Advice to residents opposing proposed wireless facilities: recommend that your City suggest available
alternative, and less intrusive sites than the location proposed, when needed. Residents, also feel free to suggest alternative and less intrusive sites during the development, evaluation,
public hearing process and/or appeal process. It's within your right. Print out the wireless applications of examples requiring such information, below, and get your cities if they haven't already to update their wireless ordinance to require such information. Also find out and document if there is no "significant gap" in your area.
Just last year, the U.S. Ninth Circuit Court of Appeals, in Sprint PCS Assets v. the City of Palos Verdes (October 2009) and T-Mobile v the City of Anacortes (July 20, 2009), explained that the “effective prohibition”P1P inquiry involves a “two-pronged” analysis requiring: (1) the showing of a “significant gap” in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.
In T-Mobile v the City of Anacortes, the City conceded a significant gap existed, so the Court stated that the provider then had the burden of showing the lack of available and technologically feasible alternatives to close the gap, for instance, exploring and researching reasonable and viable alternative locations (called the “least intrusive means” standard). P2 The Ninth Circuit noted that this standard:
allows for a meaningful comparison of alternative sites before the siting application process is needlessly repeated. It also gives providers an incentive to choose the least intrusive site in their first siting applications, and it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials.P3
This is what our new proposed Supplemental Application Form aims to accomplish.
However, the Ninth Circuit Court of Appeals further explained:
A provider makes a prima
facie showing of effective prohibition by submitting a comprehensive
application, which includes consideration of alternatives, showing that the
proposed WCF is the least intrusive means of filing a significant gap. A locality is not compelled to accept the
provider’s representations. However, when a locality rejects a prima facie
showing, it must show that there are some potentially available and
technologically feasible alternatives.4, 5
On a more local level, residents and/or local government officials from the neighboring communities took it upon themselves to find and propose alternative feasible and available locations that were the least intrusive on their communities and would still serve the coverage needs of the provider:
Glendale: resident Maggie McMahon suggested to City Council an alternative location with map overlay instead of the one proposed in front of her home. Watch her comments at Glendale City Council’s Public Hearing on January 7, 2009, at 2:24:45, on Glendale TV, on-line at: TUhttp://glendale.granicus.com/MediaPlayer.php?view_id=12&clip_id=1227UT. T-Mobile ultimately pulled out and did not build in front of the McMahon family’s home.
read the Los Angeles County Board of Supervisors/L.A. County Counsel Final
Finding and Order to Deny, in particular those Items relating to alternative siting:
View Park/Windsor Hills: please read Items 13, 19 and 22, 23, 33 and 43-45, addressing alternative siting:
44. The Board finds that the evidence showed that T-Mobile did not examine suggested alternative sites that could have provided additional coverage while being less intrusive in terms of visual and aesthetic impacts on the community.P6P
La Crescenta/Montrose: please read Items 12, 14, 15, 19 and 20; for instance:
19. The Board
finds that Sprint/Nextel failed to conduct a meaningful comparison of
alternative sites, instead zeroing in on what worked for Sprint/Nextel, rather
than considering the community’s interest in selecting a less intrusive site.P7
Hacienda Heights: please read Items 12, 16, 17, 27; for instance:
17. Project opponents testified that specific proposed alternative sites were not investigated by T-Mobile. There are other SCE towers in the vicinity. One member of the Board stated that his staff had checked with SCE and was advised that T-Mobile had only inquired about two of the towers as possible alternatives.P8
In conclusion, being highly vigilant and attentive
to this issue of alternative siting is smart on two levels, protecting both the
residents and City within the full extent of the law. We need more rigorous alternative site analysis requirements of our wireless applicants.
Examples of Local Government
Alternative Siting Analysis Requirements
Here are three examples of required detailed alternative site information. The first two originate from the Cities of Richmond and Glendale and have already been approved and adopted; the third is pulled from Attorney Jonathan Kramer’s Generic Application Form:
ALTERNATIVE SITE ANALYSIS
2. Glendale, CA: Our neighboring city’s new wireless facility ordinance10 requires alternative sites information that includes the potential for co-location and the availability and feasibility of potential alternative sites:
For wireless facility installations proposed in public rights of way, look at “Section 5. 12.08.037 Wireless Telecommunications Facility Encroachment Permits. G. Application.” It includes the potential for co-location:
4. An alternative site analysis, assessing the feasibility of alternative sites, including the potential for co-location, in the vicinity of the proposed site, as deemed necessary by the director of public works. In the case of proposed sites that are inside or within 1000 feet of any residential zone, the alternative site analysis shall specifically include an evaluation of the availability and feasibility of potential alternative sites located at preferred locations and within preferred zones.
For all proposed locations, see “Section 25, 30.40.020 – Application Filing. H. [supplemental application requirements]. 1. All Proposed Locations.” It reads:
n. An alternative site analysis, assessing the feasibility of alternative sites, including the potential for co-location, in the vicinity of the proposed site, as deemed necessary by the Planning Director. Said alternative site analysis shall specifically include an evaluation of the availability and feasibility of potential alternative sites located outside a ROS, RIR, RI , R-3050, R-2250, R-1650 and R-1250 zone.
3. Attorney Jonathan Kramer’s Generic Application Form:11 requests more detailed alternative site information under its Section 4.15 than Burbank’s proposed Supplemental Application Form, even though ours does incorporate many parts of Mr. Kramer’s model form. In particular, read Sections 4.15.b and 4.15c (bold-faced ours, below, for emphasis):
4.15 Attach a written statement fully and expansively describing at a minimum:
a. Why this project is the least intrusive means to close the significant gap claimed and described in 4.12.
b. Identify and discuss all alternative sites and means considered to close the significant gap claimed and described in 4.12.
c. Whether two or more sites in place of the site proposed in Section 1 could close the significant gap claimed and described in 4.12, or to reduce the significant gap to be less than significant.
d. Whether the Government of Generic requiring two or more sites in place of the site proposed in Section 1 would prohibit or have the effect of prohibiting the applicant from providing any interstate or intrastate telecommunications service. If the response asserts that a prohibition or effective prohibition would occur, explain in detail all of the reasons why it would
e. Include all information whatsoever you relied on in reaching this determination.
f. Include any other information you believe would assist the Government of Generic make findings regarding whether the proposed project is the least intrusive means of closing the significant gap claimed and described in 4.12, or to reduce the significant gap to be less than significant.
Designate this Exhibit, “Exhibit 4.15.”
Initial here _______ to indicate that Exhibit 4.15 is attached hereto. Proceed to 4.20
1. See Sprint v Palos Verdes Estates, U.S. Court of Appeals for the Ninth Circuit, October 13, 2009, p. 14551, TUhttp://www.ca9.uscourts.gov/datastore/opinions/2009/10/13/05-56106.pdfUT, and T-Mobile v City of Anacortes, U.S. Court of Appeals for the Ninth Circuit, July 20, 2009, p. 9221, on-line at: TUhttp://www.ca9.uscourts.gov/datastore/opinions/2009/07/20/08-35493.pdfUT . According to the Telecommunications Act of 1996, Section 332(c)(7)(B)(i)(II): “The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof…shall not prohibit or have the effect of prohibiting the provision of personal wireless services”; also see Telecommunications Act of 1996, FCC, p. 117, on-line at: TUhttp://www.fcc.gov/Reports/tcom1996.pdfUT
2. See T-Mobile v City of Anacortes, U.S. Court of Appeals for the Ninth Circuit, July 20, 2009,p. 9221, on-line at: TUhttp://www.ca9.uscourts.gov/datastore/opinions/2009/07/20/08-35493.pdfUT
3. See T-Mobile v City of Anacortes, p. 9222.
4. See T-Mobile v City of Anacortes, p. 9226.
5. Regarding the result of the 2-pronged analysis? In Sprint PCS Assets v. the City of Palos Verdes, the Court found substantial evidence proving Sprint’s existing network was functional. As a result, the Court affirmed: “Because we conclude that Sprint has not shown the existence of a significant gap as a matter of law, we do not reach the second element of the analysis.” In the case of T-Mobile v the City of Anacortes, the City conceded it had a significant gap, and failed to show the existence of some potentially available and technologically feasible alternative to the proposed location, and so the City’s denial was found in violation of this particular part of the TCA.
6. View Park/Windsor Hills: L.A. Co. BOS/Co. Counsel Final Findings and Order to Deny, September 15, 2009, on-line at TUhttp://file.lacounty.gov/bos/supdocs/51099.pdfUT.
7. La Crescenta/Montrose: LA Co. BOS/Co. Counsel Final Findings and Order to Deny, October 6, 2009, on-line at: TUhttp://file.lacounty.gov/bos/supdocs/51430.pdfUT
8. Hacienda Heights: L.A. Co. BOS/Co. Counsel Final Findings and Order to Deny, March 9, 2010, on-line at: TUhttp://file.lacounty.gov/bos/supdocs/53564.pdfUT
9. Richmond’s “Planning Division Wireless Communications Facility Conditional Use Permit Application Submittal Checklist” can be found on the City’s website at TUhttp://www.ci.richmond.ca.us/DocumentView.aspx?DID=5577UT. Richmond, CA’s new wireless Ordinance No. 09-10 N.S. was unanimously approved by its Mayor and City Council on February 16, 2010. It can be found on-line on the City’s website at: TUhttp://www.ci.richmond.ca.us/archives/66/Ord.%2009-10%20Wireless%20Communications%20Facilities-CONFORMED.pdf.UT
10. The excerpts from Glendale’s wireless telecommunications ordinance cited here can be found on-line in Glendale’s new wireless facility ordinance, which was unanimously approved by its Mayor and City Council on April 13, 2010, at: TUhttp://www.ci.glendale.ca.us/gmc/Ordinance5692.pdfUT. See Page 8 (item G.4) and Page 67 (item n).
11. Attorney Jonathan Kramer’s Generic Supplemental Application Form can be found on-line at: TUhttp://telecomlawfirm.com/articles/pdf/generic.sitingpreapp.20100622.pdfUT. See Page 7, Section 4.15.