AGENDA REPORT Meeting of the San Marcos City Council

Transcription

1 AGENDA REPORT Meeting of the San Marcos City Council MEETING DATE: October 22, 2013 SUBJECT: Appeal by Elliot Herman AT&T Mobility, LLC P (CUP / ND / AA ) Recommendation Staff recommends adoption of the attached resolution to deny the appeal and affirm the decision of the Planning Commission. Board or Commission Action The project was approved by the Planning Commission on September 3, 2013 by a 5 to 2 vote. Relevant Council Strategic Theme Not Applicable. Relevant Department Goal Not Applicable. Introduction On September 3, 2013, the Planning Commission approved a Conditional Use Permit for AT&T Mobility, LLC. ( AT&T ) to install and operate an unmanned wireless telecommunication facility on an agricultural residential property located at 2080 Golden Eagle Trail (Planning Commission Meeting Minutes provided as Attachment F ). On September 11, 2013, Elliot Herman filed an appeal of the Planning Commission s decision to approve the project (the Herman Appeal ). Additionally, on September 12, 2013, John and Constance Signorino filed a separate appeal which was accepted provisionally by the City (the Signorino Appeal ), to ensure continuation of the appeal process in the event the initial appeal was withdrawn for any reason. #10.1

2 In response to the Herman and Signorino appeals, and in accordance with the provisions of Chapter of the San Marcos Municipal Code (SMMC), the City Council shall either affirm the decision of the Planning Commission or render a decision de novo on the appeals. Background Beginning in 2008, AT&T began preparing an application for a Conditional Use Permit ( CUP ) to install and operate an unattended wireless telecommunication facility in the Questhaven/La Costa Meadows neighborhood. AT&T s stated goal was to provide service to an area generally extending from Fire Station No. 4 to the eastern side of the San Elijo Hills neighborhood (see Coverage Map provided as Attachment G ). AT&T s first application to serve the area described above was submitted on November 11, 2008 (CUP ). That CUP proposed locating a wireless telecommunication facility at 850 Deadwood Drive. CUP was first presented to the Planning Commission at its March 1, 2010 meeting. As the result of community opposition, the item was continued after AT&T agreed to work with residents to identify and evaluate alternative sites for the facility. That alternative site analysis was provided to the City by AT&T and has been included as Attachment H. In April of 2011, AT&T withdrew its application (CUP ) for a wireless telecommunication facility at 850 Deadwood Drive. On December 18, 2012, AT&T filed the current application (P ) for a wireless telecommunication facility at 2080 Golden Eagle Trail. Discussion The current project site is located on an approximately 10 acre parcel zoned Agricultural (A-1). That zone provides for a density of to 1 dwelling units per acre per the Agricultural/Residential (AG) General Plan Land Use Designation. The subject property is developed with one (1) single family home, three (3) agricultural buildings and an existing thirty (30) foot tall faux pine tree monopole operated by T-Mobile. The adjacent land uses to the east and south are single-family residences on large (> 3.5 acre) lots in the A-1 zone of the City and Rural Residential zone of the County of San Diego, respectively. To the north and west are Open Space zones and single family residences in the San Elijo Hills Specific Plan area. Access to the site is provided through Golden Eagle Trail and Attebury Drive, two winding rural private roads. #10.2

3 SMMC Section (B) and SMMC Chapter ( Telecommunication Facilities Ordinance ), require a Conditional Use Permit for the operation of a wireless antenna facility within an agricultural zone. The proposed project meets the Agricultural (A-1) Zone development standards in that the equipment enclosure and monopole comply with building setback and the height limits of the A-1 Zone. Although the monopole proposed by AT&T will be thirty-five (35) feet tall, a five (5) foot difference in ground elevation at the foundations will make both the existing and the proposed monopoles appear to be the same height. The proposed AT&T monopole will be designed as a faux pine tree as seen in the photo simulations provided as Attachment I. The project has been conditioned to provide a minimum of three (3) branches per linear foot of height of the tree which will ensure a full and realistic canopy of the faux pine tree which will screen the antennas. In addition, the project has also been conditioned to plant a minimum of six (6) real pine trees surrounding the site to enhance the camouflaging of both the proposed and existing wireless telecommunication facilities. The project is also proposing to construct a 240 square foot enclosed building at the site to contain the ground mounted support equipment, including thirteen (13) remote radiohead units, two (2) GPS antennas, 200 AMP electrical service and other base station components. The proposed building, as seen in Attachment J, will be located five (5) feet south of the existing T-Mobile equipment enclosure and will utilize the same rural architectural theme as the existing T-Mobile building with fire resistant cement board ( faux-wood ) siding, framed doors and faux windows, fire resistant roofing materials and muted earth toned paint colors. The project is also proposing to install two (2) externally mounted and screened air conditioning compressor units which will periodically turn on and off as needed for climate control of the equipment enclosure building. AT&T analyzed the feasibility of colocating its antennas on the existing T-Mobile faux tree monopole however, this would have required the monopole be raised a minimum of ten (10) feet to accommodate the AT&T antennas to provide the equivalent service coverage of a second monopole. The service coverage of AT&T colocated antennas on the unmodified existing 35 foot T-Mobile facility is discussed in Attachment H. In addition, the existing T-Mobile equipment enclosure does not have sufficient space to accommodate the required AT&T ground mounted equipment in the existing building. Given these colocation constraints, a second monopine for AT&T s use (not to exceed the height of the existing T-Mobile monopine) and matching equipment enclosure was proposed to provide the maximum service coverage while taking maximum advantage of the faux tree camouflage. Per the City s noise regulations contained in SMMC Section (F), any potential noise levels generated by the wireless telecommunication facility equipment shall not exceed 50 db(a) at the nearest property line. Per the manufacturer s specifications, the compressor units may emit up to 56 #10.3

4 db(a) during usage immediately adjacent to the compressors. Notwithstanding the fact the compressors will be located a significant distance away from the property lines (approximately 120 to the north and west, 290 to the east and 950 to the south), the project has also been required to relocate the compressors to the east side of the building to partially enclose the units between the buildings to further attenuate any potential noise from the compressors. Access to the project site is provided through Golden Eagle Trail and Attebury Drive, both existing private roads, through road and utility easements that run with the property. The owner of the subject site will be leasing a portion of their property to the applicant, which lease includes the use of the private roads. The ongoing maintenance responsibility of the private roads will remain the responsibility of the easement holders. Any future maintenance activities of the roadway will be coordinated by the various easement holders. The applicant will be required to document the condition of the road prior to commencing construction and will be required to make any necessary restorative repairs to the road after the completion of construction activities at the site if any damage occurs as a result of construction activities. At the September 3, 2013 Planning Commission meeting, AT&T committed to providing its fair-share contribution towards any future maintenance agreements for the repair and/or service of any of the access easements leading to the project site. Environmentally sensitive habitat has previously been identified as existing at the site. On July 25, 2013 a biologist conducted an updated assessment of the project site to determine potential biological impacts. The biological assessment is included in the technical appendices of the Mitigated Negative Declaration prepared for this project (ND ) and included as Attachment K. The assessment determined that the installation of the monopole portion of the project would impact approximately 25 Wart-Stemmed Ceanothus (Ceanothus Verrucosus) plants. Wart-Stemmed Ceanothus plants are not a federally or state protected species, however they are narrowly distributed in the region and considered rare by the California Native Plant Society (CNPS) and under the Draft City of San Marcos Subarea Plan of the Multiple Habitat Conservation Plan (MHCP). As a result, impacts to Wart-Stemmed Ceanothus are required to be mitigated. Prior to the commencement of any construction activities at the site, the applicant is required to provide proof to the City that credits at an approved mitigation bank have been acquired for the preservation of Wart-Stemmed Ceanothus at a ratio of one plant protected for every one plant impacted (i.e. 1:1). Regarding radio frequency (RF) emissions safety considerations, Section 704 of the Telecommunications Act of 1996 states that No State or local government or instrumentality thereof may regulate the placement, construction, or modification of personal wireless service facilities on the basis of the environmental effects of RF emissions to the extent that such facilities comply with the commission s regulations concerning such emissions. The City therefore is precluded from denying the proposed project based upon perceived health impacts of these facilities if the project will comply with the #10.4

5 Federal Communications Commission (FCC) rules (47 C.F.R et seq.). The FCC has developed exposure guidelines that implement regulations for Section 704. The FCC guidelines require evaluation to determine whether transmitters of facilities comply with the FCC RF guidelines and incorporate Maximum Permissible Exposure (MPE) limits. MPE limits are defined in terms of power density, electric field strength, and magnetic field strength to which a person may be exposed without harmful effect. The standards established in the FCC RF guidelines constitute exposure limits and are relevant only to facilities that are accessible to workers or members of the public. The City has required documentation (an Electromagnetic Energy EME Report) from the applicant to confirm the wireless antenna facility will be operating within the FCC RF guidelines for MPE limits. In response, the applicant prepared an EME Report and RF Safety Evaluation. That report has been included in the technical appendix B of the Mitigated Negative Declaration (ND ) prepared for this project and provided as Attachment K ). The EME report submitted by the applicant was peer-reviewed by Jonathan Kramer, the City s telecommunication technology expert, who also serves as a special legal counsel to the City. Mr. Kramer determined the proposed design of the facility will be in full compliance with FCC regulations. At the Planning Commission hearing on September 3, 2013, several residents discussed concerns relating to the use of estimations for signal levels of the existing T-Mobile and a nearby Sprint wireless telecommunication facilities in the EME report. The residents requested that field measurements be used in lieu of estimates. City staff directed AT&T to include field measurements of existing RF emissions in the vicinity of the site to verify compliance with FCC guidelines. The applicant s revised EME report was reviewed by Mr. Kramer, who determined the site will comply with FCC RF guidelines for MPE limits. Both reports have been provided as Attachment L to this Staff Report. The project has also been conditioned to provide an implementation report within six (6) months of the final building inspection. The required implementation report will contain field measurements of RF levels at the site with the project in operation to confirm compliance with FCC RF guidelines. If it is determined the site does not comply with FCC guidelines and is unable to attain compliance, the applicant will be required to remove the AT&T facility and restore the site to preproject conditions. A Mitigated Negative Declaration (ND ) was prepared for this project (Attachment K ) and adopted by the Planning Commission on September 3, In addition, a Notice of Public Availability was posted on July 29, 2013 with a twenty-one (21) day public review period that ended on Monday, August 19, No comments pertaining to the environmental document were received during this period. #10.5

6 Herman Appeal Points and Responses As first mentioned above, Elliott Herman filed an appeal of the Planning Commission s approval of this project on September 11, 2013 (Attachment M ). The appeal filed by Mr. Herman sets forth eight (8) reasons upon which the appeal is based. Staff has evaluated each of the eight appeal points set forth by Mr. Herman and responded to each below: Appeal Point (H1): The City did not do an adequate job of notifying the community of the cell tower. Response (H1): Public noticing was conducted in accordance with the provisions of Chapter of the San Marcos Municipal Code (SMMC), which requires three forms of public noticing as described below. To notify the public that an application had been received by the City, all property owners (approximately 67) within a 500 foot radius of the perimeter of the subject property were mailed notices via U.S. Mail, First Class, postage prepaid on or about January 11, Additionally, as required by Chapter SMMC, a notice of application sign was posted at the intersection of Attebury Drive and Golden Eagle Trail. On July 26, 2013, a joint Notice of Intent to Adopt a Mitigated Negative Declaration and Notice of Public Hearing was mailed to residents within a 500 foot radius of the subject property. When the Planning Commission hearing was continued, the City also mailed a Courtesy Notice to residents on August 7, 2013 that advised of the hearing date change. Additionally, a Notice of Public Hearing was published in The Paper on August 8, 2013 advising the public of the Planning Commission hearing. In addition, following the usual City procedure, the Planning Commission Agenda Package was posted on the City s web site at approximately 5:30 PM on August 29, In response to public comment at the Planning Commission Hearing, and pursuant to SMMC Section (B)(2)(a), the public notice radius for the City Council Appeal Hearing on October 22, 2013 has been expanded to include all properties within a 1,000 foot radius around the subject property. Further, two (2) additional signs were also posted around the subject property to advertise the appeal: one located on San Elijo Road west of Double Peak Drive and the other on eastbound Questhaven Road at the City limit. Both the expanded radius of the public notice #10.6

7 and the additional off-site signs exceed the noticing requirements of Chapter SMMC. Appeal Point (H2): City Planning Commission approval of the cell tower without a prior public hearing. Response (H2): In accordance with Section SMMC, a Conditional Use Permit is approved by the Planning Commission at a single Public Hearing. The required Public Hearing was held by the Planning Commission on September 3, 2013 and duly noticed in accordance with the provisions of the SMMC. Accordingly, the City Planning Commission s approval of the project occurred upon completion of the Public Hearing held by the Commission. Appeal Point (H3): The City Planning Commission hardly gave me time to object to the cell tower and cut me off after 3 minutes. Response (H3): Per Section (C)(1) SMMC, the Planning Commission may establish its own rules for the conduct of Public Hearings. Members of the public who provide testimony during the comment period of Planning Commission hearings are limited to 3 minutes to ensure that all members of the public have a fair and equal opportunity to provide testimony on the project. Appeal Point (H4): The City did not provide the residents an adequate alternative site analysis of all potential sites within San Marcos. Response (H4): Per Chapter SMMC (Telecommunications Facilities), an alternative site analysis is not a required application component. Additionally, CEQA does not require an analysis of a range of alternatives to the proposed project unless preparation of an environmental impact report is required (CEQA Guidelines Section ), which is not the case with this application. Appeal Point (H5): The City Planning Department made it impossible to coordinate a response by cancelling the meeting, then rescheduling the meeting on short notice. Response (H5): As noted above, the original Public Hearing was scheduled for August 19, When it was continued to September 3, 2013, the City mailed a Courtesy Notice by U.S. Mail, post-prepaid to residents on August 7, 2013, approximately 26 days prior to the actual Public Hearing. #10.7

8 Appeal Point (H6): The City Planning Department would not give us a chance to organize by not providing us a requested extension and railroaded this cell tower through the City Planning Commission. Response (H6): Since the initial Notice of Application was mailed to residents on January 11, 2013 to the date of the Planning Commission hearing on September 3, 2013, a total of twohundred thirty-five (235) days had elapsed. On August 28, 2013, Mr. & Mrs. Signorino and Mr. & Mrs. Clifton submitted a request to continue the Planning Commission Hearing which was provided to the Planning Commission and considered at the September 3, 2013 Hearing. The applicant requested the hearing proceed as scheduled due to the amount of the time already elapsed bringing this case to the Planning Commission, as was the applicant s right. Appeal Point (H7): As was stated at the City Planning Commission meeting, a cell tower a few hundred feet from our neighborhood (which most homes have small children) is against the San Marcos City Mission. Response (H7): The City Council adopted the General Plan which contains various goals, objectives and policies organized in eight categories. In the Land Use category, the City has set a goal to Encourage provision of power and communication systems that provide reliable, effective and efficient service for San Marcos (LU-17). To the extent that the project complies with the development standards of the City and all relevant regulations established by the FCC, California Building Code, Fire Code, etc., the approval of this project will comply with the General Plan. As noted earlier in this Staff Report, Federal law does not allow a state or local government to consider RF emissions as a basis for a cell site project denial if the project is shown to be designed to comply with the FCC rules (47 C.F.R et seq.). The City s wireless telecommunication expert, Mr. Kramer, provided his peer review of the project and determined that it would, as proposed, fully comply with FCC rules. Appeal Point (H8): There is no city regulation on the subject specifically how many cell towers can be located on one property or how close they can be located next to houses or public facilities. All issues concerning the cell towers should be specifically regulated. #10.8

9 Response (H8): Wireless telecommunication facility regulations are addressed in Chapter SMMC. Pursuant to the provisions of this chapter, a Conditional Use Permit is required for all facilities in residential zones of the City. Through the Conditional Use Permit process, projects are evaluated and conditioned accordingly to mitigate any impacts that are identified. The proximity of wireless telecommunication facilities to adjacent properties is regulated through the setbacks of the applicable zone. The placement and concentration of wireless telecommunication facilities is also evaluated to determine compliance with FCC guidelines on RF emissions. Additionally, the placement and concentration of wireless telecommunication facilities is further evaluated to ensure minimal aesthetic impacts. Signorino Appeal Points and Responses In addition to the appeal filed by Mr. Herman, the City received a second appeal filed by John and Constance Signorino on September 12, 2013 (Attachment N ). The appeal filed by Mr. & Mrs. Signorino sets forth thirteen (13) reasons upon which the appeal is based. Staff has evaluated each of the thirteen appeal points set forth by Mr. and Mrs. Signorino and responded to each below: Appeal Point (S1): Approval of the cell tower is inconsistent with the Mission and Vision Statement of San Marcos: The mission of the City of San Marcos is to improve the quality of life of those who live work or visit San Marcos by providing a safe family atmosphere that is rich and diverse in cultural and natural resources and promotes economic and educational opportunities. Response (S1): This appeal point parallels H7 of the Herman appeal. Staff s response to H7 is incorporated here by reference. Appeal Point (S2): At the Sept. 3 Planning Commission meeting the Residents, the Chairperson, the City Planning Commission and the City Planning employees agreed (by a show of hands vote) that the 2080 Golden Eagle Trail cell tower was inconsistent with the San Marcos Mission Statement and the statements below. Yet, 5 of the Planning Commission members voted to approve the cell tower. a.) Multiple cell towers 400 feet from densely populated homes with children does not improve your quality of life. #10.9

10 b.) Multiple cell towers 400 feet from densely populated homes with children does not provide a safe family atmosphere. c.) Multiple cell towers 400 feet from densely populated homes with children does not enhance your property values. Response (S2): Appeal Point (S3): Response (S3): Appeal Point (S4): Decisions of the Planning Commission are based on the testimony received and the Commissioner s evaluation of the project in relationship to the SMMC and applicable law. Statements may be made or questions raised by Commission members during the Public Hearing process or during their discussion and evaluation of the application. Public Hearing discussions between the members may affect their evaluation and decisions up to the time they cast their vote on the application. The vote taken, and the findings made, are the official actions taken by the Planning Commission. The City did not provide the residents or the City Planning Commission a complete and documented alternative site analysis of all potential sites within San Marcos. This appeal point parallels H4 of the Herman appeal. Staff s response to H4 is incorporated here by reference. The City did not do an adequate job of notifying the community of the 2080 Golden Eagle Trail cell tower. For example, the City s Notification Sign was placed on Golden Eagle Trail, a private road with no trespassing signs, where only three residents would see it, and ignored the large San Elijo development most affected by the cell tower. Response (S4): Staff s responses to H1 and H6 of the Herman appeal are equally applicable to S4, and are incorporated here by reference. Appeal Point (S5): Response (S5): The City sent out a Mitigated Negative Declaration Notice without the necessary alternative site analysis nor adequately explained to the residents what this was. As previously noted, there is no necessary alternative site analysis required by CEQA or the SMMC. In conformance with Section of the California Public Resources Code (PRC), the City prepared a Mitigated Negative Declaration for the project which contained #10.10

11 all of the information required by PRC Section for such environmental review documents. Additionally, a twenty-one (21) day public review period for the document was conducted in accordance with the provisions of PRC Section and Title 18 of the SMMC. Appeal Point (S6): Response (S6): Appeal Point (S7): Response (S7): The City Planning Department recommended to the City Planning Commission approval of the cell tower without providing the residents a prior public hearing. Staff s response to H2 of the Herman appeal addresses this subject and is incorporated here by reference. The City Planning Commission approved the cell tower without providing a public hearing and prior to being biased by a recommendation by the City Planning Department. The US Supreme Court has upheld the Government cannot limit free speech--both the Planning Commission (3 minute rule) and the City Planning Department violated the citizen s freedom of speech. Portions of this Appeal Point are answered in Staff s responses to H2 and H3 of the Herman appeal. A local government is authorized by law to establish the rules of conduct for proceedings pursuant to Section of the California Government Code (GC). Pursuant to SMMC Section (C), the City delegated to the Planning Commission the right to establish its own rules for the conduct of public hearings. These rules allow the Planning Commission to determine reasonable time periods for public speakers at hearings to ensure that all who wish to speak can be heard. These rules adopted for Planning Commission meetings are provided in written form on the printed agenda and are also announced at the time a public hearing is opened. The rules are reasonable and necessary to preserve the legal rights of all speakers. Appeal Point (S8): Response (S8): Appeal Point (S9): The City Planning Commission would not allow the residents to adequately communicate their position on the cell tower by limiting comments to 3 minutes. Please see response S7 above. The City Planning Department actively sold and tried to push the cell towers on the residents of Questhaven Hills and San Eljio Hills. For example, at an Aug 28 th #10.11

12 meeting with AT&T and the City, we requested the City Planning Commission provide a simple, understandable map showing how the two cell towers at 2080 Golden Eagle Trail will be aimed. This was not provided before the Sept 3 Planning Commission Hearing and yet: 1. Our written request to delay the Sept 3 hearing was not responded to an therefore, denied, 2. The City did allow a delay for discussions with a possible third carrier onto this site, and 3. The requested information has still never been provided. Response (S9): The Signorinos have characterized City staff s responses to questions from residents about the project as actively selling and/or pushing the cell tower. Staff responded to a resident s inquiry about the project and provided background information on August 28, 2013 (provided in Attachment P ). In regard to the continuance of the public hearing, on July 26, 2013, as already discussed above, the City sent notice of the August 19, 2013 Planning Commission hearing (which included the Notice of Intent to Adopt a Mitigated Negative Declaration ) to all residents within a 500 foot radius around the perimeter of the project site. After the July 26th notices had been mailed to the residents, Verizon Wireless filed an application on July 31, 2013 to construct and operate a separate wireless telecommunication facility at the same project location on Golden Eagle Trail. At or about the same time, Mrs. Signorino began contacting the City to express opposition to the project. In an effort to both address the Signorino s concerns about the project and to study how an additional wireless facility at the site might impact the proposed AT&T project, staff determined that it was prudent to continue the public hearing to the next regularly scheduled Planning Commission meeting on September 3, In the interim, on August 9, 2013 Verizon Wireless withdrew its application for a facility on this site. Staff arranged a meeting with residents of Golden Eagle Trail (the Signorinos and the Cliftons) and with AT&T on August 28, 2013 to address questions and concerns with the project. Staff also arranged to have Mr. Kramer attend the meeting to provide answers to any questions regarding wireless technology or law regarding wireless siting. At the meeting with the applicant and the residents on August 28, 2013, staff used the project plans to draw a diagram of the site on a digital map that could not be printed or reproduced. When the Signorinos asked to get a copy of the diagram, this technological limitation was explained to them and staff provided instructions #10.12

13 to the Signorinos on how they could create the same diagram using the project plans and any map. The Signorinos were provided the project plans on January 17, 2013, again on August 5, 2013, and most recently on October 7, The project plans were also included in the MND, which was provided to Mrs. Signorino on August 7, Appeal Point (S10): The City Planning Department did not seek input nor did they support the residents of San Marcos, Questhaven Hills and San Elijo Hills in their demands not to approve a cell tower 400 feet from a neighborhood of densely populated homes with small children. Response (S10): As noted above, Mr. Kramer has independently determined that the project will comply with the FCC rules, therefore there is no basis to deny the project with respect to RF emissions. Accordingly, the City processed the AT&T application in conformance with the development standards of the City and all applicable provisions of the SMMC and State and Federal Law. Additionally, staff has been in contact with residents throughout the processing of the project. Staff has also coordinated meetings for residents with the applicant, directed the applicant to provide additional studies (i.e. photo simulations for specific residents, additional EME reports, etc.), conducted research for residents, responded to several Public Records Act requests submitted by residents, and has modified the project in response to comments from residents. As an example of project modifications, Condition of Approval C(14) was added to prevent the clustering of natural trees near the ridge, to preserve westward views of residents east of the project. Appeal Point (S11): The City Planning Department and City Planning Commission were remiss by not establishing a cell tower ordinance against putting multiple cell towers next to a densely populated residential neighborhood full of families with small children. One City Planning Commission member was is disbelief this did not exist and there was some agreement on this by Commission members. Yet, they voted without a proper ordinance, knowing as many as 7 cell towers could be placed on this property. Response (S11): Responses H7 and H8 of the Herman appeal, which are incorporated here by reference. Further, as discussed in various responses above, the City cannot regulate RF emissions or deny a project as implied in Appeal Point S11 where the cumulative effects of the RF emissions comply with the FCC rules. The Planning #10.13

14 Division was required to process this application under the rules and regulations in place at the time the application was deemed complete, which are codified in the City s Telecommunications Facilities Ordinance, SMMC Chapter Appeal Point (S12): The City has admitted they do not have a complete account of all San Marcos cell towers. How can they approve adding additional cell towers without this information? Response (S12): The Planning Division has not stated that there is not a complete account of wireless telecommunication facilities within the City. Wireless telecommunication facilities require different levels of permits (i.e. a Site Development Plan, Conditional Use Permit, Telecommunication Facility Permit, Building Permit, etc.) depending on the scope of the project, location of the project and at what point it was approved, as both City and federal regulations for wireless facilities have changed over the past 25 years. Although application processes and archival technologies have changed, the City s record of issued permits is complete. Lastly, since the proposed project does not rely on an existing facility (i.e. the project is not a colocation on an existing tower), there is no requirement for previous or other entitlements to approve the project. Appeal Point (S13): Dr. Bushberg s RF emissions analysis published in November 2012 used assumptions for the existing T-mobile tower since details were not available at the time. This is unacceptable. Additionally, T-mobile has spent significant time making changes to the cell tower throughout the Summer of 2013; therefore the analysis is no longer accurate and must be redone. How could the City Planning Department recommend approval under these circumstances? Response (S13): The original Bushberg EME Report prepared on November 12, 2012 (provided in Appendix B of Attachment K ) used conservative or worst case projections of power densities for the existing T-Mobile site to model what affect adding the AT&T project would have on compliance with FCC guidelines for RF exposure. In December of 2012, a building permit (B ) was approved to allow T-Mobile to replace the existing antennas of the facility. It is the City s understanding that the work authorized under this permit occurred during the spring and summer of Since the original Bushberg report used worst case assumptions to estimate the operation of the T-Mobile site, the antenna upgrades have no effect on the validity of the analysis. Notwithstanding this fact, due to public comment at the Planning Commission meeting, the City directed the applicant to take field measurements of #10.14

15 the existing RF levels at the site and provide an additional analysis which models the AT&T site against the existing RF levels measured in the field. The revised EME Report and an independent peer review by Mr. Kramer (provided as Attachment L ) both conclude that the proposed AT&T project will fully comply with FCC Guidelines if constructed. Accordingly, there is no legal basis upon which to deny the project based on concerns about RF emissions. Public Comment Additional public comment was received regarding this project. Staff has collected written correspondence from the public and provided these without responses in Attachment O. Fiscal Impact Denial or approval of the appeal will not result in fiscal impacts to the City. Attachment(s) Adopting Resolution Planning Commission Resolution PC A- Vicinity Map B- Aerial Photo C- Site Photos D- Requested Entitlement E- Site & Project Characteristics F- Planning Commission Meeting Minutes from September 3, 2013 Meeting G- Coverage Map H- Alternative Site Analysis I- Photo Simulations of Monopole J- Photo Simulations of Equipment Building K- Mitigated Negative Declaration (ND ) L- Updated EME Reports M- Herman Appeal (AA ) N- Signorino Appeal (provisional) O- Written Public Comments P- Project Plans #10.15

16 AGENDA Item ITEM 10 # #10.16

17 RESOLUTION A RESOLUTION OF THE CITY OF SAN MARCOS CITY COUNCIL DENYING AN APPEAL OF A CONDITIONAL USE PERMIT TO ALLOW THE INSTALLATION AND OPERATION OF A WIRELESS TELECOMMUNICATION FACILITY AS A FAUX TREE AT RESIDENTIAL PROPERTY IN THE AGRICULTURAL (A-1) ZONE Project No. P CUP / ND / AA AT&T Mobility, LLC. WHEREAS, on December 18, 2012 an application was received from AT&T Mobility, LLC. requesting a Conditional Use Permit to allow the installation and operation of a wireless telecommunication facility, comprised of a 35 foot tall faux tree monopole and associated groundmounted equipment inside a new 240 square-foot equipment building designed to emulate an agricultural building at a acre property located in the Agricultural (A-1) zone with a General Plan Land Use Designation of Agricultural, more particularly described as: The West Feet of the South 1/3 of the Southeast Quarter of the Northwest Quarter, and the West Feet of the North Feet of the Northeast Quarter of the Southeast Quarter, All in Section 27, Township 12 South, Range 3 West, San Bernardino Meridian, In the County Of San Diego, State of California, According to The United States Government Survey Approved September 19, Assessor's Parcel Number: WHEREAS, the Development Services Department did study said request and recommended approval of requested use; and WHEREAS, the Planning Commission did consider a Mitigated Negative Declaration (ND ) for said request pursuant to the California Environmental Quality Act (CEQA); and WHEREAS, the Planning Commission approved the request for a CUP and adopted the Mitigated Negative Declaration (ND ) by a 5-2 vote, on September 3, 2013, subject to conditions based on the findings contained in Planning Commission Resolution PC ; and WHEREAS, an appeal was filed by Mr. Elliot Herman, on September 11, 2013, in opposition to the decision of the Planning Commission; and WHEREAS, a provisional appeal was filed by Mr. and Mrs. John Signorino, on September 12, 2013, in opposition to the decision of the Planning Commission; and WHEREAS, the City Council held an appeal hearing on October 22, 2013 which was legally noticed and duly advertised and held in the manner prescribed by law; and #10.17

18 Page 2 Resolution October 22, 2013 NOW, THEREFORE, the City Council resolves as follows: A. The foregoing recitals are true and correct. B. The City Council finds that, in accordance with CEQA, on the basis of the entirety of the record before it (including the Initial Study and any comments received), there is no substantial evidence that the project as conditioned will have a significant effect on the environment. The City Council further finds that the Mitigated Negative Declaration reflects the City s independent judgment and analysis, and approves the same. C. The City Council finds that the Conditional Use Permit, as conditioned, will not be detrimental to the public health or welfare, or to the surrounding land uses, in that the proposed wireless antenna facility will be located at a developed site and the City s expert has independently determined that the design and technical conditions of the proposed wireless antenna facility as conditioned will in all respects comply with the FCC regulations for impacts on the quality of the human environment (47 C.F.R et seq.); environmental impacts have been mitigated to a level of below significant with the incorporation of the Conditions of Approval contained in Resolution PC ; and any potential noise impacts will be attenuated by the approved equipment enclosure. In addition, visual impacts of the proposed project have been minimized because the monopole is designed to resemble a pine tree that will blend in with the existing simulated pine and adjacent natural trees; additional natural trees will be planted to further screen the monopole; the panel antennas will be concealed by pine needle antenna covers, the faux branches and leaves of the mono-pine; and the ground mounted equipment will be screened from view by an equipment enclosure designed to emulate an agricultural building. D. The City Council finds that the Conditional Use Permit, with staff conditions, is consistent with the policies and intent of the adopted General Plan, and the provisions of the City s Municipal Code. E. The appeal of the Planning Commission s approval of the Conditional Use Permit pursuant to Resolution PC is hereby denied. PASSED, APPROVED AND ADOPTED by the City Council of the City of San Marcos, at a regular meeting thereof, this 22nd day of October 2013, by the following roll call vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ATTEST: James M. Desmond, Mayor City of San Marcos #10.18

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