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 CITY COUNCIL AGENDA ITEM NO. 14

Meeting Date: April 22, 2008

Subject/Title: An appeal of the Planning Commission’s approval of a conditional use permit (CUP 08-02) and a variance (V 08-02) for CSI Towers, LLC to allow the location of a wireless telecommunications facility consisting of ground-based equipment, a 100-foot-high simulated tree pole and up to four sets of panel antennae. The project site is located on a portion of the Valley Oak Nursery site, south of Lone Tree Way and east of Fairview Avenue at 7021 Lone Tree Way (APN 018-080-016).

Prepared by: Tim Nielsen, Assistant Planner

Submitted by: Casey McCann, Interim Community Development Director

RECOMMENDATION

Approve a Resolution denying the requested appeal, thereby upholding the Planning Commission’s approval of Resolution No. 08-007 for a conditional use permit (CUP 08-02) and Resolution No. 08-008 for a variance (V 08-02).

PROJECT DESCRIPTION

Approval of the conditional use permit (CUP 08-02) and variance (V 08-02) would allow the location and operation of an unmanned wireless telecommunications facility and allow for a 100-foot-high tree pole to exceed the maximum 35-foot height limitation with up to four sets of panel antenna mounted at the 90-foot, 80-foot, 70-foot, and 60-foot elevations of the pole, located at the Valley Oak Nursery property on the southeast corner of Lone Tree Way and the Union Pacific Railroad tracks. The tower would allow the collocation of up to four carriers at this location. The base of the monopine and the ground-based cellular equipment is proposed to be located within an eight-foot high split-face concrete block enclosure.

The proposed project would help to expand the coverage and capacity in an area where there is currently a gap within the wireless communication network serving the north Brentwood area. This project would provide improved reliability, call volume, and convenience for wireless subscribers and could help to enhance economic activity within or near the City.

The proposed enclosure would be located at the southerly corner of the Valley Oak Nursery parcel, approximately 500 feet away from Lone Tree Way. To the north of the project site is Valley Oak Nursery with Lone Tree Way and a single-family residential neighborhood (Rosegarden) beyond. The land to the east is undeveloped with a single family ranch-style home and a single-family residential neighborhood (Sterling Preserve II) beyond. The area to the south is also comprised of undeveloped land, with the Union Pacific Railroad tracks and a single-family residential neighborhood (Sterling Preserve I) beyond. A County Flood Control easement is to the west, with the Union Pacific Railroad tracks and a flood basin beyond.


PLANNING COMMISSION ACTION

The conditional use permit (CUP 08-02) and variance (V 08-02) applications were approved by the Planning Commission on March 18, 2008. Five residents owning property in the area submitted form letters voicing concern over the proposed installation of the simulated tree pole prior to the Planning Commission hearing. Their concerns dealt mainly with the radiation of electromagnetic frequencies from the cellular site. At the public hearing, two individuals submitted speaker cards. One of them submitted only written comments and did not wish to speak, while the other speaker gave a background summary of the approval of a similar tower on his nearby property. At the close of the public comment period, the Commission discussed the following issues:

• The Federal Communications Commission (FCC)-approved standards relating to acceptable levels of Electromagnetic radiation generated by telecommunications sites and the inability of the City to impose more stringent requirements.
• The need for the applicant to provide verification to the City at two-year intervals that the cellular equipment continues to conform to FCC regulations.
• The proximity of the proposed tree pole to existing and possible future homes.
• Concerns over the accuracy of the photosimulation provided as supporting material.
• The desire to ensure that the mature trees located on the Valley Oak Nursery site adjacent to the proposed simulated tree pole are maintained.
• Whether there was sufficient landscaping and screening of the ground-based equipment.

Following the Commission discussion, the Commission voted 5-0 to approve both the conditional use permit and variance applications. An excerpt of the minutes of the March 18, 2008 Planning Commission meeting has been included for additional information.

On April 8, 2008, in response to an appeal application submitted on March 28, 2008 by Wilma Kraucyk, the City Council set April 22, 2008 as the public hearing date to consider the appeal.

BACKGROUND

The 1996 Federal Telecommunications Act and additional case law effectively restrict the degree to which local agencies may regulate cellular facilities. According to federal law, no local government shall deny a telecommunications facility on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with FCC regulations. However, local governments may regulate the aesthetic impact of such features by requiring the carriers to screen and or camouflage their ground-based equipment, antennae, wiring and support structures. Whenever possible, staff encourages the co-location of these facilities with other cellular carriers to limit the number of independent cellular sites. Given the height-dependent nature of cell facilities, there are no existing physical features that could serve as cellular sites in the north-central Brentwood area, creating a low service volume for many carriers. A variety of carriers currently operate wireless telecommunication facilities throughout the City. An 85-foot-high cellular tree pole (a cellular monopole designed to look like a tree) has been approved at the nearby Acorn Self Storage; however, no permits have been obtained for its construction. Approval of this application would allow for a taller cellular tree pole to be located in the vicinity of the Lone Tree Way/Fairview Avenue intersection, resulting in a greater coverage area for carriers that have antennae installed on the tower and potentially eliminating the need for multiple shorter cellular towers in the vicinity. Equipment for up to four cellular providers could be accommodated at the proposed site, further eliminating the need for up to three additional stand-alone cellular sites.

DISCUSSION

The appeal filed by Wilma Kraucyk on March 28, 2008 listed six reasons for the appeal. These reasons are listed below and each point is individually addressed.

• There are many voting residents of Sterling Preserve that are against this tower project.

Staff understands that the neighbors in the vicinity are sensitive to the proposed use. Several phone calls and five form letters were received prior to the Planning Commission hearing expressing concern over the project. Staff attempted to contact each citizen to address their specific concerns. At the public hearing, two members of the community either submitted comments or spoke during the public comment period, one was a Sterling Preserve resident concerned with the aesthetic and electro-magnetic frequency (EMF) radiation impacts of the project and the other provided background relating to the approval of a tree pole on the Acorn Self Storage parcel.

• The 100-foot tower will be about three times the height of any man-made structure in the area and will dwarf everything including the trees in the area.

While the proposed tree pole would be approximately three times the height of existing residential units in the area, the cellular panel antennae necessitates placement on a tall structure to enable as large a coverage area as possible, thereby alleviating the need for more cellular support structures in the same area. While courts have not previously upheld the denial of cellular facilities on aesthetic grounds, local agencies, such as the City of Brentwood have been given the freedom to work with cellular carriers to try to lessen the potential aesthetic impacts to the greatest extent possible. Realizing the potential visual impact of such a tall structure, staff has worked with the applicant to lessen the visual impact by camouflaging the site as much as possible. These measures include:

o ensuring that the tree branches will be dense enough to camouflage the equipment,
o requiring the entire ‘trunk’ of the tree pole to be coated with imitation bark,
o requiring the panel antennae to be painted green to match the ‘pine needles,’
o requiring the panel antennae to be covered with three-dimensional ‘needle socks,’
o working with the applicant to locate the tree pole as far away from nearby residential units and vehicular paths of travel as possible,
o locating the feature near existing mature trees to lessen the visual impact,
o screening the ground-based equipment from view with the installation of an eight-foot-high concrete block wall and associated landscape screening to soften the wall elevation.

• The illustrations provided by the applicant to the Planning Commission did not show the accurate height of the planned tower. The applicant did not supply accurate information to the Planning Commission, which based its decision on erroneous height information.

The Planning Commission was provided copies of an accurate photosimulation at the hearing depicting the proposed height and based their discussion and approval of the project on that exhibit.

• The proposed structure will tower over the area and lower the property value of the appellant’s developable land and home values in the Sterling Preserve neighborhood.

The aesthetic impacts of the proposal and the City’s ability to mitigate those impacts were addressed above.

• AT&T already has an approved cell tower north of Lone Tree Way at Acorn Self Storage that they plan to start constructing in 90 days. The tower is on commercial land and can allow for 3 other cell companies. Therefore, no additional towers are needed in this area of Brentwood.

Metro PCS, the applicant for the time extension for the tree pole at the Acorn Self Storage, has indicated that they desire to locate a similar feature on the Valley Oak Nursery site in lieu of the previous approval.

• The potential environmental effects of cell towers are not appropriate in a residential area. The tower should be kept away from residentially-zoned land.

The Federal Communications Commission regulates the amount of EMF radiation that may be produced by telecommunications sites. The 1996 Federal Telecommunications Act prohibits State and local governments from denying cellular sites so long as such facilities comply with the FCC regulations for frequency radiation emissions. Although the Federal government controls the sale of the airwaves, states do have jurisdiction over facility siting issues. All cell sites in California are governed by the California Public Utilities Commission. Local jurisdictions may not place more stringent requirements on cellular sites than those already in place. The approval of the project was conditioned to require the applicant to provide verification every two years that the site is operating within the FCC regulations. Staff points out that the proposed cellular site is further away from the nearest residential homes, a minimum distance of approximately 550 feet, than any other existing or approved cellular tower within the City of Brentwood.

The City Council hears appeals de novo, meaning that the Council can review all aspects of the application as if the application were being heard for the first time. After reviewing the appeal application with outside council specializing in telecommunication issues, staff has added two conditions of approval to the resolution. The first requires the revision of the plans to reflect only the equipment proposed for Metro PCS, which would require additional cellular carriers to obtain separate conditional use permits prior to installation, allowing the City review of the site modifications and any potential or cumulative impacts associated with those improvements. A second new condition of approval requires the applicant to incorporate the areas within the drip-lines of the mature trees existing on the site into their ground-lease agreement. This condition will enable the ground-lease holder to ensure that the existing trees remain in place per the condition of approval imposed by the Planning Commission.

CONCLUSION

Staff recommends that the appeal application be denied, with recognition that significant measures will be taken to camouflage the proposed tree pole, and based on existing case law and the inability for local governments to deny cellular site applications that are in conformance with the EMF levels allowed by the 1996 Federal Telecommunications Act.

ENVIRONMENTAL DETERMINATION

This type of project qualifies as a categorical exemption under Section 15303 of the California Environmental Quality Act (CEQA) in that the proposed project consists of the construction of a new small facility or structure and only minor modifications are being made to existing facilities or structures.

FISCAL IMPACT

Whether the City Council approves or denies the attached resolution denying the appeal of Planning Commission Resolution Nos. 08-007 and 08-008, there will not be any fiscal impact to the City of Brentwood.

Attachments:
1) Proposed City Council Resolution
2) Appellant’s letter dated “Received March 28, 2008”
3) Minutes from the March 18, 2008 Planning Commission Meeting
4) Planning Commission Resolution Nos. 08-007 and 08-008 with Conditions of Approval
5) Project plans submitted by CSI Towers, LLC, dated “Received January 29, 2008”


RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD DENYING AN APPEAL, FILED BY WILMA KRAUCYK, OF THE PLANNING COMMISSION DECISION APPROVING A CONDITIONAL USE PERMIT (CUP 08-02) AND A VARIANCE (V 08-02) TO ALLOW THE LOCATION OF A WIRELESS TELECOMMUNICATIONS FACILITY CONSISTING OF GROUND-BASED EQUIPMENT, A 100-FOOT-HIGH SIMULATED TREE POLE AND UP TO FOUR SETS OF PANEL ANTENNAE, LOCATED SOUTH OF LONE TREE WAY AND EAST OF FAIRVIEW AVENUE AT 7021 LONE TREE WAY (APN 018-080-016).

WHEREAS, CSI Towers, LLC has requested approval of a conditional use permit (CUP 08-02) and a variance (V 08-02) to establish a wireless telecommunication facility on the Valley Oak Nursery property located south of Lone Tree Way and east of Fairview Avenue at 7021 Lone Tree Way (APN 018-080-016); and

WHEREAS, the applicant has requested a conditional use permit to allow the establishment of a wireless telecommunication site including the installation of a 100-foot-high imitation tree pole, the mounting of up to four sets of panel antennae, an equipment enclosure located near the base of the tower as well as associated electric and communication wiring; and

WHEREAS, the applicant has concurrently requested approval of a variance allowing the antennae to exceed the maximum allowable height in the Ranchette Estate Zone of 35 feet; and

WHEREAS, the Planning Commission considered the wireless telecommunication facility project, consisting of the conditional use permit and variance, at a public hearing on March 18, 2008; and

WHEREAS, the Planning Commission passed Resolution No. 08-007 approving the conditional use permit and Resolution No. 08-0087 approving the variance at the public hearing meeting of March 18, 2008 by 5-0 votes; and

WHEREAS, on March 28, 2008 Wilma Kraucyk filed an appeal of the approval of Planning Commission Resolution No. 08-007 and No. 08-008 approving the conditional use permit and variance applications to allow the installation of a wireless telecommunications facility consisting of ground-based equipment, a 100-foot-high simulated tree pole and up to four sets of panel antennae located at the Valley Oak Nursery site at 7021 Lone Tree Way; and

WHEREAS, on April 8, 2008, the City Council set April 22, 2008 as the date of public hearing for the appeal; and

WHEREAS, a Notice of Public Hearing for the appeal was distributed to all property owners of record within 300 feet of the project site, those residents who filled out speaker cards at the Planning Commission public hearing meeting, those residents who submitted written comments prior to the Planning Commission meeting, and published in the Brentwood Press on April 11, 2008, in accordance with City policies and Government Code Section 65090; and

WHEREAS, on April 22, 2008, the City Council held a noticed public hearing and considered the appeal, including all supporting information and testimony presented at the City Council meeting; and

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby:

A. Makes the following findings in relation to Conditional Use Permit No. 08-02:

1. The subject site, as conditioned, will have adequate public facilities, utilities and service access when the project is completed, as all necessary utilities are already provided to the property and properly secured access will be provided to each potential ground-based equipment lease area within the enclosure; and

2. The harmony, bulk, and scale of the proposed project is consistent and compatible with existing and planned land uses around the subject site as the proposed cellular equipment will be installed within an attractively-designed screening enclosure and the proposed tree pole and panel antennas have been designed as a camouflaged cellular telecommunications site in the form of a monopine; and

3. The location, size, design, and operating characteristics of the proposed use, as conditioned, will be compatible with and will not adversely affect abutting properties as the proposed equipment installation will be entirely located within a screening enclosure and the proposed monopine has been sited so as to be adjacent to existing mature trees, located as far as possible from existing residential units; and

4. The communications site will not generate additional substantial sustained vehicular traffic in connection with the use beyond the necessary maintenance and installation of the ground-based equipment.

B. Makes the following findings in relation to Variance No. 08-02:

1. Strict compliance with the specified regulations would pose an unnecessary hardship upon the applicant, as cellular antennas, by design, are best installed at the highest point possible, allowing the equipment better range and, therefore, a wider service area for each site; and

2. Strict compliance with the height requirements would preclude an effective design solution as the range of the equipment would be severely reduced and additional cellular locations would be required throughout Brentwood to fill gaps created by the decreased range; and

3. Exceeding the maximum allowed height in the zone of 35 feet by approximately 65 feet should not adversely affect the character, livability or appropriate development of abutting properties and is not detrimental to the public welfare, given the proposed camouflaged cellular site, the low profile of the equipment, the presence of mature trees on the site and the distance of the proposed pole from existing homes as well as the benefit to public welfare related to voice and electronic communication services; and

4. Approval of this request will not result in a grant of special privilege inconsistent with the promotion of the public health, safety, comfort, convenience, prosperity, and general welfare as similar privileges have previously been granted within the City of Brentwood for other cellular carriers, including a simulated tree pole at the nearby Acorn Self Storage and a bare monopole at the Sunset Athletic Complex.

C. Upholds the Planning Commission's decision to approve Conditional Use Permit No. 08-02 and Variance No. 08-02, denies the appeal filed by Wilma Kraucyk, and approves Conditional Use Permit No 08-02 subject to the conditions of approval set forth in Exhibit A and approves Variance No. 08-02 subject to the conditions of approval set forth in Exhibit B.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 22nd day of April, 2008 by the following vote:





































EXHIBIT "A" TO
CITY COUNCIL RESOLUTION NO.
CONDITIONS OF APPROVAL FOR
CONDITIONAL USE PERMIT NO. 08-02


1. The conditional use permit shall substantially conform to the project plans prepared by CSI Towers, LLC, dated “Received January 29, 2008”, unless modified by other conditions of approval contained herein, or the Planning Commission.

2. The project shall be subject to the City of Brentwood’s Standard Conditions of Approval for Commercial and Industrial Projects, dated May 2005.

3. All utility extensions shall be underground and any relocation of existing utility facilities shall be done at the developer’s expense.

4. Any damage to existing public or private facilities resulting from project construction activities shall be repaired and/or corrected at the expense of the developer in a manner acceptable to the Director of Public Works/City Engineer.

5. The applicant shall ensure that facility construction and operational activities are performed in a manner which minimizes disruption of ongoing activities conducted on site.

6. If operation of this use results in conflicts pertaining to parking, noise, traffic, or other impacts, at the discretion of the Community Development Director, this conditional use permit may be referred to the Planning Commission for subsequent review at a public hearing. If necessary, the Commission may modify or add conditions of approval to mitigate such impacts, or may revoke said conditional use permit.

7. The applicant shall comply with all Federal, State, and local laws. Material violation of any of those laws in connection with the uses will be cause for revocation of this permit.

8. The applicant shall post radio frequency field warning signs on the proposed equipment enclosure to the satisfaction of the Community Development Director.

9. Final building plans shall include a note that the antennas are to be painted green in order to match the color of the simulated branches. This shall be verified in the field by staff prior to final approval of the required building permit.

10. All antennas mounted to the imitation tree pole will be flush-mounted to the ‘trunk’ in order to limit the visibility of the equipment.

11. Each modification to the pole/enclosure, including the addition of new antennas sets and ground-based equipment for additional carriers, shall require a separate building permit from the Community Development Department.

12. All wiring for the tree-mounted antennas shall be concealed within the ‘trunk’ of the imitation tree pole. This shall be reflected on each set of building plans for the individual permit applications.

13. The applicant shall obtain a minimum 10-foot-wide access easement from the property owner to ensure that the enclosure and tree pole may be accessed following the relocation of the site entrance in conjunction with the improvements planned for Lone Tree Way.

14. The applicant shall implement site specific control measures to ensure that the facility will be in compliance with the Federal Communication Commission's radio frequency exposure regulations. The measures shall be designed to protect anyone authorized to work adjacent to the facility. Prior to the issuance of a building permit, the applicant shall revise the plans to include these measures and shall submit documentation from an engineer licensed by the State of California verifying that the site will be in compliance with the FCC requirements.

15. The applicant shall hire a qualified engineer licensed by the State of California to measure the actual radio frequency radiation of the personal wireless facility and determine if it meets the Federal Communication Commission's standards. A report of all calculations, required measurements, and the engineer's findings, with respect to compliance with radio frequency standards shall be submitted to the Community Development Department within 2 years of the date of the approval of this case and every 2 years after the initial report.

16. Prior to the issuance of a building permit, the property owner or authorized agent for the project shall provide a written guarantee for the removal of the facility in the event that the use is abandoned, or its approval terminated. This written guarantee shall be subject to the review and approval by the Community Development Director, in consultation with the City Attorney, prior to the issuance of a building permit.

17. The mature trees existing near the imitation tree pole and identified on the site plan shall be maintained in place and not removed from the project area in order to ensure that the proposed monopine is able to blend in with the surrounding landscape features.

18. Prior to approval of a building permit, the applicant shall submit full-size revised plans to the Community Development Department showing only the Metro PCS equipment on the tree pole for the review and approval of the Community Development Director.

19. The ground-lease agreement between the project developer and the property owner shall include the surface areas under the drip-lines of the existing mature trees on the Valley Oak Nursery site which are identified on the site plan as being at least 50± feet tall.




EXHIBIT "B" TO
CITY COUNCIL RESOLUTION NO.
CONDITIONS OF APPROVAL FOR
VARIANCE 08-02


1. The variance shall substantially conform to the project plans prepared by CSI Towers, LLC, dated “Received January 29, 2008”, unless modified by other conditions of approval contained herein, or the Planning Commission.

2. The proposed imitation tree pole shall not exceed a maximum height of 100 feet above the adjacent grade and the antennas shall be centered no higher than 90 feet above the adjacent grade.


 
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