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Public Right of Way Developments

Wireless installations in public rights of way (also called PROW and sometimes Above Ground Facility  or AGF installations) are the latest trend and newest threat to residents opposing cell towers near their homes, schools and parks.

These are installations that are now appearing in growing numbers on our sidewalks and alleys in front and behind our homes, schools, and parks, on utility and telephone poles, scenic corridors, traffic signal posts, and light posts, and are creating major problems and concerns for residents and cities now. 

Read how residents throughout Los Angeles city are calling for reform: http://citywatchla.com/index.php?option=com_content&task=view&id=3825

Read how residents in Sherman Oaks succeeded in battling a proposed cell tower near their homes, only to have T-Mobile return and target a public right of way site:
http://www.dailynews.com/ci_15810159?IADID=Search-www.dailynews.com-www.dailynews.com  and here: http://albers91411.blogspot.com

These PROW locations are being targeted for installations because many cities have ordinances that lack any regulations (or strong regulations) specifically addressing them -- that is, they're open and easy targets!   Many cities don't require a public hearing or notification.  If that's the case in your city, organize your residents to have your local officials adopt an updated or new  wireless facility ordinance that protects homes, schools, parks and nursing homes.  This is totally legal: local officials hands are NOT tied in protecting its residents with a tiered regulatory approach like Glendale, CA, adopted in 2010, including preferences for co-locations, proving significant gaps, requiring FCC RF compliance reports, and providing alternative and least obtrusive locations that will serve the applicant's needs.

These PROW wireless facility installations can look awful and can affect the aesthetics and property values of your home and neighborhood; go here to see a photo of one and ask yourself if you'd like one of these in front of your home: https://sites.google.com/site/nocelltowerinourneighborhood/home/decreased-real-estate-value

Possible solutions? 

Read Approved Memo (July 26, 2010) by Los Angeles Regional Planning Department, in particular page 7: L.A. County Regional Planning Department requires a Conditional Use Permit and Encroachment Permits for PROW facilities.  Scroll down to the bottom of this page to view/download the "Attachment" (memo). The City of Burbank and other cities should adopt the same requirements!

The Town of Hempstead, NY, already has; due to resident concerns about wireless facilities being installed in PROW, it recently (Sept 21, 2010) approved its new wireless facility ordinance requiring a Special Use Permit for wireless facilities proposed on Town-owned or other publicly-owned land, and the SUP would require notifying nearby residents, too: http://www.toh.li/content/home/news/telecomlaw.html

Also read these legal articles and information about this hot topic, including recommendations you can share with your local officials:
International Municipal Lawyers Association Teleconference: "Distributed Antenna Systems (Part II): Should Municipalities Amend their Wireless Facility Zoning and Compensation Requirements?" by  Matthew C. Ames, Kenneth A. Brunetti, Miller & Van Eaton, P.L.L.C., August 26, 2010. 
Read: http://www.millervaneaton.com/IMLA20100826.pdf

Richard Watson Gershon law firm:  "Right-of-Way Turf Wars: Enter DAS Facilities" by Gena M. Stinnett: http://rwglaw.com/Advisor/2010-09/right-of-way.aspx

League of California Cities 2010 City Attorneys’ Spring Conference: "Wireless Issues Update,"  May 6, 2010, Co‐Presenters: Jeffery Melching, Esq. Partner, Rutan & Tucker, Costa Mesa and
Jonathan Kramer, Esq. Principal, Kramer Telecom Law Firm, Los Angeles:

Current Battles and Issues

City of Davis and Newpath

California Public Utilities Commission Proceeding C1003011: City of Davis, CA and Newpath

City of Davis, CA, is asking that the Commission enforce CEQA by ordering the Energy Division to Withdraw the Notice to Proceed issued to NewPath on or about November 25, 2009 for NewPath's proposed DAS project in the City of Davis; and Prepare an initial study and determine whether the Project will have a significant effect on the environment requiring preparation of an environmental impact report, taking into consideration local undergrounding and zoning regulations

Read documents for Proceeding, still in progress: http://docs.cpuc.ca.gov/published/proceedings/C1003011.htm

Read news story about it here:  " City of Davis Files Complaint Against NewPath with Public Utilities Commission," by David Greenwald, March 29, 2010: http://davisvanguard.org/index.php?option=com_content&view=article&id=3332:city-of-davis-files-complaint-against-newpath-with-public-utilities-commission&catid=53:land-useopen-space&Itemid=86

Court Case: NewPath Networks, a distributed antenna system (DAS) provider, sued the City of Davis, California in January, 2010. 

The suit concerns the City's revocation of NewPath's permits to construct a DAS system in Davis.   Shortly after a City Council meeting that affirmed the revocation of the permits, NewPath sued Davis.  Newpath lost. 

You can read the City of Davis’ Feb. 24, 2010, response to NewPath’s complaint here: http://cityofdavis.org/cmo/pdfs/newpath/NewPath-v.-City-of-Davis/Answer-to-Complaint.pdf.

Here is the Order Denying the Preliminary Injunction, March 18, 2010: http://cityofdavis.org/cmo/pdfs/newpath/Preliminary-Injunction/Order-Denying-Prelim-Injunction-%28Doc-36%29.pdf

Read news story about it here: "NewPath Sues City of Davis Over Pulling of Cell Tower Permits" by David Greenwald, February 12, 201: http://davisvanguard.org/index.php?option=com_content&view=article&id=3240:newpath-sues-city-of-davis-over-pulling-of-cell-tower-permits&catid=53:land-useopen-space&Itemid=86

NextG and the City of Huntington Beach, CA

CPUC: For NextG's Application A09-03-007
with the CPUC, go here:  http://www.cpuc.ca.gov/environment/info/dudek/nextG_huntington%20beach/NextG_huntington%20beach.htm

Read City of Huntington Beach's Dec. 22, 2009 letter to the CPUC in Section C (starting with Page 19) of this document, entitled, "Initial Study and Negative Declaration (November 23, 2009)": http://www.cpuc.ca.gov/environment/info/dudek/nextG_huntington%20beach/Attachment%202_RTCs.pdf

And NextG's responses in this document to Huntington Beach, see p. 189, entitled "Final Draft Initial Study and Negative Declaration, including Responses to Comments Received (February 26, 2010)": http://www.cpuc.ca.gov/environment/info/dudek/nextG_huntington%20beach/HB_DAS_IS_ND_DraftFinal_Feb2010compiled.pdf

CPUC: There is also this Proceeding A0903007 with the CPUC; for all documents, go here: http://docs.cpuc.ca.gov/proceedings/A0903007.htm#documents

Read Proposed Decision, filed Sept. 14, 2010: http://docs.cpuc.ca.gov/EFILE/PD/123408.htm, in which the CPUC recognizes NextG as a public utility with the right to install in public rights of way.  The glimmer of hope or remedy that the City of Huntington Beach (and concerned residents of California) can find in this Decision is on Page 16:

"The Commission’s jurisdiction over public utilities is constitutional. The Legislature has “plenary power…to confer additional authority and jurisdiction” on the Commission,21 including even to create additional classes of private corporations that are public utilities. In contrast, the Commission can establish its own procedures, but it is limited to the jurisdiction it derives from the Constitution and statutes. The Legislature has expressly charged the Commission with authority to issue a “certificate” (that is, a CPCN) to a company seeking to provide service as a public utility in California."

And, as well, on page 26 and 27:

"In adopting the Final Negative Declaration, we do not make any determination as to the validity of Huntington Beach’s ordinances, nor as to the compliance of NextG's project with these ordinances. Moreover, we do not purport to pre-empt these ordinances. The consequence of any non-compliance (beyond what we have concluded above with respect to CEQA) is a subject for another day, and another forum....we approve NextG's application. Our approval does not relieve NextG from obtaining such local permits or complying with such other requirements as may lawfully be imposed under Pub. Util. Code § 7901.1."*

And page 33: "The Commission’s jurisdiction is limited to what it derives from California’s Constitution and statutes....Today’s decision does not relieve NextG from obtaining such local permits or complying with such other requirements as may be lawfully imposed under Pub. Util. Code § 7901.1"

What's left of this proceeding? 

Opening comments, which shall not exceed 15 pages, are due no later than October 4, 2010. Reply comments, which shall not exceed 5 pages, are due no later than five days after the last day for filing comments.

Court Case: Meanwhile, NextG Networks of California v City of Huntington Beach, CA is also being fought in the courts, Orange County Superior Court Case No. 30-2009-00119646.

Read more here from the law firm of Davis Wright Tremaine LLP representing NextG: http://www.dwt.com/DealsandCases?find=12855

NextG Networks of California v City of Newport Beach, CA

The City Council of Newport Beach, CA, denied NextG's proposed installations in their public rights of way along their coastline.  Residents also opposed these projects. 

It's now in the courts: http://dockets.justia.com/docket/california/cacdce/8:2010cv01286/480793/
Case No.  8:2010cv01286, filed August 20, 2010

Read related news stories:

"Mayor to Antenna Company: Plans to Add Poles “Offensive”, July 7th, 2010: http://www.coronadelmartoday.com/12695/home/mayor-to-antenna-company-plans-to-add-poles-offensive/

"Crystal Cove Utility Pole Could Be Moved, Company Officials Say," July 20th, 2010: http://www.coronadelmartoday.com/12898/home/crystal-cove-utility-pole-could-be-moved-company-officials-say/

"Cell towers get poor reception from Laguna, Newport, Crystal Cove," Jul 24th, 2010, by Mike Reicher: http://theocnow.com/2010/07/24/special-report-cell-towers-get-poor-reception-from-residents-in-laguna-newport/

"NextG Company Files Suit Against City Over Poles," August 24th, 2010: http://www.coronadelmartoday.com/13476/home/nextg-company-files-suit-against-city-over-poles/

Newpath v City of Irvine, CA

NewPath filed a lawsuit against the City of Irvine, CA, when the City Council denied Newpath's proposed installations for the community of Turtle Rock.  Residents vehemently opposed the project. 

NewPath’s motion for a summary judgment was denied. You can read the decision, dated Dec 23, 2009, here:
http://cityofdavis.org/cmo/pdfs/newpath/Preliminary-Injunction/02-23-10/Exhibit-A-to-Citys-Request-for-Judicial-Notice-%28Doc-24-2%29.pdf .

K Iwata,
Oct 24, 2010, 12:21 PM