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HomeMy WebLinkAbout2020-06-04 Exh D New Cingular dba AT&T USE 19-081 (FOFCOLD&O) WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 4, 2020 A regularly advertised hearing on the consideration and adoption of proposed Findings of Fact, Conclusions of Law and Decision and Order for NEW LINGULAR PCS, LLC DBA AT&T MOBILITY (USE 19-000081) was called to order at 12:02 p.m. via live stream meeting with Chairman Thomas Raffipiy presiding. VIRTUAL ATTENDANCE (COMMISSIONERS): Gilbert Aguinaldo, Dean Au, Joseph Clarkson, Thomas Raffipiy, John Replogle. VIRTUAL ATTENDANCE (STAFF): Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Michael Yee (Planning Director), John Mukai (Deputy Corporation Counsel for the Planning Director); Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Alex Roy (Planner), Jessica Andrews (Planner), Christian Kay (Planner); Rachelle Ley (Department Secretary), and Sarah Hata-Finley (Commission Secretary). And 18 members from the public live streaming the meeting. APPLICANT: NEW LINGULAR WIRELESS PCS, LLC DBA AT&T MOBILITY (USE 19-000081) Consideration and Adoption of Proposed Findings of Fact, Conclusions of Law and Decision and Order for denial of a Use Permit to allow the construction of a non-manned telecommunication facility consisting of a 180-foot tall monopole and related equipment within a 2,500-square foot portion of a 9.65-acre property situated in the County's Agricultural zoning district. The subject property is located north of Kua`aina Road, approximately 0.5 miles from the intersection with Volcano Road (Highway 11), Kea`au, Puna, Hawaii, TMK: (3) 1-7-031:031. Secretary's Note: "—"means that there were technical and/or internet difficulties which made the conversation inaudible. RAFFIPIY: The next item on the agenda, New Cingular Wireless PCS, LLC dba AT&T Mobility, USE 19-000081, consideration and adoption of Proposed Findings of Fact, Conclusions of Law and Decision and Order for denial of a Use Permit to allow the construction of a non-manned telecommunication facility consisting of a 180-foot tall monopole and related equipment within a 2,500-square foot portion of a 9.65-acre property situated in the County's Agricultural zoning district. The subject property is located north of Kua`aina Road, approximately 0.5 miles from the intersection with Volcano Road(Highway 11), Kea`au, Puna, Hawaii, TMK: (3) 1-7-031:031. Are the Applicants or representatives, I will need to swear you in. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Windward Planning Commission? EXHIBIT D 1 TOMLINSON: Yes. SONGVILAY: Yes. LYONS: Yes. RAFFIPIY: All right. Do you have any comments? TOMLINSON: Yes, we do. RAFFIPIY: Go ahead, Mr. Tomlinson. TOMLINSON: Thank you. Aloha, Mr. Chair and Members of the Windward Planning Commission. As you know, my name is Andrew Tomlinson. I'm with, with Elizabeth Sonvilay and Ken Lyons representing AT&T today. Thanks for the opportunity to address the Commission regarding the Proposed Findings of Fact, Conclusions of Law, and Decision and Order for the proposed 180-foot tall monopole in Kurtistown. As you know, since March 51h, we've all been impacted by, you know, the stay-at-home orders throughout the State, and this hearing is an excellent example of our need for communications technology. On any given day at the height of this crisis, AT&T has seen 30 to 50 percent increase of usage on its networks. Today, there's an on-going discussion nationwide and actually within our State about what the future looks like for technology and how it could be utilized. AT&T has received numerous inquiries from the community about coverage in Kurtistown and in Kea`au areas. Community members highlighted the lack of access to broadband wireless services leaving numerous households and families with few options to access the internet for work, school, or healthcare. This current crisis really underscores why the Kurtistown facility we're proposing is so critical. This Kurtistown facility would fill a significant gap in wireless coverage allowing those in the area to utilize cell phones and hot spots for internet access. In addition, broadband fiber would be brought to the proposed site. It can be utilized to benefit the surrounding communities. AT&T has provided you all with a written response to the Findings of Fact and Conclusions of Law and Decision and Order. The Findings of the proposed facility would "be materially detrimental to the public welfare because the site of the proposed tower has caused and will continue to cause...`extreme emotional distress"' [sic-duress] is contrary to law, and we respectfully request the Commission reconsider its decision and approve this application without delay for the following reasons. Principally, the Commission's hearing violates Federal law. During the previous hearing for the Use Permit application, the "emotional distress" expressed by public testifiers was grounded solely in their fear of radio frequency, RF, emissions from the proposed monopole, and this fear is, is not grounded in fact. AT&T submitted evidence to show that the proposed Kurtistown facility will meet FCC emissions requirements and, in fact, in the worse-case scenario to the EXHIBIT D 2 public, the exposure possibility is less than one percent of the FCC emission limit. Extreme emotional distress over RF emission is not a valid basis for denying a Use Permit. It is expressly preempted by Federal law which states, and I'm quoting, "No State or local government [or instrumentality thereof] may regulate the placement, construction, and the modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the admissions [sic-Commission's] regulations concerning such emissions." Again, this proposed facility is in compliance with FCC regulations. In addition, I'd like to point out the Planning Commission's finding is contrary to the Planning Director's and staff's determination that granting the application would not materially be detrimental to the public welfare or cause substantial, adverse impact to the community's character or to surrounding properties. The Commission also acknowledged in the last hearing that this, that this was the case. Commissioner Replogle at the March 5h 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 on the March 5 1 hearing likewise confirmed that AT&T's application was complete and suggested there was no legal basis for its denial. And, to build upon the comments of Commissioner Replogle, I just want to point out and highlight two letters that we received in support for this application from the Hawai`i County Fire and the Hawaii County Police both customers of FirstNet and the first nationwide public safety broadband network being built by AT&T. Kurtistown is a known gap area for cell coverage, and this site was chosen to fill that gap. In addition to the community benefits of improved wireless coverage, the facility will greatly assist our first responders during emergencies in their Kurtistown and Kea`au areas. So, under Hawaii County Planning Commission Rules [of Practice] and Procedure 4-25, 4-26, and 4-27, AT&T respectfully is requesting the Commission reconsider its decision today and approve the Use Permit application. We ask the Commission consider the need for improved cell coverage on Hawaii Island and the importance of extending broadband wireless service for the community and for public safety. Mahalo for your time and the opportunity to address the Commission, and we are happy to answer any questions you might have. RAFFIPIY: Thank you very much, Mr. Tomlinson. Appreciate it. Do we—first of all, Commissioners, have you all read the written testimonies that was submitted by the public and the Applicant? Mr. Replogle, were you able to read those? REPLOGLE: Yes. EXHIBIT D 3 RAFFIPIY: Thank you. Mr. Au? AU: Yes. RAFFIPIY: Mr. Clarkson? CLARKSON: I have, yes. RAFFIPIY: Mr. Aguinaldo. AGUINALDO: Yes. RAFFIPIY: I did, I did read. Anybody have any comments? Any questions? CLARKSON: I have a comment. V'—"" for the approval of the application at the last meeting we attended, and I will vote against these Findings of Fact now. That's all I have to say. I don't know if they, if the Findings of Fact are approved, my opinion is that they are extremely weak and will be overruled by the Third Circuit, the third district, and that's all I have to say. RAFFIPIY: All right, thank you. Any questions? All right. I need a motion for action on the adoption of Proposed Findings of Fact, Conclusions of Law, and Decision and Order. Anybody from the Commission? Mr. Au? AU: Thank you, Mr. Chair. I move that the Commission enter into executive session to consult with our attorney on the questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities pursuant to HRS 92-5. RAFFIPIY: " " able to conduct executive session with, with the restriction and constriction of the media that we have. Sorry about that. Malia, do you have any comment on that? HALL: Hi Chair. Yeah, I mean, we don't really have with this virtual meeting, we don't really have the ability to do executive session. Procedurally, your options are, if you believe that the Findings of Fact, Conclusions of Law, Decision and Order no longer, you know, with the, with what the Applicant has presented no longer supports your prior findings and decision, then you guys are allowed to then, you know, change those to what you think will support Findings. And, if you have read through Applicant's motion for reconsideration, if you would like to also make a motion to reconsider, you can do that as well. RAFFIPIY: Thank you. Right now, I still need a motion for action. Mr. Clarkson? CLARKSON: I move to reconsider the original application. REPLOGLE: Second. EXHIBIT D 4 RAFFIPIY: There is a motion on the floor by Mr. Clarkson, seconded by Mr. Replogle that reconsider the prior decision. Any discussion on that? Mr. Clarkson. CLARKSON: Yes, I'd like to speak to my motion for reconsideration. I understand the concern about the often times very emotional testimony that was presented at our last public hearing and "—" [noise disturbance] sorry, while I take that into account, I don't believe that law allows us to consider that as material. The tower is on a very large piece of property. It is isolated. It's fall radius doesn't encompass any structures whatsoever, and it's received a lot of support from first responders. We've approved numerous cell towers in the past, and I see this one as being basically no different from any others we've approved, and I would urge all of the Commissioners to reconsider with the idea that the original application be approve as petitioned by the Planning Department. That's all I have. RAFFIPIY: All right. Staff, please take the roll call vote. ROY: Sorry, folks, I just thought you were going to do an overall aye or nay. So, moved by Commissioner Au, right? HALL: Clarkson. ROY: Clarkson? And seconded by Commissioner Au. REPLOGLE: Replogle. ROY: Oh Replogle, okay, sorry. HALL: Eighty-one [To Mr. Kay]. KAY: Okay. ROY: This is the wrong one? [To Ms. Hall] HALL: That's okay,just [inaudible] it. ROY: Oh, okay. Why does this say Dela Cruz? HALL: Commissioner Clarkson? ROY: Yeah, Commissioner Clarkson? CLARKSON: Aye. HALL: Replogle. ROY: Commissioner Replogle? EXHIBIT D 5 REPLOGLE: Aye, aye, aye. ROY: Commissioner Aguinaldo? AGUINALDO: Aye. ROY: Commissioner Au? AU: Aye. ROY: And Chair Raffipiy? RAFFIPIY: Nay. HALL: Motion passes. ROY: Yeah, motion passes four to one. RAFFIPIY: All right, thank you very much. We'll move right into the next item on the agenda. HALL: Now you guys, now you have to actually reconsider the application so you have to make another motion to either approve or deny based on either the Planning Director's recommendation, original recommendation or deny for other reasons. RAFFIPIY: Oh, I see. HALL: Yeah. RAFFIPIY: I see, yeah. I stand corrected. Go ahead, Mr. Clarkson. CLARKSON: I'll go ahead and "—"that Use Permit Application Use Permit 19-000— ROY: Excuse me, Joe? Commissioner? Jeff, go ahead. DARROW: I'm sorry, Joe, Commissioner Clarkson. Can I chime in on this, please? RAFFIPIY: Go ahead, Mr. Darrow. DARROW: Thank you. These two applications were very contentious. We had a lot of public testimony, a lot of public opposition in letters and in verbal testimony. I would highly recommend that the Commission postpone this until a time where the public can actually be a part of the process. In this particular avenue that we have right now, it's extremely limited. The public testimony that we have received up to this time which can only be submitted written, they, the public does not know of this request for a [re]consideration as well as this motion to even consider, reconsidering approving the permit. So,what I would highly recommend is if you vote EXHIBIT D 6 reconsider, that we continue until a time where the public has an opportunity to actually be a part of the process. That's my thoughts. RAFFIPIY: Thank you, Mr. Darrow. Appreciate it. Any other comments on that from the Commission? Go ahead, Mr. Aguinaldo. AGUINALDO: Yes, Commissioner Aguinaldo here. I agree with Jeff on it because there were a lot of public testimonies relating to this cell tower location. So, I would like to just indicate that as well that I do agree, what our staff, Jeff, indicated as well. RAFFIPIY: Thank you, Mr. Aguinaldo. Mr. Clarkson? CLARKSON: Yes, I have a question for Commission counsel, Malia. If we take no action today, either to approve the Findings of Fact or do no reconsideration itself, what is the status of the application? Are there time limits where it will be automatically denied or automatically approved? I'm not, I'm just not familiar with the law as to indefinite deferral. HALL: I believe this rule is 60 days, and then there would be an approval if there's no action taken today but let me go double check the rule. CLARKSON: If I may continue then while she is checking. I, I think that Jeff is right that the public is unaware of the motion for reconsideration, but I also believe that there has been ample opportunity both in person and in writing from members of the public to make their opinion very well known to all of us, and that I see little chance that a future public hearing is going to add something new to our consideration of this matter. And, so,therefore, I would ask us to, you know, put our courage to the sticking post and either approve the application or approve the Findings of Fact and provide some closure to this matter so that the Applicant can continue on with their either construction of their project or they can continue with their legal appeals. RAFFIPIY: Thank you, Mr. Clarkson. REPLOGLE: Mr. Chairman? HALL: Sorry, let me just jump in real quick, John, and then you can go. Yeah, so Rule 7. 7-7 Planning Commission Rules within if at the close of this hearing within 60 days if there's no action, then the, basically it would be approved. RAFFIPIY: Thank you, Malia. Mr. Replogle? REPLOGLE: I just wanted to say I agree with what Joe pointed out. We know what the public thinks and how they feel. We're going to hear it again and again for every cell tower, and it's my understanding stated earlier that we legally can't deny this. If it's not going to,the pole is not going to fall on anyone, then basically we're, we'reI don't even understand why they still come to us, but that's why I think we should move on or take the 60 days no action and they get to do it, but I would rather say go ahead and do it. Anyway, my opinion. Thank you. EXHIBIT D 7 RAFFIPIY: Thank you. Any other discussion? DARROW: Commissioner Aguinaldo is asking, has his hand up. RAFFIPIY: Go ahead. DARROW: You're muted, Gilbert. AGUINALDO: Hello, I'm back. So, relating to cell towers, like every district has a design committee. So, does this have to be reviewed as well in Kea`au? Because it's kind of like certain districts or towns they have their design committee, yeah? To be constructed. Does that fall in that guideline? RAFFIPIY: Go ahead, Mr. Darrow. DARROW: There's no design committee or commission in this particular area. AGUINALDO: Okay. I yield. RAFFIPIY: Thank you. Mr. Au? AU: Thank you, Mr. Chair. So, I see Director Yee thinking. Maybe I want to hear his thoughts, and I'd actually like to hear the Applicant's thoughts. Maybe Mr. Lyons or Ms. Songvilay, or Mr. Tomlinson? Any comments from the Applicant or our fearless leader, Director Yee? YEE: I would agree with the statement that yes, you should make a decision today. This, having this Covid issue and having to do it online, not having public testimony, the community was outside our doors here protesting with signs, about a half a dozen of them, and so from that standpoint of, and they question the Sunshine Law, their ability to be part of the process. It, you certainly will raise that question if you approve the application today, and that worries me. I would want to know at least for the record, you would really want to know why you're taking it for each individual member to understand why you're taking up the reconsideration today and why these issues weren't, let's say, part of your decision-making at the last time. I mean I get it, this is a tough one. I have been, certainly been put in this position before. This is unique having to do this online and stuff. Those are my comments for now. RAFFIPIY: Thank you, thank you. Yeah, I think for me, the reason, the reason I voted no was basically because of what, what Mr. Yee just said and Mr. Darrow said. I'm worried about the, you know, that, yes, we, we were getting the public testimonies on papers, but there may still have some who will say they don't have the ability to type, they don't have the ability to fax, they don't have the ability to use computer or anything they could submit their testimonies on who would, who would be there to voice oral testimony and, you know,they I think may claim that they are denied that opportunity to participate. So, that's the reason why, and also what Mr. Yee said about why, why is it that we change our,you know, our mind right now. So, for me, I'm going to stick for what, how I voted, and I'll continue to stick to it. That's my comment. Thank you. Mr. Aguinaldo? You are muted, Mr. Aguinaldo. EXHIBIT D 8 AGUINALDO: I agree on what our Planning Director, Mr. Yee, indicated and Jeff as well as for you. I know for AT&T, yes, communication is very important. Yes, it is a key valuable thing right now. As, you know, for people, is, you know, wireless connection or whatever it is. Okay, but the concern that I have is, you know, again, there were a lot of public testimony and what our Planning Director indicated was why now? You know, or like why now? But, the alternative side is I only wish that they had Plan A, Plan B, and for me was there are existing areas, or if this particular location doesn't work, was there any alternative site they have, chosen, you know, if Plan A didn't work. Like right now, this this, we're trying to approve this site, this location, this tmk. Is there any other alternative site and alternative method or we indicated what about, you know, existing towers? Can you go vertically, you know, which was done in the past. You know, that was my, what I'm expressing right now is that yes it is important for our community. I know for Fire and Police it's very important, but again, we're looking at location. Is there any other alternative sites that we can look at? So for that's, that's my biggest concern. I like cell towers, but it has to fit the right location, you know, so I do agree with Tom on it, on, on that. HALL: Hey, Chair? Malia. I'd just like to remind you, we should have a motion for action for all of this discussion. RAFFIPIY: Yeah, I agree. We should have a motion before we continue further to discuss this issue. CLARKSON: May I point out that I was in the middle of making a motion, and my motion was halted by counsel. HALL: Wait, hang on here, I believe your motion was actually interrupted by Jeff Darrow, but that's okay, I'll take the blame. Please continue your motion, Commissioner Clarkson. RAFFIPIY: Go ahead, Mr. Clarkson. Go ahead and unmute yourself. CLARKSON: Turn on your camera, Jeff. All right, I'm going to make the motion that I move that we approve Use Permit Application USE 19-000082 [sic] as recommended by the Director and with the conditions that the Director has included in his recommendation for approval. HALL: Sorry, 81, yeah. We're on 81 this one. ROY: Eight one is number four, we're on item number four. CLARKSON: I stand corrected, 81 RAFFIPIY: In a second CLARKSON: I have the wrong one turned up here. REPLOGLE: Second. EXHIBIT D 9 RAFFIPIY: It is moved by Mr. Clarkson and seconded by—was that Mr. Replogle? REPLOGLE: Si, yes. RAFFIPIY: Okay, all right, that we approve based on the Director's recommendation that was presented in our March meeting. Is that your motion, Mr. Clarkson? CLARKSON: That's correct. And let me just briefly speak to my motion. I was originally in favor of granting approval, and I'm even more in favor now particularly and if all of those Commissioners want to have a solid reason for changing their mind, I think that current circumstances which I believe are going to continue for a long, long time are a good justification for increasing connectivity and especially in light of the fact that this program that this tower would be a part of is to enable emergency communication by first responders, I just feel that despite the public outcry and despite the emotional testimony, this application should be approved. RAFFIPIY: Thank you, Mr. Clarkson. Any further discussion? Mr. Tomlinson, were you trying to make a statement? TOMLINSON: Yes, yes, Mr. Chair. I didn't want to interrupt, but there were a few questions posed by Mr. Aguinaldo that I wanted to, to address if possible. If that's okay? RAFFIPIY: That's okay, go ahead. TOMLINSON: So, AT&T did review co-location, particularly co-location, locations for the area and unfortunately there is just a significant gap as evidenced in our, you know, our application. We talked about this in previous hearings that a co-location won't suffice even if we got taller, you know, increased the height. So, addressing the co-location. In almost every instance, AT&T is very happy to co-locate on an existing facility if it meets its type of requirements. It's a lot cheaper, a lot faster. We don't have to come to these hearings. So, that being said, in terms of the testimony in opposition, I just want to point out that much of the testimony Mr. Aguinaldo was referencing, could we put this someplace else, a lot of this testimony is coming from people on different parts of the island who aren't even directly in the community for one. And, then, so almost to the point of where, you know, people are going to have, have problems on any parcel of land to a certain extent. And, the other,the other issue is, is because of the nature of this testimony and that it's based on the fact that people are, have emotional distress about RF emissions, that's not, by law, that's not a legitimate reason for,to be accepting that testimony, I mean based on RF emissions and emotion. So, from AT&T's point of view, you know, we really think that this is a good place for this tower. It's away from—on a large parcel. It's away from close neighbors. There is no fall zone issues, and we urge you to approve it. Thank you. RAFFIPIY: Thank you, Mr. Tomlinson. Any further discussion? EXHIBIT D 10 LEY: Hi everybody. Can you guys hold on? The live stream seemed to have stopped. I'm not sure what's happening. RAFFIPIY: Rachelle, do you need some time? We'll put the Commission in recess. LEY: It looks like it popped back on. It was—it was stopped for a minute or two there, and I didn't, I saw you were frozen, but now its back. I think it's okay now. RAFFIPIY: Okay, all right, thank you. Any further discussion? Okay, Commissioner Aguinaldo, do you have your hand up? Unmute please, unmute please. AGUINALDO: Hey, Andrew, I have a simple question. Now, as far as a territorial, I call it territorial with cell towers. So, we don't see a lot of cell towers pop up here, there. Is AT&T allowing other cell tower providers to chime in on their tower or is it just specifically AT&T? TOMLINSON: Great question there. Absolutely. Other providers would be able to co-locate on this tower. AGUINALDO: Okay, I yield. RAFFIPIY: Okay, thank you very much. Any other questions or discussion? All right, staff, can you take the roll call vote,please? ROY: The vote is to approve as recommended by the Planning Director based on recommendations presented at the March meeting for Use Permit 19-081. Commissioner Clarkson? CLARKSON: Aye. ROY: Commissioner Replogle? REPLOGLE: Aye. ROY: Commissioner Aguinaldo? Commissioner Aguinaldo? AGUINALDO: Aye. ROY: Commissioner Au? AU: Aye. ROY: And Chair Raffipiy. RAFFIPIY: Nay. ROY: The vote passes four to one. EXHIBIT D 11 RAFFIPIY: Thank you very much. You'll be notified of the Commission's decision in writing. The discussion ended at 12:42 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 12