[Editor's Note: The Planning & Zoning Commission is set to discuss this application Tuesday night. Find the . Read more on Albany Patch about the AT&T application here.]
Re: Opposition to Permit for at 1035 San Pablo Ave.
Dear Members of the :
Albany Residents for Responsible Oversight of Wireless (ARROW) urges you to choose option #3 proposed in the staff report and deny AT&T’s application for 21 new cellular antennas housed in 9 antenna enclosures at 1035 San Pablo Ave.
We would like to share the thoughts below regarding the staff recommendations and AT&T attorney’s letter regarding this application, which is item 6A on the Commission’s April 24 agenda.
In summary, this application should be denied because it violates the zoning code’s rooftop coverage limits for structures that are not mechanical appurtenances – a fact the applicant has been aware of for more than a year -- and because the applicant has not meaningfully explored alternatives that both meet AT&T’s stated coverage objectives and are consistent with the requirements geographic location of antennas within the city.
ARROW’s recommendation is that, in addition to denying the application, the Commission encourage AT&T to diligently attempt to relocate the site to the USDA building or apply for a temporary permit for a mobile site, to provide service to AT&T’s vocal critics in Albany sooner rather than later while a more suitable location can be found in a collaborative effort with the city – ideally at the city’s preferred antenna site or sites that are under study.
The above issues are explained in detail in the subsections below.
Staff Recommendations
The staff report suggests 3 possible courses of action: 1) exempting the project from the minimum setback requirements and approving the application subject to a relocation of AT&T’s equipment to the eastern penthouse on the roof, 2) considering the application under zoning code section 20.24.080C which applies to “mechanical appurtenances” rather than 20.24.080B which is explicitly referenced in the wireless portion of the code as applicable to cellular equipment, or 3) denying the application.
Of these 3 proposed courses of action, only denial is consistent with both the letter and spirit of the zoning code.
Moving the proposed AT&T equipment to the penthouse would involve an exception to the required 50’ setback for antennas from residential property lines. Waiving the setback is not an appropriate solution both because of the impact the installation would have on the neighborhood and because the Commission previously requested that AT&T redesign its original plans to respect the required setback. Moreover, several unknowns related to this recommendation are not clarified in the staff report:
- have the applicant and building owner both agreed that it would be feasible to locate the equipment in the eastern penthouse?
- would the penthouse no longer be used as habitable space, as required by the code?
- is staff proposing that the antennas themselves should be relocated to the penthouse (rather than just the cabinets housing supporting equipment, which account for the majority of the rooftop coverage from this installation)?
If the Commission were to choose to approve the application on condition that the equipment be moved into the eastern penthouse, the approval should also include a condition requiring that the penthouse cease being used as habitable space and explicitly state that the condition applies to the ground equipment cabinets, not to the antennas themselves.
With regard to the proposal to consider the application under zoning code section 20.24.080C, which applies to “mechanical appurtenances” and allows for greater rooftop coverage, even AT&T’s attorney, in his letter to the Commission dated April 18, 2012, deems this a “strained” interpretation of the code and states that wireless antennas are not “mechanical appurtenances.” Moreover, code section 20.20.100E2h specifically states that wireless antenna are to be considered under 20.24.080B, not C.
Denying the application on the basis that the antenna installation would exceed the 10% rooftop coverage limit in 20.24.080B respects the letter of the code regarding rooftop structures. It also respects the code requirement that antennas be preferentially located in either the CMX or PF zoning districts before the last-choice San Pablo commercial district where these antennas are proposed. AT&T has carefully selected from the code only the wording encouraging co-location and ignored the clear statement in the code of the community’s preferences for geographic locations of antennas.
In addition, we have never received a definitive response regarding the availability of the USDA building as an alternative, preferable, less intrusive location for these antennas. The USDA building is zoned PF, which is the second-preferred zone for antennas in the city.
With regard to the USDA location, AT&T’s alternatives analysis matrix initially stated that AT&T had been unable to reach the appropriate person at USDA to discuss the possibility of locating the antennas there. Later, an AT&T representative said the USDA building is not feasible because it is not accessible 24 hours a day, which AT&T requires for an antenna site. However, it is not clear that AT&T has ever discussed with USDA the availability of the site or the provision of the necessary access to the site. AT&T’s own coverage maps show that the majority of the target area could be covered by antennas located on the USDA roof, and this site conforms to the requirements of our zoning code, so this site should be actively pursued as a reasonable alternative. In addition, a recently passed federal law on wireless siting (Middle Class Tax Relief and Job Creation Act of 2012, H.R. 3630, Sec. 6409. WIRELESS FACILITIES DEPLOYMENT, attached) explicitly provides for federal buildings to be made available for wireless antennas and for the speedy development by the General Services Administration of a master contract that would allow wireless sites to be located on federal buildings for the public benefit.
Correspondence from AT&T Attorney
AT&T's attorney, in his letter dated April 18, unfortunately misreads zoning code section 20.24.080B, stating that the rooftop coverage limits in that section only apply to structures that exceed 10’ above the height limit for the district. In fact, the code says such structures cannot exceed 10’ above the height limit and that structures that exceed the building height but fall within the 10’ additional height limit also cannot exceed 10% of the roof area.
AT&T’s attorney also argues that not allowing AT&T to locate on the rooftop at 1035 San Pablo Ave. where Sprint was allowed to locate a “non-stealth” facility constitutes discrimination under the Federal Telecommunications Act. This is not accurate. The federal act prohibits unreasonable discrimination among carriers but does not say that every wireless provider is entitled to an identical site. If that were the case, then all carriers would be entitled to build 65' towers such as the one Verizon occupies at 423 SPA even though that tower is non-conforming and exceeds current height limits. In this particular case, the Sprint site was built prior to the city’s adoption of regulations governing wireless installations. It is not reasonable to argue that a company proposing a site now should be allowed to build it disregarding the current regulations because another company built a site prior to the regulations being enacted. The city is not refusing to allow AT&T to locate antennas in Albany; the city is simply enforcing its code; under that code, it is not acceptable to locate additional antennas at the one site for which AT&T has repeatedly tried to obtain a permit for despite being clearly informed that an additional cellular installation at that site would violate the code. AT&T's attorney further claims that Albany’s code makes it impossible to site wireless installations in the city. In fact, behavior such as AT&T’s, cherry-picking code sections and ignoring basic provisions (such as the preferred order of zoning districts for siting antennas and the height and rooftop coverage limits of the general zoning code) as well as the persistent neighborhood opposition to the site are the reasons that this permit should be denied. If AT&T would work with the city to situate its site in a location that is acceptable to the community rather repeatedly asking for the same site that has already been demonstrated to violate the code and issuing veiled threats of legal action, their chances of success would be much greater.
Finally, the AT&T attorney’s letter also ignores the fact that the long delay to which this application has been subject is the result of the extremely long periods of time AT&T has taken to respond to staff and commission requests. To imply that the city is at fault for the delay misrepresents the history of this application.
If AT&T genuinely wishes to serve the customers it recruits to complain at Commission hearings about AT&T service, it would not disappear for months or years before returning to ask again for the same site but would work in good faith with the city to find a solution that is consistent with city code and acceptable to residents, such as the solutions that have been repeatedly suggested by ARROW.
Recommendations
ARROW’s recommends that the Commission enforce the zoning code and deny this application and encourage AT&T to seek a site on the USDA building or to apply for a permit for a temporary mobile site at a location that conforms with our code.
Sincerely, on behalf of ARRROW,
Nan Wishner, Albany
ATTACHMENT – Excerpt of New Federal Law - HR 3630
(b) Federal Easements and Rights-of-way-
(1) GRANT- If an executive agency, a State, a political subdivision or agency of a State, or a person, firm, or organization applies for the grant of an easement or right-of-way to, in, over, or on a building or other property owned by the Federal Government for the right to install, construct, and maintain wireless service antenna structures and equipment and backhaul transmission equipment, the executive agency having control of the building or other property may grant to the applicant, on behalf of the Federal Government, an easement or right-of-way to perform such installation, construction, and maintenance.
(2) APPLICATION- The Administrator of General Services shall develop a common form for applications for easements and rights-of-way under paragraph (1) for all executive agencies that shall be used by applicants with respect to the buildings or other property of each such agency.
(3) FEE-
(A) IN GENERAL- Notwithstanding any other provision of law, the Administrator of General Services shall establish a fee for the grant of an easement or right-of-way pursuant to paragraph (1) that is based on direct cost recovery.
(B) EXCEPTIONS- The Administrator of General Services may establish exceptions to the fee amount required under subparagraph (A)
(i) in consideration of the public benefit provided by a grant of an easement
or right-of-way; and
(ii) in the interest of expanding wireless and broadband coverage.
(4) USE OF FEES COLLECTED- Any fee amounts collected by an executive agency pursuant to paragraph (3) may be made available, as provided in appropriations Acts, to such agency to cover the costs of granting the easement or right-of-way.
(c) Master Contracts for Wireless Facility Sitings.
(1) IN GENERAL- Notwithstanding section 704 of the Telecommunications Act of 1996 or any other provision of law, and not later than 60 days after the date of the enactment of this Act, the Administrator of General Services shall--
(A) develop 1 or more master contracts that shall govern the placement of wireless service antenna structures on buildings and other property owned by the Federal Government; and
(B) in developing the master contract or contracts, standardize the treatment of the placement of wireless service antenna structures on building rooftops or facades, the placement of wireless service antenna equipment on rooftops or inside buildings, the technology used in connection with wireless service antenna structures or equipment placed on Federal buildings and other property, and any other key issues the Administrator of General Services considers appropriate.
(2) APPLICABILITY- The master contract or contracts developed by the Administrator of General Services under paragraph (1) shall apply to all publicly accessible buildings and other property owned by the Federal Government, unless the Administrator of General Services decides that issues with respect to the siting of a wireless service antenna structure on a specific building or other property warrant nonstandard treatment of such building or other property.
(3) APPLICATION- The Administrator of General Services shall develop a common form or set of forms for wireless service antenna structure siting applications under this subsection for all executive agencies that shall be used by applicants with respect to the buildings and other property of each such agency.
(d) Executive Agency Defined- In this section, the term ʻexecutive agencyʼ has the meaning given such term in section 102 of title 40, United States Code.
