Novato

Effective Public Comments at Novato City Council Meetings

Apr 12, 2022 Novato City Council Meeting

Apr 26, 2022 Novato City Council Meeting

May 10, 2022 Novato City Council Meeting

Good News from Events of May 6, 2022: Modus & AT&T Missed a Deadline

Most Recent City of Novato News re: Wireless Telecommunications Facilities (WTFs)

May 10, Novato City Council Agenda Item

Source Document.

MEETING DATE: May 10, 2022

TO: City Council

FROM: Pat Eklund, Council Member

SUBJECT: CONSIDER ESTABLISHING A POLICY TO POST UPON SUBMITTAL ALL SMALL CELL FACILITY APPLICATIONS ON THE CITY’S WEBSITE

AND

REQUEST A LEGAL OPINION FOR DISCUSSION ON WHETHER PENDING APPLICATIONS CAN BE DETERMINED INCOMPLETE AND/OR CONSIDER ENTERING INTO A ‘TOLLING’ AGREEMENT WITH APPLICANTS UNTIL THE FINAL ORDINANCE IS ADOPTED BY COUNCIL

PROPOSED AGENDA ITEM:

Consider establishing a policy to post upon submittal all small cell facility applications on the City’s website and request a legal opinion for discussion on whether pending applications can be determined incomplete and/or consider entering into a ‘tolling’ agreement with applicants until the final ordinance is adopted by Council.

BACKGROUND

On February 12, 2019, Council approved my request to

“Evaluate options and adopt an ordinance to regulate 4G and 5G cell towers/facilities in the City of Novato”.

On October 8, 2019, staff placed a draft emergency ordinance on the agenda that was adopted by the Council. During the Council meeting staff stated a more ‘permanent’ ordinance would be brought back next summer (starting at 1:09:00 in the meeting video). Also, in response to my question about the current status of the Sonoma ordinance, Attorney John Abaci responded that it should be finalized in late 2019 or early 2020 (starting at 1:12:50 in meeting video).

In late March 2022, it was brought to our attention by community members that four AT&T small cell facility applications had been submitted. On April 28, 2022, those applications originally submitted in February, 2022 and associated materials were posted on City’s website.

Links are on this web page: https://www.novato.org/government/community-development/planning-division/planning-projects

  1. Link to AT&T sWTF Application for 625 Arthur St.
  2. Link to AT&T sWTF Application for 10 Pico Vista
  3. Link to AT&T sWTF Application for 1553 South Novato Blvd
  4. Link to AT&T sWTF Application for 7123 Redwood Blvd

Note: sWTF = so-called “small” Wireless Telecommunications Facility

Notices to property owners within 600 feet of each proposed location have not been issued for the pending applications. The City of Novato Urgency ordinance 1654 states that notices would be issued 10 days before any action of approval.

“the Director will act on the application without a public hearing, but will for a minimum of ten (10) days from the date of the notice accept written public comments”

Wire America: This means that the Director can choose to mail notice at any time up to a receipt date which is within ten days prior to the Director’s decision on the applications. Wire Novato has been adding substantial written evidence to the City of Novato public record since April 12, 2022.

Ordinance 1654, Section 4. Approvals and Denials; Notices

A. Public Notice.

“Prior to any approval, conditional approval, or denial, public notice shall be mailed to all properties and record owners and occupants of properties within a 600-foot radius of the project site. The notice shall contain:

  • (1) a general project description;
  • (2) the applicant’s identification and contact information as provided on the application submitted to the City;
  • (3) contact information for the Project Planner;
  • (4) a statement that the Director will act on the application without a public hearing, but will for a minimum of ten (10) days from the date of the notice accept written public comments that evaluate the application for compliance with the standards in this Ordinance; and (5) a statement that the FCC requires the City to act on small wireless facility applications, which includes any administrative appeals, within 60 days for attachments to existing structures and 90 days for new structures, unless the applicant voluntarily agrees to toll the time frame for review.”

Unfortunately, 10 days before any action of approval does not give property owners sufficient time to learn about the application(s) especially given recent changes in USPS service standards for first class mail. In April, the USPS announced that their service standards for first class mail will be 2-days, 3-days or 4-days which could result in a notice being delivered 5-days before the action (with no postal service on Sunday’s).

Wire America: It is merely a City of Novato Planning staff judgment call to delay notice to Novato residents. Notices could have been mailed to residents and businesses within 600 feet as early as Feb 26, 2022, but City staff chose not to do so.

This will need to be addressed (along with other issues) when the permanent ordinance is brought back to Council. However, by posting all small cell applications when submitted to the City of Novato, it will demonstrate our commitment for transparency and open government especially for those who are interested in this issue.

Lastly, since the permanent ordinance will not be brought back until later this year and given the number of pending applications, it would be helpful for Council to be informed and discuss whether an incomplete determination can be made (as recommended by community members)

Wire America: This is a matter of evidence. City staff is NOT CONSTRAINED to only require items on its current Wireless Ordinance check list. The requirements of that check list can be strengthened at any time by the Planning Dept.

and/or a ‘tolling’ agreement can be entered into with the applicants pending adoption of the final ordinance.

Wire America: One cannot conflate separate issues: any tolling agreement does not enable the four AT&T Wireless Telecommunications Facilities (WTF) applications from Feb 25, 2022 to be processed using yet-to-be adopted future city laws:

  1. The four AT&T applications that arrived on Feb 25, 2022 must be processed per the laws on the books at that time (Ordinance 1654 and City Code Division 19.38)
  2. A “tolling agreement” merely lengthens the time to process the applications under these two exsiting ordinances
  3. An updated Wireless Ordinance affects applications received after the effective date of that updated Wireless Ordiance

To get a legal opinion, a majority of Council need to authorize the work per our Council Policy Manual.

Wire America: We strongly recommend that the City of Novato hire the top telecom attorney in the US, Andrew Campanelli, Esq. (516-746-1600), who can write a protective wireless ordinance for the City for a reasonable fixed fee.

Apr 12, 2022 Novato City Council Meeting

  • Link to City of Novato Meetings Web Site
  • Link to Wire Novato
  • Link to July 19, 2017 Lehmann-to-Galehouse Letter re: SB.649 Liability for Localities

Speaker One

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

Tonight, well-informed Novato residents will be entering substantial written evidence into the City’s public record regarding four AT&T applications for so-called “small” Wireless Telecommunications Facilities placed on average, only 20 feet from homes and a school.

We are asking the City to do the following:

  1. Direct the Planning dept. to deny all four applications.
  2. Direct the Planning dept. to require much more detailed evidence from the applicant to ensure compliance with all relevant federal, state and local laws, including Novato’s own wireless ordinance.
  3. Use our existing ordinance to hire neutral Radio Frequency and legal consultants at the applicant’s expense.
  4. Deem all four applications incomplete until the FCC completes the DC Circuit court-mandated Environmental Review of the entire 800,000 to 1 million cell roll out; the FCC was mandated to do so in two court rulings which I submit into the record.: once in 2019 in Case 18-1129, Keetoowah et al. v FCC and again in 2021 in Case 20-1025, EHT/CHD v FCC.
  5. Provide more transparency in the application process, including timely notice, placing all relevant data on the website as soon as it arrives, and passing a stronger Wireless Ordinance that protects residences.

The City’s hands were never tied. It seems the City of Novato did not complete proper due diligence when it voted through its 2019 Emergency Wireless Ordinance. At present, the City is unwittingly taking on Big Wireless’ liabilities by allowing applicants to rent the City’s light poles to be used as cell towers, without passing sufficient local regulations.

I am also entering into the public record a 2017 letter — a legal analysis from Novato attorney Harry Lehmann to the California Assembly Appropriations Committee. The letter outlines the liability transfer inherent in Wireless industry Master Licensing Agreements. which persuaded the state to shoot down Senate Bill SB.649, the Small Cell Bill that was vetoed by Gov. Brown in 2017.

The largest re-insurers in the world, evaluated the independent science about adverse biological effects from wireless RF Microwave radiation and specifically excluded all claims of injury, illness or death from that radiation from any General Liability insurance. The smart money acted. They do not want another asbestos debacle on their hands.

The Wireless industry is busy transferring these liabilities to the City of Novato, which means that any future claims will be paid by the taxpayers to cover the disasters created by Big Wireless’ defective service, which could bankrupt the City.

Finally, I encourage readers and listeners to visit our website, wirednovato.org.

I have expressed no matter of mere concern but solely matters of substance, fact and law.

Thank you.


Speaker Two

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

Four AT&T WTF applications landed on City of Novato’s Planning Department’s desk on Fri Feb 25. Ten days later, Planning sent letters stop the shot clock. The fate of at least three neighborhoods now rests in the Director of Planning’s hands, while we await AT&T’s response and we will only have 50 days to complete an appeal.

This is the first test of our 2019 Urgency Wireless ordinance, which has remained in its temporary status for about 2.5 years.

This Ordinance is not sufficiently protective and does not consider — in anyway — the serial losses by the FCC in the US Courts of Appeals from Aug 2019, Oct 2019, Aug 202o and Aug 2021, which wiped much of the FCC’s so-called “small” Wireless Telecommunications Facilities (sWTFs) agenda, starting with the FCC losing the very definition of a “small wireless facility” at the Federal level. The whole push for “small wireless facilities anywhere near residential zones was a lie from the very beginning — a lie now even admitted by the Wireless industry itself.

What is Novato’s best move right now?
  1. Deny all four of these applications by strictly applying the provisions of both of Novato’s existing wireless ordinances, the one from 2012 and the much larger (and unnecessary) addition in 2019.
  2. Reject all wireless industry propaganda and data that is non-substantive, including analysis by Hammett & Edison and CTC Technology
  3. Overhaul the 2019 Urgency wireless ordinance to say no to Wireless Telecommunications Facilities (WTFs) of any kind within 1500 feet of residential zones, which is legal and defensible.

The City Council can direct the Planning Dept to preserves residents’ lives, liberty, privacy, public safety and the quiet enjoyment of streets. The City must provide to Novato residents actual public safety and privacy, which are our inalienable rights because you took an oath to uphold the State constitution before you started serving. You are also bound by the 2019 CA Supreme Court Ruling in T-Mobile v San Francisco which says that Wireless Telecommunications Facilities (WTFs) of any size or any “G”

“might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.”

Protect our quiet enjoyment of streets by forcing AT&T to provide all of the data requested by the City of Novato residents to prove if these applications are even needed to close a significant gap in telecommuncations coverage. Read the citations provided on my written comment which is in your hands.

I have expressed no matter of mere concern but solely matters of substance, fact and law.

Please go to https://wirenovato.org, the website created for this issue to keep updated on planning department actions, council actions, residents comments, and the science regarding the threats to public safety of wireless facilities near residences.

California Constitution, Article I Declaration of Rights, Section 1

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

2019 CA Supreme Court Ruling in T-Mobile v San Francisco

“. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . . the word “ ‘incommode’ means ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” . . . Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. . . . For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.”


Speaker Three

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

The City of Novato can learn how to reliably deny Wireless Telecommunications Facility (WTFs) applications by citing substantial written evidence in its public record. A 2019 WTF appeal hearing — https://youtu.be/G_lNu9R56Xk?t=5698 — in Seaside, CA, features Mayor Ian Oglesby — showing other cities how to do exactly that.

The key is to base WTF placement decisions solely on true and verified substantial written evidence that has been entered into the public record. Wireless Cos. consistently enter the least amount of information possible and often enter fraudulent information during the application process.

According to a top US Telecom Attorney in the US, Andrew Campanelli — https://youtu.be/UtT6gVH584s?t=1616

“in my experience, in 90% of the applications I have seen, the applicant has submitted false and misleading information and it is not by mistake.”

As you can learn from Mr Campanelli — https://youtu.be/UtT6gVH584s?t=1829)

“cities can force applicants to provide probative evidence, not the bogus propagation maps provided by many applicants. Without the data behind the maps, no one can determine if the propagation maps are worth the paper on which they are written.”

“No federal court would accept a propagation map without verification. Hard data will show if there is a gap and where its boundaries are. Then and only then can a City make a factual determination if the proposed WTF location is consistent with the City’s General Plan and local ordinances. Usually the proposed sites are not necessary.”

The City must make the determination if the applicant has proven a significant gap in telecommunications service or not. The City must demand the substantial written information from the applicant to enable IT to make this determination.

Two things will do that.
  1. Demand from AT&T 12-months of completed/dropped call records in the target search ring for each WTF. Require this information of the applicant before deeming the application complete.
  2. Institute a Written Evidence — Wireless Antenna Need Test — In Telecommunications (acronym spells WE-WANT-IT). This is a Comprehensive Wireless Signal Strength Test to be conducted every six months by an independent RF Engineer, who will meter the Wireless signal-strength levels in dBm (decibel-milliWatts) of every carrier-specific licensed and unlicensed wireless frequency that is being transmitted to the streets of Novato. See <https://wireamerica.org/mccollough/

The cost for this can be charged back to Wireless Cos.

For this reason and others you may discover, such as the intent of city council to upgrade and formalize its urgency ordinance, i ask that the applications be frozen now.

Please go to wireNovato.org, the website created for this issue to keep updated on planning department actions, council actions, residents comments, and the science regarding the threats to public safety of wireless facilities near residences.

I have expressed no matter of mere concern but solely matters of substance, fact and law.


Speaker Four

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

In San Rafael in 2019, informed residents convinced the planning director to deny the applications of the multinational corporation, Crown Castle, for four Wireless Telecommunications Facilities that were to be placed directly in front of homes — that decision by the Planning Director withstood all challenges. Novato can do the same by learning from other cities how to skillfully deny WTF applications and not get sued, just as Phillip shared.

After denying these four applications, please learn from and apply the lessons from protective Wireless Telecommunications Facility ordinances that were passed in San Anselmo, Fairfax, Mill Valley, Petaluma, Sebastopol and Sonoma and other CA cities back in 2018-2019 . . . ordinances which are far better than our current emergency URGENCY ordinance.

To assist the finding for denial, tonight, I am entering into the public record over 11,000 pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and other plaintiffs placed in the FCC’s public record in their successful lawsuit against the FCC, which received a ruling on Aug 13, 2021.

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

  • (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,
  • (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and
  • (iii) address the impacts of RF radiation on the environment.”

Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas accessible to human beings, consistent with the evidence in the 27 pdfs that I am adding by reference tonight into the City of Novato’s public record: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.

Please go to wireNovato.org, the website created for this issue to keep updated on planning department actions, council actions, residents comments, and the science regarding the threats to public safety of wireless facilities near residences.

I have expressed no matter of mere concern but solely matters of substance, fact and law


Speaker Five

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

The City of Novato is bound by the Ninth Circuit appellate rulings, including a 2005 ruling in MetroPCS v San Francisco, which defines a significant gap in coverage test for wireless telecommunications and requires wireless cos. to use the least intrusive means to address any gaps. Constructing new WTFs closer than 1,500 feet from residences is not the least intrusive means. Co-locating wireless antennas on existing WTFs is the least intrusive means.

The City of Novato does not need to fall victim to the Wireless industry propaganda — the FCC has no say over local zoning, other than listing their preferences, guidance and presumptions in FCC Orders, such as FCC 18-133, the Small Cell Deployment Order. But many FCC Orders from 2017 to 2021 have been vacated and remanded by the US Courts of Appeals. These orders cannot take away local zoning authority, which has been granted to Novato by the State of California.

Two top Telecom attorneys, Andrew Campanelli and W. Scott McCollough provide expert advice to cities at wireamerica.org/mccollough and wireamerica.org/campanelli

On March 29 McCollough said on Youtube:

Here is What the Cities Can Do . . .

  • McCollough: “A city can say ‘we don’t want these things in a residential area.”
  • Interviewer: “Petaluma did that in 2018.”
  • McCollough: “That’s right. The only [exception] is [that if the wireless provider can show that it must put a WTF at a [specific] location in a residential area because that is the only way they can provide the telecommunications service — [meaning not putting it there would result in an effective prohibition of the ability to make outdoor wireless phone calls], then they can prevail . . . Proving that is a hard task for the Wireless company.**

McCollough: “Unless they can prove it is an effective prohibition [of telecommunications service] — then a city can deny the WTF. So, an ordinance a city can pass is ‘We are saying nothing in residential areas. Indeed we are saying nothing within 1,500 feet of any residential area‘.”

I implore the City of Novato to deny or freeze at&t’s use-permit applications; reform planning department procedures & transparency; demand evidence-based applications; and upgrade & formalize the city’s wireless ordinance.

I have expressed no matter of mere concern but solely matters of substance, fact and law.

Please go to wireNovato.org, the website created for this issue to keep updated on planning department actions, council actions, residents comments, and the science regarding the threats to public safety of wireless facilities near residences.


Speaker Six

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

I am the founder of Wire America, an organization that advocates for Broadband via fiber optics & only calls/texts via wireless.

Wire America helped secure vetoes of two CA State Telecom bills: SB.649 in 2017 and SB.556 in 2021 — bills that would have wiped out cities’ local control over cell tower siting. As a result, all CA cities maintain their zoning authority over the placement, construction and operations of Wireless Telecommunications Facilities (WTFs) off any size or any “G”.

Now, we all understand the following:

  • Good faith is honesty or lawfulness of purpose
  • and
  • Bad faith is lack of honesty in dealing with other people

When four AT&T WTF applications were filed on Feb 25, an act of good faith would have been to immediately notice of the public about hazardous WTFS as close as 20 feet from homes — consistent with Novato’s 2019 Urgency Wireless Ordinance.

But City staff did not do that. Instead city staff has been sitting on these applications for 40+ days, has NOT noticed residents and today refused to answer direct questions about why that happened.

This weekend, however, Novato residents took matters into their own hands and in good faith passed out hundreds of flyers to let the people in these affected neighborhoods know that they would face significant nuisances, hazards and diminished public safety, privacy and property values — all caused by these proposed WTFs as evidenced by the data placed in Novato’s public record this evening.

More examples of bad faith were broadcast on Mar 12, in a national podcast of The Verge entitled **From the Beginning, 5G Millimeter Wave was a Big, Fat Lie”

Apple’s Mar 8, 2022 release of the new third generation iPhone SE proves it. This new iPhone built without millimeter wave antennas, and that uncovers the deception that so-called “small” Wireless Telecommunications Facilities (sWTFs) were ever needed in residential zones

On Mar 12, the Verge Editor-in Chief, Nilay Patel said at 7:45:

“the millimeter wave thing was a lie and now we can all admit it was a lie . . . AT&T offered their own deception by labeling 4G service as 5G-E . . . It’s been at least four years of 5G millimeter wave lies. This new iPhone SE is proof that all of this fake out was just a lie . . . to raise prices.”

The only reason Novato’s 2019 Urgency Wireless Ordinance has a list of Most Preferred, Less Preferred and Least Preferred Location is because Novato’s contract City Attorney did not sufficiently learn from the FCC’s defeats in the US Courts of Appeals and he lacked the discernment to separate wheat from chaff, the propaganda from true, verified information.

Attorney Scott McCollough who argued and won the Environmental Health Trust and Children’s Health Defense lawsuit against the FCC, already told you the truth in an earlier comment:

“an ordinance a city can pass is ‘We are saying no WTFs in residential areas. Indeed we are saying no WTFs within 1,500 feet of any residential area‘.”

I have expressed no matter of mere concern but solely matters of substance, fact and law.



Record of Commmunications

Listed in Chronological Order

April 13, 2022

To:
Mr. Steve Marshall
Planning Manager
City of Novato
922 Machin Avenue
Novato, CA 94945
415.899.8942

cc:
Laura McDowall , City Clerk
Vicki Parker , Community Development Director

[City Clerk McDowall, will you please ensure that this email/letter to the City of Novato is placed in the City’s Public public record for the following Wireless Telecommunications Facilities (WTFs) applications:

  • File No. P2022-024; APN 151-061-06: ADJACENT TO 625 ARTHUR ST.
  • File No. P2022-023; APN 132-113-16: ON NOVATO BLVD. BEHIND 10 PICO VISTA AVE.
  • File No. P2022-022; APN 141-013-22: ADJACENT TO 1553 SOUTH NOVATO BLVD
  • File No. P2022-021-9.; APN 140-071-48: ADJACENT TO 7123 REDWOOD BLVD.

. . . and ensure that this email/letter is printed and placed into the paper file for each of these projects? We are requesting that this email/letter and all communications pertaining to these above listed WTF applications be placed in the corresponding Public Record files for Planning Manager Martin’s full deliberations on these applications. Thank you for doing so.]

Re: Deliberations on Four AT&T so-called “small” Wireless Telecommunications Facilities (sWTFs) Applications

Dear Mr. Marshall,

I am writing to follow up on my phone call to you earlier today requesting timely answers to the following reasonable questions:

Questions

Q1: Given that the City of Novato received AT&T’s applications for so-called “small” Wireless Telecommunications Facilities (sWTFs) on Feb 25, 2022 and 47 days have elapsed, on what date will the City of Novato force AT&T to mail notices to the Novato residents and businesses that fall within 600 feet of these proposed locations?

Per CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO. 1654

Section 3. Required Permits and Applications | C. Application Contents | 8. Public Notices. — The applicant shall submit a mailing list and envelopes, stamped and addressed, for all properties and record owners of properties entitled to receive notice under Section 4(A). Insufficient postage and/or illegible addressing shall be a basis to deem the application incomplete.

Section 4. Approvals and Denials Notices | A. Public Notice. — Prior to any approval, conditional approval, or denial, public notice shall be mailed to all properties and record owners and occupants of properties within a 600 foot radius of the project site. The notice shall contain: (1) a general project description; (2) the applicant’s identification and contact information as provided on the application submitted to the City; (3) contact information for the Project Planner; (4) a statement that the Director will act on the application without a public hearing, but will for a minimum of ten (10) days from the date of the notice accept written public comments that evaluate the application for compliance with the standards in this Ordinance; and (5) a statement that the FCC requires the City to act on small wireless facility applications, which includes any administrative appeals, within 60 days for attachments to existing structures and 90 days for new structures, unless the applicant voluntarily agrees to toll the timeframe for review.

Q2: What process will you follow to discern the veracity of the evidence — how will you separate the wheat (substantial evidence) from the chaff (hearsay and false information) — from the collection of evidence placed in the public record by the applicants, residents and other parties?

Q3: What is your measure for determining if the applications are complete?

Q4: What will you do if the application are not consistent with all local, state and federal laws, including, but not limited to the 1996 Telecommunications Act (1996-TCA), the National Environmental Policy Act (NEPA), the Fair Housing Amendments Act (FHAA) the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA)?

Per CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO. 1654:

D. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or California laws, nothing in this Ordinance is intended to limit the Director’s ability to conditionally approve or deny without prejudice any small cell permit application as may be necessary or appropriate to ensure compliance with this Ordinance.

Key Learning

I had brief conversations today with both City Clerk McDowall and Community Development Director Parker and learned the following:

  1. Both City of Novato Ordinances (DIVISION 19.38 – WIRELESS TELCOMMUNICATIONS FACILITIES from 2012 and CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO. 1654 from 2018) are relevant and must be considered in your deliberations on these four AT&T sWTF applications, because the U.S. Court of Appeals Aug 2019 ruling in Keetoowah et al. v FCC vacated Title 47 CFR Section 1.1312(e)(2), as detailed in Exhibit A. As as result every so-called “small” Wireless Telecommunications Facility (sWTF), must now be treated as every other Wireless Telecommunications Facility (WTF), just as the FCC does.

  2. Even though CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO. 1654 says “determined appropriate by the Director”, which indicates that the Novato Community Development Director is responsible for approving or denying these four AT&T sWTF applications, Ms. Parker indicated to me today that she is delegating that decision to you, Mr. Marshall.

  3. While you, Mr. Marshall, will be managing the public record for any evidence submitted to you for these four AT&T sWTF applications and City Clerk McDowall will be managing the public record for any evidence submitted in public comment for these four AT&T sWTF applications, both sets of information will comprise the full public record for these four AT&T sWTF applications and will be the evidence upon which your deliberations must rely.

  4. The public has encountered the consultants attached to these four applications, Hammett & Edison (H&E) and CTC Technology (CTC) several times in other CA Cities’ deliberations and the public will enter evidence into the public record that shows both consultants have not been objective not been thorough enough in their previous work in these others cities. The public will determine if that trend continues in Novato with these applications. Please see the complaint filed against Hammett & Edison for his work in Palo Alto in Appendix B. Today, I spoke to both Angela Smith, Enforcement Analyst for the CA Board for Professional Engineers and to Jeanne Fleming, PhD, the woman who filed the complaint and confirmed that this complaint is still active. The public will submit further evidence of substandard work offered previously by H&E and CTC and request that the City of Novato require any work from each of these consultants to be more thorough than what they have offered other cities, in the past. We also recommend that the City consider hiring consultants that are more objective than these gentlemen — all of which can be charged to the applicant

Details of AT&T Applications for Four sWTFs too Close to Homes and Schools

I: From the City of Novato:

>>> On Tuesday, April 12th, 2022 at 2:42 PM, Brett Walker bwalker@novato.org wrote:

Good Afternoon:

File No. P2022-022; APN 141-013-22 for 625 Arthur Street: This site is in the Community Facilities land use designation and adjacent to a residential land use/zoning.

File No. P2022-023; APN 132-113-16 for 10 Pico Vista/Novato Blvd: This site is immediately adjacent to residential land use/zoning.

File No. P2022-022; APN 141-013-22 for 1553 S. Novato Blvd: This site is in the Neighborhood Commercial land use designation and adjacent to a residential land use/zoning.

File No. P2022-021; APN for 7123 Redwood Blvd: This site is in the General Commercial land use designation and is approx. 250 feet from the nearest residential land use/zoning.

II: Supplemented from https://wirenovato.org/

AT&T and their agents have applied for 4G/5G so-called “small” Wireless Telecommunications Facilities (sWTFs) in four locations:

  • Near 625 Arthur St. — in front of Novato High School; as close as 30 feet from homes
  • 10 Pico Vista Ave. — as close as 30 feet from homes
  • 1553 S. Novato Blvd. — as close as 60 feet from homes
  • 7123 Redwood Blvd. — as close as 250 feet from homes, but next to medical care facilities

Near 625 Arthur St. — in front of Novato High School; as close as 30 feet from homes

On Novato Blvd. directly behind 10 Pico Vista Ave. — as close as 30 feet from homes

1553 S. Novato Blvd. — as close as 60 feet from homes

7123 Redwood Blvd. — as close as 250 feet from homes, but next to medical care facilities

I will look forward to your timely reply.

Thank you.

Regards,

[California Resident]


Appendix A: Title 47 CFR Section 1.1312(e)(2) Was Vacated

Note: Title 47 CFR Section 1.1312(e)(2) was vacated and declared unlawful on Aug 9, 2019 by the DC Circuit Court of Appeals so the FCC lost the foundation for the definition of a “Small wireless facilities” right then, leading to the following statement by the FCC in Oct 2020 in a phone call between FCC’s Garnett Hanly, Erica Rosenberg, Paul D’Ari (all FCC attorneys in the NEPA administration area) and from our side — Attorney Gary Widman and myself:

Oct 19, 2020 comment by Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau:

“The FCC when it modified its rules [Title 47, C.F.R. § 1.1312(e) by its October 2019 Order that became effective on Dec 5, 2019], after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] we [the FCC] took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

From FCC 18-133:

(l) Small wireless facilities, consistent with section 1.1312(e)(2), are facilities that meet each of the following conditions:

  • (1) The facilities—

    • (i) are mounted on structures 50 feet or less in height including their antennas as defined in section 1.1320(d), or

    • (ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or

    • (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

  • (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume;

  • (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

  • (4) The facilities do not require antenna structure registration under part 17 of this chapter;

  • (5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

  • (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b).


Appendix B: Complaint Against Hammett & Edison at CA Board for Professional Engineers

From: Jeanne Fleming
Sent: Wednesday, August 18, 2021 3:30 PM
To: city.council@cityofpaloalto.org
Cc: ‘Clerk, City’ ; Planning.Commission@CityofPaloAlto.org; ‘Architectural Review Board’ ; board@pausd.org; eileen.rph@gmail.com; ‘Tina Chow’ ; todd@toddcollins.org; wross@lawross.com

Subject: Investigation of William Hammett opened by California Regulatory Board

Dear Mayor DuBois, Vice Mayor Burt and Councilmembers Cormack, Filseth, Kou, Stone and Tanaka,

Attached please find a copy of a letter from the Enforcement Unit of the California Board for Professional Engineers, Land Surveyors, and Geologists stating that the Board has opened a formal investigation of William Hammett of Hammett & Edison. Mr. Hammett is being investigated in regards to the bald-face misrepresentation made in the RF exposure compliance analysis his firm prepared in support of Verizon’s application to install a cell tower at 850 Webster Street.

Also attached is the complaint I filed that brought Mr. Hammett’s misconduct to the Board’s attention and led to their decision to open an investigation.

To remind you, Mr. Hammett and his firm have prepared the required-by-the-City RF (i.e., radio frequency radiation) exposure compliance analyses for dozens of cell towers in Palo Alto, including the three Verizon towers you approved on June 22, 2021. The purpose of these analyses is to determine if the estimated RF emitted by proposed new towers, together with the RF emitted by any nearby existing cell towers, will comply with the RF safety standards established by the FCC.

Mr. Hammett is being investigated because, in purportedly certifying the safety of Verizon’s proposed new cell tower adjoining Channing House, his firm made a flagrant misrepresentation of conditions at the site. Specifically, their RF exposure compliance analysis states: “There are reported no other wireless telecommunications base stations at the site or nearby.” In fact, however, there is a macro tower—in other words, a very large cell tower—at the very same address.

Moreover, Mr. Hammett unequivocally knew that a macro tower existed at the site where Hammett & Edison’s report said no cell towers existed. For one thing, he’s the person who prepared the initial exposure compliance report when the macro tower was being installed on the roof of Channing House. And for another, the management of Channing House had recently hired Mr. Hammett to prepare a new RF compliance report on the macro tower. (Documentation of these facts can be found in the attached exhibits, which accompanied the complaint.)

So you know, sanctions available to the Board for Professional Engineers, Land Surveyors and Geologists are a) to suspend or revoke a person’s license, b) to issue an administrative citation or c) to refer the matter to the district attorney for criminal prosecution.

Until the Board completes its investigation, I hope Palo Alto will place a moratorium on accepting RF reports prepared by Hammett & Edison. In addition, given the seriousness of the misrepresentation made in his firm’s RF exposure compliance analyses for the proposed cell tower at 850 Webster Street, I hope you will consider directing City Staff to hire an outside engineering consulting firm to conduct a fresh review of the reports submitted by Hammett & Edison in the past, in order to ensure that Mr. Hammett’s and his employees’ representations of the RF at every cell tower site have been accurate and complete.

Please let me know if you have any questions



April 13, 2022 @ 6:33 pm, PT

Dear [California Resident]:

Re: May I please have timely answers to the following reasonable questions?

Below are answers to your questions.

The Planning Division will mail a public notice to all property owners and occupants within a 600-foot radius of a proposed small cell wireless facility. The notice will be mailed ten (10) days prior to the date set for action on the given small cell use permit. The Planning Division will generate mailing labels using addresses taken from the Marin County Assessor’s property ownership records. Notices will be mailed to an occupant where the Assessor’s records indicate an absentee property owner. The applicant for a small cell use permit will pay for the staff time and postage required to prepare and mail the notices. The Planning Division will not rely on an applicant to prepare the mailing labels contrary to the noticing provision in Ordinance No. 1654. The Planning Division is best suited to ensure accurate noticing as it regularly performs the same type of noticing for many other permit processes and actions.

All of AT&T’s applications are incomplete as of March 7, 2022. AT&T has not responded to the completeness issues raised by the Planning Division and the applications have remained dormant. Given this circumstance, there is no date certain when an action will be taken by the Planning Division on AT&T’s applications. Therefore, it is not possible to specify a date when notices will be mailed by the Planning Division.

The Planning Division assesses small cell use permits on the basis of the criteria and findings of Ordinance No. 1654. Staff will consider all evidence specifically relevant to the question of compliance with the criteria and findings. Staff will receive support from a wireless telecommunications consultant to assist in verifying compliance with the criteria and findings of Ordinance No. 1654 that are of a technical nature, such as compliance with applicable health and safety regulations. Staff will receive legal support from the city attorney’s office on matters of compliance with applicable laws.

The Planning Division assesses the completeness of a small cell use permit applications against the submittal items addressed in Ordinance No. 1654 as consolidated and clarified in a separately prepared application checklist. A copy of this checklist is attached.

If the Planning Division determines a proposed wireless facility is not in compliance with an applicable regulation within the authority of the City then the Community Development Director may take any of the actions listed in Section 4., clause D. – Conditional Approvals; Denials without Prejudice.

Senior Planner Brett Walker and Planner II Vivek Damodaran are copied on this email so as to add your email below and this response to the file for each of AT&T’s applications.

Sincerely,

Steve Marshall
Planning Manager
Main: (415) 899-8989 | Direct: (415) 899-8942
922 Machin Avenue, Novato, CA 94945



April 22, 2022

To
Mr. Steve Marshall
City of Novato Planning Division
922 Machin Avenue
Novato, CA 94947

cc:
Novato Planning Division: Brett Walker, Vivek Damadoran
Novato City Council members: Eric Lucan, Susan Wernick, Pat Eklund, Denise Athas, Mark Milberg
Novato City Manager: Adam McGill
Novato Community Development Department Director: Vicki Parker
Novato City Clerk: Laura McDowall

Re: Deliberations on Four AT&T so-called “small” Wireless Telecommunications Facilities (sWTFs) Applications

City Clerk: in order to achieve crucially necessary transparency of governance, please responsibly ensure that this email/letter and all communications pertaining to the WTF applications listed below be placed in the corresponding Public Record files to assure transparency.

  • File No. P2022-022; APN 141-013-22: ADJACENT TO 1553 SOUTH NOVATO BLVD
  • File No. P2022-021; APN 140-071-48: ADJACENT TO 7123 REDWOOD BLVD.
  • File No. P2022-023; APN 132-113-16: ON NOVATO BLVD. BEHIND 10 PICO VISTA AVE.
  • File No. P2022-024; APN 151-061-06: ADJACENT TO 625 ARTHUR ST.

Dear Mr. Marshall et al.,

I am writing on behalf of Wire Novato, a group of Novato residents who are focused on ensuring that the deliberations over AT&T’s four applications to install so-called “small” Wireless Telecommunications Facilities (sWTFs) near homes and schools in Novato follow thorough review and evidence verification to establish that the applications are consistent with all local, state and federal laws.

I have been in touch with Brett Walker, who informed me that AT&T submitted four applications on February 25, 2022. Mr. Walker answered some of my procedural questions, but others remain unanswered. Wire Novato understands that the City of Novato Planning Department (“Planning”) was designated by the Community Development Director to deliberate and then either approve or deny these four sWTF applications.

We also know that Planning deemed these four applications incomplete on Mar 7, 2022 and sent to AT&T a list of what was incomplete in the applications. I understand that Novato is expecting AT&T to resubmit their applications between today and May 6, 2022, per Novato’s Urgency Wireless Ordinance.

Planning took ten (10) days to process the original application submissions, which means the shot clock decremented from 60 to 50 days. Per Novato Urgency Wireless Ordinance #1654, AT&T and its agents shall supply stamped addressed envelopes for notification to businesses, residences, and property owners within a 600-foot radius of the proposed installations upon submission of their application. To date, they have not done so.

Brett Walker told to us that the City of Novato intends to mail the notices, but only after AT&T and its agents resubmit the applications. This is not acceptable. The longer the City of Novato waits to send out notices to residents within 600 feet of the proposed locations, the worse it will be for the affected residents, who expect timely notification — within days of the City of Novato first learning of the project. We urge you to mail those notice letters to Novato residents without further delay.

Walker also stated that he does not intend to issue any more letters to AT&T until after it resubmits the four sWTF applications. There is no law that prevents the City of Novato from sending letters listing additional incomplete items before AT&T resubmits the applications, particularly since Planning missed a number of incomplete items in the Mar 7 letters to AT&T and its agents (see Appendix A).

The public is seeking more detailed information from the applicants to ensure full compliance with local, state, and federal laws. We are also advocating for transparency in this process: placing the incomplete letters and all other project information on the City of Novato web site as soon as the information is available to the City of Novato. There is no value in putting obstacles in the way of public access to this information. Making it easy for Novato residents to thoroughly review these applications for missing and essential pieces of information would enable the City to conduct its deliberations based on complete and verified information.

I have attached in Appendices A & B, a partial list of requirements that AT&T must provide in order for their applications to be deemed complete. Please feel free to contact me with any questions about these requirements, and please immediately issue additional letters to AT&T and its agents that list the requirements in Appendices A and B. To ensure that these four AT&T sWTFs do not put Novato residents in harm’s way, AT&T must enter substantial written evidence into the public record proving compliance with ALL local, state and federal laws. The City, however, has a duty to provide actual public safety, not just compliance.

We have entered substantial evidence into the City of Novato’s public record during our Apr 12, 2022 public comments at the City Council meeting. Many of our colleagues have also written letters to City Council members. We have asked City Council to do the following:

  1. Direct Planning to deny all four applications.
  2. Direct Planning to require much more detailed evidence from the applicant to ensure compliance with all relevant federal, state and local laws, including Novato’s own wireless ordinance.
  3. Use Novato’s existing ordinances to hire neutral Radio Frequency and legal consultants at the applicant’s expense.
  4. Deem all four applications incomplete until the FCC completes the DC Circuit court-mandated Environmental Review of the entire 800,000 to 1 million cell roll out; the FCC was mandated to do so in two court rulings which I submit into the record.: once in 2019 in Case 18-1129, Keetoowah et al. v FCC and again in 2021 in Case 20-1025, EHT/CHD v FCC.
  5. Provide more transparency in the application process, including timely notice, placing all relevant data on the website as soon as it arrives, and passing a stronger Wireless Ordinance that protects residences

Residents of Novato look forward to a prompt response to the requests laid out in this email/letter. We will be sending more letters in the near future. Please also reply to [Novato resident’s] letter from April 11, which has important questions that need to be answered.

Some of the evidence we have placed in the City of Novato public record would be best discussed in person; we have requested a meeting with you, Mr. Marshall, and look forward to meeting with you. Please respond to [Novato resident’s] request for an in-person meeting as soon as possible. It will be mutually beneficial to speak about these critically important matters in person.

Sincerely,

[Novato Resident]


APPENDIX A: Items Missing from AT&T sWTF Applications

The following is a partial list of substantial written evidence that the City of Novato can require of the sWTF applicants per local, state, and federal laws — these items require substantial written evidence from AT&T to be placed in the City of Novato public record in order for their applications to be deemed complete.

  • AT&T MUST supply stamped, addressed envelopes for notification of all properties and record owners and occupants of properties. Until then the applications are incomplete. It is in the ordinance and therefore AT&T’s applications cannot be marked complete without this.

  • AT&T MUST provide substantial written evidence of NEPA review as required by federal law and the Aug 2019 DC Circuit ruling in Case 18-1129, Keetoowah et al. v FCC. For the target search ring of each proposed sWTF.

  • AT&T MUST provide substantial written evidence of anonymized AT&T completed calls and dropped calls to establish if there is any significant gap in telecommunications coverage – in order to establish if there is a need for any of these sWTFs.

  • AT&T CAN BE CHARGED for the cost of RF microwave radiations analysis completed by an independent professional engineer acceptable to the city, based on actual peak and average broadband measurements (100 MHz to 10,000 MHz) of RF microwave radiation in each of the target search ring areas and a spectrum analysis to show dBM readings of all licensed and unlicensed frequencies being transmitted into the target search ring search areas before the application is deemed complete (See Appendix B).

  • AT&T MUST provide a traffic control plan for any construction.

  • AT&T MUST provide substantial written evidence of actual RF microwave radiation measurements — specifying the following for each sWTF application:

    1. the methodology and equations used to create the existing/proposed telecommunications coverage analysis for each application (accept no results from proprietary software, since those results cannot be verified).
    2. the current measured dBM signal strengths of each AT&T wireless frequency/band/channel that are being broadcast into each sWTF search ring today, before any new sWTFs are constructed ( see Appendix B)
    3. the projected dBm signal strengths of each AT&T wireless frequencies/bands/channels projected after sWTF installation.
    4. Do not accept any proprietary software for coverage map calculations and demand all input values to any software used, so calculations can be independently verified.
  • AT&T MUST provide substantial written evidence establishing the need for each sWTF:

    1. Show measured dBM Signal Strength (SS) readings for each of each frequency range/band/channel being transmitted by all existing AT&T WTFs into the target search rings proposed for each of the four sWTF applications.
    2. Show Key Performance Indicator (KPI) network performance data covering a minimum of 12 months of peak/average measurement statistics for:
      • Physical Resource Blocks (PRB) download utilization
      • Voice connection failures
      • Number of concurrent users
  • AT&T MUST revise the RF report to indicate the locations of adjacent cell sites and indicate if shared responsibilities exist in compliance with all applicable requirements, per FCC OET Bulletin 65.

  • AT&T MUST provide substantial written evidence proof of proper grounding and mitigation plan by a Professional Engineer in Electrical matters.

  • AT&T MUST provide substantial written evidence proof that all applications were reviewed and stamped by independent professional engineers that have licenses in each required specialty: structural, electrical and RF microwave radiation;

  • AT&T MUST provide substantial written evidence proof that for each AT&T sWTF application proposed and for each currently operating AT&T WTF in the City suffiiently mitigates all five hazards listed in Article 90.I(C) of the National Electric Code (NEC) and conducted emissions (dirty electricity)

    1. shock, also known as electrical contact
    2. thermal effect
    3. overcurrent
    4. fault current
    5. overvoltage.
  • AT&T MUST provide substantial written evidence proof that each sWTF application strictly adheres to all City-adopted building, electrical, fire safety and fall-zone codes.

  • AT&T MUST provide substantial written evidence proof that a California Fire Code analysis has been completed, addressing section 1206 Electrical Energy Storage Systems, and revise plans accordingly to show specific compliance with Fire Code requirements.

  • AT&T MUST provide substantial written evidence proof that a California Building Code analysis has been completed, addressing sections 508 Mixed Use and Occupancy, 509 Incidental Uses, and 1510.6.3 Type V Construction, and revise plans accordingly showing specific compliance with building code requirements.


Appendix B: Required AT&T Signal Strength (SS) Analysis for Each sWTF’s Target Search Ring

Source: https://specmap.sequence-omega.net/

Label Band Frequencies
(MHz)
Bandwidth
(MHz)
Pre-sWTF
SS (dBm)
All Sources
Post-sWTF
SS (dBm)
All Sources
700 MHz Lower B 704-710 6 tbd tbd
700 MHz Lower B 734-740 6 tbd tbd
700 MHz Lower C 710-716 6 tbd tbd
700 MHz Lower C 740-746 6 tbd tbd
700 MHz Lower D 716-722 6 tbd tbd
700 MHz Lower E 722-728 6 tbd tbd
Firstnet D 788-798 10 tbd tbd
Firstnet D 758-768 10 tbd tbd
Cellular A 824.04-834.99 11 tbd tbd
Cellular A 845.01-846.48 1.5 tbd tbd
Cellular A 869.04-879.99 11 tbd tbd
Cellular A 890.01-891.48 1.5 tbd tbd
AWS C 1730-1735 5 tbd tbd
AWS C 2130-2135 5 tbd tbd
AWS H 1760-1765 5 tbd tbd
AWS H 2160-2165 5 tbd tbd
AWS I 1765-1770 5 tbd tbd
AWS I 2165-2170 5 tbd tbd
PCS A 1860-1865 5 tbd tbd
PCS A 1940-1945 5 tbd tbd
PCS D 1865-1870 5 tbd tbd
PCS D 1945-1950 5 tbd tbd
PCS B 1870-1875 5 tbd tbd
PCS B 1950-1955 5 tbd tbd
PCS B 1875-1880 5 tbd tbd
PCS B 1877.5-1885 5 tbd tbd
PCS B 1877.5-1882.5 5 tbd tbd
PCS B 1875-1885 5 tbd tbd
PCS B 1955-1960 5 tbd tbd
PCS B 1957.5-1965 7.5 tbd tbd
PCS B 1957.5-1962.5 5.5 tbd tbd
PCS B 1955-1965 10 tbd tbd
WCS A 2305-2310 5 tbd tbd
WCS A 2350-2355 5 tbd tbd
WCS B 2310-2315 5 tbd tbd
WCS   2355-2360 5 tbd tbd
WCS C 2315-2320 5 tbd tbd
WCS D 2345-2350 5 tbd tbd
3.45 GHz D 3480-3490 10 tbd tbd
3.45 GHz E 3490-3500 10 tbd tbd
3.45 GHz F 3500-3510 10 tbd tbd
3.45 GHz G 3510-3520 10 tbd tbd
C-Band A4-Int 3760-3780 20 tbd tbd
C-Band A5-Int 3780-3800 20 tbd tbd
C-Band B3 3840-3860 20 tbd tbd
C-Band B4 3860-3880 20 tbd tbd
C-Band B5 3880-3900 20 tbd tbd
C-Band C1 3900-3920 20 tbd tbd
mmWave E 24950-25050 100 tbd tbd
mmWave F 25050-25150 100 tbd tbd
mmWave G 25150-25250 100 tbd tbd
mmWave N7 39200-39300 100 tbd tbd
mmWave N8 39300-39400 100 tbd tbd
mmWave N9 39400-39500 100 tbd tbd
mmWave N10 39500-39600 100 tbd tbd
mmWave N11 39600-39700 100 tbd tbd
mmWave N12 39700-39800 100 tbd tbd
mmWave N13 39800-39900 100 tbd tbd
mmWave N14 39900-40000 100 tbd tbd


Date: April 26, 2022

To:
Steve Marshall
City of Novato Planning Division
922 Machin Avenue
Novato, CA 94947

cc:
Novato Planning Division: Brett Walker, Vivek Damadoran
Novato City Council members: Eric Lucan, Susan Wernick, Pat Eklund, Denise Athas, Mark Milberg
Novato City Manager: Adam McGill
Novato Community Development Department Director: Vicki Parker
Novato City Clerk: Laura McDowall
Wire Novato

City clerk: in order to achieve crucially necessary transparency of governance, please responsibly ensure that this email/letter and all communications pertaining to the WTF applications listed below be placed in the corresponding Public Record files to assure transparency.

File No. P2022-022; APN 141-013-22: ADJACENT TO 1553 SOUTH NOVATO BLVD.
File No. P2022-021; APN 140-071-48: ADJACENT TO 7123 REDWOOD BLVD.
File No. P2022-023; APN 132-113-16: ON NOVATO BLVD. BEHIND 10 PICO VISTA AVE.
File No. P2022-024; APN 151-061-06: ADJACENT TO 625 ARTHUR ST.

Thank you for doing so.


Dear Mr. Marshall,

I am a Novato resident, and part of a group called Wire Novato (wireNovato.org). My comments in this letter are on behalf of the group.

On April 13, 2022, [CA resident] wrote an email/letter to the City of Novato Planning Department with questions about the review process of the AT&T applications for four so-called “small” Wireless Telecommunications Facilities (sWTFs) in Novato. The term ‘small’ is inappropriate in terms of generated RF microwave radiation that is sufficient to ruin the quiet enjoyment of streets (due to noise, negative health consequences and safety problems). As such these sWTFs, as proposed, will harm public safety, privacy, property values.

On April 13, 2022, you responded to [CA resident’s] email/letter, but did not answer all of his reasonable questions. Both of those letters are included in Appendix A.

[CA resident] shared both Apr 13 letters with Wire Novato and told us that it would be most appropriate for Wire Novato to respond to your Apr 13 letter, as our group is comprised of Novato residents, many of whom will be adversely affected by the proposed AT&T WTFs.

On April 8, 2022, [Novato resident’s] also submitted a letter to your department which has not yet been answered. See that letter in Appendix B.

We are seeking timely and thorough answers to the following questions, some from the April 9 and April 13 letters and others from the Novato residents who are joining Wire Novato, after they received the flyers we distributed in the neighborhoods, starting on Sat April 9.

  1. Why has the City of Novato Planning Dept. (“Planning”) not published these four proposed AT&T applications on the City of Novato’s web site from February 25, 2022 (the day the applications arrived) to the present?
  2. Why are no City signs posted on the target poles?
  3. Why have no notices been mailed to Novato businesses and residents within a 600-foot radius of these proposed locations?

Other cities in California are more transparent about WTF applications, including, but not limited to Palo Alto, Sonoma, Petaluma and Santa Rosa, which places a dot on an online map, as soon as an application arrives. The longer the City of Novato waits to send out notice to the most immediately affected residents, the more severe will be the violation of the due process rights of those residents from the City’s continuing failure to comply with intent of Novato’s Ordinance 1654.

Open transparency includes swiftly notifying the public on the city’s web site, notifying residents and businesses via mailed letters, and working with the public on the deliberation process of these applications, the outcome of which will significantly and adversely impact people’s families, public safety, privacy, and property values.

Given that City of Novato Ordinance 1654 says:

“the Director will act on the application without a public hearing, but will for a minimum of ten (10) days from the date of the notice accept written public comments that evaluate the application for compliance with the standards in this Ordinance”

. . . we need assurances from the City of Novato that any person’s first amendment rights to redress grievances to their government will not be restricted by time frame or by content. Will the City of Novato please confirm that this letter and all letters from Wire Novato and other interested persons regarding these WTF applications will be accepted, read and considered by the Planning Department (and placed into the City’s public record) for the deliberations on these applications?

We have asked that Planning review the items we have identified in Appendix C that AT&T must include in their applications per local state and federal laws, and then send additional letters to AT&T and its agents informing them that they must provide the required information before the applications can be deemed complete. Considering the harms for residents and liabilities for the City that these installations would create, a full exploration and review of current local, state, and federal regulations by Planning is essential. It is clear this has not been done because the checklist used to determine application completeness is lacking essential information AT&T needs to produce.

Importantly, there is no law that prevents the City of Novato from sending additional letters seeking more detailed information to the applicant to ensure compliance with local, state, and federal laws. If it iPlanning’s s position that there is some law which prohibits such letters, please provide a citation to that law. Blocking public access to public records would prevent the people of Novato from being able to thoroughly review these applications and require the missing and essential pieces of information that will allow the City to make fully informed decisions in its deliberations on these applications.

Given that Section 4(C) Required Findings of Ordinance 1654 does not include all requirements specified in local state and federal laws for these applications, will you please accept, read and consider findings — finding that are not on the insufficient list of just seven items on the city’s check list — in the deliberations on these applications?

Ordinance 1654 states that the city can hire an attorney at the applicant’s expense.

Section 5A16: Cost Reimbursement. “The permittee acknowledges and agrees that (A) the permittee’s request for authorization to construct, install and/or operate the wireless facility will cause the City to incur costs and expenses . . including engineers’, **attorneys’,** or technical consultants’ fees and costs incurred by the City in connection with the permittee’s request; . .”

Will you please immediately publish to the City of Novato’s website the full contents of each application file, making it easy for anyone to access and read this content?

Failure to Timely Notice the Public

Regarding the first question, we recognize that Ordinance 1654 does not specify when the Planning Division has to notice residents which is one of the many weaknesses in the outdated Ord. 1654 that must be addressed and changed by the City Council. Clearly, WTFs with insufficiently regulated maximum power output will be a great nuisance to Novato residents who live near these proposed sites, ruining their quiet enjoyment of streets (and homes), the protection of which is clearly under the authority of the City of Novato, per the 2019 CA Supreme Court ruling in Metro PCS vs California which says:

“. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . . the word “ ‘incommode’ means ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” . . . Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel . . . For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.

In your April 13 response to [CA Resident], you state that the Planning Department intends to send public notices “10 days prior to the date set for action on the given small cell use permit.” That is wrong. Notices should have been mailed within a week of the date the City of Novato first received the applications. The public needs to know as soon as possible about any infrastructure that would ruin the quiet enjoyment of their streets (and homes) and that would diminish their public safety, privacy and property values, in violation of the CA constitution:

California Constitution, Article I Declaration of Rights, Section 1* “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

The public has limited time to comment on and appeal the decisions re: these applications, due to the 60-day shot clock which has now decremented to 50 days. For that reason, we are asking the City Council to give the Novato Planning Dept. clear direction to immediately mail out notices to those within 600-feet of the proposed WTF sites consistent with Ord. 1654. From the public’s perspective, these notices are already significantly past due.

In your April 13 letter you stated:

“Notices will be mailed to an occupant where the Assessor’s records indicate an absentee property owner. The applicant for a small cell use permit will pay for the staff time and postage required to prepare and mail the notices. The Planning Division will not rely on an applicant to prepare the mailing labels contrary to the noticing provision in Ordinance No. 1654.”

It may make logistical sense that the Novato Planning Dept. can ensure accurate noticing as it regularly performs the same type of noticing for many other permit processes and actions, but per Ordinance 1654, the applicant is required to comply with the noticing provision. If they have not, they are out of compliance, and should be told so by Planning, and the applications should remain incomplete for that reason.

Also in your Apr 13 letter, you stated:

“All of AT&T’s applications are incomplete as of March 7, 2022.”

That is true. But there are many more incomplete items other than those listed in the March 7 letters. These additional items need to be addressed in additional letters that must be sent to the applicant as soon as possible. We list the additional incomplete items in Appendix C.

Ord.1654 Section 4(C) is Not Comprehensive
In your April 13 letter, you stated

“The Planning Division assesses small cell use permits on the basis of the criteria and findings of Ordinance No. 1654.”

The City of Novato, of course, must follow all state and federal laws in the process, including but not limited to the 1996 Telecommunications Act (1996-TCA), the National Environmental Policy Act (NEPA), the Fair Housing Amendments Act (FHAA) the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), none of which is specified in Section 4(C) Required Findings of Ord. 1654. Therefore, the seven items listed in Section 4(C) cannot be the only things considered by the Planning Department when deliberating on these applications.

Therefore, when you stated in your Apr 13 letter:

“Staff will consider all evidence specifically relevant to the question of compliance with the criteria and findings.[in Section 4(C)]”

. . . that statement is clearly insufficient. The City has the duties and obligations to deliver actual public safety to its residents and to protect residents from the unconstitutional taking of their public safety, privacy and property values under the City’s police powers as granted to it by the State constitution.

In addition, there are applicable criteria and findings in the City of Novato’s codified municipal code DIVISION 19.38 – WIRELESS TELECOMMUNICATIONS FACILITIES. Recall that both City of Novato Ordinances (DIVISION 19.38 – WIRELESS TELECOMMUNICATIONS FACILITIES from 2012 and CITY COUNCIL OF THE CITY OF NOVATO ORDINANCE NO. 1654 from 2018) are relevant and must be considered in your deliberations on these four AT&T sWTF applications, because the U.S. Court of Appeals Aug 2019 ruling in Keetoowah et al. v FCC vacated Title 47 CFR Section 1.1312(e)(2). As a result every small WTF must now be treated as every other Wireless Telecommunications Facility, just as the FCC does.

Applicable Health and Safety Regulations

In your April 13 letter, you stated:

“Staff will receive support from a wireless telecommunications consultant to assist in verifying compliance with the criteria and findings of Ordinance No. 1654 that are of a technical nature, such as compliance with applicable health and safety regulations.”

For accuracy, we need to clarify the following:

The FCC RF microwave radiation guideline, selected in 1996 by the FCC, combining existing guidelines from the IEEE, ANSI and the NCRP are not “health and safety regulations”, but merely a commercial guideline. The FCC has no expertise in health and that has been fully recognized by the DC Circuit judges in the Aug 13, 2021 ruling which irrevocably changed the wireless world:

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

​ (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,

​ (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and*

​ (iii) address the impacts of RF radiation on the environment.”

The City of Novato also received substantial evidence in the public comment from Theodora Scarato, Executive Director of the Environmental Health Trust and plaintiff in Case 20-1025, EHT/CHD v FCC. In her public comment on Apr 12, 2022 in City Hall Chambers via Zoom. Ms Scarato said:

“the FCC ignored the scientific evidence on the record, over 10,000 pages of evidence that show harms for wireless radiation and ordered the FCC to respond and address issues of children’s vulnerability as well as long-term exposure . . . these limits are not scientifically defendable based on any review of the totality of the science . . . although we might assume that federal regulatory agencies with health expertise, such as . . . the EPA, FDA or CDC are monitoring and reviewing the latest science about RF microwave radiation from cell tower exposures, they are not. Full stop . . . many communities are establishing setbacks to protect residential neighborhoods . . . New Hampshire has a state bill that proposed a 1,640 foot setback for any Wireless Telecommunications Facility installation.”

The 11,000+ pages of evidence already in the City of Novato’s public record concludes that Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can use its police powers to regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and other plaintiffs placed in the FCC’s public record. Wire Novato placed this same evidence into the City of Novato public record for these applications on Apr 12, 2022.

Problems with Wireless Industry Consultants

Representatives from CTC Technology and Hammett & Edison are not qualified to make any statements about “health and safety.” They can only make statements about compliance to a commercial guideline, one that has been scientifically established to be unsound and not protective. In short, the City of Novato cannot employ consultants in an attempt to hide behind the scientifically disproven FCC RF microwave radiation exposure guideline any longer. That ended on Aug 13, 2021, with the DC Circuit ruling.

In addition, there are well-documented problems with Hammett & Edison’s CTC Technology’s assessments completed for other California cities. Both consultants have clear pro-industry ties and bias despite their claims to be “objective”. The public is gathering evidence in addition to the active complaint against William Hammett for his substandard work in Palo Alto, CA that is already in your public record. You can expect the additional evidence our follow up letters.

We ask again that the city obtain independent expert attorney and RF engineers to fully evaluate these applications and guide the city through this process.

These facts are well documented in the August 13, 2021 in the US Courts of Appeals DC Circuit ruling in Case 20-1025: EHT/CHD v FCC. Victorious plaintiff, which Theodora. Scarato confirmed to the City of Novato, personally, on April 12 2022._xxx

Antenna Capability and Effective Radiated Power

The Denki Kogyo Model DKOBDYKDP-7M45F antenna that is being proposed for each of the AT&T WTFs is wholly inappropriate in size and power output for its need: to provide telecommunications service (i.e. the ability to make an outdoor wireless phone call). All one needs for “5 Bars” on a cell phone is wireless signal strength of -85 dBM (which equates to about 0.1 Watt ERP). ERP = Effective Radiated Power.

The Denki Kogyo Model DKOBDYKDP-7M45F Antenna has the calculated capability of outputting 3,000 Watts ERP, but it is actually engineered to do twice that or 6,000 Watts ERP. It matters little what the applicants “say” are their intentions (to run the antenna at about 2.5% of this capability), they cannot be trusted. According to a top US Telecom Attorney in the US, Andrew Campanelli — in https://youtu.be/UtT6gVH584s?t=1616

“in my experience, in 90% of the applications I have seen, the applicant has submitted false and misleading information and it is not by mistake.”

Wireless applicant’s answers are often guarded and vague; they are banking on the fact that Planning staff’s eyes will glaze over when they talk tech. The residents of Novato, however, know that telecommunications service at the stated radius of 1,000 to 1,200 feet can be provided by a 4-inch tall antennas, like the ones you see on Wi-Fi routers. That would be sufficient to provide outdoor wireless phone calls.

Denki Kogyo Model DKOBDYKDP-7M45F Antenna —

https://www.dkk-na.com/_files/ugd/390516_83389dfce74348c580ce2024b1dc4555.pdf

Frequencies Qty ports Max Input Power Ant. Gain Power Ratio Max Effective Radiated Power Capability
1695 – 1880 MHz 2 ports 100 W 8 6.3 100 W x 6.3 x 2 = 1,260 W ERP
1880 – 2180 MHz 2 ports 100 W 8.5 7.1 100 W x 7.1 x 2 = 1,420 W ERP
3400 – 3800 MHz 4 ports 30 W 3 2.0 30 W x 2.0 x 4 = 240 W ERP
5150 – 5925 MHz 2 ports 10 W 6 4.0 10 W x 4.0 x 2 = 80 W ERP
Total Antenna Capability 3,000 Watts ERP

The City Novato Can Listen to the Nation’s Top Telecom Attorneys

The City of Novato can learn from these successful Telecom attorneys

In your April 13 letter, you stated:

“Staff will receive legal support from the city attorney’s office on matters of compliance with applicable laws.”

In our comments to City Council, and in [Novato resident’s] letter to your department, we referred the City of Novato to cases that have been successfully litigated and won against the FCC. These were litigated by the top Telecom attorneys in the country. The City of Novato is bound by the rulings in these cases. “

In your Apr 13 letter, you state:

“If the Planning Division determines a proposed wireless facility is not in compliance with an applicable regulation within the authority of the City then the Community Development Director may take any of the actions listed in Section 4., clause D. – Conditional Approvals; Denials without Prejudice.”

Denials without prejudice can occur for many reasons other than “an applicable regulation within the authority of the City”. For example, there are items within the authority of the FCC, such as the applicant providing no substantial written evidence to prove the applicant has completed NEPA review, as they are required to do by the FCC, as you can read here → <https://wireamerica.org/action/nepa-strategies/

This Feb 20, 2020 statement by Erica Rosenberg and the FCC rules are consistent.

Erica Rosenberg, FCC: “If one of those circumstances are met, then an Environmental Assessment is triggered. In other words, if the RF is above our limits, they need to do an Environmental Assessment.

In FCC Rule §1.1307, it states:.

“Commission actions granting . . . licenses to transmit . . . require the preparation of an Environmental Assessment (EA) if exposure to levels of radio-frequency radiation [are] in excess of the [FCC] limits.”

Then in Table 1 of FCC Rule §1.1307:

(b)(1) “Evaluation required if Non-building-mounted antennas [have] height above ground level to lowest point of antenna less than 10 meters and total power of all channels is greater than 1,000 W ERP.

Mr. Marshall, where in the application file is the substantial written evidence that the applicant has completed National Environmental Policy Act review, as required by the FCC?

Novato’s Current WTF Application Checklist is Insufficient

In your Apr 13 letter, you stated:

“The Planning Division assesses the completeness of a small cell use permit applications against the submittal items addressed in Ordinance No. 1654 as consolidated and clarified in a separately prepared application checklist. A copy of this checklist is attached.”

This City-provided checklist unfortunately is not sufficiently comprehensive. Wire Novato has studied the checklist and we highlight many items that are missing from this checklist in Appendix C – these items should be added. Nothing prevents the City of Novato from making the checklist more comprehensive. The City must immediately send to AT&T and its agents additional letters that include a full list of incomplete items.

In Conclusion, AT&T’s sWTF Applications Rest On Shaky Ground

The entire foundation of AT&T’s applications are built on shaky ground because of the ruling in August, 2021 in Case 20-1025, EHT/CHD v FCC. For this reason alone, the applications should be deemed incomplete and out of compliance.

We look forward to engaging with the City of Novato Planning Dept. to participate in a fully transparent deliberation process with extensive Quality Assurance by the public on the work being done by the City of Novato employees who serve at the pleasure of Novato residents’ elected representatives who, in turn, are representing the residents of Novato.

The lives of Novato residents would be significantly and adversely affected if these sWTFs are approved, so the public needs a full seat at the table

Thank you.





May 1, 2022

Mayor Lucan
Mayor Pro Tem Wernick
Councilmember Eklund
Councilmember Milberg
Councilmember Athas

cc: City Clerk McDowall

RE: Novato Planning Division’s Violations of Our Wireless Ordinances

Dear Novato City Council members,

[City Clerk McDowall, will you please ensure that this email/letter to the City of Novato is placed in the City’s Public public record for the following Wireless Telecommunications Facilities (WTFs) applications:

  • File No. P2022-024; APN 151-061-06: ADJACENT TO 625 ARTHUR ST.
  • File No. P2022-023; APN 132-113-16: ON NOVATO BLVD. BEHIND 10 PICO VISTA AVE.
  • File No. P2022-022; APN 141-013-22: ADJACENT TO 1553 SOUTH NOVATO BLVD.
  • File No. P2022-021-9.; APN 140-071-48: ADJACENT TO 7123 REDWOOD BLVD.

. . . and ensure that this email/letter is printed and placed into the paper file for each of these projects? We are requesting that this email/letter and all communications pertaining to these above listed WTF applications be placed in the corresponding Public Record files for Planning Manager Martin’s full deliberations on these applications. Thank you for doing so.]

City Manager McGill stated in the council meeting in the Tuesday, April 26 City Council meeting that he “believes” the planning department is following the city’s ordinance, as if this is a matter of belief instead of a matter of fact.

Apr 26, 2022 comment from City Manager Adam McGill, following General Public Comment:

“With regards to the 5G item, this matter is set to come back to the Council later this year for updating our ordinance and the advice of the City Attorney’s office and staff is that we believe we are following our current ordinance, which is the law of the City Council. Unless and until directed otherwise, staff is in compliance with the existing City law and ordinances including with notifications and posting of things. So it is certainly within the Council’s purview to change that ordinance, but unless you do that, Council [staff] is following your prior direction in 2019. We do intend to bring you an Ordinance change (some recommendations) later this year. “

McGill’s comment came after substantial written evidence was placed into the public record by Novato residents in general public comment wherein at least five examples were cited of how ordinance 1654 is not being properly applied and is in fact being violated. The violations are detailed in attached Appendix A.

It is not acceptable to brush aside evidence for mere belief. Believing the planning department is adhering to the ordinance doesn’t make it so.

The facts are that the city has an urgency wireless ordinance no. 1654, as well as the DIVISION 19.38 – WIRELESS TELECOMMUNICATIONS FACILITIES ordinance from 2012, which the urgency ordinance does not cancel out.

BOTH ordinances must be followed and the 1654 ordinance specifies the criteria that the applications the city receives for wireless facilities must fulfill in order for the applications to be deemed complete.

Three main issues are the following:

  • THE INADEQUATE CHECKLIST: One of the problems is that the checklist the planning department is using to mark applications complete or incomplete does not fulfill all the requirements of the ordinance and does not enforce compliance with all state and federal laws.
  • VIOLATIONS OF THE URGENCY ORDINANCE #1654 by Novato Planning Department as outlined in Appendix A
  • DISREGARDING DIVISION 19.38 – WIRELESS TELECOMMUNICATIONS FACILITIES from 2012

These issues need to be addressed immediately. If you cannot simply direct the city manager to address these violations, please make it the next city council agenda item.

We ask that the council members ensure that all of the violations in attached Appendix A be remedied by planning staff immediately by expanding the checklist to reflect ALL of the requirements.

The so-called “small” Wireless Telecommunications Facility applications should not be deemed complete without first sending to AT&T and its agents additional letters listing additional requirements that are missing from the Mar 7 letters sent by the City to AT&T and it’s agents, and partially outlined in Appendix A.

The City cannot just blindly accept analyses from wireless industry-backed engineers and consultants, some of whom are currently under investigation for professional misconduct (William Hammett from Hammett & Edison). The planning department already rubber stamped Hammett’s analyses, which is unacceptable. The city of Novato can and should immediately hire experts who are actually independent from the Wireless industry — at applicant expense — to further review the applications and advise the City.

We ask the council to direct the city manager to immediately notify all residents, businesses and property owners within 600 feet of each proposed installation. People need to know now in order to have time to become fully informed about the adverse impacts of sWTFs near their homes to their families and property values. It is an act of bad faith to not have already notify people and to continue to refuse to do so. Steve Marshall’s intent is clear in the attached letter as Appendix B, and it would again violate our ordinance.

Thank you for your attention to this important issue.

Sincerely,

[Novato Resident]
On behalf of Wire Novato, a large and growing group of Novato residents opposing unnecessary, harmful WTFs near our homes and schools

Appendix A

Appendix B



May 6, 2022

To:
Steve Marshall
City of Novato Planning Division
922 Machin Avenue
Novato, CA 94947

cc:
Novato City Council members: Eric Lucan, Susan Wernick, Pat Eklund, Denise Athas, Mark Milberg
Novato City Manager: Adam McGill
Novato Community Development Department Director: Vicki Parker
Novato Planning Division: Brett Walker, Vivek Damadoran
Novato City Clerk: Laura McDowall
Wire Novato

RE: Follow-Up From May 5, 2022 Zoom Call

Dear Mr. Marshall,

[City Clerk McDowall, will you please ensure that this email/letter to the City of Novato is placed in the City’s Public public record for the following Wireless Telecommunications Facilities (WTFs) applications:

  • File No. P2022-024; APN 151-061-06: ADJACENT TO 625 ARTHUR ST.
  • File No. P2022-023; APN 132-113-16: ON NOVATO BLVD. BEHIND 10 PICO VISTA AVE.
  • File No. P2022-022; APN 141-013-22: ADJACENT TO 1553 SOUTH NOVATO BLVD.
  • File No. P2022-021-9.; APN 140-071-48: ADJACENT TO 7123 REDWOOD BLVD.

. . . and ensure that this email/letter is printed and placed into the paper file for each of these projects? We are requesting that this email/letter and all communications pertaining to these above listed WTF applications be placed in the corresponding Public Record files for Planning Manager Martin’s full deliberations on these applications. Thank you for doing so.]

Thank you for your time yesterday on Zoom.

I am writing on behalf of informed Novato residents who understand that opening up our public rights-of-way within 1,500 feet of homes and schools to so-called “small” Wireless Telecommunications Facilities (sWTFs) would create unnecessary liabilities for the city and would create insufficiently mitigated nuisances that would result in public safety, privacy and property values harms.

I am also writing to make sure that all parties are fully aware that the wireless world irrevocably changed on Aug 13, 2021 with the DC Circuit 2021 ruling in EHT/CHD v FCC, cited below in Appendix A — the ruling and its 27 volumes of scientific evidence have already been placed in the City of Novato’s public record. This data is critically important for your deliberations on the four sWTF applications.

The City of Novato must make its determination on these four sWTF applications based on substantial written evidence in the City of Novato public record, and we have only placed relevant evidence there. The volume of that relevant evidence is immaterial.

Title 47 US Code §332(c)(7)(B)(iii)

“Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”

In this letter, I am providing additional citations in Appendices A, B, C and D, below, regarding the City’s legal authority over the placement construction and operations of Wireless Telecommunications Facilities (WTFs) of any size or any “G”. The citations show that there is no limitation on cities regarding the amount of information they can require from WTF applicants in order to make a determination of WTF application completeness.

As we discussed, it is essential that the City asks for substantial written evidence from AT&T that proves that there is even a need to install WTFs in the proposed locations in order to close a significant gap in wireless telecommunications service (the ability to place outdoor wireless phone calls on the AT&T network).

Most importantly, the FCC does not have the authority to “reinterpret” their way to replacing the already existing standards of both “signficant gap” in wireless telecommunications coverage and “least intrusive means” to close the proven gap, as defined in the US Courts of Appeals, Ninth Circuit in 2005 in its ruling in Metro-PCS vs. San Francisco.

The City of Novato is bound by the rulings in Telecom case law established in the Ninth Circuit, just as the Village of Lynbrook, NY is bound by the rulings in Telecom case law established in the Second Circuit, a ruling in which Judge Arthur D. Spatt wrote (see Appendix B, below):

It is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law”

Therefore, for each sWTF, the City of Novato Planning Department (“Planning”) can simply demand from AT&T the data that proves if a significant gap in wireless telecommunications actually exists: 12-months of anonymized completed calls and dropped calls within the target search ring of each proposed sWTF — most likely a circle that is 1/2-mile radius from each proposed sWTF. That is a no-cost, simple test that Novato can add to their WTF check list tomorrow.

Not requiring this no cost, simple-to-provide data from the applicant puts the city of Novato and its residents in an unfair position, completely unnecessarily. Planning must make a factual determination if a significant gap in telecommunications coverage exists for each sWTF application. The call records are the facts that enable Planning to do so most easily.

In addition, today is Fri May 6, 2022 — the last day for AT&T or its agents to resubmit their applications, per Section 3F of Ordinance 1654. If AT&T or its agents have not asked for an extension, then all four sWTF applications are automatically considered withdrawn.

Will you please post to the novato.org web site at the end of the day if AT&T or its agents have asked for an extension of time to resumbit and if you have granted them one?

One thing I didn’t have time to ask you in our meeting is about Ordinance 1654, Section 3C, titled “Application Contents.” The Ordinance requires that an application be submitted via an appointment with the Director, as well as an application fee or payment agreement, and that the applicant provide stamped, addressed envelopes to residents and businesses within 600 feet of each proposed sWTF.

The evidence in the public record shows that none of these things happened, and from what we understand, that means that the applications must remain deemed incomplete as such negligence violates Ordinance 1654.

Will you please clarify in writing if the facts I am citing are accurate, and if they not, then will you please clarify the truth of the matter?

You also said yesterday that you would ask the city’s attorneys about what the City can or cannot ask of AT&T for application completeness, citing some narrative written in FCC Order 18-133, the 2018 Small Cell Deployment Order, which is a presumptive order and one that is not self-enforcing. The FCC expects the provisions of that order to be challenged in case-by-case adjudication in Federal District Courts and US Courts of Appeals. That is what FCC Attorney Scott Noveck said directly to a three-judge panel in the US Courts of Appeals in the case City of Portland et al. v FCC, which is cited in Appendix C, below.

We also clarified for you that the United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. After the U.S. Supreme Court, the D.C. Circuit is usually considered the most prestigious of American courts because its jurisdiction contains the U.S. Congress and many of the U.S. government agencies, and therefore it is the main appellate court for many issues of American administrative law and constitutional law. D.C. Cir. rulings routinely apply to the entire United States.

Finally, it is clear in Title 47 US Code §332(c)(7)(B) — of the five limitations listed, none of them are about limiting the information local cities can request of Wireless Telecommunications Facilities (WTF) applicants. See details in Appendix D, below.

Thank you for your time yesterday and for your prompt answers to our questions, above.

Regards,

[Novato Resident]
Wire Novato


Appendix A: Aug 13, 2021 Ruling in EHT/CHD v FCC

On Aug 13, 2021, the US Courts of Appeals, DC Circuit ruled in Case 20-1025, Environmental Health Trust, et al. v FCC — a lawsuit that challenged the legality of the FCC’s attempted de facto rule-making, a sneaky maneuver that tried to extend its current RF microwave radiation exposure guidelines to frequencies above 6,000 MHz, without any reasoned decision-making. The judges caught the FCC and remanded FCC Order 19-126 back to the FCC, invalidating the Order.

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

(i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,

(ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and

(iii) address the impacts of RF radiation on the environment.”

Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.


Appendix B: Judge ARTHUR D. SPATT

Citation Clear Wireless LLC v. Building Department of the Village of Lynbrook et al Doc. 41

Judge ARTHUR D. SPATT quotes a 2011 ruling in Arcadia Towers when he writes “‘Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law'”

II. DISCUSSION

The Court agrees with the observation by the court in Arcadia Towers that “the law has not kept up with the changes in technology”. 2011 WL 2490047, at 2. “Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law.” Id. Accordingly, the Court denies Clearwire’s motion for summary judgment and grants the Village Defendants’ cross-motion for summary judgment and dismisses Clearwire’s first cause of action for declaratory and injunctive relief based on violations of the TCA.

III. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED, that Clearwire’s motion for summary judgment on its federal and state causes of action is DENIED, and it is further

ORDERED, that the Village Defendants’ cross-motion for summary judgment to dismiss the federal cause of action is GRANTED, and it is further

ORDERED, that the Village Defendants’ cross-motion for summary judgment to dismiss the state cause of action is GRANTED and the state cause of action is dismissed without prejudice, and it is further

ORDERED, that the Clerk of the Court is directed to close this case

SO ORDERED.

Dated: Central Islip, New York
March 8, 2012

ARTHUR D. SPATT
United States District Judge


Appendix C: FCC Attorney Scott Noveck

From https://wireamerica.org/ninth-circuit-case-re-fcc-18-133/

Scott Noveck, FCC Attorney on Feb 10, 2020:

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=35m05s

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=37m47s

“Localities are still free to craft their own substantive aesthetic requirements”

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=38m28s

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They contemplate the need, in many circumstances, for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=40m21s

“Nothing in this order is self-enforcing.”

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=40m52s

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

FCC Attorney Noveck → https://youtu.be/zoZHNSOibmo?t=51m44s

“These small cells, though they have much less range than macro towers, they have a fair range.”


Appendix D: Congressional Intent of 1996 TCA

Title 47 US Code §332(c)(7)(B)(iii)

“Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”

Congressional Intent of the 1996 Telecommunications Act (1996-TCA)

The following is the intent of the 1996 Telecommunications Act, per the 2005 US Supreme Court Ruling in Palos Verdes v Abrams.

“Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would preempt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208.. State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards [just “placement, construction and modification of personal wireless facilities”] — both substantive and procedural — as well as federal judicial review.”

From https://wireamerica.org/1996-tca-conference-report/

“When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another . The intent of the conferees is to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another. The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”

From https://wireamerica.org/compare/

1996 — SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

(a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

  • (7) Preservation of local zoning authority
    • (A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
    • (B) Limitations. — [. . . read all five of the limitations https://wireamerica.org/compare/].

Link to May 10, 2022 Novato City Council Mtg. Agenda

5.10.2022 — Comment 1 for Agendized Item E-2

My name is [Novato resident]. I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

I want to thank Council member Eklund for proposing this agenda item. We support broadening the scope of the proposed agenda item, to include the following:

  1. The City needs a more detailed WTF checklist in order to reflect more accurately the requirements of our current ordinance — one that requires actual verifiable data from the applicant that proves if a significant gap in telecommunications service exists for the area served by any proposed WTF. This can be achieved by requiring 12-months of anonymized placed and dropped call records for that area. That, alone, is a simple, powerful protection that requires only Council direction to Staff.

  2. We need City Council to direct Staff to provide timely transparency — both on the web site and by mailed notices — of any proposed WTF placement, construction or modification. By timely, we mean within 7 days from the date the applications are received.

  3. The City needs to fast-track the replacement of its Wireless Urgency Ordinance 1654 — this one written by an expert Telecom attorney NOT the same attorneys that wrote Ord.1654 in the first place. The attorney the City consults with on wireless matters, John Abaci, is the same attorney who saddled Novato with a much less protective ordinance than the one he provided to Sonoma, CA. Why is that?

We request that the City Council vote through these three items at the next City Council meeting.

In addition, attorneys the city used for the October 8, 2019 urgency ordinance disregarded the August 2019 US Courts of Appeals DC Circuit Case which ended in a colossal ruling against the FCC. This lack of awareness by city attorneys is reflected in the weakness of the ordinance. Since then there has been a second DC Circuit ruling in August 2021 against the FCC which irrevocably changed the wireless world regarding the insufficiency of FCC’s Microwave radiation guideline and confirmed the need for FCC environmental review, or NEPA review.

Novato needs a Wireless Ordinance written by an attorney with deep experience litigating against the wireless industry. Attorney Andrew Campanelli has won nearly 6,000 cases against the Wireless carriers over the past 28 years related to the irresponsible placement of wireless facilities. How many cases has Mr. Abaci or other attorneys the city consults with litigated or won?

I have expressed no matter of mere concern but solely matters of substance, fact and law.


5.10.2022 — Comment 2 for Agendized Item E-2

Hi, I’m [Novato resident].

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

Wire Novato is comprised of a large group of Novato residents who aim to preserve the quiet enjoyment of streets and homes by sufficiently mitigating the nuisances caused by the unnecessary, over-powered, wireless invasion into our homes, schools, parks and businesses. We are defending our homes and our lives.

First, I want to thank Council member Eklund for adding this proposed agenda item to tonight’s meeting. I’d also like to thank Novato Planning staff for what they have done in the last week:

  • On May 5, Planning manager Steve Marshall met with members of Wire Novato via Zoom for 30 minutes for a substantive discussion.
  • On May 9, Marshall wrote a letter informing AT&T that they missed a deadline and that all four AT&T applications for so-called “small” Wireless Telecommunications Facilities (also known as WTFs) have been automatically withdrawn

Going forward, the City should force AT&T and all others to re-apply under a more strict WTF checklist; and until then, to abide by our existing ordinance, and all local, state and federal laws, which they must do even if they are not on the checklist.

In 2019 after the Novato City Council passed a temporary urgency wireless ordinance I met with city council members to share some ideas on how to best proceed with a process for upgrading and formalizing it. This process including public involvement hasn’t really begun. Now interest has been renewed after our efforts to alert the city to the precarious situation it was in when four AT&T small cell WTF use permit applications arrived on Feb 25, 2022.

These applications, even though deemed withdrawn by the City on May 9, should be a big wake-up call to the City. I strongly support council approving this proposed future agenda item today, but suggest broadening it, as covered in the previous comment.

We have placed many substantial public comments, letters and other written evidence into the public record since April 12, discussing the need for improving Planning’s WTF checklist and improving Ordinance 1654. To date, City Council has not had an opportunity to deliberate on these proposals, which is a good reason to add this item to an upcoming City Council agenda. We are also asking for City Council to direct the City Manager on how to handle this matter.

The proposed agenda item before you includes a request for more transparency in publishing the documents and data for wireless use-permit applications in real time. This is essential for timely public participation and is another reason to vote yes for this proposed agenda item this evening.

We strongly recommend that the city not rely entirely on its own contract attorneys but consider the input from expert attorneys. For pending applications, the cost to have them reviewed by experts would be reimbursed by the applicant, as per our ordinance. For an expert attorney to write an ordinance upgrade, even if the cost is absorbed by the city, it is much less expensive than potential litigation down the road.

We have provided evidence that California cities retain their local zoning control over the placement, construction and operations of WTFs of any size of any “G”, despite industry propaganda to the contrary. Thank you for listening to our comments at previous meetings, and again at this meeting.

I have expressed no matter of mere concern but solely matters of substance, fact and law.


5.10.2022 — Comment 3 for Agendized Item E-2

My name is [Novato resident], and I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

Please broaden the proposed agenda item to include an immediate replacement of Urgency Ordinance 1654 with a more thorough, specific and protective final wireless ordinance.

The City Council needs to understand the loss of control over public property and the serious liabilities created by allowing wireless telecommunications facilities in Novato’s public rights-of-way. Doing so creates a dangerous condition of public property and saddles the city with Joint and Several Liability.

It is an undisputed fact that the wireless carriers cannot get insurance coverage to pay for claims of injury, illness or death from the RF microwave radiation sent and received by wireless antennas. Their scheme is to shift this liability from their defective product/service to cities. Wireless carriers are targeting cheap real estate in the rights-of-way and using agents to build these WTFs, to shield themselves from such uninsured liabilities. The agents will willingly go bankrupt on the first claim, leaving the City holding the bag to pay the claim.

Don’t allow Novato to be the patsy in this scheme . . . look no further than Novato Attorney Harry Lehmann’s analysis placed in Novato’s public record on Apr 12. Joint Venture, Landlord-Tenant Doctrine of Fixtures, and joint liability of separate and independent defendants arise out of indivisible injury, as exemplified in the case Summers v. Tice, California District Court of Appeals #16002 and 16005. Many such claims against involved government entities are medically and scientifically rational. Municipalities cannot be assured of protection from this liability under any existing federal, state and local law.

This could potentially amount to civic bankruptcy, if you do not treat this matter seriously and require sufficient escrow bonds from Wireless companies to cover any future claims.

I have expressed no matter of mere concern but solely matters of substance, fact and law.


5.10.2022 — Comment 4 for Agendized Item E-2

I am [California resident].

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

We have found after coming to council meetings, speaking with members of the council and the planning department, that the city is not well-informed or prepared to deal with the wireless companies and their agents. There is a lack of understanding of the following:

  1. State and federal laws regarding the city’s jurisdiction in these matters,
  2. Resulting liabilities the City is assuming by allowing insufficiently regulated WTFs into the rights-of-way in all zones
  3. The requirements of the City’s current wireless ordinances (one from 2012 and the other from 2019)

New WTF applications will be arriving. We need to prepare for this by immediately upgrading and strengthening our WTF checklist. That is our City’s top priority. Well-informed Novato residents have made expert suggestions of what to add to the checklist in 2022 Wire Novato letters dated April 22, April 26 and May 1 (all in Novato’s public record). Please add these suggested items to the WTF checklist asap.

Also, Ord. 1654 requires that the applicants pay for the actual costs for staff review and for neutral, third-party expert lawyers and professional engineers — i.e. Professional Civil, Electrical and RF engineers. We can use Ord. 1654 to charge applicants for the costs of reviews required, and for relevant engineering analysis to mitigate against all known hazards (structural, electrical and RF microwave radiation hazards).

As we cannot predict how many applications are coming our way, the City needs to prepare asap. AT&T may soon re-apply for these same four locations with a brand new shot clock. Given the deadline that AT&T missed on Fri May 6, there is no reason to enter into a tolling agreement with AT&T.

Any WTF application must be processed per the laws on the books at that time. A “tolling agreement” merely lengthens the time to process the applications under the existing ordinances. An updated wireless ordinance affects WTF applications received after the effective date of that new Wireless ordinance.

I have expressed no matter of mere concern but solely matters of substance, fact and law.


5.10.2022 — Comment 5 for Agendized Item E-2

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

In responding to our questions and substantial written evidence we have placed in Novato’s public record, Planning Manager Steve Marshall said he would defer to contract city attorney, John Abaci, instead of relying on the advice from the top telecom attorneys in the US, Campanelli and McCollogh.

Ask yourselves, how many telecom lawsuits has John Abaci litigated or won? That information matters. From what we can determine, it’s zero. Compare that to nearly 7,500 telecom lawsuits litigated and 6,000 won by attorney Andrew Campanelli. Honestly, which attorney has more expertise in Telecom matters? On whose opinion should the City Council rely?

Council needs to seek legal review from an attorney who understands how to mitigate all relevant hazards from WTFs in order to protect the City’s interests and their residents’ interests and still provide wireless telecommunications service, as required by Federal Law.

What reason does the council have for not obtaining legal assistance from the best expert in the US, as he is available to help us and is not expensive? Please answer that question in your deliberations this evening before you vote.

Also, please recall that Ordinance 1654 states:

Section 5A 16. Cost Reimbursement. . . . ”the applicant shall reimburse the City for all costs incurred in connection with the permit, which includes without limitation costs related to application review…and any other costs reasonably related to or caused by the request for authorization to construct, install and/or operate the wireless facility of any kind or nature including engineers’, attorneys’, or technical consultants’ fees and costs incurred by the City in connection with t.he permitee’s request.”

You heard that word attorneys plural in that previous citation, right? Please use all available means to protect the interests of Novato residents. Thank you.

I have expressed no matter of mere concern but solely matters of substance, fact and law.


5.10.2022 — Comment 6 for Agendized Item E-2

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

After four applications for AT&T so-called “small” Wireless Telecommunications Facilities (sWTFs) arrived at Novato Planning on February 25, why were the affected Novato residents not notified during the week of Feb 28?

And why were those same affected Novato residents still not notified by mail 72 days or 2.5 months later?

The only notification — of any kind — that we can detect was the April 28, 2022 publishing of novato.org web pages for these four (sWTFs).

We do not want these same kind of delays in the future.

Notification of applications on the city’s website is helpful but needs to be more timely.

Ord. 1654 requires WTF applicants to submit stamped addressed envelopes for all residences, businesses, and property owners within 600 feet of any proposed installation. If Planning followed the ordinance, notifications could have and should have been mailed out shortly after the applications were submitted to the city — i.e. the very next week.

Residents living within 600 feet of a proposed wireless facility installation must be informed as soon as possible after initial submission of an application as these installations have huge, lasting adverse impacts to the residents — all of which deserve to be mitigated. The public must be informed and have sufficient time to respond to this attempted wireless home invasion.

I have expressed no matter of mere concern but solely matters of substance, fact and law.