HomeMy WebLinkAbout5.28.20 #4 USE 19-081 from ApplicantAT&T Request for Reconsideration
Application No. 19-000081 1
[Kurtistown]
WINDWARD PLANNING COMMISSION
USE PERMIT APPLICATION NO. 19-000081 [Kurtistown]
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 above-referenced Application for a use permit for a
proposed telecommunications facility consisting of a 180-foot tall monopole and related equipment
the “Application”).
The Commission made its decision to deny the Application on just one alleged factual
finding, i.e., that the proposed tower “would be materially detrimental to the public welfare
because the site of the proposed tower has caused and will continue to cause residents of
adjacent properties and parents of students at Kamehameha School extreme emotional
duress.” This conclusion is contrary to law and should be reversed.
II.ARGUMENT
A.The Commission Should Reconsider its Proposed Decision and Order.
Under the County of Planning Commission Rules of Practice and Procedure, a
final Commission decision shall not be made until an adversely affected party has the
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 further evidence or may make such other disposition of the case that is necessary under
the circumstances. Rule 4-27. Pursuant to the above rules, AT&T seeks reconsideration of the
Commission’s decision and the opportunity to present additional evidence and argument.
AT&T Request for Reconsideration
Application No. 19-000081 2
[Kurtistown]
B. The Commission’s Decision Violates Federal Law.
The “emotional distress” expressed by the public testifiers at the hearings on this matter
was grounded solely in their fear of radio frequency (RF) emissions from the proposed
monopole. Though this fear is not grounded in fact, it is also not a valid basis for denying a use
permit, and its consideration (as conceded by several Commission members) violates Federal
Communications Commission (“FCC”) regulations and federal law.
(c)(7)(b)(iv)); see also Seattle SMSA Ltd. P'ship v. San Juan Cty.,
(Board’s denial of cell tower permit based on “’vehement opposition’” of residents
and property owners . . . fears of reduced property values . . . [and] concerns about the health
effects of radio frequency emissions from the cellular facilities,” must be reversed since such
evidence “could not be considered . . . as a matter of law”).
Most, if not all, of the residents based their opposition on their fear of alleged RF
exposure. follows:
: page 7 (E. Ellwood); page 9 (W. Ellwood); page 15 (Maneja-Andres);
page 16 (Maneja); page 17 (Medeiros-Garcia). : page 13 (Romero); page
17 (Lucero); page 18 (E. Ellwood); page 20 (Mathews); page 21 (Muise); page 21 (Mentnech);
page 25 (Kanealii -Kleinfelder).
The Commission’s finding was contrary to the Planning Department’s earlier
determination that granting the Application would “not be materially detrimental to the public
welfare nor cause substantial, adverse impact to the community’s character or to surrounding
properties.”
(emphasis added). The RF limits imposed by applicable FCC regulations as applied to the subject
Kurtistown pole are approximately 580 microwatts per square centimeter.
The projected
RF emissions for the subject Kurtistown project at ground level are less than 1% of the
applicable FCC RF limit. Attachment 4 to Application.
AT&T Request for Reconsideration
Application No. 19-000081 3
[Kurtistown]
Commissioner Repogle, at the March 5 hearing, conceded that the public’s RF concerns
could not be a basis for the Commission’s decision on the Application, and stated that “AT&T is
not doing anything inherently wrong. They are following the law. They are filling in the space
for this net system that is going to provide a life-saving system for all our people, and we have
heard these concerns over and over from people, and basically, my understanding is we are
constrained to a degree by these laws.”
Commissioner Au, also at the March 5 hearing, likewise confirmed that AT&T’s Application was
complete, and suggested there was no legal basis for its denial.
There is no factual or legal support for the Commission’s denial of the Application. The
proposed decision should be reconsidered and reversed.1
C. The Application Should be Deemed Approved under Section 46-89.
Section 46-89 of the Revised Statutes states in part as follows:
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.
(Hawa Section 46 -(emphasis added). The Application was
deemed complete on November 22, 2019.
1 AT&T had earlier in the proceedings offered to meet with community residents and seek to
allay their concerns about RF emissions from the monopole. AT&T is still willing to conduct such a
meeting or meetings as a condition of approval.
AT&T Request for Reconsideration
Application No. 19-000081 4
[Kurtistown]
(AT&T’s Agent). January 22, 2020 was the 61st day following the County’s acceptance of the
Application. As of January 22, 2020, the County had not acted on AT&T’s Application.
III. Conclusion
The Commission based its decision on just one alleged factual finding, i.e., that the
proposed tower “would be materially detrimental to the public welfare because the site of the
proposed tower has caused and will continue to cause residents of adjacent properties and
parents of students at Kamehameha School extreme emotional duress.” This conclusion is
contrary to law, and based on the foregoing, should be reversed. The decision also violates
Section 46-89 of the Revised Statutes, in that the Application should be deemed
approved as not being ruled upon within 60 days of acceptance.
Dated: May 27, 2020
Respectfully submitted,
AT&T Mobility by Andrew Tomlinson, J5 Infrastructure Partners
KURTISTOWN (No. 19-000081)
AT&T Exceptions to FOF Page 1 of 5
WINDWARD PLANNING COMMISSION
USE PERMIT APPLICATION NO. 19-000081 [Kurtistown]
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. 19-000081 (the “Application”), as follows:1
A. INACCURATE and/or INAPPROPRIATE 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. (Hearing Transcript, February 6, 2020, p. 2).
2. Finding of Fact G.2: “Throughout both hearings, the public testifiers displayed
extreme emotional duress because of the proposed tower site.”
This Finding is Inappropriate as Follows:
The “emotional distress” reportedly expressed by the public testifiers was grounded
solely in their fear of radio frequency (RF) emissions from the proposed tower. Though this fear
is not grounded in fact, it is also not a valid basis for denying a use permit, and its consideration
(as conceded by several Commission members) violates Federal Communications Commission
(“FCC”) regulations and federal law. ; s ee also Seattle SMSA
Ltd. P'ship San Juan Cty., (Board’s denial of cell
tower permit based on “’vehement opposition’” of residents and property owners . . . fears of
reduced property values . . . [and] concerns about the health effects of radio frequency
emissions from the cellular facilities,” must be reversed; such evidence “could not be
considered . . . as a matter of law”).
///
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.
KURTISTOWN (No. 19-000081)
AT&T Exceptions to FOF Page 2 of 5
The residents who provided public testimony based their opposition almost exclusively
on their fear of alleged RF exposure. See, e.g., generally, Hearing Transcripts, February 6 and
March 5, 2020, as follows:
February 6, 2020 Hearing: page 7 (E. Ellwood); page 9 (W. Ellwood); page 15 (Maneja-
Andres); page 16 (Maneja); page 17 (Medeiros-Garcia).
March 5, 2020 Hearing: page 13 (Romero); page 17 (Lucero); page 18 (E. Ellwood); page
20 (Mathews); page 21 (Muise); page 21 (Mentnech); page 25 (Kanealii -Kleinfelder).
B. OMITTED FINDINGS OF FACT:
The following relevant facts were omitted from the FOF.
1. The County Planning Director, in recommending approval of the Application,
found that the project would “not be materially detrimental to the public welfare nor cause
substantial, adverse impact to the community’s character or to surrounding properties.”
( (emphasis
added).
2. All wireless facilities must comply with FCC regulations to limit human exposure
to radio frequency (RF) signals. These FCC regulations were developed by scientists and
supported by other federal agencies. (See generally -
technology/electromagnetic-compatibility--frequency-safety/faq/rf-).
3. The limits imposed by the applicable FCC regulations as applied to the subject
Kurtistown monopole are approximately 580 microwatts per square centimeter. (
Transcript, March 5, 2020, p).
4. The projected RF emissions for the subject Kurtistown tower project at ground
level are less than 1% of the applicable FCC RF limit. (Attachment 4 to Application).
5. Commissioner Repogle, at the March 5 hearing, conceded that the public’s RF
concerns could not be a basis for the Commission’s decision, and stated that “AT&T is not doing
anything inherently wrong. They are following the law. They are filling in the space for this net
system that is going to provide a life-saving system for all our people, and we have heard these
concerns over and over from people, and basically, my understanding is we are constrained to a
degree by these laws that AT&T mentioned. They didn’t make the laws, but . . . you can’t
oppose the cell tower based on health.” (t Hearing Transcript, March 5, 2020, p ).
6. Commissioner Au, at the March 5 hearing, also confirmed that AT&T’s
Application was complete, and there was no legal basis for its denial: “I just want to put on
record that the Applicant has done all that they are supposed to do based off all the testimony,
based off all of the notifications. They’ve done exactly what they are supposed to do required
by the Planning Department.” (. ).
KURTISTOWN (No. 19-000081)
AT&T Exceptions to FOF Page 3 of 5
7. The Application was deemed complete on November 22, 2019. (
8. Section 46-89 of the Revised Statutes states
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-
9. January 22, 2020 was the 61st day following the County’s acceptance of the
Application. As of January 22, 2020, the County had not acted on AT&T’s Application and did
not act until the March 5, 2020 hearing.
10. 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 development of the interconnected
AT&T communications sites as part of the FirstNet network. (See generally, Hearing Transcript,
March 5, 2020, pp. 5-6).
11. The Hawai`i 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
KURTISTOWN (No. 19-000081)
AT&T Exceptions to FOF Page 4 of 5
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).
12. 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).
13. The proposed tower 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 Attachmen
C. ERRONEOUS CONCLUSIONS OF LAW
1. The Commission based its decision on just one factual finding, i.e., that the
proposed tower “would be materially detrimental to the public welfare because the site of the
proposed tower has caused and will continue to cause residents of adjacent properties and
parents of students at Kamehameha School extreme emotional duress.” This decision is
contrary to law.
Section 332(c)(7) Section 332(c)(7) of the Federal Communications Act states that a
state or local government may not, inter alia, regulate in a manner that prohibits or has the
effect of prohibiting the provision of personal wireless services, must act on applications within
a reasonable period of time, and must make any denial of an application in writing supported
by substantial evidence in a written record. The statute also preempts local decisions premised
directly or indirectly on the environmental effects of RF emissions, assuming that the provider is
in compliance with the FCC’s guidelines on RF emissions. ().
2. 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.” (.4).
3. 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
KURTISTOWN (No. 19-000081)
AT&T Exceptions to FOF Page 5 of 5
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-. The
County did not deny the application (at the earliest) until March 5, 2020, well beyond the 61st
day limit (January 22, 2020), and the County must now deem the application approved.
Dated: May 27, 2020
Respectfully submitted,
AT&T Mobility by Andrew Tomlinson, J5 Infrastructure Partners