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ATT Decision Notification-ENG2021-0114-05-25-2021-LFCITY OF EDMON DS v CITY HALL • 121 51h AVENUE NORTH • EDMONDS, WA 98020 425.771-2525 • fax 425.771.0266 • www.edmondswa.gov May 25, 2021 Erin Osmus Sent via email PnW cRAN-Project Manager MasTec Network Solutions Erin.Osmus@mastec.com Jay Rodriguez Sent via email Project Manager-SAQ Mastec Network Solutions Jay. Rodriguez@mastec.com Re: Decision Notification MIKE NELSON MAYOR AT&T application for wireless facilities permit pursuant to ECDC 20.50.070 AT&T site ID WAALD-003-E/17727-003 ENG 2021-0114 Right of Way permit/Wireless Facilities permit application Dear Ms. Osmus and Mr. Rodriguez, The City received the above referenced application. In the application AT&T sought to locate a small wireless facility in the communications space of an existing Snohomish County PUD owned pole. The City has considered the above referenced application, including its supporting materials, and has determined that the applicant failed to comply with the City's location preference hierarchy and design standard criteria outlined in ECDC 20.50.070(G) and ECDC 20.50.130. Therefore, the application is denied. The City has adopted location preferences and design standards. When locating small wireless facilities in the rights -of -way, wireless providers shall site their facilities pursuant to the adopted siting preferences which are expressed in descending order, starting with the most preferred. ECDC 20.50.130(B). Wireless providers may not descend to a lower preference in the list until they have showed that the higher preference is not feasible. ECDC 20.50.070(G). City code sets forth the following location preference hierarchy: 1. Location Preference No. 1— hollow utility pole. 2. Location Preference No. 2 — freestanding small wireless facility or new streetlight. 3. Location Preference No. 3 — existing power pole (installation on top of pole). 4. Location Preference No. 4—existing power pole (installation in communication space). 5. Location Preference No. 5 — strand -mounted. ECDC 20.50.130(B). In reviewing this application, the City has considered all of the materials submitted by AT&T: the application cover letter dated March 26, 2021; the Design and Code Compliance Narrative; letter from Snohomish County PUD; ROW construction drawings; letter of authorization for MasTec; the proof of compliance with FCC standards; photo simulations of the proposed facility; and the email correspondence. In this case AT&T proposed a location falling second to last on the City's preference hierarchy (Location Preference No. 4 — existing power pole in the communication space.) It descended to Location Preference No. 4 without meaningfully addressing Location Preference No. 2 — freestanding small wireless facility. City code requires the provider to show lack of feasibility of Location Preference No. 2 before a permit for a lower location preference will be granted. See ECDC 20.50.070(G) and ECDC 20.50.130(D)(2). AT&T stated it could not meet the design and location standards for a freestanding facility (Location Preference No. 2), but it did not support that conclusion with facts. Conclusory statements or opinions unsupported by facts showing that AT&T meaningfully considered the location requirements of Location Preference No. 2 does not satisfy code requirements. City code states, "Failure to show lack of feasibility of a higher preference shall be grounds for denial of an application." ECDC 20.50.130(B). As a courtesy, city staff communicated to AT&T by email on May 11, 2021, that its application, while complete, did not show infeasibility of Location Preference No. 2. Even though the City had no ability to stop the shot clock per FCC orders and would have only ten business days remaining to review additional information, city staff nevertheless on May 11th invited submission of corrective information. The applicant responded by email dated May 18, 2021, with only five business days remaining on the clock, asking the City to indicate a location for placement of a freestanding facility within 150 lineal feet of AT&T's proposed facility and asking the City to provide it with applicable clearance requirements. AT&T did not submit the information requested on May 11, 2021 in its May 18, 2021 correspondence. The applicant, not the City, has the burden of establishing infeasibility of Location Preference No. 2. To site a small wireless facility at a location preference below Location Preference No. 2 (i.e., to locate at preference 3, 4 or 5), the applicant must prove it is not feasible to place a freestanding small wireless facility (i.e., it is not feasible to satisfy Location Preference No. 2). To show infeasibility, the applicant must examine the right-of-way 150 lineal feet in either direction of its proposed small wireless facility location as measured along the right-of-way line and show that the design standards for a freestanding facility could not be met anywhere in that 300 lineal foot stretch of right-of-way. ECDC 20.50.070 (G)(2). When AT&T ruled out Location Preference No. 1, it at least provided an analysis examining 150 lineal feet in either direction of its proposed siting that was supported by documentation from Snohomish County PUD. A letter from PUD stated that PUD would not approve a hollow utility pole but may approve a hollow street light pole. AT&T confirmed in its Design and Code Compliance Narrative document that there are no PUD street light poles within 150 lineal feet of the proposed location. While the City is reviewing, as noted toward the conclusion of this letter, the extent to which it will rely upon PUD's own standards for the purposes of ruling out 2-Decision Notification-ENG2021-0114 location preferences in future applications, for the purposes of this application, the City concludes that AT&T provided sufficient facts to establish location Preference No. 1 was infeasible. AT&T did not, however, provide sufficient facts to support the infeasibility of Location Preference No. 2. In its Design and Code Compliance Narrative at page 3 of 8, AT&T made several statements it was unable to meet Location Preference No. 2 location requirements, but it did not present any supporting facts. Deficiencies in AT&T's application include, but are not limited to: AT&T stated it cannot avoid "risk [of] interfering with sight and travel lines of existing driveway entrances and exits," but did not present any facts supporting that conclusion. There is no examination of 150 lineal feet in each direction of the proposed facility. There is not one example of a blocked sight line. There is no explanation why the utility poles along the streets do not block sight and travel lines, but a freestanding wireless facility would. AT&T stated it cannot meet clearance requirements, but it did not present facts supporting that conclusion. AT&T stated "A freestanding small wireless facility near this location at a height of 25' or lower would not comply with clearance requirements and would present a hazard." Nowhere does AT&T state what amount of space would be required between a freestanding facility and the proximate communication and power lines (any such clearance requirement is not one regulated by the City). Nowhere does AT&T state what the height of a functioning freestanding small wireless facility needs to be. Nowhere does AT&T address the required 150 lineal feet on either side of its proposed location (as it did when it ruled out Location Preference No. 1.) The City is left to wonder whether a freestanding wireless facility could work, and that is exactly what the adopted code requirements are intended to prevent. As evidence that there is not enough clearance for it to place a freestanding wireless facility, AT&T submitted a letter from Snohomish County PUD dated February 23, 2021 (attached). The letter states in pertinent part: It is not the District's responsibility to determine if a freestanding structure can be placed in the right of way and maintain minimum allowable clearances from existing power and communication lines. [Italics in original.] But PUD's statement excerpted above does not satisfy the applicant's burden. If anything, PUD's statement could be read to indicate that there is no clearance problem, or at least not one that PUD is concerned about. Hence, AT&T's conclusion is not supported by the evidence submitted. 3-Decision Notification-ENG2021-0114 AT&T stated there is not enough space in the right-of-way to locate a freestanding facility a safe distance from existing utility lines, but it did not present any facts supporting that conclusion. AT&T stated it cannot avoid hindering pedestrian travel, but it did not present any facts supporting that conclusion. Any freestanding facility must be located on the same side of the street as existing power lines. ECDC 20.50.130(D)(2)(a)(iii)(J). AT&T did not state that the freestanding facility would be on the same side of the street as existing power lines. In fact, the application only referenced the wrong side of the street, that is, the side without power lines and with communication lines only. While the bulk of this decision addresses the applicant's failure to provide evidence showing that Location Preference #2 is not feasible, and while that failure, on its own, is enough to warrant denial of the application, the City also reserves the right in future applications to require additional evidence to show that Location Preferences No. 1 and No. 3 would also not be feasible. Outside of this application review process, the City will be seeking additional information from PUD to confirm that PUD's refusal to accommodate Location Preference No. 1 and No. 3 is reasonable under the circumstances. If the City determines that PUD's refusal to accommodate either Location Preference No. 1 or No. 3 is unreasonable under the circumstances, it may not accept PUD's statements alone as being sufficient to satisfy the applicant's burden in future applications. Therefore, the City's May 11, 2021 comment that the applicant had addressed Location Preferences No. 1 and No. 3 should not be viewed as binding or precedential in future applications. In sum, City code requires the applicant to justify its proposed placement within the location preference hierarchy. In this case, AT&T did not do so. For the reasons stated herein, the application is denied. Ve -y-tquly youurrss, Phil Williams Director of Public Works City of Edmonds Cc: Ken Lyons Wireless Policy Group ken.lyons@wirelesspolicy.com 4-Decision Notification-ENG2021-0114