08 Crown Castle DAS - City Council - City of Davis

DATE: April 3, 2012 

TO: City Council 

SUPPLEMENTAL STAFF REPORT 

FROM: Ken Hiatt, Community Development & Sustainability Director 

Michael Webb, Principal Planner 

SUBJECT: Crown Castle DAS Wireless/Cellular Services Infrastructure Network; 

Planning Application #52-10, Conditional Use Permit #10-10, Zoning 

Ordinance Amendment #1-10, Appeal #1-12 

Recommendation 

1. Receive additional information as requested by the City Council (see attached). 

2. Provide direction to staff on a preferred course of action utilizing the table found 

in attachment 2 as a starting point for discussion, and 

3. Direct staff to return at a future City Council meeting in accordance with #5 

below. 

Recommended Structure of Discussion 

Staff suggests the following as potential course of discussion for the April 3 rd meeting: 

1. Discuss case law summary presented in attachment 1 to this report. 

2. Discuss merits of single-carrier vs. two-carrier vs. multi-carrier DAS system. 

3. Provide site-by-site direction to staff utilizing the table in attachment 1 as a 

starting point (staff will have site photo simulations and aerial photos available on 

the projector screen during the meeting to assist in this exercise). 

4. Provide input and comments on the proposed telecommunications ordinance 

amendments to assist staff in further refinements before returning for adoption. 

5. Determine an appropriate hearing date to return with documents for formal action. 

Absent a written extension from Crown Castle, the Council should continue the 

item to a date certain no later than April 16 th to ensure the FCC Shot Clock 

does not expire. This would require scheduling a special meeting. 

Background 

On March 20 th the City Council held its first public hearing to consider the proposed 

DAS network proposed by Crown Castle. At that meeting, the Council was presented 

with a project overview and legal framework. The Council received public comment and 

asked questions of the applicant and staff. In order to facilitate further deliberations on 

the proposal, the City Council requested that the matter return on April 3 rd with the 

following: 

1. Summary of other resolved and pending relevant court cases 

04-03-12 City Council Meeting 08 - 1

2. A revised project evaluation table that incorporates additional data including: 

extent of community input, possible siting alternatives to be explored, and staff 

recommendations. 

3. Synopsys of what would be included in City Council findings for denial, should 

the City Council provide this direction. 

Items 1 and 2 above are attached to this report. Item 3 may be a deferred submittal and is 

pending City Attorney evaluation. It will be posted as soon as it is available. 

Merits of single-carrier vs. two-carrier vs. multi-carrier DAS system 

Crown Castle has presented three primary antenna options for consideration on the street 

light poles, and four options on the joint utility poles. Crown Castle has indicated that the 

antenna options do not need to be homogenous throughout the proposed 25 node network 

(e.g. the options can be mixed and matched). 

The single (or “omni”) antenna option presents the smallest profile antenna (2 inches 

wide by 48 inches tall), but would require either modification to a larger facility or 

installation of more such sites when a second carrier shows interest. Approval of a single 

carrier system would meet the immediate needs of Crown Castle (for Metro PCS). 

However, the City would likely face application(s) from Crown Castle or other providers 

to expand in the near future. Such expansion proposals would require a new CUP 

application, review of the project merits and designs, and public hearing at the Planning 

Commission, if consistent with the proposed telecommunications ordinance amendments. 

Depending upon how tightly the ordinance amendments are crafted with respect to site 

locations and allowable antenna dimensions, future applications for further amendments 

may also be requested by applicants. 

The two carrier (or tri-sector pipe) option presents a larger antenna profile, but may have 

the advantage of accommodating two carriers without the need for additional entitlements 

or ordinance amendments. This would only be realized if another carrier leases the 

additional system capacity from Crown Castle. When placed atop standard streetlight 

poles, the proposed antennas add approximately 84 inches to the height of poles and 

increase the diameter of the pole at the top to 8 inches. As the standard streetlight poles 

are a tapered design, the antenna canister is noticeable. However, an alternative is to 

consider a uniform diameter (streamlined) streetlight pole so that the antenna protrusion 

is not as obvious an addition. Staff has requested that the applicant respond with 

additional information and design details and that they be provided for the April 3 rd City 

Council meeting. 

The original six carrier antenna design proposed by Crown Castle (and still stated as their 

preference) has the benefit of having the capacity to accommodate up to six carriers in 

one place, albeit with a design that is considerably more visually obtrusive than the 

smaller antenna options and is harder to integrate aesthetically into neighborhoods. If 

multiple carriers contract with Crown Castle to utilize such a system, the chances of 

proliferation of more antennas beyond those proposed by Crown Castle may be reduced. 


However, there is no guarantee that multiple carriers will go into contract with Crown 

Castle to utilize such a system. 

While Crown Castle is the only application under consideration by the City at this time, 

the City Council must consider the long term cumulative ramifications of amending the 

telecommunications ordinance to accommodate DAS systems. 

In order to facilitate discussions, the Council may wish to discuss whether certain design 

options are more or less aesthetically acceptable than others. This will help ascertain 

whether certain options are eliminated from further discussion, or not. 

Updated Site Evaluation Table 

The table found in attachment 2 to this report attempts to expand upon and make 

improvements to the version that was presented for the March 20 th hearing. The table 

incorporates the following elements: 

1. Numerical listing of all proposed sites with color coding by type of facility 

2. Integration of neighborhood encroachment (estimated distance to the nearest 

residence) 

3. Notation on which sites are located in utility underground districts 

4. Extent of community input on specific sites 

5. Integration of potential scoring system to assist with discussions 

6. Evaluation of potential alternative sites to evaluate 

7. Integration of Crown Castle’s notes and recommendations as presented on March 

20, 2012. 

8. Staff recommendations for each site 

9. Blank column for City Council notes and direction 

10. Key to table colors and scoring system 

The scoring system is intended to be used as one possible tool for evaluation of sites, but 

is not necessarily intended to be the final arbiter of acceptability of any given site. The 

scoring system deals in generalities, and is not weighted. As each site is unique, the 

Council may still wish to proceed with some sites that score low, or vice versa. 

Recommendations 

The staff recommendations in the attached table are divided into the following three 

categories: 

1. Intent to Approve. For these sites, the City Council would be indicating their 

intent to approve, but formal approval would not occur at this time. Staff would 

return with findings and conditions for approval of these sites with equipment as 

specified in the table in attachment 2 at a future City Council hearing date 

commensurate with ordinance amendments and lease agreements. The conditions 

of approval would include site specific details of permitted equipment, design, 

dimensions, colors, and ancillary equipment. This recommendation applies to site 

#s: 1, 3, 6, 7, 10, 11, 13, 14, 15, 17, 21, 22, and 24 for a total of thirteen sites. 


2. Evaluate Site Options. Staff has identified those sites which we believe could 

benefit from assessment of alternative locations either on City owned property or 

alternative street light poles in the vicinity. Detailed analysis by the applicant, in 

conjunction with staff, would need to be performed to determine viability of these 

suggested alternative sites. In some instances, such as City well and water tower 

sites, additional internal discussion would also need to occur with the City Public 

Works Department to ensure no conflicts with city operations of these facilities. 

Additional neighborhood outreach would be conducted to inform potentially 

affected residents of any alternatives that may be brought back before the City 

Council for consideration at a future City Council meeting date. This 

recommendation applies to site #s: 2, 5, 9, 12, 16, 20, 23, and 25 for a total of 

eight sites. 

3. Deny Without Prejudice. These sites would be denied, but the applicant would 

have the opportunity to re-submit a new application(s) for consideration by the 

City without the typical requirement that at least one year transpire before doing 

so. This recommendation applies to site #s: 4, 8, 18, and 19 for a total of four 

sites. 

Details of the recommendations for each site are included in attachment 2. These 

recommendations are intended to be a starting point for City Council discussions. 

Ultimately, the City Council makes the final determination on the project as a whole and 

for each individual site. 

Electrical Meters Update 

Staff is making progress on discussions with PG&E on possible electrical meter options. 

PG&E has expressed a strong desire and interest to assist the City and applicant in 

developing a flat rate structure that would not require meters. Staff will continue to work 

with PG&E and the applicant to come to formal resolution to the electrical service 

requirements before returning to the City Council with findings and conditions. 

Attachments 

1. Court Case Summary 

2. Updated Site Evaluation Table 

3. Potential Denial Findings 


ATTACHMENT 1 

SUMMARY OF CASES 

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March 27, 2012 

As requested at the 3/20/12 City Council meeting, following is a summary of nine 

selected cases involving challenges to permit denials for wireless telecommunication facilities. 

There are many cases throughout the country on similar issues. The majority of the cases involve 

causes of action under the federal Telecommunications Act of 1996 (“TCA”). The Sprint PCS 

Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 725 (9th Cir. 2009), summarized on 

pages 6-7, below, is one of the few that discusses both the TCA and the state laws, Public 

Utilities Code (“PUC”) §§ 7901 and 7901.1, which are at issue in evaluating Crown Castle’s 

application. The last three cases are pending actions in state and federal court involving DAS 

permit applications. 

The “take away” from these cases is that each case turns on the specifics of each 

application and the impact on the respective communities. However, both “time, place, and 

manner control” under PUC §§ 7901 and 7901.1 and the TCA allow the City to consider how its 

public rights-of-way (PROW) are accessed. Specifically, the Council may consider: 

o Visual and aesthetic impacts of each proposed WTF site and whether the 

proposals are compatible with neighborhoods (including proliferation of such 

facilities in the PROW); 

o Whether a particular site would “incommode the public use” of roads and 

highways; 

o Whether there are alternative sites within the PROW that would be less 

aesthetically intrusive; 

o Property values may be considered, though such evidence carries more weight if 

grounded in aesthetic impacts at particular sites or if supported by expert analysis. 

Denial findings based on lower property values attributed to RF concerns would 

likely be rejected by a court given federal preemption of RF limits; 

o Aesthetic grounds for denial must be based on the specifics of each site – blanket 

aesthetic objections to wireless facilities in general will probably not be sufficient 

to withstand a legal challenge. As such, many of the cases where the 

municipalities have been successful involved a mix of approvals and denials 

grounded on the specific aesthetic attributes of each proposed site; and 

o Time limits must adhered to – FCC Shot Clock and, where applicable, the Permit 

Streamlining Act. 

FEDERAL CASES - TCA 

308 F. Supp. 2d 1148 (2003) – 

ATT applied for a CUP to place a “stealth” wireless antenna site on residentially zoned 

property in the City of Carlsbad. The city denied the CUP and ATT filed suit alleging 


the city violated the TCA because the city’s findings were not supported by substantial 

evidence. The proposed site at issue would include 6 antennas and a radio base station 

housed on privately owned property. 

o The antennas and base station were designed to look like part of the existing 

house – incorporated into chimney designs. The design was modeled on a very 

similar cell site owned by Pac Bell located on a house a block away. 

o At the Planning Commission hearing, 16 residents testified in opposition to the 

application, 10 of whom expressed concerns over the health effects that RF 

emissions would case despite having been informed that health effects could not 

be considered. Id. at 1153. Residents also testified about aesthetic concerns, 

whether alternative sites had been considered, and over the area becoming 

“antenna alley.” Id. Additionally, more than one resident expressed concern over 

property values decreasing based on possible health effects from the cell site’s 

RF emissions. 

o The PC denied the CUP application on the expressed concerns of the residents 

(e.g., aesthetics, commercialization, decrease in property values, etc.). Id. at 

1154. ATT appealed the denial to the city council and the city council affirmed 

the denial following public testimony which again included concerns over 

unknown cumulative health effects caused by RF emissions. The city attorney 

advised that RF emissions could not be considered and the mayor then asked 

residents about aesthetic concerns to which the response was that there was a 

“philosophical” opposition to the aesthetics of the additions, although the 

additions could not be seen from the road due to the property’s elevation. Id. 

o Between the hearing at which the city council voted to deny the CUP, but before 

the adoption of the written findings, the city adopted a policy regarding cell sites 

that required an applicant to demonstrate that no feasible alternatives in nonresidential 

locations existed. 

Among other claims, AT&T asserted the city violated the TCA because the denial was 

not supported by substantial evidence. The court concluded that “concern over the 

decrease in property values may not be considered as substantial evidence if the fear of 

property value depreciation is based on concern of the health effects.” Id. at 1159. 

“Thus, direct or indirect concerns over the health effects of RF emissions may not serve 

as substantial evidence to support the denial of an application. Accordingly, when public 

testimony in the record ‘is almost exclusively directed to health effects, there must be 

substantial evidence of some legitimate reason for rejecting the applications to avoid the 

conclusion that the denials were based on the impermissible health effects ground.” Id. 

at 1159-60 (quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 495 

(2d Cir. 1999)). 

o The court rejected the stated grounds for denial because the record was replete 

with concerns about health effects while there was only a general or 

“philosophical” concern regarding aesthetics and lack of compatibility with the 

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neighborhood. Id. at 1160-61. There was no evidence of potential neighborhood 

saturation as there was no evidence in the record that other cell providers were 

seeking to site in the area. Similarly, while the issue of noise was raised, the city 

planning department found that the noise would not be intrusive and ATT agreed 

to insulate the faux garage to alleviate noise concerns. Id. at 1162, fn. 45. 

o The court refused to consider the policy adopted after the city council hearings 

concluded since there was no evidence, despite the city’s assertions to the 

contrary, that the policy simply reflected long standing, unwritten, city policies 

regarding siting of cell sites. Id. at 1164. 

o “While several residents testified to having adequate cell phone coverage in the 

relevant area, a review of the record shows that only two residents stated they 

subscribed to ATT. While the residents’ statements are evidence that the city 

should consider, two statements that ATT does have adequate coverage does not 

reach the level of substantial evidence especially in light of the contrary 

testimony by ATT’s engineer that a coverage gap exists in the area.” Id. at 1164. 

o “In sum, having review the administrative record the court cannot reasonably 

conclude that the evidence supporting the denial decision was substantial 

especially in light of the high degree of attention drawn to the concern over 

health effects of RF emissions by the residents, planning commission, and city 

council. Therefore, the city’s decision in denying ATT’s applications violated § 

332(c)(7)(B)(iii) and (c)(7)(B)(iv) and cannot stand.” Id. at 1165. 

REMEDY: The court granted ATT’s request for administrative mandamus requiring the 

city to grant the CUP application. Id. at 1167-68. 

T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009) 

T-Mobile applied for a permit to construct a wireless telecommunications facility at a 

church site. The permit application analyzed 18 site alternatives and proposed 

construction of a 116-foot monopole with three antennas a the top. 

o The planning commission denied the application and T-Mobile appealed to the 

city council. 

o On the basis of witness testimony and other evidence, the city council denied the 

permit – adopting written findings, including the following: 

Monopole would have a commercial appearance. 

Detract from the residential character and appearance of the surrounding 

neighborhood. 

Not be compatible with the character and appearance of the existing 

development in the vicinity, primarily comprised of single-family 

residences. 

Negatively impact the views from single-family residences in the vicinity 

of the proposed site. 

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The Ninth Circuit rejected T-Mobile’s challenge that the permit denial violated the TCA 

because the findings were not supported by substantial evidence. To the contrary, the 

Ninth Circuit concluded there was substantial evidence based on the city’s aesthetic 

considerations in the record – e.g. proposed WTF would have a “commercial appearance 

and would detract from the residential character and appearance of the surrounding 

neighborhood;” that it “would not be compatible with the character and appearance of the 

existing development;” and that it would “negatively impact the views” of residents.” Id. 

at 980-90. 

o Legitimate local concerns in considering siting of wireless telecommunication 

facilities are height of the proposed tower, proximity to residential structures, 

nature and uses of nearby properties, surrounding topography, and foliage. Id. at 

994. 

o The city is entitled to make an aesthetic judgment as long as the judgment is 

grounded in the specifics of the case, and does not evince merely an aesthetic 

opposition to cell-phone towers in general … Accordingly, when the evidence 

specifically focuses on the adverse visual impact of the tower at the particular 

location at issue more than a mere scintilla of evidence generally will exist. 

However, the Ninth Circuit went on to hold that the city had not rebutted T-Mobiles 

showing that the denial of the application constituted an effective prohibition of services 

under the TCA (i.e., that the site was needed to close a significant gap in coverage and 

was the least intrusive means of closing that coverage gap). 

o The city had identified several potential alternative sites, but T-Mobile rebutted 

the availability of those sites. Some of the proposed sites would have required 

two sites instead of one due to geographical constraints and a proposed school 

sites were too speculative to be considered as viable alternatives given previous 

unsuccessful siting efforts at such sites. 

o The city also proposed another two-site alternative at its city water tower and 

another communication tower, but T-Mobile presented evidence that the two-site 

alternative presented more environmental impacts costs and the city was unable 

to present any evidence concerning the availability of the communications tower. 

REMEDY: The Ninth Circuit affirmed the district court’s entry of judgment in favor of 

T-Mobile and its order directing the city to issue the permit to T-Mobile. 

FEDERAL CASE - TCA & PUC 7901/7901.1 

Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 725 (9th Cir. 2009) 

Sprint applied for 10 permits to construct wireless telecommunications facilities in the 

city’s PROW. The city granted 8 permit applications, but denied 2 others. As for the 

two that were denied, one proposed site was on a narrow residential street (Via Azalea) 

and the other was proposed along one of the four main entrances to the City (Via 

Valmonte). 

o Via Azalea Findings for Denial: 

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WTF would disrupt the “residential ambiance” of the neighborhood and 

the “attractive streetscape.” 

Residents described value of streets as going beyond transit to aesthetics -public 

comments emphasized that people moved to RPV for its aesthetics 

and counted on the city to protect its unique beauty with the abundance of 

trees, absence of sidewalks, even lack of street lighting. 

o Via Valmonte Findings for Denial: 

WTF would detract from the natural beauty that was valued at that main 

entrance to the City. 

Proposed site was at location adorned with a historic stone wall and 

bordered a park. 

“Cherished for its rural character, and valued for its natural, unspoiled 

appearance, rich with native vegetation.” 

The Ninth Circuit concluded the city’s denial of the 2 permits discussed above was 

supported by substantial evidence under the TCA, but that there were disputed issues of 

material fact as to whether the denial constituted a prohibition on the provision of 

wireless services under the TCA and remanded for further proceedings in the trial court 

on the prohibition of service claim. 

o However, the Ninth Circuit also concluded that the California Constitution gives 

the city the authority to regulate local aesthetics, and neither PUC 7901 nor PUC 

7901.1 divests the city of that authority. 

FEDERAL CASE RE TIMING ISSUES 

In re Cell Tower Litigation, Case No. 07cv399, US District Court, Southern District of 

California (Aug./Sept. 2011) 

Plaintiff American Tower Corporation (“ATC”) owned two 90 foot telecommunications 

towers and associated buildings at the so-called “Border site” and “Versus site” in San 

Diego, as well as a 180 foot lattice tower and associated buildings at “Mission Valley 

site.” Telecom providers like T-mobile leased these sites. The sites were operated 

pursuant to CUPs issued in 1995 and 1996 for 10 years. The CUPs did not provide for 

extensions or renewals and instead expressly required the submission of new CUP 

applications. 

o The CUP applications were denied based in large part on aesthetic findings. For 

example, the Versus site CUP was denied because the city found that the tower 

was the tallest structure in and around the area, resulting in an incongruous effect 

on the community landscape and that it posed an unsightly visual impact for 

commuters because the site was situated prominently along a the major I-5 

transportation corridor. 

ATC asserted several claims under the TCA: unreasonable delay, unreasonable 

discrimination, and effective prohibition. ATC also asserted dormant commerce clause 

and equal protection constitutional claims, as well as state law vested right and Permit 

Streamlining Act claims. As to the TCA claims the district court granted summary 

judgment in favor of the City. 

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o Unreasonable Delay – The court rejected that there was an “unreasonable delay” 

under the TCA simply because the application was not processed within the state 

law Permit Streamlining Act’s timelines. The court explained that the TCA only 

requires local governments to act within a “reasonable period of time” and does 

not preclude lengthy extensions of time. 47 U.S.C. § 332(c)(7)(B)(ii). 

o Unreasonable Discrimination – The TCA prohibits unreasonable discrimination 

among providers of functionally equivalent services. 47 U.S.C. § 

332(c)(7)(B)(i)(I). ATC argued that the city gave itself preferential treatment 

because the city has two towers relatively comparable to the ATC towers at issue. 

The city refuted such claims because the city towers were not marketed or 

advertised or otherwise in competition with ATC’s towers. To the contrary, the 

city’s towers were used primarily for emergency communications and general city 

business. The court agreed with the city, concluding ATC and the city were not 

functionally equivalent providers. 

o Effective Prohibition – ATC argued the city’s CUP denial precluded ATC from 

closing a significant gap in coverage. 47 U.S.C. § 332(c)(7)(B)(i)(II). The court 

rejected this claim, concluding that even if a significant gap existed, ATC did not 

demonstrate that its proposal was the least intrusive means, relying on evidence in 

the record that ATC refused to make any design concessions despite repeated 

requests from the city and provided no alternative options. 

The district court noted in that “the significant gap analysis is particularly 

challenging in this case because what exactly constitutes a significant 

coverage gap for a tower manager, like ATC, rather than a wireless 

services provider, like those that lease space from ATC, is not clear in the 

case law. The significant gap analysis considers whether ‘a provider is 

prevented from filling a significant gap in its own service coverage.’” 

2011 U.S. Dist. LEXIS 86844, *14, n.5 (Aug. 5, 2011). The court, 

however, went on to assume there was a significant gap in coverage, but 

that the ATC failed to demonstrate that its proposal was the least intrusive 

means of filling the significant gap. 

The court rejected ATC’s constitutional claims and its fundamental vest right claim. 

As to the Permit Streamlining Act (PSA) claim, the court found in favor of ATC and 

granted ATC’s motion for summary judgment. The court reasoned that the PSA required 

the city to approve or disapprove a project 60 days from the determination by the lead 

agency that the project was exempt from CEQA and that failure to act “shall be deemed 

approval of the permit application for the development project.” 2011 U.S. Dist. LEXIS 

96599, *28 (Aug. 26, 2011) (quoting Gov’t Code § 65956 (b)). 

o The city argued, among other things, that ATC was estopped from asserting its 

PSA claim because the parties mutually agreed to extend the time to approve or 

deny the application. The court, however, held the PSA only permitted a 90 day 

extension and the parties’ agreement specifying a deadline date beyond the 90day 

extension period because the PSA only permitted an extension that “does not 

exceed 90 days.” Gov’t Code § 65950 (b). 

o However, PSA’s automatic approval requirements do not apply to a nonlegislative 

or adjudicatory project when such permit application would require 

legislative changes in applicable general plans, zoning ordinance, or other 

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controlling land use regulations. Golden Gate Water Ski Club v. County of 

Contra Costa, 165 Cal. App. 4th 249, 258 n.3 (2008); Land Waste Mgmt. v. 

County of Contra Costa Bd. of Supervisors, 222 Cal. App. 3d 950, 959 (1990); 

Landi v. County of Monterey, 139 Cal. App. 3d 934, 937 (1983). 

o The PSA also does not apply to administrative appeals. Gov’t Code § 65922(b). 

FEDERAL TCA ACTION NOT CONTROLLING IN CALIFORNIA (NON-NINTH CIRCUIT OPINIONS) 

The following two cases are not Ninth Circuit decisions and thus do not bind federal 

courts in California. However, they are provided here because they address property 

value impacts, which is a concern several residents have raised at the public hearings, 

but has not been addressed in a published Ninth Circuit decision. Absent controlling 

Ninth Circuit authority, the courts will often look to other Circuit decisions. 

Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 590 (2d Cir. 1999) 

AT&T applied for permits to install two cell sites on existing water towers. 

At the hearing, the Town did not present evidence but instead took public comment. The 

vast majority of the public comments were addressed to perceived health threats the sites 

might pose and a petition was introduced with 640 signatures from residents opposed to 

the cell sites because of health risk concerns. Occasional remarks were made regarding 

effects on property values and/or community aesthetics. 

o “A review of the record before us of the two hearings reveals that the bulk of the 

testimony addressed citizens’ fears of adverse health effects from the cell sites. It 

is true that raising such concerns does not violate the TCA. But when the 

testimony is almost exclusively directed to health effects, there must be 

substantial evidence of some legitimate reason for rejecting the applications to 

avoid the conclusion that the denials were based on the impermissible health 

effects ground.” Id. at 495 (internal citations omitted). 

o Aesthetics – few generalized concerns “cannot serve as substantial evidence on 

which the Town could base the denials.” Id. at 496. 

o Property Values – several residents testified regarding concerns that the cell sites 

would reduce property values and a real estate broker submitted an affidavit 

stating that the presence of cell sites would depress real estate values of nearby 

property – similar to the effect caused by presence of high tension power lines. In 

response, AT&T presented a report by a real estate appraiser who found that 

water tower-based cell sites in other towns on Long Island had no impact on the 

value of nearby homes. The court concluded that regardless of whether the 

property value comments were a proxy for health concerns, “the volume and 

specificity of the comments were not adequate to satisfy the requirement of the 

substantial evidence standard.” Id. at 496. “A few generalized concerns about 

potential decrease in property values, especially in light of AT&T’s contradictory 

expert testimony, does not seem ‘adequate to support a conclusion.’” Id. 

REMEDY – the court held that an injunction ordering the Town to issue the permits was 

an appropriate remedy. 

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Michael Linet, Inc. v. Village of Wellington, Fla., 408 F. 3d 757 (11th Cir. 2005) 

The Village of Wellington, a residential community in Palm Beach County, Florida, 

denied a permit to a Florida corporation (Linet) to construct a proposed new 120 foot 

flagpole with a cellular communications antenna concealed inside on a golf course in a 

residential area. Because the height of the pole exceeded 60 feet, Linet was required to 

obtain approval from the Village before constructing the pole. Linet’s proposal was not 

well received by the Village’s residents. After a hearing reviewing the merits of Linet’s 

application, the Village, based on objections by the residents, refused to issue a permit to 

construct the pole. 

o The residents’ primary concern, voiced at a June 2003 meeting, was the impact 

the pole would have on the value of their property. Residents testified that they 

would not have purchased their homes if the pole was present and a local realtor 

testified the pole would adversely impact home resale values. 

o Linet argued that these objections were impermissible pure aesthetic or NIMBY 

objections. Linet relied on rebutting testimonial evidence that the facility would 

not lower property values. 

Linet sued the Village in federal court alleging violations of the TCA. The district court 

found in favor of the Village, concluding the permit denial was based on substantial 

evidence. The Eleventh Circuit affirmed, noting the evidence in the record from 

residents and a realtor concerning the cell site’s negative impact on real estate values and 

Linet’s failure to show that an alternative location was unavailable or unfeasible. Id. at 

762. 

o In so holding, the Eleventh Circuit noted, “A blanket aesthetic objection does not 

constitute substantial evidence under § 332. Such a standard would eviscerate the 

substantial evidence requirement and unnecessarily retard mobile phone service 

development. Aesthetic objections coupled with evidence of an adverse impact on 

property values or safety concerns can constitute substantial evidence.” Id. at 761 

(emphasis added). 

PENDING ACTIONS 

NextG Networks of California, Inc. v. City of Newport Beach, Central District of California, 

Case No. SACV10-01286 DOC (JCx) 

In August 2009, NextG submitted seven permit applications to the city for the installation 

of telecommunications facilities at seven sites within the city, all on or near Pacific Coast 

Highway. In response to the Public Notices, the City received numerous letters and 

emails from residents opposing NextG’s permit applications. The city council denied the 

five applications to install new poles on Pacific Coast Highway and approved, with 

conditions, the two applications to install equipment on existing Southern California 

Edison poles on Marcus Avenue and Santa Ana Avenue. 

NextG filed an action in federal court under the TCA alleging the city’s denial was not 

supported by substantial evidence. BB&K represented the City of Newport and the trial 

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court found in favor of the city, rejecting NextG’s challenge. 

o The trial court found substantial evidence based upon the fact that NextG was 

proposing installation of new monopoles in the PROW along the scenic Pacific 

Highway. The proposed new monopoles directly conflicted with the city’s 

municipal code, which prohibits installation of new above-ground facilities in the 

PROW where facilities are undergrounded. The trial court also concluded the city 

had substantial evidence to deny the permits based on aesthetics and detriment to 

nearby residents, property owners, and businesses. The evidence in the record 

supporting the negative aesthetic findings included photo simulations of the new 

monopoles, along with numerous communications from residents opposing the 

new monopoles on aesthetic grounds. 

CURRENT STATUS: NextG appealed to the Ninth Circuit where the action is still 

pending. However, briefing has been stayed while NextG applies for permits at 

alternative locations within the city. If those locations are approved, then the appeal will 

be dismissed. 

NewPath Networks, LLC v. City of Irvine, Case No. SAC 06-0550-JVS, Central District of 

California (filed June 12, 2008) 

NewPath filed an application for a DAS network consisting of 23 wireless 

telecommunication facilities in the Turtle Rock neighborhood in Irvine that would 

accommodate three carriers. The City denied the entire application. 

CURRENT STATUS: The case was set for trial in September 2010, but the district 

court issued an order remanding the case to the City and called for NewPath to file a 

supplement to its 2009 CUP permit application. The action is stayed pending further 

proceedings before the City, though the court has granted an extension for NewPath to 

file its supplemental application to March 28, 2012 with a further status report due May 

22, 2012. 

NextG Networks of California, Inc. v. City of Huntington Beach, Orange County Superior 

Court, Case No. 30-2009-00119646-CU-OR-CJC & Fourth District Court of Appeal, Division 3 

Case No. 

NextG applied for permits to install a DAS system within the City of Huntington Beach 

consisting of 15 nodes, as well as aerial underground fiber cable, and approximately 

8,696 feet of underground fiber cable. A portion of the project was completed, including 

installation of 8 nodes. The remaining seven nodes include three new poles. The city 

filed an action in the CPUC asserting violations of CEQA. NextG also filed a lawsuit 

against the city in the state court asserting the city’s undergrounding requirements and 

permit process violated NextG’s right to access the PROW under PUC §§ 7901 and 

82504.09001\7355456.2 - 9 - 


7901.1. 

CPUC Action (See Application of NextG Networks of California,Inc. (U6745C) for 

Authority to Engage in Ground-Disturbing Outside Plant Construction (CPUC D. 11-01- 

027 and D. 10-10-007)) – The CPUC prepared a negative declaration for NextG’s 

project. NextG also challenged NextG’s right to access the PROW under PUC §§ 7901 

and 7901.1, asserting that NextG, which like NewPath builds facilities for wireless 

providers but does not directly provide wireless services, was not a “telephone 

corporation” and that its facilities were not “telephone lines” under PUC § 7901. 

o The CPUC disagreed and concluded that NextG is a “telephone corporation” 

permitted to use the PROW pursuant to PUC § 7901 and that the CPUC granted 

NextG a CPCN as a telephone corporation. 

o The CPUC further concluded that PUC § 7901 applies to wireless carriers, as well 

as wireline carriers, because the definition of a “telephone line” is broad enough 

to reach wireless equipment. 

o According the CPUC, the applicability of PUC § 7901 is a determination that lies 

exclusively with the CPUC in its regulation of telephone corporations (i.e., the 

CPUC asserts it has exclusive jurisdiction to decide applicability of PUC § 7901). 

o The validity of the CPUC’s decision is now pending before the Fourth District 

Court of Appeal, Division 3 (Court of Appeal Case No. G044796). 

State Court Action – NextG challenged the city’s application of its undergrounding and 

permitting requirements to NextG under PUC §§ 7901 and 7901.1. The city likewise 

challenged NextG’s authority to access the city’s PROW under PUC § 7901. 

o In February 2011, the trial court agreed with the CPUC’s ruling that NextG was a 

“telephone corporation” and that its wireless facilities were “telephone lines” 

pursuant to PUC § 7901. 

o The Court of Appeal stayed the trial court action pending resolution of its review 

of the CPUC’s decision in Case No. G044796 (see Court of Appeal Case No. 

G045030). A status conference is currently set in the trial court for April 13, 

2012. 

82504.09001\7355456.2 - 10 - 







82504.09001\7364098.1 

ATTACHMENT 3 

At the 3/20/12 City Council meeting, the Council requested draft findings. Attached are 

illustrative finding examples to assist the Council. The first set of findings are those adopted by 

the Planning Commission on February 8, 2012. The second set is similar with respect to the 

denial findings, but also incorporates potential approvals as well. As noted in the Summary of 

Cases, any denial findings must be based on the specific characteristics of each site, general or 

blanket aesthetic objections are generally not sufficient. These illustrative findings are being 

provided to assist the Council as it considers the proposed sites and the evidence before it, taking 

into consideration such factors as the following: 

Presence of existing overhead utilities; whether a site is in an underground district 

or the new proposed site would introduce a new vertical element to the area; 

Characteristics of the neighborhood and the type of PROW the site is proposed at 

(e.g., arterial, collector, or local street); 

Visibility of site and proximity to residences; 

Availability of viable alternative sites; and 

Type of antenna design (e.g., multiple carrier canister, tri-sector, or whip). 










82504.09001\7363642.2 

DRAFT FINDINGS – Partial Denial/Approval 

Whereas, the California Public Utilities Commission (“CPUC”) designates NewPath as a 

“competitive local exchange carrier” (“CLEC”). A “CLEC” is a telecommunications provider 

that competes with the already established local telephone providers (known as “incumbent local 

exchange carriers,” or “ILECs”) by providing its own network and switching. 

Whereas, NewPath has a Certificate of Public Convenience and Necessity (“CPCN”) issued by 

the CPUC to provide full-facilities competitive local exchange and access state-wide. 

NewPath’s CPCN was most recently modified by the CPUC on April 13, 2006. NewPath’s 

CPCN is not site-specific; rather, it applies state-wide. 

Whereas, NewPath provides service to wireless communications carriers through the use of a 

distributed antenna system (“DAS”), which is comprised of a distributed array of antennas 

individually connected to a central hub. Communications to and from wireless subscribers are 

picked up at the antennas and transmitted through fiber optic cable to the central hub, where they 

are “handed off” to NewPath’s clients, who are one or more wireless carriers. 

Whereas, NewPath is essentially a “wholesale” provider of wireless facilities for wireless service 

providers, like MetroPCS. 

Whereas, NewPath submitted an application in 2009 to construct a DAS facility in the City of 

Davis. Staff issued NewPath 37 encroachment and related building permits to construct its DAS 

facility. On December 5, 2009, the City Manager rescinded all 37 permits on the grounds that 

(1) NewPath did not comply with the City’s Wireless Telecommunication Facilities Ordinance, 

DMC, Article 40.29 (“Wireless Ordinance”); (2) the permits for ground based fiber and conduit 

relied on the location of wireless facilities that had not been approved and may not have met 

location requirements for wireless facilities in the City’s ordinances; (3) other permits relied on 

access to public property that is not within public rights of way with permitted access; and (4) 

certain of the proposed poles and other above-ground facilities are proposed for locations that do 

not permit above ground facilities. 

Whereas, NewPath subsequently filed suit against the City on January 28, 2010 in the United 

States District Court, Eastern District of California (Case No. 2:10-cv-00236-GEB-DAD) and 

sought a preliminary injunction allowing it to proceed with its DAS project. The Court denied 

NewPath’s motion on or about March 19, 2010. 

Whereas, the City also filed a complaint against NewPath with the CPUC on March 23, 2010 

(CPUC Case No. 10-03-011), alleging violations of CEQA and violations of NewPath’s 

November 2009 Notice to Proceed (“NTP”) issued by the CPUC. 

Whereas, the parties agreed to stay NewPath’s federal court case and the City’s CPUC case to 

allow NewPath to file a new application for a revised DAS project that would go through a 

conditional use permit process, including consideration by the Planning Commission and the 

City Council. 

Whereas, NewPath has since been acquired by Crown Castle. 

- 1 - 


Whereas, Crown Castle filed an application on May 18, 2011 for DAS network consisting of 25 

nodes. The application was deemed complete by City staff on July 15, 2011. 

Whereas, the City Council approved installation of three demonstration sites with mock-up of 

nodes at the following sites: 

a. Site #5 

b. Site #24 

c. Site #22 

Whereas, the Planning Commission held a public hearing on August 3, 2011 to consider the 

Crown Castle conditional use permit application, along with a proposed amendment to the City’s 

Wireless Ordinance, and received public comments on the proposal. To afford opportunity for 

the applicant and staff to respond to Commission questions and information inquiries on 

alternatives to the proposed sites and alternative designs, the Commission continued the hearing 

to September 14, 2011. 

Whereas, the hearing was continued twice and the continued public hearing was held on October 

12, 2011. On the day of the hearing, October 12, 2011, Crown Castle submitted additional 

antenna system and design options for consideration. At the October 12, 2011 hearing, the 

Planning Commission received public comment and continued the hearing to afford the Crown 

Castle an opportunity to submit appropriate detailing of the options and to afford review of the 

additional options presented. 

Whereas, on November 10, 2011, Crown Castle submitted a “Supplement” to it May 18, 2011 

Application with revised application/designs for tri-sector and whip antenna options. The City 

requested further information on the supplemental application to move the application forward. 

Crown Castle provided the requested information to the City on December 14, 2011 at which 

time the supplemental application was deemed complete. 

Whereas, the Planning Commission held a third public hearing on January 25, 2012 to consider 

the entirety of the Crown Castle application, inclusive of all siting and antenna and equipment 

design options presented to date. The Commission received public comment at the January 25 th 

hearing and deliberated on the merits of the proposed project. 

Whereas, the Planning Commission voted 4-3 to recommend denial of the Project following the 

public hearing and Commission deliberation on January 25, 2012 and further directed staff to 

return with findings for denial on February 8, 2012. 

Whereas, Crown Castle appealed the Planning Commission’s recommendation on February 2, 

2012. The Planning Commission adopted the findings on February 8, 2012. 

Whereas, the proposed sites generally fall into three different categories: 

a. Installations on existing wood, joint utility poles (Sites #1, 10, 11, and 15); 

b. Installations of new stand-alone wooden poles previously installed but not operational 

(Sites #13 and 14); and 

- 2 - 

82504.09001\7363642.2 


c. Installation of replacement street lights with canisters encasing the antennas atop the 

new street lights. 

Whereas, the Telecommunications Act of 1996 (“TCA”), Pub. L. No. 104-104, 110 Stat. 56 

prohibits any local government from “regulat[ing] the placement, construction, and modification 

of personal wireless service facilities on the basis of environmental effects of radio frequency 

[“RF”] emissions to the extent that such facilities comply with the [FCC’s] regulations 

concerning such emissions.” § 704(b); 47 U.S.C. § 332(c)(7)(B)(iv); MetroPCS, Inc. v. City & 

County of San Francisco, 400 F.3d 715, 736-37 (9th Cir. 2005). Accordingly, purported health 

effects and public comments related to RF emissions were not considered by the Planning 

Commission in making its recommendation to the City Council. 

Whereas, the Planning Commission must make the following findings required for issuance of a 

conditional use permit: 

1. The purpose of a conditional use permit is to allow a proper integration into the 

community of uses which may be suitable only in specific locations in a zoning district, 

or only if such uses are designed or laid out in a particular manner on the site or lot. 

DMC 40.30.010. 

2. In considering an application for a conditional use or nonconforming use, the planning 

commission or city council shall give due regard to the nature and condition of the 

proposed or existing use and all adjacent uses and structures. DMC 40.30.030 

Whereas, for wireless telecommunications facilities, the Planning Commission must also make 

the following additional findings (DMC 40.29.170): 

1. The proposed telecommunications site/facility has been designed to minimize its visual 

and environmental impacts, including the utilization of stealth technology, when 

applicable. 

2. The proposed site has the appropriate zoning, dimensions, slope, design, and 

configuration for the development of a telecommunication site/facility. 

3. That general landscaping considerations as outlined in Section 40.29.130, when 

applicable, have been complied with to complement the structures and antennae, provide 

an attractive environment and preserve natural features and elements. 

4. Based on information submitted, the proposed telecommunications site/facility is in 

compliance with all FCC and California Public Utilities Commission (PUC) 

requirements. 

5. The applicant has demonstrated and confirmed, by independent evaluation of the city, 

that the site/facility is necessary to address current demand capacity or other technical 

limitations of the system in order to maintain service levels. 

Now therefore, the City Council of the City of Davis, does hereby find as follows: 

82504.09001\7363642.2 

- 3 - 


82504.09001\7363642.2 

FINDINGS FOR DENIAL OF SITES # _____________ 

With respect to these sites, the Planning Commission cannot find that (1) the purpose of a 

conditional use permit is to allow a proper integration into the community of uses which may be 

suitable only in specific locations in a zoning district, or only if such uses are designed or laid 

out in a particular manner on the site or lot; (2) the nature and condition of the proposed use 

would be consistent with the adjacent uses and structures; (3) the proposed telecommunications 

site/facility has been designed to minimize its visual and environmental impacts, including the 

utilization of stealth technology, when applicable; (4) the proposed site has the appropriate 

zoning, dimensions, slope, design, and configuration for the development of a 

telecommunication site/facility; or (5) general landscaping considerations as outlined in Section 

40.29.130, when applicable, have been complied with to complement the structures and 

antennae, provide an attractive environment and preserve natural features and elements. 

Any one of the following findings would support denial of these sites. 

1. The City has an obvious interest in protecting the character and visual fabric of its 

neighborhoods. See Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 724 

(9th Cir. 2009) (recognizing that the public rights-of-way form the “visual fabric from which 

neighborhoods are made”). Wireless providers can access a city’s rights-of-way “in both 

aesthetically benign and aesthetically offensive ways.” Id. at 725. “It is certainly within a city’s 

authority to permit the former and not the latter.” Id. 

2. The City of Davis is a progressive community noted for its small-town style, energy, 

conservation, environmental programs, parks, preservation of trees, and plethora of bicycles. 

Pertinent to the Commission’s consideration, the City has since approximately 1971, with very 

few exceptions, encouraged undergrounding of utilities and prohibited above-ground utilities in 

new subdivisions. See, e.g., DMC § 36.09.020(g) (including undergrounding of utilities, subject 

to limited exceptions, amongst required subdivision improvements); see also DMC § 38.01.0 

(procedures for establishing an underground utility district); DMC § 8B.02.130 (requiring cable 

and communications operators to underground aerial facilities in underground areas). For those 

limited projects where undergrounding is infeasible, such as high voltage wires, the City has 

restricted the location of such utilities to particular rights of way, generally outside residential 

areas, the historic downtown, scenic corridors and wildlife preservation areas to limit the 

aesthetic and other environmental impacts. 

3. The City has planned and constructed its neighborhoods to achieve an attractive appearance 

that minimizes the number of utilities and related equipment and regulates the appearance and 

location of utilities and related equipment.. 

4. Crown Castle has proposed pole-mounted Wireless Telecommunications Facilities (WTF’s) 

on replacement streetlight poles throughout the City, but primarily in the City’s residential areas, 

and in many cases, less than 30 feet from homes, which detract from the visual appearance of 

streetscape. 

- 4 - 


In particular, sites 3, 4, 6, 9, and 13 are located within 80 feet of residences; sites 5, 7, 19, and 22 

are within 50 feet of residences; and sites 8, 12, 16, 18, 20, and 25 are within 30 feet of 

residences. Sites 4, 6, 16, 20, and 22 are in close proximity to residences with second stories and 

would be visible to the residents from their bedroom windows. Such obstructed residential view 

sheds are counter to City’s aesthetic goals. 

The proposed WTF’s are far from stealthed, extending 6 to 9 feet about the street light fixture 

and consisting of large industrial canisters that are wider in diameter that the light poles that they 

replace. The antennas make the street lights far more visible and draw more attention and will 

reduce the aesthetic quality of the neighborhoods. 

The proposed sites include not just the antenna canister at the top, but also include large 

electrical meters at a height of approximately six feet off the ground that draw further attention to 

the DAS sites. 

At all three public hearings, in addition to the substantial written comments submitted by 

members of the public, including two petitions (one with 130 signatures, and another with over 

500 signatures) both citing aesthetic incompatibility, substantial oral public comments were 

submitted as follows: 

August 3, 2011: 21 public commenters, with 20 of them speaking in opposition to the 

proposal raising concerns which include, among other topics, negative aesthetic concerns 

October 12, 2011: 20 public commenters, with 20 of them speaking in opposition to the 

proposal raising concerns which include, among other topics, negative aesthetic concerns 

January 25, 2012: 29 public commenters, with 29 of them speaking in opposition to the 

proposal raising concerns which include, among other topics, negative aesthetic concerns. 

5. Sites #_______________ establish unwanted precedent for new intrusions in the Public 

Right of Way (PROW) that are not stealthed, but are clearly identifiable as utilities with an 

unwanted industrial appearance in residential neighborhoods. These sites would instead be going 

backwards, against many years of undergrounding efforts, for neighborhoods like Wild Horse 

and Village Homes where there are very limited vertical elements, if any. Where there are 

vertical elements, like street lights, there is a uniformity to them. The particular street lights 

within a neighborhood are the same type, height, and color. For instance, in West Davis where 

proposed Sites #2, 3, 4, and 5 are located, the street lights are 30’ high cobra head street lights. 

The proposed Crown Castle DAS node destroys that uniformity with the bulky canister 

extending an additional 10’ above the street light, thereby increasing the height of the vertical 

element by 30%. The large canister catches the eye because it varies significantly from the 

neighboring vertical elements – disrupting the aesthetics of neighborhoods. 

For example, site #8 introduces an unnecessary new vertical element to the neighborhood and 

would introduce new lighting where light levels are adequate. Vegetative cover and/or 

background is insufficient to help screen the proposed facility, as proposed. Furthermore, site #8 

82504.09001\7363642.2 

- 5 - 


is located in an area where there is a concentration of other approved DAS nodes are within close 

proximity of less than ¼ mile radius, and therefore inconsistent with Section 40.29.070 (g)(6) of 

the City Telecommunications Facility Ordinance, as amended. 

For further example, site #19 would replace the decorative “acorn” style low profile light fixture 

with a new, taller light pole. This location is the entry point into the neighborhood on La Paz 

Drive, south of El Macero Drive, and this location marks the start of the use of decorative light 

poles from this point south into the neighborhood. A two story home is directly across the street 

from this light pole and a taller light pole would bring the light fixture up to the level of the 

second floor windows, impacting views from that residence. The designs submitted present too 

much of a departure from the design theme of the street light poles in the neighborhood. 

To summarize, Sites # _______________ are not compatible with the character and appearance 

of the existing development in the vicinity, comprised primarily of single-family residences. 

6. Significant Gap in Coverage: The Planning Commission does not find that there is a 

significant gap in coverage. Crown Castle has provided some information regarding 

MetroPCS’s purported gap, but MetroPCS – the actual wireless provider – has not appeared 

before the City asserting a gap or confirming the existence of a coverage gap requiring all 25 

proposed nodes. In fact, MetroPCS’s own website as of October 4, 2011, describes its signal 

strength in most areas of Davis as “Best” – which it defines as “areas covered by signal strength 

sufficient for most ‘in building’ coverage.” 

7. Least Intrusive Means / Alternatives: Even assuming a significant gap in coverage exists, 

Crown Castle has not come forward with the least intrusive means for covering the purported 

gap. Despite ongoing efforts to work with Crown Castle and resolve concerns about the 

aesthetics of the proposed street light nodes, Crown Castle has not provided the City with any 

alternatives that adequately address the City’s aesthetic concerns. 

a. Most of the proposed alternatives continue to include options that substantially 

increase the height of the existing street lights – extending four to eleven feet above 

the height of the street light. 

b. Options for Crown Castle’s proposed network are designed to accommodate multiple 

carriers, but as of now only has one committed tenant, MetroPCS. As such, the larger 

canister and tri-sector pipe antenna designs are unnecessary at this time since Crown 

Castle does not know when, or even if, additional tenants will utilize these nodes. 

While these larger antenna options may accommodate additional carriers, there is no 

guarantee that those carriers will, in fact, agree to utilize the system. Therefore, these 

larger antenna options are an unnecessary visual intrusion. 

c. The smaller four foot tall “whip” antenna design, while smaller in scale than the 

above mentioned options, accommodates only one carrier. As such, the City must 

take into consideration the cumulative effects of future such applications that would 

undoubtedly result in a proliferation of these aesthetically incompatible antennas 

throughout the City. Where there is already concern about the visual incomparability 

of these designs, the incompatibility is only exacerbated when considered at the 

- 6 - 

82504.09001\7363642.2 


g. While corrected several months later, the demonstration sites were not originally 

constructed in accordance with the construction plans and photo simulations 

submitted. The demonstration sites have proven to be more visually obtrusive than 

- 7 - 

82504.09001\7363642.2 

cumulative level with additional such future proposals and potential proliferation of 

facilities in the PROW. 

d. Design alternatives proposed by Crown Castle on October 5, 2011 include 

introduction of new vertical elements, in the form of either a new “steeple”, “tapered 

cone,” “full canister,” or “single build” design that are not in character with the 

existing vertical elements. The proposed “steeple” design bears no relationship to 

existing utility or architectural elements within Davis neighborhoods and is 

significantly out of place. The proposed “tapered cone” design bears no relationship 

to existing utility or architectural elements, save for one very small portion of South 

Davis where existing electrical transformers exist atop utility poles. The proposed 

“full canister” design would extend the length of the pole-top cylinder by an 

additional three feet, for an added total height of 9 feet to existing 29 to 30 foot tall 

streetlight poles. The applicant purports that the proposed “single build” design 

provides a “narrow, lower profile canister” when in fact the canister is the same 

height (72 inches tall), but wider (19.5 inches diameter vs. 16 inches diameter) than 

the original proposed canister. Introduction of such new vertical elements is contrary 

to the City’s long efforts to underground utilities and minimize vertical elements that 

detract from the scenic and tree-lined streets of the residential neighborhoods. 

e. The Commission is not convinced that the antenna design options presented by 

Crown Castle represent the smallest, least intrusive, design options possible. This is 

demonstrated by the fact that even smaller antenna designs have been incorporated in 

other communities as demonstrated in the October 12, 2011 staff report. The design 

alternatives presented by Crown Castle are considered by the Commission to be 

“ugly” and “obtrusive”. 

f. Crown Castle has refused to evaluate, and summarily dismissed consideration of 

possible sites for co-location of their proposed facilities with nearby “macro” 

telecommunications facilities by stating that they intend to maintain a presence in the 

PROW. Several suggested co-location alternative sites were suggested by Planning 

Commissioners at the August 3, 2011 hearing that the Commission believed would 

serve the needs of the proposed network, while being more visually compatible with 

the community. These included sites: 2, 4, 8, 9, 11, 12, 13, and 23. Although Crown 

Castle wants to utilize NewPath’s CPCN to access the PROW, there are other 

alternatives that may also be available outside of the PROW that would not be as 

physically and aesthetically intrusive in residential neighborhoods with underground 

districts. Crown Castle provides a variety of wireless location services to its 

customers, including sites outside of the PROW, e.g., private rooftops, locations in 

commercial and retail centers, and locations on public properties. Such alternatives in 

non-underground, non-residential sites were suggested, [site specific site # from 

Attachment #2], but dismissed by Crown Castle simply because the alternative site 

was outside of the PROW. 


9. The project, as conditioned, conforms to the City of Davis General Plan, the zoning in which 

the project is located, and the City of Davis Zoning Code, as amended. 

- 8 - 

82504.09001\7363642.2 

advertised with antennas that project out (as opposed to being flush-mounted), 

external conduit, larger/bulkier equipment, and not as streamlined in appearance as 

the photo simulations suggest. Such issues call into question whether the photo 

simulations of alternatives are accurate or reliable in relation to what would actually 

be constructed. 

8. In addition, the Planning Commission cannot find that (1) based on information submitted, 

the proposed telecommunications site/facility is in compliance with all FCC and California 

Public Utilities Commission (PUC) requirements; or (2) the applicant has demonstrated and 

confirmed, by independent evaluation of the city, that the site/facility is necessary to address 

current demand capacity or other technical limitations of the system in order to maintain service 

levels. [See Findings #7 and 8 above]. 

[Incorporate Findings from Attachment 2 re Specific Sites] 

FINDINGS FOR APPROVAL OF SITES # _____ 

Findings: 

1. The proposed telecommunications site/facility has been designed to minimize its visual and 

environmental impacts, including the utilization of stealth technology, when applicable. 

2. The proposed site has the appropriate zoning, dimensions, slope, design, and configuration 

for the development of a telecommunication site/facility. 

3. The general landscaping considerations as outlined in Section 40.29.130, when applicable, 

have been complied with to complement the structures and antennae, provide an attractive 

environment and preserve natural features and elements. 

4. Based on information submitted, the proposed telecommunications site/facility is in 

compliance with all FCC and California Public Utilities Commission (PUC) requirements. 

5. The applicant has demonstrated and confirmed, by independent evaluation of the City, that 

the site/facility is necessary to address current demand capacity or other technical limitations 

of the system in order to maintain service levels. 

6. The type and size of the proposed antenna(s) is consistent with the provisions of the 

Telecommunication Facilities Ordinance, as amended. 

7. The proposed array does not include a microwave dish greater than one (1) meter in 

diameter. 

8. The combined EMR for all arrays does not exceed state or federal standards. 


10. All conditions and requirements deemed necessary and in the public interest have been or 

will be met as they have been imposed on the application approval to reduce the impact of 

the use on adjacent properties and vicinity. 

11. The proposed use will not constitute a nuisance or be detrimental to the public welfare of the 

community. 

12. The proposed use will not have a detrimental impact on traffic circulation. 

13. The proposed Wireless Transmission Facilities comply with the standards of Section 

40.29.070(g). 

14. The cumulative visual impacts of sites #14 and #17 exceed the 40 foot height established in 

Section 40.29.070(g)(4) but are acceptable in that the cumulative visual impacts are not 

significant, based on the particular locations and topography, and that the Wireless 

Telecommunication Facility is necessary to provide services not possible with co-location on 

an existing tower or structure in the service area. 

15. The proposed use, as conditioned, is consistent with all requirements of Telecommunication 

Facilities Ordinance No. 2155, as amended. 

82504.09001\7363642.2 

[Incorporate Findings from Attachment 2 re Specific Sites] 

Conditions: 

1. Approval. This approval is for a Conditional Use Permit to construct six (6) Distributed 

Antenna System (DAS) Wireless Telecommunications Facilities and associated ground 

equipment and cable infrastructure located at various locations in the City as described in 

the table below and more specifically described with site plans, elevations, and 

specifications in the application materials submitted to the City on July 13, 2011. 

Site # Location 

Description 

- 9 - 

Type 

(e.g., streetlight, existing 

joint utility pole, new 

monopole) 

2. Conformance to Plans. The project shall be in substantial conformance to the project plans 

submitted to the City on July 13, 2011 or as modified herein. Any significant deviation 

from those plans shall require a separate conditional use permit. 


3. Subject to Further Agreements. Approval of all sites is subject to securing appropriate lease 

agreements as may be necessary to utilize City conduit prior to installation of any 

equipment. Approval of sites #14 and #17 is subject to securing lease agreements with the 

City of Davis prior to installation of any equipment. 

4. Modifications to Specific Sites. 

Modifications shall be made as follows to specific sites: 

Site #17: The applicant shall work with Community Development and Public Works 

Staff to modify the location of the antenna pole structure to a location deemed acceptable 

to the staff in furtherance of security objectives. 

5. Building Permits. The applicant shall obtain all building permits necessary prior to any 

construction or installation on the site. 

6. Expiration. Consistent with Section 40.30.090 (Expiration) of the Zoning Ordinance, where 

the conditional use permit has not been used within eighteen (18) months after the date of 

granting thereof, the permit shall be null and void. 

7. Signage. A permanent, weather-proof identification sign must be placed on the gate of the 

leasing facility or, on the equipment facility itself. The sign must identify the facility 

operator(s), type of use, provide the operators address, and specify a 24-hour telephone 

number at which the operator can be reached so as to facilitate emergency services. 

8. Ground Equipment Screening. Ground mounted accessory equipment shall be placed in an 

underground vault. Details shall be worked out between the applicant and staff of the 

Community Development & Sustainability Department prior to issuance of Building 

Permits or Encroachment Permits for said ground equipment. 

9. Antenna Arrays. Antennas shall be treated to match the supporting structure to the 

satisfaction of the City. 

10. Noise. The project shall comply with the noise standards of Telecommunication Facilities 

Ordinance No. 2155. 

11. Certificate of Public Convenience and Necessity. Prior to receiving any authorization to 

construct equipment and prior to issuance of Building Permits, the applicant shall provide 

proof of a certificate of public convenience and necessity (CPCN) issued by the California 

Public Utilities Commission, which shall expressly state the applicant’s authority to provide 

the facilities-based telecommunications service approved with this application. 

12. Transfer of Operation. The City shall be provided with contact information for the operator 

of the facility at all times. Any change in operator shall be provided to the Community 

Development & Sustainability Department in accordance with section 40.29.240 of the 

Telecommunication Facilities Ordinance. 

82504.09001\7363642.2 

- 10 - 


13. FCC Regulations and Requirements. The project shall comply with all requirements of the 

Federal Communications Commission (“FCC”) related to wireless facilities, including but 

not limited to, RF (radio frequency radiation) emissions standards. The applicant shall 

provide the City with a certification of compliance from a licensed RF Engineer expert, 

approved by the City. Thereafter, the City may require periodic testing in accordance with 

the Telecommunication Facilities Ordinance. 

14. Monitoring Reimbursement. The supplicant shall deposit with the City funds, to be 

determined in consultation with the Community Development Director, prior to issuance of 

any permits, to allow for independent monitoring pursuant to Section 40.29.180. 

15. Compliance. The project shall be in compliance with all requirements of 

Telecommunication Facilities Ordinance No. 2155, as amended. 

16. Future Undergrounding. In the event of future undergrounding of utilities upon which the 

WTF equipment is mounted, the WTF owner shall be responsible for all costs associated 

with re-locating the WTF facility and all required discretionary applications with the City 

pursuant to Section 40.29. 

17. Revocation. In the event of a violation of any of the provisions of zoning regulations, or in 

the event of a failure to comply with any prescribed conditions of approval, the Planning 

Commission may, after public notice and hearing, revoke any conditional use permit 

pursuant to Section 40.29.260. 

18. Indemnification. The applicant shall: 

(a) The applicant shall defend, indemnify, and hold harmless the City of Davis, its officers, 

employees, or agents to attack, set aside, void, or annul any approval or condition of approval of the 

City of Davis concerning this approval, including but not limited to any approval or condition of 

approval of the city council, planning commission, or community development director. 

(b) The applicant shall further defend, indemnify and hold harmless the city, its officers, 

agents and employees from any damages, liabilities, claims, suits, or causes of action of any kind or 

form, whether for personal injury, death or property damage, arising out of or in connection with 

the activities or performance of the applicant, its agents, employees, licensees, contractors, 

subcontractors or independent contractors, pursuant to the approval issued by the city. 

(c) WTF operators or permittees shall be strictly liable for interference caused by their 

facilities with city communications systems. The operator shall be responsible for costs for 

determining the source of the interference, all costs associated with eliminating the interference 

(including but not limited to filtering, installing cavities, installing directional antennas, powering 

down systems, and engineering analysis), and all costs arising from third party claims against the 

city attributable to the interference. 

(d) The city shall promptly notify the applicant of any claim, action, or proceeding 

concerning the project and the city shall cooperate fully in the defense of the matter. The city 

reserves the right, at its own option, to choose its own attorney to represent the city, its officers, 

employees and agents in the defense of the matter. 

82504.09001\7363642.2 

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19. [Define allowable changes under new federal law – H.R. 3630 (Sec. 6409)] 

82504.09001\7363642.2 

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08 Crown Castle DAS - City Council - City of Davis

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