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Home My WebLink About17 - Appeal of Planning Commission's Decision of an AT&T Small Cell Installation (PA2019-111) - Applicant CorrespondenceReceived After Agenda Printed August 25, 2020 Item No. 17 - Applicant From: Murray, Emily <emurray@allenmatkins.com> Sent: Thursday, August 20, 2020 11:22 AM To: Dept - City Council; City Clerk's Office Cc: Wooding, Lauren; Zdeba, Benjamin Subject: August 25 City Council Meeting - AT&T Small Cell SLC0796 Appeal Attachments: Applicant Letter re AT&T Small Cell SLC0796 Appeal.pdf Categories: Jenn [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Dear Mayor and Councilmembers, On behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility, please see the attached response by the Applicant to the appeal filed on July 15, 2020 by Mark Pollock regarding the above -referenced site. This matter is scheduled to be heard by the City Council on August 25, 2020. Thank you, Emily Lane Murray Esq. Co -Chair, Land Use, Environmental, and Natural Resources Group Allen Matkins Leck Gamble Mallory & Natsis LLP 865 South Figueroa Street, Suite 2800, Los Angeles, CA 90017-2543 (213) 622-5555 (main) (213) 955-5584 (direct) (310) 775-1124 (mobile) (213) 620-8816 (fax) emurray(nballenmatkins.com Allen M.a*'Iins Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. 21 Allen Matkins Leck Gamble Mallory & Natsis LLP Allen Matkins Attorneys at Law 865 South Figueroa Street, Suite 2800 1 Los Angeles, CA 90017-2543 Telephone: 213.622.5555 1 Facsimile: 213.620.8816 www.a]lenTnatkins.com Emily L. Murray E-mail: emurray@allenmatkins.com Direct Dial: 213.955.5584 File Number: 370622-00203/LA1217531.02 Via Electronic Mail August 20, 2020 City Council City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 citycouncil@newportbeachca.gov cityclerk@newportbeachca.gov Re: AT&T Small Cell SLC0796 Appeal Minor Use Permit No. UP2019-030 Coastal Development Permit No. CD2020-052 Dear Mayor and Councilmembers: On behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility ("AT&T"), this letter responds to the appeal filed on July 15, 2020 (the "Appeal") by Mark Pollock ("Appellant"). The Appeal is from the Planning Commission's decision on July 9, 2020 to Adopt Resolution No. PC2020-018 approving Coastal Development Permit No. CD2020-052 and affirming the decision of the Zoning Administrator approving Minor Use Permit No. UP2019-030. As set forth herein, each of the stated grounds for the Appeal are without merit. Indeed, the same arguments were raised in Appellant's prior appeal to the Planning Commission, addressed by the City Attorney, and rejected by the Planning Commission. AT&T respectfully requests that the City Council likewise dismiss this baseless Appeal. A. The Appeal Has No Legal Merit The stated grounds for the Appeal are: (1) the Licensee under the Master License Agreement is not the same as the Applicant for the Minor Use Permit; (2) no proof of insurance as required by the Master License Agreement has been provided; and (3) the Minor Use Permit was granted to an entity without a Master License Agreement, in violation of the City's Municipal Code Section 20.49.080. All of these arguments fail. First, on February 12, 2019, the City of Newport Beach entered into a Master License Agreement with New Cingular Wireless PCS, LLC (the "MLA"). "New Cingular Wireless PCS, LLC, a Delaware limited liability company" is the "Licensee" in the MLA. The "Applicant" for the subject Minor Use Permit and Coastal Development Permit is identified in the planning permit Los Angeles I Orange County I San Diego I Century City I San Francisco Allen Matkins Leck Gamble Mallory & Natsis LLP Attomeys at Law City Council August 20, 2020 Page 2 application as "New Cingular Wireless, LLC d/b/a AT&T Mobility c/o Ericsson, Inc." New Cingular Wireless PCS, LLC has recorded a Fictitious Business Name Statement with the Orange County Clerk that identifies "AT&T Mobility" as the fictitious business name of New Cingular Wireless PCS, LLC. A copy of the recorded Fictitious Business Name Statement is enclosed herewith. Accordingly, the Applicant for the subject permits (AT&T Mobility) and the Licensee under the MLA (New Cingular Wireless PCS, LLC) are the same. Appellant's claim to the contrary is wrong. Second, Appellant argues that no proof of insurance as required by the MLA has been provided. The basis for this allegation is unclear. To the extent that the argument is based upon Appellant's confusion regarding AT&T Mobility and New Cingular Wireless PCS, LLC, the two are the same entity, and Appellant's claim is wrong. To the extent that Appellant is arguing, as he has in the past, that pollution coverage and in particular EMF coverage is not provided, Appellant is wrong again. AT&T self -insures for pollution coverage, including claims by third parties for bodily injury and property damage caused by hazardous waste materials released during a company's business operations, and has issued a certificate of insurance to the satisfaction of the City. Appellant's claim to the contrary is wrong. Third and finally, Appellant's claim that the City has issued a permit to an entity that is not a party to a Master License Agreement, in violation of the City's Municipal Code Section 20.49.080, is based on the same false contention that AT&T Mobility and New Cingular Wireless PCS, LLC are not the same entity, and fails for the reasons set forth above. Accordingly, there is no legal basis for the Appeal, and it should be denied by the City Council. B. The City Attorney and Planning Commission Have Rejected Appellant's Claims As reflected in the minutes from the July 9, 2020 Planning Commission meeting, Appellant presented the same erroneous arguments in support of his previous appeal to the Planning Commission. Deputy City Attorney Armeen Komeili advised the Planning Commission that the MLA and insurance requirements have been met and certified by the correct entity. The Planning Commission accordingly denied Appellant's previous appeal. Appellant's legal arguments have not changed, and remain meritless. C. Conclusion For the reasons set forth herein, AT&T requests that the City Council deny the Appeal. Very truly yours, /s/ Emily L. Murray Emily L. Murray ELM Allen Matkins Leck Gamble Mallory & Natsis LLP Attomeys at Law City Council August 20, 2020 Page 3 Enclosures cc: Lauren Wooding Whitlinger, Real Property Administrator, lwooding@newportbeachca.gov Benjamin Zdeba, AICP, Senior Planner, bzdeba@newportbeachca.gov HUGH NGUYEN CLERK -RECORDER 12 CIVIC CENTER PLAZA, ROOM 106 POST OFFICE BOX 238 SANTA ANA, CA 92702-0238 Recorded In Off7ciaf Records, Orange County Hu u2IuIqq��h N mmu enII Clerk -Recorder 0111 645, 312 23.00 11/21/2016 08:58:00 323 11 F01 23.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 FICTITIOUS BUSINESS NAME STATEMENT THE FOLLOWING PERSON(S) IS (ARE) DOING BUSINESS AS: 1, Fictitious Business Names) AT&T MOBILITY (optional) Business Phone No. 1A New Statement El Refile - list previous No. 20116286350 ❑ Change Street Address, City & State of Principal place of Business City State Zip Code County 2• (Do not use P.O. box or P.M.B.) 4678 CAMPUS DR., SUITE C NEWPORT BEACH, CA 92660 ORANGE Full name of Registered Owner (If Corporation, enter corporation name) If Corporation / LLC 3. State of Incorporation NEW CINGULAR WIRELESS PCS. LLC or organization DE Res. / Corp. Address (Do NOT use a P.O. Box or P.M,B) City State Zip Code 1025 LENOX PARK BLVD NE ATLANTA GA 30319 (CHECK ONE ONLY) This business Is Conducted by: a trust El a state or local registered domestic partnership 4. F]an individual F] a general partnership El allmited partnership El an unincorporated association other than a partnership FJa corporation a Limited Liability Partnership co-partners pa married couple a Joint venture X Limited Liability Co Have you started doing business yet? Notice• This Fictitious Business Name Statement expires five years from the date it was filed In the Office of the County Clerk -Recorder The statement expires 40 days after any Change in the facts is made other than F Yes Insert Date: 01/30/2007 a change in the residences address of the registered owner. A new Fictitious Business Name Statement must be filed before either expiration When ceasing to transact business under an active Fictitious Business Name Statement. Abandonment shall be filed. The filing of this statement does not of itself authorize the use 5. ❑ No in this slate of a Fictitious Business Name in violation of the rights of another under federal, stale or common law (see section 14411 at seq , Business and Professions Code). If the registered owner is NOT a corporation, sign below: If the registered owner Is: (See Instructions on the reverse side of this form) a corporation, an officer of the corporation signs below. any type of partnership, the general partner signs below. 8 a limited liability company, a manager or an officer signs below. New Cingular Wireless PCS, LLC Signature Limited Liability Company/Corporation/Partnership Name Jackie Begue, Assistant Secretary of Mgr Signature and Title of Officer/Manager or General Partner (Type or Print Name) I declare that all Information in this statement is true and correct I declare that all information in this statement is true and correct. (A (A registrant who declares as true any material matter pursuant to registrant who declares as true any material matter pursuant to Section 17913 of the Business and Professions Code that the Section 17813 of the Business and Professions Code that the registrant knows to be false is guilty of a misdemeanor punishable registrant knows to be false is guilty of a misdemeanor punishable by a fine not to exceed one thousand dollars ($1,000).) by a fine not to exceed one thousand dollars ($1,000).) AT&T Mobility Corporation, Manager Print Name of Officer/Manager or General Partner These fees apply at time of filing (Please provide a self-addressed, stamped,return envelope if mailed): Filing fee $23.00 for one buslness name $7.00 for each additional business name $7.00 for each additional partner after first two