Meeting Time: July 16, 2019 at 7:00pm PDT
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Agenda Item

15. REPORT 19-0451 CUP 19-3- Conditional Use Permit Amendment request to modify an existing non-conforming rooftop wireless telecommunication facility by removing and relocating antennas within new screening boxes below the existing building height and upgrading equipment (AT&T Mobility) at 2447 Pacific Coast Highway, and determination that the project is categorically exempt from the California Environmental Quality Act (CEQA). Continued from June 2019 Public Hearing

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    Albro Lundy almost 5 years ago

    To the Honorable Members of the Planning Commission:

    Our office represents Jay Schuster and Patricia Zingheim, the owners of 2401 PCH. 2401 PCH is directly south of 2447 PCH and has been the subject of numerous transgressions made by AT&T and the owners of the property. We request that the current and proposed cellular apparatuses be removed and denied, respectively. The Planning Commission, and the city of Hermosa Beach, would be well within its rights to do so.

    It is our understanding that in 2011 AT&T installed cell towers on 2447 PCH without proper permitting or testing done through local authorities. It has been eight years since the current towers were installed. AT&T apparently failed to acknowledge their infractions until now. AT&T would like to strengthen the signal and are attempting to use the non-permitted towers as the precondition to install even more obstructive facilities.

    In Section 3 of P.C. RESOLUTION NO. XX-XX, the applicant claims the "proposed project is Categorically Exempt from the California Environmental Quality Act" due to the proposition being only a "minor" change to an already "existing wireless facility." However, in Section 5.4 of the same resolution the applicant contends that one part of the proposed change is to remove "the existing non-permitted facility." In other words, the applicant is using the existence of an unlawful cellular structure to create pretense for decreased scrutiny of the proposed changes.

    Furthermore, the existing structures were not tested and it is currently unknown the level of exposure to radiation the tenants of 2401 PCH (many of whom own their business and work more than eight hours a day in that building). According to numerous recent studies, the closer a cell tower is to a person, the higher chance they have of developing cancer and other health issues. In a longitudinal study by the German Agency for Radiation Protection, researchers found that after just 5 years of being within 400 meters of a cell tower a person's risk of developing cancer increases by 200%. The tower on 2447 PCH aimed at 2401 PCH is substantially closer than 400 meters, and AT&T proposes the installment of facilities emitting increased radiation over 7 feet closer. Exposure to radiation due to the unregulated nature of AT&T's facilities could create substantial health risk to the tenants of 2401 PCH. Additionally, the sizable decrease in property values and ocean views from the surrounding area provides more than enough standing for the city of Hermosa Beach to supersede federal pre-emption. The proposed cell tower covers are 6 feet high by 15 feet wide, and there will be 3 of them. Combined, they will block 45 feet of horizontal ocean views, an incredibly important factor for the evaluation of property values in the beach cities. It will also take away from the views of a local institution, Hope Chapel.

    When a similar case of view obstruction was taken to the California Supreme Court, the Court ruled that cities can, in fact, regulate the implementation of cellular structures. Justice Corrigan argued the "inherent local police power" gives cities certain rights and the means to protect those rights. While federal laws usually preempt local interest, Justice Corrigan decided that telecommunication companies cannot "incommode" or obstruct public paths of travel. (T-Mobile West LLC, et al. v. City and County of San Francisco, et al.) This terminology does not simply extend to the act of physical travel, if a cellular apparatus is unsightly or inconsiderate to the public, it is well within the city's rights to deny its erection.

    This "inherent local police power" also extends to the protection of "public health." Due to the categorically broad nature of federal laws, cities and localities have been given the power by the California Constitution to exercise their authority for the betterment of their citizens. The City of Hermosa Beach has a right and obligation to protect the property and well-being of its occupants. The aggregate of factors including the unlawful current facilities, the substantial risk to public health, and the considerable reduction of property values grants the city of Hermosa Beach special exemption from federal supremacy. This special exemption grants the Hermosa Beach Planning Commission the right to remove AT&T's existing structures as well deny their request for further implementation.

    We appreciate the Planning Commission’s review and consideration of this matter, and urge that the Commission deny this application..

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    Patricia Zingheim almost 5 years ago

    Because of Jay Schuster’s prior eComment, we as owners of the immediately south 2401 PCH strongly request the City does NOT approve the Resolution at this time and require AT&T and the owner of 2447 PCH to:

    1. Provide evidence in a thorough study, not merely a statement, that the south-side facility cannot be placed somewhere else so it is further from our building and our building is not being radiated by the transmission energy. Before 2011, AT&T did not need the south side and subsequently illegally placed equipment on the south side in violation of at least City and State regulations.

    2. Provide a Radio Frequency (RF) Environmental Evaluation or Safety Report on the current equipment. We want to know if in the 8 years since AT&T’s illegal installment, what has been the safety of the current equipment before installing more powerful equipment. And what the difference in energy being sent to 2401 PCH would be under the current illegal equipment and the proposed future equipment.

    3. Move the equipment from the south side of the building to another location that is not so close to people occupying 2401 PCH.

    4. If the City decides to allow AT&T to put equipment on the south side of 2447 PCH, require AT&T and the owner of 2447 PCH to indemnify and hold harmless the owner, its employees, etc. from litigation related to AT&T’s facility.

    5. Require AT&T to provide evidence that according to Code Section 17.40.170(A)(7) that the “proposed upgrade results in fewer or less severe environmental impacts than any feasible alternative at an existing site.” AT&T has not shown this in their submittal—there is no comparison of current illegal equipment and proposed equipment, strength of signal and impact on 2401 PCH of the energy transmission directed toward our building.

    6. Require AT&T and 2447 owner to go back to the City for approval if and when they add more antennae or strengthen the signal capacity and also provide the Radio Frequency (RF) Environmental Evaluation or Safety Report to all the adjacent neighbors every two years because of its history of violating City and State Regulation. The City told us that the City required AT&T to comply; otherwise AT&T and the owner of 2447 PCH would have continued to violate regulation.

    Further, this proposal should be denied until all of the questions below are satisfactorily answered:

    1. How much more power/coverage is AT&T transmitting under the proposal versus the current illegal power/coverage?

    2. Why does AT&T need to increase the number of antennae and the power being transmitted at 2447 PCH instead of another location?

    3. In the future, how many more antennae does AT&T plan to install either legally as the City has required AT&T to do now or illegally as AT&T has done in the past?

    4. Where is the main transmission beam on the south side entering 2401 PCH? Where is the rest of the beam going to be entering 2401 PCH? Where is it directed, what is the range and the intensity at different locations at 2401 PCH?

    5. Please explain how AT&T has met the guidelines of the FCC for radiofrequency radiation exposure.

    6. Explain in detail why AT&T should not move the south facility to the other side of 2447 PCH where there is not constant radiofrequency radiation entering an occupied office building?

    7. AT&T has acquired DirecTV, which means the equipment is now working all the time. Describe how this has been factored into AT&T’s analysis and request for approval.

    8. How does this proposed facility meet FCC’s Guidelines?

    9. How is it made categorically exempt from California Environmental Quality Act?

    We appreciate the Planning Commission’s time and effort to review this matter.

    Yours truly,
    Jay Schuster and Patricia Zingheim

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    Jay Schuster almost 5 years ago

    As the owners of the building immediately south of 2447 PCH (2401 PCH) since 1999, we, Jay Schuster and Patricia Zingheim, oppose the current and further proposed wireless telecommunication facility. The proposal moves the apparatus even closer to our building and transmitting directly toward our building. AT&T and the owners violated City and State regulation and installed this wireless facility on the roof illegally without a permit or approval. It was installed on the south side next to our building.

    The illegally installed apparatus should be removed until it is properly approved and permitted. The current request for increasing the number of antennae from 9 to 12 and putting 4 of them significantly closer to our building should be denied outright. We strongly request that the City does not approve a facility, especially on the south side of 2447 PCH because it is too close to our building—7 feet, 4 inches in a N/S direction and 4 feet closer vertically.

    Most all of our tenants work at least 40 hours per week and most tenants work many more hours because they own their businesses. We believe radiation exposure poses a serious health hazard. The full extent of danger is not fully exposed, much as cigarette smoking and asbestos dangers took half a century to be exposed. The chance of this is reduced if the equipment is placed farther from an occupied building.

    In the alternative, we strongly request that 2447 PCH and AT&T place the proposed south side equipment on the north or east side where it would be closer to a street, and not an occupied building. Our tenants are interested in the results of this hearing and the outcome will likely impact our ability to lease the units in our building. We also request that as the City has required in its Resolution, that “Permittee shall defend, indemnify and hold harmless the owner of 2401 PCH, its employees, etc. who are the ‘indemnified parties’ from and against any claim, action or proceeding brought by a third party against the indemnified parties, reimbursing the owner its actual attorney’s fees and costs in defense of litigation regarding AT&T’s business and facilities at 2447 PCH.” We believe this may become an issue in the future as longer-term research becomes available.

    American Cancer Society stated that “The energy level behind an antenna is hundreds to thousands of times lower than in front.” Therefore, if an antenna is mounted on the south side of 2447 PCH, the exposure level in the building and units in front, i.e. 2401 PCH, is “hundreds to thousands of times” higher than to 2447 PCH because we are in front of the proposed apparatus and constantly being bombarded with the radiation being emitted.

    The International Agency for Research on Cancer (IARC) is part of the World Health Organization and is the agency that American Cancer Society looks to for this agency to evaluate risks based on studies. One of its goals is to identify causes of cancer. IARC classifies RF radiation as ‘possibly carcinogenic to humans’ (Group 2B).” There has not been enough time to learn the long-term effects of radio frequency radiation.

    In 2011, when the City required AT&T to make changes to gain approval and a permit, AT&T never came back to the City and instead installed equipment where it had never been before (the south side by our building) and never did the State’s required Radio Frequency (RF) Environmental Evaluation or Safety Report. The City said in Section 3 of its proposed resolution that AT&T is making alterations to “an existing structure.” The south side is not an approved or permitted existing structure and was installed after AT&T failed to return to the City to gain approval and a permit in 2011. The south side should require a separate study, determining how the four antennae on the south side can be placed elsewhere and not expose our building to excessive radiation.

    We strongly request that the City require, before approval and permit, that AT&T provide a RF Safety Report on the current illegal equipment before allowing them to make any new installation. We need to know before approval if AT&T and 2447 PCH’s owner have liability for failing to meet City and State requirements about radiation safety.

    For the reasons we have mentioned and more, including the fact that it is an ugly eyesore from our property and for the public, we believe that the AT&T facility on the south side of 2447 PCH will be materially detrimental to property or improvements in the vicinity and zone—specifically 2401 PCH. This is in contrast to Section 5 of the proposed Resolution.

    Because of this, we strongly request the City does NOT approve the Resolution at this time. Patricia Zingheim will specify what we request the City require of AT&T and the owner of 2447 PCH in her e-Comment.