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Column: Lengthy Planning & Zoning Review of AT&T Wireless Facility Ignores Wider Public Benefits of Cell Phone Service

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As an Albany citizen who has closely followed the city’s cell tower siting discussions, I am dismayed with the in the of AT&T’s proposal for a colocated wireless facility at .

It is now almost four years since the carrier first proposed the project. Currently AT&T has no facility in Albany, and Albany residents have only spotty service from facilities in neighboring El Cerrito and Berkeley

The initial application by AT&T for this site was received May 22, 2008. P&Z staff required AT&T to build a model of the facility, then told AT&T to lower the cabinet, change the lighting and add safety signs. The city-hired consultant, Jonathan Kramer, reviewed and recommended approval in March 2009.

Staff then recommended approval in their report in May 2009. P&Z concluded at that time that it wanted the rooftop equipment setback further to meet daylight plane requirement and so voted to delay the application.

AT&T reengineered the project, moved equipment cabinets and submitted an amended application. A second consultant reviewed and recommended approval and staff also recommended approval. P&Z met again on Oct. 26, 2010. P&Z members decided this time that what they wanted was a more in-depth analysis of alternative sites and more detail on heights and setbacks on the roof.

AT&T again reengineered the project to change the setback from the property line, undertook lengthy negotiations with Sprint, which already had a site at 1035 San Pablo Ave., to reroute their cables, and expanded the alternative analysis as requested.

AT&T submitted a third amended application in October 2011. A third consultant review of the project also recommended approval, subject to a few changes. Staff again recommended approval. P&Z met for a third time on Jan. 10, 2012, and discussed the application. They asked staff to inspect the site and provide yet more detail on the rooftop structures.

Finally, at their meeting last Tuesday, P&Z chose to focus their discussion on the narrow issue of how to interpret a subsection of the code on height exceptions. Their decision threatens to undermine the entire project. In effect they have concluded that there never was any available space for AT&T facilities on the roof of 1035 San Pablo. Never ever.

All the analysis and engineering and negotiation work by AT&T, and review by staff and consultants over almost four years, will have been for naught. Before the project was even proposed, P&Z has now concluded, the allowable rooftop coverage for the height exception had been exceeded. 

Since 2004, the city’s zoning ordinance has set the height limit for the San Pablo district at 38 feet but has allowed a portion of the building (up to 10 percent of the roof area) to extend 10 feet higher. The problem centers around a penthouse on the roof that was built years before the zoning ordinance. This penthouse has been used since the building was constructed as a break room and an office, or “habitable space.”

As habitable space, the penthouse has been excluded from calculations to determine what percentage of the roof can extend above 38 feet. Now P&Z wants to include it in the calculations, even though as staff notes, “As the project is proposed, the building structure will not physically expand. The building footprint and overall building height will remain the same.”

P&Z is now saying for the first time, almost four years after the initial AT&T application, that the project never could have been done in the first place. They are saying this after requiring multiple resubmissions by the carrier, multiple consultant reviews, and years of terrible or non-existent wireless coverage for thousands of Albany residents. 

Notably missing from all this back and forth on arcane details of rooftop coverage is any discussion of the public good, of the benefit of providing adequate wireless service to the thousands of Albany AT&T customers.

Numerous letters to P&Z and to Albany Patch have documented citizens' concerns about lack of coverage. Residents have stressed safety concerns when they cannot complete emergency calls.

Public support is overwhelmingly in favor of the AT&T facility. An informal count shows at least 55 citizens writing or speaking in favor, an additional 100 AT&T subscribers submitting postcards and 45 Albany merchants signing a petition. Roughly 18 residents have voiced opposition. 

Balancing the broader public good (usually expressed in a general plan) against narrowly focused zoning details is often a difficult issue for planning commissioners. According to the League of California Cities Planning Commissioner’s Handbook, commissioners should:

“Consider which approach will best promote the public’s confidence in the planning process. Will the public’s confidence be undermined if the commission doesn’t enforce the plan? Or will denying the amendment look so rigid and unfair to the applicant that it will undermine the public’s faith in the planning commission as a decision-making body? What decision will best support the commission’s stewardship of the community’s growth and development?” 

The Handbook further states that findings on a project should address:

“What is the connection between the action and the benefits of the project?

 What public policy interests are advanced by the decision?”

So far discussion of "public policy interests" has been completely missing from the AT&T permit discussion.

P&Z has consistently been looking at the trees and missing the forest. The commission’s desire to stick to narrow issues may be a result of political tensions surrounding this issue, but it does not serve the broader public interest. The intent of the wireless ordinance is “the provision of personal wireless service facilities for the benefit of the Albany community.” We have lost sight of that and consequently the community’s well-being suffers.

As the issue stands right now, the way forward for approval of the AT&T site at 1035 San Pablo is either to approve the application as submitted and as recommended by staff, or to allow the applicant to prepare a request for a variance, and for P&Z to rapidly approve the variance for the rooftop coverage/height issue and allow the project to proceed.

I urge all members of the community, and especially AT&T customers, to contact P&Z to support the passage of such a variance so that we can finally get adequate wireless service in Albany. 

Contacts

Planning Commission members: David Arkin, Peter Maass, Phillip Moss, Leo Panian, Stacy Eisenmann 

Staff: Anne Hersch <ahersch@albanyca.org>, Jeff Bond <jbond@albanyca.org>

Paul D March 09, 2012 at 11:48 PM
Just get it done. WWII (1,248 days) didn't last as long as this weasely 'process'. Get it done and then fire the P&Z board, get their resignations, whatever. Luddites and obstructionists have no place in public service.
David Sanger March 09, 2012 at 11:55 PM
Clay- I did reply but it seems not to have successfully posted., My understanding is that the 1530 Solano application was approved by P&Z and then denied on appeal by CC in Dec 2004 since the new wireless ordinance was in the works. You are conveniently ignoring the primary issue which is the urgency of getting AT&T service in Albany and the absurdly long and drawn out process which so far is not working.
Michael Barnes March 10, 2012 at 12:02 AM
David, I agree, Commissioner Moss got it right. Now we just need two more P&Z members to display similar wisdom. Moss's stance is totally consistent with the League of California Cities Planning Commissioner’s Handbook cited in the main article above. Clay, AT&T has a coverage gap to the east and south of the proposed site. Locations on Solano or in the CMX zone further west probably won't provide coverage. Unless, ironically, the towers are so high they violate the height limitations in the ordinance.
Clay Larson March 10, 2012 at 01:02 AM
Michael, I think that you'll have to convince two more P&Z members, three Council members, and a judge. BTW, the Planning Commission Handbook has a good description of a variance: “Variances are considered only in extraordinary circumstances when the physical characteristics of a property, (such as size, shape, topography, location, or surroundings) or its use pose a unique hardship to the property owner. A variance can only be granted in special cases where the strict application of zoning regulations deprives the owner of a use enjoyed by other property owners in the same zone.”
Michael Barnes March 10, 2012 at 01:40 AM
Clay, good point about convincing three members of the city council, thanks. As for judge, I'm not so sure. Although I think your depth of knowledge about P&Z issues is remarkable, I also respect the knowledge of the city's professional staff and the city attorney. If staff recommends approval of a project, as they have for 1035 San Pablo Ave., I trust their judgement that it is a legally sound option. To reply to your comment above, here is a list of plans in order of preference and quickness: Plan A -- pass existing proposal to P&Z, as staff suggested. It has not been voted on yet. Plan B -- request variance (if Plan A is not possible, I suspect Plan B will be a tough sell). Plan C -- elect new city council in fall, who will appoint new P&Z members more sympathetic to resolving to lack of cell coverage in Albany. (This is best solution, IMHO). Plan D -- revise code (your preferred option, and something I've been suggesting for months, also consistent with plan C). As for judges getting involved, that's already happening with Verizon suit. We are fast running out of options that don't involve judges, especially given federal "build-out" rules that require AT&T to provide service. As David mentions, problem with revising existing code is that it will take a long time. Lack of cell service in Albany is an unfair economic hardship on users, and is a growing public safety risk. AT&T proposal can be approved now, and code revised later. I want both.
Clay Larson March 10, 2012 at 04:12 PM
Michael; Having a plan is good thing. I guess A and B are options. P&Z seemed to propose a solution in which AT&T got some of the stuff off the roof. Commissioner Panian thought that he could make findings for a variance. I think that a strict construction of our ordinance precludes B and probably A, and I would speak against them. I don’t think that the various options need to occur serially. I think a push to revise the ordinance could start now. I also don’t think that we need major revisions to the code, perhaps just some tweaking. I think that the P&Z and the current Council would agree to this. As I said before, I don’t think that cell phone reception will be a major issue in the next Council election. I think someone running on a platform that called for making life easier for cell phone providers, won’t be successful. If asked, all of the candidates will call for some tweaking of the current language, but again, I think there’s the political will to do that now.
Michael Barnes March 10, 2012 at 05:00 PM
Clay, Wow, I pretty much agree, or at least see the reasonableness of everything you say. Perhaps we are converging on some understanding here. Let me see: 1) I think AT&T, and folks like David and I, would be overjoyed if Panian could clearly state what he needs to approve a variance. I think AT&T would bend over backwards to resolve this if they could see a clear path to a solution. 2) Strict construction of a body of rules only makes sense if that body of rules is internally consistent (like Euclidean geometry). Some sets of rules are more consistent than others, and lend themselves to strict approaches. But some are not--think U.S. tax code or California's endlessly amended constitution, which runs to several thousand pages due to voter initiatives. It's tough to interpret some sets of rules strictly with getting bogged down in contradictions. Thank god for Turbotax. I do think the city zoning code,. especially around cell tower issues, is also contradictory. I think that what Caryl saying when she talks about Catch-22s. 3) Sure we could start revising the code now. I think there is a growing consensus that needs to happen. I recall you previously stated that you would be open to removing the restriction on putting cell sites in residential zones. That is the single major change that I would support with any hesitations. It was a pander to the true believers in the 2005 cell ordinance, and it precludes very workable solutions like the St. Mary's cell site.
Michael Barnes March 10, 2012 at 05:17 PM
(continued) I also totally agree that the cell controversy per se is not a sufficient issue for fall elections. Necessary, but not sufficient. To me, the cell issues one of those canary-in-a-coal-mine issues. It is symptomatic of underlying problems. While I have certainly been a outspoken about the 2005 cell ordinance, I have also been critical of waterfront planning that really doesn't take into account what we are learning about climate change and sea level rise. There will be much more fuel on that fire next year when IPCC releases its next report. In general, I'd like to see a city council that spends less time grandstanding more time doing good ol' fashioned problem solving. This is your local city council, fer Christ's sake, not the United Nations. IMHO, the council has often taken simplistic ideological approaches to problems and ignored technical subtleties, even when the necessary technical expertise is right there in front of them--in form of their staff and their commissions (including P&Z). As I've said before, I think this fall will be an important election for our fair city, so I'm glad to see that the Patch is being used to hammer out the issues. Thanks for taking part and sharing your expertise.
Janice Hitchcock March 12, 2012 at 09:06 PM
Bad cell phone reception? Switch your cell phone provider! Got an iPhone? Verizon gets great cell phone reception all over the East Bay, including Albany, and they now provide service for iPhones. I know because after two years of frustration I spent 10 minutes on the computer and found out which company would give me the best reception. Google "cell phone reception" and poof, problem solved. AT&T isn't worried about us poor old cell phone users, they're out to monopolize the cell phone business, hence the law suit which would prevent any local government agency from putting any regulation in place that a corporation didn't approve of. If that doesn't scare the stuffing out of you, it should. Mr. Sanger, fortunately the people who complain the loudest don't necessarily get their way. Thank goodness we have a Zoning Commission willing to go the distance with these difficult issues. And by the way, I've never gotten through to 911 on my cell phone, no matter where I am, it's one reason why I still have a land line. Another comment: most residents in the East Bay hills do not have cell phone reception, and recently Lafayette put a hold on installation of further cell phone equipment.
Caryl O'Keefe March 12, 2012 at 09:41 PM
So, the (unsupported) allegation is that AT&T is out to monopolize...and the solution is ...for all to switch to Verizon?
William Krahl March 12, 2012 at 10:21 PM
The FCC regulation is not intended to pander to any one provider. It is intended to provide unobstructed access for all carriers to provide coverage. If Verizon is the only carrier that is able to provide coverage, THAT is a monopoly. I understand debating the code provisions that would keep access to this particular building, but this broad argument doesn't hold water.
Michael Barnes March 12, 2012 at 11:35 PM
Janice, I switched to Verizon from AT&T a few years ago precisely because I couldn't get reception in Albany. I converted my old AT&T to pay-as-you-go, so I still use it as a backup phone on bike rides because of its small size. I still can't get reception in most of Albany. Verizon is better, but not good. You need to understand that cell reception for Verizon customers in Albany depends upon one site, the ugly nonconforming monopole just south of El Cerrito Plaza. If that location goes, or if Verizon is not allowed to upgrade its equipment, then many Verizon customers will lose their service, too. Verizon is suing the city to prevent this possibility. I, too, still have a land line, but this is a dying tradition. Most young people in the U.S. today will never get a land line phone. If I want to talk with my college-age son, I call or text his cell phone. He and his roommates never ordered a land line. I'm not sure what you mean when you say most residents in the East Bay hills do not have cell reception. That's where my in-laws live and cell reception is fine. The quality of cell reception in hilly areas often depends whether there is line-of-sight to a cell tower. As for Lafayette, they have not had a cell ordinance, but have put a moratorium in place until they craft one. The town next door, Orinda, does have a workable cell ordinance. I've found that cell reception in Contra Costa is generally good.
David Sanger March 13, 2012 at 12:24 AM
Recent changes in Federal law are likely to impact some of the debates on siting wireless facilities. In the Middle Class Tax Relief and Job Creation Act of 2012 which President Obama signed a few weeks ago there is a provision which specifically preempts the ability of state and local authorities to delay collocation of, removal of, and replacement of wireless transmission equipment. The exact scope of the law has yet to be worked out in practice, but it certainly seems likely that it would apply to antenna replacement on the Verizon tower at 423 San Pablo (and thus provide some kind of resolution for the lawsuit the city is defending).
David Sanger March 13, 2012 at 12:24 AM
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT. (a) FACILITY MODIFICATIONS.— (1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. (2) ELIGIBLE FACILITIES REQUEST.—For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves— (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment. http://www.gpo.gov/fdsys/pkg/BILLS-112hr3630enr/pdf/BILLS-112hr3630enr.pdf
David Sanger March 13, 2012 at 12:39 AM
Sorry Janice, the interplay between federal and local jurisdiction is not that simple. Radio and television broadcasters, wireline and wireless telephone companies are all regulated by the Federal government under the Communications Act, and more recently the 1996 Telecommunications Act which was explicitly enacted by Congress in order to "promote competition and ... encourage the rapid deployment of new telecommunications technologies." Companies like Verizon, AT&T and Metro PCS pay large amounts of money at auction to license portions of the public spectrum to provide wireless communications services to the general public. Regulation of wireless providers is solely a Federal responsibility, but sections of the code do allow state and local authorities limited zoning authority. However maintaining equal access to all providers is national policy and local authorities cannot favor one provider over another, nor can they prevent a provider from offering service. Competition in markets is essential, so your suggestion to just change providers is missing the point. As for your thought that AT&T is trying to "monopolize" cell phone business, you should check your facts. Verizon is the larger carrier.
Brian Parsley March 13, 2012 at 04:14 AM
I'm beginning to think restringing telegraph might be an easier sell for Albany.
William Krahl March 13, 2012 at 12:40 PM
I would think that this would affect the 1035 SP situation as well, but I don't know the definition of "base station" and whether this building fits in there.
Janice Hitchcock March 13, 2012 at 06:35 PM
What an unfair and uninformed remark about out P&Z commissioners. Having been on that commission, I know just how hard they work, how heavy the work load is, how difficult it is, and how hard they work to come up with a fair solution within the confines of city code.
Clay Larson March 16, 2012 at 04:22 PM
A new study reported in US News and World Report found that fetal exposure to cellphone radiation caused agitation and hyperactivity in mice. (http://health.usnews.com/health-news/news/articles/2012/03/15/fetal-exposure-to-cellphone-radiation-tied-to-adhd-like-symptoms-in-mice). We seem to get the same symptoms in Albany when folks are denied use of the phones.
Michael Barnes March 16, 2012 at 05:44 PM
Clay, interesting study, thanks for bringing it to our attention. Although perhaps this could be another conversation, here is some more information: The study itself in pdf format: http://tinyurl.com/6vfeqyl A good commentary on cell phones and the value of animal studies by Finnish researcher Dariusz Leszczynski: http://tinyurl.com/8yc32ae And a link to the big NIH National Toxicology Program study, mentioned in the link above, results due in 2014: http://tinyurl.com/85rhsq3 I think a good take-home message is mentioned in the article: "These finding are interesting, but very preliminary," he said. "This is hypothesis-generating research, so it's too early to jump to any conclusions, but it's worth putting research money into." I would totally agree with that. For a long time now, I've advocated for taking a precautionary approach to using cell phones, following the advice of some of the better Interphone study researchers. I text when possible (just about the only way to contact my college-aged son), keep the phone out of my front pocket, and turn it off or leave it in the kitchen at night. The precautionary approach also suggests using a phone when reception is good, which requires cell towers reasonably close by. I've been advocating for a cell tower in my neighborhood for years. I think it will make using cell phones safer, especially for children.
David Sanger March 16, 2012 at 06:46 PM
Clay, The study you quote has nothing to do with base stations but concerns individual cellphones. In the study the mice were exposed to an individual cell phone at the maximum allowable strength in the US with an SAR of 1.6 W/kg. Radiation from base stations is thousands of times less than that. The equations for absorption from base stations are quite complicated but from what I have read in one study gave about 0.0003 W/kg at 30 feet from an antenna. For people who are concerned about the effects of cell phones on children it is their own cell phones that are the issue and there are quite a few things they can do to keep the handsets at a safe distance and turn them off when not in use. In fact for individual handsets they emit less radiation when they are closer to a base station since they don't need to try so hard to pick up a signal. As for this discussion about the AT&T facility this report is not actually relevant and might have the unintended consequence of unnecessarily alarming people and confusing the issue.
Clay Larson March 16, 2012 at 07:14 PM
David; Take a look at my last sentence and lighten up.
Michael Barnes March 18, 2012 at 04:22 PM
Interesting article on how cell phones are changing life for rural people in India: http://www.onearth.org/article/india-calling?page=1
Michael Barnes March 18, 2012 at 04:29 PM
And for those of us who prefer video: http://www.onearth.org/media/audio-slideshow-india-green-cell-phone-revolution
Janice Hitchcock March 18, 2012 at 09:59 PM
No Caryl. My comment had to do with PROBLEM SOLVING. When people say that a lack of cell phone reception is a serious problem for those with health issues, I'm surprised that they don't just switch to a carrier that works for them. I'm also really surprised by Mr. Barnes' comment about how ugly the current Verizon monopole is. So the answer is to put in something even more ugly, this time courtesy of AT&T (in a residential area no less!), where scores of people will be stuck seeing that out their windows? What are you saying? The wealthier among us want our toys to work better so you other guys, suck it up and get used to the view?
Paul D March 19, 2012 at 12:53 AM
Janice.. "scores of people" having their view compromised is insufficient reason for rendering thousands of people unable to use their phones. If we roll over and play dead for twenty, thirty or forty people out of 18,539 nothing will ever get done about anything. There will always be a few percent who will never be satisfied -- And the P&Z groups intransigence in solving this community problem no doubt extends to past members of the group also. Thank you for bringing up your prior connection with the organization. I now better understand your reluctance to find a solution for the overwhelming majority while dithering over the potential worries of the very few. I also love your comment about switching carriers. You seem to have money to burn... I look forward to your check sent to my residence to cover my contractual obligations.
Michael Barnes March 19, 2012 at 01:28 AM
Janice, Please let me clear up a few misconceptions: I would not characterize the monopole as a Verizon monopole. Actually, as Clay Larson informed us, the first provider on the pole is Metro PCS, which has a store across San Pablo from the pole. Since cell providers like to get good reception at their stores, I suspect Verizon will be the more willing of the two providers to relocate their antennas. If they could find someplace. Second, The proposed AT&T installation won't be visible. There is a 3-foot parapet wall on top of the building that hides the equipment, and the antennas will be behind screens painted to match the building. Third, I think you are implying that the rich disproportionately use cell phones. The opposite is true. Cell phone users tend to be younger, lower-income, non-white and renters as opposed to home owners. It is home owners who have land lines and less need for cell phones. This is precisely why cell providers have to but their base stations along San Pablo Ave. With a few exceptions, cell companies can't move the towers further east into residential neighborhoods because of Albany's restrictive cell tower ordinance. Who benefits from that? Albany residents who mistakenly have health concerns about cell towers and who tend to be homeowners, older, white and higher-income.
David Sanger March 19, 2012 at 01:57 AM
Janice - 1) certainly changing carriers solves the problem for some people who can afford hundreds of dollars in early termination fees and new equipment, but it is not a solution for the public policy question. The City of Albany does not have the right to pick and choose wireless carriers. 2) If you think the proposed AT&T facility is uglier than the Verizon monopole then you clearly havent' read the proposal. Here are the before and after views: http://twitpic.com/8y7xv4 and http://twitpic.com/8y7qgy 3) San Pablo Avenue is not a residential district but commercial.
Michael Barnes March 19, 2012 at 04:36 PM
Clay, Here's a column by Finnish researcher Dariusz Leszczynski on that study you mention above. It's worth a read: http://tinyurl.com/6qcgvk3
Caryl O'Keefe March 20, 2012 at 12:16 AM
(This responds to Janice Hitchcock’s March 18 reply to my March 12 post. There was no reply button there, pls scroll up for context) Problem definition merits clarity; there’s no solution in maligning the applicant. Risks of focusing on the poor AT&T coverage include perpetuating the underlying causes, deflecting attention from problem sources, and/or creating other problems. It’s helpful to advise which provider offers good service in Albany. It’s not helpful to make an unsupported assertion that AT&T is out to monopolize. Especially since your solution encourages a monopoly position for Verizon! Even absent that irony, recommendation for all with poor service to switch to another provider is unlikely to be a longterm fix. Nor does it reflect the broad public good. I don’t want any more delay in approving an AT&T (“stealthed” for aesthetics) proposal, but suspect any such action will result in delay from an appeal or lawsuit. We should be working on revision to code. Council recently approved funds for an rfq to contract with a radiofrequency engineer for info on Albany sites for wireless, see Feb 21 staff report 71A http://www.albanyca.org/index.aspx?recordid=4970&page=640. Public attention is needed to be sure the pending rfq will request professional input about what wireless facilities are needed in Albany to optimize current and future wireless service.

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