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HomeMy WebLinkAbout2019-05-02 Hearing Transcript - Cellco Partnership dba Verizon Wireless USE 19-079WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 2, 2019 A regularly advertised hearing on the application of CELLCO PARTNERSHIP DBA VERIZON WIRELESS (USE 19-000079) was called to order at 10:41 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Dean Au, Joseph Clarkson, Thomas Raffipiy, John Replogle. ABSENT & EXCUSED: Donn Dela Cruz. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). And 3 members from the public in attendance. APPLICANT: CELLCO PARTNERSHIP DBA VERIZON WIRELESS (USE 19-000079) Continued hearing on an application for a Use Permit to allow the construction of a non -manned telecommunication facility consisting of a 155 -foot tall monopine pole and auxiliary equipment within a 900 -square foot portion of a 3 -acre parcel of land situated in the County's Agricultural -3 acres (A -3a) zoning district. The property is located on the north (mauka) side of Pahoa- Kalapana Road (Highway 130) about 1.2 miles south of Black Sand Beach subdivision, Kikala- Keokea Homesteads, Puna, Hawaii, TMK: (3) 1-2-007:081 por. CLARKSON: The next item on the agenda is an application from Cellco Partnership, and due to some presentation, I'm going to ask the, our legal counsel to make—she's asked for a five- minute recess which we're granting. Chairman Clarkson called a recess at 10:41 a.m. at the request ofMs. Hall, and the meeting was reconvened at 10: 52 a.m. CLARKSON: The Commission meeting is back in session. Will everyone take their assigned seats, please? Now the next item on the agenda is some unfinished business, an application from Cellco Partnership dba Verizon Wireless for a Use Permit, but this is a continued hearing. However, some new testimony has come to our attention that I'd like to have our Corp. Counsel explain how that might or might not affect this application - 10,14 111 1.11 pplication 10VO111.11 11 AU: Mr. Chair? Before we get started, can I make a statement? I just want to put on the record that I've read all the past documents and transcripts for this agenda item, and I am prepared to vote on it. CLARKSON: Thank you. Are we prepared to proceed Corp. Counsel with the application as submitted or not? HALL: Basically, you have two options. One is you could continue the item until documentation is provided that they have a legal access or legal right -of -entry to the, through the private road to the property, or you can condition it. You can add a condition that basically says before they get their right to proceed with construction and such that they would need to provide that documentation that they have legal access to the property. CLARKSON: So, apparently, there is question as to whether the Applicant has legal access to the property that they want the permit for. My question, and I'll ask the Director, is legal access to the property in question normally a prerequisite for even accepting an application? YEE: Yes. However, I do want to note that we did discuss this this morning with staff as we learned about the issue and we did consider that we could condition it in this case, and so I think that's a viable option, too, if the Commission wants to consider that. DARROW: Good morning, Mr. Chairman. If I could just touch upon this matter. You're absolutely correct. One of our pre -requisites is we make sure that there is legal access to a particular project area. In this particular case, the Applicant—excuse me—the application indicated that there was legal access through an existing public roadway, and we had, looking at our maps, we had no means, or no issue to question it because even our maps indicated that it was a private, I mean a government roadway. What ended up bringing it to our attention for us to kind of look into it more was when staff had gone out on a site inspection, there was a, the road was gated with a sign that said, "private road." And, so at that point, they contacted, made contacts to different agencies to get information regarding that roadway either being a County road, an old road -in -limbo, a State road, or if it was actually private ownership. Through all of the research, it seems at this point that it is a private roadway, that it's, even though it doesn't currently have a tmk for identifying ownership, in discussion with the Department of Transportation, they indicated they do not own the road, and that the road was owned by the adjoining land owner. And, so at this point, there needs to be clarification that the Applicant has that legal access. It may be something easy to provide. It may be something where they need to go and legally acquire that access. So, we're just not sure to what length that may occur. CLARKSON: Well, my question, and if I may take the lead on this, is the Applicant going to be leasing, proposing to lease a portion of a fee parcel, does the owner of the fee parcel have access over this private road? DARROW: That's the same question. EXHIBIT D 2 CLARKSON: Well, that should be pretty easy to find out. DARROW: We've been doing our research, and it's not clear. We have people within our office that were able to review those documents, and they said they could not come up with an identified legal access in the documents. CLARKSON: Okay. DARROW: So, it could have, I mean, it could have just been something overlooked when that issued happened with the highway coming in and the relinquishment of the particular private road. CLARKSON: Is the landowner actually using that road to access his property? DARROW: That's our understanding. So, he must have access through that gate. MARTIN (from audience): He's here. STEVENS (from audience): Yeah, I'm the owner of the property. CLARKSON: Okay. And, are you prepared to present evidence today that you have legal access, that you can grant to the Applicant? STEVENS (from audience): [Inaudible.] HALL: Oh, please come to the microphone. MARTIN (from audience): Can we just come? STEVENS: Do I need to do the swearing in thing? CLARKSON: Please actually, please raise your right hands. Do you swear or affirm to tell the truth on this matter before the Commission today? STEVENS: Yes. MARTIN: I do. IOSUA: [Walking up with right hand raised.] CLARKSON: So, the question before the Commission is basically as I understand from the Director is whether to proceed on a conditional basis and assume that it's somewhat likely that you will be granted access since we've already had hearings and everything. On the other hand, if it's not at all likely that you will be given access, then the application should have never been received by the Planning Department, and we should continue it until it is. So, let me ask the EXHIBIT D 3 landowner, his—are you pretty confident that you have access over this private road, and if so, why? STEVENS: When I originally purchased the property, I purchased two larger properties above that specific parcel, and in order to gain better access to those properties is the reason I purchased that property. And, so I had it surveyed, and we hadI don't know what we required, but we went to consultants and had it surveyed to show where the pins were and that there was access from the Old Kalapana Road. CLARKSON: Could you please state your name for the record? STEVENS: Sure, I'm Dwight Stevens. CLARKSON: Dwight Stevens. And, when you purchased the property, you got a title report showing an easement over that private road, and you can MARTIN: Yes. STEVENS: Yes, I did get a titleI don't have the title report with me, but I did get a title, and it was very important that I have access because I was purchasing, that was the reason I was purchasing the property. MARTIN: My name is Danette Martin, and I'm here representing Verizon Wireless. I did, I do have the title report, and I provided it to staff Unfortunately, I don't have sufficient copies to give you, but they do have a copy of this. There is a—it's called a "Deed of Gift" which we believe is the access, but unfortunately, it doesn't have a map attached to it. It's just metes and bounds. So, what I propose is either Dwight can provide the surveyed information that he got when he purchased the property or Verizon can employ a surveyor to look at the metes and bounds and map it out to ensure that that we, in fact, do have legal access. CLARKSON: Okay, so your, your belief is that the metes and bounds description in the title report corresponds to the road? MARTIN: Yes. CLARKSON: And, is there any disagreement with that from the Planning Department staff? DARROW: I wouldn't say disagreement, but I would just say that we defer on our conclusion. Again, we have in staff, in-house staff that is able to research title, and looking at the documents provided, it did not clearly identify legal access to the property, and that's why we brought that, this to the Commission as well as the Director's intention. CLARKSON: And you, your staff, the staff in the Planning Department, had the opportunity to review the title report and this metes and bounds description? EXHIBIT D 4 DARROW: Correct, as well as make contact with the Department of Transportation and discuss this matter with them, which is where we learned that it was actually a private road, and that became an even more difficult issue. So, again, it appears that, that they may have access. We just need to find the documentation, and that is why we were also ready to provide language that we could add in as a condition that the Applicant would provide evidence of access rights prior to the submittal of Final Plan Approval. But, so, before they can go forward with constructing the tower and receiving Final Plan Approval, we would know that they would have legitimate access. CLARKSON: Okay, so I'm going to ask the Commission to, for a motion for action to either continue this application or to proceed with the application conditioned on, with the conditional language that staff will provide us related to access. DARROW: If I may, Mr. Chairman, is there, are also, if you wanted to address the other issue that was brought up at the last hearing as well, we are prepared to provide PowerPoint presentation of the submittals from the Applicant. CLARKSON: Yeah, we—we would be delighted to do that if the Commission wants to proceed DARROW: Okay CLARKSON: on a conditional basis. So, the question now is do we assume that the Applicant is going to prove access to the property and consider all the issues and make a conditional recommendation for approval or an unconditional recommendation for disapproval or do we want to delay the consideration until access is proven. AU: For discussion sakes, I'm prepared to make a motion. I move that we continue Special Use Permit No. 18-00079 [ Use Permit No. 19-000079]. AGUINALDO: I second. CLARKSON: Okay, it's been moved and seconded that the application be continued until such time that the Applicant has shown that they have legal access to the property in question. Is there any discussion? AU: Yes, so for discussion purposes, you know, this application was put in, not knowing—well, excuse me, assuming that you had public access, and now that this question arises of public access, I feel we should continue it, the reason, you know, you guys should mitigate it and really find out, because what if in the end the landowner disputes, the landowner for the access disputes this and you can't do your tower. So, yeah, that's how I feel. HALL: Sorry, just for clarification. Are you the landowner of the actual road? STEVENS: I'm the landowner of the property and EXHIBIT D 5 HALL: —Above the road? Or, does it include the road? STEVENS: I'm not sure from my title AU: Microphone, sir. STEVENS: Oh, sorry. I'm not sure from my title, but when I purchased the property, I specifically bought it for access, three of the 3 -acre pieced to the two larger parcels that I bought, and so I had consulted with consultants and had it surveyed and it was my total understanding that it was, that I had legal access. Ifso, I also have a question. If it's showing as private ownership, who is the owner of record? AGUINALDO: Mr. Chair, are we going to see that, his aerial of his property again? So, we can kind of see the overall? CLARKSON: Yeah, if you'd like to. AGUINALDO: Yeah, and the adjoining neighbor, too, yeah? CLARKSON: Do we have any kind of an aerial that shows— AGUINALDO: Similar to almost like the Google Earth. Right there. Can we zoom in? CLARKSON: Well, what about the site plan? AGUINALDO: I think there was another one, yeah? CLARKSON: Didn't the site plan have ano back one. There. Is this—is the road in question that, is not included in that image? DARROW: A portion of it is. That would be this right here. AGUINALDO: Right. DARROW: So, this is the highway which has no legal access. This is the roadway. Further back, there is a property right here, 1-2-007:008 or 1-2-007:028. That is the property that apparently owns this private road. AGUINALDO: That's the teardrop one, yeah, Jeff? DARROW: Yeah. AGUINALDO: Yeah. EXHIBIT D 6 DARROW: And, so, the access comes from the highway through that property onto this private roadway and then would go this way, but again, the, we cannot find the connection where this property shows that they have access over this property and over this roadway to their property. CLARKSON: And, they are fronting a public road. There's no—there's restrictions on access from the Kalapana Road to the property? DARROW: I'm sorry, Mr. Chairman? CLARKSON: I'm just asking. Are there restrictions on access from the main DARROW: Yes CLARKSON: public highway to the prop— DARROW: Access is prohibited. CLARKSON: Is prohibited. DARROW: Yes. There is an item that was submitted to the Commission, item no. 4, and that kind of gives you, you were able to see what looks like little bumps along the roadway. Those are indicating that access is prohibited, and then there's a portion where you'll see on the roadway, it says access permitted, and that's the 40 -foot area where you go through that portion of the property onto the roadway, and then what appears to be the access. AU: Mr. Chair? CLARKSON: Please continue. AU: I have a—ask a question to the Applicant. Is it appropriate at this time? CLARKSON: I believe so. We're still in discussion of your motion. I think you need further information that would be relevant to that motion. AU: Okay. Sir, I saw you grab the microphone. Would you like to say something? Maybe state your name. IOSUA: Thank you. My name is Mike Iosua. I'm local counsel for Verizon Wireless. I'll withhold what I was going to say until after your question. AU: Okay, so I guess my question to the Applicant and the landowner—what do you guys want to do? IOSUA: I think I can answer that. You know, Verizon—from Verizon Wireless's standpoint, and I think we're pretty confident that there is an ability to show access, and if there isn't, Verizon, I believe, would be willing to work with the, whoever the landowner is to be able to EXHIBIT D 7 gain access, and we've come to kind of this point. So, our preference would be if the Commission would entertain that, to do a conditional, or at least hear us out to be able to vote on a conditional approval subject to gaining access. I think we can do that in a reasonably short period of time, and you know, if the Use Permit is conditioned on that, we'd be prevented from moving forward until that time. CLARKSON: Okay, so we do have a motion before the Commission that's been seconded to continue this. Is there any further discussion? If not, if you wish to proceed with the consideration of the application, you should vote against the motion. If you wish to delay the consideration of the application until such time as access is proven, you should vote in favor of the motion. If staff could please poll the ANDREWS: —Yes, there's a motion to continue. I'll take the vote. Commissioner Au? AU: No. ANDREWS: Commissioner Replogle? REPLOGLE: Aye. ANDREWS: Commissioner Aguinaldo? AGUINALDO: Can you please repeat the question again? ANDREWS: Yes, it's a motion, it's a motion to continue. AGUINALDO: Yes, if the access is granted. HALL: You're voting aye to continue this or you're voting nay to not continue it. That's your— AGUINALDO: Oh, I going vote continue. HALL: Okay, aye, then. Okay. ANDREWS: Commissioner Raffipiy? RAFFIPIY: Aye. ANDREWS: Chair Clarkson? CLARKSON: No. ANDREWS: The motion fails, three, two. Sorry two, three. EXHIBIT D 8 CLARKSON: So the motion to continue failed because it did not get a four -vote majority of the Commission? ANDREWS: That's correct. Yes. CLARKSON: And, that's one that requires four votes. You sure about that? HALL: Yes, all action of the Commission requires a majority vote, yeah. AU: So, Mr. Chair, I'm prepared to make another motion. CLARKSON: Well, let's—since we're actually proceeding with the application, let's hold off and hear a presentation for some additional information. We had testimony. We had a presentation last month. Let's hear any additional information about this application from staff ANDREWS: Yes, there is additional information that was provided by the Applicant, and I'll forward to that slide. This was, well I'll start here, this was the original site plan provided by the Applicant and at the last hearing, there was discussion about the location of the tower, and pertaining to its distance from the road, from the highway. And, I'm just going to jump forward to what was recently provided by the Applicant. Here, which is two proposals. They look very similar, but I'll highlight what has been changed. The Applicant submitted this one which is 155 -foot setback to the road centerline, and that is the centerline of Highway 130. So, the dimension here, which is very difficult to read, is dimensioned 155 feet which is the height of the tower from the centerline of the road on the left here. And, on the right, it's 155 -foot setback to the road edge. So that's the edge of the highway. So, they have submitted these two proposals for your consideration. That concludes the information. CLARKSON: Okay, thank you. Any questions for staff? Okay MARTIN: I'd like to also point out that we provided a letter from Sabre Industries, the tower manufacturer. It was my understanding that the Commissioners were concerned about the tower falling and blocking the road. So, we went to the tower manufacturer, and we asked them, what is the fall radius for a tower like this? They explained that the tower is stacked. It comes in several pieces, and it's stacked. And, so, it can be designed so that it could, if it exceeded the wind load of a 140 miles an hour, which is what they plan to design it as, if it exceeds that, that the maximum amount of radius would be 75, not a 155. I just wanted to bring that to your attention. CLARKSON: So, it would have bolts holding two sections that would fail roughly half way up and allow only the top to fall off MARTIN: That's right. CLARKSON: That's from wind. EXHIBIT D 9 MARTIN: Hm-hmm. That's right. CLARKSON: Okay. Any further discussion? Any further questions for the Applicant? If not, thank you. We have one person who is wishing to testify on this matter today. Please be seated. Would Jaerick Medeiros-Garcia please come forward? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Commission today? MEDEIROS-GARCIA: Yes. Aloha everybody. CLARKSON: Excuse me, again, please introduce yourself. MEDEIRO S -GARCIA: My name is Jaerick Medeiros-Garcia. I had concerns about the tower only because the fact where I live, the Verizon tower there is growing overnight. It's a huge concern. They're building that thing overnight. The electromagnetic radiation from the 5G is super strong, you know. Brussels banned 5G from their country in the short research they did. They found that it was very harmful to the human body. So, my concern is the people that are living next to these towers, how—and the community when it's going to be building back up. The kids and stuff that come within the area of this tower, how do they know if it's going to be safe? Because when I called Department of Health in Oahu to ask who monitors the electromagnetic radiation off of this towers, and their answer to me was there's nobody in the State of Hawaii that does that. The reason for that is they don't got the equipment for it. So, right now, you know, in my community, the Verizon tower is literally growing overnight. They work on it at night so that nobody can question them. So, where is Verizon going to be when the questions come to the table about these things, you know? That's just a concern because if a country banned 5G, and this is what they are working on now, we only live on a rock. Like, you know, we gotta have consideration for the kids, the kupuna, and all that, you know, just humans. You know, it's kind of scary to think because you know the homes where I live, next to the towers, they have a humming sound through the homes. It's a humming sound, and they turn off their power in the home, and it's still humming. You know, so right now we're in talks with people to try get those towers moved, and I think you guys might want to take into consideration these things. Who is going to monitor that radiation off of those towers? So, thank you guys for your guys' time. CLARKSON: Thank you. Any questions for the AU: —Yes, I have a question for the testifier. Mr. Garcia, you mentioned that—do you live in the area? Can you show us where you live? MEDEIROS-GARCIA: No, not this area. AU: Okay. MEDEIRO S -GARCIA: I live in Hamakua, but this is the issues that we're having right now. EXHIBIT D 10 AU: Okay, and you also mentioned that they're building a tower right now, and they're building it overnight. MEDEIRO S -GARCIA: No, no, it's been up, but they're working—it's been up for a while, I mean, I look at the tmk, it's been worked on since '96 or something. And, the thing is it's growing overnight so it's concerning, because, you know, some, one of the community members said that he went out there, and they tested these things. Just themselves with a fluorescent bulb, and that thing illuminated out there. So, if that thing can illuminate and it's next to our community center and park, and so, you know, we're not going to do no upgrades to our parks there because we no like the kids close to that thing there. And, we got community members that is concerned, especially kids, just humans in general. AU: Okay, so you say it's glowing, not growing. I mean like, so you mentioned MEDEIROS-GARCIA: —The tower is growing AU: So, they're build—they're working on it overnight? Is that what you're saying? MEDEIRO S -GARCIA: At night, yeah. Yeah, we've got a video of them working on it at night. AU: Are they adding on stacks or Just MEDEIROS-GARCIA: Oh this thing is getting bigger and bigger man. That thing is like and there's no blinking light on it, you know. AU: Well, that, that brings up other concerns, you know, in conditions that we set forth on Special Permits. Some conditions we set forth, you're not supposed to be working at night MEDEIROS-GARCIA: Right— AU: —And all that stuff so, you know, that particular project is, is could be in violation, but that's not what we're here for. We're here for some—the agenda item is for this Applicant, but thank you for sharing with us. MEDEIRO S -GARCIA: I think it's a concern. I mean, you guys are talking about putting one tower up. There's nobody to monitor that thing, so instead of approving something like that without having people to monitor those important things—these things create cancer and all that stuff, you know. You guys gotta take into consideration people's lives. But, thank you, guys. CLARKSON: Thank you. Are there any further people? Any more people wanting to testify? If not, the Chair would seek a motion to close public testimony. RAFFIPIY: So moved. REPLOGLE: Second. EXHIBIT D 11 CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. Public testimony is closed. At this time, the Chair will request a motion for action, and I believe I should say, have the proposed motions incorporated the condition that you were discussing, Jeff? ANDREWS: Yes, we've created a condition that could be included in an approval with conditions. CLARKSON: Okay, well, let's see if we have a motion for, we have to have a motion for approval first. HALL: Well, actually, I mean, you should have the proposed condition `cause now the Department is proposing the condition to put into the Recommendation. So, if you want to incorporate it into the Recommendation, then you should hear it first and then get the motion, yeah. CLARKSON: Oh, okay. DARROW: The other issue or matter that should be addressed is to identify which, yeah, which proposed possible location that the Commission would be looking at so that we could actually incorporate that as well within the condition. That it be setback so far from the roadway. CLARKSON: But, don't we need a motion for action before we amend the Recommendation? The conditions? DARROW: Sure. But, that was CLARKSON: Okay DARROW: just something we didn't anticipate adding in that additional language, but that should be something we should also add to clarify exactly what setback there would be. Thank you. CLARKSON: So, do we have a motion for action on this item which we're probably going to amend? RAFFIPIY: So, Mr. Chairman, does that mean should I make a motion to accept either one of these proposals first and then we move onto the other motion? HALL: We should be including the motion which one. EXHIBIT D 12 RAFFIPIY: So, if that's the case, I'm prepared to make a motion that we accept the revised proposal to have the 155 setback to the edge of the road. AGUINALDO: I second. CLARKSON: Well, and there's one other condition I believe. If you could read us the draft of the condition? ANDREWS: Yes, certainly. It would be as stated, "Prior to submittal of an application for Plan Approval, the applicant, successors, or assigns shall provide evidence of legal access from Highway 130 to the subject parcel." RAFFIPIY: I'd like to add that to my motion. CLARKSON: Not to be picky, but does it have to be from Highway 130? Isn't it just legal access okay? No? HALL: The more specific the better. CLARKSON: Okay. AU: Mr. Chair, I have a question. Okay, so from what I read, I read from the original Recommendation, there was nine conditions set forth, okay? And, I have another piece of paper, and I could be wrong, there's seven conditions, and then there's another condition. So, is that correct? I mean I'm looking at this paper, it says, forno, this is 4-20, 4-2. So, how many original conditions are there? I'm looking at two different pages with conditions. I see a revised condition on a ANDREWS: Yeah, so those, the additional conditions were added following comments by U.S. Fish & Wildlife Service, so they were adding, they were added to the original set of conditions. AU: So, there's a total of 17 conditions? That's with the amended condition. That's what I'm counting. ANDREWS: That sounds like the correct total. AU: So, there's nine plus seven, plus one, right? ANDREWS: Hm-hmm. Yep. AU: That would be seventeen, yeah? ANDREWS: That would be seventeen. AU: Okay, that was my question. EXHIBIT D 13 CLARKSON: So, the motion on the floor is to, a recommendation for approval ANDREWS: Approve, it's an approval recommendation with conditions and with additional conditions as proposed. CLARKSON: Those additional conditions being the site location being 155 from the road and per the draft proof of access from Highway 130 to the site location? ANDREWS: May I clarify that the site plan selected was the one—which of the two site plans? RAFFIPIY: That, the one to the right, the revised. ANDREWS: Yes, from the road edge, yes. AU: Mr. Chair, I'd like to have a discussion as well. CLARKSON: Well, let's get a second first. AU: I second. CLARKSON: Any discussion? AU: Discussion—Mr. Garcia, thank you for your testimony. I think it's very important to hear from the public on all matters that this Commission discusses, you know, but cell phone towers are very important in this day and time. We all have cell phones. Emergency services use it. You know, the Applicant and the landowner are willing, and it's a needed service in all communities. I don't know how bad the cell phone is out there. Many other Commissioners can attest to that. But, sometimes when I'm driving in that area, I get, I don't have coverage, or when I'm there with my buddies or family or friends, I don't have coverage. And, you know, it's very important for me and my kids and my family and just everybody that—you know, communication is key. So, again, Mr. Garcia, thank you, but I do support this motion. CLARKSON: Any further discussion? REPLOGLE: Yes. Yes, may I? Thank you, Mr. Garcia. I agree with you, and this topic and subject has come up over every cell tower we've discussed since I've been here and today, I'm not feeling like pulling the rug out from under Hawaiian—the cell tower, Cellco, but I would like to say the next time you come before us, you best have answers to the questions Mr. Garcia brought up or I'll just vote against it. I understand what Commissioner Au was saying about communication but what good is communication if we're all dead. We won't die overnight, but, it's worth addressing seriously and if not, who is going to regulate it? Who is going to watch it? Anyway, that's my discussion. DARROW: If I can address that matter? This is a common matter that comes up before the Planning Commission, and it's a common matter that's brought before the Planning Commission—health risks regarding emissions from cell towers. And, unfortunately, the EXHIBIT D 14 Commission is limited to be able to deny those applications based on health emissions, and the reason why is if you look at your Background Report on page 2, number 5, it talks about the Telecommunications Act of 1996. They are saying that there's not enough evidence to prove that there are these health risks being generated. Until such time as that has been proven, the Federal Government limits the ability to deny those permits based on that fact. So, what has been suggested in the past has, is there be these new studies done, these new updated studies to be able to show those types of conclusions. But, at this point, until that law has changed, because it has happened before and that usually is brought up. Thank you. REPLOGLE: Thank you. HALL: I would also like to add that it's not just limited, it's prohibited from making your decision concerning that. So, he used the nice word "limited" but it's prohibited. RAFFIPY: I have a question, Mr. Chair. I know that this tower has a provision for co -location. You know, our earlier discussion and in the presentation, there is a co -location provision on this tower. Who monitors these towers when there is a new tower? If somebody comes in, and a new provider comes into that area to tell them you don't need to install a tower, you can just go to that tower because there's a provision for co -location on that tower. CLARKSON: That would be the Planning Department and the, well— AGUINALDO: —Those guys— CLARKSON: Yeah, no, but the—he asked me, and my understanding is, is that if a cell tower applicant comes in and says we want to erect a cell tower, that the Planning Department would say wait a minute, there's a cell tower very close to that, your proposed location that has a co - location provision; therefore, we are not going to take your application. Go to them and put your antennas on their tower. RAFFIPIY: Exactly, and then the thing is they're going to present us with their studies on coverage because they're going to tell us, oh, we cannot be co -located on that tower because there's no overlapping coverage, so, it isit is better that we install another tower. So, I'm just raising this concern because it may become, you know, we don't want our islands to become, you know, cell tower islands. DARROW: If I could chime in again on this. This is great discussion on these topics. The Planning Department had the exact same concerns regarding the number of towers that were being constructed around the island, so we started requesting that the companies try to co -locate. We were encouraging that. We'd rather see four antennas on one tower than four towers. And, so, when an applicant comes in with a cell tower permit, there's an additional form that they have to fill out called a "Telecommunication Tower Attachment Form." And, on that form, there are ten questions, and one of those questions is, "Have you made attempts in this area to seek co - location on other towers" and if you, if there are other towers and you're not co -locating on there, provide reasons why, and that's why at times, you'll see anterior companies come before the Commission and again try to state that if they go on that tower, they won't have the signal EXHIBIT D 15 strength. It could be that they were already on that tower, and they're trying to provide additional coverage in that area which requires that link. But, that has been the direction of the Planning Department for some time. RAFFIPIY: So, if a company comes in and they want to install a tower and you recommend to them to go look for an antenna that they can be co -located on, or a tower, and what if in order for them to do that they need to also co -locate on another tower in order to have a better coverage. Is that a condition that we can put, we can require, you can place on cell phone companies? So, instead of erecting another tower, we tell them, you're going to install two antennas, one on this tower and one on that tower. DARROW: I've never seen that happen. I can't say that you can't do that, but again I think it would come down to the situation where an applicant submits to you folks and there is clear evidence that there are other towers in the area, so there would be a good chance that there would be a negative approval for that particular request because there are these options for co -location. And, the Director may even consider that as well. HALL: Just a point of order, I'd just like to bring us back to this application and let's discuss this application at hand. Thank you. DARROW: Okay. CLARKSON: Well, no, it's, we have a motion on the floor to approve the application and it's been moved and seconded with conditions, and we're discussing the application. We may want to add more conditions. And, just for my understanding, I'd like to ask a question of the Applicant, and it's just basically a business strategy question. Is it cheaper for you to co -locate on somebody else's tower or to erect your own? In other words, are the access fees to the tower so great that it's an incentive MARTIN: No CLARKSON: —for you to build your own tower rather than putting your antenna on a tower just a few feet away. MARTIN: I can't say about the other carriers, but Verizon Wireless requires that we co -locate if there is one available, and that is mostly because of costs. IOSUA: Chair, if I could also respond. Building these towers are very expensive, you know tens of thousands even sometimes hundreds of thousands of dollars, so as a broad general statement and not speaking on behalf of other carriers, it's much more cost-effective to co -locate. The only thing that would maybe change that or dictate building a tower is if the—you know, every cell company has a different radius and a, you know, radiofrequency that it can cover, so if there's an area where they can maximize coverage in another place without, you know, by building a tower, that would be a business consideration. But, again, to confirm what Danette says, as a general statement, it's much, much, much cheaper to co -locate than it is to build your own tower. EXHIBIT D 16 MARTIN: The other reason why I got up here, and the fellow stepped out since then, but I did want to tell you we did provide the Planning Department with some information that they could give to the public from, that was published by the FCC. So, there isif someone has a concern about radiation, they can contact and make a complaint with the FCC, and they will check it out. CLARKSON: Thank you. AU: Mr. Chair, question. So, answer the question, answer Mr. Raffipiy's question. Did you guys reach out and try and co -locate? MARTIN: Yes, there's no towers there. If I could give you a little bit of back-up on this. Back in probably early 2000's Verizon was contacted by Civil Defense, and they had the lava viewing area down there, and they didn't have any cell phone coverage, so they asked if they could provide it so AT&T and Verizon both put temporary, temporary cell towers down there, and they did it—the County went to the State, got the proper, got a grant to use that property for the cell phone towers, and that cell phone tower only covers just a small area around that. Its right next to the church there, and it only covers a small area. As a matter of fact, most of the people that use that tower actually have to drive to it in order to use it, so the temporary cell phone tower that's down there can't be upgraded for the current technology. So, and also it doesn't, like I said, it's got limited coverage. So, the—when this last lava event happened, Civil Defense came to Verizon Wireless and said to hey, we really have to get service to Sea View Estates. And so, that, this project was actually put on hold, but because of that request, it was resurrected. There's not that many people out there to really support a cell phone tower financially, but this is a community service that Verizon really wants to do and that was the reason why it was so important to them to be able to cover not only Sea View Estates, but also Black Sands Estates. That's why the placement was so, so much better, and the radiofrequency engineer is going to be happy that you chose that, the location that you did, because they said it's going to provide them with better coverage. CLARKSON: Thank you. AGUINALDO: So, the panel, just to add on to her question, there's no cell tower down there. They did put up one in Kapoho right next to, little bit past Green Lake, behind an orchard there. It got taken down by lava. I didI, you know, if you guys don't know what is a COW, COW is Cell on Wheels, so on my property at that time, you know, these guys came first, was I think T - Mobile. So, they brought their COW from, all the way from Oahu, and concerns is important, but at this moment is like what Dean said, is the overall. And, down there, there's no cell coverage. Trust me, guys. I live in that area. You squinting just for one bar, just boomp—you cannot even call in Sea View. The only way is through texting. That's the only way. It's so, so hard that there's no other coverage, and what she just said, the recent lava flow, early 2000's is they had a small COW. COW only goes so high. You only can, you gotta close to `em for even get one signal. But, like for Mr. Garcia, going back there, I don't know if you know, like CB radios, get guys which so much frequency. Boom, you can light up a light bulb on someone's CB radio on their car. It's that serious. You know, on a vehicle. You know, it's moving. If the EXHIBIT D 17 guys who do CB, but as far as for Verizon there's—guys, there's nothing out there. Not even one cell tower. So, what they're trying to achieve is, you know, some sort of great to that extent of, in addition to what his concern. Always raise the bar. Raise the bar of excellence so then you don't have any opposition. CLARKSON: Thank you. Any further discussion or questions about this? If not, thank you. I think it's about time to poll the Commission. Remember, this is a motion for approval with conditions. Condition being the location on the right image, 155 -foot setback to the road, all the conditions that were added to the original conditions, and the condition about the access. With that— ANDREWS: Yes, so a vote beginning with Commissioner Au. AU: Yes. ANDREWS: Commissioner Raffipiy? RAFFIPIY: Aye. ANDREWS: Commissioner Replogle? REPLOGLE: Aye. ANDREWS: Commissioner Aguinaldo? AGUINALDO: Aye. ANDREWS: Chair Clarkson? CLARKSON: Aye. ANDREWS: The motion passes five, zero. The discussion ended at 11:44 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 18