SF-Appeal 16WR-0123

1650 Baker St. Appeal of Permit 16WR-0123

Targeted Light Pole at 1650 Baker St: Verizon Pulled Its CPMRA Application After This Appeal Was Submitted

Note: CPMRA = Close Proximity Microwave Radiation Antenna

OCT 24 2019

City and Country of San Francisco Board of Appeals
1650 Mission Street, Suite 304
San Francisco, CA 94103

Regarding: Appeal 19-087

Subject Property: 1650 Baker Street

Subject: Appeal of Permit 16WR-0123

Selected Images from the Exhibit List

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Dear Board of Appeal Commissioners:

Thank you for taking the time to hear our appeal. We respectfully request the Board to overturn the issued permit above, and we will explain why that is the correct action and why this issued permit both violates necessary requirements for approval and was issued incorrectly.

First, installation clearly detracts from the defining characteristics of the neighborhood and therefore must not be allowed. As a result, it violates the Tier B Compatibility standard. Second, the rules of Article 25 were not followed properly, and the applicant violated many requirements and potentially committed fraud. DPH’s own report should have been invalid, Planning failed in its assessment, and DPW should have never issued the permit.

1. The installation clearly detracts from the defining characteristics of the neighborhood and thus violates the Tier B compatibility Standard.

The proposed Personal Wireless Service Facility would significantly detract from the defining characteristics of this Residential district. Our district is a RH-2 (Residential House, 2 Family) with, as the city says, has homes of "limited scale in terms of building width and height." (Exhibit 1, Planning’s own document, Planning case 2017-015753MIS).

Let me start with some context on what, exactly, we are talking about here.

Our neighborhood:

  • 1650 Baker Street is on Baker between Bush Street & Pine Street, which is a 40-X zone, meaning all buildings are 40 feet or less.

  • The homes on the street are beautiful Victorians that are indeed "limited in height" and on average the homes are closer to 38-39 feet (taking an average of the homes on the block). In addition, all the poles are less than 40 feet.

  • This limited height level averaging less than 40 feet is a key (if not THE key) defining characteristic of our neighborhood. Please remember, Planning has no record of visiting our neighborhood for this installation, which also contributed to their incorrect determination here.

The typical Verizon small cell installation, for context:

  • Most small cell installations have usually been on light poles. For example, see Exhibit 2 for a picture of two light poles on Beach street in the Marina, one without the small cell installation and one with it — quite a modest height difference.

  • Also, for another more concrete example, see Exhibit 3, where the installation is a 110 watt small cell. Without the small cell, the top height of the pole is 30 feet 4 inches, and after installing the small cell, the top height is 32 feet. In other words, a modest 20 INCHES was added to the net height.

  • In fact, Verizon itself in its applications with the city says "each pole facility would consist of one antenna placed between 20 to 40 feet above grade, but generally around 30 feet above grade" (Exhibit 4) — Verizon effectively said the typical installation would be 30 feet above grade, and its language seemed to indicate also that the antenna would not be placed above 40 feet above grade — but at 1650 Baker, the top of the Antenna is OVER 51 FEET above grade (and its bottom is installed at almost 46 feet above grade)

Here at 1650 Baker Street:

  • In our case here, the "Existing Pole Height" is 39 feet 3 inches, as shown in Verizon’s own Analysis submitted to the DPW (Exhibit 5) and Verizon’s own submitted plans/drawings. After Verizon’s installation, Verizon itself shows the Proposed total height is an ADDDITIONAL 12 FEET, or 144 inches, in height. The new height would be 51 feet 3 inches!

  • Compare this extension to the typical installation (as shown prior, above and in
    Exhibit 3) which is 20 INCHES added height— versus here, again, is OVER 7 TIMES
    THAT – 12 FEET added.

  • It is worth noting that, in addition, the small cell itself outputs over 3500 WATTS [of Effective Radiated Power (ERP)]! More than 30 TIMES that of the prior example. In our view, massive wattage installations like this simply do not belong in neighborhoods. But while that is not the crux of our argument, we would like the board to know that "not all small cells are created equal" — even though documentation we reviewed at the city level fails to differentiate between 110 Watt ERP installations versus 3500 Watt ERP ones and blankets them all as "small cells" as if they are all effectively the same (they aren’t!)

  • Verizon may claim the small cell antenna itself is a smaller height, but that is irrelevant. What is relevant is — how large is the installation as a whole and how much total height does it add?

  • Due to PG&E rules, to install at this pole, a "bayonet" / extension is first installed and then the small cell is installed on top of that. If anything, this rule should prevent Verizon from picking this pole in the first place since it requires too much height to be added in a neighborhood that is characterized with homes of limited height averaging 38-39 feet (some poles in the city do not need a bayonet, for example).

  • In sum: the total installation from Verizon would be about 12 FEET IN HEIGHT and take the total height of this pole, from 39′ 3" (39 feet 3 inches) at present, to OVER 51 FEET TALL.

The result? And this is the key part:

  • The installation is like a flying UFO, floating and hovering in the sky above the entire neighborhood. This result is terrible but no surprise —all the homes and poles on the block are shorter than 40 feet, while this installation is enormous (a top over 51 feet tall). We have done some sample renderings to give a sense of that crazy height added and its effect (Exhibit 6).

  • "Flying UFO", "sticks out like a sore thumb" are all true characterizations — Planning made an erroneous and incorrect judgment here. In addition, this "Flying UFO" incommodes the street and the quiet use/enjoyment of the street as well as a result, something that even at the state level the CA Supreme Court judges say is illegal when installing or building anything in the public right of way.

  • We have also included some sample pictures from our neighborhood for reference so one may see what it looks like and its limited scale (Exhibit 7).

  • Simply put, it clearly detracts from the defining characteristics of the neighborhood and therefore must not be allowed.

And a further point — the clutter

While this is not the crux of our argument, we do think, for context sake, it is also important for the board to know more about the pole in question. Please see Exhibit 8 (Picture of the pole) for how much clutter is already on this pole itself. It is already at a tipping point, where additional clutter is simply excessive. The Verizon installation adds many boxes and attachments, in addition to an additional 12 foot installation at the top of this pole.

Not only are residents affected by this, but so are the growing number of tourists in our area. This neighborhood is a growing tourist zone, thanks to the highly popular "Full House House" that is I block away on Broderick Street. Thanks to Instagram, The Full House House (FHH) is becoming one of the more popular spots that young tourists want to see – young people want to take pictures in front of the FHH and post it on their social media accounts. Tourists often park on our block to see the FHH, and naturally, walk around the area afterwards to see the other Victorians on the nearby quiet block on Baker where we live. This additional clutter hurts both the residents and the tourists in the area.

2. Process violations should deem the permit invalid in the first place, and the mandatory requirements of Article 25 were not met

Hammett and Edison (H&E) report is invalid

  • As mandated by city law to receive a permit, the applicant (Verizon / Modus) needed to hire a RF radio frequency engineer to assess the proposed installation. Verizon hired H&E.

  • The H&E has a conclusion page which is signed by the engineer that conducted the study and wrote the report. It is the ONLY page that is signed by the H&E Engineer (named Andrea Bright) and the only page that has her official stamp as a registered California Professional Engineer.

  • A copy of this signature page and stamp page is included as Exhibit 9.

  • To quote, it says: "Based on the information and analysis above, it is the undersigned’s professional opinion that operation of the small cell proposed by Verizon Wireless at 1867 39th Avenue in San Francisco. California, will comply with the prevailing standards for limiting public exposure to radio frequency energy and, therefore, will not for this reason cause a significant impact on the environment." (Emphasis mine, underlined)

  • This address is THE WRONG ADDRESS (it is not 1650 Baker Street). The engineer seems to have "cut and pasted" from another report and just applied it blindly here to a completely different location, which at worst is fraud and at best is negligence.

  • Either way, as a result. there does NOT exist any signed sVimped conclusion about 1650 Baker Street.

  • While the top of the page says 1650 Baker as a printed header to the document, the actual signed page (the only signed & stamped page in the document) and the conclusion statement clearly states it’s for 1867 39th Avenue — which means this is not a valid signed for our address on Baker Street.

The DPH and DPW installation requirements have a history of not being met

  • Arthur Duque of DPH is the Senior Environmental Health Inspector at San Francisco Dept of Public Health -Radio frequency program. He is the only in the Radio Frequency Program at the DPH (Exhibit 10).

  • Arthur writes, in the letter stating DPH’s approval conditions in the section titled Approval Conditions, that "Once the antenna is installed, Verizon Wireless must take RF power density measurements with the antenna operating at full power to verify the level reported in the Ebi Consulting report and to ensure that the FCC public exposure level is not exceeded in any publicly accessible area."

The language here is clear — it is a requirement of the permit. And yet:

  • Exhibit 11 Arthur Duque of DPH himself has admitted in writing, in an email he sent March 2 1, 2019 (only months ago) to DPW, saying “DPH has not been getting any of the post-test results since I’ve been in this program” [for reference: Arthur Duque has been with DPH for over 8 years].

  • That means Arthur admits in writing that for YEARS, he has not received required post-installation reports as required by the permit. We cannot allow such a blatant violation to continue and cannot trust the wireless companies to adhere by the clauses in the permit.

  • DPW itself also admits in writing (Exhibit 11) that
    1. there is no document with information concerning post-installation compliance
    2. there is no information about the cumulative effect of installed wireless facilities
    3. there are no documents that compare pre-installation with post-installation RF reports.

DPH’s own report is invalid and its determination was improper and incorrect

  • Arthur Duque of DPH (aforementioned, with his bio in Exhibit 8) also wrote up his own report about the proposed installation at 1650 Baker.

  • His report (Exhibit 12) merely cites the invalid H&E report above.

  • Therefore, by citing an invalid report as its only evidence. DPH’s own assessment has failed and is invalid as well — as a result, the permit should have never been issued since a valid DPH report is needed as a mandatory criteria for the permit.

  • In addition, as shown in the last section, Arthur’s determination from DPH is inherently unreliable because for years he personally has failed to verify the representations in H&E reports, including what emissions these cell towers produce once installed – despite for years making that a condition of his and DPH’s approval.

Planning failed in their responsibility of properly assessing this neighborhood and (this is in addition to the incorrect determination from Planning that we explained in the first part of this brief).

  • Planning issued a document called "Design Preferences for Personal Wireless Facilities"

  • In this document, Planning specifically cites: “Top mounted and side mounted antennas offer various advantages and challenges from both an RF and visibility perspective; requiring a case by case review. For example, a top mounted antenna with a very tall extension arm may look out of character in a low lying residential neighborhood” (Exhibit 13) — which is, in fact, exactly the situation on our block of Baker street with the proposed installation. Planning is right — an installation like the 12 FOOT tall addition at 1650 Baker is indeed "out of character".

  • While Planning may not be required to visit ALL proposed sites, their own document mentions the need in a case like ours at 1650 Baker for "requiring a case by case review" (Exhibit 13)

  • However, there is no evidence that planning did the required case by case review cited in this language and document. There is no evidence that planning even visited the site. The language used in planning’s letter is boilerplate and matches that of other residential sites.

Verizon failed to meet mandatory requirements, which prohibited the DPW from issuing the permit

  • Agatha Kehayas of Modus (representative of Verizon) sent out a notification email to neighbors of the proposed installation site (Exhibit 14)

  • Her email was required to include a Proposed Equipment and Antenna plan that could be reviewed. ‘This is a very important thing for the residents nearby to review properly. However, the one she attached was completely unreadable and blurry — in our opinion, this indicates a clear intent to deceive. (Exhibit 14)

  • She attached the same RF report from H&E as the above cited one — where the signature and stamp was for a different address entirely, that of 1867 39th Avenue (Exhibit 9)

  • By sending out unreadable documents, and by sending out the invalid RF report based on another different address, Verizon failed its requirements for the permit, and their actions show negligence at best and a fraudulent attempt to deceive at worst.

Structural engineering report deems the installation not safe

  • Comm-Sense Consulting, a structural engineering company, was hired by Modus / Verizon to conduct analysis "to determine if the wood pole is structurally adequate to support the proposed loadings" of the antenna and the mounting bracket and other equipment (Exhibit 15)

  • The report says "RECOMMENDATIONS: The wood pole can safely support the proposed scope of work provided the pole is replaced with a pole of higher capacity." In other words, the current pole at 1650 Baker Street as it is cannot support the installation.

  • In fact the report says, in their Existing Pole Analysis, that the pole load with this installation on the existing pole would be 120.4% of what the pole can hold (in other words, more than the pole can safely hold) (Exhibit 15)

  • Verizon’s own plans (Exhibit 1 6) show no mention of a replacement pole and show use of the existing pole.

Given the above, significant evidence exists of a scheme to defraud by Verizon, and significant evidence exists of negligence by the DPH, DPW, and Planning Department, none of whom should have approved the permit. The permit did not meet many of the requirements to issued and should have never been issued in the first place. Verizon’s agents repeatedly, and potentially fraudulently, misrepresented approval conditions. Appellants request that, for the many reasons above, the Board should uphold this and deny the Permit. Thank you.

Exhibit Table of Contents

  • Exhibit 1: Planning Department’s case number 2017-015753MIS for DPW permit 16WR-0123

  • Exhibit 2: For reference Two small cell installations on the same block on Beach St.

  • Exhibit 3: For reference architectural plans for a small cell installation on Pacific Ave.

  • Exhibit 4: Modus-Verizon’s submission to Planning giving a Project Description for its small cell installations in Pacific Heights

  • Exhibit 5: Verizon’s own analysis with the current and post-installation height at 1650 Baker

  • Exhibit 6: Sample renderings to illustrate before and after height change

  • Exhibit 7: For reference Pictures of the neighborhood (Baker Street near 1650 Baker)

  • Exhibit 8: Photograph of the pole at 1650 Baker Street

  • Exhibit 9: Signature page and stamp page for the Hammett & Edison report submitted for DPW permit 16WR-0123

  • Exhibit 10: Background and bio for Arthur Duque of DPH, Radio Frequency Program

  • Exhibit 11: Email from Arthur Duque explaining DPH has never received a required post-installation report, as well as Leo Palacios at DPW answering questions about post installation assessment as required by DPW

  • Exhibit 12: Letter from DPH citing the Hammett & Edison report

  • Exhibit 13: Planning Dept. document: Design Preferences for Personal Wireless Service Facilities

  • Exhibit 14: Attachment sent by Verizon representative Agatha Kehayas and a printout of the attachment she sent of the Proposed Equipment and Antenna Plan

  • Exhibit 15: Structural Engineering report as submitted by Verizon / its representatives

  • Exhibit 16: Architect plans for Verizon’s proposed installation