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August 5, 2009 > 'Hayward is not a dumping ground'

'Hayward is not a dumping ground'

By Simon Wong

Hayward City Council denied Salem Communications' application to erect four, 199 ft radio towers and construct a 1,216 sq. ft. transmitter building close to the City's shoreline on July 21. The application was originally submitted in April 2006.

The company, owner of radio station KNTS, wished to relocate its transmission facility to the edge of the City's industrial corridor next to the East Bay Regional Park District's (EBRPD) Hayward Regional Shoreline Park. The site itself is under the Hayward Area Shoreline Planning Agency's (HASPA) auspices.

The area already has several KFAX radio towers and PG&E pylons. The facility would replace the existing East Palo Alto KNTS antenna whose lease expires next year. Broadcasts would have reached more parts of Hayward, the East Bay and North Bay.

Salem Communications proposed a one-time payment of $5M to the City and lease payments of $60,000 per annum for 30 years to locate its towers on the West Winton closed landfill, owned by the City.

An environmental Initial Study and Mitigated Negative Declaration (IS/MND) were prepared as per the California Environmental Quality Act (CEQA).

EBRPD, HASPA, community members and State agencies commented on the Draft IS/MND. The Final IS/MND was released in May 2008 and re-circulated to the Council this April. Although HAPSA commented, the agency did not formally adopt a position on the project.

CEQA requires an environmental impact report (EIR) if significant impacts cannot be mitigated to less-than-significant levels. This project has no such impacts. EBRPD disagrees. An EIR would analyze alternatives, such as different sites. Council could issue a Statement of Overriding Consideration, if there were impacts that could not be mitigated.

Applications for conditional use permits are usually considered and approved by the Planning Commission and recommendations made to Council. The Council, however, must also consider the matter when City-owned land is to be used.

Although the Planning Commission voted 4-3 for the project in May 2008, Council considered four options - adopt the MND and approve the project; approve the application with minor changes; direct staff to prepare an EIR; deny the application.

Discussion centered on intended land use, public benefit and environmental impacts.

"This is one of the most comprehensive MNDs with which we've been involved. We agree with staff's conclusions regarding CEQA findings which we believe have fully addressed and analyzed potential impacts. Any additional data in an EIR is likely to be an alternatives analysis," said Salem Communications' Corporate Counsel Scott Hunter.

He requested that Council adopt the MND and approve the application without changes, given past approval for KFAX towers in 2001 pursuant to a MND. The KNTS towers are shorter and in slightly different locations.

"Typically, when upgrading or relocating an AM transmitter station, we must abide by Federal Communications Commission regulations and consider various options, such as co-location with the KFAX towers. We're in continual discussion with other operators but in the past three years we've not found a viable substitute location for this project," explained Hunter.

EBRPD strongly opposed the development. The City, Hayward Area Recreation & Park District (HARD) and EBRPD formed a partnership in 1977 to acquire and clean the shoreline and immediate vicinity after decades of landfill and industrial use. Having invested $20M in restoration, more than 50,000 people visit annually. Moreover, the property to be developed was acquired by the City with state and local park funds through the partnership to create a park.

Bob Doyle, EBRPD, acknowledged the presence of existing towers on private land and PG&E pylons, installed decades ago, and the City's desire to fund a new library but reminded Council the site is public land, acquired with public funds, intended for public use.

"We objected to the Russell City energy plant, also destined for this area. Staff and Citizens Advisory Commissioners found that project would impact the view shed significantly. A power plant was approved for "public betterment" during the energy crisis," said Doyle.

"The public betterment of the radio towers is a $5M payment to the City. There is no public benefit. This project is private use on public land purchased with public funds. EBRPD's obligation to its voters is to protect and enhance these rare shoreline jewels, not to devalue them with private development," he concluded.

"The preparation of a MND, in itself, shows an EIR is required before approving the project. An EIR would explore alternatives. The applicant may have considered alternative locations but an EIR would include the public in the process and further analyze impacts," argued Gabriel Ross, counsel for EBRPD.

"Staff concluded that the towers' visual impacts would be less-than-significant. Staff came to the opposite conclusion for the energy plant. When a difference of expert opinion exists, an EIR is required to resolve the difference.

"We've learned that construction equipment would be located in the shoreline parking lot. This is a staging area for ornithologists and other naturalists before setting off on their walks. They and other visitors would be impacted," added Ross.

Council voted 3-4 in favor of the project subject to an EIR and 4-3 to deny the application (a supplementary motion proposed by Councilor Francisco Zermeno) on July 21. A final 5-2 vote to deny the application was cast on July 28.

For more information about the Hayward Area & Recreational Park District, visit www.haywardrec.org

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