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HomeMy WebLinkAbout4d - Correspondence - Paul R. O'Boyle - PA2012-057Paul R. O'Boyle Paul R O'Boyle, JD /MBA w/ www.oboylelaw.com t/ (858) 922 -8807 18269 Deer Canyon Place e/ pro @oboylelaw.com f/ (858) 484 -7881 San Diego, CA 92129 November 21. 2013 Mr. James Campbell, Principal Planner City of Newport Beach Community Development Department 100 Civic Drive Newport Beach, CA 92660 RE: Newport Beach Municipal Code — Chapter 20.49 Comments on Draft Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: As outside counsel for Crown Castle NG West, Inc. ( "Crown "), I am pleased to submit these comments on the proposed changes to the City of Newport Beach's ( "City') Wireless Telecommunications Facilities Ordinance ( "Ordinance "). Crown appreciates the opportunity to participate in the process and hopefully improve the processing of wireless facilities within the City. Crown is hopeful that this letter will provide additional information and insight on newer technologies that facilitate improved wireless coverage and capacity solutions without creating the same level of impacts to the community as traditional "macro" wireless cell sites. Crown is a Competitive Local Exchange Carrier ( "CLEC ") in the State of California providing regulated telecommunications services under Certificate of Public Convenience and Necessity ( "CPCN ") #U- 6741 -C. Crown is not a wireless service provider, nor does it provide wireless services to the general public. Instead, Crown is a telephone utility that provides Distributed Antenna Systems ( "DAS ") coverage and capacity solutions primarily to wireless carriers such as Verizon, AT &T and Sprint to name but a few. As a state mandated utility, Crown has expressed rights to access the public right -of -way ( "PROW ") to install its network and to provide regulated services. Therefore, Crown's primary areas of concern are, How does the Ordinance: 1) treat smaller, less intrusive equipment such as DAS in the PROW; and, 2) apply to other entities that use and occupy the PROW, consistent with Public Utilities Code Section 7901 and recent case law. The current Draft Ordinance does not encourage smaller, less intrusive wireless telecommunications equipment such as DAS, especially in the PROW. Although f, several Planning Commissioners have requested that the Ordinance include a Small Cell exemption, no such language exists in the Draft Ordinance. In addition to the Small Cell policy topic, below are specific comments on the Draft Ordinance: Section 20.49.020 Paragraph C (Exempt Facilities) — should include a Small Cell Exemption define with specific dimensions, values, etc Section 20.49.030 Paragraph E (Collocation) — Should be defined as the collocation of multiple utilities on an existing pole. Definition should not be limited to just wireless telecom providers. Section 20.49.030 Paragraph I (Feasible or Feasibility) — should include "economic" or "financial" as factors to consider in determining Feasibility. Section 20.49.030 Paragraph M (Right -of -Way) — is too narrowly defined. The definition of ROW should include not only the surface but the space below and above the ROW surface. In addition, the definition should include the historic and traditional uses of the ROW which include the transmission and conveyance of public facilities such as gas, electric, telephone, water and sewer. These inclusions are important no only because they more accurately depict the reality that is the ROW but because the expanded definition includes those areas where wireless facilities usually occupy in the ROW. Section 20.49.040 Paragraph (A) and (B) [Telecom Facility Preference] — although the addition of Class III (ROW Sites) to the list is a step in the right direction, the list needs to be refined. Visible facilities should be broken down as to size. Surely a Small Cell facility on a light standard is more preferable than a full array of antennas running along the parapet of a building? If nothing else applicants will have a better idea as to what facilities are deemed more desirable by the City. Section 20.49.050 (General Development Design Standards) Paragraph 3 (Size) — is too generic. A preference for Small Cell technologies should be stated. The definition should include dimensions and volume required to qualify for Small Cell designation. Section 20.49.050 (General Development Design Standards) Paragraph 4 (Location) — The Ordinance is internally inconsistent in that it recommends telecom facilities use the existing environment, natural or developed, yet the use of existing utility poles and infrastructure, especially in the ROW, is not encouraged. The Ordinance precludes attachment to traffic signals because of City Staff concerns. Traffic signals have been successfully attached to in countless jurisdictions. P.2of3 Section 20.49.050 (General Development Design Standards) Paragraph D (Setbacks) — Language should be added clarifying that set back requirements of adjacent zones do not apply in the ROW. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) — the words "as much as practical" should be added when discussing screening of installations from view. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) Sub - Paragraph 3 (Existing Features) — the word "poles" should be added to the list Section 20.49.050 (General Development Design Standards) Paragraph F (3)(b) — the word "consistent" should be replaced with "substantial conformance' when talking about size, shape, etc. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) Support Equipment — The Ordinance lacks a nuanced approach to support equipment location. Often times Small Cells place their support equipment on the utility pole because it is small and inconspicuous. Placing equipment underground is not always the best solution. Besides being costly, vaults have maintenance issues often related to water intrusion. In addition, vaults require vents, which only clutters the ROW with more street furniture. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) (3) — The requirement that radios, amplifiers and the like have to be mounted inside a pole "without" increasing the pole diameter" is difficult if not impossible to meet. While it is understood that the City does not want to see the wiring, some latitude with the pole's diameter may be need. A "substantial conformance" review would be preferable, especially if the alternative is vaulting and all the difficulties associated with that. Section 20.49.100 (Operational & RF Compliance and Emission Report) — Given the cost of these reports and the over- whelming pass rate, several Planning Commissioners' mentioned having these reports being required at the discretion of the City. The draft Ordinance currently requires a site specific RF Report for each site. If you have any questions or need additional information regarding these comments, please do not hesitate to contact me. Thank you again for the opportunity to comment, we look forward to working with the City on a new and improved Ordinance. Sincerely, Paul R. O'Boyle, Esq. P. 3 of 3