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HomeMy WebLinkAbout2020-06-04 Exh E New Cingular dba AT&T USE 19-082 (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 19-000082) was called to order at 12:48 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 20 members from the public live streaming the meeting. APPLICANT: NEW LINGULAR WIRELESS PCS, LLC DBA AT&T MOBILITY (USE 19-000082) 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 105-foot tall monopine with related equipment within a 1,054-square feet portion of a 20-acre property situated in the County's Open zoning district. The subject property is located northeast of the Maku`u Drive-17th Avenue intersection in the Hawaiian Paradise Park Subdivision, Kea`au, Puna, Hawaii, TMK: (3) 1-5-023:040. Secretary's Note: "—"means that there were technical and/or internet difficulties which made the conversation inaudible. RAFFIPIY: Agenda Item No. 5, New Cingular Wireless PCS, LLC dba AT&T Mobility, Use Permit 19-000082, 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 105-foot tall monopine with related equipment within a 1,054-square feet portion of a 20-acre property situated in the County's Open zoning district. The subject property is located northeast of the Maku`u Drive-17th Avenue intersection in the Hawaiian Paradise Park Subdivision, Kea`au, Puna, Hawaii, TMK: (3) 1-5-023:040. Now,the AT&T's representatives were already sworn in on the previous item, so we don't need to have them sworn in, so, will, would the Applicant like to make any comments? EXHIBIT E 1 TOMLINSON: Yes, please. Can you hear me? Yes? Okay, thank you. Aloha, Mr. Chair and Members again. My name is Andrew Tomlinson, and I'm still with Elizabeth Songvilay and Ken Lyons from AT&T, and again, thank you for the opportunity to address the Commission regarding the Findings of Fact, Conclusions of Law, and Decision and Order for the 105-foot tall tower facility in Hawaiian Paradise Park. As we just spoke a bit in our past hearing, on the past agenda item, you know, since March 51h we really have seen the need for telecommunications technology and, again, you know, AT&T's usage has really gone up considerably since then, and the Hawaiian Paradise Park site was also chosen to fill a very significant gap of coverage, and it's going to facilitate a faster, more reliable network for a really underserved part of the islands. And, this current crisis, you know, really exemplifies why, why we need that. The Findings of Fact for this proposed tower were based on the fall zone and the lack of, asserted lack of access for AT&T for the, for the subject property. The Findings were that the proposed tower is going to be materially detrimental to the public welfare and that AT&T failed to show that it has legal access to the property and these are factually incorrect, and accordingly, we'd like to respectfully request that the Commission again reconsider its decision and approve this application today. To address the fall zone, there were numerous claims in the last hearing that the play area and the basketball hoop and the parking area were in the direct fall zone of the proposed tower, and this is not true. So, if you would please refer to Exhibit 1 from AT&T's response if you haven't looked at it already. It's an aerial image. The blue circle there represents a 105-foot radius around the proposed tower that will encompass the, you know, the "fall zone." And as you can see, the playground, the basketball hoops, and the parking lot lie outside this blue circle. So, please note also the basketball court is, is abandoned and in disrepair, and I confirmed this with the, the homeowners' association, and this can be seen on photos in the application attachment 6 and 11. And, also, there's no evidence that the proposed monopine structure would be at risk for falling. I'd like to remind everybody that the steel tower is engineered to meet all the structural and safety requirements prescribed in Hawaii County Code. In regards to property access, AT&T has legal access and right to occupy the subject property. The Use Permit application in itself requires the landowner provide written consent to even submit the permit application. AT&T submitted a signed letter of authorization and consent from the president of the homeowners' association with its application. The HOA obviously owns the subject property and manages it pursuant to their HOA bylaws. AT&T also provided completed minutes from a January 2019 Hawaiian Paradise Park public board meeting that showed the board approved the proposed project. At this board meeting were board members as well as community members, and I went back and recently checked the board minutes leading up to that,that particular meeting in January 2019, and there were no less than six public board meetings with verified minutes, and approved minutes, where the AT&T EXHIBIT E 2 proposal was discussed in front of the public. So, I just wanted to make that clear that the public was aware of it. And, finally, Exhibit 2 from the material that we provided today is a fully executed and notarized license agreement between AT&T and the homeowners association for the subject tower and support facilities at the property. We'd also like to point out that AT&T's application should be deemed approved pursuant to Section 25-2-64 of the Hawaii County Code. The Code states that within 90 days after acceptance of the Use Permit, the Commission shall deny or approve the application, and the Commission in this particular case did not act to approve or deny until 99 days after the date of the acceptance which was November 27h, and there was no written objection received by the Commission within 90 days of the acceptance of the application. So, accordingly, we believe that the application qualifies and should be deemed approved. And, lastly, before we close, I want to re-highlight again the two letters of support we got from the Hawaii County Fire and the Hawaii County Police, and they're, they're both FirstNet members, and again, as we discussed in previous hearings and in the previous agenda item, that the FirstNet is a nationwide public safety broadband network being built by AT&T. The Hawaiian Paradise Park site was specifically identified by the FirstNet authority and the State of Hawaii with input from County of Hawaii as critical to public safety. So, I'd like to reiterate, you know, that this was chosen by the FirstNet authority and the State as a location that was, was incredibly important. So, the broadband service is critical for the safety of the community and directly impacts the ability of the first responders to respond to emergency situations quickly and safely in and around Hawaiian Paradise Park. So, in conclusion, again, AT&T would like to respectfully request the Commission to reconsider its decision to approve the Use Permit as recommended by the Planning Director and staff. In general, we'd just like the Commission to consider the need for, again, the improved wireless coverage on Hawaii Island, and the importance of communications to the community and public safety. So, thanks again for your time, and I can answer any questions you may have. Thank you. RAFFIPIY: Thank you very much. Do we have any questions for the Applicant? Mr. Clarkson. CLARKSON: Yes, as I indicated in support of my vote against the application at our last meeting, I was concerned about the fall radius of the tower, and I understand Mr. Tomlinson's assertion that these towers don't fall over, but this is a [inaudible] site. There's no, nothing has actually been done in support of the construction of this tower except on paper, and my question is how difficult would it be to renegotiate your agreement with the landowner to move the tower 50 or a 100 feet to the east, northeast so that the fall radius encompasses nothing but unoccupied land where nobody could be expected to park, drive " " difficult. EXHIBIT E 3 TOMLINSON: So,the typical location was, was identified working with the homeowners' association, and it was placed near the other communication facility, the Spectrum site, which is right there, and it specifically was designed so that it would not fall towards, or not fall, excuse me, would not be closer to the road so that it would be maintained within the homeowners' association. So, in terms of, of how difficult it would be, it would basically be starting from scratch. We would have to renegotiate a license which we have, you know, approved as of, you know, signed, fully executed license as of July 2019. We'd have to re-engineer the site, and we'd have to go back and be before you again for a Use Permit for the, for the same thing essentially. After discussion with the homeowners' association, we've had discussions with them that if we needed to, we could block off the end of that, you know, the parking area, but it's, it's a very small section. That's, would, would be near, closer to the tower. But, as you can see on the map, the structures that were claimed to be in the "fall zone" are outside. RAFFIPIY: Mr. Au? AU: Thank you, Mr. Chair. So, can staff verify that? That if the pole is relocated, would that require the Applicant to come in for a whole new Use Permit? RAFFIPIY: Okay, staff, did you get that request? ROY: Staff is discussing that option right now. RAFFIPIY: Okay, I have a comment about Mr. Clarkson's recommendation or questioning about moving it north, northeast. I believe that there's a road right there coming in on the northern edge of the, the blue circle. So, " " CLARKSON: Yeah, I may have been mistaken in my directions. Toward, away, slightly more away from 171h Avenue and slightly more toward Maku`u. Is it Maku`u? Yeah, II don't know what staff is going to tell us, but I mean, I was very concerned about the fall radius before, but without theI'm less concerned now trusting that your survey was accurate, but I would still prefer to put a condition on any approval that I personally voted for that the site be moved I'm going to say 40 or 50 feet further away from 171h and slightly toward Maku`u. There's a 175 feet distance between the proposed tower site . AU: Mr. Chair, can I interject, please? Excuse me, Commissioner Replogle [sic]. RAFFIPIY: Go ahead. AU: I think we're going into discussion here, so I think maybe we should just stick to answering or asking questions and getting our questions answered and then somebody make a motion before we go into discussion. RAFFIPIY: Okay, I see. That's right. EXHIBIT E 4 ROY: The Applicant is trying to speak. RAFFIPIY: Oh, Mr. Lyons. LYONS: Thank you so much, Chair. Just to clarify also that it's not just the Use Permit Application. Before AT&T can actually apply for a facility within the County, we also have to go through all the environmental, NHPA 106 the SHPD consultation process. So, there is a limitation in terms on how much we can do without having to effectively start over those processes, and it's typically about 10 meters, is the, is the limitation. Thank you. RAFFIPIY: Thank you, Mr. Lyons. ROY: This is staff here. We would not have a problem, but I think the Applicant has outlined the issues that are involved with moving, so the, the burden seems to be on them, but to amend LYONS: It is typically [inaudible]. ROY: It wouldn't be impossible for us but again it seems like the hoops, we'd have to redo everything as the LYONS: " " CLARKSON: Can I ask a question of that? RAFFIPIY: Go ahead, Mr. Clarkson. CLARKSON: So, if the site were moved ten meters or less from its existing place, and the tower were moved within the site to be furthest away from habitable structures, roadways, parking lots, would you still be able to use your existing environmental studies and " " requirements? LYONS: To the Chair, this is Ken Lyons again. I believe we would. There are some constraints certainly as Andrew has identified also about the lease area. As you can tell, the tower sits within effectively, I believe it's a 50 by 50 lease area. If it goes beyond that, of course, we'd have to change the lease location with the " " but right now, as you can tell, the monopole actually sits in the middle of a 50 by 50 leased area. So, it'd be one of those things, you know, how far we go, what it would trigger to potentially trigger perhaps an amendment to the lease which, you know, we'd have to discuss with the—maybe take a few minutes to discuss that. But,the environmental approvals, we might be able to reuse so long it's less than ten years. CLARKSON: Thank you. RAFFIPIY: Thank you, Ken. Any other questions for the Applicant? All right, so did everybody ROY: Commission Aguinaldo has his hand up. EXHIBIT E 5 RAFFIPIY: I'm sorry? AGUINALDO: A question, Mr. Chair, for AT&T. So, as far as what Commissioner Joe indicated is within that circle radius, if we move it, why do, can't they just have one entry point within the existing entryway to,to the parking area instead of making another road coming off 17''? I know, Commissioner Joe indicated fall. If you eliminate all that driveway, is that considered as savings on your folks' lease and moving it more? What I'm trying to see is I'm looking at it right now on County property tax. You have a lot of area for move `em in that area and kind of slightly further away from 171h Avenue. Is that a problem? TOMLINSON: I think, well, the access you're looking at to the side gate on 17'h Avenue AGUINALDO: Correct, correct. TOMLINSON: That gate is actually in existence. So,this is an easement that we would have for access to our facility. In, you know, as Ken mentioned, there is within our lease area, the ability to move the, move the actual base of the tower to, you know, more towards the side of the area within the, the inset leased area that you can see on that particular map which would bring, bring the tower a bit further away. And, I kind of agree with Ken. I think from a permit standpoint from compliance from Section 106 which Federal, and then Hawaii, Historic Preservation, I think we'd be okay without having to do a new Historic Preservation Survey. So, there is that potential. We would just have to discuss it with the landowner, you know, on how far we would be willing to go and what that would, you know, how that would reflect on our license. AGUINALDO: All right, you guys license and lease. The reason why is across the street on 17'', there's a house, and on the corner of Maku`u and 171h on the Pahoa side, there is a house there as well, so if you kind of look at the driveway, existing driveway radius, you know, kind of like it's little bit more out of sight, out of mind, right? You know, instead of, you know, kind of like, like what Commissioner Clarkson said is kind of moving probably little bit from the corner of 17'h and Maku`u, and taking into consideration that there's an existing basketball hoop in that area as well. I yield that . RAFFIPIY: Mr. Au? Thank you very much. Mr. Au? AU: I don't have any more questions, but I'm ready to make the motion. RAFFIPIY: All right. Go ahead, Mr. Au. Make a motion. Oh wait, before you do that,the Commissioners, have all of you read the written testimony submitted by the public and the Applicant? Mr. Aguinaldo? AGUINALDO: I did. RAFFIPIY: Mr. Au? EXHIBIT E 6 AU: Yes, I did. RAFFIPIY: Mr. Clarkson? CLARKSON: Yes. RAFFIPIY: Mr. Replogle? REPLOGLE: Yes. RAFFIPIY: Thank you. I did, too. All right, Mr. Au, go ahead and make your motion. AU: For Applicant New Cingular Wireless PCS, LLC dba AT&T Mobile [Mobility] Use Permit [I]9-[0]00082, I move to adopt the proposed Findings of Fact, Conclusions of Law, and Decision and Order, and if it is seconded, I will explain my reasons why. RAFFIPIY: It is moved, any second? REPLOGLE: Second. HALL: II must have missed it. Did you guys motion for reconsideration? RAFFIPIY: No,the no ma'am, the motion is to adopt the proposed Findings of Fact, Conclusions of Law, and Decision and Order. HALL: Oh, okay, sorry. RAFFIPIY: It is moved by Mr. Au, seconded by Mr. Replogle. Go ahead, Mr. Au, you said you have a comment. AU: I'd just like to speak to my motion. Mr. Tomlinson and Mr. Lyons are talking about redoing things and my fellow Commissioners are also talking about relocation of this tower, and you know, I share the same concern as Commissioner Clarkson about the fall radius. It clearly states, and I appreciate this map, you know,the pole is a hundred foot, a hundred and foot hundred and five foot tall pole, and you showed us the 105-foot fall radius, but visually, there is too much potential danger to people, and that's part of our job as Commissioners. By law, we cannot use the health issues that a lot of testifiers are talking about, but we can use the fall radius issues, and there's a lot of potential danger. I understand that the basketball hoop is not used, but it is a basketball hoop. There is the playground in that area, and it's just outside of that hundred foot five fall radius. You have that major roadway, Maku`u Drive, and yes, it's clearly out the 105-foot fall radius, but there's so much potential of that tower falling, and when that tower falls, it's gonna explode, and it's going to go farther out. So, that's my thinking as far as making that motion. AGUINALDO: Yes, Mr. Chair, I agree with Dean on what he just mentioned. EXHIBIT E 7 RAFFIPIY: Thank you. Any other comments? Yeah, I'd like to make a comment. Yeah, I voted down this one the last time, and yeah, it's, my reason was exactly what Dean, Mr. Au, talked about. And, I understand, I understand the issue that the Applicant is saying, if you move it, you know, certain, to certain places, the amount of work that will be that will be involved. But, I think, we also have a responsibility to the community, to the public, to the island that we, we do our due diligence reviewing all the, you know, the potential hazards and all that, that they pose to the general public. So, that was the, my reason then why I voted no to this application. Mr. Tomlinson, you have your hand up. TOMLINSON: Yes, yes, thank you. If we were able to move the tower, the location 20, 30 feet in a particular direction to take it away from more of the, the, you know, the basketball area and what not, would that satisfy the Commission today if we, you know, make that agreement to,to get it, you know, away from that location? You know, by moving 20, 30, 40 feet? RAFFIPIY: Let me respond to that. That will, for me, will satisfy that, my concern as long as we minimize the exposure of the public. There was another issue that was brought up that I'm still trying to, still wrestle with, and that was the functionality of the homeowners' association. There's—and you see that there is still in the public testimony, they are still talking about how that HPP clearly does—doesn't have a functioning association. So, that was a concern. I know there is a lease signed, contract signed over here, but I'm concerned when they, when the community wascommunity, from members of that same community are saying that there is no functioning association. That was my two concerns then, and its still my concern now. Thank you. CLARKSON: I'd like to make a comment. RAFFIPIY: Mr. Clarkson? CLARKSON: Yes, I, I want to see this where I agree that the application in general is a reasonable one. I'd like to see a tower built, and I understand, I remember after the last meeting somebody from AT&T pointed out a tower that was right in the middle of Downtown Hilo and said what about the fall radius there, and I just want to make clear that, you know, a tower that's in the middle of the city, there's no other choice. You just have to do what,the best you can. Here, you are starting with a brand-new site. There appears to be lots of room. I am going to vote in favor of Commissioner Au's motion and only because I think that's only going to be the only practical way to start over, not necessarily with a clean sheet of paper, but to get the tower moved, there's lots of room on this HPP Homeowners' Association, to get the tower moved as far as possible away from structures and roadways. And, I encourage AT&T when they make further applications, and we've done this with Verizon, we made `em move it off the, away from highways. I just, I just would encourage them in the future, you've got a choice. Make sure the fall radius doesn't encompass anything other than plants and trees. RAFFIPIY: Thank you, Mr. Clarkson. Any other further discussion? Okay, if there is no further discussion, I'd like to ask the staff to conduct the AU: Mr. Chair, sorry, I forgot to raise my hand. EXHIBIT E 8 RAFFIPIY: Go ahead, I'm sorry, I didn't see you. Go ahead. AU: I'd like to address Mr. Tomlinson's question. He asked that if, if that they were, if AT&T, if the Applicant would be willing to move the tower, will this Commission be in favorable, and since I was the one that made the motion, I'm going to answer your question. I'm going to say no. No to the fact that you're just going to move it ten meters. Mr. Lyons said that you guys still don't have to do anything if you guys move it within ten meters. I do not want to see that far a move ten meters. I want to see that tower moved away from anywhere from where it would fall and it won't hit other trees, and those trees will fall, and when structures that huge fall, they don't fall at a 105 feet. They drop to the ground and a lot of times will break. Something will happen, and it will go past that, and it's just too dangerous, and that is a major concern that I have. So, thank you, Mr. Chair, and I agree with you as far as the HPP Association and their, the fact that they're kind of dysfunct, so I do agree with you Chair on that. RAFFIPIY: Thank you very much, Mr. Au. Any further comment before we go into, we conduct the vote? All right. Staff, can you please conduct the vote,the roll call vote? ROY: Looks like the Applicant has their hand up? RAFFIPIY: I didn't see that. LYONS: All right, I apologize, Mr. Chair. To answer that,the Commissioner's question, it, we could move it beyond ten meters. It just means that some of the compliance steps that are separate—keep in mind from the use application, we'd have to redo. It doesn't mean that we couldn't move it more than ten meters, but if the Commission were to approve the application with a minimum setback from certain structures, we'd certainly do that. It's just, it's just it would require, it would just require some different—it would, requires us to start over in some of our compliance steps. That's outside of the, of the Use Permit application if you will. So, I just wanted to clarify that point. RAFFIPIY: Thank you very much, Mr. Lyons. AU: Mr. Chair, question? RAFFIPIY: Go ahead, Mr. Au. AU: Can staff answer this for me, but Alex, you did mention that it can be done, and just for the record, you know, if this tower was to be moved a hundred feet in any direction, would that trigger a whole new use application? I mean, I know it's a minor change, but in retrospect, it's a big change. ROY: Well AU: —You know, a huge structure. EXHIBIT E 9 ROY: Yeah, I'm not sure about—what it would trigger, would be the need for a new review, say under SHPD because it'd be a whole new area outside of the site, the, you know,the site that they had previously looked at. So, that would have to be redone. You know, it could require them I suppose [HRS] 6E and 106 [National Historic Preservation Act] reviews because of the whole new location. Jeff may be able to talk to you about other requirements. RAFFIPIY: Jeff? DARROW: Thank you, Chair. The application when it comes in, it's for a specific area and a specific location. When its towers, its usually, for example, like [a] 30 by 30 square foot area. It's a very limited area. That's what's approved for the permit. I can almost guarantee that the area or the movement of that is going to be outside of that area that has been requested and has been agendized. So, at that point, it would have to come in as a new request. RAFFIPIY: Thank you. Does that answer your question? AU: Yes, it does. RAFFIPIY: Thank you AU: I want to leave my motion as it is. RAFFIPIY: Okay, thank you. Any other discussion? ROY: This is for, to adopt the Findings of Fact for New Cingular Wireless PCS AT&T Mobility Use Permit 19-082. HALL: This is Malia Hall. Just for clarification, you guys are deciding to adopt as is with no amendments? AU: Yes. HALL: Okay, thank you. ROY: Chair, I mean, Commissioner Au? AU: Aye. ROY: Commissioner Replogle? REPLOGLE: Aye. ROY: Commissioner Aguinaldo? AGUINALDO: Aye. EXHIBIT E 10 ROY: Commissioner Clarkson? CLARKSON: Aye. ROY: And Chair Raffipiy. RAFFIPIY: Aye. ROY: The vote passes five to zero. RAFFIPIY: Thank you very much. Appreciate it. Thank you. You will " ." You will be notified of the Commission's decision in writing. Thank you. TOMLINSON: Thank you, Mr. Chair. LYONS: Thank you. The discussion ended at 1:24 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT E 11