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HomeMy WebLinkAbout20200416_ZA_MinutesPage 1 of 8 NEWPORT BEACH ZONING ADMINISTRATOR MINUTES 100 CIVIC CENTER DRIVE, NEWPORT BEACH COMMUNITY ROOM THURSDAY, APRIL 16, 2020 REGULAR MEETING – 3:00 P.M. I. CALL TO ORDER – The meeting was called to order at 3:00 p.m. Staff Present: Jaime Murillo, Zoning Administrator Armeen Komeili, Deputy City Attorney Benjamin Zdeba, Senior Planner Chelsea Crager, Associate Planner Patrick Achis, Assistant Planner Joselyn Perez, Assistant Planner Melinda Whelan, Assistant Planner Liane Schuller, Planning Consultant II. REQUEST FOR CONTINUANCES Staff requested Item Number 9 be continued to April 30, 2020. The item will be re-noticed. III. APPROVAL OF MINUTES ITEM NO. 1 MINUTES OF MARCH 12, 2020 Action: Approved as Amended IV. PUBLIC HEARING ITEMS ITEM NO. 2 716 Heliotrope, LLC Condominiums Tentative Parcel Map No. NP2019-017 (PA2019- 262) Site Location: 716 Heliotrope Avenue Council District 6 The Zoning Administrator introduced the item with no need for a staff presentation due to the simplicity of the request. He explained the map will allow the duplex to sell each unit as a condominium and the map has been conditioned to assess a park fee and remove the non-permitted improvements in the right-of-way along Heliotrope Avenue. Melinda Whelan, Assistant Planner confirmed presence on the conference call and confirmed that she had received correspondence confirming that the applicant had reviewed and accepted all of the conditions. The Zoning Administrator explained that written correspondence was received from resident, Jim Mosher regarding combining repetitive conditions, and confirmed that this correction would be made to the resolution. The Zoning Administrator opened the public hearing in the room and on the phone. Seeing that no one from the public wished to comment, the public hearing was closed. Action: Approved as Amended ITEM NO. 3 AT&T Small Cell SLC0796 Minor Use Permit No. UP2019-030 (PA2019-111) Site Location: Public right-of-way, City streetlight number SLC0796, at the northwestern corner of Balboa Boulevard and 30th Street Council District 1 MINUTES OF THE MEETING OF THE NEWPORT BEACH ZONING ADMINISTRATOR 04/16/2020 Page 2 of 8 Benjamin Zdeba, Senior Planner, started by providing context and background on small cell wireless facilities. He noted they are being widely deployed throughout the country as a leading solution to solving coverage gaps and increased data demands. They are also intended to work in conjunction with the larger, macro facilities on a carrier’s network and service a smaller area. He stressed that the City’s review of these, and all wireless facilities, is largely limited by federal law and is narrowed to focus primarily on land use compatibility, aesthetics, and environmental impacts. The Federal Communications Commission (FCC) exclusively sets standards for radio frequency or “RF” emissions. As such, the City is not able to base any recommendation on potential health and safety impacts. He added that on February 12, 2019, the Newport Beach City Council authorized the execution of a Master License Agreement with AT&T, authorizing non-exclusive use of City-owned streetlights to install wireless telecommunications facilities and included approved designs, fee and rent assessments. Senior Planner Zdeba then continued to provide a brief project description noting that AT&T is requesting to remove and replace City Streetlight No. SLC0796, which is located within the public right-of-way adjacent to the northwestern corner of the Balboa Boulevard and 30th Street intersection. All surrounding land uses are residential and vary in density. This location is unique in that there is an approximately 20-foot wide landscaped parkway area buffering it from the nearest residence. This project requires the approval of a minor use permit. Senior Planner Zdeba continued that staff analyzed the project for consistency with the Coastal Act and determined it does not negatively impact any designated public view corridors nor does it negatively impact coastal access and resources. In consultation with Coastal Commission staff, it was determined the proposed replacement streetlight pole and small cell installation does not require the issuance of a coastal development permit. Furthermore, the streetlight pole is not located between the first public road paralleling the sea and the sea and the project is consistent with Section 21.49.050(B) of Title 21 (Local Coastal Program Implementation Plan), which aims to protect and enhance scenic resources. Mr. Zdeba stated that the replacement streetlight pole will be purposed with maintaining the intent of the City’s streetlight inventory. It will maintain the same exact luminaire height as the current streetlight pole. However, the new equipment will extend up to an overall height of 34 feet, 9 inches from grade. All equipment and supporting equipment will either be contained within the pole itself, behind a shroud/screen, or underground in a vaulted area. From a Municipal Code perspective, Mr. Zdeba stated that this type of facility is considered a Class 3 (Public Right-of-Way) installation and falls lower on the preferential list of installation types. The first two classes are stealth facilities, which are often housed on top of existing commercial and multi-family residential structures, and visible facilities, which are exposed antennas on existing commercial and multi-family residential structures. Given the lack of taller commercial buildings in the area, these more-preferred classes were determined to be unviable. Senior Planner Zdeba explained that although it does fall lower on the priority list, this facility is designed to blend into the streetscape without visually dominating the area. Maintaining the same luminaire height as the current pole will help to maintain consistency with the surrounding streetlights in the area. Furthermore, the Code discusses development standards including blending and screening. The proposed facility is located adjacent to a wide parkway area that is one of the largest in the area. It is planted with taller landscaping, including palm trees, which will serve as a softening buffer between the residential structures beyond. With respect to heights in the area, the maximum allowable height for the abutting residential zoning districts is 29 feet to the ridge of a sloping roof. The current streetlight pole sits just above the allowed height at 29 feet, 9 inches. The proposed streetlight pole with the proposed equipment on top would extend to an overall height of 34 feet, 9 inches and would not appear out of scale with the structures in the area. It is also notable that in many other areas, there are taller wooden utility poles. Mr. Zdeba added that another component of staff’s review is alternative sites in the area that may be better- suited for the proposed facility. The applicant provided analysis for five other sites in the vicinity. Attachment No. ZA 3 to the staff report goes into each alternative site in more detail and provides photographs as well. Each of the five alternative sites were determined to be unviable due to limited accessibility around a slightly MINUTES OF THE MEETING OF THE NEWPORT BEACH ZONING ADMINISTRATOR 04/16/2020 Page 3 of 8 wider pole, proximity to overhead powerlines, and location within an approved underground assessment district. Lastly, Senior Planner Zdeba stated that one piece of written correspondence was received prior to the staff report being published citing concerns related to health and safety impacts. Three additional pieces of written correspondence were received, two from an attorney, Mark Pollock, representing a resident and one from Jim Mosher. Mr. Zdeba concluded that staff believed all required findings can be made and recommended approval of this project. Zoning Administrator Murillo requested clarification as to why all the alternative sites were in such close proximity to one another. In response, Mr. Zdeba stated that the small cell wireless facilities are considered “micro” sites and have a smaller radius of transmission. They are intended to work in conjunction with larger macro sites. He also added that, although not required, the applicant provided coverage maps to identify the present gap in coverage that exists without the proposed site. Zoning Administrator Murillo stated that there are taller, mature palm trees adjacent to the site and that there should be a condition of approval added about compliance with the Migratory Bird Treaty Act. Mr. Zdeba indicated that condition would be added, if approved. In response to the correspondence received from Mr. Mosher, Zoning Administrator Murillo also requested additional information as to why the project was exempted from a coastal development permit. Mr. Zdeba stated that NBMC Section 21.52.035(c)(4) (Repair and Maintenance) is the operative section that was identified as being appropriate for the replacement of a streetlight with a small cell facility installation in consultation with Coastal Commission staff. Applicant Franklin Orozco, on behalf of the AT&T Mobility, stated that he had reviewed the draft resolution and agrees with all the required conditions. He also clarified that the site is a “pico” small-cell site, which does not have as wide of a range as macro sites. The range of a pico cell site is approximately 750 to 1,000 feet, which is why they typically only look at alternative locations within 250 feet of the targeted site. He also explained why a macro site was not feasible in this particular area and indicated that there will be several applications for similar projects coming forward. The Zoning Administrator opened the public hearing in the room and on the phone. Matthew Tanner, a resident at 209 30th Street, stated that everyone in his area was opposed to the project and expressed concerns about the potential health and safety impacts of the proposal. He submitted his written comments for the record. Denise Fenton, owner of the Beach Coin Laundry, also expressed concerns about the potential health and safety impacts of the proposal. She further added that the proposal is not aesthetically pleasing. Mark Pollock, attorney, referenced his submitted written correspondence and stated his disagreement that the Zoning Administrator has the authority to act on this application and that for the subsequent Item No. 4, under NBMC Section 20.49.080. He further expressed concerns with the applicant entity and its validity under the executed Master License Agreement with the City. He also expressed concern with the insurance requirements. Brenda Martin, a resident at 206 ½ 30th Street, cited health concerns and expressed opposition to the project. She submitted her written comments into the record. The Zoning Administrator closed the public hearing. Zoning Administrator Murillo acknowledged the stated health and safety concerns brought forward during the public comments section, but reiterated that the City does not have authority to restrict emissions or operation of the facility. Furthermore, he indicated that a decision cannot be rendered on account of the same concerns. MINUTES OF THE MEETING OF THE NEWPORT BEACH ZONING ADMINISTRATOR 04/16/2020 Page 4 of 8 Lastly, he noted that the City’s review is limited to aesthetics and land use compatibility, and that a more recent Federal Communications Commission ruling requires the City to accommodate such facilities within the public rights-of-way. In response to Mr. Pollock’s comments from his March 25, 2020, letter, Deputy City Attorney Armeen Komeili, stated that staff reviewed the two license agreements referenced in Mr. Pollock’s letter and the insurance requirements and has confirmed said insurance requirements have been met and certified by the correct entity. With respect to pollution liability, neither agreement has a pollution liability clause; therefore, it is not required. With respect to Mr. Pollock’s contention that the City has the ability to restrict or regulate the operation of these facilities, Deputy City Attorney Komeili stated that the Ninth Circuit has not yet opined on this matter, but the Second Circuit has stated that local governments are limited to regulating location, placement and modification, and cannot regulate the operation. As such, the City Attorney’s Office recommends against using the Minor Use Permit as a mechanism to restrict the operation of the facility. Zoning Administrator Murillo recapped the project and noted the change to the streetscape is very nominal and that the applicant’s design had accomplished blending and screening through maintaining similar attributes to the current streetlight pole. He further stated his agreement that this is the best location when considering all five alternative locations. Finally, he provided additional language under statement number four of “Section 1 Statement of Facts” with respect to the Coastal Development Permit exemption. The Zoning Administrator approved the project and found it exempt from the requirements of the California Environmental Quality Act under the Class 2 and 3 exemptions. Action: Approved as Amended ITEM NO. 4 AT&T Small Cell SLC4653 Minor Use Permit No. UP2019-034 (PA2019-115) Site Location: Public right-of-way, City streetlight number SLC4653, on the north side of Bayside Drive, approximately 900 feet northwest of El Paseo Drive Council District 5 Joselyn Perez, Assistant Planner, provided a brief project description stating that the applicant is requesting a minor use permit to allow the replacement of a City streetlight and the subsequent installation of telecom equipment for a small cell wireless facility. The streetlight proposed for the project, City Streetlight Number SLC4653, is located on the northeast side of Bayside Drive, approximately 900 feet northwest of El Paseo Drive. This streetlight is within the coastal zone and therefore initially evaluated in accordance with Newport Beach Municipal Code Section 21.30.100 Scenic and Visual Quality Protection. The project was found to not have one or more of the characteristics listed in subsection (B) of the aforementioned code section as the site is not located between the first public road and the sea, is not on a coastal bluff or canyon, and it is not adjacent to or within the viewshed of a public view point, a coastal view road, a public park or beach, or a public accessway, as identified on the Coastal Land Use Plan Map 4-3 Coastal Views, and does not contain significant natural landforms or vegetation. Assistant Planner Perez stated that the surrounding land uses are residential and vary in density from R-1 (Single-Unit Residential), immediately adjacent to the project site, to RM (Multiple Residential) across the street. The streetlight is separated from the R-1 residences by a steep landscaped downslope. Given the grade differential, the lower setting of the streetlight lessens any visual obtrusion from the proposed small cell facility and prevents the equipment from being within the line of sight for the existing R-1 development. The steep, landscaped hillside provides visual masking of the small cell facility as the streetlight is not isolated or the only visible feature within the general area. There are many streetlights along this stretch of Bayside Drive and the proposed project will blend in with the surrounding streetscape and existing streetlights. The overall height of the replacement pole and equipment is 27 feet, 5 inches and is approximately 7 feet taller than the exiting streetlight pole. The existing pole is approximately 19 feet high; however, its luminaire height is 20 feet 6 inches. The proposed streetlight with small cell equipment is under maximum allowed height of 35 feet for telecom facilities and is consistent with the Zoning Code.