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AGENDA BILL Agenda Item No. 6 Date: August 20, 2013 To: El Cerrito City Council From: Sean Moss, Senior Planner Margaret Development Services Manager Subject: Appeal of the Planning Commission’s Approval of a Conditional Use Permit to Allow a Wireless Telecommunications Facility on an Existing Utility Pole near 851 Seaview Drive. RECOMMENDATION Conduct a public hearing and upon conclusion adopt a resolution denying an appeal of the Planning Commission’s approval of a Conditional Use Permit to allow a wireless telecommunications facility on an existing utility pole near 851 Seaview Drive. BACKGROUND On January 10, 2013 New Cingular Wireless PCS, LLC doing business as AT&T Mobility submitted applications for six wireless telecommunications facilities on existing utility poles in the City of El Cerrito. Planning staff reviewed the applications with the City Attorney and determined that pursuant to El Cerrito Municipal Code Chapter 19.28: Wireless Telecommunications Facilities , that both a Conditional Use Permit and Design Review were required to allow the applications. In order to allow the bodies of decision to consider each separate location on its own merits, each location was treated as a separate application. The staff reports for both the Design Review Board and the Planning Commission discussed all of the locations in one report to avoid excessive duplication but each site received its own findings and each had its own resolution. On February 8, 2013, City staff sent a letter to the applicant advising them that the application was incomplete. On March 5, 2013, the applicant submitted additional materials, including more detailed propagation maps and fees for the required Design Review, to resolve deficiencies in the application. On April 4, 2013, the application was determined to be complete. On May 1, 2013, the Design Review Board conducted Preliminary Conceptual Review of the applications. The El Cerrito Zoning Ordinance specifies that applications which require both Planning Commission and Design Review Board consideration must first be presented to the Design Review Board for Preliminary Conceptual Review. At this meeting, the Board does not make a formal decision or recommendation but rather gives comments which are forwarded to the Planning Commission for consideration. ---PAGE BREAK--- Agenda Item No. 6 Page 2 On May 13, 2013, the applicant withdrew one application for one wireless telecommunication facility. On June 19, 2013, the Planning Commission held a public hearing, took public testimony and after a thorough consideration of the facts in evidence and the comments received, acted to approve each of the five applications. In each case, the Planning Commission made all of the required findings in Section 19.34.040(A) of the El Cerrito Zoning Ordinance (general findings for Conditional Use Permits) as well as the required findings in Section 19.28.060 for wireless telecommunications facilities. Please see attached staff report and resolution. On July 1, 2013, the Planning Commission’s approval of the application near 851 Seaview Drive was appealed to the City Council by Chong Jin Lee, Diana Inchauspe, David Zemanek, Richard and Paulina Lee and Bill Fingado. Although not part of the consideration of the appeal itself, it should be noted that on August 7, 2013, the Design Review Board held a public hearing, took public testimony and after a thorough consideration of the facts in evidence and the comments received, acted to deny design review approval for the four other applications. CONTEXT OF PLANNING COMMISSION DECISION Federal Telecommunications Act The regulation of wireless telecommunications facilities by local jurisdictions is governed by the Federal Telecommunications Act of 1996 as well as by local ordinance. The Telecommunications Act prevents local jurisdictions from “prohibit[ing] or hav[ing] the effect of prohibiting the provision of personal wireless services.” In addition, the Act states that cities “shall not unreasonably discriminate among providers of functionally equivalent services.” Under the Act, the City must allow all wireless providers a means of providing coverage to El Cerrito. This does not mean that if the City permits AT&T to install DAS nodes on utility poles that the City would be required to waive the public review process for the similar sites of other wireless providers. Any future proposals for wireless telecommunications facilities would be subject to the public process stipulated in Chapter 19.28 of the El Cerrito Municipal Code. The Telecommunications Act also prohibits cities from regulating wireless telecommunications facilities based on the health effects or concerns. The Act states, “no State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning such emissions.” El Cerrito General Plan All development projects are reviewed in the context of the goals of the El Cerrito General Plan. The Planning Commission found that the proposed project would implement the following policies of the General Plan: LU4.2: Availability of Goods and Services, CD5.1: Design Review Process, CD6: Affordable Commerce, PS3.3: Upgrading Infrastructure. In addition to upgrading the City’s communication ---PAGE BREAK--- Agenda Item No. 6 Page 3 infrastructure for residents, the proposed facility will provide infrastructure necessary for many home based businesses and will enhance the opportunity for these businesses to establish near the facility, consistent with the goals of the General Plan. El Cerrito Zoning Ordinance Within the regulatory framework of the Telecommunications Act, the City of El Cerrito has two sections of the municipal code that apply to this application. Section 19.34.040(A) states the findings required whenever a Conditional Use Permit is analyzed. In addition, Section 19.28 of the municipal code specifically pertains to the regulation of wireless telecommunications facilities. As stated in the Planning Commission staff report and associated resolution and as noted below, the Commission approved the applications based on the following findings stated in both sections of municipal code. Section 19.34.040(A) Use Permit Findings 1. The location, size, design, and operating characteristics of the proposed development will be harmonious and compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. The proposed wireless telecommunications facility will be located on existing utility poles and is compatible with the surrounding properties and will not adversely affect the livability or development of surrounding properties. 2. The location and design of the proposal will provide a convenient and functional living, working, shopping, or civic environment that will be an attractive amenity for the City. The proposed wireless telecommunications facility will provide 4G LTE wireless service to the southern portion of El Cerrito, improving the convenience of the living and working environments. 3. The proposal is consistent with the purposes of the district where it is located and conforms in all significant respects with the El Cerrito General Plan and with any other applicable plan adopted by the City Council. The project is consistent with the El Cerrito General Plan. There are no other relevant adopted plans. Section 19.28.060(A) General Finding Required of Wireless Telecommunication Facilities: 1. The proposed use conforms with the specific purposes of this Chapter and any special standards applicable to the proposed facility. The proposed facility conforms with the standards of Chapter 19.28: Wireless Telecommunications Facilities of the El Cerrito Municipal Code. 2. The applicant has made good faith and reasonable efforts to locate the proposed wireless facility on a support structure other than a new ground-mounted antenna, monopole, or lattice tower, or to accomplish co-location. The applicant currently operates facilities at El Cerrito Plaza and 6830 Stockton Avenue. There are limited structures in the southern portion of El Cerrito that can ---PAGE BREAK--- Agenda Item No. 6 Page 4 accommodate new facilities. The applicant identified alternative sites and found them to be less desirable from both coverage and aesthetic perspectives. 3. The proposed site results in fewer or less severe environmental impacts than any feasible alternative site. The proposed site (on top of existing utility poles) limit the visual impacts of the facilities. The project is exempt from review under the California Environmental Quality Act. 4. The proposed facility will not be readily visible, or it is not feasible to incorporate additional measures that would make the facility not readily visible as defined in Section 19.28.040. The location of the proposed facility is within the public right of way. It is incorporated onto existing utility poles. It is not feasible to limit their visual impact. Sites that would enable the facilities to be not readily visible are limited in this portion of El Cerrito. Section 19.28.060 Additional Findings for Facilities in a Residential Zone. To locate a facility in a residential zoning district where it is readily visible from the habitable area of a dwelling unit within 300 feet, or at any location where it is readily visible from a public right-of-way, public park, or other public recreation or cultural facility, the decision maker shall find that: 1. It is not feasible to provide the service at another location; or to incorporate additional measures such as a decrease in height, increase in setback, change in design, relocation relative to other structures or natural features, that would further reduce its visibility; and The applicant operates wireless telecommunications facilities at El Cerrito Plaza and 6830 Stockton Avenue. The topography of this portion of El Cerrito provides coverage challenges. The proposed facility will extend the existing utility pole to the minimum height required for separation from existing utilities and to provide coverage. 2. The proposed facility provides an important link in the applicant's service area build- out and is necessary to provide personal wireless services to city residents. The proposed facility is necessary to provide coverage to the southern portion of El Cerrito. Development Proposal The proposed wireless facility near 851 Seaview Drive is part of a proposed Distributed Antenna System (DAS) network in the East Bay Hills. AT&T is currently processing applications for other portions of the network in the Cities of Oakland and Berkeley as well as Contra Costa County (Kensington). DAS networks typically consist of lower powered nodes connected to a common connection point. However, each of the proposed DAS nodes will be connected to AT&T’s existing fiber optic infrastructure at the site of each pole. Distributed antenna systems are often utilized in indoor areas, such as shopping malls and sports arenas, where coverage poses challenges. ---PAGE BREAK--- Agenda Item No. 6 Page 5 The applicant currently operates wireless telecommunications facilities at El Cerrito Plaza, the church at 6830 Stockton Avenue, and the Super 8 Motel at 6009 Potrero Avenue. Despite these facilities, the applicant has noted that the topography of the East Bay hills presents coverage challenges. The applicant has decided to pursue a DAS network as a way to provide more consistent coverage in the hills. The proposed nodes will provide both voice and data signals using 3G and 4G LTE technology. The applicant has provided propagation maps that show coverage gaps in the area. Locations for additional wireless telecommunications in the portion of El Cerrito where this facility is proposed are limited. The area is almost exclusively residential, with the exception of public facilities such as Huber Park and El Cerrito High School and the small commercial district at the end of Fairmount Avenue. The DAS node is proposed to be located on top of the existing utility pole through the use of a 7-foot extension. The two proposed antennas would be approximately 2 feet tall and would be mounted at the top of the pole extension. The top of the antennas would sit approximately 3 feet above the top of the pole. The complete installation would therefore increase the height of the pole by 10 feet. All equipment for the facility would be mounted on the pole. No equipment is proposed to be ground mounted. Photos of the existing utility pole near 851 Seaview Drive. ---PAGE BREAK--- Agenda Item No. 6 Page 6 Photo Simulation of the proposed facility near 851 Seaview Drive APPEAL The appellants submitted a ten page appeal. Please see attachment 2 for full text. A summary is outlined below in bold. Staff has provided a response after each point stated by the appellant. 1. The antennae are not to serve the residents in the vicinity but for relaying signals up the hills. The City of El Cerrito staff must rely on the applicant to respond to technical discussion points. The applicant has informed staff that although AT&T is seeking to deploy DAS across a large portion of the East Bay Hills, each DAS node would function as an independent site providing wireless coverage to its immediate area. The proposed nodes do allow calls from moving vehicles to transition from one facility to another, just as the macro installations do. 2. Alternative installation methods are available and AT&T is aware of them. See response to comment 3. 3. AT&T Cingular should pursue relaying signals from the closest optic fiber base station and the most direct route up the hills through less densely populated area using halfmast installation method. The applicant is responsible for submitting the most suitable installations to fulfill the needs of their particular telecommunications company’s need to serve their clients in the city. And, as part of the initial review of any wireless ---PAGE BREAK--- Agenda Item No. 6 Page 7 telecommunication’s application, staff discusses each application with the applicant to identify the least intrusive method of constructing any installation. To that end, there are many telecommunication installation sites throughout the city that are invisible to the public. In support of that policy, the Zoning Ordinance establishes a much simpler non-discretionary process for applications that are not visible. The appellants note that in the neighboring community of Kensington, some of the installations are mounted halfway down the utility pole. In this example, AT&T revised the initial submittal, for sites where it was feasible (2 of 6 sites), to lower the elevation of the antenna on the pole. The antenna projects off the side of the pole below the existing PG&E lines. The California Public Utilities Commission (CPUC) requires a minimum separation of 6 feet between the proposed DAS antennas and the existing PG&E lines. The applicant has informed staff that the height of the antennas at the site in question (as well as the other five installations that are not a part of this appeal) are as low as possible and still meet mandated separation requirements and their goal of providing the needed coverage. 4. The immediate impact of the proposed antennae extended on top of a utility pole will ruin the view from the hills, inevitably destroying property value. Lower property value will result in a loss of property taxes to the City. None of the findings required by the municipal code for wireless telecommunications facilities identify property values as a specific item to be considered in making a decision. The potential for aesthetic and safety impacts of wireless telecommunications facilities to decrease property values is recognized in the applicable case law as a legitimate basis for concluding that a proposed project would negatively affect the public health, safety, and welfare. Such a conclusion could support a determination by the City Council that it is unable to make some of the findings required by the municipal code. The applicable case law also instructs, however, that such a conclusion must be based upon substantial evidence in the record. Substantial evidence is less than a preponderance but more than a “scintilla.” Moreover, the evidence cannot consist solely of speculation or the assertions of individuals without the expertise or experience necessary to form valid conclusions. Thus, the City Council must consider how much weight to give to the opinions expressed by the appellants regarding the effect of the proposed facility on nearby property values, as well as any contrary evidence in the record for the hearing, including this staff report and any potential opinions provided by technical experts. Staff researched this issue and were unable to identify any existing study that provided conclusive evidence that DAS antennas have a negative impact on property values. Further, the appellants have presented a hypothetical regarding the effects of a decrease in property values resulting from the proposed facility, but their letter does not contain evidence that such a decrease would occur. Therefore, the City Council should consider what weight to give the evidence in the record regarding this issue. If it finds that there is evidence in support of both positions, it may at its discretion determine which position it believes is better supported. If the City ---PAGE BREAK--- Agenda Item No. 6 Page 8 Council bases its decision in part on this issue, the City Council must identify the evidence in the record in support of its conclusion and explain the “analytical bridge” that connects the evidence to the conclusion that it can or cannot make the necessary findings. The City Council is not required to reach any conclusion regarding property values, however. It may base its decision on whether there is substantial evidence in the record regarding other issues that supports the City Council’s ability to make or not make the required findings for the proposed facility. The issue of the damage of the view from the hills was discussed by the members of the Planning Commission. It was noted in the meeting that many Commissioners as well as staff had visited the utility pole near 851 Seaview Drive and felt that while the installation would not be visually pleasing, it did not appear to substantially block the view of any dwelling. No Commission member or staff person had the opportunity to view the pole from the inside of adjacent residences. 5. The Kensington Planning Commission has denied the applications as of February 2013. As a result, Cingular has now reduced its plan to install antennae in Kensington. Cingular has now proposed to place a macro tower in El Cerrito to reduce the number of antennae in Kensington. It is true that a new application has been made to the City of El Cerrito to add a macro tower on the top of the Moeser corridor. It is also true that that AT&T has reduced its number of proposed sites in the unincorporated community of Kensington. While these two facts are concerning, they have no impact on the decision of the Planning Commission that is the subject of this appeal. 6. The antennae violates the City of El Cerrito’s wireless ordinance, specifically section 19.28.040. Chapter 19.28 of the El Cerrito Municipal Code establishes the requirements for wireless telecommunications facilities in the City of El Cerrito. Section 19.28.040 of the Municipal Code states, “all wireless telecommunications facilities subject to this Chapter shall be located, developed, and operated in compliance with the following standards unless the Zoning Administrator or the Planning Commission approves a Use Permit subject to the findings in Section 19.34.040(A).” As previously stated, Planning staff, upon reviewing the application with the City Attorney, determined that the application required both approval of a Conditional Use Permit by the Planning Commission as well as Design Review Board approval. The Planning Commission’s June 19th Conditional Use Permit approval made the findings contained in Section 19.34.040(A) for the application. Since the Planning Commission approved a Use Permit subject to the findings in Section 19.34.040(A), the additional standards in Section 19.28.040 are not applicable. ---PAGE BREAK--- Agenda Item No. 6 Page 9 7. Insufficient time was given to this matter and the due process from the public hearing to the Planning Commission decision was unclear to the residents as compared [to] the Contra Costa procedure. Public study should be conducted. Contra Costa County and the City of El Cerrito have different paths for the review of discretionary projects. AT&T submitted applications for 9 wireless DAS nodes for Kensington to Contra Costa County in January. As an unincorporated community, land use decisions in Kensington are made by the Contra Costa County Planning Commission. The Commission is composed by one member appointed by each County Supervisor from his/her district and two members appointed by the Board of Supervisors at-large. Kensington also has a county advisory body called the Kensington Municipal Advisory Council (KMAC) which makes advisory recommendations to the Planning Commission. In February, the KMAC considered the applications and recommended that the Planning Commission deny all of the applications. The applicant subsequently revised the applications to withdraw three nodes and determined that for two of the proposed nodes, it was feasible to propose antennas mounted to the side of the utility poles. The KMAC considered the revised applications on July 30, 2013. The Committee recommended that the Planning Commission approve the two revised side-mounted installations and recommended that the Commission deny the remaining four applications. The Planning Commission has not yet considered the applications. When City staff last spoke with County staff, the applications had not been scheduled for a Planning Commission meeting. As a separate jurisdiction from the county, the City of El Cerrito is governed by its own municipal code. Section 19.32.050 of the El Cerrito Municipal Code stipulates the required legal noticing requirements for public hearings held by the Planning Commission. All the legal noticing requirements for the Planning Commission’s public hearing of June 19th were met. The notice was mailed to all property owners within 300 feet of the subject utility pole on June 6, 2013 and appeared in the West County Times on Friday, June 7, 2013. In addition, pursuant to section 19.32.050(D) of the Municipal Code, the Zoning Administrator may require notice of the public hearing in addition to what is normally required. In this case, because the proposed sites are within the public right-of-way and therefore do not have addresses or parcel numbers, staff posted hearing notices on the subject poles so that they were readily identifiable to the public. ---PAGE BREAK--- Agenda Item No. 6 Page 10 A photo showing the public notice of the Planning Commission hearing posted on the pole. 8. Most families are concerned with electromagnetic field. The antennae will stand as a constant reminder of EMF. It will create a tremendous mental stress to the families. We included a signed petition of 28 families in the vicinity. It is not unusual that members of the public have concerns regarding the possible health effects of wireless communication equipment. However, as stated above, the Telecommunications Act prohibits cities from regulating wireless telecommunications facilities based on health effects or concerns. The Act states, “no State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communication] Commission's regulations concerning such emissions.” 9. El Cerrito stands to lose as Cingular has revised its plan for Kensington. See comment in response to comment 5. Improper use of a Categorical Exemption under CEQA Although not part of the formal appeal, staff has received comments regarding the possible improper use of a Categorical Exemption to CEQA. Staff felt that adding this discussion to the appeal report might assist the Council members in their deliberations. The basic charge that staff has heard is that the project has been “piecemealed” by the city and the applicant. Since the city processed five applications for wireless devices at the same time, the charge maintains that all of the devices should be considered as part of an overall project for CEQA purposes. Staff also believes that ---PAGE BREAK--- Agenda Item No. 6 this line of questioning is related to a possible concern that the cumulative effects of these applications are being ignored. In an unpublished opinion in 2012, the California Court of Appeal considered a similar charge arising from the approval of approximately 40 wireless facilities to be attached to existing utility poles throughout San Francisco. (Robinson v. City and County of San Francisco). Because the decision is unpublished, it is not citable as precedent, but the facts are similar to the current matter and therefore the ruling is instructive. In its ruling the court disagreed with the residents and upheld the city's determination that all of the facilities included in the telecommunication company project fell within a categorical exemption to CEQA which applies to the construction, installation, or conversion of a limited number of small facilities; structures or equipment. (14 California Code of Regulations § 15303(d).) Further, when a project is categorically exempt, the court confirmed, no environmental review is necessary and the·· project may proceed without any CEQA analysis or compliance whatsoever. Finally, the court acknowledged that_ the exemption must be denied if a -"fair argument" can be made that the cumulative impact of successive installations "of the same type in the same place" will result in a significant adverse environmental impact. However, the court concluded, unless there is a fair argument that future installations will be located within the "sensory range" of other similar equipment, the court said, "the categorical exemption here is not negated by the cumulative impact exception." Staff does not believe that there is evidence in the record to support such an argument. CALIFORNIA ENVIRONMENTAL QUALITY ACT COMPLIANCE Pursuant to the California Environmental Quality Act (CEQA), this Conditional Use Permit, involving a wireless telecommunication facility on an existing utility pole, is considered exempt from environmental review under section 15303: Categorical Exemption Class 3: New Construction or Conversion of Small Structures. Reviewed by: Scott Hanin, City Manager Page 11 ---PAGE BREAK--- Agenda Item No. 6 Page 12 Attachments: 1. Proposed Resolution denying the appeal 2. Application PL13-0006 including application form, applicant’s project description, propagation maps, photo simulations, and public notification list. 3. Appeal Letter from the appellants dated July 1, 2013 4. Planning Commission Staff Report for application PC13-0006 5. Planning Commission Resolution PC13-09. 6. Plans 7. Alternative Site Analysis for site near 851 Seaview Drive provided by the applicant in response to city staff request ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 1 RESOLUTION 2013–XX A RESOLUTION OF THE EL CERRITO CITY COUNCIL DENYING AN APPEAL OF THE PLANNING COMMISSION’S APPROVAL OF A CONDITIONAL USE PERMIT TO ALLOW A WIRELESS TELECOMMUNICATIONS FACILITY ON AN EXISTING UTILITY POLE NEAR 851 SEAVIEW DRIVE. WHEREAS, on January 10, 2010, the applicant submitted an application for a Conditional Use Permit to allow a wireless telecommunications facility on an existing utility pole near 851 Seaview Drive; and WHEREAS, the General Plan land use classification of the site is Low Density Residential; and WHEREAS, the zoning district of the site is RS-5 (Single Family Residential); and WHEREAS, the project is located in the public right-of-way near 851 Seaview Drive; and WHEREAS, the project is categorically exempt form the California Environmental Quality Act pursuant to Section 15303: New Construction or Conversion of Small Structures; and WHEREAS, on June 19, 2013, the Planning Commission held a duly noticed public hearing, received public testimony and adopted Resolution PC13-09, approving a Conditional Use Permit to allow a wireless telecommunications facility on an existing utility pole near 851 Seaview Drive, pursuant to the findings in Sections 19.34.040 and 19.28.060 of the El Cerrito Municipal Code; and WHEREAS, on July 1, 2013, an appeal of the Planning Commission’s approval of the Conditional Use Permit was filed at City Hall; and WHEREAS, on August 20, 2013, the City Council held a duly noticed public hearing to consider the appeal; and WHEREAS, based upon the evidence presented in the record on this matter, including the staff report and oral and written testimony and the proceedings before the Planning Commission, the Council has considered the appeal. NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of El Cerrito finds that: 1. The facility is proposed on top of an existing utility pole. The existing pole is harmonious and compatible with the surrounding neighborhood and does not impact adjacent properties. The project will add additional utilities to an existing pole. The project is therefore compatible with the neighborhood. The project will not impact the livability or development of adjacent properties. 2. The proposed wireless telecommunications facility will improve wireless voice and data coverage to the area using 3G and 4G LTE technologies. The facility will therefore provide a functional and convenient living, working and shopping environment for El Cerrito. ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 2 3. The project is consistent with all requirements of the RS-5 zoning district. The project will implement the following policies of the El Cerrito General Plan: LU4.2: Availability of Goods and Services, CD5.1: Design Review Process, CD6: Affordable Commerce, PS3.3: Upgrading Infrastructure. 4. The facility conforms with the requirements of Chapter 19.28: Wireless Telecommunications Facilities of the El Cerrito Municipal Code. 5. The applicant currently operates facilities at El Cerrito Plaza and 6830 Stockton Avenue. There are limited structures in the southern portion of El Cerrito that can accommodate new facilities. The applicant identified alternative sites and found them to be less desirable from both coverage and aesthetic perspectives. 6. The proposed site (on top of an existing utility pole) limits the visual impact of the facility. The proposed antennas are smaller than those of traditional macro wireless telecommunications facilities, limiting the visual impact. The project is exempt from review under the California Environmental Quality Act. 7. The location of the proposed facility is within the public right-of-way. It is incorporated onto an existing utility pole. It is not feasible to limit the site’s visual impact. Sites that would enable the facilities to be not readily visible are limited in this portion of El Cerrito. 8. The applicant operates wireless telecommunications facilities at El Cerrito Plaza and 6830 Stockton Avenue. The topography of this portion of El Cerrito provides coverage challenges. The proposed facility will extend the existing utility pole to the minimum height required for separation from existing utilities and to provide coverage. 9. The proposed facility is necessary to provide consistent wireless coverage to the southern portion of El Cerrito. After careful consideration of facts, correspondence, and testimony, and other evidence submitted in this matter, the El Cerrito City Council hereby denies the subject appeal of the Planning Commission’s approval of a Conditional Use Permit to allow a wireless telecommunication facility on an existing utility pole near 851 Seaview Drive. I CERTIFY that at a regular meeting on August 20, 2013, the El Cerrito City Council passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on August XX, 2013. Cheryl Morse, City Clerk ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 3 APPROVED: Gregory B. Lyman, Mayor ---PAGE BREAK--- Agenda Item No. 6 Attachment 2 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- Agenda Item No. 6 Attachment 3 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005 - AT&T DAS Network\PL13-0006-10 - PC Staff Report.doc Page 1 of 5 Environmental and Development Services Department - Planning Division 10890 San Pablo Avenue, El Cerrito, CA 94530 (510) 215-4330 - FAX: (510) 233-5401 [EMAIL REDACTED] PLANNING COMMISSION STAFF REPORT Meeting Date: June 19, 2013 I. SUBJECT Application: PL13-0006 – PL13-0010 Applicant: New Cingular Wireless PCS, LLC Location: Public Right of Way near 851 Seaview Drive, 906 Balra Drive, 762 Colusa Avenue, 7800 Eureka Avenue, and 202 Seaview Drive APN: Public Right-of-Way Zoning: RS-5 (Single Family Residential) General Plan: Low Density Residential Request: Planning Commission consideration of conditional use permits to allow five wireless telecommunications facilities on existing utility poles. CEQA: Categorically Exempt, Section 15301 – Class 1, Existing Facilities. II. BACKGROUND On January 10, 2013 New Cingular Wireless PCS, LLC, doing business as AT&T Mobility submitted six applications for wireless telecommunications facilities at the locations of existing utility poles in the southern portion of El Cerrito. On May 23, 2013, the applicant withdrew one application near 859 Gelston Place. The remaining five applications are proposed as part of a distributed antenna system (DAS) that will cover a large portion of the East Bay hills. The applicant is currently processing applications in Oakland, Berkeley, and Kensington for other portions of the network. The Design Review Board conducted Conceptual Review of the project at their May 1 meeting. The DRB comments generally centered around the aesthetic of the existing poles and whether the Board could require the applicant to replace the poles with a certain type of pole (e.g. concrete). The City Attorney is currently looking into whether it is within the DRB’s authority to require the type of replacement pole. III. DISCUSSION DAS networks typically consist of lower powered nodes connected to a common connection point. However, each of the proposed DAS nodes will be connected to AT&T’s network at site of each pole. Distributed antenna systems are often utilized in indoor areas where coverage poses challenges. In this case, the topography of the East Bay hills presents coverage challenges. The Agenda Item No. 6 Attachment 4 ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005 - AT&T DAS Network\PL13-0006-10 - PC Staff Report.doc Page 2 of 5 applicant has decided to pursue a DAS network as a way to provide more consistent coverage in the hills. The proposed DAS nodes would be located on top of the existing utility poles. For three of the proposed sites, a 7-foot extension would be added to the top of the pole. For two sites, the existing pole would be replaced with a new pole that would be approximately 7 feet taller. The proposed antennas are approximately 2 feet tall would be mounted at the top of the extension or the new pole. The top of the antennas would sit approximately 3 feet above the top of the pole. All equipment for each facility would be mounted on the pole. No equipment will be ground mounted. Pusuant to section 19.32.050(D) of the Zoning Ordinance, the Zoning Administrator may require notice of the public hearing in addition to what is normally required. In this case, because the proposed sites are within the public right-of-way and therefore do not have addresses or parcel numbers, staff required the applicant to post hearing notices on the subject poles so that they are readily identifiable to the Planning Commission and the public. Site PL13-0006 near 851 Seaview Drive. Site PL13-0007 near 906 Galvin Drive. Site PL13-0008 near 762 Colusa Avenue Site PL13-0009 near 7800 Eureka Avenue ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005 - AT&T DAS Network\PL13-0006-10 - PC Staff Report.doc Page 3 of 5 Similar DAS nodes have been installed in the East Bay by T-Mobile. The site nearest to El Cerrito is at 1215 Santa Fe Avenue in Berkeley at the intersection Key Route Boulevard on the border with Albany. This site is visible from BART trains. Other nearby sites include Cedar Street at Juanita Way, near Cedar Rose Park and Dwight Way at California Street. Photos of two of these sites are included below. These sites are different from the proposed AT&T nodes in that the T-Mobile sites use omnidirectional antennas which are cylindrical in shape. The coverage that AT&T is attempting to provide with the proposed nodes has informed the applicant’s decision to propose two directional antennas per node. Coverage in all directions is not required and the applicant wished to limit the loss of signal toward the bay and other areas where coverage is not needed. The existing examples of DAS nodes mentioned above are good examples of the scale of the proposed facilities. The pole extensions that these nodes are Site PL13-0010 near 202 Seaview Drive mounted on are approximately the same height as the extensions that AT&T is proposing. The T- Mobile antennas appear to be taller than the proposed AT&T antennas. DAS node near 1215 Santa Fe Avenue, Berkeley DAS node near Dwight Way and California Street, Berkeley The applicant has verbally assured staff that their intent is to paint the proposed antennas and equipment brown to match the color of the utility poles. Staff is proposing a condition of approval to ensure that this will happen. Staff is also proposing a condition of approval to ensure that AT&T will not oppose any future efforts to underground utilities in the areas where these facilities are located. The applicant verbally committed to this at the recent DRB meeting. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005 - AT&T DAS Network\PL13-0006-10 - PC Staff Report.doc Page 4 of 5 IV. FINDINGS The Planning Commission must make the following findings as outlined in Section 19.34.040 of the El Cerrito Zoning Ordinance: 1. The location, size, design, and operating characteristics of the proposed development will be harmonious and compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. The proposed wireless telecommunications facilities are compatible will be located on existing utility poles and are compatible with the surrounding properties and will not adversely affect the livability or development of surrounding properties. 2. The location and design of the proposal will provide a convenient and functional living, working, shopping, or civic environment that will be an attractive amenity for the City. The proposed wireless telecommunications facilities will provide 4G LTE wireless service to the southern portion of El Cerrito, improving the convenience of the living and working environments. 3. The proposal is consistent with the purposes of the district where it is located and conforms in all significant respects with the El Cerrito General Plan and with any other applicable plan adopted by the City Council. The project is consistent with the El Cerrito General Plan. There are no other relevant adopted plans. The Planning Commission must make the following findings as outlined in Section 19.28.060 of the El Cerrito Zoning Ordinance: 1. The proposed use conforms with the specific purposes of this Chapter and any special standards applicable to the proposed facility. The proposed facilities conform with the standards of Chapter 19.28: Wireless Telecommunications Facilities of the El Cerrito Municipal Code. 2. The applicant has made good faith and reasonable efforts to locate the proposed wireless facility on a support structure other than a new ground-mounted antenna, monopole, or lattice tower, or to accomplish co-location. The applicant currently operates facilities at El Cerrito Plaza and 6830 Stockton Avenue. There are limited structures in the southern portion of El Cerrito that can accommodate new facilities. The applicant identified alternative sites and found them to be less desirable from both coverage and aesthetic perspectives. 3. The proposed site results in fewer or less severe environmental impacts than any feasible alternative site. The proposed sites (on top of existing utility poles) limit the visual impacts of the facilities. The project is exempt from review under the California Environmental Quality Act. ---PAGE BREAK--- H:\PLANNING\Applications\2013\PL13-0005 - AT&T DAS Network\PL13-0006-10 - PC Staff Report.doc Page 5 of 5 4. The proposed facility will not be readily visible, or it is not feasible to incorporate additional measures that would make the facility not readily visible as defined in Section 19.28.040. The location of the proposed facilities are within the public right of way. They are incorporated onto existing utility poles. It is not feasible to limit their visual impact. Sites that would enable the facilities to be not readily visible are limited in this portion of El Cerrito. To locate a facility in a residential zoning district where it is readily visible from the habitable area of a dwelling unit within 300 feet, or at any location where it is readily visible from a public right- of-way, public park, or other public recreation or cultural facility, the decision maker shall find that: 1. It is not feasible to provide the service at another location; or to incorporate additional measures such as a decrease in height, increase in setback, change in design, relocation relative to other structures or natural features, that would further reduce its visibility; and The applicant operates wireless telecommunications facilities at El Cerrito Plaza and 6830 Stockton Avenue. The topography of this portion of El Cerrito provides coverage challenges. The proposed facilities will extend the existing utility poles to the minimum height required for separation from existing utilities and to provide coverage. 2. The proposed facility provides an important link in the applicant's service area build-out and is necessary to provide personal wireless services to city residents. The proposed facilities are necessary to provide coverage to the southern portion of El Cerrito. V. RECOMMENDATION Staff recommends approval of Planning Applications PL13-0006 – PL13-0010 as conditioned by the draft resolutions in Attachment 1-5 approving conditional use permits to allow five wireless telecommunications facilities on existing utility poles. Proposed Motion: Move adoption of Planning Commission Resolution PC13-__ approving a conditional use permit to allow a conditional use permit to allow a wireless telecommunications facilities on an existing utility pole. Appeal Period: Within ten (10) calendar days after the date of the decision, the Planning Commission action may be appealed to the City Council. Attachments: 1) Draft Resolution PC13-09 2) Draft Resolution PC13-10 3) Draft Resolution PC13-11 4) Draft Resolution PC13-12 5) Draft Resolution PC13-13 6) Plans for Application PL13-0006 (near 851 Seaview Drive), dated January 10, 2013 7) Plans for Application PL13-0007 (near 906 Balra Drive), dated January 10, 2013 8) Plans for Application PL13-0008 (near 762 Colusa Avenue), dated January 10, 2013 9) Plans for Application PL13-0009 (near 7800 Eureka Avenue), dated January 10, 2013 10) Plans for Application PL13-0010 (near 202 Seaview Drive), dated January 10, 2013 ---PAGE BREAK--- Agenda Item No. 6 Attachment 5 ---PAGE BREAK--- ---PAGE BREAK--- Agenda Item No. 6 Attachment 6 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- Alternative Site Analysis! JPA Pole 110235789 at 851 Seaview Drive! • This is an analysis of alternative sites surrounding the proposed Node 3 site considering the radio-frequency (RF) coverage perspective, an engineering/implementation feasibility perspective, and an aesthetics perspective.! ! Agenda Item No. 6 Attachment 7 ---PAGE BREAK--- Primary site! • The Primary pole location is identified as JPA 110235789 at 851 Seaview Dr.! • The photo to the right is a snapshot of the proposed site. This site is acceptable only if additional height can be achieved by the proposed pole-top extension.! • Side-mounting is unacceptable from an RF perspective (inadequate propagation height) and an implementation perspective (not enough separation from utility lines).! ---PAGE BREAK--- primary & Alternative locations ! • On the map above, the primary site is marked with a blue pin with the alternative sites are marked by yellow pins.! ---PAGE BREAK--- • Alternative 1 is identified as JPA 110235788 at 538 Seaview Dr.! • This site presents a view impact for the homes located behind the site up hill. ! • RF engineering rejects this site; the location is not viable to achieve AT&T’s coverage objective! • Implementation accepts this site only if an extension or pole-swap can be done to achieve adequate utility line separation.! • This site is not a viable alternative for RF and aesthetic reasons.! ALTERNATIVE 1: Node 03B! ---PAGE BREAK--- ALTERNATIVE 2: Node 03C! • Alternative 2 is identified as JPA 110235795 at 860 Seaview Dr.! • This site is more visible than the proposed location and presents a view impact for homes located up hill behind the site – especially imposed by additional height required by RF and implementation.! • RF Engineering accepts this site as a viable alternative only if additional height is achieved (side-arm mounting is unacceptable).! • Implementation accepts this site only if an extension or pole-swap can be done to achieve adequate utility line separation.! • This site is not a viable alternative because it much more aesthetically intrusive than the proposed site.! ---PAGE BREAK--- ALTERNATIVE 3: Node 03D! • Alternative 3 is identified as JPA 110235795 at 7670 Seaview Drive.! • There is a view impact imposed by this site for homes located behind the pole.! • RF Engineering accepts this site as a viable alternative with a pole top extension mount (side-arm mounting is unacceptable).! • Implementation deems this site viable only if a pole swap or extension is proposed.! • This is not a viable alternative location for aesthetic reasons.! ---PAGE BREAK--- ALTERNATIVE 4: Node 03E! • Alternative 4 is identified as JPA 110235795 at 7677 Stockton. ! • This location is highly exposed and would a facility here would make an already cluttered pole look worse.! • RF Engineering rejects this site because it cannot meet the desired coverage objective.! • Implementation rejects this site because it is too busy and would present access problems.! • This site is not a viable alternative for aesthetics, RF and implementation reasons.! ---PAGE BREAK--- ALTERNATIVE 5: Node 03F! • Alternative 5 is identified as JPA [PHONE REDACTED] at 7687 Stockton.! • A facility mounted on this pole would be more visibly exposed than at the proposed location.! • This would only meet RF Engineering requirements if a pole top extension was proposed (side arm mounting is unacceptable).! • Implementation accepts this site only if a pole swap or extension was utilized to maintain the required utility line separation.! • This is not a viable alternative site because of its poor aesthetic impact.! ---PAGE BREAK--- ALTERNATIVE 6: Node 03G! • Alternative 6 is identified as JPA 110235797 at 880 Stockton. ! • The site is highly exposed and would be present aesthetic issues if a facility was installed here.! • RF Engineering rejects this site because a facility here is unable to achieve the desired coverage objective any any available height.! • Implementation rejects this site because it is too busy and there would be access blockage by the exiting utility lines.! • This is not a viable alternative for aesthetic, RF and implementation reasons.! ---PAGE BREAK--- SUMMARY! • Alternative 1/03B: Not viable.! • Alternative 2/03C: Not viable.! • Alternative 3/03D: Not viable.! • Alternative 4/03E: Not viable.! • Alternative 5/03F: Not viable.! • Alternative 6/03G: Not viable.! • The Primary and all Alternative sites were considered for side arm mounting but do not achieve the required minimum height for the antennas. Thus, side arm mounting has been rejected for all candidates.!