Sebastopol Planning Commission Apr 24 2018

The residents of Sebastopol showed up last night to ask the Planning Commission to set the priorities of the City Planning Department staff and the City Attorney when they work to update the existings, outdated Sebastopol Municipal Wireless code.

The Municipal Wireless code revision will be proceeding in parallel to the Planning Commission’s processing of an application by Epic Wireless to install two 4G/5G Close Proximity Microwave Radiation Antennas (CPMRA), one in a residential zone and the other in a commercial zone. It is unclear at this point if the code revision will affect the processing of the current application. You can learn more specifics about this application on the Sebastopol page of the My Street, My Choice! web site.

View Public Comments During the April 24, 2018 Sebastopol Planning Commission Meeting

00:12:30–00:25:00 — Public Comments on Non-Agendized Items, Group A
00:25:00–00:36:40 — Public Comments on Non-Agendized Items, Group B
00:37:00–00:43:00 — Public Comments on Non-Agendized Items, Group C
01:23:55–01:39:25 — Planning Director Presentation re: Wireless Municipal Code Update
01:39:25–01:52:40 — Planning Commission Questions of Planning Director
01:52:55–02:06:10 — Public Comments on Wireless Municipal Code Update, Group A
02:06:10–02:13:10 — Public Comments on Wireless Municipal Code Update, Group B
02:13:15–02:23:55 — Public Comments on Wireless Municipal Code Update, Group C

Assessment of the 4/24/18 Best, Best & Krieger Letter

2018-0424-BBK-Opinion-Letter-re-Municipalities-Authority-over-Wireless-Telecom-Facilities

This 4/24/18 letter from BBK attorney Gail Karish does not contribute many new ideas and is a rehash of already well-understood and conservative case law citings, many of which are already listed on this page. This letter is not the whole story.

We, instead, need some original, out-of-the-box thinking to stop the spread of 4G/5G Close Proximity Microwave Radiation Antennas (CPMRA) in residential zones.

City attorneys and the law firms hired to assist them (such as BBK or Telecomm law firm) are focused on one thing: advising a municipality how to prevent it from being sued by Verizon. AT&T et al. They are not focused on the municipality defending and not violating the residents’ inalienable rights to privacy and safety that are guaranteed by Article I, Section 1 of the California Constitution. In that way, BBK, Telecom Law Firm and other such firms are laying the foundation for the acceptance of 4G/5G Close Proximity Microwave Radiation Antennas (CPMRA) in residential zones. This letter may not be as helpful, as you might think. Read it critically, as I did at the 4/24/18 Sebastopol Planning Commission hearing.

I would instead listen to Patrick Shannon’s legal points and Harry Lehmann’s legal points.

Listen to attorney Patrick Shannon present to the Hillsborough City Council

Read attorney Harry Lehmann’s Letters

Mr. Lehmann will be arguing an appeal of 11 CPMRA installations in Palo Alto at the Palo Alto City Council Hearing on Mon May 21.

For example, completely missing from BBK’s analysis are many points raised in the following testimony:

Napa
http://mystreetmychoice.com/napa.html (third video on the page, I start at 13:40; See also Mark Graham in the fourth video on the page at 11:35)

Sonoma
http://mystreetmychoice.com/sonoma.html (third video on the page, I lead off in this video)

Sebastopol
http://mystreetmychoice.com/sebastopol.html (third video on the page, I appear twice once at 33:25 and the other at 2:06:10, each address is three minutes).

One can email, print and use the Palo Alto handout. Please read the following carefully in A and B, below.

A. Recommended Code Changes for Close Proximity Microwave Radiation Antenna (CPMRA) installations:

Not allow in, or within 1500 feet of, residential zones — the installation of Close Proximity Microwave Radiation-emitting Antennas (CPMRA) and ancillary equipment, on or adjacent to city-owned utility poles, light poles and other street furniture because doing so would create a dangerous condition of public property. In addition, melding private telecommunications equipment onto public property would transfer massive liability for injuries from this equipment to the city of Palo Alto and its tax payers as explained in Attorney Harry Lehmann’s 7/19/17 letter to the CA Senate Appropriations Committee, at this link:
Amend the [City/County] Municipal Code to allow the installation of CPMRAs only in commercial and industrial zones — not in or within 1,500 feet of residential zones.
Amend the [City/County]Municipal Code to establish an effective setback for the installation of CPMRAs in commercial and industrial zones — a 1,500-foot setback from any of the following:
- Residential Zones
- Firefighter facilities (protections guaranteed by CA AB.57)
- Police facilities
- Medical facilities
- Schools
- Day Care facilities
- Parks and Sports fields
Allow the installation of a Wireless Communications Facility (WCF) in commercial and industrial zones only if there is a significant gap in coverage, as proven by substantial evidence in the public record. To address a proven significant gap in coverage, direct all Wireless Carriers and their subcontractors to propose and install WCFs that represent the least intrusive means that will close a proven significant gap in coverage.

B. Context for the 1996 Telecommunications Act (TCA)

Read both the 1995 and 1996 versions of the TCA, quoted below and you can see the clear differences for yourself. The duty to regulate the operations of cell phone towers falls to the local communities because it was not preempted.

Compare the text of the penultimate version (from the July 1995) and the ultimate version (From Feb 1996) of the Telecommunications Act at the following two links:

Penultimate Version of TCA, Section 107 has the words operate and operation throughout

Source: http://scientists4wiredtech.com/legislation/1995-federal-communications-act-hr-1555/

1995 — SEC. 107. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

(a) National Wireless Telecommunications Siting Policy. — Section 332(c) of the Act (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) Facilities siting policies. —

(A) Within 180 days after enactment of this paragraph, the Commission shall prescribe and make effective a policy regarding State and local regulation of the placement, construction, modification, or operation of facilities for the provision of commercial mobile services.

(B) Pursuant to subchapter III of chapter 5, title 5, United States Code, the Commission shall establish a negotiated rulemaking committee to negotiate and develop a proposed policy to comply with the requirements of this paragraph. Such committee shall include representatives from State and local governments, affected industries, and public safety agencies. In negotiating and developing such a policy, the committee shall take into account —

(i) the desirability of enhancing the coverage and quality of commercial mobile services and fostering competition in the provision of such services;

(ii) the legitimate interests of State and local governments in matters of exclusively local concern;

(iii) the effect of State and local regulation of facilities siting on interstate commerce; and

;(iv) the administrative costs to State and local governments of reviewing requests for authorization to locate facilities for the provision of commercial mobile services.

(i) regulation of the placement, construction, and modification of facilities for the provision of commercial mobile services by any State or local government or instrumentality thereof —

&nbsp(I) is reasonable, nondiscriminatory, and limited to the minimum necessary to accomplish the State or local government’s legitimate purposes; and

(II) does not prohibit or have the effect of precluding any commercial mobile service; and

(ii) a State or local government or instrumentality thereof shall act on any request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services within a reasonable period of time after the request is fully filed with such government or instrumentality; and

(iii) any decision by a State or local government or instrumentality thereof to deny a request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services shall be in writing and shall be supported by substantial evidence contained in a written record.

(D) The policy prescribed pursuant to this paragraph shall provide that no State or local government or any instrumentality thereof may regulate the placement, construction, modification, or operation of such 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.

(E) In accordance with subchapter III of chapter 5, title 5, United States Code, the Commission shall periodically establish a negotiated rulemaking committee to review the policy prescribed by the Commission under this paragraph and to recommend revisions to such policy.".

(b) Radio Frequency Emissions. — Within 180 days after the enactment of this Act, the Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules regarding the environmental effects of radio frequency emissions.

(c) Availability of Property. — Within 180 days of the enactment of this Act, the Commission shall prescribe procedures by which Federal departments and agencies may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way, and easements under their control for the placement of new telecommunications facilities by duly licensed providers of telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. These procedures may establish a presumption that requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted absent unavoidable direct conflict with the department or agency’s mission, or the current or planned use of the property, rights-of-way, and easements in question. Reasonable cost- based fees may be charged to providers of such telecommunications services for use of property, rights-of-way, and easements. The Commission shall provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for such purposes.

Ultimate Version of TCA the words operate and operation have been removed, expressing Congressional intent.

Source: http://scientists4wiredtech.com/legislation/1996-federal-telecommunications-act-s-652/

1996 — SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

(a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) Preservation of local zoning authority. —

(A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations. —

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(iv) 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.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

(C) Definitions. — For purposes of this paragraph —

(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;

(ii) the term ‘personal wireless service facilities’ means facilities for the provision of personal wireless services; and

(iii) the term ‘unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v))."