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HomeMy WebLinkAbout2008 TURNBERRY RD WTF - PDP160018 - CORRESPONDENCE - LEGAL COMMUNICATIONMr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 9 such a determination. Please let us know if you have any further questions in connection with this Application. Thank you. Sincerely, ;4 j I - J, L Christian H. Hendrickson CHH/MKR/RS/mis Encls. c: (via e-mail, w/encls.) Carey Gagnon, Esq., Verizon Wireless Mark W. Williams, Esq., Sherman & Howard L.L.C. Melissa K. Reagan, Esq., Sherman & Howard L.L.C. Carrie Daggett, Esq., City Attorney, City of Fort Collins Wade Troxell, Mayor, City of Fort Collins John Duval, Esq., Assistant City of Attorney, City of Fort Collins Ken Bradtke, Atlas Tower Companies Active/47270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 8 This analysis similarly precludes a solution to this gap through alternative technologies such as multiple small wireless facilities (commonly called small cells). As shown in the enclosure to our October 15 letter, small cells complement macro sites — in other words, macro sites are still a necessary component of the wireless network ecosystem. In addition, small cells are usually used to enhance capacity. In this location, however, a macro site is necessary to meet both coverage and capacity needs. Multiple small cells, especially given the topography of this area and constraints surrounding the limited number of available possible locations, cannot satisfy the coverage gap. As a result, there are no alternative technologies that will fill the identified gap and service needs in the area. The Tenth Circuit has made clear that cities may not deny reasonable applications where a showing has been made that the proposed facility is the least intrusive means of filling a gap, in the absence of substantial evidence to the contrary. See T-Mobile Central, LLC v. Unified Government of Wyandotte County, Kansas City, Kansas, 546 F.3d 1299, 1309 (10th Cir. 2008); cf. Village of Corrales, supra, 642 Fed. Appx. at 892 (holding that a good -faith showing by a wireless services provider that other alternatives are inadequate is sufficient to support an application, barring substantial contrary evidence offered by the government). Nor may a city deny an application based on standards not found within a local code, as CMS is asking the City to do. See Unified Government of Wyandotte County, 546 F.3d at 1310 (reversing the denial of an application based on an applicant's failure to prove that there was no other feasible alternative, when the county's Code did not include such a standard). When an applicant demonstrates that a facility would represent the least intrusive means for resolving a coverage gap, the locality may only deny an application by showing, with the support of "substantial evidence," that "there are some potentially available and technologically feasible alternatives." 47 U.S.C. § 332(c)(7)(B)(iii); City of Anacortes, supra, 572 F.3d at 998. Mere speculation as to alternatives is an insufficient basis to deny an application; the city must demonstrate that such alternatives are available and would be less intrusive than the proposed facility and still meet the same public need. Id. As there are no such alternatives here, the Application must be granted. As demonstrated by Verizon Wireless' Application and supplemental materials, and as will be further demonstrated at the upcoming hearing, the Facility in the APU Application is the least intrusive Code -compliant means of providing federally -mandated coverage. No other location is both available and adequate to resolve this coverage gap. The Commission therefore may not deny Verizon Wireless' application without rebutting this evidence, as to do so would constitute an illegal prohibition on coverage within this area of Fort Collins. See 47 U.S.C. § 332(c)(7)(B)(i)(II); Willoth, supra, 176 F.3d at 643. For the reasons stated above, Verizon Wireless' Application is reasonable, compliant, and appropriate, and should be granted. Federal law, and the City's own Land Use Code, requires Active147270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 7 c. Verizon Wireless Performed an Extensive Analysis of Alternative Candidate Locations; No Alternative Location Would Sufficiently Close these Gaps in Coverage and Capacity Courts allow wireless service providers to demonstrate the proposed facility is the least intrusive means of addressing a gap by a showing of "a good -faith effort to find and evaluate less intrusive alternatives: consideration of other sites, other system designs, other tower designs, existing structures, etc.". See Nextel West Corp. v. Unity Township, 282 F.3d 257, 266 (3rd Cir. 2002) (outlining applicable test); City of Anacortes, supra, 572 F.3d at 997-98 (holding that alternative sites/designs must actually be available to a wireless provider to be considered as a possible less intrusive means); T-Mobile Central, LLC v. Unified Government of Wyandotte County, 528 F. Supp. 2d 1128, 1159 (D. Kan. 2007) (applying the "good faith" test because it "gives providers an incentive to choose the least intrusive site in their first siting applications, and it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials"). Courts routinely deny arguments that wireless providers are obliged under local codes to "evaluate every potential location where the Facility hypothetically could be constructed, and submit evidence showing why each site is not a viable alternative." New York SMSA Limited Partnership v. Village of Floral Park Board of Trustees, 812 F. Supp. 2d 143, 166 (E.D.N.Y. 2011). Rather, courts generally look to ensure a provider makes a good faith effort to evaluate alternative locations, and provide information as to why alternative locations are not suitable or otherwise unavailable. See Town of Fishkill, supra, 84 F.Supp.3d at 303, referencing New Cingular Wireless PCS, LLC v. Town of Fenton, 843 F.Supp.2d 236, 254 (N.D.N.Y. 2012), and Omnipoint Commc'ns, Inc. v. Town of LaGrange, 658 F.Supp.2d 539, 560 (S.D.N.Y. 2009). This is particularly relevant given CMS' claim that "an analysis of current and projected usage for each adjacent and adjoining site will be required, by sector, for each existing sector of each/all sites in need of capacity relief." Such a level of analysis is not required by the Land Use Code, was not applied to prior applications, and is unnecessary to demonstrate that the Facility is necessary and beneficial to the area being served (or that alternate locations will not work). Here, contrary to the CMS Letter's inference that other alternatives were not adequately considered or discussed, Verizon Wireless and Atlas previously submitted an explanation and extensive documentation (which was provided in connection with the Application and appeared as attachments to the Staff Report) showing that it created a search ring, and then considered all other alternatives within the search ring. There are maps reflecting the options in the search ring, and then summaries and correspondence discussing various possible properties and why they are not feasible or available as options. Some would not work due to topographical or logistical problems, and others would not work due to the owners not being interested in or willing to lease land for such a facility. This left the proposed site as the least intrusive means to fill the coverage gap, which is all that is required by law. See Unity Township, 282 F.3d at 266. Active/47270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 6 a. The APU Application Represents the Least Intrusive and Most Code - Compliant Means of Fulfilling Federal Requirements Central to the determination of whether an Application may be denied under the Telecommunications Act is whether the coverage gap can be "closed by less intrusive means." Willoth, supra, 176 F.3d at 643. Verizon Wireless may show an effective prohibition "by submitting a comprehensive application, which includes consideration of alternatives, showing that the proposed [facility] is the least intrusive means of filling a significant gap." City of Watsonville, 2017 WL 492876 at *2; T-Mobile USA, Inc. v. City ofAnacortes, 572 F.3d 987, 995 (9th Cir. 2009). It has done so here. b. The APU Application is Necessary to Close Gaps in Coverage and Capacity Courts have held a gap in coverage may be demonstrated by presenting evidence of "gradations in service," based on a multitude of factors including: the size and location of a coverage gap; the number of affected customers and/or dropped -call rates; reliability of in - building or in -vehicle service; and the proximity of gaps to well -traveled roads where the gap could affect large numbers of travelers. See Village of Corrales, supra, 642 Fed. Appx. at 889- 91; see also Town of East Fishkill, supra, 84 F. Supp. 3d at 297 (quoting Liberty Towers, LLC v. Zoning Hearing Board of Falls Township, 2011 WL 6091081, at *8 (E.D. Pa. Dec. 6, 2011) ("[t]here are no magic numbers or percentages that constitute a significant gap[, and] neither the [Federal Telecommunications Act], the FCC, nor the courts have established the `significant gap' threshold. Hence, each case must be viewed on its own")). Here, Verizon Wireless already submitted propagation maps, expert Verizon Network Engineering analysis, and extensive customer input demonstrating the coverage problems in this area — they clearly reflect the present lack of quality coverage in the area, and that the problem will be addressed by the Facility. Verizon Wireless is also submitting additional technical RF information showing RSRP values in the vicinity of the Facility both before and after it is in service. These detailed propagation maps prove both the extent of the problem and that the new Facility will address the coverage/capacity issues. Indeed, the maps plainly show a coverage gap of approximately four square miles that the new Facility will effectively address. This area encompasses over 5,000 residents, and is routinely used by emergency service providers, visitors, and travelers. Further, the area is experiencing an increase in growth, and there are plans for additional development, making this site critically important. Finally, adding a macro site like the Facility will offload capacity from existing sites, creating enhanced coverage for many users beyond the area of the gap. Under the Land Use Code and federal law, the materials provided sufficiently demonstrate a gap. See Village of Corrales, supra, 642 Fed. Appx. at 891; Town of East Fishkill, supra, 84 F.Supp.3d at 297-98. Activc/47270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 5 CMS Letter was not a notice of incomplete application sent by the City. Even if it was, however, the letter was not received within the first 30 days after the submission of the Application. Therefore, the time for requesting additional information has passed. Nonetheless, Verizon Wireless will provide certain additional information in a good faith effort to cooperate and further demonstrate the need for this facility. However, because Verizon Wireless received no notice of incomplete application within the 30-day period specified by the FCC's 2009 Ruling, additional information may not be requested as a matter of law or under the Ruling. 4. The Federal Telecommunications Act Mandates Approval of the Application The Application complies with all applicable requirements, as the proposed Facility meets Land Use Code and federal law. The Facility is needed because the gap is clear and Verizon Wireless is required by federal law to remedy coverage and capacity gaps such as that identified in the Application; this will provide and enhance wireless services for many area residents, travelers, and local health, safety, and support providers. Because these facilities are required, Congress has restricted the power of state and local governments to deny applications like Verizon Wireless' under the Federal Telecommunications Act, 47 U.S.C. § 332; see Town of East Fishkill, 84 F. Supp. 3d at 313 (holding that if a wireless provider "makes the required showing [under state and local law], which necessarily means the record is devoid of substantial evidence to support a denial, the [permit or] variance must issue") (citations omitted). The Telecommunications Act forbids local governments from reaching decisions on the placement of wireless facilities that "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Wireless providers may show an effective prohibition by, as has been done through the Application, "submitting a comprehensive application, which includes consideration of alternatives, showing that the proposed [facility] is the least intrusive means of filling a significant gap." City of Watsonville, 2017 WL 492876 at *2; T-Mobile USA, Inc. v. City ofAnacortes, 572 F.3d 987, 995 (9th Cir. 2009). Here, the Facility in the APU Application is the least intrusive Code -compliant means of providing federally -mandated coverage. No other location is both available and adequate to resolve this coverage gap. The City cannot preclude Verizon Wireless from addressing this demonstrated service gap and meeting citizen demands and needs in this promptly growing area. z Verizon Wireless expressly reserves and declines to waive all legal positions and defenses it may raise on this issue. Active/47270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 4 and field test data"); see also id. at 305 ("nothing in the Code or the [Federal Telecommunications Act] requires that [an applicant] present data on dropped calls or customer dissatisfaction [or other comparable statistical evidence], and accordingly, it is not, without more, an adequate basis on which to deny the Application"). To require that Verizon Wireless exceed the requirements of the law and Land Use Code and jump through all the hoops the CMS Letter calls for creates a dangerous standard and, more importantly, is unlawful. See Town of East Fishkill, supra, at 305, citing Verizon Wireless (VAW) LLC v. Douglas Cnty. Bd. of Cnty. Commis, 544 F.Supp.2d 1218, 1245 (D. Kan. 2008) (holding "a denial is not supported by substantial evidence if it `imposes a burden upon [the plaintiff] to prove facts for which there is no requirement under state or local law"'). Under the process being applied to the Application, applicants may never meet the application requirements, and there would be fear that the City may simply continue to arbitrarily tack on more requirements. This unpredictability and risk of additional expense would undoubtedly chill future applications, and thus slow development and key technological advancement around the City, all contrary to the express intentions of the Federal Telecommunications Act. The requests in the CMS Letter are not only more stringent and unprecedented, they are discriminatory. The standards applicable to the Facility should be the same as those applicable to the dozens of existing wireless facilities already in the area. But those facilities were approved without such a heightened standard or set of application criteria or requirements. Under the Federal Telecommunications Act, the City may not require that (only) Verizon Wireless provide such detail to approve its Application. In this context in particular, such selective application requirements and a denial based on them would constitute unreasonable discrimination, which is expressly prohibited by 47 U.S.C. § 332(c)(7)(B)(i)(I). See Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1270 n.9 (10th Cir. 2004). 3. The City Failed to Provide a Notice of Incomplete Application Within the Time Frame Required by the "Shot Clock" Ruling Verizon Wireless's Application, as submitted, must be approved because the City appropriately did not provide Verizon Wireless with a notice of incomplete application, let alone do so within 30 days of the date the Application was submitted. Pursuant to the FCC's 2009 Declaratory Ruling, 24 FCC Red. 13994, local governments can notify an applicant an application is "incomplete," but that notice of incompleteness is only effective if it is given within the first 30 days after submission. Id. at 14015; see also City of Arlington, Tex. V. F.C.C., 668 F.3d 229, 257-58 (5th Cir. 2012), affd, 569 U.S. 290 (2013) (confirming the binding effect of the 2009 Ruling). There was no notice of incomplete application in advance of the Planning and Zoning meeting. The CMS Letter was the first mention of new requirements. Not only were the additional requirements outlined in the CMS Letter inconsistent with the Land Use Code, the Active/47270634. I Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 3 exhaustively analyzing the clear gaps in coverage to demonstrate exactly how the Facility will relieve gaps, down to the minutia of a sector -by -sector type of analysis. However, the Land Use Code does not require Verizon Wireless take any of these extraordinary steps, nor are they necessary to understand that a significant gap exists or that a wireless facility will address that gap. Further, under federal law, an applicant must merely demonstrate a gap in coverage and the exhaustion of available alternatives (see AT&T Mobility Services, LLC v. Village of Corrales, 642 Fed. Appx. 886, 889 (loth Cir. 2016)) — both of which already were comprehensively addressed in the pending Application materials and are further supported by the materials provided in this letter. Verizon Wireless demonstrated the gap through the various attachments that were provided with the Application and included with the Staff Report, consisting of (among other items and assessments) the Application, Verizon Wireless propagation/RF maps, the area of the search ring in which a new facility must be located to address the gap, property and elevation maps for parcels within the search ring, a site plan, photo simulations, correspondence from users complaining about service issues and requesting coverage, and letters from other property owners demonstrating why the proposed site is the only feasible alternative within the search ring. Such materials are routinely provided with telecommunications applications, and are routinely held to be sufficient to demonstrate a gap in coverage and the necessity of a proposed site. See, e.g., Orange County -Poughkeepsie Limited Partnership v. Town of East Fishkill, 84 F. Supp. 3d 274, 280-81 and 297-98 (S.D.N.Y. 2015) (to determine whether gaps exist, "courts have relied on RF reports, expert testimony, propagation maps, and field test data"); referencing T-Mobile Northeast LLC v. Inc. Vill. of E. Hills, 779 F.Supp.2d 256, 270 (E.D.N.Y. 2011); T- Mobile Northeast LLC v. Town of Ramapo, 701 F.Supp.2d. 446, 458 (S.D.N.Y. 2009), and Omnipoint Commc'ns, Inc. v. Vill. of Tarrytown Planning Bd., 302 F.Supp.2d 205, 218-19 (S.D.N.Y. 2004). Accordingly, after the Application and supporting submittals were presented to the City, nothing further was requested, and City Staff appropriately recommended approval of the Application. Now, CMS is asking that Verizon Wireless provide an unprecedented and unnecessary level of detailed and proprietary information. To demonstrate coverage gaps to the degree of precision CMS requests would be inefficient, costly, and superfluous. Such ongoing and varying information requests would also make it unclear how a wireless services provider is to prove that a proposed facility is necessary. That is neither the purpose nor intent of the Land Use Code or Federal Telecommunications Act, which was passed as part of a "national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services." See Town of East Fishkill, supra, 84 F. Supp. 3d at 294; citing Spring Spectrum L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999). Indeed, the Act encourages providers like Verizon Wireless to promptly address serious coverage issues like that being remedied with the Facility. See Town of East Fishkill, supra, 84 F. Supp. 3d 274, 297-98 (under the Federal Telecommunications Act, district courts find significant gaps by looking at "the gap's physical size, the number of customers affected by the gap, the location of the gap, and drop call or failure rates ... [relying] on RF reports, expert testimony, propagation maps, Active/47270634.1 Mr. Clay Frickey, Planning Department, City of Fort Collins November 28, 2017 Page 2 pending Application. In addition to providing supplemental information for this site, we write to respond to certain of the positions in the Center for Municipal Solutions ("CMS') letter dated November 2, 2017 ("CMS Letter") regarding the AtlasNerizon Wireless Application. In short, the Application should be approved because it already meets applicable legal requirements, and the Facility complies with the Fort Collins Land Use Code ("Land Use Code"). Verizon Wireless disputes CMS' characterization of the City of Fort Collins' ("City") requirements for granting an APU and other requirements applicable to the Application. Moreover, the information CMS requests in its report not only exceeds that required for prior applications in the City, and, is thus discriminatory, but it also calls for information far beyond what the Land Use Code and federal law require for such an Application. Knowing the City wants to comply with applicable law and only require what is permissible, Verizon Wireless provides only information called for by law and the Land Use Code. The additional information requested in the CMS Letter is not provided because it is not legally required. Contrary to CMS' assertions, and as demonstrated by the City Staff s September 14, 2017 Report and October 17, 2017 Power Point presentation recommending approval of the Application, the Verizon Wireless/Atlas APU Application should be approved for the following reasons: 1. The APU Application Meets All Requirements of the Land Use Code The original Application materials submitted presented adequate evidence demonstrating the Facility is appropriate under the Code. Indeed, the City Planning Department initially assessed in extensive detail the Application, properly determined it to be complete, and correctly concluded the APU Application and Facility meet all of the requirements of the Land Use Code. The City Planning Department's twelve -page Staff Report, prepared for the September 14, 2017 Planning & Zoning Board Meeting (which was also Attachment 1 to the Agenda Item Summary for this Facility prepared for the October 17, 2017 City Council Meeting), along with its 25-slide Power Point presentation recommending approval of the Facility, show the substantial review and in-depth analysis City Staff performed to determine the Application and proposed Facility comply with all applicable provisions of the Land Use Code and should be approved. These documents identify applicable Land Use Code provisions and demonstrate that the Application is complete and compliant. Because of this, the City Council is required to approve the Facility. 2. The CMS Letter Imposes Requirements Not Found in the Land Use Code The CMS Letter attempts to create new standards and a series of criteria and extensive requirements that are not found in the Land Use Code. Indeed, such information and standards have not been required of any other wireless facility in the City prior to this Application. The CMS Letter specifies a number of elements, analyses, and technical reports it claims Verizon Wireless "should" have included in its Application, including more thoroughly distinguishing between an application for a wireless facility and the structure that will conceal it, and more Active/47270634.1 ECEIVE ., 125 Neil ; 0 2017 — YEARS SHERMAN&HOWARD 633 Seventeenth Street, Suite 3000, Denver, CO 80202-3622 Telephone: 303,297.2900 Fax: 303.298.0940 www.shermanhoward.com Christian H. Hendrickson Sherman & Howard L.L.C. Direct Dial Number: 303.299.8306 E-mail: chendrickson@shermanhoward.com November 28, 2017 VIA E-MAIL AND U.S. MAIL Clay Frickey Planning Department City of Fort Collins 281 North College Fort Collins, Colorado 80524 Re: Atlas TowerNerizon Wireless — Supplemental Materials Supporting Application for Addition of Permitted Use for Long Pond Wireless Telecommunications Facility - PDP160018, 2008 Turnbery Road, Fort Collins Dear Mr. Frickey: We are counsel to Verizon Wireless in connection with the referenced application ("Application")' for an Addition of Permitted Use ("APU") to install a 60-foot wireless facility concealed as a silo ("Facility") located near 2008 Turnberry Road in Fort Collins, Colorado 80524. As Atlas and Verizon Wireless already demonstrated and are further demonstrating through the additional information provided with this letter and via testimony at the December 19, 2017 City Council Meeting, the site is needed to address a significant gap in coverage/capacity and represents the least intrusive means of doing so. On October 16, 2017, Verizon Wireless submitted a letter to the Fort Collins' City Council in an effort to assist the City Council in evaluating the pending Application and to provide a roadmap of the applicable law the City has been and is required to follow in approving applications for wireless communications facilities. Verizon Wireless' letter did not present any new law or new information regarding its Application. After receiving the letter, the City postponed the City Council hearing on the Application and retained Center for Municipal Solutions to evaluate the 1 Atlas Towers filed the Application and Verizon Wireless will install its antennas and related equipment on the Facility and, thus, utilize the Facility as part of its network. Active/47270634.1