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. Mr. Jerome Udz - 3 - November 8, 2004 IV. Variance Provisions A~TTVVS continues to be concerned that the proposed variance language is an inadequate safety valve for the prOposed school and residential sel+~acks. As proposed, a wireless carrier must demonstrate "to the city's satisfaction" that it "is unable to provide an aciec~uate level of telecommunications services to the proposer] service area and also comply with the setback requirements" to obtain a variance. The ambiguous and unsatisfactory nature of this language is demonstrated bythe conflicting opinions of expressed by Planning 5taft and others submitting comments regarding the proposed new language. Wireless opponents express concern that the proposed variance provisions will become the exception that swallows the rule, while wireless carriers anticipate that the standards will be interpreted strictly, making them virtually unmeetable. The proposed language should be significantly modified to provide greater clarity and less opportunity for the arbitral, use of discretion. ATTVV$ suggests that the City modify the proposed variance provisions i~ the following two ways. First, ATTVVS requests that the (;ity consider permitting exceptions from the setback provisions through an aclministratlve adjustment, rather t~an a variance, process. Second, A~-I'VV$ reiterates its recluest that the City modify the language of proposed EC 9.570(9)(c)(1) to read as follows: "That it is not possible for the proposed Wireless facility to satisfy its function within the applicant's wireless network and also comply with the setback requirements." This language takes into consideration quality, coverage and capacity demands. It would also require that the issue be evaluated within the context of the carrier's existing wireless network. Aq-FVVS urges the City to consider these revisions. Without such language, the City exposes itself to litigation not only from wireless carriers asserting that the setbacks constitute a prohi}3ition of service, but equally to lawsuits from anti-wireless citizens who will assert that the City has not applied its vague standards strictly enough. Both are likely avoida~D[e through tighter drafting. V. Third Party Technical Review As I explained in my August 24, 2004 letter, ATTWS does not object to paying the actual costs incurred by the City to hire an independent consultant to assist the City in reviewing its applications. The qualifications and scope of review for these independent consultants, however, needs to be spelled out more clearly in the wireless code, Specifically, the wireless code should provide that any independent consultant must be a qualified and licensed engineer mutually acceptable to both the City and the wireless applicant. Equally important, the consultant's scope of work should be limited to reviewing and verifying the wireless carrier's technical assertions - e.g., is there a gap in coverage or insufficient call capacity, and will the proposed facility resolve that issue, vv~thout such specificity, the technical consultant's review can morph from the review of a particular facility and how it fits within the wireless carrier's existing network, to an analysis of the efficacy the carrier's entire netwo~ design. This is not helpful to either the City ortho wireless carrier. We are in the process of formulating language addressing this issue and wild provide it to you later this week. Vi. Other Issues If the Ci~/is committed to amending its wireless code at this time, ATTW$ has several alternative suggestions to those currently proposed. In particular, A-CIRN5 requests that the 11/08/04 ~ON 10:43 [TX/RX NO 8271]