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CC - PUBLIC HEARING ITEM: Appeal of the Administrative Approval of Wireless Telecommunications Facilities Encroachment Permit to Crown Castle for 11317 Washington Place, Culver City Permit Number U22-0413.
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Meeting Date: August 14, 2023
Contact Person/Dept.: Sammy Romo/Public Works
Phone Number: 310-253-5619
Fiscal Impact: Yes [ ] No [X] General Fund: Yes [ ] No [X]
Public Hearing: Yes [X] No [ ] Action Item: Yes [ ] No [X]
Attachments: Yes [X] No [ ]
Public Notification: Meetings and Agendas - City Council (08/09/2023); E-mail: David Fruchtman, Appellant (06/13/2023); Email: Brad Ladua, Crown Castle, Applicant (06/13/2023); Mail: All residents within 500 feet of 11317 Washington Place (08/04/2023)
Department Approval: Yanni Demitri, Public Works Director/City Engineer (08/02/2023)
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RECOMMENDATION
Staff recommends the City Council consider the appeal by David Fruchtman (the “Appellant”) of staff’s approval of Crown Castle wireless telecommunications facility encroachment permit located at 11317 Washington Place, Permit number U22-0413, and render a decision by either:
1. (Staff Recommendation) Denying the appeal and approving the wireless encroachment permit with the same conditions and/or findings as the staff approval or with modified conditions and/or findings; OR
2. Granting the appeal and denying the wireless encroachment permit application based on the findings specified by the City Council.
PROCEDURES
1. Mayor calls on staff for staff report and City Council Members pose questions to staff as desired.
2. Mayor opens a public hearing, providing the Appellant the first opportunity to speak, followed by the Applicant and then the general public.
3. Applicant and Appellant are given one final opportunity to provide rebuttal comments.
4. Mayor seeks a motion to close the public hearing after all testimony has been presented.
5. City Council discusses the matter and arrives at its decision.
BACKGROUND
The City regulates the placement of small cell wireless facilities in public rights-of-way pursuant to Culver City Municipal Code Section 11.20.065 and the “Design and Development Standards for Wireless Facilities in the Public Rights-of-Way,” adopted by the City Council on February 28, 2022, by Resolution 2022-R019.
On November 21, 2022, Crown Castle submitted an application to obtain a wireless encroachment permit for the installation of small cell equipment on a city-owned streetlight fronting 11317 Washington Place. Crown Castle proposes to replace the existing streetlight with a stealth-integrated pole design.
Per the City’s requirements, Crown Castle submitted site plans, equipment diagrams, integrated street light replacement specifications, and analyses related to visual impact, noise impact, and structural calculations.
Crown Castle also submitted a Radio Frequency (RF) emission report prepared and signed by an independent California-registered electrical engineer demonstrating that the RF emissions from the wireless facility comply with the FCC guidelines that limit exposure to RF emissions.
Initially, staff determined the application was incomplete. However, through the submittal and resubmittal-with-changes process, Crown Castle eventually responded with submittals that were deemed complete. Per the City’s requirements, Crown Castle mailed notification letters via U.S. Post to all property persons within 500 feet of the proposed location and affixed a poster upon the existing streetlight pole of the proposed small cell site announcing their intention to install a wireless facility. In response to the public notifications, the property owner at 11315 Washington Place voiced concern about the proposed wireless facility.
Staff’s evaluation of the subject application now under appeal concluded that Crown Castle complied with all of the City’s requirements contained in Culver City Municipal Code (CCMC) Section 11.20.065 to obtain an encroachment permit, and without exception, adhered to all of the City’s applicable design and development standards. On May 3, 2023, staff approved the application and notified the applicant and all persons who submitted written comments on the application, which included the appellant (Attachment 1). On that same day, the appellant submitted, in writing, his timely appeal of the approval (Attachment 2).
DISCUSSION
Section 11.20.065.D.3(a) of the CCMC states:
Any person adversely affected by the decision of the Public Works Director/City Engineer pursuant to this Section may appeal the decision to the City Council, which may decide the issues de novo, and whose written decision will be the final decision of the City. Any appeal shall be conducted so that a timely written decision may be issued in compliance with any legally-required deadline.
The Appeal:
Claim:
The Appellant claims the proposed small cell facility will have health effects due to RF emissions and reduce private property values.
Response:
RF Emissions: The FCC is the regulatory agency that establishes RF guidelines nationwide to limit public exposure to emissions, and the City refers to those guidelines when evaluating RF emission reports submitted by applicants. Crown Castle submitted a report for the proposed facility that was evaluated by staff and determined to show compliance with FCC guidelines (Attachment 3).
In addition, this application proposes a facility that is similar to other facilities Crown Castle has installed elsewhere in the City. Staff recently performed a “post-construction” analysis of a random small cell wireless site placed by Crown Castle a few years ago to evaluate RF emissions. Crown Castle was not made aware of this testing beforehand. The analysis showed the greatest amount of RF emissions was 0.7% of the maximum permissible exposure allowed by the FCC.
Reduced Property Values: The Appellant provided no support for the claim about property value reduction. Moreover, whether or not the facility will reduce property values is not a required finding under the CCMC. To the extent the Appellant’s concern about property values relates to aesthetics, the City’s adopted Design and Development Standards require certain aesthetic requirements be observed that mitigate the visual impact small cell equipment creates. The streetlight and matching shroud which Crown Castle is proposing via this wireless application adheres to those Standards. The integrated streetlights will house all the small cell equipment within them and complement the surrounding streetlights by matching their color, material, and finishes. However, this concern appears to be tied closely to concerns about RF emissions exposure. The City may not deny a wireless facility application based on concern about RF emissions exposure if the facility complies with FCC guidelines. As mentioned above, staff determined the proposed site complies with FCC RF guidelines.
FINDINGS REQUIRED FOR APPROVAL
CCMC Section 11.20.065(G)(1) provides the following findings are required for approval of a wireless encroachment permit for a small cell wireless facility:
1. Findings required for approval
a. … the Public Works Director/City Engineer or City Council, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:
i. The facility is not detrimental to the public health, safety, and welfare;
ii. The facility complies with this Section and all applicable design and development standards; and
iii. The facility meets applicable requirement and standards of State and Federal law.
All of the above required findings are supported by the administrative record and, therefore, justified. The appellant has not, to-date, submitted any evidence to contradict these findings; therefore, staff recommends the City Council deny the appeal and approve the wireless encroachment permit with the same conditions and/or findings as the staff approval.
FEDERAL REQUIREMENTS RELATED TO DENIAL OF WIRELESS PERMIT APPLICATIONS
Federal law requires that if a wireless facility application is denied, the denial decision must be “in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. Section 332 (c)(7)(B)(iii). The law also requires that the denial and the reasons for denial be issued essentially contemporaneously. T-Mobile South, LLC v. City of Roswell, Ga., 574 U.S. 293 (2015). Thus, if the City Council determines that the appeal should be granted, thereby denying Crown Castle’s permit application, the City Council should explain its denial of such permit application by specifically indicating which finding(s) for approval cannot be made and the reasons such finding(s) cannot be made.
FISCAL ANALYSIS
There is no fiscal impact associated with denying or granting the Appeal.
ATTACHMENTS
2023-08-14_ATT1 Notice of Application Approval
2023-08-14_ATT2 Appeal
2023-08-14_ATT3 RF Emissions Compliance Report
2023_08-14_ATT4 Photo Sim
2023_08-14_ATT5 Standard Conditions of Approval
2023_08-14_ATT6 Supplemental Conditions of Approval
MOTIONS
That the City Council:
1. (Staff Recommendation) Deny the appeal and approve Crown Castle’s wireless encroachment permit for 11317 Washington Place, Culver City Permit Number U22-0413, based on the findings set forth in the May 3, 2023 Notice of Application Approval (Attachment 1) and subject to the conditions of approval set forth in Attachments 5 and 6 of the report. (Note: If the City Council determines to modify or supplement the conditions of approval, those should be articulated in the record.)
OR
If the Council intends to deny the application:
(Note: If the City Council decides to deny the application, the motion for denial should specifically indicate which finding(s) for approval cannot be made and the reasons such finding(s) cannot be made, based on substantial evidence in the record.)
2. Grant the appeal and deny Crown Castle’s wireless encroachment permit for 11317 Washington Place, Culver City Permit Number U22-0413, because of the following findings for approval cannot be made for the following reasons: [insert as applicable]
AND
3. Direct Public Works staff to prepare and issue, pursuant to CCMC Section 11.20.065.G.2, a written Notice of Decision, signed by the Mayor, consistent with the City Council’s findings and decision set forth in the August 14, 2023 record. The Notice shall be issued no later than August 16, 2023.