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HomeMy WebLinkAbout2008 TURNBERRY RD WTF - PDP160018 - CORRESPONDENCE - LEGAL COMMUNICATION (3)Mayor Troxel Fort Collins City Council October 17, 2017 Page 5 improved access to and quality or wireless telecommunications services in the area. This is important to not only the City and its residents, but also to those traveling through. Sincerely, Melissa Kerin Reagan cc: Christian Hendrickson, Esq. Carey Gagnon, Esq. Jennifer Sedillo Jennifer Thomas Schneider Carey Daggett Encl. Mayor Troxel Fort Collins City Council October 17, 2017 Page 4 conclusively prove at the upcoming hearing, the Facility in the Application is the least intrusive and most code -compliant means of fulfilling federally -mandated coverage. No other location is both available and adequate to resolve this coverage gap. The City Council therefore may not deny the Application without rebutting this evidence, as. to do so would constitute an illegal prohibition on coverage within Fort Collins. b. The APU Application is Necessary to Close Gans in Coverage and Capacity. Atlas Tower and Verizon Wireless did and will present propagation maps at the hearing that show the proposed facility will cure a significant gap in coverage and capacity. Exhibit 1 to Application. Recent updates to the Federal Communications Commission ("FCC") regulations include intemet in the definition of "personal wireless services." The updated language of the regulations provides a gap in intemet (capacity) is now included in the Federal Telecommunication Act prohibition on the gap in personal wireless services. The FCC's regulation was updated June 12, 2015 to now include intemet in its definition of "public switched network," which affects the definition of "personal wireless services" in 47 U.S.C. § 332(c)(7)(B)(i)(II). Therefore, the Federal Telecommunication Act's provision regarding the inability of local zoning authorities to prohibit personal wireless services now includes the provision of mobile intemet. The update to the federal statutory scheme provides a significant gap in either voice or data coverage constitutes a prohibition of personal wireless services in violation of the Federal Telecommunication Act. Atlas Tower and Verizon Wireless have demonstrated and will demonstrate there is a significant gap in coverage and capacity and the proposed facility is the least intrusive means available to remedy those gaps. C. Verizon Wireless Has Performed an Analysis of Alternative Candidate Locations; No Alternative Location Would Sufficiently Close these Gans in Coverage and Capacity. Verizon Wireless provided an analysis that demonstrates there are no other feasible, alternative locations and/or facilities that will provide the necessary coverage and capacity Verizon Wireless needs and in a less intrusive, Code compliant location to provide personal wireless services to emergency service providers and the citizens of Fort Collins. Exhibits 2 — 9 to the Application. The analysis examines other locations and facilities and explains why these are not viable alternative locations. All locations discussed with the City are contained in the analysis. There are no other location within the search area that will provide the coverage Verizon is seeking, meet city code requirements, and have adequate access to utilities or physical access to the site. Therefore, for all the reasons stated above, we urge the City Council to grant the Application, including with such conditions as the City Council may deem reasonable. Federal law requires, and the City's own Land Use Code, permits such a result, which will enable Mayor Troxel Fort Collins City Council October 17, 2017 Page 3 3. The Application Must Be Approved under the Federal Telecommunications Act. Atlas Tower and Verizon Wireless seek to construct its Facility in order to reduce overloaded data capacity on Verizon Wireless' networks and remedy gaps in its coverage network around Fort Collins. The Facility is required because Verizon Wireless is required by federal law to remedy these coverage and capacity gaps. Because these facilities are required, Congress has restricted the power of state and local governments to deny applications for sites like this one under the Federal Telecommunications Act, 47 U.S.C. § 332. Should the City Council deny the Application, it would be in violation of the Telecommunications Act, which forbids local governments from reaching decisions on the placement of wireless facilities that would "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Courts interpreting this provision have held that, while the Federal Telecommunications Act did not supplant local authority altogether, it prevents local governments from regulating "personal wireless service facilities in such a way as to prohibit remote users from reaching such facilities." Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2nd Cir. 1999). The City may only act to limit the aesthetic impact of a cell site, favor alternative sites which would provide comparable service coverage, or condition approval on the use of preexisting structures or camouflage. Id. a. The APU Application Relresents 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." Sprint Spectrum L.P., 176 F.3d at 643. Atlas Tower and 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 of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009). When an applicant demonstrates that a facility would represent the least intrusive means for resolving a coverage gap, the locality "must show that there are some potentially available and technologically feasible alternatives" in order to reject the applicant's evidence. City of Anacortes, 572 F.3d at 998. Mere speculation as to alternatives, without the use of third -party consultants to evaluate the technical and economic feasibility of the alternatives, is an insufficient basis to deny an application. Id. As demonstrated by Exhibits 1 through 9 to the Application and Narrative submitted by Atlas Tower dated August 22, 2017 ("Application"), Verizon Wireless demonstrated, and will Mayor Troxel Fort Collins City Council October 17, 2017 Page 2 1. The APU Application Meets All Requirements of the Fort Collins Land Use Code The APU Application meets all of the relevant requirements of the Fort Collins Land Use Code ("Code"), specifically §§ 1.3.4, 2.2, 3 and 4.5. The Fort Collins' Planning Staff issued a detailed Staff Report dated September 14, 2017 ("Staff Report"). The Staff Report explains in detail how the APU Application complies with all of the applicable requirements of the Code. Verizon Wireless incorporates the Staff Report in support of its argument that the APU Application meets all requirements of the Code. Atlas Tower has presented and will present adequate evidence on each of these standards, as required by the Code, and each of the standards weighs in favor of granting the APU Application. Finally, there was substantial public support for this Application and these efforts to improve telecommunications and wireless coverage for those living in and passing through this area. Furthermore, under the Federal Telecommunications Act, a state or local government denial of a request to place a wireless facility must be "supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(13)(iii). It is not enough for a local government to declare whether the application is approved or denied; the local authority is legally obligated to defend its conclusions and rebut an applicant's evidence with evidence of its own. See GTE Mobilnet of California Limited Partnership v. City of Watsonville, 2017 WL 492876, at *3 (N.D. Cal. Feb. 7, 2017) (once an applicant establishes a prima facie case for its facility, the burden shifts to the locality to offer sufficient evidence of feasible alternatives in order to deny the application). If no such evidence can be provided, then the only valid conclusion is that Atlas Tower's Application must be approved. The City may impose reasonable conditions on an Application that comply with the Code before it approves it, but the City Council may not arbitrarily deny an Application without proof. 2. Verizon Wireless Supports Atlas Tower's Agreement to Reduce the Height to the Maximum of Forty -Five Feet and Locate the Facility at the North End of the Site While the Facility as proposed is entirely consistent with the standards for granting an APU Application, and the Facility is designed to not be visually conspicuous, Verizon Wireless recognizes the aesthetic concerns raised by a few citizens from the area. The Fort Collins' Planning Staff made two conditions of approval to the Facility — to reduce the height and to move the location. Verizon Wireless supports Atlas Tower's agreement to the proposed conditions recommended by Planning Staff and can still operate effectively if the height of the facility is reduced from 60' to 45' and the Facility's location is moved to the north end of the site, closer to the existing outbuildings so as to appear integral to the site. Verizon Wireless cannot make any further modifications to its Application without compromising the Facility's effectiveness in providing wireless coverage from an RF perspective. Because the Facility is necessary to fill a coverage/capacity gap and improve wireless coverage in the City, and the Application meets all criteria for a special use permit, the Facility must be approved. 125 YEARS _ SHERMAN6HOWARD 633 Seventeenth Street, Suite 3000, Denver, CO 80202-3622 Telephone: 303.297.2900 Fax: 303,298.0940 www.shermanhoward.com Melissa Kerin Reagan Sherman & Howard L.L.C. Direct Dial Number: 303.299.8310 E-mail: mreagan@shermanhoward.com October 17.2017 VIA E-MAIL City of Fort Collins — City Council Mayor Wade Troxel PO Box 580 Fort Collins, CO 80522-0580 Re: Verizon Wireless — Long Pond Wireless Telecommunications Facility and Addition of Permitted Use, PDP160018 Dear Mayor Troxel and City Council Members: We represent Verizon Wireless. We write in connection with the City of Fort Collins City Council ("City Council") hearing scheduled for October 17, 2017, to consider Atlas Tower's application ("Application") for an Addition of Permitted Use ("APU") to install a 60-foot wireless facility concealed as a silo ("Facility") located at approximately 2008 Tumberry Road, Fort Collins, Colorado 80524. Atlas Tower is the applicant for the proposed Facility. Atlas Tower will construct the tower, and Verizon Wireless will place its antennas on the Facility. Verizon Wireless partnered with Atlas Tower on this Application, and the location was selected based upon Verizon Wireless' coverage and capacity needs. Verizon Wireless will benefit from the approval of this Application and has an interest in the APU. Verizon Wireless respectfully requests the City Council approve the APU Application for the Facility for the following reasons: Active/46959012.1