Under federal law, only the Federal Communications Commission
(FCC) may approve the technology used on any wireless telecommunications facility. Under Section 332
(C)(7)(B)(iv) of the Telecommunications Act of 1996, “no state or local government or instrumentality thereof
may regulate the placement, construction, and modification of personal wireless service facilities on the basis of
the environmental effects of radio frequency emissions to the extent that such facilities comply with the
Commission’s regulations concerning such emissions." The County may not regulate the type of technology that a
wireless carrier uses, and it may not require carriers to use a “preferred” technology. (See New York SMSA, L.P.
v. Town of Clarkstown (S.D.N.Y 2009) 603 F.Supp.2d 715, 725.) In addition, under federal law only the FCC
may determine the radio frequency emission thresholds that apply to wireless telecommunication facilities. The
County may not regulate or deny wireless telecommunication facilities based on radio frequency emissions. (See
47 U.S.C., § 332; AT&T Wireless Services of California, LLC v. City of Carlsbad (S.D. Cal. 2003) 308
F.Supp.2d 1148, 1159.)
6. Statutory Authority for AT&T to Access the Public Right-of-Way: State law limits the County’s ability to
regulate the placement of wireless telecommunication facilities within public street and highway rights-of-way.
Telecommunications companies, like AT&T, are granted a statewide franchise to construct and maintain
telecommunications facilities within public road and highway rights-of-way. (Pub. Util. Code, § 7901.) Under
Section 7901, “Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and
upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles,
posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such
manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation
of the waters.” This means that local governments like the County may not deny telecommunications companies
access to local street and highway rights-of-way. However, the County may impose reasonable time, place, and
manner restrictions on the placement of those facilities in County street or highway rights-of-way, including
limited requirements to address aesthetic impacts of a wireless telecommunication facility. (See Pub. Util. Code, §
7901.1; Sprint PCS Assets, LLC v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 723.) Under
Section 7901.1, “It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the
right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways
are accessed." In short, the County has the authority to regulate the aesthetics and placement of wireless facilities
based on adopted policies and ordinances.
7. Multiple Wireless Service Providers and “Significant Gap” in Coverage: AT&T is just one of many wireless
service providers. The fact that other providers are currently serving the Kensington area does not have bearing on
the County’s review of this application. Under Section 332(c)(7)(B)(i)(I) of the Telecommunications Act of 1996,
“The regulation of the placement, construction, and modification of personal wireless service facilities by any
State or local government or instrumentality thereof shall not unreasonably discriminate among providers of
functionality equivalent services….” County staff interprets this regulation to mean that all competing wireless
service providers must be given an equal opportunity to extend service into any area of the County.AT&T has
submitted detailed, street-level, site specific coverage maps (attached) for this project. The maps reflect a
“significant gap” in coverage for the subject area. Additionally, due to the undulating and challenging topography
around the site, AT&T has prepared a report (attached) which demonstrates that the proposed equipment is the
“least intrusive” means of providing service to the non-covered area. In approving the project, the CPC
determined that AT&T’s proposed equipment is an appropriate means of closing the coverage gap and providing
service to the subject area.
8. “Shot Clock” and “Tolling Agreements”: Under Section 332(c)(7)(B)(v) of the Telecommunications Act of
1996, local municipalities must act “within a reasonable period of time.” The FCC has determined that 90 days
for collocations and 150 days for other applications would be “generally reasonable.” The FCC authorizes local
governments and wireless carriers to extend these time frames by entering into "tolling agreements."On June 25,
2013, the Board of Supervisors authorized the Department of Conservation and Development Director or designee
to enter into “tolling agreements” with AT&T and to execute additional extensions as needed. Currently, the
County and AT&T are operating under their seventh tolling agreement extension for County File #LP13-2020,
which is set to expire on July 8, 2014. Staff recommends that the Board of Supervisors render a decision on that
project prior to the expiration date. The 150-day deadline to act on this application, County File #LP14-2014, is
set to expire on August 13, 2014.
PROCESSING OF LAND USE PERMIT APPLICATION
1. Kensington Municipal Advisory Council (KMAC) Meeting and Recommendation: This project was heard by
KMAC at their April 29, 2014, meeting (draft minutes attached). According to the draft minutes, KMAC inquired
as to why this site was chosen compared to other sites, why the height is necessary, and whether the area has
coverage today? In response, the applicant stated that the site was preferred over numerous other alternatives sites
due to obvious view obstructions and lack of space on other poles to attach their equipment (see attached
alternative site analysis). AT&T representatives also indicated that the proposed height is necessary to propagate a
signal above the numerous mature trees in the vicinity. Lastly, AT&T staff indicated that the site is necessary to
improve the limited coverage existing in the area (see existing and proposed coverage maps contained within the
attached AT&T Engineer's Statement).
Several members of the public also provided comments at the April 29, 2014, KMAC meeting. Notably, the
property owner of 815 Coventry Road expressed concerns regarding his view of the proposed antennas, indicating
that nearby foliage may not completely camouflage the proposed antennas as seen from his residence. A
representative for the 801 Coventry Road property owner indicated that the proposed antennas may block sunlight
onto that property, as well as negatively block their view of the San Francisco Bay. Based on those comments,
KMAC members asked if AT&T representatives would be amenable to a one-month continuance of the meeting
to allow additional time for KMAC members to review the claims. AT&T representatives informed the KMAC
members that a continuance would make it difficult for staff to meet the June 3, 2014, tolling agreement deadline
for the 110 Ardmore site. At that point, KMAC voted unanimously to recommend denial of the project based on
the preservation of views at 801 and 815 Coventry Road.
2. County Planning Commission Hearing and Decision: Due to the controversial nature of this project, the County
Zoning Administrator, per County Code section 26-2.1206, referred the matter directly to the CPC for
consideration and decision. On May 13, 2014, the County Planning Commission heard presentations from staff,
the applicant, and members of the public regarding this project (staff report, findings, approved conditions of
approval and agency comments are attached). After considering the information before it, including all testimony,
the Commission voted unanimously to approve project with conditions.
APPEAL OF COUNTY PLANNING COMMISSION'S DECISION
The County has received one appeal on behalf of a coalition of more than two dozen residents and property
owners of the CPC’s decision approving the subject AT&T project. In a letter dated May 22, 2014, the appellants
cited five points of opposition. Staff has summarized the appeal points contained in the appeal letter and has
provided a discussion of each point below. Additionally, the applicant has provided responses to the appeal points
and those responses are attached.
Review of Points Raised in Appellant’s Appeal Letter
1. Summary of Appeal Point: The KMAC voted unanimously to recommend denial of the project. The appellants
contend that the CPC’s approval of the project ignored that recommendation, resulting in land use impacts
inconsistent with the Kensington Combining District, General Plan, and Telecommunication Policy.
Staff Response: An extensive account of the April 29, 2014, KMAC meeting was provided to the CPC as
part of the May 13, 2014, public hearing staff report. Staff also verbally presented KMAC's position to the
CPC during the hearing. To reiterate, KMAC's recommendation of denial was in response to potential view
and sunlight impacts to residences located at 801 and 815 Coventry Road. It should be noted that a story
pole for this project was installed on March 7, 2014, more than a full month prior to the April 29, 2014,
KMAC meeting. Staff was able to visit the site on numerous occasions to evaluate the project’s potential
view and sunlight impacts. Attached are photos taken of the story pole on March 19, 2014 (photo 2), and
April 30, 2014 (photo 3). The photo taken in March shows that the antenna story pole will be marginally
visible from both properties of concern due to the numerous tree branches in the vicinity. The photo taken
in April clearly shows that the spring foliage completely blocks any view of the story pole, as well as any
view of San Francisco Bay through that corridor from either property. Thus, it appears that potential view
impacts would be negligible.
As indicated above, the project is consistent with the County Telecommunications Policy is not subject to
the requirements of the Kensington Combining District Ordinance because it qualifies as neither a building
nor structure as defined by the County Ordinance Code.
The appellants state that the project is inconsistent with the General Plan, including but not limited to
policies 9-18, 9-19, 9-21, and 9-22. As indicated above, the project is consistent with the Single-Family
Residential High-Density land use designation and the policies specific to the Kensington area. The specific
policies listed by the appellants are contained in the Open Space Element and relate to development in the
vicinity of scenic ridges and on hillsides. As the project site is located far down-slope from the nearest
designated scenic ridge, policies 9-18, 9-19, and 9-21 are inapplicable. The wording of Policy 9-22 suggests
that it relates to hillsides that are still in their natural state, not hillsides developed with dense single-family
neighborhoods.
Being fully informed of KMAC's recommendation and the physical conditions at the site, the CPC found
the project to be consistent with the General Plan and the 1998 Telecommunications Policy and voted
unanimously to approve the project as proposed. The appellants have not provided information
demonstrating that the CPC’s decision was made in error.
2. Summary of Appeal Point: The appellants contend that AT&T's alternative site analysis and significant gap
report should be reviewed by an independent consultant.
Staff Response: AT&T has identified an area consisting of 45 acres (approximately 500 homes) which lacks
adequate AT&T wireless coverage. To demonstrate this "coverage gap", AT&T has provided an "AT&T
Mobility Radio Frequency Statement of Significant Coverage Gap" (attached). The report includes actual
field test data performed on January 9, 2014, which confirms the presence of the coverage gap. The data
also confirms that the proposed height of the project (50 feet tall) is required to cover the intended area due
to numerous trees in the immediate vicinity. AT&T's alternative site analysis (attached) evaluated 11 other
alternative sites which were dismissed due to insufficient space or obvious view obstruction issues. Both
reports include an equivalent or greater amount of substantiating evidence in comparison to other recent cell
site approvals by the Board. The appellant has submitted only anecdotal evidence from the February 26,
2013, KMAC meeting to suggest that the information contained in the official record is inaccurate or false.
In staff’s opinion, the Board should not be compelled to require a 3rd party review of any portion of this
application based on generalized, unsubstantiated comments provided by the appellant.
3. Summary of Appeal Point: The appellants contend that: a) the project does not qualify for the categorical
exemption under CEQA Guidelines Section 15303(d) because privately-owned cell towers are not public utilities;
b) an Environmental Impact Report should be prepared which analyzes the cumulative health and safety (RF
emissions), geologic, seismic, fire hazard, as well as aesthetic impacts of the project; and c) the potential for
other wireless providers to co-locate at this facility must also be included as part of any project specific or
cumulative impact analysis.
Staff Response: The project includes replacing a utility pole in a public right-of-way in an urbanized area
with a taller pole and attaching two panel antennas and associated electrical equipment. The CPC agreed
with staff's determination that this project qualifies for a Categorical Exemption under CEQA Guidelines
Section 15303(d), which exempts "water main, sewage, electrical, gas and other utility extensions,
including street improvements of reasonable length to serve such construction ." This section does not
specify that a utility must be publicly owned in order to qualify for the exemption. AT&T is a private
company providing a service regulated by the California Public Utilities Commission under Utility
Identification Number U-3060-C. Thus, the County views AT&T as a utility provider whose infrastructure
qualifies for exemption pursuant under this section. This CEQA exemption was applied to the five
previously-approved AT&T DAS nodes in Kensington, and has been applied to similar proposals in other
areas of the County.
Recent case law supports the CEQA exemption determination for this project. On August 7, 2009,
T-Mobile applied to the San Francisco Department of Public Works to install several dozen nodes, similar
in size to the one proposed, on utility poles throughout the city. The city found these to be exempt from
CEQA under Section 15303(d). Residents near one of the nodes then filed suit. In the case of Robinson v.
City and County of San Francisco, the First District Court of Appeal found in 2012 that the categorical
exemption was appropriate.
As part of its review, the court addressed the issue of cumulative impacts. The CEQA Guidelines state that
there are exceptions to the categorical exemptions. Under Section 15300.2(b), categorical exemptions “are
inapplicable when the cumulative impact of successive projects of the same type in the same place, over
time is significant.” The court found that "the same place" would be limited to a geographic area where a
T-Mobile antenna was within the visual and auditory range of other similar installations that currently exist
or are likely to be created. The court upheld the city's finding that “all of the existing and proposed” similar
installations by other telecommunications companies were or would be placed “separately at different
locations” so that there were “no foreseeable cumulative impacts.” The court went on to say that
speculation that potential future projects similar to the one under consideration could cause a cumulative
adverse impact is not sufficient to negate a categorical exemption.
As the T-Mobile and AT&T projects are extremely similar, the rationale of the Robinson case can be
applied to the AT&T project. The five AT&T nodes approved by the County in December 2013 are the only
ones that have been approved in Kensington. The subject pole in the Coventry Road right-of-way is located
a sufficient distance from the other nodes so that a member of the public could not reasonably see or hear
two or more of them at the same time. Thus, the proposed AT&T node cannot combine with nodes at other
locations to create a cumulative impact.
Regarding speculation that cumulative impacts could result from installation of equipment by other wireless
carriers on the subject pole, the County must review AT&T's proposal based on the specifics of the
proposed project, not a potential set of circumstances that may or may not materialize, such as the filing of
Land Use Permit applications by other carriers. Should the Board of Supervisors approve this Land Use
Permit, an amendment to this permit or a new permit would be required, pursuant to the County Ordinance
Code, if either AT&T or another carrier wished to add equipment, including antennas. To make this
abundantly clear, the CPC approved COA #4, which requires a new Land Use Permit approval prior to
installation of any new visually impactive equipment or collocation by another carrier. New Land Use
Permits and amendments to existing permits both require CEQA review and a public hearing, giving the
public an opportunity to comment on any potential impacts associated with expanding AT&T’s equipment
or collocating another carrier’s equipment. If the applicant proposes in the future to substitute equipment or
replace outdated equipment that is substantially the same as what is included in this Land Use Permit
application, this may be approved administratively. Moreover, state law addresses collocation approvals.
Government Code Section 65850.6 requires the County to ministerially approve the collocation of a new
wireless facility on an existing wireless facility (original facility) under limited circumstances. But to be
ministerially approved under that statute, the original facility must have been subject to the County's
discretionary review and a negative declaration, mitigated negative declaration, or environmental impact
report must have been prepared for that original facility. Here, the utility pole on which AT&T intends to
locate its equipment does not meet those criteria. Therefore, any future collocation will not qualify for
ministerial approval under Government Code Section 65850.6 and will need to comply with all applicable
County requirements in order to be approved.
The appellants asserted that the subject location is vulnerable to environmental hazards such as earthquakes,
slides, and potential fire hazards. The subject site is not located within the Alquist-Priolo Fault Zone as
mapped by the Contra Costa County Geographic Information System (GIS). The individual PDF files for
the Richmond Quadrangle, available on the California Department of Conservation webpage cited by the
appellants, indicate that the project site is close to, but not within, the mapped fault zone, liquefaction, and
landslide areas. Nevertheless, as part of the Land Use Permit process, the application has been routed to the
Building Inspection Division of the Department of Conservation and Development and the El
Cerrito/Kensington Fire Department for comments (comments attached). The Building Inspection Division
had no comments on this application; however, as part of the building permit "plan check" process, the
applicant is required to provide an engineer's verification for the structural adequacy of the new pole on
which AT&T is proposing to attach their equipment. A building permit will not be issued unless the pole
complies with the California Building Code and accepted engineering standards. The Fire Department
returned comments indicating that the project is within an area described as a "Very High Fire Hazard
Severity Zone.” The Fire Department comments go on to indicate that the project must adhere to the
Kensington Vegetation Management Standards and all applicable Wildland Urban Interface Codes. The
proposed project does not incorporate back-up generators, fuel cells or landscaping, so no new liquid fuel or
ignition source will be introduced to the site. Compliance with the applicable building and fire codes
ensures that the project will not increase potential seismic or fire risks at the subject site or in the general
area.
Regarding potential Radio Frequency (RF) emissions risks, the proposed wireless facility will emit small
amounts of RF energy. While the County itself has no regulatory authority related to RF emissions, staff has
required the applicant to demonstrate how the project will comply with the applicable federal RF
regulations. In response, the applicant contracted with Hammett & Edison, Inc., to prepare a report, dated
March 13, 2014, (attached) detailing the project’s conformance with FCC approved standards for RF
emissions. The report concludes that the proposed project will operate far below permissible public
exposure limits established by the FCC. However, in an abundance of caution, the CPC approved two
COAs related to RF emissions. COA #10 states, “Facilities shall be operated in such a manner so as to not
to contribute to ambient RF/EMF emissions in excess of then-current FCC adopted RF/EMF emission
standards.” AT&T is also required by COA #2 to submit administrative 3-year reviews detailing the
on-going compliance of the project with the applicable COAs (including RF emissions). With these
conditions, the County has exercised the maximum regulation available to local municipalities with regards
to RF emissions.
4. Summary of Appeal Point: The appellants contend that the County cannot make the required findings to issue a
use permit for the project, specifically “That the project will not be detrimental to the health, safety and general
welfare of the County" and "That the project shall not adversely affect the preservation of property values and the
protection of the tax base within the County.
Staff Response: Findings are based on factual information within the official record, not speculation or
generalizations based on unsubstantiated opinion. As mentioned in staff's response to Appeal Point #3,
compliance with the applicable building and fire codes ensures that the project will not be detrimental to the
health, safety, and general welfare of the County with regards to any seismic, geologic or fire related
hazard. To strengthen protections on health and safety, the CPC approved COA #9 which states, "All
commercial wireless telecommunications facilities shall comply at all times with all Federal
Communications Commission (FCC) rules, regulations and standards, and any other applicable federal,
state, or County law or regulation." Furthermore, as required by COA #2, AT&T must demonstrate
on-going compliance with those regulations every three years for the life of the permit. With these
conditions in place, the CPC determined that the project would not be detrimental to the health, safety and
general welfare of the County.
Regarding the potential negative impacts on property values, there are articles, blogs, and opinion pieces
suggesting that cell sites lower property values and others suggesting that they have no impact. The May
14, 2014, edition of the “On the Block” blog on SFGate.com addressed the issue and included the
following, suggesting that poor cell coverage can have a negative impact:
One factor that may be beginning to have an effect on home assessments is cell phone signals. Berkeley
Hills Realty broker Tracy Sichterman says she has started to see “poor cellphone reception” appear as a
property defect in real-estate disclosure statements. “Some buyers, particularly those who work remotely,
consider this to be a material concern when purchasing a home,” she told me.
With such conflicting information on the matter, once cannot state definitively that the presence of a cell
site will lower property values in a given locale. The appellants have not demonstrated that the CPC’s
finding regarding property values was incorrect.
5. Summary of Appeal Point: The appellant's contend that: a) AT&T's assertion that the Kensington Police
Protection & Community Services District uses the AT&T wireless network is false; b and c) the continuance of
County File #LP13-2020 (110 Ardmore Road) was not to pursue approval of the 801 Coventry Road site, but to
investigate alternative sites as directed by the Board of Supervisors; and d) the petition supported by 29
signatories in opposition to this application was not provided to the CPC as part of the May 13, 2014, hearing.
Staff Response: The appellant is correct in stating that the Kensington Police Protection & Community
Services District in particular does not use AT&T as their wireless provider. More to the point is that the
project is intended to increase the call quality of AT&T users in the subject area. With an increasing amount
of home owners abandoning LAN lines in favor of strictly wireless service, residents of the area and their
visitors expect and require a dependable wireless service, especially in emergency situations.
To clarify, County File #LP13-2020 (110 Ardmore Road) was initially heard by the Board on December
17, 2013. That hearing was continued several times as the Board indicated that visual intrusiveness was a
concern at this site and gave the applicant specific direction to explore alternative locations within the
commercial area along Arlington Avenue. AT&T completed and submitted an alternative site analysis
dated January 23, 2014 (attached), which was presented to the Board at the February 4th hearing. The
report eliminated the light standards within the Arlington Avenue right-of-way due to insufficient structural
capability to support the intended AT&T equipment. The report did investigate the potential siting of
AT&T equipment at 11 other poles in the immediate vicinity; however, all but one (801 Coventry) were
dismissed due to obvious view blockage, insufficient signal propagation, and/or insufficient pole space
issues. Based on the apparent viability of the 801 Coventry Road alternative, the Board continued the
February 4, 2014, hearing to February 25, 2014, to allow for the District 1 Supervisor to conduct additional
public outreach. At the February 25 meeting the Board directed the applicant to pursue County approval of
the 801 Coventry Road alternative. This application is in response to that Board directive.
The appellants also contend that a petition supported by 29 signatories which was presented to KMAC
members at their April 29, 2014, meeting was not included as part of the May 13, 2014, CPC staff report
for this project. The petition in question, which was date stamped May 9, 2014 (attached), was received
along with two other correspondences (attached) from Kensington residents after the CPC staff reports were
completed and distributed. However, staff was able to provide all three public comments to the CPC
members prior to the hearing on this matter. Therefore, the CPC was fully aware of all public comments
regarding this application prior to rendering a decision.
CONCLUSION
The appeal points are similar to the points presented to the County Planning Commission and do not provide
support for overturning the CPC's approval of the AT&T application. The project is consistent with other wireless
telecommunication projects that have been granted on utility poles in Kensington and throughout the County. The
project setting is within an area where views are protected; however, staff's photos indicate that the proposed
project would not block any views. As evidenced by the photosimulations provided with the application submittal,
the project would represent only a minor visual change to the existing character of the neighborhood. Numerous
conditions of approval have been adopted which address concerns raised by the public. The project as proposed
and conditioned complies with the development standards as outlined in the 1998 Telecommunications Policy and
the General Plan policies for the Kensington area. Considering these facts, staff recommends that the Board of
Supervisors deny the appeal of Chris Hall et. al., and sustain the County Planning Commission's approval of
County File #LP14-2014.
CONSEQUENCE OF NEGATIVE ACTION:
If the Board of Supervisors grants the appeal, the County Planning Commission's approval will be overturned and
AT&T will not have the authority to construct their proposed project at 801 Coventry Road.
CHILDREN'S IMPACT STATEMENT:
N/A
CLERK'S ADDENDUM
Items D.7 and D.8 (Appeal of the County Planning Commission's Approval for a Wireless Cell Site at 801
Coventry and the Continued Hearing on 110 Ardmore Road in the Kensington Area) were heard and
considered together. Speakers: Chris Hall (Appellant); Meryl Rafferty (Appellant); Frances Aubrey
(Appellant); Frances Aubrey (Appellant); Paul B. Albritton (Counsel for Applicant); Joe Garrett, resident of
Kensington; Evelyn Hayes (Appellant); Vladimir Hrycenko, resident of Kensington; Fred Wehking, resident of
Kensington; Mary Lee Levis, resident of Kensington; Jamie Carlson, resident of Kensington;; Dan Kevin,
resident of Kensington; Sally Wolfer, resident of Kensington (written material attached); Linda Lipscomb,
resident of Kensington; David Perry, resident of Kensington; Stephanie Oxley, resident of Kensington; Vanesa
Cordova, Kensington Municipal Advisory Council; Debra Stimpson, resident of Kensington. All Appellant
commentary provided today was in regard to the 801 Coventry site. CONTINUED the combined appeal
hearings on AT&T’s Ardmore Road and Coventry Road applications to August 12, 2014, at 9:00 a.m;
DIRECTED staff to enter into a consulting services agreement that requires the consultant to perform a peer
review analysis of the significant coverage gap information provided by AT&T for the project area and does not
include an alternative site evaluation, to be presented to the Board on August 12, 2014; AUTHORIZED, if
necessary, extensions of the shot clock deadlines for both applications to August 12, 2014.
ATTACHMENTS
Location Maps
Planning Commission Resolution
Hall et al Appeal
Findings and Conditions of Approval
Approved Plans
Photosimulations
Kensington General Plan Policies
Kensington Combining District
1998 Telecommunications Policy
RF Report
AT&T Engineer's Statement
KMAC 4/2014 Meeting Minutes
Agency Comments
Approved Plans
5/13/2014 CPC Staff Report
AT&T Best Technology Statement
Alternative Site Analysis
Public Comments
AT&T Appeal Response
Site Photos 1 - 4
Appeal of the County Planning Commission’s Approval of two New Cingular Wireless/AT&TDAS Nodes in theKensington Area.County File #’s LP13‐2020 and LP14‐2014.Board of SupervisorsJuly 8, 20141
Distribution of DAS Nodes2
January 2013, AT&T submits nine Land Use Permit applications proposing to install Distributed Antenna System (DAS) Nodes on existing utility poles in the public right‐of‐way (Kensington area).June 2013, in response to staff and community concerns, AT&T reduces the proposed Node count from 9 sites to 6.December 17, 2013, Board of Supervisors on appeal approves 5 sites and continues LP13‐2020 (110 Ardmore Road) as visual intrusiveness is a concern.Background3
February 2014, Board of Supervisors directs AT&T to pursue County approval of an alternative site located at 801 Coventry Road (County File #LP14‐2014).April 2014, KMAC unanimously recommends denial of County File #LP14‐2014 due to potential view and sunlight blockage.May 2014, the County Planning Commission (CPC) conducts a noticed public hearing for County File #LP14‐2014 and unanimously approves the project as proposed.Within the 10‐day appeal period, the Community Development Division receives an appeal of the CPC’s decision.Background Continued4
Existing 44 foot 2 inch tall utility pole.Attaching 2 antennas at a total height of 54 feet 1 inch above‐ground‐level.Associated electrical equipment to be placed on pole between 7 and 19 feet above‐ground‐level.Project Description for County File #LP13‐2020.5
110 Ardmore Road Ortho ViewPole Location6
110 Ardmore Rd. Photosimulation7
View of story pole from 110 Ardmore. 8
Second view of story pole from 110 Ardmore Rd.9
Project Description forCounty File #LP14‐2014.Existing 39 foot tall utility pole to be replaced with a new 47 foot 5 inch tall pole.Attaching 2 antennas at a total height of 50 feet 5 inches.Associated electrical equipment to be placed on pole between 7 and 19 feet above‐ground‐level.10
801 Coventry Rd. Ortho ViewPole Location11
801 Coventry Road Photosimulation #112
801 Coventry Road Photosimulation #213
March 19, 2014, Staff Photo.14
April 30, 2014, Staff Photo.15
1.Consistency with KMAC recommendations.2.Coverage Map Peer Review.3.CEQA.4.Land Use Permit findings.5.Board’s directive to explore County approval of 801 Coventry Road alternative.Summary of appeal points and staff’s response, County File #LP14‐2014.16
Closing statements.17
Questions18