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Letter from JoAnne Wilkes in opposition to Nealon Cell Site

From: Bob Wilkes <bob_wilkes52_at_(domain_name_was_removed)>
Date: Wed, 25 May 2011 12:01:34 -0700

This is a non-attached version of my wife's letter to the Planning Department, Planning Comission, and City Council.  

Bob Wilkes  

re: T-Mobile Wireless Facility – Nealon Park  

To Whom It May Concern:  

As an owner of the residence at 708 University Drive, I am writing to you today to oppose the T-Mobile application for new wireless facilities in Nealon Park. I am in favor of a responsible build out of wireless infrastructure in Menlo Park. However, I do not believe that locating wireless facilities in Nealon Park is responsible.  

Push for New Wireless Facilities  

There is a need to build out wireless infrastructure nationwide to meet rapidly increased demand. In a recent article in the Palo Alto Weekly, Ken Schmidt, president of Steel in the Air Inc., cited an increase in applications for wireless facilities in parks, libraries, and churches bordering residential areas. You may have followed news of ATT applications in Palo Alto for cell towers and distributed antennae in residential areas.  

Menlo Park is no exception. T-Mobile has announced plans for six new cell sites in Menlo Park in 2011. The 2400 Sand Hill Road application, located in a commercial zone, has been approved. Nealon Park is the second proposed site. Seminary Oaks Park is a potential third site, but as yet there is no formal application. The other three locations have not been disclosed to the community.    

Menlo Park’s Responsibility to Determine Wireless Locations within City  

The government of Menlo Park, not the providers, has the responsibility to decide where wireless facilities may be located within the city.  

Menlo Park’s ordinances grant the Planning Commission broad authority to regulate in the community’s best interests. The ordinances state: The purpose of this title is to preserve and extend the charm and beauty inherent to the residential character of the city…to encourage the most appropriate use of land; to conserve land and stabilize the value of property…  

Indeed, the Telecommunications Act of 1996 (TCA) and recent court decisions designate local government as the responsible party for creating and enforcing plans for wireless facilities[1]. Congress and the courts anticipated that local government would continue to use zoning ordinances to regulate the use of property, public and private, to promote the general welfare. Local government may regulate placement, construction, and modification of wireless facilities based on traditional zoning considerations, provided it does not  

Discriminate among providers of functionally equivalent services unreasonably; Prohibit, or effectively prohibit, wireless services[2]; Issue decisions with no written record and/or not supported by ‘substantial evidence[3]’ in the written record; Deny applications based solely on environmental concerns about radio frequency (RF) emissions[4].    

Criteria for Wireless Facility Conditional Use Permits When evaluating wireless facility applications, some traditional zoning considerations apply:

proximity to residential structures;
nature of uses on adjacent and nearby properties; surrounding topography;
surrounding tree coverage and foliage;
other aesthetic criteria.  

Federal appellate courts have found these to be legitimate concerns for a locality, along with any related safety concerns or evidence of adverse effects on property values. Wireless providers may win appeals of denied permits if able to prove that a) the facility would eliminate a ‘significant gap’ in its own coverage and b) the facility represents the ‘least intrusive’ alternative on the values city ordinances seek to preserve[5]. To expedite the wireless permit process many local governments require the provider to submit proof of a significant gap in coverage and evaluations of alternatives to the proposed site, both independently verified. The planning commission should consider doing the same to arrive at the best solution for the city.    

Evaluating the Nealon Park Application  

  1. Setting a Precedent - Wireless Facilities in Open Space and Conservation District near Residences

Nealon Park incorporates a city-sponsored nursery school, a children's playground, recreation facilities including a baseball field, tennis courts and an off-leash dog park, and a city-sponsored senior citizens center. The park is among the most heavily used in Menlo Park[6].  

The park is zoned as an Open Space and Conservation (OSC) district. According to city ordinances, the purpose of the OSC district is:  

(1)      To protect the public health, safety and welfare;
(2)      To protect and preserve open space land as a limited and valuable resource;
(3)      To assure its continued availability for the following: As agricultural land, scenic land, recreation land, conservation or natural resource land; for the containment of urban sprawl and the structuring of urban development, and for the retention of land in its natural or near natural state to protect life and property in the community from the hazards of fire, flood and seismic activity; and
(4)      To coordinate with and carry out federal, state, regional, county and city open space plans. (Ord. 541 § 1 (part), 1973).
 

The ordinances go on to list uses and conditional uses allowed for the OSC district; wireless communication facilities are not among them.  

Nealon Park also borders on densely populated residential areas, zoned R-1 U and R-3. Based on material distributed to the public, I would estimate that some of the residences would be less than 80 feet from the base of the proposed cell tower, and even closer to associated radio cabinets.  

According to antennasearch.com, there are numerous cell towers and antennae in Menlo Park. None of the cell towers appear to be located in an OSC district surrounded by a densely populated residential area. Placing wireless facilities in Nealon Park instead of the El Camino Real commercial district less than four blocks away does not conform to existing land use, is incompatible with the neighborhood, and would establish a bad precedent.    

2. Aesthetic, Safety, and Other Concerns  

The predominant land use surrounding Nealon Park is residential. The existing vegetation will not screen the proposed tower from residential sightlines, especially when the Eucalyptus trees on the border of the park are trimmed.  

In addition, the proposed above-ground, 12’ X 14’ fenced enclosure of four radio cabinets will be an eyesore. Children play in the park, at times unsupervised. The cabinets are likely to become an ‘attractive nuisance.’ The enclosure, located on the southern edge of the park, is adjacent to overflow parking and is bounded by the driveway leading to Little House, which is a busy thoroughfare. Based on hard-to-read site plans, there appears to be minimal set-back from the driveway or residences.  

It is not clear from material distributed to the public what, if any, provisions have been made for back-up power. These facilities typically involve lead-acid backup batteries and/or generators that can present a variety of explosive and toxic hazards. The planning staff report should include any manufacturers’ safety warnings concerning backup power equipment to be installed at the site, whether batteries and/or generators.  

Noise emissions are a major concern, as the base unit and cabinets are in such close proximity to residences. My assumption is that the Planning Commission, at a minimum, would require the cell tower and radio cabinets to comply with city ordinances regarding noise levels. In any case, the expected noise levels from the base unit and radio cabinets should be included in the planning staff report.  

Scheduled and unscheduled maintenance is also a concern to nearby residents. I would assume that the city will require the provider to maintain the base unit and enclosure on a regular schedule and take steps to minimize the disruption to nearby residences of unscheduled maintenance in the middle of the night.    

3. Effect on Property Values  

If wireless facilities can be placed in a heavily used park, adjacent to a nursery school, children’s playground, senior citizen center and densely populated residential areas, it would seem that they can be placed nearly anywhere in Menlo Park. Since Nealon Park is the second of at least six new sites planned by T-Mobile alone, I believe many residents will have an interest in the issue of cell tower sites adjacent to Menlo Park residential areas and the effect on property values. (How many other applications for new wireless facilities will Menlo Park receive from other providers this year?)  

The Appraisal Institute has stated that proximity to a cell tower should, in fact, cause a decrease in home value. The definitive work in this area, Dr. Sandy Bond's 2007 study in the Appraisal Journal, can be found at http://www.entrepreneur.com/tradejournals/ar).    

4. T-Mobile has not Proven a Need for a Tower  

T-MOBILE has not provided the community independent verification of need for a tower. T-Mobile's own existing coverage service map suggests that there is already adequate coverage in the Nealon Park area. (See coverage maps from T-Mobile’s website in Appendices I and II.) There are NO white areas, which T-Mobile's own materials define as a lack of service.  

The fact that T-Mobile calls may not (at all times and in every location) be made and received indoors does not mean that T-Mobile has a 'significant gap' in service as that term has been defined by federal appellate courts, including the Ninth Circuit Court of Appeals.[7]  

Discussions with residents in the area with T-Mobile service confirmed that they are, in fact, able to make and receive calls from inside their homes.  

5. T-Mobile has not Proven the Nealon Park Site is the ‘Least Intrusive’ Alternative  

T-MOBILE has not provided the community independent verification that the proposed site in Nealon Park is the ‘least intrusive’ site[8]. There has been no public disclosure of alternate sites or of the criteria used to evaluate alternatives.  

Since the proposed site lies within four blocks of commercially-zoned El Camino Real, why did T-Mobile choose the site in Nealon Park instead of a site in the El Camino corridor? Is the community better off with the Nealon Park site? Or the provider?  

6. This is Only the Beginning  

Menlo Park planning staff and consultants retained by T-Mobile have emphasized that a request from T-Mobile or any other provider for additional facilities would require a separate application. In practice once the first cell site has been approved in the park, the city cannot easily deny similar applications for functionally equivalent services from T-MOBILE or other carriers. To do so might be considered ‘unreasonable discrimination’, as defined in TCA and appellate court decisions.[9]  

There are six baseball field light poles in Nealon Park. Will Nealon Park become ‘Antenna Park’, with cell antennae on every light pole? What will prevent this? At what point might the city deny an application?    

Strengthen Menlo Park’s Position  

According to an article in yesterday’s Palo Daily News, ‘Palo Alto is Awash in Cell Tower Applications.’ Menlo Park will likely face a similar wave of applications, for which it may not be well positioned.  

Menlo Park is ill-served by the current process, which has ceded control to the providers. The providers propose a site, which ‘meets their requirements,’ and the city reacts. The result is an expensive, one-off process which does not necessarily build out wireless infrastructure strategically or in the city’s best interests. The process also produces unpredictable results, which discourage investment in community residences and businesses.  

There is no master plan in place in Menlo Park to govern where these facilities should or should not be located. City ordinances do not address wireless facilities specifically. There is no requirement for third party verification of application information. Other cities, such as Cupertino, Glendale, Burbank, and Richmond have developed wireless master plans, strengthened city ordinances, and re-engineered the application process (See Burbank’s new wireless facility application, accompanying this letter.)  

It is undoubtedly too late for this application to declare a moratorium to develop a master plan, rethink the application process, and strengthen ordinances in Menlo Park. In the interim, .I would urge the Planning Commission to require T-Mobile to demonstrate a) that a new site is needed to close a ‘significant gap’ in its coverage and b) why a new site cannot be located in a commercial district. This information should be verified by an independent consultant, not retained by T-Mobile or any other provider.  

I would also encourage Menlo Park to deny this application.  

                                                            Sincerely,
 
                                                            JoAnne Wilkes
 

http://www.ci.burbank.ca.us/Modules/ShowDocument.aspx?documentid=6505  

Wireless Siting Application City of Burbank Revised January 31, 2010 Page 1 of 13 Applicant Must Initial Here: ________ City of Burbank Planning and Transportation Division WIRELESS TELECOMMUNICATIONS FACILITIES SUPPLEMENTAL APPLICATION FORM 150 North Third Street Burbank, California 91502 www.burbankusa.com T: 818-238-5250 F: 818-238-5150

The City of Burbank recognizes that the provision of wireless and DAS services are highly technical enterprises subject to various federal, state, and local regulations. This supplemental application form is designed to elicit necessary and required technical information in support of an encroachment permit, Conditional Use Permit ("CUP"), or Variance application for a new or modified wireless telecommunications site project or a Distributed Antenna System ("DAS") project within the City of Burbank. Completion of the supplemental application is a mandatory for a wireless project. This form assists the City of Burbank to comply with its duties under Sections 10-1-1118 of the Burbank Municipal Code (BMC); Sections 253, 332, and 704 of the Communications Act of 1934 as amended; the FCC Shot Clock Order (FCC 09-99); California Public Utilities Code Sections 7901 and 7901.1; the California Environmental Quality Act (CEQA); the provisions of Government Code Sections 65850.6 and 65964; and other local, state, and federal laws, regulations, and court rulings. The City of Burbank requires that the applicant provide this information to assist it in creating a written administrative record containing substantial evidence sufficient to permit the City of Burbank‟s informed consideration of your request, and to determine the rights and obligations of the City of Burbank and the applicant/owner of the proposed project. No application for a new wireless site or for a modification of an existing wireless site shall be accepted for processing, determined complete, or be considered for determination of completeness until all required responses to this supplemental application form and required attachments are completed and tendered to the City of Burbank. If you do not believe that a specific item of information is necessary or applies to your application, mark the item on this form with the words, "Not Applicable" and attach a detailed written explanation as to the basis for your belief (e.g., "Question 94.7 does not apply to this application because the proposed Project has no microwave transmission element.") An unsupported statement such as "Question 94.7 does not apply" is insufficient, and the determination of completeness of your application will be delayed while you provide a meaningful and detailed explanation. Every page of this form including this page and the last page must be tendered to the City of Burbank. Each page including this page and the last page must be initialed where indicated. The last page must also be completed, signed, and dated. Note that gaps in the numbering of this form are intentional and you are not to renumber questions or responses in your reply. Questions about this form or the required information to be provided should be directed to the City of Burbank Planning and Transportation Division. 1.00: Project Location and Applicant Information 1.01:

Project Physical Address

1.02:

Applicant‟s Site Number (if any)              

Appendix II: T-Mobile Coverage Map - Data                  

[1] One of the primary purposes of section 332(c)(7) of the TCA is to protect the legitimate traditional zoning prerogatives of local governments. This section of the Act is actually entitled “Preservation of local zoning authority” and states as its baseline principle that, “[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government . . . over decisions regarding the placement, construction, and modification of personal wireless service facilities.”
U.S.C. § 332(c)(7)(A). See MetroPCS v. City and County of San Francisco.

[2] The Ninth Circuit Court of Appeals has found that an ‘effective prohibition’ exists if the provider in question is prevented from filling a significant gap in its own service network. Courts have held that a ‘significant gap’ does not exist simply because there are dead spots in areas that otherwise have coverage. (See MetroPCS vs.. City and County of San Francisco, 400 F.3d 715 (9th Circ.2005))

[3] ‘Substantial evidence’ can consist of aesthetic objections coupled with evidence of an adverse impact on property values or safety concerns.

[4] The Telecommunications Act of 1996 specifically prohibits denial based solely on concerns about RF emissions. This, despite persistent questions about the health effects of RF radiation. A recent NIH study raised new questions about exposure to RF radiation. See Volkow, Nora. ‘Effects of Cell Phone Radiofrequency Signal Exposure on Brain Glucose Metabolism’, Journal of the American Medical Association. 2011;305(8):808-813.doi:10.1001/jama.2011.186
In addition, there are no conclusive studies about the effects of long term exposure to RF radiation. Long term RF exposure has not been proven safe, nor has it been proven unsafe. For a discussion of the latest research see Mukherjee, Siddhartha ‘Do Cell Phones Cause Brain Cancer?, NYTimes April 17, 2011.

[5] The Ninth Circuit Court of Appeals requires a provider to show that ‘the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. (See MetroPCS v. City and County of San Francisco, 400 F.3d 735 (9th Circ.2005))
 

[6] The park accommodates an estimated 20 to 30 children enrolled in the nursery school, 150 tennis key subscribers, ten baseball teams, children’s soccer and softball leagues, countless children and seniors, and 50 to 75 dog owners on weekdays..
   

[7] See MetroPCS v. City and County of San Francisco, 400 F.3d 715 (9th Circ.2005))

[8] See MetroPCS v. City and County of San Francisco, 400 F.3d 735 (9th Circ.2005))

[9] Courts have recognized that discrimination among providers of functionally equivalent services is allowed, provided that it is ‘reasonable.’ A provider bears the burden of demonstrating unreasonable discrimination, and must show that has been ‘treated differently from other providers whose facilities are similarly situated in terms of the ‘structure, placement, or cumulative impact.’ See MetroPCS, Inc. v. City and County of San Francisco, 400 F. 3d 715, 727 (9th Cir. 2005)
Received on Wed May 25 2011 - 12:03:51 PDT


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