OAKLAND -- A group of Oakland hills residents have appealed the city's decision to allow AT&T to mount cellular antennas on an existing utility pole in their neighborhood on the grounds that it violates the city's own zoning laws.
At the July 29 City Council meeting, several residents who live near the utility pole in question, located at 5826 Mendoza Drive, cited possible fire danger, diminished property values and inaccuracies in the project's application, ultimately convincing council members to review the Planning Commission's findings in order to determine if the decision should be reversed.
An appeal consisting of almost a dozen items was sent to the council and presented during the meeting. Mendoza Drive resident Gerald Sterns, who is an attorney and has spearheaded the effort along with eight or so other neighbors to repeal the project's approval, drafted the document. Three AT&T representatives addressed the concerns outlined in the appeal.
The project, which was approved in April 2013, would allow AT&T to install a Distributed Antennae System (DAS) consisting of an 8-to-10-foot-tall extension onto which a pair of 2-feet-tall panel antennas would be mounted, increasing the current 38-foot pole to almost 50 feet.
An equipment cabinet, backup battery and additional other equipment would be mounted at different heights along the existing pole. The antennas would be painted to match the existing pole.
AT&T submitted 32 such project proposals separately over the course of last year, 20 of which have already been approved and an additional nine of which have been built. Residents appealed the remaining three projects, one of which would be on Mendoza Drive.
According to AT&T's application, the project's purpose is "to provide AT&T third and fourth generation (3G and 4G) wireless voice and data coverage to the surrounding area where there is currently a significant gap in coverage," which representatives said will worsen as more people drop their landlines. AT&T submitted a color-coded coverage map with its application but did not provide any other evidence to support its service gap claim.
Although analysis by city staff determined that the site "does not directly front a residence, a significant view from a home, (or) a scenic vista," and is in the public right-of-way, homeowners like Dalia Ducker disagree, saying that the utility pole is directly in front of her house and the added height would obstruct the panoramic views.
"From the deck and from the porch we have a view to the west of the bridges, the bay and the San Francisco skyline," said Ducker, who has lived at 5816 Mendoza Drive for 37 years with her husband.
Another neighbor, Minda Dudley, said the utility pole is several inches from her mailbox. Public right of way is often difficult to determine in neighborhoods not clearly defined by sidewalks, but District 4 Councilmember Libby Schaaf, who represents the area containing some of the installations, upheld the concern.
"They will look out from their deck and will be at eye level with this cellular equipment," she said at the meeting. "That is certainly not preserving a view and was certainly not what was intended by the design review criteria."
While AT&T's application included photographs taken from the street, residents say the wireless provider neglected to consider the views from people's homes.
Alexandra Krasov, director of public affairs for AT&T, confirmed that this was indeed the case, but also said that representatives did meet with one of the appellants and were invited onto the property.
"We can confirm that the equipment would be covered by the tree line," she said in an email. "We would be happy to meet with any of the appellants again and to assess the view from their property if they allow us onto it. We have also offered a number of different designs to attempt to minimize any potential view impacts."
According to the application, "Alternative sites were considered at other utility poles along Mendoza Drive, Manuela Drive, and Colton Boulevard but none of these sites are as desirable from a coverage perspective or from an aesthetics perspective."
The appeal also questions why none of the projects were subject to the California Environmental Quality Act. The application acknowledged that "minor alteration" of existing public or private structures that involves "negligible" expansion of use are exempt from CEQA and determined that the Mendoza Drive project meets those criteria.
"This is a major change of use," said Sterns in a later interview. "You've got 32 poles that you're changing. The way they blow (CEQA) off is by taking it one application at a time."
Sterns also argued that the height of the utility poles, as well as the vegetation surrounding them, could pose a fire danger.
"You do not need another firestorm in these hills," he told council members.
Residents were also concerned about noise from heat-activated fans that would cool the equipment, as well as emissions and diminished property values. AT&T representatives addressed the concerns brought by the appellants and assured the council that they were unfounded.
"We adhere to at least a dozen safety standards to make sure that we're in compliance with all federal, state and local jurisdiction laws when it comes to the safety of our installations," said Marc Grabisch, a representative for the company. "In the case of the installation that we've chosen, (the emissions are) 100 times lower than the established federal standards."
Although the city's power to challenge these installations is limited by the 1996 Federal Telecommunications Act prohibiting municipalities from rejecting installations on the basis of health concerns from radiation emitted from the installations if levels are within FCC limits, a Ninth Circuit Court of Appeals decision in 2008 upheld the right to deny a project based on aesthetics as long as the provider is not effectively prohibited from providing wireless service. While convincing the city to reconsider its decision may seem like a small victory, Sterns senses an uphill battle.
"What I'm worried about is that in those two months that they've got, they're going to put a resolution together that's going to be defective," he said, in which case AT&T could overturn the appeal on a technicality.
The Mendoza Drive appeal is scheduled to go before the City Council on Sept. 23, along with an appeal of a similar project on Elderberry and Saroni drives.