HomeMy WebLinkAbout5.28.20 #5 USE 19-082 from ApplicantDeclaration of Andrew Tomlinson
APPLICATION NO. 19-000082 1
[Hawaiian Paradise Park]
HAWAI I WINDWARD PLANNING COMMISSION
DECLARATION OF ANDREW TOMLINSON IN SUPPORT OF REQUEST FOR RECONSIDERATION
OF USE PERMIT APPLICATION NO. 19-000082 [Hawaiian Paradise Park]
I, Andrew Tomlinson, declare as follows:
1.I am a Site Acquisition and Zoning Specialist employed by J5 Infrastructure
Partners, the agent for the applicant New Cingular Wireless PCS, LLC dba AT&T Mobility
(“AT&T”) in regard to the above-referenced Application. I have personal knowledge of the
matters set forth in this Declaration and could testify thereto if called upon to do so.
2.Attached hereto as Exhibit 1 is an annotated Google map prepared by me which
shows the distance from the center of the proposed monopole, extending out in a radius of 105
feet. I have marked on the map the location of, among other things, the playground, parking
lot, and basketball court, to depict their respective locations outside of the identified 105-foot
fall zone.
3.Attached hereto as Exhibit 2 is a true and correct copy of a fully executed Option
and Land License Agreement (the “License Agreement”) between the Hawaiian Paradise Park
Owners Association (the “HOA”) and New Cingular Wireless PCS, LLC (“AT&T”). The License
Agreement details all of AT&T’s rights on the HOA property, including the construction and
operation of the subject monopole.
I declare under penalty of perjury under the laws of the State of Hawaii that the
foregoing is true and correct.
Dated: May 27, 2020
Respectfully submitted,
AT&T Mobility by Andrew Tomlinson, J5 Infrastructure Partners
EXHIBIT 1
105-Feet
Playground
Basketball Hoop
Basketball Hoop
105-Ft Monopine
EXHIBIT 2
AT&T Request for Reconsideration
APPLICATION NO. 19-000082 1
[Hawaiian Paradise Park]
HAWAI I WINDWARD PLANNING COMMISSION
USE PERMIT APPLICATION NO. 19-000082 [Hawaiian Paradise Park]
Brief in Support of Request for Reconsideration by Applicant
New Cingular Wireless PCS, LLC dba AT&T Mobility
I. Introduction
Applicant New Cingular Wireless PCS, LLC dba AT&T Mobility (“AT&T”) respectfully
requests that the Commission reconsider its Proposed Findings of Fact, Conclusions of Law,
Decision and Order (the “FOF”) regarding the use permit for a proposed telecommunications
facility consisting of a 105-foot tall monopole and related equipment located northeast of
-
(the “Application”).
The Commission denied the Application for two reasons: (1) the “proposed tower site is
materially detrimental to the public welfare,” in that there are purportedly facilities within the
fall zone of the proposed 105-foot tower, and (2) AT&T “failed to show [that it has] legal access
to the property.” As set forth in the accompanying Exceptions to the FOF, both of these
conclusions are incorrect, are unsupported and contradicted by the record and additional
that AT&T has submitted in support of this filing.
II. ARGUMENT
A. The Commission Should Reconsider its Proposed Decision and Order.
Under the County of Planning Commission Rules of Practice and Procedure, a
opportunity to file exceptions and present argument to the Commission. Rule 4-25. A party
seeking oral argument before the Commission may file a written request for argument with its
exceptions, brief or statement, and the Commission may grant such request. Rule 4-26. Upon
the filing of the exceptions, brief or statement, the Commission may reopen the docket and
take
AT&T Request for Reconsideration
APPLICATION NO. 19-000082 2
[Hawaiian Paradise Park]
the circumstances. Rule 4-27. AT&T seeks reconsideration of the
Commission’s decision d argument.
B. The Commission Erroneously Denied the Application Based on the Assumed Fall Zone.
The Commission applied erroneous facts and ignored the criteria of the County Code in
denying the Application based on its fall zone determination, as set forth below.
1. The Playground, Parking Lot, and Basketball Backboards are Further Than 105
Feet from the Center of the Proposed Monopole.
The proposed monopole is 105 feet tall. The Commission denied the Application in part
pole’s center, and that if the pole were to fall, it would purportedly endanger any persons using
those facilities. As supported by the drawings and information on sheets C-1, A-1 and A-2 in
Attachment 8 to AT&T’s Application, the aforementioned facilities lie outside the fall zone
for the eastern edge of the basketball court. This fact is further confirmed by the annotated
Google satellite photo attached as Ex. 1 to the Declaration of Andrew Tomlinson in Support of
AT&T’s Motion for Reconsideration (“Tomlinson Dec.”), which shows all but the eastern edge of
the basketball court outside the 105-foot radius of the proposed monopole.
1
2. There is No Evidence that the Monopole is at Risk for Falling.
The proposed monopole is designed to withstand winds of 105 mph and meets all the
structural and safety requirements prescribed for such facilities. See Attachment 8 (T-1) to
Application. The
which is no doubt one reason why the County’s Planning staff determined in its
recommendation that the proposed monopole would “not be materially
1 A AT&T is willing to ensure that the basketball court is no longer used
and is willing to discuss with the Commission any appropriate measures in that regard.
AT&T Request for Reconsideration
APPLICATION NO. 19-000082 3
[Hawaiian Paradise Park]
character or to surrounding properties.” Department Recommendation, January 27, 2020, p. 5.2
3. The Basketball Court Is Non-Operational.
As shown in photos in Attachments 6 and 11 to the Application, the basketball court in
question has two backboards at either end of the court, neither of which has a rim attached.
ain link fence
appropriately enforce a fall zone restriction in this instance (and there is no law suggesting that
if can), there n the designated fall zone, and the
playground is clearly some distance from the edge of the radius. See Ex. 1 to Tomlinson Dec.
B. AT&T Has the Right to Occupy the Subject Property.
The Commission cannot cite to any requirement in the Department Rules, Commission
Rules or the County Code that requires that a use permit applicant it has legal
access to the subject property. The Use Permit Application, for example, merely requires that
the landowner (if the owner is consent for the permit application.
AT&T has met this requirement. See Attachment 7 to Application (Letter of Authorization signed
by HOA President). See also minutes from January 2019 HOA meeting.
no comment or objection when Department Staff solicited comments regarding the Application
from the HOA. (Draft Hearing Transcript March 5, 2020, page 2). Attached to the Tomlinson
Declaration is a copy of AT&T’s License Agreement with the HOA, which clearly establishes
AT&T’s right to use the HOA property. See generally Ex. 2 to Tomlinson Dec.
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2 The Commission’s proposed decision does not cite any regulation that requires the existence
of a fall zone, and AT&T is not aware of any such requirement in Hawaii County , especially when the fall
zone exists entirely within the subject property.
AT&T Request for Reconsideration
APPLICATION NO. 19-000082 4
[Hawaiian Paradise Park]
C. The Application Should be Deemed Approved under Section 25-2-64.
Section 25-2-64 of the County Code in part as follows:
(a) Within ninety days after acceptance of a use permit application, the commission
accompanied by a statement of factual findings supporting the decision, together with
* * *
(c) If the commission fails to render a decision within the prescribed period, the
the use p
– FOF 2). The Commission did
until March 5, 2020, which is 99 days after the date
of acceptance of the Application.
D. The Application Should be Deemed Approved under Section 46-89.
Section 46-89 of the states in part as follows:
broadband-related permits within sixty days of submission of a complete permit
application and full payment of any applicable fee. If, on the sixty-first day, an
For purposes of Section 46-89, “broadband-related permits” means
all county permits required to commence actions with respect to the installation,
nology, including the interconnection of telecommunications
cables, cable installation [and] tower construction.
( Division 1. Government HI ST Section 46-89) (emphasis added). January 27, 2020 was
the 61st day following the County’s acceptance of the Application. As of January 27, 2020, the
County had not acted on AT&T’s Application. The proposed monopole is an expansion of
AT&T’s communications network, to support the latest 4G LTE technology. LTE stands for “Long
, inter alia, broadband speeds to meet
AT&T Request for Reconsideration
APPLICATION NO. 19-000082 5
[Hawaiian Paradise Park]
See Attachment 1
to Application, Section 3.1.
III. Conclusion
The Commission’s conclusion that the proposed 105-foot monopole is materially
detrimental to the public welfare based on the purported risk of the tower falling is not
; the facilities supposedly at risk if the tower were to fall lie outside
and no legal requirement that an intra-property fall zone be established. There is also no
25-2-64 of the County Code (90 days from acceptance), and Section 46-89 of the
(60 days). Based on the foregoing, the Application should be
Department’s recommendation.
Dated: May 27, 2020
Respectfully submitted,
AT&T Mobility by Andrew Tomlinson, J5 Infrastructure Partners
HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 1 of 6
HAWAI I WINDWARD PLANNING COMMISSION
USE PERMIT APPLICATION NO. 19-000082 [Hawaiian Paradise Park]
EXCEPTIONS TO PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION and ORDER,
FILED BY APPLICANT NEW CINGULAR WIRELESS PCS, LLC
June 4, 2020 Commission Hearing
Applicant New Cingular Wireless (“AT&T”) submits its Exceptions to the Commission’s
Proposed Findings of Fact, Conclusions of Law, Decision and Order (the “FOF”) regarding Permit
Application No. 19-000082 (the “Application”), as follows:1
A. INACCURATE FINDINGS OF FACT:
1. Finding of Fact A.5: “On January 29, 2020, Michael Yee, Planning Director, sent
his background report and recommendation on the Application to the Commission.”
This Finding is Incomplete as Follows:
Planning Director Michael Yee’s background report to the Commission recommended
the approval of the Application. (Department Recommendation, January 27, 2020).
2. Finding of Fact A.13: “The Commission . . . denied [the Application] based on a
playground, parking lot, and basketball court being located within the fall-radius of the 105-foot
telecommunications tower and the Applicant failed to show proper legal access to the
property.”
This Finding is Inaccurate, and not Supported in the Record as Follows:
The playground, parking lot, and basketball backboards are located outside the fall-
radius of the 105-foot monopole; only the eastern edge of the abandoned basketball court lies
in the fall zone. There is also no evidence to support any conclusion that AT&T does not have
legal access to the subject property. (See Exs. 1 and 2 to Declaration of Andrew Tomlinson in
Support of Motion for Reconsideration (“Tomlinson Dec.”), filed herewith; see also Attachment 7
to Application – Letter of Authorization signed by Homeowners Association (“HOA”) President).
Moreover, the Commission cannot cite to any regulation that requires the existence of a
designated fall zone, especially when the fall zone exists entirely within the subject property.
3. Finding of Fact C.9: “The playground, parking lot, and basketball court are
located within the fall-radius of the 105-foot telecommunications tower.”
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1 AT&T submits these Exceptions pursuant to Rule 4-25 and seeks oral argument and
reconsideration before the Commission under Rules 4-26 and 4-27.
HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 2 of 6
A. INACCURATE FINDINGS OF FACT (cont.):
This Finding is Inaccurate, and not Supported in the Record as Follows:
The playground, parking lot, and basketball backboards are located outside the fall
zone; only the eastern edge of the abandoned basketball court remains in the fall zone. (See
Attachment 8 to AT&T’s Application sheets C-1, A-1, A-2, showing facilities at least 135 feet
from proposed monopole’s center; see also Ex. 1 to Tomlinson Dec.)
B. OMITTED FINDINGS OF FACT:
The following relevant facts were omitted from the FOF:
1. Attachment 8 to AT&T’s Application shows the distance from the monopole to
the chain link fence as approximately 135 feet (See Sheets C-1, A-1, and A-2). The playground
sits beyond the chain link fence, further from the proposed monopole. (See Ex. 1 to Tomlinson
Dec.).
2. The basketball backboard facilities lie outside the 105-foot fall zone; only the
eastern edge of the abandoned court lies within the fall zone. Attachment 6 to AT&T’s
Application includes photos that show the court as abandoned and lacking rims, thus making it
extremely unlikely that any persons would be using that facility.
3. At the Commission hearing on February 6, 2020, the Commission closed public
testimony and made a motion to approve the Application. Three commissioners voted to
approve the Application and only one voted to deny. (Hearing Transcript, February 6, 2020,
motion made page 19, vote taken page 21).
4. There is no requirement in the Department Rules, Commission Rules or the
County Code that a use permit applicant prove it has legal access to the subject
property. The sole requirement related to this issue is in the Use Permit Application, which
merely requires the landowner (when not the applicant) provide consent for the application.
Larry Kawaauhau, HOA President, signed the Letter of Authorization attached as Attachment 7
to the Application. AT&T also has a signed License Agreement with the HOA. (See Ex. 2 to
Tomlinson Dec.).
5. The minutes from the HOA’s January 16, 2019 meeting show the HOA vote
approving the negotiations with AT&T. (Testimony presented to Windward Planning
Commission 2.28.20).
6. At the March 5, 2020 hearing, Department Staff testified that they timely
provided a copy of the Application to the HOA for comments, but the HOA did not comment on,
object to, or respond to the Application in any way. (Draft Hearing Transcript March 5, 2020,
page 2).
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HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 3 of 6
7. Section 25-2-64 of the County Code provides as follows:
(a) Within ninety days after acceptance of a use permit application, the commission
shall either deny or approve the application. The commission’s decision shall be
accompanied by a statement of factual findings supporting the decision, together with
any conditions imposed upon a use permit approval.
* * *
(c) If the commission fails to render a decision within the prescribed period, the
application shall be considered as being approved, provided that no written objection to
the use permit is received by the commission.
8. No written objection was received by the Commission within 90 days of the
acceptance of the Application (which was accepted on November 27, 2019 – FOF 2). The
Commission did not act (to approve or deny) the Application until March 5, 2020, which is 99
days after the date of acceptance of the Application.
9. Section 46-89 of the Revised Statutes states that “A county shall
approve, approve with modification, or disapprove all applications for broadband-related
permits within sixty days of submission of a complete permit application and full payment of
any applicable fee. If, on the sixty-first day, an application is not approved, approved with
modification, or disapproved by the county, the application shall be deemed approved by the
county.” For purposes of Section 46-89, “broadband-related permits” means all county permits
required to commence actions with respect to the installation, improvement, construction, or
development of infrastructure relating to broadband service or broadband technology,
including the interconnection of telecommunications cables, cable installation [and] tower
construction.” ( Division 1. Government HI ST Section 46-89) (emphasis added).
10. January 27, 2020 was the 61st day following the County’s acceptance of the
Application. As of January 27, 2020, the County had not acted on AT&T’s Application.
11. The FirstNet network was authorized by Congress, developed through the U.S.
Department of Commerce, and is being built through a public-private partnership between
AT&T and local governments. The network gives first responders priority in emergency
situations to send voice or text messages, images, video and location information in real-time,
enables information-sharing across disciplines and jurisdictions, dramatically increases
situational awareness, and supports faster, more effective responses to emergencies or
disasters. The subject monopole, once built, will be part of the FirstNet network in , and
will become part of the dedicated emergency first responder FirstNet network in times of
emergency. Denial of the instant Application threatens the development of the interconnected
AT&T communications sites as part of the FirstNet network. (See generally, Hearing Transcript,
March 5, 2020, pp. 3-4).
///
///
HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 4 of 6
12. The County Fire Department (HCFD) submitted a letter in support of the
Application, stating that:
HCFD is a vested recipient of the build out FirstNet, a broadband network dedicated to
public safety. The fact that is the first to roll [this] out speaks volumes to the
readiness of AT&T to provide the service to Island. FirstNet allows our
department priority and preemption while on FirstNet, thereby securing optimum
emergency response by increasing optimum communication among our first
responders.
The letter further states that the tower “will only further strengthen the FirstNet
broadband for all emergency services providers [and will] also strengthen the general public’s
ability to communicate emergency needs. In the interest of increased safety to the members of my
department, other public safety employees, and our communities, [we] ask for your support of”
the Application. (See generally, Hearing Transcript, March 5, 2020, pp. 5-6).
13. The County Police Department (HCPD) submitted a letter in support of
the Application, stating that
In concert with the County owned Land Mobile Radio (LMR) system, our Department
and its officers depend upon cellular to do our jobs efficiently. In the event of poor LMR
reception, cellular coverage may provide a vital means of communication which helps
ensure officers safety, and in turn increase public safety.
The HCPD further stated that the proposed monopole site was a “vital part of building
this network for our community and will provide a more reliable network for our department,
other emergency services, and the public.” (See generally, Hearing Transcript, March 5, 2020,
pp. 5-6).
14. The proposed monopole is designed to withstand winds of 105 mph. (See
Attachment 8 (T-1) to the Application). This fact was not included in the FOF. The Commission
ignored the safety and structural information in the record and assumed, without any evidence,
that the proposed monopole was at risk of failure.
15. The proposed monopole is an expansion of AT&T’s communications network, to
support the latest 4G LTE technology. LTE stands for “Long Term Evolution.” LTE technology is
the next step in increasing, inter alia, broadband speeds to meet the demands of uses and the
variety of content accessed over mobile networks. (See Attachment 1 to Application, Section
3.1).
16. The County of Planning Department staff, in recommending that the
Application be approved, determined that the proposed use would not be materially
detrimental to the public welfare nor cause substantial, adverse impact to the community's
character or to surrounding properties. (Department Recommendation, January 27, 2020, p. 5).
///
HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 5 of 6
C. ERRONEOUS CONCLUSIONS OF LAW
1. The Commission’s conclusion that the proposed 105-foot monopole site is
materially detrimental to the public welfare based on the purported risk of the monopole
falling is not supported by the evidence, as follows: (a) there is no evidence that the monopole
will fall; (b) there is no evidence that if the monopole fell it would cause any damage, since
there are no known structures or activities conducted within the fall zone; (c) the playground,
parking lot, and basketball backboards are located outside the fall zone; only the eastern edge
of the court remains in the fall zone; (d) the fall zone exists exclusively within the property of
AT&T’s landlord, the HOA – if the monopole were to somehow fall, it would fall within the HOA
property.
2. The Commission’s conclusion that AT&T failed to show it had legal access to the
subject property for construction of the subject monopole is not supported by the evidence,
and no such requirement exists in the applicable law. The sole requirement related to this issue
may be found in the Use Permit Application, which merely requires the landowner (if not the
applicant) provide consent for the application. This requirement was met in this case (See
Attachment 7 to the Application); there is no evidence that the Association did not give AT&T
permission to access the property. Moreover, AT&T also has a signed License Agreement with
the HOA. (See Ex. 2 to Tomlinson Dec.).
3. The Application is deemed approved because the Commission did not render a
decision by February 25, 2020 (90 days from the date of the application acceptance) and no
written objection to the Application was received prior to that time.
4. The Commission’s decision violates the Puna Community Development Plan
(CDP), Ordinance 08 116 (on September 10, 2008), Action 3.4.3(e), which seeks to “Encourage
enhancement of cell phone service to expand coverage to more remote areas.” (FOF D.4).
5. The Commission’s decision violates Section 46-89 of the Revised
Statutes, which holds that
A county shall approve, approve with modification, or disapprove all applications for
broadband-related permits within sixty days of submission of a complete permit
application and full payment of any applicable fee. If, on the sixty-first day, an
application is not approved, approved with modification, or disapproved by the county,
the application shall be deemed approved by the county.
For purposes of Section 46-89, “broadband-related permits” means “all county permits
required to commence actions with respect to the installation, improvement, construction, or
development of infrastructure relating to broadband service or broadband technology,
including the interconnection of telecommunications cables, cable installation [and] tower
construction.” (Hawaii Division 1. Government HI ST Section 46-89) (emphasis added). The
County did not deny the application (at the earliest) until March 5, 2020, well beyond the 61st
day limit (January 27, 2020), and thus must now deem the Application approved.
HAWAIIAN PARADISE PARK (No. 19-000082)
AT&T Exceptions to FOF Page 6 of 6
Dated: May 27, 2020
Respectfully submitted,
AT&T Mobility by Andrew Tomlinson, J5 Infrastructure Partners