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HomeMy WebLinkAboutLetter from Holland and Knight LLP On Behalf of AT&T Wireless - Appeal of UP17-0002 Holland & Khight 50 California Street,Suite 2800 1 San Francisco,CA 94111 1 T415.743,6900 IF 415,743,6910 Holland&Knight LLP I www,hkl,aw.com Amanda J.Moncharnp (415)743-6947 amanda,monchamp@hklaw,com January 22, 2018 Butte County Board of Supervisors 25 County Center Drive, Suite 200 Oroville, CA 95965 Dear Board of Supervisors, I write on behalf of AT&T Mobility db,a AT&T Wireless ("AT&T") with regard to the appeal filed by Don and Joyce Johns (108 Manzenella Court) regarding UP]7-002, and the letter prepared by Sara Knowles attached to their appeal application ("Appeal Letter"). The Appeal Letter mischaracterizes the applicable fair argument standard of review used by the County when it approved the Mitigated Negative Declaration ("MND")that was prepared for a wireless facility at 46 Mananzella Court ("Project'). As explained in our letter provided on September 27, 2017, the County went above what CEQA requires and prepared an MND for the Project because under established CEQA law this Prcject is categorically exempt from CEQA and no exceptions,to the exemptions apply. As is clear from our September 27,2017 response to the Johns' comment letter, the Project will have no environmental impact. It cannot be fairly argued that this Project will have a significant environmental impact and therefore any court would uphold the County's approval of the MND under this standard. In fact, as again explained below, this Project could be considered categorically exempt under CEQA Guidelines 15303 and no MND was even required for the Project. In addition, the application conforms with the County's Telecommunication Facilities Ordinance and tinder the Federal Telecommunications Act of 1996 as the site is the"least intrusive means to fill a significant gap" in wireless service coverage and AT&T considered numerous sites including additional sites suggested by the County and Planning Commission during the Planning Commissions processing of the application. Because the application complies with all laws, the Board of Supervisors should approve the application. Butte County Board of Supervisors Page 2 A. A MND May Be Prepared Here Because There Is No Substantial Evidence That This Project Will Have a Significant Environmental Effect. The Initial Study and MND for this project are legally sufficient and the County was not required to prepare an Environmental Impact Report("EIR"). It is well established that an agency may issue an MND when an initial study identifies potentially significant effects on the environment, if the effects are mitigated to a less than significant level and"there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." CEQA § 21064.5; 14 Cal. Code Reg. ("CEQA Guidelines") § 15064(f)(1);No Oil, Inc. v. City of Los Angeles(1974) 13 Cal.3d 68, 75 & 80(holding that when a project is not exempt from CEQA, a determination that a project does not require an EIR must take the form of a negative declaration).' As explained in a case cited by the appellant "CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment. [Citations]. In certain situations, where a straightforward negative declaration is not appropriate,the agency may permit use of a [MND]" if revisions in the plan and/or mitigation measures"would avoid the effects or mitigate the effects to a point where clearly no significant effect to the environment would occur." Architectural Heritage Association v. County of Monterey(2004) 122 Cal.AppAth 1095, 1101 (internal citations and quotations omitted). Where possible,the preparation of an MND rather than an EIR is strongly encouraged as a means of reducing delay and paperwork. CEQA Guidelines §§15006(h), 15063(c). When challenging a MND, a petitioner bears the burden of proof to"demonstrate by citation to the record the existence of substantial evidence in the record that supports a fair argument that the Project may have a significant effect on the environment." Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 688 (quoting Leonoff v. Monterey County Board of Supervisors(1990) 222 Cal.App.3d 1337, 1348- 1349, emphasis added). CEQA directs that"[s]ubstantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." CEQA §§ 21082.2(c) (emphasis added),21080(e)(1). "[S]peculation about potential environmental impacts . . . cannot amount to substantial evidence"requiring preparation of an EIR. Aptos Council v. County of Santa Cruz(2017) 10 Cal.App.5th 266, 295; CEQA §§ 21080(e)(2), 21082.2(c); County Sanitation District. No. 2 of Los Angeles County v. County of Kern(2005) 127 Cal.App.4th 1544, 1580 (noting now established law that"the existence of a public controversy is not a substitute for substantial evidence"). Moreover, "[p]ointing to a lack of evidence in the administrative record does not by itself constitute substantial evidence of significant environmental impact." Aptos Council,supra, at 297; Gentry v. City of Murrieta (1995) 36 Ca.App.4th 1359, 1379, 1417 ("in the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence"). Furthermore, "[u]nder CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons. The appellant also cites to Sunstrom v. County of Mendocino(1988)202 Cal.App.3d 296,309-310 and City of Carmel-By The Sea v. Board of Supervisors(1986) 183 Cal.App.3d 229,245-246,both of which based their holdings in part on the now obsolete notion that the existence of public controversy was a substitute for substantial evidence. 2 #55050662_v3 Butte County Board of Supervisors Page 3 Thus the mere possibility of an adverse impact on a few people, as opposed to the environment in general is not sufficient to constitute substantial evidence of an adverse effect." Porterville Citizens far Responsible Hillside Development v. City of Porterville (2008) 157 Cal.App.4th 885, 900-901 (internal citations and quotations omitted). CEQA defines "significant effect on the environment"as "a substantial, or potentially substantial, adverse change in the environment." CEQA §§ 21068, 21080(e)(1). "Economic and social changes resulting from a project shall not be treated as significant effects on the environment." CEQA Guidelines § 15064(e). Impacts to community character, which is not even covered by CEQA, are similarly not treated as significant effects on the environment. Preserve Poway v. City of Poway(2016) 245 Cal.AppAth 560, 576-577 (community character issues that are a matter of what is pleasing to the psyche such as the pleasure that come from living in a rural area are not environmental impacts under CEQA). Lead agencies have discretion to determine the significance threshold that should be applied in determining whether a project's impacts are significant. CEQA Guidelines §§ 15064(b), 15064.7. The fair argument standard is not, as claimed by the appellant"very different" from the standard followed by public agencies. "The standard to be employed by the agency is not whether any argument can be made that a project might have a significant environmental impact, but rather whether such an argument can fairly be made." Friends of"B"Street v. City of Hayward(1980) 106 Cal.App.3d 988, 1003 (emphasis in original) (citing No Oil,supra, at 85- 86); see also Brentwood Association for No Drilling, Inc. v. City of Los Angeles(1982) 134 Cal.App.3d 491 (noting that the "trial court's function is to determine whether substantial evidence supported the agency's conclusion as to whether the prescribed fair argument could be made"). As explained in Citizens Community to Save Our Village v. City of Claremont(1995) 37 Cal.AppAth 1157, 1168, the agency has discretion to determine if evidence is substantial, and that process "is in itself a weighing process. The court does not look only to the evidence relied upon by appellants to the exclusion of all contrary evidence. Evidence that rebuts, contradicts or diminishes the reliability or credibility of appellants' evidence is property considered." More recent case law similarly affirms that a court must"give the lead agency the benefit of the doubt"on such credibility issues, and that even extensive opinion evidence by project opponents does not meet the"fair argument" standard if there are "Iegitimate issues" undermining the appellants' evidence. Joshua Tree,supra, at 684, 692. See also Leonoff,supra at 1349; Gentry, supra, 1400 ("ft]he lead agency . . . has some discretion to determine whether particular evidence is `substantial,"' and "[t]he courts should not substitute [their] own credibility determinations for those of the public agency") (internal citations omitted);Newberry Spring Water Association v. County of San Bernardino (1984) 150 Cal.App.3d 740, 750 ("[t]he administrative agency is entitled to believe or disbelieve even contradicted testimony of a witness if the witness has an interest in the matter under dispute"). Finally, Citizens Association for Sustainable Development of Bishop Area v. County oflnyo (1985) 172 Cal.App.3d 151, 173, also cited by the appellant, similarly notes that"even expert opinion may ultimately be rejected because of the expert's interest in the matter or for other reasons." It is therefore only after the agency determines that evidence in the record is substantial that it is prohibited under the fair argument standard from weighing that substantial evidence against other contrary evidence. 3 955050662_vl Butte County Board of Supervisors Page 4 The appellant correctly notes that the agency is required to base its determination on the entire record. Silveria v. Las Gallinas Valley Sanitary District(1997) 54 Cal.AppAth 980 (upholding a negative declaration under the fair argument standard);Sierra Club v. California Department of Forestry and Fire Protection(2007) 150 Cal.AppAth 370, 382 (looking primarily to a detailed comment letter from"a professional plant ecologist and botanist with a quarter- century of experience...that the mitigated project may have a significant environmental effect in numerous areas"). However, as set forth below,there is no credible evidence in the record that amounts to substantial evidence that the Project, as mitigated, will have a significant impact on the environment. The appellant has failed to meet its burden under the fair argument standard because the evidence it cites does not demonstrate that the Project's impacts would affect more than a few particular persons, and does not rise to a level considered significant under applicable thresholds of significance. B. There is No Substantial Evidence Found in the Public Testimony In This Case. The appellant misstates the law relating to public testimony. In Pocket Protectors v. City of Sacramento(2004) 124 Cal.AppAth 903, 928 the court found that"[r]elevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument," and noted that the"lead agency has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA's definition of`substantial evidence."'The court further noted that"the mere possibility of an adverse impact on a few people, as opposed the environment in general" shall not require the preparation of and EIR if there is no evidence that the project may have a significant effect on the environment. Pocket Protectors, supra, at 929; Bowman v. City of Berkeley(2004) 122 Cal.AppAth 572, 586; Porterville Citizens,supra, at 903 (distinguishing Quail Botanical Gardens Foundation, Inc. v. City of Encinitas(1994)29 Cal.App.4th 1597 due to the"absence of adverse impact on a public view, park or trail"). Other cases cited by the appellant are either distinguishable, not applicable, or superseded by more recent case law. In Ocean View Estates Homeowners Association, Inc v. Montecito Water District(2004) 116 Cal.App.4th 396 402, the court agreed that"merely the matter of expressions of concern by one or two people"was not substantial evidence of a negative aesthetic impacts, but found that a county planning department comment that a 4-acre aluminum cover to a reservoir could be seen from public trails was substantial evidence of a possible aesthetic impact. In Oro Fino Gold Mining Corp. v. County of Eldorado (1990)225 Cal.App.3d 872, 876-878, the County determination that an EIR was required for special use permit to drill more than 30 holes,each of which would be 2,000 feet deep was challenged by the mine operator and is not applicable here. Under the case law that defines both the standard of review and the definition of substantial evidence, none of the comments support a conclusion that an MND was not appropriate or that it was improperly prepared or deficient for this site. C. There Is No Substantial Evidence of a Significant Aesthetics Impact. The Appeal Letter only tries to say there is the possibility of an adverse impact on a single property owner, not the environment in general. This is not sufficient to constitute 4 955050662_x! Butte County Board of Supervisors Page 5 substantial evidence of an adverse environmental effect on aesthetics. Furthermore, and explained above, economic impacts Such as an alleged decrease in property value, are not environmental impacts under CEQA. The MND properly considered potential aesthetic impacts of the Project (see pages 7-8). Moreover, the MND explicitly considered impacts to the 108 Manzanella Court residence property which is 250 feet away from the wireless facility. Page 8 of the MND notes that"[t]he nearest off-site residential dwellings from the proposed communication tower are approximately as follows: Distance(feet) Direction. Address 250 ft. E 108 Manzanella Corot 485 ft. SE 85 Damon Lane 650 ft. SW 41 Dan ion Lane 650 ft. E 118 Manzanella Coui-t 660 ft- N 11 Manzanella Coutt 790 ft S 64 Danion Lane 875 ft S 116 Damon Lane 900 ft. W 1 901 Mission Olive Road 915, ft- SW 1 1909 Mission Olive Road "As noted in the table above, the closes[t] offsite residence is located approximately 250 feet to the east" and "[b]ased on these distances, the location proposed will not substantially degrade the existing visual character of the site and is not expected to result in a significant impact to scenic vistas and to the area's visual aesthetics for the purpose of CEQA." As explained in the MND, the project site is not located along a designated state scenic- highway or all identified scenic area, and would not have an impact on any public views. Appendix A of the MND includes photo simulations of the proposed facility as seen from different locations in the project area. The application and the MND correctly states that the appearance will not be unsightly and it has been situated and fenced to be shielded from view from adjacent properties. The renderings and representations attached to the Appeal Letter are not accurate nor to scale and do not accurately depict the location and size of the Project. As shown in Attachment A, the photosims presented in the Appeal Letter exaggerate the height of the proposed tower and misrepresent the distance of the tower. They also misrepresent the location of the equipment area that will be screened by existing vegetation. In contrast, the documentation included in the MND is accurate and not misleading. The County has discretion to disbelieve the testimony and photo simulations created by neighbors who have a direct interest in this matter and based on staff testimony that their photo simulations are inaccurate,to find that it does not amount to substantial evidence of an environmental impact. The location of the Project was deemed to have similar impacts to residential uses in the area generally. As explained in Section G below, the County determined that"[w]hile there are 5 #55050662N,l Butte County Board of Supervisors Page 6 other parcels in the surrounding areas that could accommodate the tower,the visual impacts would generally be the same to the existing residential dwellings." The County properly considered the opinions expressed by interested neighbors related to aesthetics and properly determined that it could not be fairly argued that the Project might have an aesthetic or visual impact on people or the environment in general. D. There Is No Substantial Evidence of a Significant Noise Impact from the Emergency Generator. The County appropriately considered noise impacts that could potentially result from the Project. (See pages 30-31 of the MND, and the Environmental Noise Assessment Report dated April 10, 2016.). Even though the emergency generator back-Lip Will only run for 15 minutes once a week, a noise assessment was conducted and it showed that the proposed emergency back-up generator will produce 54.27 dBA at the nearest property line. This is below the County threshold of 60 dBA that applies to the non-urban designated (Rural Residential) Project area. Moreover, the property line is about 190 feet away from the appellant's horne and the noise level experienced at their home would be significantly lower and thus even further below the County standard. ai Circle 3D path 3D P-h Lpo-ingen_1 Measure the&stance between tvm points on the ground lqml Map Length: Ground Length: 192.01 Heading: 45.53 degrees NaAgation clear The appellant has not pointed to any evidence that the Prcject, which complies with the County's Noise Ordinance, may have a significant noise impact. E. There Is No Substantial Evidence of a Significant Air Quality or Dust Impact from One Truck Accessing the Site for Monthly Maintenance. The County appropriately considered air quality impacts that could potentially result fi-orn the Project in the MND (pages 10-14). Specifically as to dust, the MND includes a standard 6 #55050662 „r Butte County Board of Supervisors Page 7 construction mitigation measure that requires the following dust control measures that will mitigate any dust impact to less than significant: ■ During clearing, grading, earth moving, excavation, or transportation of cut or fill materials, water trucks or sprinkler systems are to be used to prevent dust from Ieaving the site and to create a crust after each day's activities cease. ■ During construction, water trucks or sprinkler systems shall be used to keep all areas of vehicle movement damp enough to prevent dust from leaving the site. At a minimum, this would include wetting down such areas in the later morning and after work is completed for the day and whenever wind exceeds 15 miles per hour. ■ Soil stockpiled for more than two days shall be covered, kept moist,or treated with soil binders to prevent dust generation. ■ On-site construction vehicles shall be limited to a speed of 15 mph on unpaved roads. ■ Haul vehicles transporting soil into or out of the property shall be covered. ■ Existing roads and streets adjacent to the project shall be cleaned at least once per day if dirt or mud from the project site has been tracked onto these roadways,unless conditions warrant a greater frequency. ■ Other measures may be required as determined appropriate by the BCAQMD or Department of Public Works in order to control dust. ■ Post a publicly visible sign with the telephone number and person to contact regarding dust complaints. This person shall respond and take corrective action within 24 hours. The telephone number of the Butte County Air Quality Management District shall be visible to ensure compliance with BCAQMD Rule 200 & 205 (Nuisance and Fugitive Dust Emissions). The County correctly determined that construction and access to the Project, particularly at the noted speed limit of 15 miles per hour which is below what County standards even require, would not cause any measurable dust emissions at the 108 Manzanella residence. The County does not enforce speed on private access roads nor does one trip a month indicate any enforcement is necessary. Even if two other carriers collocate on the site, each would only add one maintenance trip per month and this number of trips would not create a measurable amount of dust. The County also required a separate condition of approval that after construction of the tower AT&T is required to restore the road to its original or better condition prior to operating the site. This insures that the road condition is not harmed,and may be improved,by the construction,and that the only wear is from the very infrequent access for maintenance. The access road is approximately the same distance away from the 108 Manzanella residence as the residence is away from Manzanella Court. Any person living in, visiting, or delivering packages to the two existing residences to the west of 108 Manzanella(circled in red in 7 455050662_vl Butte County Board of Supervisors Page 8 the Figure below) would drive past 108 Manzanella Court and would generate the same amount, if not more dust, than would any periodic access to the Project for a monthly maintenance trip. y f �U r The appellant has not presented any evidence that there would be any adverse environmental impact related to dust. The speculative 'fears and opinions that one truck driving down a short compacted gravel road to access the Project may result in dust impacts are not based on any facts and do not amount to substantial evidence. Therefore the County correctly determined that it could not fairly be argued that the Project might result in a significant air quality impact. F. There Is No Substantial Evidence of a Significant Traffic Impact from One Truck Accessing the Site for Monthly Maintenance.. The County appropriately considered traffic impacts that could potentially result from the Project in the MND (see pages 33-34). As explained in the MNL), "[a]fter construction activities have been completed, the project would require only one to two site visits per month. This very law number of vehicle trips would not have any impact on vehicular circulation in the project area." Even if there are three carriers on the site, three to six trips per n7onth is not a significant amount of traffic. The appellant's point only supports the fact that the additional three to six rips per month will not cause a traffic impact. The maintenance vehicles that will be accessing the Project once a month are approximately the same size, if not smaller than a standard FedEx or UPS delivery truck. 'Where are 4 existing residences on Manzanella Court, and it is reasonable to assume that a service, delivery or other heavy truck travels on Manzanella Court at least once a week. Therefore the MND correctly concluded that the impacts from one, or even three truck grips per month would 8 #55050662 vl Butte County Board of Supervisors Page 9 not have a significant environmental impact as compared to the baseline scenario. The County was therefore well within its discretion to impose a condition of approval to require the road to be restored after construction but once the road is restored after construction to not require mitigation for the minor use of the road during operations. The speculative fears and opinion that up to three to six truck trip per month would somehow cause a significant traffic impact is not substantial evidence of an environmental impact. Therefore,the County correctly determined that it could not fairly be argued that the Project might result in a significant traffic impact. G. No Analysis Of Alternatives Is Required Under CEQA Because The Project, As Mitigated,Will Not Have Any Significant Effects On The Environment. The County was not required to analyze alternatives to the Project under CEQA because it cannot be fairly argued that the Project will have a significant effect on the environment. The County therefore correctly prepared an MND for the Project, and not and EIR. The CEQA Guidelines section 15071 lays out the following required contents of a MND: ■ A brief description of the project, ■ Location of the project, ■ Proposed finding that the project will have no significant effect on the environment, ■ Initial study documenting reasons supporting the finding, and ■ Mitigation measures to avoid potentially significant effects. In contrast, EIRs are required to consider a reasonable range of alternatives to the proposed project. CEQA Guidelines § 15126.6. As described in detail above, the County correctly determined that an EIR was not required for this project because it could not fairly be argued that the Project might have any significant effects on the environment. H. The Alternative Site Analysis Was Properly Conducted Under the County's Telecommunication Facilities Ordinance and the Telecommunications Act of 1996. The Alternative Site Location Analysis was prepared to comply with the County's Telecommunication Facilities Ordinance (Butte County Code sections 24-176 et. seq.). In compliance with the Telecommunication Facilities Ordinance, AT&T submitted to the County"a discussion of and supporting information regarding the alternative site selection of at least three (3) alternative sites, if available, including co-location opportunities, and a statement as to why these alternative sites or co-location opportunities were rejected." Butte County Code § 24- 180.11. Pursuant to the Telecommunications Act of 1996, a local jurisdiction must avoid taking any action on a wireless siting permit that"prohibit[s] or [has] the effect of prohibiting the provision of personal wireless services."47 U.S.C. § 332(c)(7)(B)(i)(11). Courts have found an "effective prohibition" exists where a wireless carrier has (1)a"significant gap" in wireless service coverage; and (2)that the proposed facility would provide the"least intrusive means," in relation to the land use values embodied in local regulations, to provide the service coverage necessary to fill that gap. See e.g.,Metro PCS, Inc. v. City and County of San Francisco,400 F.3d 715, 734-35 (9th Cir. 2005), abrogated on other grounds, T-Mobile S., LLC v. City of 9 #55050662_vl Butte County Board of Supervisors Page 10 Roswell, 135 S.Ct. 808 (2015);Sprint PCSAssets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009). If a wireless carrier satisfies both of these requirements, state and local standards that would otherwise be sufficient to permit denial of the facility are preempted and the municipality must approve the wireless facility. T-Mobile USA, Inc. v. City ofAnacories, 572 F.3d 987, 999 (9th Cir. 2009). When a wireless provider presents evidence of a significant gap and the absence of a less intrusive alternative,the burden shifts to the local government to prove that a less intrusive alternative exists. In order to meet this burden and overcome the presumption in favor of federal preemption,the local government must show that another alternative is available that fills the significant gap in coverage,that it is technologically feasible,and that it is"less intrusive"than the proposed facility.Id., 572 F.3d at 998-99. Here,AT&T has met both prongs of the test. The Radio Frequency Coverage Maps filed with AT&T's Application demonstrate that it has a significant service coverage gap and that the proposed facility is the least intrusive means to close that gap. In addition,this site is necessary for AT&T to meet its commitment to construct facilities to provide high-speed broadband internet service under the FCC's Connect America Fund, Phase 11. AT&T analyzed several properties in the area and concluded that there are no less intrusive sites that are actually available and technologically feasible. Specifically, AT&T analyzed the following candidate sites in the target coverage area: • 59 King Request Road, Oroville, CA 95966. AT&T analyzed this property, which is located approximately a quarter mile to the northeast from the proposed facility. AT&T radio frequency engineers determined that this site could not meet AT&T's coverage objectives as well as the proposed facility based on lines of sight,terrain, and existing vegetation. • 901 Mission Olive Road, Oroville, CA 95966. AT&T analyzed this property, which is located approximately more than a tenth of a mile to the west from the proposed facility. AT&T radio frequency engineers determined that this site could not meet AT&T's coverage objectives as well as the proposed facility based on lines of sight,terrain, and existing vegetation. • 11 Manzanella Court, Oroville, CA 95966. AT&T analyzed this property, which is located across the road to the north of the proposed facility. AT&T radio frequency engineers determined that this site could not meet AT&T's coverage objectives as well as the proposed facility based on lines of sight, terrain, and existing vegetation. • 46 Manzanella Court, Oroville, CA 95966. AT&T determined that this property is the best available,technologically feasible and least intrusive location for the proposed facility. AT&T radio frequency engineers determined that this location will allow AT&T to provide services to the greatest number of residents. • APN 028-320-007; 515 Dunstone Drive, Oroville, CA 95966.The Planning Commission requested AT&T to investigate this property following the first 10 #55050662_vl Butte County Board of Supervisors Page 11 Planning Commission meeting about this application. This property, which is located more than a mile to the southwest of the proposed facility, consists of more than 330 acres and is zoned AG-80. On review, AT&T determined that this location is not a technologically feasible solution to the coverage gap because it is too far from the target coverage area. • APN 028-420-020; 365 Dunstone Drive, Oroville, CA 95966. The Planning Commission requested AT&T to investigate this property following the first Planning Commission meeting about this application. This property, which is located about a mile to the northwest of the proposed facility, consists of approximately 97 acres and is zoned AG-40. On review, AT&T determined that this location is not a technologically feasible solution to the coverage gap because it is too far from the target coverage area. • APN 028-190-016. The Planning Commission requested AT&T to investigate this property following the first Planning Commission meeting about this application. This property, which is located along Oroville Bangor Highway more than three- quarters of a mile to the northeast of the proposed facility, consists of nearly 400 acres and is zoned AG-40. On review, AT&T determined that this location is not a technologically feasible solution to the coverage gap because it is too far from the target coverage area. Because AT&T's proposal is least intrusive,the Planning Commission's approval of AT&T's application complies with the Act. L The Proposed Telecommunication Facility Is Categorically Exempt and the County Went Above and Beyond What Is Required by CEQA in Preparing an MND. As we have raised with the County in the past,while the County prepared an MND for this proposed telecommunications facility, the case law discussed below supports the applicability of the CEQA Guidelines 15303, the Class 3 categorical exemption to this type of facility, and none of the exceptions to the exemption are triggered by the Project. This exemption applies even if the County prepares or considers additional CEQA review for a proposed approval. In California Farm Bureau Federation v. California Wildlife Conservation Board(2006) 143 Cal.AppAth 173, the court held that although the agency listed the project as exempt only under Class 13, this did not preclude the agency from asserting during litigation that Class 4 alternatively applied. Id. at 190-91. The California Supreme Court has also independently held, in Muzzy Ranch Co. v. Solano County Airport Land Use Commission(2007)41 Cal.4th 372,382,that an exemption applied even where the lead agency did not rely on exemptions when approving the project and in fact erroneously determined that there was no "project". Case law also informs us that an agency's decision to proceed with some level of CEQA review does not bar the agency from asserting in litigation that the action is exempt. Under the cases Rominger v. County of Colusa (2014) 229 Cal.AppAth 690, Del Cerro Mobile Estates v. City of Placentia(2011) 197 Cal.AppAth 173, and Santa Barbara County Flower& Nursery Growers Assn v. County of Santa Barbara(2004) 121 Cal.App.4th 864, if an agency prepares an EIR or other CEQA document, such as an MND, for an exempt project, the exemption is not waived, and the agency can defend a challenge to the 11 955050662_vl Butte County Board of Supervisors Page 12 adequacy of the document on the basis that the action was exempt. 1 Kostka & Zischke, Practice under the Cal. Environmental Quality Act (2d ed. 2015), § 5.124. The proposed wireless facilities fall within the Class 3 categorical exemption under the CEQA Guidelines, which applies to "the construction and location of limited numbers of new, small facilities or structures and installation of small new equipment and facilities in small structures." 14 California Code of Regulations § 15303(d). In Robinson v. City and County of San Francisco (2012) 208 Cal.AppAth 950, the court concluded that installation of numerous wireless communications facilities, each with antennas and equipment affixed to a utility pole and associated trenching, qualified for this CEQA exemption. Noting that this CEQA exemption has been applied to exempt construction of much larger buildings and structures, including buildings of up to 10,000 square feet in floor area,the court explained that wireless communications facilities "fit squarely within the ambit of Class 3 exemptions." Id. at 956. In addition, San Francisco Beautiful v. City and County of San Francisco (2014)226 Cal.AppAth 1012 held that installation of 726 above ground telecommunications cabinets and associated trenching throughout San Francisco was exempt under Class 3. In addition,the application of Class 3 exemptions has been upheld in several cases involving much larger facilities than those in the Project such as a 5,855 square foot retail/office building and the demolition of three existing buildings and construction of a new two-story, 15-bed psychiatric facility. Fairbank v. City of Mill Valley (1999) 75 Cal.AppAth 1243; Centinela Hospital Assn v. Didi Hirsch Psychiatric Service (1990) 225 Cal.App.3d 1586. The proposed structure is smaller than these cases and within the 10,000 square foot limitation on commercial structures and thus falls within the exemption. The facilities proposed also do not trigger any of the exceptions to the exemptions found in CEQA Guidelines Section 15300.2. The sites are not located in sensitive environments of hazardous or critical concern (such as an area zoned for a hazard or biological species). The facilities would not result in damage to a scenic resource and are not proposed within any state scenic highway. Moreover, no trees are being removed. The site is not listed in Section 65962.5 of the Government Code. The Project would not cause a substantial adverse change in the significance of any historical resources. There is nothing unusual about the site and wireless facilities are a common and widespread use. San Francisco Beautiful, 226 Cal.AppAth at 1025. Lastly, as discussed in the Robinson case"the cumulative impact exception applies only if the record contains evidence supporting a fair argument that potential future installations of similar equipment are likely to occur within visual or auditory range of an installation included in the j I project." Robinson,supra, 208 Cal.AppAth at 959. The proposed wireless facility will not be within the visual or auditory range of another facility so there are no cumulative impacts. Should the County be concerned that it needs to impose mitigation measures on this site, we recognize that mitigation measures cannot be used to make a project exempt under CEQA. However, several categorical exemption cases have articulated that requiring compliance with generally applicable conditions and regulations does not negate the applicability of the categorical exemption. In Walters, et al. v. City of Redondo Beach, et al. (2016) 1 Cal.App.5th 809, 823-24, the use of the Class 3 categorical exemption was upheld where the city applied a condition of approval to the project that required proof of compliance with local noise standards for a car wash and retail store. In Association for Protection of Environmental Values in Ukiah v. City of Ukiah (1991) 2 Cal.AppAth 720, 734-36, the court upheld the city's use of a categorical exemption that required compliance with local building code standards related to stormwater discharge. 12 #55050662_vl Butte County Board of Supervisors Page 13 In addition, in San Francisco Beautiful, supra, 226 Cal.AppAth 1012,the court upheld the use of a Class 3 categorical exemption for a wireless facilities project where the city applied generally applicable regulations as well as specific measures in a memorandum of understanding. The proposed telecommunications equipment was required to comply with numerous provisions in the Public Works Code and a Department of Public Works Order that limited the placement of surface-mounted facilities in the public right-of-way. Id. at 1032-33. Plaintiffs argued that these requirements constituted mitigation measures under CEQA and thus the facilities could not be considered exempt. Id. The court rejected appellants' arguments, holding that, "[a]n agency may rely on generally applicable regulations to conclude an environmental impact will not be significant and therefore does not require mitigation."Id at 1033. As is clear from these cases, compliance with generally applicable regulations is a legally mandated prerequisite, not a mitigation measure. Tracy First v. City of Tracy (2009) 177 Cal.AppAth 912, 932-34 holds that the agency could rely on the project's compliance with state building code standards for the conclusion that it would not have a significant energy impact and hence no mitigation was required.See also City of Petaluma v. Sonoma County(2014) 2014 WL 795657, 15 (reliance on compliance with federal and state Occupational Safety and Health Administration regulations to conclude that impacts related to the worker exposure to toxic air contaminants during operation would be less than significant upheld); Merced Alliance on Responsible Growth v. City of Merced(2012)2012 WL 5984917,25 (reliance on compliance with federal, state, and local laws that regulate the construction and use of storage tanks to conclude that impacts related to municipal water supplies would be less than significant upheld). This is also articulated in No Slo Transit, Inc. v. City of Long Beach(1987) 197 Cal.App.3d 241, 256, which states that unlike generally applicable regulations, "[m]itigation measures are suggestions which may or may not be adopted by the decision makers." The point of these cases is that "mitigation measures"that impose the same requirements as regulations can establish that there will not be significant impacts, but they do not have to be adopted as mitigation. They are independent, legally mandated requirements that apply regardless of whether they are imposed as mitigation measures. Mitigation measures are actions that reduce specific environmental impacts that the project would otherwise cause. Here, Mitigation Measure #1 relates to air quality, however, the dust control requirements are already applicable to the project through the Butte County Air Quality Management District (BCAQMD) rules. For example, BCAQMD Rule 205, Fugitive Dust Emissions, requires that any person conducting surface-disturbing activities implement specified, applicable best available control measures, such as requiring that construction vehicles limit speed to 15 miles per hour and that haul vehicles are covered prior to leaving the site. Thus, these measures are already generally applicable measures required through the air district's rules and can be imposed as conditions of approval. Mitigation Measures #2 and #3 relate to potential biological impacts and requires preconstruction nesting surveys for bird species, however, no habitat or species were identified within the site area and no trees will be removed by this Project. Thus,this mitigation measure is not addressing any specific site condition and is imposed as a standard requirement for preconstruction surveys to confirm the absence of nesting birds but there is no impact to actually mitigate. 13 455050662_0 Butte County Board of Supervisors Page 14 Mitigation Measure 44 relates to cultural resource though there were none found on this site. These measures are required by generally applicable regulations, and they must be implemented without the discretion of the County. The cultural resource measure regarding human remains listed in the MNDs (i.e., if human remains are unearthed, the Butte County Coroner must be notified immediately), is imposed by Health and Safety Code Section 7050.5, which requires notification of the county coroner upon discovery of human remains, and Public Resources Code Section 5097.98, which includes procedures to implement post-discovery of human remains. The cultural resources measure regarding subsurface cultural resources listed is already covered by the County's General Plan Policy COS-P15.1, which requires that development projects identify, protect, and preserve the resources by having them "examined by a qualified consulting archaeologist or historian for appropriate protection and preservation. Historic or prehistoric artifacts found during construction shall be examined by a qualified consulting archaeologist or historian to determine their significance and develop appropriate protection and preservation measures." Policy COS-P15.2 also applies, and requires that "Any archaeological or paleontological resources on a development project site shall be either preserved in their sites or adequately documented as a condition of removal. When a development project has sufficient flexibility, avoidance and preservation of the resource shall be the primary mitigation measure." Thus,the Project is already required to and will comply with these generally applicable policies. The biological resource, air quality and cultural resources measures have not been imposed to address particular, potentially significant impacts. As such, the Project is in fact categorically exempt from CEQA and no MND or mitigation measures were even required for the Project. AT&T appreciates the County's consideration of the appeal and hopes that you will deny it. If you have any questions regarding the site or why AT&T believes the appeal is without merit, please call me at 415-743-6947 to discuss. Sincerely yours, HOLLAND & KNIGHT LLP Isl Amanda J. 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