City of Boise Appeal CAA20-00127

Boise Planning Commission Small Cell WTF Appeal, Sept 14 , 2020




City of Boise Board of Appeals

Download 2020-0914 Boise Appeal Letter

Public Hearing — September 14, 2020

Regarding: Appeal of Application #CAA20-00127

Subject Property: 601 N. 27th ST., Boise, ID. 83702

   
Dear Board of Appeal Commissioners:

Thank you for taking the time to hear our appeal. We appreciate your careful consideration of the facts presented before you, and we respectfully request the Board overturn the improperly approved application CAA20-00127. In this document we will explain why overturning this appeal is the correct action and why this issued permit both violates necessary requirements for approval and was issued incorrectly.

The application in question is for a so-called "small" Wireless Telecommunications Facility (sWTF). An applicant representing itself as "Verizon Wireless c/of J5 Infrastructure Partners" submitted the application to the City of Boise on 5/22/2020 (though the official date can not be identified since the application is not signed or dated).

This application is for the "addition of Verizon antennas to an existing ACHD traffic structure". The address of the proposed facility is 601 N 27th St. Boise, ID. 83702, Latitude: N43° 37′ 35.04", Longitude W113° 13′ 26.36". The application was approved on July 13th, 2020 by the City of Boise staff person Karla Nelson (Associate Planner, Current Planning & Subdivisions Boise City Planning & Development Services).

There are many reasons why this application was incorrectly approved by the City:

1. Approval of this application is in direct violation of The City of Boise Municipal Code, as no pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) propagation study was included in the application documents. Per Boise City Development Code 11-06-04: Public/institutional use standards 2. Communication Uses (1) Required Documentation(c):

"A [n RF-EMR] propagation study showing the location of existing facilities within the coverage area, and radio frequency modeling providing evidence as to why the WCF (microcell wireless communication facility) is needed at the chosen location.”

No such propagation study has been submitted with this application. The staff person approving this application did so without the necessary documentation according to Boise City Development Code. In fact, in the several hundred Wireless Communication Facility applications, not a single propagation study has been found. This is a tremendous fault of the City Staff and Personnel, to blatantly ignore their own Development Code requirements.

In talking with several dozen residents that live within four blocks of the proposed location, not a single resident reported any inability to make a phone call from their homes. A simple NEED TEST by the applicant would have shown that there is **NO Significant Gap in Telecommunications Coverage **at this location for Verizon Wireless.

Video proof of more than adequate Telecommunications Cell Phone coverage has been recorded by neighborhood residents and can be seen here: https://youtu.be/v76Mlkab2dM

No Significant Gap in Coverage in Verizon Telecom Service Coverage. Boise, ID. July 30th, 2020

This video demonstrates that NO Significant Gap of Telecommunications Coverage exists at this location. Therefore, there is no need for a new WTF of any G at this location, and the application is frivolous. Were neighbors to litigate this matter in a petition for injunctive relief, they would win on the merits, as Verizon cannot suffer loss where it already has complete telecommunications coverage; indeed neighbors would rather be sparing Verizon unneeded loss, while sparing themselves a variety of irreparable losses. However, the City’s is responsible allowing approval of a frivolous application that is net-harmful to all parties.

2. This application is missing substantial written evidence of NEPA (National Environmental Policy Act) Review. No NEPA/NHPA review is included in the application documents, though it is required, per FCC NEPA attorneys, following the August 9, 2019 ruling in Case 18-1129 Keetoowah v FCC.

While staff members of the Boise City Planning and Zoning Staff have asserted to members of the public that no NEPA documentation is needed for a WTF applications being placed on an existing facility, such claim is in fact, incorrect. On December 12, 2019 and on February 28, 2020, FCC NEPA Attorney, Erica Rosenberg, stated to residents in CA and residents in NY, respectively from https://scientists4wiredtech.com/action/nepa-strategies/:

"All Wireless Telecommunication Facilities applications need a NEPA review. That is correct."

We have thoroughly inspected the documents for this application (and in fact, for all of the several hundred WTF applications submitted to the City of Boise) and found no substantial written evidence of NEPA review of any kind within the file documents for this, or any WTF application.

3. By FCC-NEPA Rule, the sWTF in this Application Requires an Environmental Assessment before it can be approved, placed, constructed or operated. There are two specific criteria met by this applications that require a NEPA Environmental Assessment (EA) under Title 47 CFR Rule Part1.1307 (b) for Non-building-mounted antennas for Cellular Radiotelephone Service (subpart H of part 22): (See https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=07afc9702f0a2dcc235fb74a95039ac8&h=L&mc=true&n=sp47.1.1.i&r=SUBPART&ty=HTML#se47.1.1_11307)

  • A. Height above ground level to lowest point of antenna [is] less than 10 meters (= 32’8”)
  • B. Total power of all channels (is) greater than 1000 Watts of Effective Radiated Power (ERP)

This sWTF application is materially incomplete because it lacks model numbers and specifications for the "factories" (antennas) that produce the very electromagnetic power through the air pollutes our neighborhood’s environment and ruins the quiet enjoyment of our neighborhood’s streets, homes and parks within a 1,000 foot radius of this proposed sWTF. Congress enacted NEPA to “encourage productive and enjoyable harmony between man and his environment and to . . . stimulate the health and welfare of man.”

The specifications and capabilities of the four (4) proposed antennas on this sWTF are critically important to evaluate this application. The absence of such specifications renders the application (and any others like it) fatally incomplete and not worthy of any City of Boise approval.

The first antenna (labeled R in the attached Exhibit Item #1, ‘Proposed Elevation’), is a canister antenna (Model: TBD) to be installed at a 32’5” centerline. Thus, the lowest point of this canister antenna is clearly lower than 32’8”, thus requiring a NEPA Environmental Assessment of which has apparently not been conducted.

The remaining three (3) antennas (labeled Q in the attached Exhibit Item #1, ‘Proposed Elevation’), are three-panel antennas to be installed at 27’7” centerline. Again, these antennas would clearly be below 32’8”, and thus, is subject to a NEPA Environmental Assessment of which has apparently not been conducted.

In the file documents for this application, the applicant has provided no information that would enable the City of Boise staff to calculate what the ERP capability of these antennas. In fact, after careful inspection of public records this critically important information has not been provided in the large majority of the several hundred sWTF applications in the City of Boise that we have reviewed. For the application in question, please refer to Exhibit 1 where you will see that the model for the proposed canister antenna is ‘TBD’.

In addition, the three-panel antennas have no specifications listed. Rather, in the proposed application (Exhibit 1), the only information provided for said panel antennas is listed as “Refer to Verizon Most Recent RF Configuration Sheets to Confirm Antenna Model/Type as Well as Downtilts and all Other Site Information.

However, no such information has been provided in the documents. Thus, there is no possible way that the ERP can be calculated for this antenna application. This represents gross negligence on the behalf of the applicant, as well as the City Staff who approved this application, having done so without the documentation needed to identify whether this WTF is in FCC compliance.

The action of approving this incomplete application poses a huge liability for the City. If at any time this facility exceeds FCC’s ERP limits, the City assumes liability for damages incurred by its residents, as it approved the operation of said WTF without documentation as to potential ERP. This opens the City and its tax-payers to extreme financial liability.

Furthermore, there is conflicting information in the file documents of this application. In the Letter of Intent provided by the applicant (see Exhibit 2 Labeled Letter of Intent), the first sentence of the second paragraph states:

“Verizon is proposing to add three twenty-four-inch (24”) antennas to the upper section of the existing streetlight.”

Yet, Exhibit 3 (Labeled Site Photo), as found in the application files, this site elevation clearly states that this existing pole is ‘TO BE REPLACED’.

Thus, the City of Boise staff has approved an application without knowing even the most basic of specifications of the applied-for facilities and their intended support structures. If this pole is to be replaced, no structural specifications appear so as to allow City staff to ascertain whether they meet safety and compliance codes. There appears to be no building code application or request to dig to a certain needed depth safely at this location. This incomplete application, lacks the most essential and critical information.

Finally, if this pole is to be replaced, then the proposed antennas will NOT be added to an existing facility, but will be a NEW facility, thus requiring a NEPA Review, for which no documentation is provided. Thus, the application is self-contradictory and incoherent, requiring denial by City Staff. The City of Boise staff’s approval of this sWTF application is in gross error.

The facts, cited above, trigger an automatic requirement for an Environmental Analysis per NEPA Rule §1.1307, which states

"Title 47 CFR § 1.1307 (b) (1) The appropriate exposure limits in §§1.1310 and 2.1093 of this chapter are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in §1.1310 or §2.1093 of this chapter (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section."

From Table 1 — Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation

"Cellular Radiotelephone Service (subpart H of part 22) –EA required if: Non-building-mounted antennas: height above ground level to lowest point of antenna <10 m and total power of all channels >1000 W ERP."

4. This application is missing the required documentation pertaining to the City of Boise Development Code 11-06-04: Public/institutional use standards 2. Communication Uses (1) Required Documentation (d): A written analysis demonstrating the proposed site is the most appropriate within the immediate area. The analysis shall include the following:

  • i. Description of the surrounding area, including topography;
  • ii. Natural and manmade impediments, if any, that would obstruct existing wireless telephone transmissions;
  • iii. Physical site constraints, if any, that would preclude construction of a wireless communications facility on another site;
  • iv. Technical limitations of the system that limit siting options; and
  • v. A detailed explanation as to why co-location is not possible on buildings or antennas in the proposed coverage area.

Though this information is required per Boise City Code there is no documentation in the files.

5. The interference from the proposed antennas is a direct threat to the livelihood of the homeowner at 601 N. 27th St. The proposed location of the tower is on the sidewalk next to the historic residence of 601 N. 27th St., Boise, ID. 83702. The owner of this residence is a federal employee. The nature of his work requires a secure Internet and phone connection via satellite. Interference from these proposed antennas would pose a national security threat. Please see Exhibit 4 titled "Homeowner Letter" to see the letter submitted to the City by the homeowner on July 1st, 2020.

6. A deaf child lives approximately 3 blocks from the proposed location of this WTF. Per Food and Drug Administration (FDA) researcher Howard Bassen PhD (ret), in a substantial book chapter documenting deaths from medical device interference, radiofrequency microwave radiation from wireless communications often interferes with electronic medical devices such as hearing aides. Placement of this WTF in the vicinity of a person using hearing aides is a violation of the Americans with Disabilities Act.

No indication of purpose (internet and Informational Services, or phone and text under Telecommunications Service – Title I or II, respectively) is listed in the application, so the City does not even know the purpose for the application, and whether such purpose is worthy under relevant federal laws and precedents.

In conclusion, because the application is incomplete, self-contradictory and incoherent, the City of Boise must deny it for the specific reasons outlined above. Additionally, we encourage you to demand accountability from the city staff members responsible for blindly approving these documents that can barely deserving the title “applications”. Should such “applications” continue to be approved with utter negligence and disregard for both Federal and State laws and constitutions, building codes and the Boise City Development Code itself, the City assumes all liability for litigation and damages from such wireless facilities in perpetuity. Many constituents have warned the City, providing relevant facts indicating tremendous harm to the residents of Boise, for which harm, while disregarding facts, City officials and employees do make themselves personally as well as professionally liable. Thus, the City now has no reasonable choice but to revoke its approval of this application and deny it.

I will be grateful for your renewed commitment to the well being of our beautiful city and its people. Kindly inform me of your intent to comply in revocation of the subject application’s approval, and in denying it.

Sincerely,

Resident of Boise


Exhibit A: Section 6049(a)

U.S. Code › Title 47 › Chapter 13 › Subchapter IV › § 1455 (Also known as Section 6049(a))

47 U.S. Code § 1455 – Wireless facilities deployment

47 U.S. Code § 1455 (a) Facility modifications → https://www.law.cornell.edu/uscode/text/47/1455

(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.
(3) Applicability of environmental laws. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act [1] or the National Environmental Policy Act of 1969.


Exhibit B: 1996-TCA Conference Report

https://www.congress.gov/104/crpt/hrpt458/CRPT-104hrpt458.pdf

"When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another. The intent of the conferees is to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another.

. . .

The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district."

. . .

Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision


Exhibit C: 1996-TCA Purpose and Definitions

A. U.S. Code Title 47 § 151

Section 151. Purposes of Federal Communications Commission

For the purpose of regulating
– interstate commerce and
– foreign commerce
. . . in communication by wire and radio . . .
. . . so as to make available, so far as possible, to all the people of the United States without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges,

  • for the purpose of the national defense,
  • for the purpose of promoting safety of life and property

. . . through the use of wire and radio communications,

. . . and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.
(June 19, 1934, ch. 652, title I, § 1, 48 Stat. 1064; May 20, 1937, ch. 229, § 1, 50 Stat. 189; Pub. L. 104–104, title I, § 104, Feb. 8, 1996, 110 Stat. 86.)

B. U.S. Code Title 47 § 332 Mobile services.

Part I. General Provisions –Section 332. Mobile services (a) Factors which Commission must consider
  • (1) promote the safety of life and property;
  • (2) improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and marketplace demands;
  • (3) encourage competition and provide services to the largest feasible number of users; or
  • (4) increase interservice sharing opportunities between private mobile services and other services.

C. Title 47 U.S. Code § 153 Definitions.

Section 153. Definitions
  • (50) Telecommunications — The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

  • (53) Telecommunications service — The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

  • (24) Information service — The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.