Council Special Meeting

MINUTES CITY COUNCIL SPECIAL MEETING CITY OF MONTEREY Monday, July 19, 2021 4:00 PM - 6:00 PM COUNCIL CHAMBER AND ZOOM TELECONFERENCE MONTEREY, CALIFORNIA Councilmembers Present: Albert, Haffa*, Smith, Williamson*, Roberson Absent: None * Participated remotely by videoconference City Staff City Manager, Assistant City Manager, Assistant City Attorney, Present: Community Development Director, Administrative Assistant (City Clerk’s Office) Pursuant to Section 3 of Executive Order N-29-20, issued by Governor Newsom on March 17, 2020 and Section 42 of Executive Order N-08-21 issued by Governor Newsom on June 11, 2021, the meeting was conducted with a hybrid combination of telephonic/video participation (via Zoom) and in-person attendance in the Council Chamber. ***Afternoon Session Agenda *** CALL TO ORDER Mayor Roberson called the meeting to order at 4:06 p.m. Administrative Assistant Salameh gave a brief overview on meeting attendance guidelines. Assistant City Manager Rojanasathira explained to the public how to participate in the virtual meeting and provide public comment. PLEDGE OF ALLEGIANCE Mayor Roberson led the Pledge. PUBLIC HEARING 1. Deny Appeal 21-0076 and Approve the Personal Wireless Facility Use Permit Amendment UP- 21-0023, to Allow Modifications to an Existing New Cingular Wireless (aka AT&T) Wireless Facility on the Rooftop of a Building Located at 200 Glenwood Circle; Applicant: Alex Orner, J5 Infrastructure Partners; Owner: P Monterey, LP; Appellant: Nina Beety; Planned Community Zoning District; Medium Density Residential General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3 -- Continued from July 6, 2021 Action: Adopted Resolution 21-079 C.S. denying Appeal 21-0076 and approving Personal Wireless Facility Use Permit Amendment UP-21-0023 with the following condition: The applicant shall notify, by certified mail, the tenants (or residents) in units adjacent to the relocated antennas on the building facades, of the offer to perform, at no charge, post-construction radio frequency testing for the interior and balcony areas of their units, if desired by the tenant (or resident). For any interior and balcony area tested, tenant (or resident) and City will be provided a copy of the test procedures and results. Rincon Consultant Jerry Hittleman presented the Agenda Report and took Councilmembers’ questions. City Council Minutes July 19, 2021 It was asked by Council if occupants of the units adjacent to the subject site had been notified of the project and Mr. Hittleman confirmed that all residents of the building had been notified via the property owner. He indicated that no complaints regarding the installation of the wireless facility, verbal or written, had been received. Clarification on renderings, which depicted the reach of radiofrequency (RF) emissions, was requested and Mr. Hittleman replied that, based on the scale provided, the emissions would reach 65 to 70 feet beyond the subject site in a straight trajectory. Upon further inquiry, he added that RF emissions would be mostly blocked by building materials, as indicated by the provided drawings. It was asked by Council if future tenants would be notified of the presence of the wireless facility and Mr. Hittleman replied that currently, that was not conditioned as a part of the project. He added that such notification may be a requirement under real estate law. Concern was expressed by Council that units directly adjacent to the transmitters would be exposed to RF emissions and it was asked if specific data could be provided regarding the inside of the units in question. Additional information was also requested on choice of location for the installation of the wireless facility, to which Mr. Hittleman replied. J5 Infrastructure Partners representative and applicant Alex Orner, along with Hammett & Edison Consultant Rajat Mathur, gave a presentation on the project and took Councilmembers’ questions. They explained that the antennas are directional and that their energy bands out in a narrow beam towards the horizon, rather than covering a broad expanse. It was asked by Council if the units in near proximity to the proposed facility had been noticed, if the entire building had been noticed, and what level of RF emissions would be present in the units closest to the project site antennas. Mr. Mathur noted that a requirement existed for post-construction RF emissions measurements, and that residents could be contacted via certified mail with the offer to conduct measurements from their units. Mr. Orner said that J5 Infrastructure Partners had been working directly with property owners and that ownership had informed him all residents had been made aware of the project. It was questioned of Mr. Orner if he would object to Council requiring a post-construction RF test of the interior of the units. Mr. Mathur said that while they could not enter the homes of residents without permission, they could send each resident a certified letter offering to perform RF emissions testing once construction was complete. It was asked by Council if the City could require that the property owner notify future tenants or potential renters of the wireless facility, and it was determined that the City’s legal counsel would need to advise on the matter. Appellant Nina Beety requested advance notice of allocated speaking time in order to ensure adequate preparation for public hearings. She said that she was not aware of the allotted 15-minute presentation time and had instead prepared a 10-minute presentation. She cited concerns that the project and staff recommendations violated federal, state and local laws, all of which she noted were outlined in her appeal materials. She expressed further concern that staff’s actions mischaracterized her and had the effect of eliminating Civil Rights laws. She said that she 2 City Council Minutes July 19, 2021 believed staff’s reports did not address specific Federal Communications Commission (FCC) laws and did not give regard to the Americans with Disabilities Act, the Americans with Disabilities Amendments Act, the Fair Housing Act, the Migratory Bird Treaty Act, the Endangered Species Act, Monterey’s Wireless Ordinance, the California Building Code and Public Utilities Code Section 7901. Ms. Beety mentioned that the project disregarded disabled individuals, in that she alleged it would block their ability to live, work, and recreate within a specific distance from the subject site. She expressed trepidation that staff had selectively written its reports without mention of specific cases of the Supreme Court of California such as T-Mobile West LLC vs. the City and County of San Francisco or Sprint Telephony LLC and Pacific Bell Wireless LLC vs. the County of San Diego, of which she provided copies for Council’s review. She cited concerns that the project was not in compliance with FCC regulations. Ms. Beety continued on to say that she felt she had been discriminated against by staff due to the installation of wireless internet in the Council Chambers, which created an access barrier for her. She said that projects such as this one exclude herself and other electromagnetic field (EMF) disabled persons from living where they choose because RF radiation penetrates walls and barriers miles away. She added that she felt the City was not qualified to make determinations on the safety of RF emissions in projects such as this. Ms. Beety also urged Mr. Hittleman to reread his email between Mr. Orner and himself (included in the agenda packet), in which the project’s RF emissions are discussed. She implored Council to deny the project, as she felt that it did not comply with the aforementioned laws. Public comment was received from Diane Nichol, in opposition of the project; Jean Rasch, who expressed concerns over noticing for wireless facilities projects; and Bob Tilden, who asked for further clarification on placement of panel antennas in light of safety concerns. Mr. Mathur responded to Mr. Tilden’s question, explaining that the current placement of the antennas on the roof would likely exceed FCC limits and moving them to side of the building would eliminate that condition. He also addressed the email exchange that Ms. Beety referenced. In response to potentially requiring that new tenants be notified of the existence of the wireless facility, legal counsel Joseph Van Eaton, of Best Best & Krieger (BB&K), said that disclosure requirements are associated with any real estate sale. However, he noted, he would need to look specifically into the issue of the City adopting requirements for notifying future tenants of the wireless facility. It was stated by Council that there was no evident cause seen to deny the project or support the appeal, but that it would be advisable to include a provision of approval that required notification of existing tenants of the wireless facility and to offer post-construction RF emissions testing if they opted to do so. Mr. Orner said that he would like to include the provision for testing as an option, as some residents may prefer to not have a third party in their home. He also stated that he would contact residents through the property owner. It was suggested by Council that if concerns existed around disturbing current tenants, that RF emissions testing could be conducted once a unit was vacated. On question by Council about how often RF emissions tests were conducted as a part of ongoing maintenance, Mr. Mathur said that some jurisdictions had periodic testing requirements, but that the emissions do not vary, unless an equipment modification occurs. 3 City Council Minutes July 19, 2021 It was noted by Council that on several occasions, ADA concerns had been raised. Legal counsel was asked to clarify how this was not a violation of ADA regulations. Mr. Van Eaton explained that the Americans with Disabilities Act preempts that regulations cannot be based on environmental effects of RF radiation, which he stated means that denial cannot be based on RF impacts. Legal counsel Andrew McCardle (BB&K) added that it had been determined through research that the Department of Justice’s ADA website did not indicate that RF sickness or sensitivity was covered in the act; that no services, programs or activities would be impacted as such. Further clarification was requested by Council regarding RF levels that would be present both in and outside of units, specifically as quoted in the email exchange previously noted on packet page 96. Mr. Mathur explained allowable FCC RF percentage limits, noting that 100% was the maximum limit and that the calculations discussed in the referenced email were eight percent of the limit inside of a unit in question to a bit less than half of the limit at 43% on the unit’s balcony. On question from Council regarding whether notification of future residents could be conditioned by Council, Assistant City Attorney Salameh said that at the moment, the property owner was not present and notification of future tenants would need to be considered a separate issue, as Mr. Orner preferred to notify residents through the property owner. She further noted that the applicant could offer RF emissions testing to residents post-construction, but would leave notification of future residents as a separate matter. On a motion by Councilmember Haffa, seconded by Councilmember Albert, and carried by the following vote, which was conducted by roll call, the City Council adopted Resolution 21-079 C.S. denying Appeal 21-0076 and approving Personal Wireless Facility Use Permit Amendment UP-21-0023 with the following condition: The applicant shall notify, by certified mail, the tenants (or residents) in units adjacent to the relocated antennas on the building facades, of the offer to perform, at no charge, post-construction radio frequency testing for the interior and balcony areas of their units, if desired by the tenant (or resident). For any interior and balcony area tested, tenant (or resident) and City will be provided a copy of the test procedures and results: AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None ADJOURNMENT The Council adjourned at 5:40 p.m. Respectfully Submitted, Approved, Mary-Kathryn Salameh Clyde Roberson Administrative Assistant Mayor 4