July 26 Zoom Meeting

Zoom Chat from the July 26, 2020 City of Tucson Utility Manual Meeting

The public was restricted from full participation: only allowed to watch and chat — no verbal comments from the public were allowed. This meeting was not made available to the public. We heard about this meeting from Fred Felix, whom we happened to have gotten the ears of the day before. The next morning was spent writing and calling offices to get into this meeting. During the 40 minute duration of this meeting all our questions were rebuffed.

Fred Felix, assigned with the management and creation of this document, introduced the purpose of this meeting:

“I’m not exactly sure what we are going to cover at this meeting other than since the last time we met we went over changes that we had made… to the manual and trying to address the many concerns and trying to answer as many questions making it a little bit clearer for everybody.”

Questions unrelated to the purpose of this meeting will not be addressed
-City Attorney Roi Lusk and TDoT Director Diana Alarcon

When will there be a public workshop before the manual is published?
*crickets*

10:29:32 — Paul G: Can we ask questions via chat?
10:30:06 — Diana Alarcon: Yes, questions can be asked via the chat.
10:30:15 — Diana Alarcon: Good Morning Danielle.
10:30:17 — Paul G: Thank you.
10:31:33 — Danielle Agee: Good morning all!
10:31:58 — Paul G: We know that the Council on Feb 23 voted to give direction to the City Manager and City Attorney to update the old Tucson Wireless Ordinance . . . why is Tucson doing a manual and not an Ordinance?
10:32:05 — Roi Lusk: Good morning!
10:32:33 — Diana Alarcon: This is the direction we are moving forward with
10:33:50 — Paul G: How is a “manual” the same as an ordinance?
10:35:37 — Diana Alarcon: Paul, We are moving forward with the manual to manage the work that will be allowed in our ROW
10:37:48 — Paul G: “Moving forward” and passing an ordinance are too different things. Only the latter is consistent with the Feb 23, 2021 City Council vote.
10:38:51 — Diana Alarcon: Thank you for your comment.
10:39:19 — Paul G: Cities have an obligation and duty to deliver conditions of ACTUAL public safety per the 1996 TCA and ARS HB-2365.
10:39:31 — Heidi Miller: so what is a manual? Is it a policy? Is it a code?
10:40:21 — Paul G: A manual is a publication; it is not a local law as it has not been voted on by the City Council.
10:41:22 — Paul G: In a government of the people, by the people and for the people, City staff CANNOT publish local laws without a City Council vote.
10:41:34 —Danielle Agee: Hi Diana. You mentioned sharing the industry comments with your legal team. Will the industry be able to discuss our concerns with your legal team directly?
10:41:58 — Roi Lusk: Hey Danielle, I am on and available for discussion if necessary
10:42:53 —Danielle Agee: Thanks, Roi. Did you receive the memo we sent or should I forward it to you?
10:43:17 — Roi Lusk: Just now…I have briefly reviewed but not gone line by line
10:43:46 — Heidi Miller: Mr. Lusk will you please answer Paul’s questions and mine?
10:44:27 — Roi Lusk: This meeting is for discussion of the manual…if you have specific questions about the contents of the manual feel free to put them in the chat and we will attempt to answer them
10:44:30 —Danielle Agee: Understandable, Roi. Can the industry schedule a call to go over the legal issues with you?
10:45:33 — Roi Lusk: Sure reach out to me offline and we can set that up.
10:45:44 —Chinwe Mary Okoye: How did the City determine the 150 ft and 300 ft distances for small cell location and neighborhood notice?
10:45:55 — Heidi Miller: Mr. Lusk these questions are for you: We know that the Council on Feb 23 voted to give direction to the City Manager and City Attorney to update the old Tucson Wireless Ordinance . . . why is Tucson doing a manual and not an Ordinance?
10:46:13 — Roi Lusk: This is not a question about the contents of the manual
10:46:29 — Heidi Miller: so what is a manual? Is it a policy? Is it a code?
10:46:39 — Paul G: Will the manual be voted on by the City Council before it gets “published”?
10:47:26 — Paul G: We are not sharing “concerns.” We are sharing only substance, facts and law.
10:47:27 — Heidi Miller: there was a vote?
10:47:47 —Melissa Bomar – Crown Castle: In regards to section 10.13 – if a utility uses existing irrigation and the plants end up dying, will the city be able to provide documentation that the plants were watered appropriately and it is not the utility’s responsibility to replace them?
10:48:18 — Heidi Miller: all utilities must comply with NEPA this manual contains no NEPA checks but records show they are needed according to federal NEPA requirements
10:48:57 — Paul G: Was the public consulted on lowering the notice radius from “larger” to 300 feet? What was the larger before it was reduced?
10:49:24 —Melissa Bomar – Crown Castle: I may have missed it in the manual but will you be providing your review times in writing somewhere (this includes flood control review)? An escalation path would be helpful too
10:49:39 — Heidi Miller: Can we set up a public workshop to gather public input before publishing?
10:50:20 —Chinwe Mary Okoye: Thank you for your response regarding the 150ft and 300ft.
10:50:41 — Heidi Miller: Mr. Lusk, please cite the code that gives the DOT full authority to implement public policy?
10:51:09 — Paul G: How does the manual balance the Mayor’s goal of planting and growing 1 million HEALTHY trees and the unnecessarily high levels of RF Electromagnetic Microwave Radiation (RF-EMR) that damage trees?
10:52:11 — Paul G: Can we consider in the manual what levels of RF-EMR are needed to provide effective telecommunications service and if that is compatible with healthy trees?
10:52:27 — Heidi Miller: Please describe the appeals process.
who is allowed to submit an appeal and who has final authority?
will evidence for appeals be contained in the public record?
10:52:43 — Heidi Miller: What is the process by which this manual gets approved for “publishing”? Who has the final say? City Manager? City Attorney? City Council?
10:52:52 — Heidi Miller: What does “publishing” the manual mean? How will any of this get enforced?
10:52:58 —Melissa Bomar – Crown Castle: I didn’t get an answer to the question – if a utility uses EXISTING irrigation and the plants end up dying, will the city be able to provide documentation that the plants were watered appropriately and it is not the utility’s responsibility to replace them?
10:53:35 — Paul G: Why are we allowing signal strength in areas accessible to people at anything higher than -85 dBm, a level the industry considers to be excellent coverage?
10:53:49 — Heidi Miller: Why was a Utility Manual chosen instead of an ordinance, which would require public input
10:54:21 —Wendell Nelson: Is that landscaping manual new or a change? Ones we have seen in the past have added many new requirements to folks who work in the ROW.
10:55:40 — Paul G: In Black’s Law Dictionary: public safety is defined as “the welfare and protection of the general public usually expressed as a governmental responsibility.” Can we add this to the manual, please?
10:55:46 — Heidi Miller: Who has final authority in approving or denying an application?
10:55:56 —Melissa Bomar – Crown Castle: Sorry, I didn’t clarify – I was referring to new plants that we had to replace
10:56:50 —Wendell Nelson: So…..It will be published without review by all impacted?
10:56:55 —Carlet Castro, Tucson Electric Power: Will we have a review and comment period for the new Landscape Manual?
10:57:03 — Paul G: The public’s critique and suggestions will be collecting here —> https://wireamerica.org/az/tucson-utility-manual/
10:57:41 — Paul G: Will we have a review and comment period for the new Utility Manual? If not, why not?
10:58:30 —Wendell Nelson: I was able to review changes in the past.
10:58:37 — Paul G: Will we have a review and comment period for the UPDATED Utility Manual? If not, why not?
10:58:57 —Adriana Mariñez: Diana – If not DTM, who is managing the update to the manual?
10:58:57 — Paul G: Diana, why are you ignoring these questions?
10:59:23 — Paul G: You are managing the Utility manual, Ms. Alarcon.
10:59:25 —Adriana Mariñez: yes, landscape manual
10:59:33 —Adriana Mariñez: Thank you.
10:59:46 — Heidi Miller: what about public review
10:59:50 — Paul G: SECOND ATTEMPT: Will we have a review and comment period for the UPDATED Utility Manual? If not, why not?
11:00:01 — Heidi Miller: Ms. Alarcon, please answer all questions in the chat
11:00:47 — Heidi Miller: we want to require proof of NEPA compliance
11:00:52 — Paul G: NEPA enforcement is optional for the City
11:00:59 — Roi Lusk: Questions unrelated to the purpose of this meeting will not be addressed
11:01:00 — Heidi Miller: NEPA regulates power
11:01:22 — Heidi Miller: When can we weigh on this?
11:01:57 — Heidi Miller: SO the public will not have a chance to influence policy?
11:02:16 — Heidi Miller: When will they be addressed?
11:03:14 — Heidi Miller: Did the state law removed public participation from policy? The state law requires an ordinance. Not a manual.
11:03:44 — Russ W.: Who has final authority to deny or approve a permit application? Who is allowed to submit an appeal? Is the appeal process part of public record?
11:04:32 —Melissa Bomar – Crown Castle: I have a question about asphalt restoration that would be easier to ask unmuted rather than via chat if possible.
11:05:08 — Heidi Miller: When will there be a public workshop before manual is published?
11:06:41 — Heidi Miller: Roi please answer: did the state law remove public participation from policy? (citation please) The state law requires an ordinance. Not a manual. Why is Diana citing the state law as it regards a manual when an ordinance is what is required.
An ordinance requires public input.
11:07:27 — Heidi Miller: and is this manual policy? is it code?
11:08:10 —Russ W.: I think he needs to unplug and plug in his mic
11:08:47 —fred felix: I get a message the host is not allowing
11:10:11 —Michael: I would suggest you put your specific questions in writing you believe were not answered and get them to Diana and her team. They will then prepare responses…
11:11:56 — Heidi Miller: Can Mr. Lusk please answer my last question above. I think everyone should know if this is a code or a policy and how it can be enforced. What does publishing a manual really mean?
11:12:28 —Melissa Bomar – Crown Castle: thank you. I may need to send a follow up email
11:12:33 —Wendell Nelson: In my understanding of Melissa’s example, we would have normally gone outside the roadway, still in ROW, but under the trees and landscaping.
11:13:27 — Heidi Miller: and those from residents?
11:13:31 —Chinwe Mary Okoye: Can we see Tucson Water’s comments?
11:13:35 — Heidi Miller: when will the manual be published?
11:13:43 —Adriana Mariñez: TEP will be submitting its latest redlines by the end of week. Thank you.

We have reached out to Diana Alarcon for a more focused meeting with us regarding the manual. Her staff offered days at the end of August. When is the Utility Manual going to be published?

We reached out to each City Council Member and the Mayor. We were able to meet with the Mayor’s staff, Vice Mayor and ward 2 Council Member Nikki Lee’s staff, and Paul Cunningham’s staff. See how those meetings went here

Dr. Witte followed up with this letter to the City Manager, Michael Ortega:

Letter_Ortega_July_28_2021_FINAL-1 Download

We will be following up again with the wards that did not respond, Ortega, who did not respond. If you would like to be part of these meetings in the future, or would like to support in other ways please email action@wiretucson.org.