The correspondence below was sent to the PVE City Manager (Anton Dahlerbruch) in response to the City’s reply to our initial correspondence. We will post the City’s response if and when we receive permission.
To summarize, the City’s response dismissed concerns regarding “significant gap in coverage” that we raised with regards to the erroneous and misleading coverage maps. The City’s argument was that the applicant is entitled to install these sites under state law thus questions regarding gap in coverage were not relevant.
We point out below that the City is entitled to deny these sites on aesthetics grounds thus making “significant gap” questions entirely relevant.
City Manager Dahlerbruch,
Thank for your response to our correspondence.
Your response covered many important and relevant areas and we appreciate your knowledge in this area. However, we strongly disagree with your assertion that the site as proposed does not incommode the public use of the right of way. Our response discussed “significant gap” and “effective prohibition” as we are confident the site as proposed does, in fact, incommode the public. As such, a determination of the location’s necessity is entirely appropriate and warranted.
As you point out, in Sprint PCS Assets LLC v. City of Palos Verdes Estates the court clearly established that incommode includes consideration of aesthetics. The court cited dictionary definitions of incommode that include “trouble, annoy, molest, embarrass, and inconvenience”. The court went on to state that
“The experience of traveling along a picturesque street is different from the experience of traveling through the shadows of a WCF [wireless communication facility], and we see nothing exceptional in the city’s determination that the former is less discomforting, less troubling, less annoying and less distressing than the latter.”
During our meeting with the city and Crown Castle, the city’s wireless consultant Tripp May made the observation that Palos Verdes Estates is a very unique city. We agree. The city has a long history of aggressively protecting the aesthetic beauty and tranquility of residential neighborhoods, including using force of law when required. This protection includes the public right of way in addition to private property. An obvious example is our city’s utility undergrounding ordinances. Also, the city has stringent limitations and requirements on resident structures in the ROW such as mailboxes. The city strenuously regulates and/or prohibits the placement of signs on both private property and the ROW, even those for temporary purposes. And unique among virtually all California cities, it is illegal for residents to place their refuse bins in the ROW. PVE has historically gone to extraordinary lengths to protect our neighborhood aesthetics and character, including ROW regulations.
Some of these regulations would seem absurd in other cities, but as Tripp May stated, PVE is unique. The city has a long history of actively regulating and prohibiting activity in our residential neighborhoods that would “incommode” the public’s use and enjoyment. Unless a wireless site is completely screened from view, we strongly believe that any wireless facility located in our city’s residential neighborhood ROW’s incommodes the public use of the ROW. This may not be the case in other cities without our regulatory history. However, PVE’s consistent and unwavering stance in protecting our neighborhood aesthetics is undisputed; extending this to wireless facilities is completely in character with the city’s past behavior. Failure to do so is a dereliction on the city’s part as it causes permanent harm to our neighborhood’s character. We don’t say this lightly.
This isn’t meant to imply these locations are prohibited under all circumstances as we realize that would run afoul of Federal and State law. It does mean that approval for disfavored residential neighborhood sites require that the carrier show the location is needed to prevent an effective prohibition of service.
We have surveyed existing wireless facilities throughout the city. In virtually every case, approved sites have been located within institutions, commercial districts, along city arterial or collector roads, or hidden from site on access roads that don’t accommodate public travel. It’s plainly evident the city has a long history and clear pattern of actively encouraging wireless facility placement outside of residential neighborhoods. We consider this de-facto policy completely in-line with the city’s regulatory behavior in neighborhoods. Insisting the carrier’s continue this policy is well within the law under both the Telecommunications Act and Public Utility Code 7901 and 7901.1. Instead the city appears to have abandoned this policy without resistance, without public discussion, without consultation with neighborhood associations, and without discussion with affected homeowners. This unilateral decision causes homeowners harm and degrades the quality of life for all neighborhood residents.
Other cities have not so readily relinquished this regulatory power. Rancho Palos Verdes recently passed a comprehensive wireless ordinance modeled after that of other cities that specifically codified this power (attached as an appendix). RPV’s ordinance explicitly states wireless sites on local streets are disfavored and placement requires the finding that denial would result in an effective prohibition of service. The ordinance further requires specific steps and analysis the carrier must provide to demonstrate this effective prohibition. RPV adopted the ordinance once it became evident that highly intrusive wireless facilities were planned for every neighborhood in their city.
We strongly contend that PVE’s past and present regulatory behavior with our neighborhoods, coupled with the de-facto policy of encouraging wireless sites outside of residential neighborhoods, has already established the precedent that these sites are disfavored on local streets. Therefore, regulatory action would be entirely consistent with past behavior and codified language such as RPV’s is not required to exercise this power. However, PVE could further strengthen its position by immediately adopting such language, either through administrative action or City Council declaration.
In closing, we contend the city prematurely abrogated its right and obligation to regulate placement of these sites on local streets. This action will cause affected residents harm. Although not discussed here, our previous correspondence also discussed how the applicant failed to comply with the city’s wireless application process. This will also cause residents harm and will be the subject of future correspondence.
We look forward to your response.