08 Crown Castle DAS - City Council - City of Davis

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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 04-03-12 City Council Meeting 08 - 4
ATTACHMENT 1 SUMMARY OF CASES 82504.09001\7355456.2 - 1 - 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 04-03-12 City Council Meeting 08 - 5
Page 1 and 2: DATE: April 3, 2012 TO: City Counci
Page 3: However, there is no guarantee that
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08 Crown Castle DAS - City Council - City of Davis

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