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HomeMy WebLinkAbout20200528_ZA_Staff Report CITY OF NEWPORT BEACH ZONING ADMINISTRATOR STAFF REPORT May 28, 2020 Agenda Item No. 3 SUBJECT: AT&T Small Cell SLC0902 (PA2019-113) Minor Use Permit No. UP2019-032 SITE LOCATION: Public right-of-way, City streetlight number SLC0902, at the northwestern corner of 38th Street and Lake Avenue APPLICANT: New Cingular Wireless, LLC OWNER: City of Newport Beach PLANNER: Benjamin M. Zdeba, AICP, Senior Planner 949-644-3253, bzdeba@newportbeachca.gov LAND USE AND ZONING Public Right-of-Way (ROW) PROJECT SUMMARY A minor use permit to allow the installation of a small cell wireless facility on a City-owned streetlight pole. Project implementation will be fully contained within the public right-of-way on 38th Street and includes the following: (1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter screening shroud. This equipment would be fixed to the top of the replaced streetlight pole for a maximum height of 27 feet, 6 inches; and (3) Establishment of supporting equipment in an adjacent below-grade vault. RECOMMENDATION 1) Conduct a public hearing; 2) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the State CEQA (California Environmental Quality Act) Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment and the exceptions to the Class 3 exemption under Section 15300.2 do not apply; and 3) Adopt Draft Zoning Administrator Resolution No. _ approving Minor Use Permit No. UP2019-032 (Attachment No. ZA 1). 1 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 2 Tmplt: 07/25/19 BACKGROUND Over the last several decades, with the invention of new technologies like smartphones, tablets, and smartwatches, connectivity for wireless devices drove telecommunications companies to deploy equipment to allow for the cellular or wireless transmission of data, making possible new concepts such as live chat, streaming video and music. Wireless data demand and consumption continues to grow, outpacing the capacity of the existing telecommunications infrastructure. Small cell technology, like that proposed, is now being deployed across the country as a leading solution to resolve soaring data demand and make coverage more reliable. In contrast to traditional macro wireless sites (i.e., cell towers), small cells are able to advance a stronger signal over a small radius by the means of minimal equipment on existing infrastructure. The result is limited visual intrusion and the enhanced wireless network capacity which the City of Newport Beach residents, businesses, and visitors require. The City of Newport Beach (City ) regulatory review of wireless telecom siting is largely limited by three federal laws: The Communications Act of 1934, the Telecommunications Act of 1996 (Telecommunications Act ) and a provision of the Middle-Class Tax Relief and Job Creation Act of 2012 (Spectrum Act ). Together, these laws aim to facilitate and stimulate wireless infrastructure development and restrict certain aspects of local authority in review and permitting of cell sites such as time limits, location/colocation, and fees. On January 14, 2019, Federal Communications Commission (FCC) Declaratory Ruling and Order FCC 18-133 (Order ) became effective. This directive further removed barriers to wireless infrastructure deployment and established for processing small wireless facility applications at the local level. It also limited the rights as a property owner, restricting the type and amount of fees the City can collect for private use of public property. On February 12, 2019, the City Council authorized execution of a Master License Agreement (Master License ) (Contract No. C-8584-1) with New Cingular Wireless PCS, LLC (AT&T). The Master License authorized non-exclusive use of City-owned streetlights to install telecommunications equipment for small cell facilities, and included approved designs, fee and rent assessment, and changed City regulations for consistency with State and federal law. AT&T is responsible for all resultant construction, installation, maintenance, and repair of the small cell facilities, including all related costs and expenses. Further, AT&T is responsible for complying with all laws, statutes, ordinances, rules, and regulations that may be required for their projects. As the local regulatory agency, the City assesses wireless service facilities under local permitting protocol and ensures sites adhere to responsible regulatory 2 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 3 Tmplt: 07/25/19 practices, including safety, accessibility, environmental impact, land use, and aesthetics. At the State level, the California Public Utility Council (CPUC) is the responsible regulatory agency for the rules of utility infrastructure, including telecommunications. The FCC exclusively sets and polices standards for radio frequency (RF) emissions of wireless service facilities. PROJECT SETTING AND DESCRIPTION City of Newport Beach Streetlight No. SLC0902 is located within the public right- of-way on the northwestern side of 38 th Street near the northwestern corner of the Lake Avenue intersection. It is immediately adjacent to a vacant parcel that is triangular and approximately that is approximately 65 feet wide at its base. Beyond this parcel to the northwest is a block of two-unit residential development (Attachment No. ZA 2). All surrounding land uses are residential and vary in density from two- to single-unit residential. The only exceptions are the 38th Street Park and the Newport Island Park, which are both designated Parks and Recreation (PR). Under the new FCC Order, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot [inhibit] the introduction of new services or the improvement of existing services. Moreover, pursuant to Section 332(c)(7)(B)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless Although not required, the applicant produced a coverage map for the project (Attachment No. ZA 3). This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. Streetlight No. SLC0902 serves as a part of the City s existing streetlight inventory. AT&T proposes to: (1) remove and replace SLC0902 with a new streetlight in the same location; (2) maintain the existing luminaire height of 21 feet; (3) install telecommunications equipment for a small cell wireless facility on top of the new streetlight pole resulting in an overall height of 27 feet, 6 inches; and (4) establish new below-grade support equipment adjacent to the streetlight, within the public right-of-way. Please see the Project Description and Justification as Attachment No. ZA 4. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arm and luminaire. Project plans are available for reference as Attachment No. ZA 7. For safety and circulation of the area during construction, Condition of Approval No. 36 included within the draft resolution requires traffic control plans illustrating compliance with the 2016 WATCHBook (temporary traffic control guidelines in construction work 3 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 4 Tmplt: 07/25/19 areas) to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. CONSISTENCY WITH LAND USE PLAN AND ZONING CODE The project site is designated as Public Right-of-Way (ROW), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City-Owned Property) governs procedures and locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as this minor use permit request), yearly rent, and a license agreement. General Plan Natural Resources Goal NR 21 recommends the minimized visual impacts of signs and utilities. The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 20 and 21 prohibit advertising signage or identifying logos on any telecom facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. General Plan Land Use Policy LU 6.1.3 promotes architecture and planning that complements adjoining uses. The proposed design predominantly adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment when traveling down 38th Street or Lake Avenue. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. General Plan Land Use Policy LU 4 calls for the management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with supporting infrastructure and public services and sustain Newport Beach s natural setting. The proposed small cell facility upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and businesses of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The facility is designed to adapt and accept future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 4 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 5 Tmplt: 07/25/19 From a Zoning Code perspective, Newport Beach Municipal Code (NBMC) Chapter 20.49 (Wireless Telecommunication Facilities) outlines State- and federally-compliant telecommunication facility development standards and details permit procedures based on facility Class. Class of a wireless facility is characterized by its installation type and location. Small cell facilities located on City-owned streetlights in the ROW is a Class 3 specification (Public Right-of-Way Installations) and requires the applicant to obtain a Minor Use Permit from the Zoning Administrator (NBMC Section 20.49.060 [Permit Review Procedures]). NBMC Subsection 20.49.040(A) (Preferred Locations) prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2 (Visible Antennas); Class 3 (Public Right-of-Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. In accordance with NBMC Section 20.30.100 (Public View Protection) and General Plan Natural Resources Policy NR 20.3 (Public Views), the location is not located within a protected public view corridor and, therefore, would not have any impact to public views. NBMC Section 20.49.050 (General Development and Design Standards) requires projects to be visually compatible with surrounding structures. In reviewing this application, the Zoning Administrator shall consider the proposed use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted-to- match 12-inch diameter shroud. The proposed small cell facility would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and has the ability to display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 27 feet, 6 inches from finished grade to the top of the proposed facility complies with the maximum allowed height. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 32 requires approved design drawings from Southern California Edison (SCE) of the power supply to the small cell facility before construction of the facility is to commence. Existing residential properties that surround the site are in the R-1 (Single-Unit Residential) and R-2 (Two-Unit Residential) Zoning Districts. These residentially zoned sites allow for structures up to 24 feet for flat roof elements and 29 feet to the ridge of a sloped roof. The overall height of existing Streetlight No. SLC0902 sits below the maximum allowable height for residential structures and the 5 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 6 Tmplt: 07/25/19 proposed replacement streetlight with small cell equipment on top will also sit below this maximum by 1 foot, 6 inches. The streetlight is located within a landscaped parkway area and is separated from the nearest residences by a triangular-shaped vacant parcel to the west and the 38th Street right-of-way to the southeast. These distances provide a larger buffer from residential structures than any other streetlight location in the vicinity. Furthermore, keeping the luminaire the same height as the existing streetlight lessens visual obtrusion from the proposed small cell facility with the line of the existing development. Photographic visual simulations of the facility, depicting the existing and proposed conditions, have been prepared by the applicant and are included as Attachment No. ZA 6. The project site is located within the coastal zone. It is also located between the first public roadway paralleling the sea and the sea. Pursuant to Section 21.49.040(B) (Prohibited Locations) of the NBMC, new facilities are not allowed to be located between the first public roadway paralleling the sea and the sea, unless they are generally located on an existing structure. In this case, the proposal is allowed as the facility would be installed at an existing streetlight pole location. Although located within the coastal zone, the removal and installation of an existing streetlight pole is exempt from the requirements of a coastal development permit pursuant to Section 21.50.035(C)(4) (Repair and Maintenance) of the NBMC. In consultation with Coastal Commission staff, the modification of a streetlight for a small cell facility remains exempt, provided there is no visual resource impact. The project was reviewed for consistency with the Public View Protection regulations of Section 21.49.050(B) (Public View Protection) of the NBMC. It is not on a coastal bluff or canyon nor is it adjacent to a coastal view road or public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views). The site also does not contain significant natural landforms or vegetation. While it is within approximately 175 feet of the Newport Island Park, an identified public coastal viewpoint, the proposed facility is not within the direct viewshed of the Rivo Alto and is grouped with three mature palm trees, such that it will be indistinguishable at a distance. It is also immediately across 38th Street from Lake Street Park; however, there are several mature palm trees between, and the view of the Rivo Alto is unimpacted. The project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height, such that it will blend with the existing streetscape. The replacement streetlight is consistent with the size, shape, style, and design of the existing pole. No above- ground mounted equipment is proposed, and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. The project will not have a negative impact on coastal views or coastal resources; therefore, a coastal development permit is not required. 6 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 7 Tmplt: 07/25/19 HEALTH AND SAFETY Section 332(c)(7)(B)(iv) of U.S. Code Title 47 (Telecommunications) reads, no state or local government may regulate wireless telecommunication facilitates on the basis of the perceived health effects of radio frequency (RF) emissions to the extent that the proposed facilities comply with FCC regulations concerning emissions. Submitted RF materials from the applicant demonstrate the proposal would conform with FCC Rules and Regulations. Condition of Approval No. 25 requires the applicant to comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. ALTERNATIVE SITES CONSIDERED Three nearby streetlights were identified and investigated by the Applicant as possible alternate locations for this small cell facility; however, all sites were found by the applicant to be not viable (see Attachment No. ZA 3). Alternative Site #1 at City Streetlight No. SLC0903 is located approximately 135 feet southwest of the proposed location. This pole is located on a narrow sidewalk immediately in front of a three-story residential structure that is oriented towards 38th Street at the River Avenue intersection. The existing pole is approximately 3 feet, 6 inches from the private concrete block wall and only 10 feet from the residential structure without any landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with Americans with Disabilities Act (ADA) requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape. Alternative Site #2 at City Streetlight No. SLC0901 is located approximately 210 feet southeast of the proposed location. This pole is located on a narrow sidewalk immediately in front of a two-story residential structure that is oriented towards Lake Avenue at the 37th Street intersection. The existing pole is approximately 4 feet from the private fence and only 11 feet from the residential structure without any landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with ADA requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape. Alternative Site #3 at City Streetlight No. SLC0904 is located approximately 227 feet northwest of the proposed location. This pole is located immediately adjacent 7 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 8 Tmplt: 07/25/19 to the front patio of an existing, single-story residence. The existing pole is approximately 3 feet from the private wall and only 7 feet from the residential structure with minimal landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with ADA requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape. A analysis also concluded that a more preferred location as defined by NBMC Subsection 20.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. ENVIRONMENTAL REVIEW This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. In this case, the proposal includes the removal and replacement of an existing City streetlight pole to install a small telecommunications wireless facility, including below- grade accessory equipment. The exceptions to the Class 3 categorical exemptions under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. 8 AT&T Small Cell SLC0902 (PA2019-113) Zoning Administrator, May 28, 2020 Page 9 Tmplt: 07/25/19 PUBLIC NOTICE Notice of this application was published in the Daily Pilot, mailed to all owners of property and, although not required by the NBMC, residential occupants within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways), including the applicant, and posted on the subject streetlight pole at least 10 days before the scheduled hearing, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. APPEAL PERIOD: An appeal or call for review may be filed with the Director of Community Development within 14 days following the date of action. For additional information on filing an appeal, contact the Planning Division at 949-644-3200. Prepared by: _____________________ Benjamin M. Zdeba, AICP Senior Planner Attachments: ZA 1 Draft Resolution ZA 2 Vicinity Map ZA 3 Alternative Locations Studied and Rejected ZA 4 Coverage Maps ZA 5 ZA 6 Photographic Visual Simulations ZA 7 Project Plans 9 Attachment No. ZA 1 Draft Resolution 10 RESOLUTION NO. ZA2020-### A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2019-032 FOR A SMALL CELL FACILITY LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER SLC0902, NEAR THE NORTHWESTERN CORNER OF 38TH STREET AND LAKE AVENUE (PA2019-113) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by New Cingular Wireless, LLC (Applicant ), with respect to City of Newport Beach Streetlight Number SLC0902, located within the public right-of- way, near the northwestern corner of 38th Street and Lake Avenue, requesting approval of a minor use permit. 2. The Applicant proposes the installation of a small cell wireless facility on a City-owned streetlight pole. Project implementation will be fully contained within the public right-of-way on 38th Street and includes the following: (1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four (4) remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter screening shroud. This equipment would be fixed to the top of the replaced streetlight pole for a maximum height of 27 feet, 6 inches; and (3) Establishment of supporting equipment in an adjacent below-grade vault. . 3. The streetlight is located within the public right-of-way. The proposal is regulated by City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City-Owned Property), as well as Newport Beach Municipal Code (NBMC) Chapter 20.49 (Wireless Telecommunication Facilities). 4. The project site is located within the coastal zone. It is also located between the first public roadway paralleling the sea and the sea. Pursuant to Section 21.49.040(B) (Prohibited Locations) of the NBMC, new facilities are not allowed to be located between the first public roadway paralleling the sea and the sea, unless they are generally located on an existing structure. In this case, the proposal is allowed as the facility would be installed at an existing streetlight pole location. 5. Although located within the coastal zone, the removal and installation of an existing streetlight pole is exempt from the requirements of a coastal development permit pursuant to Section 21.50.035(C)(4) (Repair and Maintenance) of the NBMC. In consultation with Coastal Commission staff, the modification of a streetlight for a small cell facility remains exempt, provided there is no visual resource impact. The project was reviewed for consistency with the Public View Protection regulations of Section 21.49.050(B) (Public View Protection) of the NBMC. It is not on a coastal bluff or canyon 11 Zoning Administrator Resolution No. ZA2020-### Page 2 of 15 01-25-19 nor is it adjacent to a coastal view road or public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views). The site also does not contain significant natural landforms or vegetation. While it is within approximately 175 feet of the Newport Island Park, an identified public coastal viewpoint, the proposed facility is not within the direct viewshed of the Rivo Alto and is grouped with three mature palm trees, such that it will be indistinguishable at a distance. It is also immediately across 38 th Street from Lake Street Park; however, there are several mature palm trees between, and the view of the Rivo Alto is unimpacted. The project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height, such that it will blend with the existing streetscape. The replacement streetlight is consistent with the size, shape, style, and design of the existing pole. No above-ground mounted equipment is proposed, and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. The project will not have a negative impact on coastal views or coastal resources; therefore, a coastal development permit is not required. 6. A public hearing was held on May 28, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one (1) use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the proposal includes the removal and replacement of an existing City streetlight pole to install a small telecommunications wireless facility, including below- grade accessory equipment. 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. 12 Zoning Administrator Resolution No. ZA2020-### Page 3 of 15 01-25-19 SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with NBMC Subsection 20.52.020(F) (Conditional Use Permits and Minor Use Permits), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The project site is designated as Public Right-of-Way (ROW), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City-Owned Property) governs procedures and locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as this minor use permit request), yearly rent, and a license agreement. 2. General Plan Natural Resources Goal NR 21 recommends the minimized visual impacts of signs and utilities. The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 21 and 22 prohibit advertising signage or identifying logos on any telecom facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. 3. General Plan Land Use Policy LU 6.1.3 promotes architecture and planning that complements adjoining uses. The proposed design adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. 4. General Plan Land Use Policy LU 4 calls for the management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with supporting infrastructure and public services and sustain Newport Beach s natural setting. The proposed small cell facility upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and businesses of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The facility is designed to adapt and accept 13 Zoning Administrator Resolution No. ZA2020-### Page 4 of 15 01-25-19 future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 5. The project site is not located within a specific plan area Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. See Fact in Support of Finding A.1. 2. Wireless telecommunication facilities are regulated by NBMC Chapter 20.49 (Wireless Telecommunication Facilities). Installing small cell equipment in the ROW assigns the project a Class 3 specification (Public Right-of-Way Installations) and requires the Applicant to obtain a minor use permit from the Zoning Administrator (NBMC Section 20.49.060 [Permit Review Procedures]). 3. NBMC Subsection 20.49.040(A) (Preferred Locations) prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2 (Visible Antennas); Class 3 (Public Right-of-Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one (1) small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. 4. NBMC Section 20.49.050 (General Development and Design Standards) requires projects to be visually compatible with surrounding structures. In reviewing this application, the Zoning Administrator shall consider the proposed use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted-to-match 12-inch diameter shroud. The proposed small cell facility would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and has ability to display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 27 feet, 6 inches from finished grade to the top of the proposed facility complies with the maximum allowed. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 33 requires approved design drawings from Southern California Edison (SCE) of the power supply to the small cell facility before construction of the facility is to commence. 14 Zoning Administrator Resolution No. ZA2020-### Page 5 of 15 01-25-19 5. Existing residential properties that surround the site are in the R-1 (Single-Unit Residential) and R-2 (Two-Unit Residential) Zoning Districts. These residentially zoned sites allow for structures up to 24 feet for flat roof elements and 29 feet to the ridge of a sloped roof. The overall height of existing Streetlight No. SLC0902 sits below the maximum allowable height for residential structures and the proposed replacement streetlight with small cell equipment on top will also sit below this maximum by 1 foot, 6 inches. 6. The streetlight is separated from the nearest residences by a triangular-shaped vacant parcel to the west and the 38 th Street right-of-way to the southeast. These distances provide a larger buffer from residential structures than any other streetlight location in the vicinity. Furthermore, keeping the luminaire the same height as the existing streetlight lessens visual obtrusion from the proposed small cell facility with the line of the existing development. 7. Submitted materials from the Applicant demonstrate the proposal would conform with Federal Communications Commission (FCC) Rules and Regulations regarding safety and radio frequency (RF) emissions. 8. The proposed telecom facility will comply with applicable requirements of the NBMC with construction as shown on the plans and implementation of the conditions of approval. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. City of Newport Beach Streetlight No. SLC0902 is located within the public right-of-way on the northwestern side of 38th Street near the northwestern corner of the Lake Avenue intersection. It is immediately adjacent to a vacant parcel that is triangular and approximately that is approximately 65 feet wide at its base. Beyond this parcel to the northwest is a block of two (2)-unit residential development. All surrounding land uses are residential and vary in density from two (2)- to single-unit residential. The only exceptions are the 38th Street Park and the Newport Island Park, which are both designated Parks and Recreation (PR). 2. Under the new FCC Order, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot [inhibit] the introduction of new services or the improvement of existing Moreover, pursuant to Section 332(c)(7)(B)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless Although 15 Zoning Administrator Resolution No. ZA2020-### Page 6 of 15 01-25-19 not required, the Applicant produced a coverage map for the project. This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. 3. Streetlight No. SLC0902 serves as a part of the City s existing streetlight inventory. The Applicant proposes to: (1) remove and replace SLC0902 with a new streetlight in the same location; (2) maintain the existing luminaire height of 21 feet; (3) install telecommunications equipment for a small cell wireless facility on top of the new streetlight pole resulting in an overall height of 27 feet, 6 inches; and (4) establish new below-grade support equipment adjacent to the streetlight, within the public right-of-way. 4. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arm and luminaire. For safety and circulation of the area during construction, Condition of Approval No. 37 requires traffic control plans illustrating compliance with the 2016 WATCHBook to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. 5. The proposed telecom facility is anticipated to enhance coverage and capacity for residents, visitors and businesses in the neighborhood by providing wireless access to voice and data transmission services. The proposed telecom facility is not expected to result in any material changes to the character of the local community. 6. See Facts in Support of Finding B.4, B.5, B.6 and B.7. 7. The proposed facility will be unmanned, will have no impact on the circulation system, and, as conditioned, will not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site, and the proposed use will not change this. 2. The proposed facility will be unmanned and will have no permanent impact on the circulation system and adjacent land uses due to its location in the parkway, outside of existing vehicle or pedestrian circulation areas. 3. The Public Works Department and Utilities Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. 16 Zoning Administrator Resolution No. ZA2020-### Page 7 of 15 01-25-19 Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The proposed facility will only require periodic maintenance and will not generate any type of significant adverse impacts to the environment, such as noise, odor, smoke, etc. 2. The proposed facility must and will comply with the applicable Federal and State rules, regulations and standards thus, ensuring public health and safety. 3. See Facts in Support of Finding B.4, B.5, B.6, B.7, and B.8 4. The proposed telecom facility will be effectively blended based upon the design and location with the incorporation of the conditions of approval to the greatest extent feasible. As a result, the proposed facility at this location is not expected to result in conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. Wireless Telecommunications Facility In accordance with NBMC Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities), the following additional findings and facts in support of such findings are set forth: Finding: F. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: 1. See Facts in Support of Finding B.4, B.5, and B.6. 2. The closest residentially zoned property is located approximately 40 feet southeast of the project site and is buffered by the 38th Street right-of-way, which has a 4- to 5-foot- wide parkway area with vegetation of varying heights on its southeastern side. The proposed streetlight will blend in with the surrounding streetscape. There are no public parks immediately adjacent to the proposed project. The proposed facility and below- grade accessory equipment meets the City s design parameters approved by the City s Master License Agreement, which emphasizes stealth techniques and best practices to not be materially detrimental to the surrounding area. 17 Zoning Administrator Resolution No. ZA2020-### Page 8 of 15 01-25-19 Finding: G. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Finding: 1. The 27-foot, 6-inch tall small cell facility would comply with the maximum height limit of 35 feet for telecom facilities installed on streetlights within the public right-of-way. 2. See Facts in Support of Finding B in its entirety. 3. The application includes documentation indicating the need to provide and improve coverage to the residential areas within the City of Newport Beach. Moreover, the additional system capacity provided by the proposed facility will address service gaps that occur during high demand periods, as well as service gaps that exist at all demand periods to the surrounding area. The proposed small cell site will help AT&T to meet its coverage objectives and improve coverage to nearby areas that are currently marginal. Finding: H. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: 1. See Fact in Support of Finding C.2. 2. Three nearby streetlights were identified and investigated by the Applicant as possible alternate locations for this small cell facility; however, all sites were found by the Applicant to be not viable. Furthermore, they are less desirable from an aesthetic standpoint, as there is minimal setback from the residential structures and nearly no landscaping to help soften the facility and blend it into the existing streetscape a. Alternative Site #1 at City Streetlight No. SLC0903 is located approximately 135 feet southwest of the proposed location. This pole is located on a narrow sidewalk immediately in front of a three-story residential structure that is oriented towards 38th Street at the River Avenue intersection. The existing pole is approximately 3 feet, 6 inches from the private concrete block wall and only 10 feet from the residential structure without any landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with Americans with Disabilities Act (ADA) requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape 18 Zoning Administrator Resolution No. ZA2020-### Page 9 of 15 01-25-19 b. Alternative Site #2 at City Streetlight No. SLC0901 is located approximately 210 feet southeast of the proposed location. This pole is located on a narrow sidewalk immediately in front of a two-story residential structure that is oriented towards Lake Avenue at the 37th Street intersection. The existing pole is approximately 4 feet from the private fence and only 11 feet from the residential structure without any landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with ADA requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape c.Alternative Site #3 at City Streetlight No. SLC0904 is located approximately 227 feet northwest of the proposed location. This pole is located immediately adjacent to the front patio of an existing, single-story residence. The existing pole is approximately 3 feet from the private wall and only 7 feet from the residential structure with minimal landscaping in between. Installation of a small cell facility with its necessary underground supporting equipment at this location would not comply with ADA requirements and would further constrict pedestrian movement along the sidewalk area. Additionally, this alternative would be less desirable, as there are no softening features that would help blend the facility into the streetscape. Finding: I.An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: 1.See Fact in Support of Finding C.2. 2.AT&T’s analysis concluded that a more preferred location as defined by NBMC Subsection 20.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. NOW, THEREFORE, BE IT RESOLVED: 1.This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no 19 Zoning Administrator Resolution No. ZA2020-### Page 10 of 15 01-25-19 potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2.The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2019-032, subject to the conditions set forth in “Exhibit A,” which is attached hereto and incorporated by reference. 3.This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of NBMC Title 20 Planning and Zoning. PASSED, APPROVED, AND ADOPTED THIS 28TH DAY OF MAY, 2020. _____________________________ Jaime Murillo, Zoning Administrator 20 Zoning Administrator Resolution No. ZA2020-### Page 11 of 15 01-25-19 EXHIBIT A CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 4. The telecom facility approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatest extent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 7. All accessory support equipment of this facility shall be installed underground. 8. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 9. The telecom facility approved by the Use Permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City-trust property upon which the facility is located. 10. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 11. Prior to building permit final, a Height Certification Inspection shall be required prior to final of building permits. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 27 feet, 6 inches in height from existing grade. The top of the new luminaire shall not exceed a total of 21 feet in height from existing grade and shall match the height and shape of the existing luminaire. 21 Zoning Administrator Resolution No. ZA2020-### Page 12 of 15 01-25-19 12. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 13. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 14. The Applicant shall continually maintain the wireless telecom facility so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 15. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below-grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 16. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 17. The facility shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 18. The telecommunications facility shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. advanced planning and frequency engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public-Safety Communications Officials-International, Inc. ("APCO"), and as endorsed by the FCC. 22 Zoning Administrator Resolution No. ZA2020-### Page 13 of 15 01-25-19 19. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 20. The Applicant shall provide a "single point of contact" for carriers in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 21. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 22. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. Signage required by State or federal regulations shall be allowed in its smallest permissible size. 23. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 24. The Applicant shall maintain the telecom facility in a manner consistent with this approval. 25. The Applicant shall ensure that its telecom facility complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 26. The facility shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 27. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as 23 Zoning Administrator Resolution No. ZA2020-### Page 14 of 15 01-25-19 illustrated in the approved photographic simulations and in conformance with NBMC Section 20.49.050. 28. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, or remove the telecom facility and restore the site. 29. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapter 20.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 30. Minor Use Permit No. UP2019-032 shall expire unless exercised within 24 months from the date of approval as specified in NBMC Section 20.54.060 (Time Limits and Extensions), unless an extension is otherwise granted. 31. Construction activities shall comply with NBMC Section 10.28.040, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays or holidays. 32. This Use Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 33. A copy of the Resolution, including conditions of approval Exhibit A, and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 34. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by project implementation. 35. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney s fees, disbursements and 24 Zoning Administrator Resolution No. ZA2020-### Page 15 of 15 01-25-19 court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City s approval of AT&T Small Cell SLC0902, including, but not limited to, Minor Use Permit No. UP2019-032 (PA2019-113). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 36. Prior to the issuance of a building permit, an encroachment permit shall be required. 37. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 WATCHBook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 25 Attachment No. ZA 2 Vicinity Map 26 Feet Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Disclaimer: 5/20/2020 0 335168 27 Attachment No. ZA 3 Alternative Locations Studied and Rejected 28 29 30 31 32 33 34 35 36 37 Attachment No. ZA 4 Coverage Maps 38 39 40 41 Attachment No. ZA 5 Justification 42 Exhibit B New Cingular Wireless PCS, LLC d/b/a AT&T Mobility AT&T Site ID: CSTAM_007 and FA#14823074 Project Address: City Streetlight No. SLC0902, located at the northwest corner of 38th Street and Lake Avenue, Newport Beach Project Narrative New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T”) is proposing to install a new small cell wireless telecommunications facility to serve residents and businesses in this portion of the community. Small cells are low-power, low-profile wireless communications facilities that improve signal quality and capacity within AT&T’s existing wireless network. The proposed small cell facility will help AT&T provide and improve critical wireless services in this area. AT&T estimates that since the introduction of the iPhone in 2007, mobile data usage has increased 470,000% on its network. AT&T customers’ growing demand for mobile data services will continue to increase. Customer needs require AT&T to design and maintain its network to provide and improve wireless signal quality and to increase data rates sufficient to stream video. Areas that do not meet this minimal standard, or where wireless service is otherwise compromised, represent service issues that must be addressed. Specifically, this proposed small cell facility will improve AT&T’s wireless services by offloading network traffic carried by existing macro facilities in the area. In addition, faster data rates allow customers to get on and off the network quickly, which produces more efficient use of AT&T’s limited spectrum. By placing the small cell facility in areas where AT&T’s existing wireless telecommunications facilities are constrained and where AT&T experiences especially high network traffic, AT&T can address the existing and forecasted demand and support 5G speeds in the near future. Improving signal quality and increasing data speed is critical to providing the mobile experience customers demand and to manage the unprecedented increase in mobile data usage on AT&T’s network. The Center for Disease Control and Prevention (CDC) tracks the rates at which American households are shifting from landlines to wireless telecommunications. According to the CDC’s latest Wireless Substitution Report, more than 70 percent of Americans rely exclusively or primarily on wireless communications in their homes.1 In addition, the FCC estimates that 70 percent of all 911 calls are made from wireless devices.2 And with AT&T’s selection by FirstNet as the wireless service provider to build and manage the nationwide first responder wireless network, each new or modified facility will help strengthen first responder communications. Description of Service and Site Type AT&T selected the proposed facility as the best available means to address its service objectives in this portion of the city. The proposed small cell facility will be located in the public right-of-way, where AT&T has a right to place its equipment pursuant to Section 7901 of the California Public Utilities Code. The proposed node is a Pico cell site and will provide 4G services to the surrounding area. The project will involve the placement of a small antenna and associated small cell equipment enclosed within a replacement streetlight. For this small cell, AT&T proposes to install a 10-inch diameter omni-directional antenna and radios at the 1 See Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, January-June 2018 , available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201812.pdf. 2 See 911 Wireless Services, available at https://www.fcc.gov/consumers/guides/911-wireless-services. 43 Exhibit B Page 2 of 3 top of a replacement streetlight, fully concealed within a 12-inch diameter shroud. The facility will not obstruct pedestrian or vehicular traffic. It will not adversely affect the surrounding properties and will have a minimal physical and aesthetic footprint in this area. In addition, the proposed facility fully complies with applicable design criteria. Therefore, the City can easily make the necessary findings for approval for this small cell facility. The project scope will consist of the following: Removal and replacement of a streetlight. Installation of a single omni-directional antenna. Installation of four remote radio units and raycap disconnect switch within a shroud. Installation of below grade power and fiber handholds. Project Code Compliance The subject project complies with the City of Newport Beach’s Wireless Telecommunications Facilities Ordinance in the Public Right-of-Way, Chapter 21.49 in the following ways: 1. The proposed wireless facility is a small cell installation to be installed on a replaced streetlight in the public right-of-way to match the existing pole. 2. The project is allowed subject to the city’s approval of a Minor Use Permit. The proposed installation will not interfere with the use of the existing right-of-way. 3. The proposed facility is a low powered antenna designed to work in conjunction with other small cell sites in the area and to off-load capacity from an existing macro facility. The installation will comply with applicable regulations of the Federal Communications Commission as demonstrated in the enclosed FCC Local Official Guide to RF – Appendix A. 4. The replacement streetlight is consistent with the size, shape, style, and design of the existing pole, including the attached light arm. 5. The replacement streetlight, placed within the public right-of-way, does not exceed thirty-five (35) feet in height above the finished grade. 6. No above ground mounted equipment is proposed, and the support equipment is proposed to be placed in underground handholes. 7. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within the shroud. 8. Signage displayed on the wireless facility will be in the smallest permissible size. There will be no advertising signage. 9. The applicant will conform to all City of Newport Beach requirements. Conformance with FCC Regulations The proposed low powered antenna installation attached to the utility pole is considered categorical excluded by the FCC based on the analysis included in the FCC Optional Checklist for Determination of the Local Official’s Guide to RF (attached). Installations that are categorically excluded are considered to meet or exceed the FCC standards for RF Emissions. Construction, Maintenance and Monitoring Construction of the proposed project will take approximately 30-days. All construction will be done in a manner that minimizes impact to residents and/or businesses in the area. Existing underground or overhead power and fiber connections will be used with minimal trenching. Directional boring will be used when deemed appropriate for each specific location. 44 Exhibit B Page 3 of 3 Maintenance of the subject facility is minimal. The telecom operator will be responsible for maintenance of the telecom facility including, but not limited to, any missing, discolored or damaged screening, all graffiti will be removed promptly, and the facility kept clean and free of litter. Monitoring is typically done from AT&T’s switching offices. If needed, a site visit to change any radio equipment will be coordinated with the city through the appropriate process. Site Preferred Location and Alternative Analysis The City of Newport Beach Code Section 20.49.040 lists the preferred locations for telecommunication facilities to limit adverse visual effects and the proliferation of new or individual telecom facilities in the City. Class 3 is defined as public right-of-way installations where the facility can be installed on a structure located in the public right-of-way. The proposed AT&T small cell facility falls under this category and is the third on the list of preferred locations. The proposed installation is consistent with the approved city designs under the master agreement between AT&T and the City. Due to the slim design, camouflaged antenna, use of existing city structures within the right-of-way, AT&T believes that the changes to the existing streetlights are non-material or aesthetic changes that would not impact the surrounding development of this area. The other preferred locations as listed by code relate to the use of existing non-residential buildings or other structures, which are stealth and fully screened and not visible to the general public. These types of locations or structures are not feasible designs for small cells located within the public right-of-way. AT&T is committed to providing wireless telecommunications services and faster data rates throughout the City of Newport Beach and is doing so by installing the least intrusive technology, with the least intrusive design at the least intrusive locations. Rather than construct traditional tower facilities in or near residential neighborhoods, AT&T is choosing to deploy very small facilities, called “small cells,” that can be installed on utility infrastructure in the public right-of-way. A small cell is a low-powered cell site, which, when grouped with other small cells, can provide coverage in areas where traditional macro wireless facilities are not feasible. Although the signal from each small cell antenna covers a shorter range than a conventional tower site, small cells can be effective tools to help close significant gaps in service coverage or offload capacity with a minimal visual impact. Node CSTAM_007 will help AT&T close a significant gap in this area of the City by the least intrusive means, see attached coverage maps. AT&T has evaluated other locations for this project in the immediate vicinity of the proposed node. Attached is the alternative site analysis with detailed description of each alternative. Statement of Code Compliance The overall site location and design complies with applicable code provisions, the General Plan, and other published siting guidelines. For further analysis regarding the applicable code, please see the attached Statement of Code Compliance. 45 Statement of Code Compliance with Newport Beach Municipal Code (“NBMC”) Chapter 20.49 and Chapter 13.20 Below, we identify the applicable code criteria and demonstrate our compliance or acknowledgement of each provision. 20.49.040 Telecom Facility Preferences and Prohibited Locations. A. Preferred Locations. To limit the adverse visual effects of and proliferation of new or individual telecom facilities in the City, the following list establishes the order of preference of facilities, from the most preferred (1) to least preferred (4). 1. Collocation of a new facility at an existing facility. 2. Class 1. 3. Class 2 and Class 3. 4. Class 4. B. Prohibited Locations. Telecom facilities are prohibited in the following locations: Applicant Response: AT&T is proposing a Class 3 facility that replaces an existing concrete designed streetlight with a new similar concrete designed replacement pole. The design is consistent with the design of the existing pole and the type of infrastructure currently in the right of way. The design is consistent with the designs depicted and allowed pursuant to the Master License Agreement Between the City of Newport Beach and New Cingular Wireless PCS, LLC for the Use of City-Owned Streetlights for Telecommunication Facilities (“MLA”). As explained in the previous Alternative Analysis, a collocation or Class 1 or 2 facility would not be technically feasible in this location from an RF or construction perspective. Small cells are low power and must be located at the precise location selected to serve the network traffic demands of that specific and limited area. This type of service enhancement cannot be accomplished with a traditional macro collocation or building mounted site in this area. The site is not located in any of the locations prohibited by NBMC §20.49.040.B.1-4. 20.49.050 General Development and Design Standards. A. General Criteria. All telecom facilities shall employ design techniques to minimize visual impacts and provide appropriate screening to result in the least visually intrusive means of providing the service. Such techniques shall be employed to make the installation, appearance and operations of the facility as visually inconspicuous as practicable. To the greatest extent feasible, facilities shall be designed to minimize the visual impact of the facility by means of location, placement, height, screening, landscaping, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. Applicant Response: The Applicant has selected a design that minimizes visual impacts and is appropriately screened to result in the least visually intrusive means of providing service. The site will be placed in the right- of-way and will be virtually unnoticeable as this is the type of infrastructure one would expect to see in the 46 right-of-way. The facility is compatible with the architectural design of existing right-of-way infrastructure with respect to color, materials, scale and compatibility with the surrounding area. It matches the existing pole in scale and design and will not result in any net add of right-of-way infrastructure. Utilities are placed below grade and are not visible. In addition to the other design standards of this section, the following criteria shall be considered by the review authority in connection with its processing of any MUP, CUP, LTP, or ZC for a telecom facility: 1. Blending. The extent to which the proposed telecom facility blends into the surrounding environment or is architecturally compatible and integrated into the structure. Applicant Response: The facility blends into the surrounding environment and is compatible and integrated into the replacement structure. It matches the existing pole in terms of scale, color and materials and is consistent with expected infrastructure that exists in the right-of-way. 2. Screening. The extent to which the proposed telecom facility is concealed or screened by existing or proposed new topography, vegetation, buildings or other structures. Applicant Response: The site is screened to the extent that it matches and is concealed within a streetlight replacement pole. 3. Size. The total size of the proposed telecom facility, particularly in relation to surrounding and supporting structures. Applicant Response: The scale and total size of the proposed facility is consistent with existing right-of-way infrastructure. The new luminaire is consistent with the size, location and functioning of the luminaire being replaced. The 9.25” diameter of the new pole is consistent with and substantially similar to the diameter of the existing pole which is 9” at the location being measured. The pole height is almost identical except for the antenna enclosure at the top, which is also consistent with the design in terms of scale and width. The presence of communication equipment at this site will be virtually unnoticeable to the casual passerby. 4. Location. Proposed telecom facilities shall be located so as to utilize existing natural or manmade features in the vicinity of the facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. Applicant Response: The location in the right-of-way is appropriate as it is consistent with infrastructure expected to be located in the right-of-way. One of the purposes of the right-of-way is to accommodate infrastructure that will serve the needs of the community, so it is the appropriate place for this type of facility. 5. Collocation. In evaluating whether the collocation of a telecom facility is feasible, the criteria listed in subsections (A)(1) through (4) of this section shall be used to evaluate the visual effect of the combined number of facilities at the proposed location. Applicant Response: Collocation on this facility is not technically feasible from an RF and construction standpoint. Requiring a collocation on this facility would increase the visual impact and scale of this site. 47 B. Public View Protection. All new or modified telecom facilities, whether approved by administrative or discretionary review, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts from a new or modified telecom facility to public views that are not identified by General Plan Policy NR 20.3 shall be evaluated to determine if inclusion in Policy NR 20.3 would be appropriate. If deemed appropriate for inclusion, the potential impacts to such public views shall be considered. Applicant Response: This section is not applicable to this facility as it is not in an area that is subject to Public View Protection. C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a telecom facility that exceeds the maximum height limit for the zoning district in which the facility is located; provided, it does not exceed the maximum height limit by fifteen (15) feet, only after making all of the required findings in Section 20.49.060(H) (Required Findings for Telecom Facilities). Applicant Response: The height limitation for facilities located in the public right-of-way is 35 feet. NBMC §20.49.050.C.3. The facility complies with this standard as it does not exceed 35 feet. 2. All telecom facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060(E) (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the telecom facility is permitted or modified. Applicant Response: This provision is not applicable to this facility. 3. Telecom facilities installed on streetlights, utility poles, utility towers or other similar structures within the public right-of-way shall not exceed thirty-five (35) feet in height above the finished grade. Applicant Response: The facility complies with this standard as it does not exceed 35 feet. 4. Telecom facilities may be installed on existing utility poles or utility towers that exceed thirty-five (35) feet above the finished grade where the purposes of the existing utility pole or utility tower is to carry electricity or provide other wireless data transmission; provided, that the top of the proposed antennas do not extend above the top of the utility pole or utility tower. Applicant Response: This provision is not applicable to this facility. 5. Telecom facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. Applicant Response: This provision is not applicable to this facility. 48 D. Setbacks. Proposed telecom facilities shall comply with the required setback established by the development standards for the zoning district in which the facility is proposed to be located. Setbacks shall be measured from the part of the facility closest to the applicable lot line or structure. Applicant Response: This provision is not applicable as the facility is located in the right-of-way and replaces an existing structure. Also, the code specifically provides for a setback exception for light standards. NBMC § 20.30.110.D.11. E. Design Techniques. Design techniques shall result in the installation of a telecom facility that is in harmony and scale with the surrounding area, screens the installation from view, and prevents the facility from visually dominating the surrounding area. Design techniques may include the following: Applicant Response: The facility is in harmony and scale with the surrounding area. The new concrete designed pole is substantially similar in size and scale to the existing pole and the materials, design and color match. The facility is compatible with infrastructure that exists in the right-of-way and will be installed in the same location as the pole that is being replaced. The facility will not visually dominate the surrounding area. 1. Screening elements to disguise, or otherwise hide the telecom facility from view from surrounding uses. Applicant Response: The facility is a combination light pole and wireless facility and the antennas and other equipment components will be concealed within the pole. 2. Painting and/or coloring the telecom facility to blend into the predominant visual backdrop. Applicant Response: The facility will be concealed within a light pole and will be the same color and finish as the pole being replaced. 3. Siting the telecom facility to utilize existing features (such as buildings, topography, vegetation, etc.) to screen or hide the facility. Applicant Response: The facility is being sited in the right-of-way and will be installed in the same location as the pole being replaced and will have the same color and finish. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the telecom facility. Applicant Response: The facility is a light pole replacement, a structure that is expected to be located in the right-of-way, will be installed in the same location as the pole being replaced, and will have the same color and finish. 5. Providing telecom facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the facility would create greater visual impacts than the facility itself. Applicant Response: The facility is not visually obtrusive and is consistent with the size, scale, color and appearance of existing right-of-way infrastructure. 49 6. To the greatest extent practicable, new Class 4 facilities shall be designed and sited to facilitate the collocation of one additional telecom operator. Applicant Response: This criterion is not applicable as this facility is not a Class 4. F. Screening Standards. For collocation installations, the screening method shall be materially similar to those used on the existing telecom facility, and shall not diminish the screening of the facility. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the antennas and support equipment from public view. The following is a non-exclusive list of potential design and screening techniques that must be considered for all facility installations: Applicant Response: This criterion is not applicable as this facility is not a collocation. 3. For Class 3 (Public Right-of-Way) Installations. a. Whenever feasible, new antennas proposed to be installed in the public right-of-way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles or utility poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever feasible, and treated with exterior coatings of a color and texture to match the existing pole. Applicant Response: The facility design meets this criterion. The antenna is screened behind a cannister that is on top of the pole. It will be the same color and texture as the existing pole. b. New or replacement vertical structures may be allowed when authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed, provided they match existing or planned poles within the area. Applicant Response: The facility design meets this criterion and is allowed pursuant to the NBMC and the MLA. This replacement pole is substantially the same size, shape, style and design of the existing pole. It also has a luminaire that is the same height and brightness as the existing pole. c. If antennas are proposed to be installed without screening, they shall be flush-mounted to the pole and shall be treated with exterior coatings of a color and texture to match the pole. Applicant Response: This provision is not applicable as the antennas will be screened. 6. Support Equipment. All support equipment associated with the operation of any telecom facility shall be placed or mounted in the least visually obtrusive location practicable, and shall be screened from view. Applicant Response: Support equipment is either concealed or installed below grade and has no visual impact. b. Installations in a Public Right-of-Way. The following is a non-exclusive list of potential screening techniques for telecom facilities located in a public right-of-way: 50 i. Where existing utilities services (e.g., telephone, power, cable TV) are located underground, the support equipment shall be placed underground if required by other provisions of the Municipal Code. Flush-to-grade underground vault enclosures, including flush-to-grade vents, or vents that extend no more than twenty-four (24) inches above the finished grade and are screened from public view may be incorporated. Electrical meters required for the purpose of providing power for the proposed telecom facility may be installed above ground on a pedestal in a public right-of-way provided they meet applicable standards of Title 13 unless otherwise precluded by the Municipal Code. Applicant Response: The utilities serving this facility are either installed below grade or are concealed within the replacement pole. No above ground pedestals are proposed. ii. Support equipment approved to be located above ground in a public right-of-way shall be painted or otherwise coated to be visually compatible with the existing or replacement pole, lighting and/or traffic signal equipment without substantially increasing the width of the structure. Applicant Response: This provision is not applicable as no above ground support equipment is proposed. iii. All transmission or amplification equipment such as remote radio units, tower mounted amplifiers, and surge suppressors shall be mounted inside the utility or streetlight pole without materially increasing the pole diameter or shall be installed in the vault enclosure supporting the facility. Applicant Response: The transmission equipment is concealed within the pole. G. Night Lighting. Telecom facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose or as may be recommended by the United States Flag Code (4 U.S.C. Section 1 et seq.). Such lighting shall be shielded so that direct illumination does not directly shine on nearby properties. The review authority shall consult with the Police Department regarding proposed security lighting for facilities on a case-by-case basis. Applicant Response: No lighting is proposed other than the replacement luminaire which is being installed at substantially the same height and is the same brightness as the existing pole. H. Signs and Advertising. No advertising signage or identifying logos shall be displayed on any telecom facility except for small identification, address, warning, and similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the review authority. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. Applicant Response: The facility complies with this criterion. The only signage proposed is the required notice signage, facility owner information and signage and banners required to be installed by the City. I. Nonconformities. A proposed or modified telecom facility shall not create any new or increased nonconformity as defined in the Zoning Code, such as, but not limited to, a reduction in and/or elimination of, required parking, landscaping, or loading zones unless relief is sought pursuant to applicable zoning code procedures. 51 Applicant Response: The facility complies with the code and will not create a zoning code nonconformity. J. Maintenance. The telecom operator shall be responsible for maintenance of the telecom facility in a manner consistent with the original approval of the facility, including but not limited to the following: 1. Any missing, discolored, or damaged screening shall be restored to its original permitted condition. Applicant Response: The Applicant acknowledges that it is responsible for maintaining the site consistent with its original permitted condition. 2. All graffiti on any components of the telecom facility shall be removed promptly in accordance with the Municipal Code. Applicant Response: The Applicant acknowledges this requirement. 3. All landscaping required for the telecom facility shall be maintained in a healthy condition at all times, and shall be promptly replaced if dead, dying, or damaged. Applicant Response: No landscaping is proposed for this installation. 4. All telecom facilities shall be kept clean and free of litter. Applicant Response: The Applicant acknowledges this requirement. 5. All equipment cabinets shall display a legible contact number for reporting maintenance problems to the telecom operator. Applicant Response: The Applicant is not proposing equipment cabinets. 6. If a flagpole is used for a telecom facility, flags shall be flown and shall be properly maintained at all times. The use of the United States flag shall comply with the provisions of the U.S. Flag Code (4 U.S.C. Section 1 et seq.). (Ord. 2014-1 § 10 (part), 2014) Applicant Response: The Applicant is not proposing a flagpole. 20.49.060 Permit Review Procedures. H. Required Findings for Telecom Facilities. The following findings shall apply to all facilities requiring discretionary review: 1. General. The review authority may approve or conditionally approve an application for a telecom facility only after first finding each of the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following findings: a. The proposed telecom facility is visually compatible with the surrounding neighborhood. 52 Applicant Response: The facility is visually compatible with the surrounding area. The facility design is allowed pursuant to the MLA and applicable code and is substantially similar in design, shape, size, color and texture as the existing pole. All related equipment is either installed below grade or is concealed within the interior of the replacement light pole. b. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Applicant Response: The 27.5-foot-tall facility complies with the height, location and design standards. It is a Class 3 facility located in the right-of-way and meets the City approved design standards per the code and the MLA. c. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Applicant Response: The Applicant has provided an alternative analysis that addresses this criterion. No alternative site locations would fulfill the network needs that are fulfilled by this installation at this proposed specific location. d. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Applicant Response: As explained previously, small cells are designed to enhance network capacity and must be precisely located in a specific area to properly function due to their low power and limited range. A higher preference class facility would not be technically feasible and would not fulfill this specific network need. 53 Attachment No. ZA 6 Photographic Visual Simulations 54 55 56 57 Attachment No. ZA 7 Project Plans 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 From:Gina Unsworth To:CDD Subject:re: project file #PA2019-113 ACTIVITY NUMBER UP2019-032 AT & T "SMALL" CELL SLC00902 Tower at 38th St Date:Wednesday, May 27, 2020 8:53:35 AM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Good morning Below are my concerns/questions/ thoughts regarding the intended 27'+ communications tower 1-What other locations have been reviewed-why is this on suitable? 2-Has thought been given to the fact that the bridge is the only means on/off the island and so already has congestion without added congestion/disruption from this potential tower and subsequent utilities underground and then future maintenance. 3-Safety . Many children rightly or wrongly use the bridge as a jumping platform into the water. What will prevent them from seeing this a mere piece of diving equipment either to try to get into the water or the sand. 4-Has consideration been given to the fact that this is a 'beauty spot' which many people include in their photos of the picturesque island. How would this tower enhance that photo opportunity? 5-Has thought been given to the fact that residents pay out of their pocket at Christmas time to beautify the bridge with lights and this will negate their efforts or do AT & T intend to reimburse them? 6-Is there any monetary transactions with AT& T ( or any third part) and anyone else for allowing this cell tower to be located here? If so who? Why has a photo not been given to actually let residents see what it would look like? Many developers do that with houses. Why negate the charm of the island on and in the vicinity of the island? Years ago the residents paid thousands of dollars out of their own pockets to put utilities underground and now they are being subjected to having one of the largest towers in their area and eyesight. I think that within the vicinity there are other more suitable locations where a 27'+ tower would be less intrusive and they should be considered rather than this one at 38th St. I look forward to your consideration and response to my concerns. Unfortunately work prevents me from attending the public hearing. Kind Regards Gina Cruz resident of 38th St. Zoning Administrator - May 28, 2020 Item No. 3a Additional Materials Received AT&T Small Cell SLC0902 Minor Use Permit (PA2019-113) May 21, 2020, Zoning Administrator Agenda Comments Comments submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 3. AT&T Small Cell SLC0902 Minor Use Permit No. UP2019-032 (PA2019-113) Because the conditions in NBMC Title 20 that trigger the need for a Minor Use Permit in connection with proposals for new telecom facilities are essentially identical to those that trigger the need for a Coastal Development Permit under Title 21, I believe the current application cannot be approved without a CDP and fail to understand why one is not being processed concurrent with the MUP. Alternatively, the conditions that are claimed to extinguish the need for a CDP could equally well be said to extinguish the need for a MUP – which is not what was anticipated when the Master License Agreement was approved in 2019 with assurances individual installations would be subject to public hearing. While it may be true that Coastal Commission staff does not require CDP’s for similar applications in areas within their original jurisdiction, and while they may not object to Newport Beach doing the same, it is clearly inconsistent with the City’s certified Implementation Plan. In Section 1.5 of the proposed resolution (page 11 of the PDF staff report, which seems to be lacking handwritten sequential page numbers), staff cites the reasons for which it believes a CDP could be justified, if one had been asked for, but begins by saying a CDP is not necessary because of the “Repair and Maintenance” exemption of IP “Section 21.50.035(C)(4)” [sic]1. The “Repair and Maintenance” exemption is clearly inapplicable. The existing facility is a City streetlight. There is no allegation that either the pole or the light fixture is broken. So it is not being “repaired.” Likewise, the intended purpose of a streetlight is to provide light on streets. The present proposal is not for any “maintenance” necessary to continue the existing facility’s function, or even to upgrade the lighting to a more modern standard. It is, instead, a request to add an entirely new and possibly controversial use to an entirely new pole, as evidenced by the need for a MUP. Moreover, and as previously indicated, staff’s tortured interpretation of the “Repair and Maintenance” exemption is contravened by the explicit requirement for a CDP in the IP (NBMC Title 21), which is the same as the requirement for a MUP in Title 20. Not only does IP Subsection 21.49.020.C list the telecom applications exempt from a CDP requirement (and this is not among them), but (as staff acknowledges with regard to the parallel Title 20), Subsection 21.49.030.F.3 lists this as a Class 3 (Public Right-of-Way Installation) facility, for which Section 21.49.020 says “B. Permit and Agreement Required. Prior to installation or modification of any telecom facility in the City, the applicant shall obtain a coastal development permit that is consistent with the provisions of this Local Coastal Program.” While it is true that in defining the term “Wireless Tower,” Subsection 21.49.030.R says “For an example only, a prior-existing streetlight standard which is replaced with a new streetlight standard to permit the addition of antennas shall not be considered a wireless tower, but rather a replacement streetlight standard,” not being a “Wireless Tower” does not exempt the application from needing a CDP. Indeed, the term “Wireless Tower” is used only in defining Class 2 (Visible 1 There is no such section. The reference is presumably to Subsection 21.52.035(C)(4). Zoning Administrator - May 28, 2020 Item No. 3b Additional Materials Received After Deadline AT&T Small Cell SLC0902 Minor Use Permit (PA2019-113) July 25, 2019, Zoning Administrator agenda Item 4 comments - Jim Mosher Page 2 of 2 Antennas) in Subsection 21.49.030.F.2. And, again, if this dicta about replacement streetlight standards in Subsection 21.49.030.R in Title 21 could be read as exempting the present application from the need for a CDP, then Subsection 21.49.030.R in Title 20 would exempt it from the need for an MUP. Staff does not make that claim, and instead, presumably, looks to Subsection 20.49.020.C for exemptions to the Title 20 Wireless Telecommunications Facilities chapter. It needs to look to Subsection 21.49.020.C for exemptions to the CDP requirement. Why does this matter? This is important because in Section 1.5 of the proposed resolution, staff acknowledges some small cell installations could raise Coastal Act issues requiring a CDP, but reports as “facts” its conclusions that given the particular circumstances of this application, this one does not. The problem is the public has a right to challenge those conclusions. The ultimate challenge is appeal to the Coastal Commission for their interpretation of the IP and the Coastal Act. But the path to that appeal is through public consideration of a CDP. By bypassing the CDP entirely, and neither granting one or formally waiving the requirement for one, the City’s conclusions about this will not be reported to the CCC, it will not appear on their list of appealable actions, and the public’s right of appeal, at least the normal one, will be foreclosed. To further expand on this point, waiving the CDP requirement for "de minimis" development having no potential to impact coastal resources (which is what staff evidently thinks this is) is allowed by IP Section 21.52.055, but only for development outside the CCC appeal area. This project is not eligible for a waiver since it is, according to the staff report, between the first public road and the sea. In fact, because of its location, it is specifically prohibited by IP Subsection 21.49.040.B.6. Subsection 21.49.040.B says: “Telecom facilities are prohibited in the following locations: … 6. Any beach or between the sea and first public road paralleling the sea, unless telecom facilities are collocated on an existing utility tower within a utility easement area, or collocated on an existing facility; or other existing building.” The existing City streetlight is not a “utility tower” – defined in Subsection 21.49.030.Q as “an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities.” It is not an existing “facility” as defined in Subsection 21.49.030.O. And it is not an existing “building,” defined in Subsection 21.70.020.B as “a structure having a roof supported by columns or walls for the housing or enclosure of persons, animals, chattels, or property of any kind. See “Structure.”” Since this wireless proposal meets none of the stated exceptions, it is not only not exempt from the CDP requirement, but its construction is prohibited by the IP, whether or not it has what staff regards as a significant visual or other impact. In Section 1.4 of the proposed resolution, staff reaches a contrary conclusion, but that conclusion is not supported by the plain reading of the IP. Zoning Administrator - May 28, 2020 Item No. 3b Additional Materials Received After Deadline AT&T Small Cell SLC0902 Minor Use Permit (PA2019-113) From:Jim Mosher To:CDD Subject:Re: Someone else"s comment on ZA Item 3 Date:Wednesday, May 27, 2020 3:38:47 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Incidentally, last night the City Council received a comment which seems to have been misaddressed to them, but which was really regarding tomorrow's ZA Item 3. It has been archived here: http://ecms.newportbeachca.gov/Web/0/doc/2509516/Page1.aspx -- Jim On Wednesday, May 27, 2020, 03:33:19 PM PDT, Jim Mosher <jimmosher@yahoo.com> wrote: Please find attached "Option 2" comments on tomorrow's Zoning Administrator Items 1 & 3. (sorry, I am still waking up from last night's Council meeting and just noticed the new 9:00 a.m. deadline for ZA comments ... I thought it was still 5:00 p.m. ...) -- Jim Mosher Zoning Administrator - May 28, 2020 Item No. 3b Additional Materials Received After Deadline AT&T Small Cell SLC0902 Minor Use Permit (PA2019-113) From: Sent: To: Subject: -----Original Message----- Rieff, Kim Tuesday, May 26, 2020 7:00 AM Mulvey, Jennifer FW: Agenda item #3 From: Gary Cruz <gcruz@ushandball.org> Sent: Monday, May 25, 2020 9:30 AM To: Dept -City Council <CityCouncil@newportbeachca.gov> Subject: Agenda item #3 Received After Agenda Printed May 26, 2020 Item No. Non-Agenda [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Dear City Council Members; I believe there is a meeting soon about the installation of a WiFi tower near the Newport Island bridge. My wife and I are not in favor of it. Besides being an eye soar, we are concerned that the installation of it, and should it need service, will be a significant traffic concern as the bridge is the only access to and from the island. The increased use of that area by kids, has become a bottleneck many hours of the day during the summer. With all the home construction and large vehicles that accompany the projects, it seems to us, we need relief from additional projects rather than a new project. We think there are better locations for the tower. On a related note, we have been very concerned with all the kids congregating at that area as they jump off the bridge. do know the police are trying to regulate it but they face an uphill battle. I have called it in a few times (especially when the kids are a large group and park bikes in the street} and the police are very responsive. I also monitor the crime reports and see that every day the police "advise" the kids. The other day I also noted that a citation was issued. Other than installing some deterrent other than a sign, that is largely ignored, we feel citations rather than advisement is the best solution. Thanks for your service to the community. Gary and Gina Cruz 503 38th St 1 Zoning Administrator - May 28, 2020 Item No. 3b Additional Materials Received After Deadline AT&T Small Cell SLC0902 Minor Use Permit (PA2019-113)