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05-05-2020 - Public CommentLisa Sherrick From: Jay Meader Sent: Tuesday, May 5, 2020 5:18 PM To: City Clerk Subject: Public Comment 5/5/2020 CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Good Evening In light of current events it would be reasonable to assume that the city's share of tax revenue from most sources will be severely curtailed resulting in a rather dramatic effect on city services and expenditures. Included in the mix is the ever present cloud of the millions of dollars of unfunded pension and benefit liabilities. What is the city planning to do to meet this revenue shortfall in the short and long term? A large part of our community is made up of people who own, or work for small businesses or are otherwise self employed and they are the ones most affected. These people will not tolerate a tax increase simply because they can not. Economic activity across the board is depressed and will remain so for some time so what, realistically, could withstand increased taxation? We can all hope the situation is not dire but planning should start now and steps should be taken now. City expenditures must be brought into line with revenue, revenue can not be made to satisfy city expenditures. This is a complex problem requiring a detailed plan. I for one would like to hear the Councilmembers' and Mr Carmanys' thoughts on the matter. Recently I have been watching the city council meetings via youtube and have noticed that after the public comment section Mayor Wu thanks the commentors and asks Mr Carmany for a response. His response invariably is less than complete which is understandable since he is being put on the spot so to speak. In the short time I have been paying attention, I have not witnessed any response from a councilmember. Is this what we should expect? If so the Council should direct Mr Carmany to more completely address the concerns posed during the public comment period. I, for one, would like these public comments addressed in a more forthright direct manner by the Councilmembers who, after all, are steering the ship. No one is expected to have a ready answer to every question but a reply such as "We will get back to you at the next meeting" or N will get back to you what is your email/phone number" is preferable to no reply at all. Finally, in looking back at the agenda postings on the city website I notice there is no recent activity by the Audit Committee.The last meeting was January 22nd and to quote the City website " The committee will meet at least quarterly at City Hall and shall hold other meetings on an as needed basis". There have been questions directed to the council that have not been replied to and I do not see any Audit Committee meetings scheduled. During this time of depressed economic activity and the resultant decrease in city revenue it would seem that now, more than ever, is the time when help and advice is needed. Effective leaders are not expected to know everything, successful leaders surround themselves with people that do know everything. Jay Meader West Covina Resident Lisa Sherrick From: Farraher, Michael J (Mike) Sent: Tuesday, May 5, 2020 4:06 PM To: City Clerk Subject: Public Hearing — Item No. [151 — 5/5/20 (Wireless Telecommunications Facilities) CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Dear Clerk Sherrick, I would like to offer public comment concerning the above -referenced agenda item. Below please find the requisite information: Name: Michael Farraher Contact Number: — Subject Item: No. 15 ( ORDINANCE NO. 2470 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA APPROVING CODE AMENDMENT NO. 16-03, RELATED TO WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY) Thank you for your assistance with this matter. Please advise as to any further procedure required for my participation. Best, Mike Farraher Mike Farraher [ verizon Munici al En agement Partner Lisa Sherricic From: M Gomez Sent: Tuesday, May 5, 2020 12:19 PM To: City Clerk; frank gomez Subject: PUBLIC COMMENT CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Good Afternoon, I would like to voice a concern in regards to an increase of foot traffic walking around our neighborhood between the hours of midnight and the early morning hours. The streets are more empty during this time, so individuals are now checking more for unlocked vehicles, and now going thru our mailboxes. I live on Virginia Ave between Barranca and Grand and last week multiple mailboxes were found opened, with mail stolen from one neighbor, and a car was broken into that same night. A report was made online. My concern after viewing our cameras that we do not see any, ANY police cars patroling this area. If the individuals who are walking around doing this would see a patrol car, maybe they would think twice about looking for unlocked cars. With the homeless living behind the 7-11 on Grand, our streets and even more vulnerable to this. I suggest a look into how many reports have been made from our neighborhood you may find an increase in this type of crime. Please have more patrolling in our neighborhoods, Thank you, Frank and Marianne Gomez MACKENZIE & ALBRITTON LLP : FACSIACSIMME,E May 5, 2020 VIA EMAIL Mayor Tony Wu Mayor Pro Tern Letty Lopez-Viado Councilmembers Jessica Shewmaker, Dario Castellanos and Lloyd Johnson City Council City of West Covina 1444 West Garvey Avenue South West Covina, California 91790 Re: Draft Ordinance, Wireless Facilities in the Right -of -Way City Council Agenda Item 15, May 5, 2020 Dear Mayor Wu, Mayor Pro Tern Lopez-Viado and Councilmembers: We write on behalf of Verizon Wireless regarding the draft ordinance regulating wireless facilities in the right-of-way (the "Draft Ordinance"). While Verizon Wireless appreciates the option for administrative approval of small cell facilities, the Draft Ordinance poses several conflicts with the recent Federal Communications Commission ("FCC") order addressing appropriate small cell approval criteria. For example, subjective aesthetic criteria contradict the FCC's requirement for objective review of small cells. Any small cell within 100 feet of residential property would be ineligible for a minor permit, but all small cells should be reviewed under that objective, administrative process. Requirements to place equipment underground are unreasonable, as small cells pose little visual impact among other right-of-way utility infrastructure. Verizon Wireless would be pleased to meet or teleconference with City staff to discuss its network plans for West Covina and workable small cell standards. To that end, we encourage the Council to defer action on the Draft Ordinance, and direct staff to work with industry on needed revisions. To expedite deployment of small cells and new wireless technology, the FCC adopted its September 2018 order to provide guidance on appropriate approval criteria for small cells. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (the "Infrastructure Order"). Among other topics, the FCC addressed aesthetic criteria for approval of qualifying small cells, concluding that they must be: "(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance." Id, ¶ 86. "Reasonable" standards are "technically feasible" and meant to avoid "out -of -character West Covina City Council May 5, 2020 Page 2 of 6 deployments." Id., ¶ 87. "Objective" standards must "incorporate clearly -defined and ascertainable standards, applied in a principled manner." Id., ¶ 88. As we explain, several requirements of the Draft Ordinance contradict the FCC's directives or state law, and those must be removed or revised. The City also should revisit its 2019 Small Cell Facility Design Guidelines, which improperly limit facilities to aggregate street light poles no more than 35 feet tall, and impose an unlawful residential setback as described below. Our comments are as follows. Subjective Requirements Cannot Apply to Small Cells, which Should Be Approved under a Uniform Administrative Review Process. The Draft Ordinance is full of subjective aesthetic criteria that cannot apply to small cells. Concealment standards require a facility to "integrate the transmission equipment into the surrounding natural and/or built environment." Designs should "minimize visual impacts" without "dominating the surrounding area," with reference to an "untrained observer." Draft Ordinance §§ 26-685.11200(9); 26-685.11600(1), (1)(a). These standards are matters of opinion that could be used to deny small cells that otherwise meet objective standards. While the City may require compliance with codified health and safety regulations, "welfare" is an indefinite, subjective finding. Draft Ordinance § 26- 685.11500(3)(a)(ii). The "least intrusive means" standard is likewise subjective, as is review of alternatives. Draft Ordinance §§ 26-685.11400(3)(d), (f); 26- 685.11500(3)(c)(v). Under objective standards, a small cell either complies, or it does not, and review of alternatives inappropriately introduces discretion. The Draft Ordinance should be scrubbed of any subjective standards that may apply to small cells While administrative approval of small cells is appropriate, the City should not require a major permit and Planning Commission review of small cells that do not meet strict design criteria. Draft Ordinance § 26-685.11300(2), (3). For example, any small cell on a utility pole or within 100 feet of residential property would be ineligible for an administrative minor permit, due to excessive Design Guidelines restrictions. Commission hearings, public notice and appeals invite subjectivity to the decision - making process, whereas the FCC requires objective review of small cells. Draft Ordinance §§ 26-685.11400(3)(r); 26-685.11500(4), (6). There is no room for the Commission to exercise discretion when findings and standards must be objective. All small cells meeting the FCC's definition (defined in the Draft Ordinance as "SWF' ) should be approved through a uniform administrative process, consistent with the FCC's requirementfor expedited, objective review. No notice or hearing should be required. There is an option for applicants to claim that denial of a small cell not meeting strict standards would violate applicable law, or to seek a waiver of requirements. Draft Ordinance §§ 26-685.11400(2)0), 26-685.11400(5). However, the City cannot rely on this to excuse any excessive, unlawful standards because there are no clear findings. Applicants would be left to guess what the City may decide in its subjective discretion, which the FCC discouraged. Infrastructure Order, 188. West Covina City Council May 5, 2020 Page 3 of 6 Location Restrictions Contradict Federal and State Law. The Draft Ordinance and the adopted Design Guidelines impose several location restrictions, including a mandatory setback of 15 feet from residences in the PCD-1 zone, and 30 feet in all other zones, with no major permit option if adjacent to residential property. Draft Ordinance § 26-685.11600(1)(b). The Design Guidelines require an even greater residential property setback, 100 feet. Facilities placed in the public right-of-way pose no more aesthetic or other land use impact near homes than elsewhere. There can be no other reason for these residential buffers than concern over radio frequency emissions. However, the Telecommunications Act bars local governments from regulating wireless facilities over emissions concerns if facilities comply with FCC exposure guidelines. 47 U.S.C. § 332(c)(7)(B)(iv). Such location restrictions could bar facilities along long stretches of residential rights -of -way. This would be prohibitive in conflict with the Infrastructure Order, as well as California Public Utilities Code Section 7901, which grants telephone corporations the use of any right-of-way. These location restrictions should be deleted from the Draft Ordinance and the adopted Design Guidelines. Undereroundin¢ Requirements are Unreasonable and the City Should Allow Small Cell Equipment on the Side of a Pole. The FCC determined that undergrounding requirements, similar to aesthetic requirements, must be reasonable, non-discriminatory and objective. Infrastructure Order, ¶¶ 86, 90. The Draft Ordinance generally requires placement of small cell accessory equipment underground. Draft Ordinance §§ 26-685.11500(1), 26- 685.11600(1)(a), 26-685.11600(1)(f). Though there is a limited exception for lack of sidewalk space or infeasibility, this standard is unreasonable nonetheless because small equipment boxes on the side of a pole are not "out -of -character" among typical utility infrastructure in the right-of-way. There is no reason to require undergrounding of small pole -mounted equipment components which pose little visual impact to a street light or utility pole. The alternate option to "enclose with a structure" is vague and provides no clear criteria for above -ground accessory equipment. The City should allow a reasonable volume of small cell accessory equipment on the side of a pole before any undergrounding is considered: five cubic feet on a light pole, and nine cubic feet on a utilitypole. Technically Infeasible Standards are Unreasonable. For utility poles, the Draft Ordinance limits antenna height to five feet above the pole. Draft Ordinance § 26-685.11600(1)(g)(i). However, this overlooks the additional vertical separation distance required by California Public Utilities Commission General Order 95 (six feet over electric supply conductors). The standard would be technically infeasible and unreasonable. Further, this limits contradicts the height allowances included in the FCC's definition of "small wireless facility," which allow an existing structure to be extended up to fifty feet or an additional ten percent, whichever is greater. West Covina City Council May 5, 2020 Page 4 of 6 47 C.F.R. § 1.6002(1)(1). This provision should be revised to accommodate any additional height required by General Order 95. For new poles, the City cannot require Verizon Wireless to install a street light or other non -wireless apparatus. Draft Ordinance § 26-685.11600(1)(g)(iv). This clearly contradicts Verizon Wireless's right under Section 7901 to erect new poles in the right- of-way solely to elevate telephone equipment. The City's limited aesthetic review extends to wireless facility equipment, but lighting is not a functional requirement for wireless service. The alternate integrated pole option is likely technically infeasible given the limited 12-inch pole diameter and unspecified size for the "base of the pole." Remote radio units, other Verizon Wireless network equipment and mounting hardware cannot fit within narrow dimensions. As described, pole -mounted equipment components are not "out -of -character" in the right-of-way. The City should consult with wireless carriers regarding new designs for stand-alone small cell poles to serve as the basis for objective standards. Both sections referenced above require an antenna shroud, but shrouds or other antenna coverings may impede frequencies that carriers recently licensed from the FCC for new wireless technology. The Draft Ordinance should include a provision excusing any antenna shrouding requirement if technically infeasible for signal propagation. Application Procedures Must Be Revised to Align with Federal Law. Several submittal requirements and application procedures are excessive with respect to small cells. For major permits, the Draft Ordinance requires a description of the geographic service area, propagation maps and other justification materials. Draft Ordinance § 26-685.11400(3)(c), (f). Not only is this information irrelevant to required findings for approval, it is not pertinent to objective review of small cells, which the FCC determined are needed to enhance service and density networks. The FCC also disfavored dated standards based on "coverage gaps" and the like. Infrastructure Order, ¶¶ 37-40. As discussed above, the City should approve all small cells administratively with one type of permit, relying on clear, objective aesthetic standards. This information regarding need for a facility cannot be required for small cells. A speculative "master deployment plan" projecting facilities over the following two years is not relevant to reasonable, objective aesthetic standards. Draft Ordinance § 26-685.11400(2)(i)(xvi). Each small cell must be evaluated on its own merits. A master plan cannot accurately predict future network needs which change often due to varying demand and new technologies. The master plan requirement should be stricken. The Draft Ordinance requires concurrent submittal of fiber or cable connections with any wireless facility application. Draft Ordinance § 26-685.11400(1)(e). However, wireless facility permittees should be responsible for only the installations that they will build and maintain. Fiber backhaul connections are generally provided by a different company that will build and maintain its fiber lines under distinct permits. Fiber networks are beyond the scope of a "small wireless facility" as defined by the FCC. West Covina City Council May 5, 2020 Page 5 of 6 The City cannot subject Verizon Wireless to permit conditions of a different entity, such as indemnity and insurance. We suggest replacing Draft Ordinance Section 26- 685.11400(1) (e) with a requirement to submit a brief verbal description of any communications backhaul option anticipated for an application. As to application procedures, the Draft Ordinance requires a pre -application meeting and application appointment for major permits, wrongly stating that "Pre - submittal conferences do not cause the FCC shot clock to begin." Draft Ordinance § 26- 685.11400(1)(a), (c). The FCC has confirmed that mandatory pre -application procedures start the Shot Clock, so Verizon Wireless may consider the clock to start on the day it "proffers" an application; that is, the day it requests any required appointment. Infrastructure Order, ¶¶ 145-146; 47 C.F.R. § 1.6003(e). Thereafter, the initial 10-day period for the City to issue a timely notice of incomplete application ("NOI") could expire before the City formally accepts a pending application. The Shot Clock would then continue to run nonstop and expire after 60 days (existing poles) or 90 days (new/replacement poles). At that point, the application could be deemed approved by operation of law. Government Code § 65964.1. The pre -submittal meeting should be entirely optional, and applicants should be allowed to submit small cell applications at the counter or online with no appointment. Draft Ordinance Section 26-685.11400(8) errs in allowing the Director to "reject" incomplete applications. The City cannot deny incomplete applications because the FCC's Shot Clock rules clearly provide a remedy for applicants, requiring the City to issue a timely NOI to allow applicants to respond. 47 C.F.R. § 1.6003(d). We suggest revising this provision to eliminate the word "rejected" in favor of "deemed incomplete. " The City cannot unilaterally terminate a duly -filed application after 30 days while the Shot Clock is paused pending an applicant's response to an NOI. Draft Ordinance 26-685.11400(6). For small cells, the FCC's rules plainly state that the Shot Clock restarts after a response to an initial NOI, and resumes after a response to a subsequent NOI. 47 C.F.R. § 1.6003(d)(1), (3). This provision should be stricken. Where the Draft Ordinance limits batching of applications to five facilities of similar design, the FCC does not limit the number of small cells or the specific designs that can be batched under one application. Draft Ordinance § 26-685.11400(1)(d). The FCC's Shot Clock rules contemplate a mix of existing and new structures under one batch application. 47 C.F.R. § 1.6003(c)(2). This limit contradicts federal regulations and must be stricken. We note that the City does not have the authority to require that a carrier correct suspected signal interference. Draft Ordinance § 26-685.11700(14). Frequency interference is exclusively regulated by the FCC, which has established a complaint - based system requiring licensees to conduct a prompt analysis after notification of alleged interference. 47 C.F.R. § 22972. This condition is preempted by federal regulation and should he deleted. West Covina City Council May 5, 2020 Page 6 of 6 The Draft Ordinance includes numerous provisions that contradict the FCC's Infrastructure Order as well as state law. Rather than trying to resolve these legal issues during application processing, the City should ensure that its small cell regulations meet federal and state legal requirements at the outset. Verizon Wireless would be pleased to work with staff to revise the Draft Ordinance and the Design Guidelines. We urge the Council to defer action on the Draft Ordinance, and direct staff to make needed revisions. Very truly yours, 6F �/.a"� Paul B. Albritton Thomas Duarte, Esq. Jo -Anne Burns