C. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( Existing Facilities ).

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1 Z O N I N G A D J U S T M E N T S B O A R D S t a f f R e p o r t FOR BOARD ACTION AUGUST 12, Solano Avenue Use Permit Modification to modify the T-Mobile wireless telecommunication facility approved by AUP to allow the replacement of three existing antennas and permit one additional equipment cabinet. I. Application Basics A. Land Use Designations: General Plan: NC, Neighborhood Commercial Zoning: C-SO, Solano Avenue Commercial District B. Zoning Permits Required: Use Permit Modification, under BMC Section 23B C. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( Existing Facilities ). D. Parties Involved: Applicant T-Mobile Communications, c/o Alex Morin, 1888 Golden Gate #20, San Francisco, CA Property Owner Arnold and Dorothy Intorf Trust, c/o Stephen Ng, 1760 Solano Avenue, Berkeley 2120 Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 1760 SOLANO AVENUE ZONING ADJUSTMENTS BOARD Page 2 of 11 August 12, 2010 Figure 1: Vicinity Map File: G:\LANDUSE\Projects by Address\Solano\1760 \MOD \ _ZAB_SR

3 ZONING ADJUSTMENTS BOARD 1760 SOLANO AVENUE August 12, of 11 Figure 2: Site Plan File: G:\LANDUSE\Projects by Address\Solano\1760\MOD \ _ZAB_SR

4 1760 SOLANO AVENUE ZONING ADJUSTMENTS BOARD Page 4 of 11 August 12, 2010 Table 1: Land Use Information Location Existing Use Zoning District General Plan Designation Subject Property Office Building C-SO, Solano Avenue Commercial Surrounding Properties North Retail C-SO, Solano Avenue Commercial South Residential R-1, Single Family Residential East Retail and Office C-SO, Solano Avenue Commercial West Retail C-SO, Solano Avenue Commercial Neighborhood Commercial Neighborhood Commercial Low Density Residential Neighborhood Commercial Neighborhood Commercial Table 2: Project Chronology Date August 3, 2009 September 2, 2009 Action Application submitted Application deemed complete September 17, 2009 DRC hearing November 2, 2009 PSA deadline 1 July 8, 2010 July 22, 2010 August 12, 2010 Public hearing notices mailed/posted ZAB hearing continued by applicant request ZAB hearing N/A CEQA deadline 1. Project must be approved or denied within 60 days after being deemed complete if exempt from CEQA. Applicant has agreed to extend PSA deadline. II. Background A. Prior Use Permits: On November 20, 1998, the Zoning Officer approved Administrative Use Permit # , issued to Pacific Bell Mobile Services (see Attachment 5). AUP# allowed Pacific Bell to install three antennas and related equipment; however, only three antennas were installed. T-Mobile, the present applicant, currently owns the Pacific Bell facility. File: G:\LANDUSE\Projects by Address\Solano\1760 \MOD \ _ZAB_SR

5 ZONING ADJUSTMENTS BOARD 1760 SOLANO AVENUE August 12, of 11 The Use Permits that have been issued for this site are summarized below: Table 3: 1760 Solano Avenue Approved Telecommunication Facilities Carrier Use Permit # Antennas # Antennas Date of MPE Number Approved Installed Report Pac Bell/T-Mobile /12/2009 Sprint /17/2008 Verizon /24/2009 B. Site Conditions: The site is located mid-block on the southern side of Solano Avenue between Ensenada and Modoc Avenues. The three-story Solano Avenue Professional Building was erected in 1966 with ground floor retail and office suites above. At the time when the building was constructed, the maximum height in the C-SO - Solano Avenue Commercial District was 75 and a maximum of six stories. In the current Zoning Ordinance, the height limit in the C-SO Solano Avenue Commercial district for commercial development is 28 and a maximum of two stories. The existing height of the main structure is 35, and 40-6 to the top of the rooftop mechanical equipment. The existing wireless telecommunications equipment is located within the 21-6 X 46 2 T-Mobile equipment lease area. The equipment is screened behind a 7-7 high stucco screen. III. Project Description The proposal involves three main elements: 1) Relocate one existing antenna that PacBell had installed improperly. T-Mobile proposes to relocate one antenna currently installed on the façade of the southwest corner of the building, to the southwest portion of the rooftop within a faux vent. The PacBell installation was not consistent with the Use Permit or building permits. 2) Relocate two antennas at the southeast corner for an equipment upgrade, consolidating the two antennas into one faux vent; and 3) Install one additional equipment cabinet on the roof, within the existing rooftop equipment enclosure wall. File: G:\LANDUSE\Projects by Address\Solano\1760\MOD \ _ZAB_SR

6 1760 SOLANO AVENUE ZONING ADJUSTMENTS BOARD Page 6 of 11 August 12, 2010 IV. Community Discussion A. Neighbor/Community Concerns: T-Mobile was in the process of relocating antennas without the required permits and the Building and Safety Division issued a Stop Work order on March 5, On April 21, 2009, the City notified T-Mobile that a modification to the AUP would be required to authorize the antenna modification. The City did not require the improperly installed antennas to be removed because T-Mobile was in the process of applying for a Use Permit Modification to correct the problem. A Proposed Development sign, detailing the project proposal, was erected July 30, Public Hearing notices announcing the July 22, 2010 Zoning Adjustments Board hearing were posted at the site in three locations and were sent to neighboring properties (owners and occupants within a 300-foot radius), and neighborhood groups. Staff has received several letters in opposition to the T-Mobile facility from Mr. Yong Liu, the owner of the nearest residence at 919 Ensenada Avenue (see Attachment 6). Mr. Liu s attorney, Stephan C. Volker wrote a letter to the City requesting assurances that T-Mobile and the other carriers at the site are in compliance with the City s Telecommunications Ordinance and the conditions of approval for T-Mobile s existing AUP. Prior to the T-Mobile application being submitted, T-Mobile sent an invitation to neighbors for a neighborhood meeting to discuss the proposal. T-Mobile conducted the neighborhood meeting on June 25, 2009 (see Attachment 7). In addition to the T-Mobile application, Verizon and AT&T have applied for modifications to their existing facilities, and Clear Wire has applied to establish a new co-located facility at the subject site. See Issue # 3, below for additional information on the status of each application. In response to the AT&T Use Permit application, staff received twenty-one s and correspondence from citizens, seventeen in opposition and four in favor of the AT&T proposal. Concern was raised regarding T-Mobile s unauthorized work and in response to the AT&T application. Neighbors believe that there is no need for the AT&T facility or any new facility at this location and that allowing additional telecommunication facilities at this location would be detrimental to the health of the neighboring community. B. Committee Review: The Design Review Committee (DRC) reviewed the project on September 17, Design Review staff instructed the Committee to discuss whether the faux vents are the appropriate design or if the antennas should be placed back behind a screen wall already used elsewhere on the roof in the same plane as the other carrier requesting to co-locate in the same corner of the roof. The Committee approved the project as File: G:\LANDUSE\Projects by Address\Solano\1760 \MOD \ _ZAB_SR

7 ZONING ADJUSTMENTS BOARD 1760 SOLANO AVENUE August 12, of 11 designed (6-Yes, 0-No, 1-Abstain). The DRC did not make any specific design recommendations. V. Issues and Analysis A. Key Issues: 1. Public Safety Section 704 of the Telecommunications Act of 1996 (47 U.S.C. (47 U.S.C. 332(c)) prohibits local governments from regulating proposed wireless service facilities on the basis of the environmental effects of radio frequency emissions if the facilities comply with the Federal Communication Commission's (FCC) regulations. Berkeley Zoning Ordinance Section 23C B.2 requires the Zoning Adjustments Board to make a finding whether the facility will comply with these regulations. The applicant provided a report prepared by an electrical engineer registered with the State of California as required by Berkeley Zoning Ordinance Section 23C D.2 (see Attachment 8). Hammett and Edison, Inc. evaluated the proposed antenna modifications for compliance with appropriate guidelines limiting human exposure to radio frequency (RF) electromagnet fields. The report states that the antennas are designed to concentrate their energy towards the horizon and that very little energy is directed toward the sky or the ground and that due to the short wavelength of the frequencies assigned by the FCC for this wireless service, the antennas require line-of-sight paths for their signals to provide adequate coverage. The report concludes that due to the low power of the facility, it is generally not possible for exposure conditions to approach the maximum permissible exposure limits without being physically very near the rooftop antennas. Hammett and Edison s estimates that the maximum cumulative level of the existing Verizon, Sprint Nextel, and the proposed T-Mobile antennas is 2.9% of the applicable public limit at the ground and the second-floor elevation of any nearby building is 5.6% of the public exposure limit. The T-Mobile antennas are not accessible to the general public; however, to prevent occupational exposure that might occur during such activities as building maintenance, the Hammett and Edison report recommends that to prevent access within four feet directly in front of the antennas themselves, explanatory warning signs be posted at the antennas themselves. Such signs should be readily visible from any angle of approach to persons who might need to work within that distance. These requirements are included in the conditions of approval (see Attachment 1). In summary, the Hammett and Edison report concludes that the proposed relocation of the T-Mobile antennas will comply with the prevailing FCC Standards for limiting public exposure to radio frequency energy. File: G:\LANDUSE\Projects by Address\Solano\1760\MOD \ _ZAB_SR

8 1760 SOLANO AVENUE ZONING ADJUSTMENTS BOARD Page 8 of 11 August 12, 2010 Section 23C A.1 requires that within 45 days of installation of new or modified facilities, telecommunication operators shall submit to the Zoning Officer written certification by a licensed professional engineer that the facility s radio frequency emissions are in compliance with the approved application and any required conditions. The installation of T-Mobile s facility at 1725 University Avenue was finalized February 24, In addition, Section 23C A.2 requires an authorized representative for each wireless carrier to provide written certification to the City that each facility is being operated in accordance with approved local and federal permits. T-Mobile requested a continuance of the July 22, 2010 public hearing in order to provide the City with the required reports. As of writing this staff report the City has not received either the required report, which was due to the City by April 12, 2010 (45 days after installation), or the written certification. For facilities approved by the City before January 17, 2002, Section 23C B authorizes the Zoning Officer to request written certification that a facility s emissions are in compliance with the approved application and required findings within six months of notification. Table 4, below, identifies T-Mobile s noncompliance with this requirement and identifies sites in which T-Mobile has or has not complied with the City s request for current radio frequency reports. 2. Visibility Under Berkeley Zoning Ordinance Section 23C B.2, the Zoning Adjustments Board must make a finding that the facility will either (1) not be readily visible; or (2) it is not feasible to incorporate additional measures that would make the facility not readily visible. In addition, Section 23C B (Design Requirements) requires that wireless facilities proposed where they would be readily visible from the public right-of-way or from the habitable living areas of residential units within 100 feet shall incorporate appropriate techniques to camouflage or disguise the facility, and/or blend it into the surrounding environment, to the greatest extent feasible. The design incorporates a number of features to ensure that the facility would not be readily visible (see photo simulations, Attachment 9), including: a) Support equipment cabinets will be located on the roof inside the existing 21 6 by 46 2 roof lease space, not visible to the public, screened behind an existing 7 7 high stucco screen, designed to match the existing rooftop structures; b) Cable trays will be located on the roof and not along the exterior of the building; c) Antennas will be fully concealed inside faux vents for screening purposes. File: G:\LANDUSE\Projects by Address\Solano\1760 \MOD \ _ZAB_SR

9 ZONING ADJUSTMENTS BOARD 1760 SOLANO AVENUE August 12, of 11 Table 4: Certifications for New/Modified Facilities and Existing Facilities Address Approved T-Mobile Sites Use Permit Number Number of Antennas Date of MPE Report or Date Report Requested 1760 Solano May 12, Domingo March 23, Durant March 23, Regent March 23, Rose March 23, Seventh BP# T-Mobile Notified 6/17/10** 1725 University BP# , finalled 2/25/10 report due 4/12/10* Previously PACBELL: 1040 University 1285 Eastshore Approved prior to January 17, 2002 ZA40057 Approved prior to January 17, T-Mobile Notified 2/2/10** 6 T-Mobile Notified 2/2/10** Previously CINGULAR: 1050 Gilman T-Mobile Notified 2/2/10*** 2600 Tenth T-Mobile Notified 6/24/10*** Approved 2054 University 6 T-Mobile Notified 2/2/10** prior to January 17, 2002 *Absence of the RF report results in T-Mobile rendered non-compliant with Section 23C A.1 and is cause for denial under Section 23C B.4 **T-Mobile has 6 months from date to submit report, absence of the a current RF report is not cause for denial under Section 23C B.4 ***T-Mobile has been notified, however, the absence of the RF report is not cause for denial under Section 23C B.4 Under the provisions of BMC Section 23C D, the Zoning Officer may approve minor modifications and aesthetic upgrades that do not increase the size or visibility of any legally established wireless telecommunication facilities without notice or hearing, subject to compliance with all existing conditions of approval. However, the T-Mobile modification is coming before ZAB because Section 23C (Findings Required for Approval), requires a Use Permit for additions to existing facilities in non-residential zoning districts when the site is adjacent to a residential district. T-Mobile is not proposing additional antennas and the site is located in the C-SO Solano Avenue Commercial District; however, the site is adjacent to the R-1 Single Family Residential District. File: G:\LANDUSE\Projects by Address\Solano\1760\MOD \ _ZAB_SR

10 1760 SOLANO AVENUE ZONING ADJUSTMENTS BOARD Page 10 of 11 August 12, 2010 Under Berkeley Zoning Ordinance Section 23C M, when antennas are colocated, the City may limit the number of antennas with related equipment and require providers to be located at any site and adjacent sites in order to prevent negative visual impacts associated with multiple facilities. Architectural and other camouflaging treatment shall be coordinated between all users on each site. T- Mobile has an approved Administrative Use Permit for three antennas and is not proposing to add additional antennas to their existing facility. The modifications are permissible because the camouflaging treatment has been used successfully to mitigate this impact. 3. Co-location Existing and proposed wireless facilities at the site are as follows: Verizon AUP# allowed Verizon to install 12 antennas and related equipment; however 10 antennas were initially installed. On June 24, 2009 Verizon submitted a building permit to replace 4 existing antennas and install one additional antenna, bringing the total number of Verizon antennas to11. In conjunction with the building permit process, Verizon submitted a current EMF report dated October 2, 2009 stating that the revised Verizon facility will comply with the prevailing FCC standards for limiting public exposure to radio frequency energy and will not cause significant impact on the environment. Verizon s EMF report dated October 2, 2009 included modeling and findings for the simultaneous operation of all three existing telecommunication facilities. During the building permit process staff verified that all aspects of the project are consistent with the approved AUP and that no EMF levels are exceeded, and; therefore, the building permit was approved. Sprint The original Use Permit (# ) was issued to Koll Telecommunications on February 20, The use permit allowed Koll to install 9 antennas and related equipment; however 3 antennas were installed. Sprint Telecommunications now owns the Koll facility. On July 17, 2008 Sprint submitted a current EMF report stating that the Sprint facility complies with the prevailing FCC Standards for limiting public exposure to radio frequency energy and will not cause significant impact on the environment. Sprint has not applied for any modifications to their approved use permit. AT&T Applied for Use Permit # on June 23, 2008 to collocate 8 antennas and related equipment at the site. AT&T provided a RF report which concludes that the AT&T proposal complies with the prevailing FCC Standards for limiting public exposure to radio frequency energy at the ground and that based on the engineer s calculations, the worst-case emitted power density may exceed the FCC s occupational limit within 2 feet of the AT&T antennas on the roof and may exceed the FCC s general population limit out to the edge of the rooftop (approximately 5 feet). The report recommends explanatory signage are installed at the site in order for the proposed AT&T facility to be considered in compliance with FCC rules and regulations. File: G:\LANDUSE\Projects by Address\Solano\1760 \MOD \ _ZAB_SR

11 ZONING ADJUSTMENTS BOARD 1760 SOLANO AVENUE August 12, of 11 The DRC reviewed the project on March 19, DRC recommended that the design of the project be changed so that the antennas are moved back from the edge of the roof. AT&T is currently working on a redesign. The City has notified AT&T that the application will be closed on July 26, 2010 if no action is taken by AT&T to complete the Design Review process and to continue with the Use Permit in a timely manner. Clear Wire Applied for Use Permit # on October 20, 2009 to collocate two internet service exchange point antennas, and three panel antennas. The Clear Wire application was deemed incomplete on November 18, Clear Wire did not respond to the November 18, 2009 incomplete letter and a subsequent letter on February 5, The Clear Wire application was closed by staff on March 9, On June 28, 2010 Clear Wire resubmitted an application to collocate antennas at 1760 Solano. Staff is currently reviewing the application for completeness. 4. Summary of key issues Based on the applicant s narrative statements, the RF report prepared by a certified electrical engineer and the Design Review Committee s favorable recommendation of the project, staff believes that the proposed alterations to the existing T-Mobile facility would not pose a threat to public health or result in a structure that is detrimental to views. However, as of writing this report, T-Mobile has not provided the requirements necessary for approval under Section 23C A.1 and Section 23C B and staff recommends denial of the T- Mobile modification based on these sections of the Code. If ZAB denies the modification, the City will direct T-Mobile to relocate the antennas per approved use permit # VI. Recommendation Because of the project s inconsistency with the Zoning Ordinance Staff recommends that the Zoning Adjustments Board: A. DENY Use Permit Modification # pursuant to Sections 23C A.1, 23C B, and 23C B.4 and subject to the attached Findings (see Attachment 1). Attachments: 1. Findings 2. Additional correspondence Other attachments referenced in the report are available as part of the July 22, 2010 staff report. Staff Planner: Pamela Johnson, pjohnson@ci.berkeley.ca.us, (510) File: G:\LANDUSE\Projects by Address\Solano\1760\MOD \ _ZAB_SR