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October 24, 2003 The Residents of Re: ZA 2002-6731 (CU)-A1 Dear President Ziegler and Members of the Commission:
We are writing to ask you to support the Zoning
Administrator’s denial of the application by Sprint PCS (“Sprint”)
for a conditional use permit to install and operate a wireless
telecommunications facility at 1848 North Gramercy Place. The Zoning
Administrator’s decision was fair, clear, and in full compliance with
the Telecommunications Act of 1996. This letter will address the valid
points raised by the Zoning Administrator’s decision as well as the
unsuccessful objections made in the letter dated October 17th
from Gregory Sanders of Nossaman, Guthner, Knox & Elliott, LLP, the
attorneys retained by Sprint in the matter of the appeal. I. Sprint’s application was incomplete. At
every turn, Sprint has failed to provide the basic documentation required
to show the necessity and safety of their proposed installation. At
the August 7th hearing, the Zoning Administrator noted that
Sprint’s application lacked several mandatory components: a structural
integrity report; documentation of co-location efforts; and detailed data
on missed/dropped calls to document coverage need. All
of these documents, we’d like to point out, are still missing from the
application. When questioned by the Zoning Administrator, Sprint’s
consultants replied that there were co-location efforts and evidence of
dropped calls, but, strangely, that documentation didn’t seem to be
handy. Nor was it handy when Mr. Sanders was drafting his letter of
October 17th on Sprint’s behalf: that letter repeats that
Sprint has a coverage gap, but again provides no documentation. A letter
from Trillium Telecom Services, Sprint’s subcontractor and consultant,
re-iterates that co-location efforts were made at a single nearby site,
but yet again provides no addresses or details. (By Sprint’s own
admission, incidentally, that site was deemed inappropriate partly because
the area was a dense residential neighborhood, as is the current site.)
Finally, Mr. Sanders’ letter doesn’t even mention the missing
structural integrity report ― probably because Sprint’s
consultants rudely left the room in a huff while the Zoning Administrator
was rendering his decision, and they likely missed his specific comments
about their application’s failure to meet this requirement, which he
emphasized specifically since Sprint proposes to place their facility on
the roof of a brick building at considerable risk to seismic damage. Mr.
Sanders’ letter of October 17th promises to finally provide
data about missed and dropped calls at the upcoming hearing. Should such
documentation ultimately be provided, we believe it shows an
irresponsibility on part of Sprint to be doing so at the 11th
hour, at the appeal hearing of an application process that began more than
a year ago, and it demonstrates a lack of good faith on the part of Sprint
toward both the community and the Planning Commission of the City of Los
Angeles. It also raises the concern that if Sprint cannot summon the due
diligence to properly file their application, how can we trust them to
exercise due diligence in the execution and installation of their
facility? II.
The proposed location will not be desirable to the public convenience or
welfare. As
mentioned earlier, the Zoning Administrator noted in his decision that
Sprint’s original application did not provide documentation of coverage
need. This was an accurate assessment of the application. Mr.
Sanders’ letter claims Sprint’s coverage need is demonstrated by two
propagation charts included with the application, “LA35XC819G – Sir
Launfel Apartments Coverage Without Site” (exhibit B) and “LA35XC819G
– Sir Launfel Apartments Coverage With Site” (exhibit C). Let’s
take a closer look at these maps. Elsewhere in the application, Sprint
claimed that it had exhausted all other site possibilities for its
facility, specifically counting out some of the commercial buildings near
Hollywood and Western because of their “proximity to two other [Sprint
wireless] sites in the area.” (This information is re-iterated in the
letter from Trillium Telecom Services attached to Mr. Sanders’ letter of
October 17th.) These two sites are described as #LA54XC705 and
#LA40XC876. Now,
refer back to the coverage maps. One of those sites, #LA40XC876 does
not even appear on these maps. How, then, could it be that the
locations along Hollywood are too close to this site? What’s more, the
application also includes a list of all Sprint Wireless Facilities in the
City of Los Angeles ― a list that, by law, must include all sites,
and yet, #LA40XC876 is not on that list. This
means one of two things: 1) The coverage maps and list of wireless
facilities are out of date. If so, more recent, updated coverage maps
showing this (and other?) missing sites would likely show less coverage
need. Or, to be more cynical, it could suggest that 2) Sprint’s
discrepancies are not discrepancies at all, but intentional attempts to
mislead the community and the zoning authorities. Either way, the
inconsistency impugns the credibility of the few materials Sprint has
provided so far to demonstrate coverage need. A
final word on coverage. Many of the residents of our building are Sprint
customers, and we have no problem with dropped calls. In fact, the people
in our building who use AT&T experience signal problems far more
often. As an experiment, several of us took phones from different services
around the entire neighborhood, and everywhere, Sprint had the best
signal. This conforms to information that can be found at various web
sites that catalog customer complaints about cell phone service, all of
which show that Sprint already has superior coverage. III. The location is not proper in
relation to adjacent uses or the development of the community, and the
proposed location will not be in harmony with the various elements and
objectives of the General Plan. The Zoning
Administrator noted the building at 1848 Gramercy is already overbuilt and
exceeds the current dwelling density of an R3 Zone, and that the building
was already non-conforming when it was grandfathered in to the current
zoning regulations. Mr. Sanders’ letter ignores most of the Zoning
Administrator’s finding, preferring to address only the proposal’s
original plan to add to the building’s height. But the Zoning
Administrator’s stated that the “existing building is already
overbuilt relative to most other properties in the same zone and vicinity,
and should not be augmented with additional facilities.” To this, Mr.
Sanders’ offers no argument. IV. The use will be materially detrimental to the character of the development in the immediate neighborhood. The
Zoning Administrator found that the equipment cabinets in the side-yard
will reduce the building’s already minimal open space. Moreover, the
applicants failed to make any proposal to improve the landscaping in the
side-yard to conceal the cabinets. Sprint’s application and recent
letter still fail to address these points. V. Sprint’s assertion
that the Zoning Administrator’s decision does not comply with the
Federal Telecommunications Act of 1996. Mr.
Sander’s letter states that “the only bases for the Zoning
Administrator’s decision” are the height of the antennae and “vague
concerns about aesthetics and health effects.” This is patently false,
as described in the decision itself and the above points. About the public
health concerns, many residents did voice their concerns about the
facility’s health effects at the August 7th hearing, as they
are allowed to do at any public venue under the protection of freedom of
speech, but the Zoning Administrator’s decision specifically states
that health factors were not considered in rending a decision, and
cited the applicable language of the Federal Telecommunications Act
(“Telecom Act”) of 1996. Mr.
Sander’s letter then goes on to suggest, in essence, that all other
factors – the community’s widespread opposition, the Zoning
Administrator’s many valid points about the application’s
incompleteness and the proposal’s lack of harmony with the surrounding
environment and General Plan – are trumped by Federal law and Sprint’s
declaration (as of yet unfounded) of a need for coverage. First,
it should be noted that the Telecom Act does not pre-empt all local zoning
authority. Mr. Sanders’ letter would have you believe that the unless
Sprint’s proposed facility is technically sub-standard the application
must be granted; that your regulatory body suddenly has no authority
whatsoever to consider the many issues that concern zoning decision every
day in cities all across the country. In fact, the Telecom Act states very
clearly that local zoning officials may regulate the placement of
telecommunication facilities with certain limitations, none of which
apply in this case. Second,
the debate surrounding this kind of facility ultimately settles on the
issue of the potential public benefit to the community. And who should be
trusted to determine where the public benefit lies? The governmental
authority vested with that power? Or Sprint ― a private company with
motives that clearly lie elsewhere? Sprint, for example, is stuck in the
strange situation of having to make (still unfounded) claims that this
site is vital to serve the community, while at the same time asking the
zoning authorities to ignore that very community’s input. Citing Amherst,
N.H. v. Omnipoint Communications, “Any municipality could defeat the
request for a permit by simply making a very limited record that in the
opinion of three or four citizens . . .”, Mr. Sanders’ letter rather
falsely suggests that the community’s opposition in this case is
insignificant. Trying to tarnish the community’s opposition to this
facility as a so-called “Heckler’s Veto” is both disingenuous and
ignorant of the written record, which documents the nearly two-hundred
residents who signed a petition and the dozens who wrote
letters and attended the August 7th hearing, all to register
their opposition to this Sprint’s application. Moreover, there is clear and specific legal precedent
that allows for the concerns of the community as a factor in the
decision-making of zoning authorities in these cases. In AT&T
Wireless PCS v. City Council of The City of Virginia Beach, the court
decided that: "It
is not only proper but even expected that a legislature and its members
will consider the views of their constituents to be particularly
compelling forms of evidence, in zoning as in all other legislative
matters. These views, if widely shared, will often trump those of
bureaucrats or experts in the minds of reasonable legislators." The
rest of Mr. Sanders’ letter continues to argue the impotence of zoning
authorities, making the somewhat arrogant and fantastic claim that
“wireless telecommunications facilities are ‘locationally
dependent,’ meaning that the location of sites is driven not by local
planning concerns . . .” I can think of a lot of businesses that would
like to think of themselves as “locationally dependent” and therefore
be exempt from local planning concerns. But the fact of the matter is that
no industry gets such an exemption, not even wireless services under the
Telecom Act. The Telecom Act does not, as Mr. Sanders suggests,
mandate that municipalities must ensure seamless coverage. In Sprint
Spectrum L.P. v. Willoth, the court ruled that a municipality
may reject an application that: “seeks
to construct more towers than the minimum required to provide wireless
service in a given area. A
denial of such a request is not a prohibition of personal wireless
services as long as fewer towers would provide users in the given area
some ability to reach a cell site.” Similarly, the court decided in APT Pittsburgh
Partnership v. Penn Township 196 F.3d 469 (3rd Cir. 1999) that: ".
. . [A]n unsuccessful provider applicant must show . . . that its facility
will fill an existing significant gap in the ability of remote
users to access the national telephone network. . . . Not all
gaps in a particular provider's service will involve a gap in the service
available to remote users. The provider's showing on this issue will
thus have to include evidence that the area the new facility will serve is
not already served by another provider." As these decisions re-iterate, The Telecom Act seeks
to insure an adequate level of coverage, and we’ve already seen that
Sprint has failed to document that’s its coverage in this area is less
than adequate. To the contrary, the personal experience of local residents
suggests that Sprint’s coverage is the best available among the major
carriers. VI. Sprint’s New Design. Mr. Sanders’ letter indicates that Sprint has
decided to re-design their facility so as to “flush mount” the
antennae on the exterior of the building at 1848 Gramercy. This is meant
to address the height exception and the aesthetic concerns about views
from neighboring buildings. As with many other materials relating to the
application, Sprint has failed to submit any renderings, plans,
schematics, photo-simulations or any other detail about this new plan,
which they will apparently unveil at the hearing on October 28th.
First, it seems that an appellate hearing, at which
Sprint is fighting a rearguard action to defend an application that is
already missing many other documents, is a particularly inappropriate
place to be showing the Planning Commission a brand new version of their
proposal. Second, the plan to mount the antennae to the
exterior of the building only highlights the application’s lack of a
structural integrity report. As the Sprint consultants may know – or may
not, as it does not seem likely that they’ve thought this application
through – the building at 1848 Gramercy is an eighty-year-old brick-pile
building. It has had significant roof damage in recent years, and has
required extensive seismic retrofitting, including not only bolts but also
the sealing-in of a third of the windows. Despite these efforts, bits of
the walls have still crumbled from the building’s façade. And yet,
Sprint plans to mount wireless antennae and RF transparent screens to the
exterior of a building whose structural integrity they have never
assessed. Third, the new design is basically a different design
altogether, meaning that Sprint proposes to now present an entirely new
design to the Planning Commission without having gone through the entire
application process. It seems that if Sprint would like the Planning
Commission to consider a new design, it would have to make an application
specifically for that design. In conclusion, we believe that the Zoning
Administrator’s decision was fair and correct. Sprint has not: 1)
completed its application; 2) demonstrated a coverage need or significant
public benefit; or 3) addressed the many findings of the Zoning
Administrator. Sprint’s new design does not satisfy the concerns of the
community, or those in the Zoning Administrator’s decision. And that
decision was not out of line with the Telecom Act; it was well within the
purview of local zoning authorities to make decisions based on local
planning concerns, community interest, and the basic satisfaction of the
application requirements by an application. Thank you for your
consideration. We look forward to hearing your decision at the Central
Area Planning Commission on October 28th. Sincerely, Josh
Bearman
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