Tucson, AZ

Oct 5, 2021 Public Comment in Tucson, AZ


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1st Nov 18, 2021 Letter to City of Tucson City Council & Pima County Commissioners

Subject: Illegal Small Cell Addresses

November 18, 2021

To the Representatives of Pima County and the City of Tucson,

A disruptive so-called small Wireless Telecommunications Facility (“sWTF”) is slated to be established at the corner of Calle Fernando & Camino Del Norte, Tucson AZ, 85716. This installation for a private commercial enterprise is expected very soon and was recently given its own address, located on top of another pre-existing address that is under private ownership.

The owner of the property is responsible for the property, up to the curb, upon which it is proposed that a microwave factory as heavy industrial equipment shall be erected but has not been given due process in the commercial enterprises superseding their own titles. This installation will destroy the quiet enjoyment of the easement on the property, the adjacent properties, and the rest of the individual owner’s property that does not contain the easement by causing noise, blight, public safety hazards and other significant discomforts.

According to the County’s addressing regulations, the name or numbers on a street may only be changed by the fulfillment of a process that gains approval of 51% of the residents. The creation of a new number clearly falls under that requirement but there has been no such procedure. Recent changes to site records with the City of Tucson show that the existing stop sign on this corner will be placed on the new pole, and the sign will assume a new address, necessitating the process latterly described by the County’s addressing procedure.

Permitting and other irregularities define this to be an illegal construction project. The site has been assigned a “facility address” by Pima County Development Services following a permit location which was granted with an address designation of “TBD”. The initial permit was granted ultra vires as it failed to have an address on it, and did not follow applicable procedure when it later created one. (described here: https://webcms.pima.gov/cms/One.aspx?pageId=61696)

The undersigned, demand that Pima County and the City of Tucson substantiate and define their authority for assigning or permitting — respectively — the facility address, 3791 E Calle Fernando Tucson AZ 85716, to a right of way over private property without a subdivision, in violation of the residents’ individual and collective rights to quiet enjoyment, (defined as: “the right of a property owner to enjoy his or her property without interference or disruption and the assurance that the possession will not be disturbed by a superior title”) as well as respective authority to assign addresses without following the county addressing procedure.

The addressed facility constitutes a legal nuisance.

The nuisance per se is produced in the following ways:

  1. sWTF causes a condition, activity, and situation that interferes greatly with the use and enjoyment of property,
  2. sWTF injures the physical condition of the owners land as well as adjacent land,
  3. sWTF injures the use and enjoyment of the easement as a cognate and continuing nuisance,
  4. 2 & 3 (above) together constitutes a cognate nuisance.
  5. sWTF creates a liability on the part of the City of Tucson and Pima County; the authorities of both the latter have failed to act on behalf of the residents, instead acting quite unreasonably against the community interest, on record, even though the interference is easily abatable by the City and the County in their own right.
  6. sWTF causes an unreasonable interference with a right common to the general public, by presenting a condition that endangers public safety, effecting an offense to the community moral standards and unlawfully obstructing the public in the free use of public property.
  7. The City and County negligently permitted the sWTF which violates NEPA requirements many times over. Its existence imposes as an unwelcome and unreasonable risk of harm that will in due course result in injury.
  8. sWTF has already caused anticipation of a nuisance resulting in community unrest, this is well recorded in the public records.
  9. sWTF is dangerous to the community at large, as well as private individuals, FCC general safety guidelines were remanded in federal court on Friday, August 13th 2021. The FCC must review at least 11,000 pages of evidence of harm submitted to the FCC through the courts, and reconsider its guidelines. Local authorities must disable new facilities, until such time as the FCC has satisfied court orders, to avoid the the disaster of liability on the City and the County and irreparable harm to its residents.
  10. sWTFs such as these are not suited for residential deployment any more than a waste treatment facility. It causes industrial noise, both audible and inaudible, destruction of community appearance, including historical preservation, and other significant public and individual hazards, defining the intended facility as a nuisance in fact.

The assignment of an address for the establishment of an sWTF is a dangerous public safety hazard and has been permitted ultra vires, as described and is intended to supersede the residents’ reasonable use and property right to a superior title held by a private commercial enterprise in the public right of way.

Due to the urgent nature of the matter, the impingement on public safety, the interference of property rights, and the continuous nature of the prospective nuisance, disruption to the quiet enjoyment of streets, we, the undersigned, demand that you and all other agents and agencies cease and desist from any and all actions associated with this project in any manner.

For these reasons the County and the City of Tucson is hereby noticed that it must revoke the permit for this facility at the fantasy address 3791 E Calle Fernando Tucson AZ 85716 at once, and follow to ensure that all other parties cease and desist from any and all actions associated with the project, except to remove all equipment, signage and licenses already put in place and that failure to respond accordingly, in a way that forces the termination of the project, by you and all other agents and agencies associated with this project, will result in further actions on our part. We reserve the right to pursue legal action. This is submitted for the public record as no matter of mere concern but of substance fact and law.

2nd Nov 18, 2021 Letter to City of Tucson

November 18, 2021

Michael Ortega, City Manager

City of Tucson

City Manager’s Office
City Hall, 10th Floor
255 W. Alameda
Tucson AZ, 85701

520-791-4204

Roger Randolph, City Clerk
Diana Alarcon, Director of Department of Transportation and Mobility
Mayor Regina Romero
Ward 1 Council Member Lane Santa Cruz
Ward 2 Council Member Paul Cunningham
Ward 3 Council Member Karin Ulrich
Ward 4 Council Member Nikki Lee
Ward 5 Council Member Richard Fimbres
Ward 6 Council Member Steve Kozachik

[To Roger Randolph, City of Tucson City Clerk. Please place this letter into the City of Tucson public record for Permit No. T19RW04954. Please also print this email and place it in the paper file for the Wireless Telecommunications Facility (WTF) application and permit for Permit No. T19RW04954. Thank you for doing so. We will follow up to inspect you have completed this work, which is central to your duties as City Clerk.]

I am writing to inform you that the Wireless Telecommunications Facilities (WTF) permit at Santa Rita and Waverly, Permit No. T19RW04954, has been rendered invalid by an Aug 13, 2021 ruling in the US Court of Appeals, DC Circuit —a ruling the FCC chose not to appeal. Therefore, no work can proceed on Mon, Nov 22, 2021, as currently planned.

In addition to the landmark ruling, I am writing to inform you that Permit No. T19RW04954 for Santa Rita and Waverly fails on its own merit/demerits because the application/permit remains incomplete and contains incorrect and possibly fraudulent information.

Please consider the following evidence and email me back to confirm your understanding of the evidence. You can reach me at 520-338-0698 at 8am-5pm, if you have any questions.

On August 13th, 2021, the wireless world irrevocably changed and the State of Arizona and City of Tucson will have to adjust its plans, as a result. As of Aug 13, 2021 it is no longer business as usual. The FCC had an opportunity to appeal the US Court of Appeals D.C. Circuit Ruling in Case 20-1025 Environmental Health Trust, Children’s Health Defense et al v FCC, but the FCC did not act by the Nov 12, 2021 deadline to do so. That makes this ruling final. In that Aug 13 ruling, the judges wrote:

“We grant the petitions in part and remand to the Commission. The Commission failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency [microwave] radiation . . .”

Black’s Law Dictionary, 9th Edition defines remand as: “To send a case or claim back to the court or tribunal from which it came for further action.”

You will find the full ruling in Case 20-1025 here: https://wirecalifornia.org/case-20-1025-ruling/

Case 20-1025 was about the FCC’s attempt to skirt court-mandated environmental review and rulemaking required to re-establish the definition of a “Small Wireless Facility”, a definition that was vacated by the DC Circuit on Aug 9, 2019 in Case 18-1129 Keetoowah et al. v FCC. The Aug 13, 2021 ruling invalidated the Dec 2019 FCC Order 19-126 that attempted to extend Specific Absorption Rate — the basis for the RF Microwave radiation guideline — from frequencies up to 6,000 MHz to frequencies up to 100,000 MHz.

Because the DC Circuit judges remanded FCC Order 19-126, the FCC’s attempt to extend SAR failed, SAR, once again, only applies to frequencies up to 6,000 MHz. Therefore, there is no FCC RF Microwave radiation regulation covering frequencies being transmitted by the antennas on this planned Wireless Telecommunications Facility (WTF): 28,000 MHz. Since the City of Tucson must provide actual public safety to its residents, this planned WTF cannot be powered on until the FCC completes its environmental review to re-evaluate its FCC RF Microwave radiation regulation.

The attorney who argued the successful case in EHT/CHD v FCC, W. Scott McCollough, has said that typically, the FCC will take two years or longer to complete such work. Therefore, the ruling in Case 20-1025 is germane to the operating permits for every WTF in Tucson that is currently transmitting frequencies over 6,000 MHz. This ruling renders all of those operations permits invalid. The operations permits can be re-issued only after the FCC completes its research, analysis, environmental review and final rulemaking, as mandated by the DC Circuit judges.

The DC Circuit judges further ruled that FCC failed to take into account scientific evidence of harm, especially having no RF microwave radiation regulations specific to children. Over 11,000 pages of evidence were entered into the FCC’s record to establish biological harms from RF microwave radiation at levels many thousands of times lower than the current FCC RF microwave radiation regulations.

Please see the evidence listed by reference in Appendix A of this letter. This letter places all 11,000+ pages of the evidence in the FCC’s record, by reference, into the City of Tucson public record. The City of Tucson has the duty to read, understand and use this evidence in its deliberations to render decisions and take action to set citywide policies that balance the needs of residents with the needs of corporations providing wireless telecommunications service, just as the City of Tucson City Council voted to do on Feb 23, 2021. The City of Tucson publishing a City Utility manual in Aug/Sept 2021 did not fulfill the duty of City staff to revise the City of Tucson Wireless Telecommunications Facilities (WTFs) Ordinance, as staff was directed to do by the City Council vote of Feb 23, 2021.

I cite the following additional evidence that renders Permit No. T19RW04954 invalid.

   1.    The permit Expiration Date is 11/30/2021. The Notification of Work that residents received states that the “Directional Drilling to install new Power Path for TEP and AT&T…is anticipated to be completed by 12/06/2021.” That would mean work would not be completed under a valid permit.

   2.    The permit states that an existing pole will be taken down, and replaced. There is no existing pole, only a stop sign, that will be removed, and replaced with a new pole. This does not qualify as a co-location.

    3.    The new pole will be located within 150 feet of an already existing light pole, which also does not qualify as a co-location.

   4.    The permit uses the address of 1190 E Waverly Street, which is not the address of the property owner on whose parcel the stop sign is located and where the new pole is intended to be constructed. To avoid inverse condemnation of property and unnecessary, uninsured financial liability accruing to the City of Tucson, the applicant must first contact and work out mutually-acceptable arrangements with the property owner.

For the reasons stated, Permit No. T19RW04954 is invalid and no work can proceed under this invalid permit. Thank you for taking prompt action on this matter.

I will follow up by telephone with you after 2:00 pm on Thu Nov 18, 2021 to ensure you are aware of this letter and its urgency.