DATE: April 11, 2023
SUBJECT:
Title
ORDINANCE FINDING THE BOARD ACTION EXEMPT UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), INCLUDING, BUT NOT LIMITED TO, CEQA GUIDELINES SECTIONS 15301, 15302 AND 15303 AND AUTHORIZING AMENDMENT NO. 1 TO TIDELANDS USE AND OCCUPANCY PERMIT WITH NEW CINGULAR WIRELESS PCS, LLC APPROVING ADDITIONAL SMALL CELL SITE(S) FOR POTENTIAL INSTALLATION OF WIRELESS COMMUNICATIONS FACILITIES WITHIN THE PUBLIC RIGHT OF WAY
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EXECUTIVE SUMMARY:
New Cingular Wireless, PCS, LLC a Delaware limited liability company (New Cingular), a subsidiary of AT&T Mobility Corporation, has a Tidelands Use and Occupancy Permit (TUOP) with the District (see Attachment A). The term of the TUOP is 5 years with two 5-year extension options and conditionally grants New Cingular the requisite property rights to install small cellular wireless communications facilities (WCF) on two specific streetlights within the public right-of-way (PROW) on District tidelands.
WCF - the equipment and supporting structures used to provide wireless service - can take a range of forms, from large scale towers purpose-built to support numerous facilities, to small scale facilities often incorporated into or attached onto existing structures, such as streetlights. Recent advancements in wireless technology, namely “Fifth Generation” (commonly called “5G”) are often deployed as “small cells”, which are lower powered and smaller than typical WCF and are often deployed on streetlights, utility poles, or similar infrastructure in the PROW.
New Cingular has requested to amend their TUOP to add an additional location for the potential installation of a small cell WCF on a streetlight within the PROW located off North Harbor Drive, referred to as “Site 3”, and to relocate “Site 2” (as currently set forth on Exhibit A to the TUOP) off Kettner Boulevard to a new streetlight across the street due to better undergrounding power availability at the new site (each site, a “Pre-Selected Site”) (see, Attachment B).
With Board of Port Commissioners’ (Board) approval, the TUOP will be amended by deleting the existing Exhibit A in the TUOP and inserting in its place an updated Exhibit A with the new Pre-Selected Sites (as defined in the TUOP) (see Attachment B). All other terms, covenants, and conditions of said TUOP shall remain in full force and effect.
Staff is requesting the Board adopt an Ordinance granting Amendment No. 1 to the TUOP with New Cingular by deleting Exhibit A in the TUOP in its entirety and inserting in its place an updated Exhibit A adding the two additional Pre-Selected Sites for potential installation of small-cell WCFs.
RECOMMENDATION:
Recommendation
Adopt an Ordinance granting Amendment No. 1 to the Tidelands Use and Occupancy Permit with New Cingular Wireless PCS, LLC approving additional small cell site(s) for potential installation of wireless communications facilities within the public right of way.
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FISCAL IMPACT:
If approved, this Board action will result in total revenue to the District of $4,617 over the initial 5-year period of the TUOP. The amount of rent that may be charged for sites located within the PROW is limited by law to the recovery of the District’s reasonable costs.
The total revenue generated from Sites 1, 2 and 3 for the initial five-year period is as follows:
Compass Strategic Goals:
This agenda item supports the following Strategic Goal(s).
• A financially sustainable Port that drives job creation and regional economic vitality.
DISCUSSION:
Upon satisfaction of various conditions, the TUOP grants New Cingular real estate rights to install, construct, maintain, repair, operate, and remove various communications equipment on specific light poles located within the PROW. New Cingular has requested the TUOP be amended to add an additional location for the potential installation of small-cell WCF on a light pole within the PROW located off North Harbor Drive, referred to as “Site 3”, and to relocate “Site 2” currently located off Kettner Boulevard to across the street. Each of the sites will constitute a Pre-Selected Site under the TUOP. Prior to making any installations on any of the Pre-Selected Sites, New Cingular must first obtain all requisite permits and approvals required under Port Code Article 15 - Regulation of Wireless Communication Facilities on District Tidelands, as well as under all other applicable laws with respect to any Pre-Selected-Site, after which it becomes an “Activated Site” under the TUOP available for installations. Prior to a Pre-Selected Site becoming an Activated Site available for installations, New Cingular has no right to use the Pre- Selected Site and the District is free to grant to third parties rights to the same location.
Upon any Board approval, the Exhibit A currently attached to the TUOP will be amended and restated in its entirety with the form of Exhibit A attached as Attachment B to this agenda sheet. In order to continuing timely processing requests to install WCF on District Tidelands, staff recommends that the Board approve the amendment to allow for the amendment and restatement of Exhibit A to the TUOP with New Cingular Wireless.
General Counsel’s Comments:
The Office of the General Counsel has reviewed this agenda sheet and the attachments as presented to it and approves the same as to form and legality.
Environmental Review:
The proposed Board action, including without limitation, an ordinance amending a TUOP with New Cingular Wireless PCS, LLC approving additional small cell site(s) for potential installation of wireless communications facilities within the Public Right of Way, is Categorically Exempt pursuant to California Environmental Quality Act (CEQA) Guidelines Sections 15301 (Existing Facilities), 15302 (Replacement or Reconstruction), and 15303 (New Construction or Conversion of Small Structures) and Sections 3.a.(7), 3.b.(2), and 3.c.(3) of the District’s Guidelines for Compliance with CEQA because the project would consist of the installation of or modification to small cell site(s) that would involve replacement or modification to an existing facility. The District has determined none of the six exceptions to the use of a categorical exemption apply to this project (CEQA Guidelines Section 15300.2).
The proposed Board action complies with Section 87 of the Port Act which allows for the construction, reconstruction, repair, and maintenance of highways, streets, roadways, bridges, belt line railroads, parking facilities, power, telephone, telegraph or cable lines or landings, water and gas pipelines, and all other transportation and utility facilities or betterments incidental, necessary, or convenient for the promotion and accommodation of any of the uses set forth in this section. The Port Act was enacted by the California Legislature and is consistent with the Public Trust Doctrine. Consequently, the proposed Board action is consistent with the Public Trust Doctrine.
The proposed Board action is considered excluded development pursuant to Sections 8.a.(2) (Existing Facilities), 8.b(2) (Replacement or Reconstruction), and 8.c.(2) (New Construction or Conversion of Small Structures) of the District’s Coastal Development Permit Regulations because the project would consist of the installation of or modification to small cell site(s) that would involve replacement or modification to an existing facility. If the Board approves this action, District staff would notify California Coastal Commission (CCC) staff in accordance with Coastal Act Section 30717. The approval would become effective after the 10th working day after notification to CCC staff unless an appeal is filed with the CCC within that time frame.
Diversity, Equity, and Inclusion Program:
This agenda sheet has no direct DEI impact on District workforce and contract reporting at this time.
PREPARED BY:
Andrea Ormerod
Program Manager, Real Estate
Attachment(s):
Attachment A: TUOP
Attachment B: Exhibit A