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HomeMy WebLinkAbout20201022_PC_MinutesPlanning Commission Minutes October 22, 2020 2 of 13 2. Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to install noncompliant private improvements consisting of two steps and a fence with pilasters that encroach into the Tustin Avenue public right-of-way, contingent upon all conditions of the Encroachment Permit process being met (Attachment No. PC 1); and 3. Adopt Resolution No. PC2020-038 waiving City Council Policy L-6 and approving Encroachment Permit No. N2020-0482. In response to Commissioner Koetting’s inquiries, City Traffic Engineer Tony Brine reported the minimum width of a walkway that is compliant with the Americans with Disabilities Act (ADA) is 36 inches, but 48 inches is preferred. The existing walkway is less than 36 inches. The City does not plan to build sidewalks in Newport Heights and, therefore, has not objected to this type of encroachment. Lights are not allowed within the steps. In response to Vice Chair Lowrey’s question, Assistant City Attorney Yolanda Summerhill confirmed that the agreement clearly states the property owner is not granted an interest in the property and that the agreement is subject to being withdrawn. ITEM NO. 3 BARRETT ENCROACHMENT (PA2020-288) Site Location: 445 Tustin Avenue Summary: A request to waive City Council Policy L-6 to install noncompliant private improvements within the Tustin Avenue public right-of-way including two walls with a maximum height of 39 inches that encroach up to 8 feet into the public right-of-way. Recommended Action: 1. Find the project exempt from the California Environmental Quality Act (CEQA) Guidelines pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures), because it has no significant effect on the environment; 2. Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to retain noncompliant private improvements consisting of two walls that encroach into the Tustin Avenue public right-of-way, contingent upon all conditions of the Encroachment Permit process being met; and 3. Adopt Resolution No. PC2020-039 waiving City Council Policy L-6 and approving Encroachment Permit No. N2020-0512. Jim Mosher did not agree with allowing this pattern of development. This area of Tustin Avenue does not have sidewalks. The homeowner has installed a wall practically at the edge of the roadway and planted shrubbery behind the wall. Screening a yard is typically allowed for a corner lot only. The staff report does not indicate if the shrubbery will be removed. Motion made by Chair Weigand and seconded by Commissioner Rosene to approve Agenda Items 2 and 3. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Koetting, Rosene NOES: ABSTAIN: ABSENT: VII. PUBLIC HEARING ITEMS ITEM NO. 4 AT&T SMALL CELL SLC0902 APPEAL (PA2019-113) Site Location: Public right-of-way, City streetlight number SLC0902, at the northwestern corner of 38th Street and Lake Avenue. Summary: An appeal of the Zoning Administrator’s August 27, 2020, decision to approve a coastal development permit allowing the installation of a small cell wireless facility on a City-owned streetlight pole. Planning Commission Minutes October 22, 2020 3 of 13 Recommended Action: 1. Conduct a de novo 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 Resolution No. PC2020-034 upholding the decision of the Zoning Administrator and approving Coastal Development Permit CD2020-119 with the attached Findings and Conditions. Senior Planner Ben Zdeba reported the City's review of applications for small cell and wireless communication facilities is limited by federal law to aesthetics, land use, and environmental impacts. Decisions on applications cannot be based on concerns about radio frequency (RF) emissions from the facilities. On February 12, 2019, the City Council authorized a Master License Agreement (MLA) with New Cingular Wireless for the use of City- owned streetlights. In May 2020, the Zoning Administrator approved a minor use permit for an installation at the subject streetlight; however, staff later determined a CDP is required for a small cell installation because it is not exempt from Title 21. On August 27, 2020, the Zoning Administrator approved a CDP, and Mr. Mosher appealed the decision. The appeal cited concerns regarding insufficient analysis of alternative sites and contended that the subject site is a prohibited location under Title 21. Parcels surrounding the location are zoned for residential or Parks and Recreation. Wireless telecommunication facilities cannot be sited on single-family or two-family residential lots but may be sited in a park. However, the Recreation and Senior Services Department does not view such applications favorably because a wireless facility is not a recreational amenity for the public. The list of prohibited locations includes locations between the sea and the first public road parallel to the sea. In this case, the location of the facility is in the road, which is not a prohibited location. The applicant proposes to replace the existing streetlight with a streetlight/antenna in the same location but at a height of 27 feet 6 inches, which is below the 29-foot height limit for residential structures in the area. The luminaire height will remain the same. The antenna will be enclosed in a 12-inch-diameter shroud, and all equipment will be located on the pole or in a below-grade vault. This type of installation is a Class 3 installation and requires a minor use permit. The minor use permit for this facility remains in effect as an appeal has not been filed. The applicant is charged with providing an alternative sites analysis while staff is charged with reviewing the analysis and ensuring its accuracy. Staff and the Zoning Administrator reviewed these sites as well. Senior Planner Zdeba provided a PowerPoint presentation with visual simulations of the proposed installation and photographs of alternative sites. Alternative Site 1 is located on the corner of 38th Street and River Avenue. There is no landscaping on the corner, and the location is very close to a residential neighborhood. The distance between the pole and the curb is less than 3 feet, which does not conform to ADA requirements. When an existing nonconforming structure is replaced, the new structure must conform with ADA requirements. Alternative Site 2 is located at the corner of 37th Street and Lake Avenue. The distance between the light pole and the fence is at least 3 feet but less than 4 feet. The light pole is not softened by landscaping and is only 11 feet away from the residential structure. Alternative Site 3 is located at the corner of 39th Street and River Avenue. The distance between the light pole and the wall is less than 3 feet. The only identified public viewpoint is from Newport Island Park. From Newport Island Park, the streetlight will blend into the residential backdrop and with the character of the neighborhood. Mr. Zdeba shared the definition of “public view” from Title 21. The streetlight will not impact the view from Newport Island Park. Furthermore, the streetlight will be behind the view of the canal from Lake Avenue Park and will not impact the view, which is not a designated viewpoint. With the installation of this facility, wireless coverage in the immediate area will improve. The application is consistent with the Local Coastal Program (LCP) Implementation Plan, the Zoning Code, the General Plan, City standards, and the facility will be visually compatible with the area. Staff recommends the deletion of Condition of Approval 35 and the addition of a condition of approval stating "no demolition or construction materials, equipment debris, or waste shall be placed or stored in a location that would enter sensitive habitat, receiving waters, or storm drains or results in impacts to environmentally sensitive habitat areas, streams, canals, the beach, wetlands or their buffers." Planning Commission Minutes October 22, 2020 4 of 13 In response to Commissioner Koetting's inquiries, Senior Planner Zdeba confirmed the existing streetlight will be replaced with a new one. There will not be a temporary light. The MLA outlines the schedule of fees and rents. Placing signs and stickers on the light pole can be prohibited, if the Commission wishes. Commissioners Ellmore, Klaustermeier, Rosene, Koetting, Vice Chair Lowrey, and Chair Weigand disclosed no ex parte communications. Secretary Kleiman disclosed email correspondence with members of the public. Chair Weigand opened the public hearing. Cory Autrey, applicant's representative, advised that the initial application was submitted in June 2019 and deemed complete in early 2020. The Zoning Administrator approved a minor use permit in May 2020, and no appeal of the decision was filed. Staff determined a CDP would be required, which prompted the Zoning Administrator hearing on August 27, 2020. Most of the small cell facilities in Newport Beach have radios and antenna enclosed in a shroud, which is mounted to the light pole. Small cell facilities are intended to fill small coverage gaps and to add capacity to a macro network. Utilizing infrastructure located in public rights-of-way allows AT&T and other carriers to provide a consistent design. The California Public Utilities Code, the Federal Telecommunications Act of 1996, and the Federal Communications Commission (FCC) 2018 Wireless Infrastructure Order support carriers' use of structures in the public right-of-way. The small cell facilities contain small fans that cannot be heard by pedestrians. Franklin Orozco, applicant's representative, indicated three alternative sites were analyzed, and all the alternatives fail to meet ADA requirements. The proposed location has ample space to comply with ADA requirements. The design of the small cell facility meets the City's standards. The applicant has reached an understanding with the Public Works Department to replace the streetlight in approximately ten days and can provide a temporary light during construction, if necessary. The cooling fans will operate during extreme hot weather rather than continuously. In answer to Commissioner Rosene's query, Mr. Orozco explained that radio engineers use software and customer demands to determine areas where facilities can improve coverage. In reply to Secretary Kleiman's questions, Mr. Orozco related that the difference in height between the existing streetlight and the new one is approximately 6 feet. Some facilities are designed with the radios attached to the exterior of the poles; however, they are more visible. In response to Chair Weigand's inquiry, Mr. Orozco indicated the facility is part of AT&T’s 4G implementation program. Jim Mosher, the appellant, indicated his belief that small cell facilities are not small and unobtrusive. He believed the additional 6-foot height noted by Mr. Orozco is the distance above the luminaire, which is located above the top of the pole. The new pole will be extended a couple of feet with the structure above that for a total additional height of 8 feet. A CDP is not the same as a minor use permit. In approving a CDP, the City is obligated to find something that makes the City desirable and attractive to residents as well as the public in general. The Zoning Code lists four locations where telecom facilities are prohibited. The LCP Implementation Plan provides two additional prohibited locations, one of which is the area between the first public road and the sea. The first public road is defined as a road that contains an all-weather surface open to motor vehicles. The proposed site is located in a planter that is located between a roadway and the sea. The intent of the Coastal Act is to protect that coastal resource. Since May, staff has stated the proposed site is located between the first public road and the sea. On Monday, staff indicated it is not located between the first public road and the sea. The City's GIS information indicates the beach area has been designated as a City-owned parcel. The beach area is also zoned R-2. Design standards contained in Title 21 are stricter than those contained in Title 20. Mr. Mosher continued and reported that telecom facilities have to be designed to minimize the visual impact of the facility. The Planning Commission's duty is to ensure that the project is located and designed to protect and, where feasible, to enhance the scenic and visual qualities of the Coastal Zone. He shared a photograph of the proposed site, which he considered a scenic coastal view. The applicant requests approval of an 8-foot-tall structure atop the streetlight that is in the view. The structure does not seem consistent with what the Planning Commission is supposed to approve. The alternative site at 39th Street is not appropriate because of ADA Planning Commission Minutes October 22, 2020 5 of 13 requirements. There appears to be a choice between violating ADA requirements at the 39th Street location and violating the Coastal Act at the proposed location. The City should be able to find a creative solution such that the 39th Street location is appropriate for a wireless facility. In his opinion, a facility on the streetlight at 39th Street would have less effect on the view than the proposed location. A wireless facility on the streetlight at 37th Street would also impact the view. With a creative solution for ADA requirements, the 39th Street streetlight would be the most appropriate location with the 37th Street location being less appropriate and the proposed location being the least appropriate. The design of the cell installation located on a streetlight at the Back Bay Bridge is less impactful than the proposed design. Staff is supposed to notify people who have requested notice and people who are interested in the project of the public hearing for the project, which they may not have done. Dorothy Larson believed approval of the site should be expedited in light of the community's need for good connectivity. The wireless facility will not be obtrusive. Chair Weigand closed the public hearing. In response to Commissioner Rosene’s inquiries, Mr. Autrey advised that he does not have knowledge specific to the facility located at the Back Bay Bridge. If the facility is a macro site, it is more high-powered and covers a larger area than the proposed small cell facility. Senior Planner Zdeba clarified that the existing facility to which Mr. Mosher referred is an existing wireless telecommunications facility in the public right-of-way. In answer to Commissioner Klaustermeier's question, Senior Planner Zdeba indicated that the sidewalk at the proposed location is not ADA-compliant; however, the site is located in the parkway, which is the distinguishing characteristic of the site. In reply to Secretary Kleiman's queries, Senior Planner Zdeba related that staff had not been following any other similar applications that may have been appealed to the California Coastal Commission. Because the City's Title 21 standards for wireless facilities do not provide the exemptions in the Coastal Act, the City requires a CDP for a wireless facility. The Coastal Commission routinely issues a waiver based on the exemptions in the Coastal Act. Staff is aware of the need to amend the LCP to include the exemptions. Secretary Kleiman commented that this infrastructure is needed. Once again, there is a conflict with the Coastal Act. This will likely be appealed to the Coastal Commission, which will refer it back to the City. One of the alternative sites does not have the same objections or problems as the proposed location. In response to Chair Weigand's inquiry, Assistant City Attorney Summerhill reported staff did not notice the item as consideration of alternative sites. Staff would interpret the Planning Commission's desire to consider alternative sites as a denial of the application and would return with a resolution supported by findings. Secretary Kleiman expressed interest in additional wireless facilities to improve coverage. The fact that a small cell facility covers only 250 to 1,000 feet is concerning given the effort involved in submitting and approving an application. Mr. Mosher's reading of the LCP Implementation Plan is not incorrect. Her concern is having to repeat the approval process if the Planning Commission's approval is appealed to the Coastal Commission who refers it back to the Planning Commission. In answer to Chair Weigand's queries, Deputy Community Development Director Jim Campbell explained that the Planning Commission's decision could be appealed to the City Council or the Coastal Commission. Staff feels the recommendation is consistent with the LCP. If the Coastal Commission staff believes a facility could have a visual impact based on the visual impact analysis, it will require a CDP. If the Coastal Commission staff does not believe a facility would have a visual impact, it will exempt the facility. Mr. Orozco indicated he has been involved in appeals of similar facilities in similar locations, and the Coastal Commission has exempted those facilities. He preferred the Planning Commission make a decision. In reply to Secretary Kleiman's question, Senior Planner Zdeba advised that existing streetlights may not comply with the ADA requirement for a 36-inch clear path of travel. If a streetlight is voluntarily replaced, it must comply with the requirement. Given the age of the streetlights, they were likely installed prior to the ADA. Planning Commission Minutes October 22, 2020 6 of 13 Commissioner Rosene remarked that the existing streetlight at Alternative Site 3 is not ADA compliant, but the appellant preferred that location. Perhaps the applicant would be willing to construct an ADA-compliant streetlight and facility at Alternative Site 3. Motion made by Commissioner Koetting and seconded by Commissioner Lowrey to approve the staff recommendation with staff's proposed amendments. AYES: Weigand, Lowrey, Ellmore, Klaustermeier, Koetting, Rosene NOES: Kleiman ABSTAIN: ABSENT: ITEM NO. 5 AT&T SMALL CELL SLC4653 APPEAL (PA2019-115) Site Location: Public right-of-way, city streetlight number SLC4653, on the north side of Bayside Drive, approximately 900 feet northwest of El Paseo Drive Summary: An appeal of the Zoning Administrator’s August 27, 2020, decision to approve a coastal development permit allowing the installation of a small cell wireless facility on a City-owned streetlight pole. Recommended Action: 1. Conduct a de novo 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 Resolution No. PC2020-035 affirming the decision of the Zoning Administrator and approving Coastal Development Permit CD2020-118 with the attached Findings and Conditions. Assistant Planner Joselyn Perez reported small cell technology is a solution to fill coverage gaps and is intended to work with existing macro facilities. The City's review of applications for wireless facilities is limited by federal laws. On February 12, 2019, the City Council approved an MLA with Cingular Wireless for the use of City-owned streetlights. On April 16, 2020, the Zoning Administrator approved a minor use permit for the facility. A call for review was attempted by a Planning Commissioner; however, said call for review occurred after the designated appeal period had expired and the use permit became effective. Subsequently, staff determined a CDP is required for the facility. On August 27, 2020, the Zoning Administrator approved a CDP for the facility, and Mr. Mosher filed an appeal of the decision, citing inadequate consideration of alternative locations and collocations. The proposed facility is located within the vegetated parkway along the landward side of Bayside Drive, which is the first public road paralleling the sea. Land uses surrounding the proposed site are primarily residential. The application proposes to replace the existing streetlight with a new streetlight in the same location. The height of the luminaire would remain the same, but the overall height of the facility would increase to 27 feet 5 inches. Antennas and radio equipment will be enclosed in a shroud located atop the pole. All equipment for the facility will be located within the shroud or below grade. The vegetated hillside behind the streetlight softens the view of the streetlight. The applicant analyzed four alternative sites along Bayside Drive. Staff and the Zoning Administrator reviewed these sites as well. Assistant Planner Perez provided a PowerPoint presentation with visual simulations of the proposed installation and photographs of alternative sites. Alternative Site 1 is located in front of a coastal bluff and is not considered an appropriate location because of the need to grade into the bluff to install below-grade equipment and other reasons. Alternative Site 2 is also located in front of the same coastal bluff and is not considered an appropriate location for the same reasons as Alternative Site 1. Alternative Site 3 presents challenges due to surrounding low retaining walls which would need to be relocated. Public comment favored locating the facility at Alternative Site 4 due to the solar panels blighting the bluff behind the streetlight. However, the facility would stand out against the existing solar panels. In addition, Alternative Site 4 is located in a curve