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HomeMy WebLinkAboutMCUP 09-02; NEXTEL CA7975B WEST OLIVENHAIN; Admin Decision Letter• • e FIL~_QQPY City of Carlsbad November 4, 2009 Sprint Communications c/o Heidi Thorne 6125 Lakeview Road, Suite 100 Charlotte, NC 28269 ltdthitl•h~■•JJ~Eiii;,t§h ■ SUBJECT: MINOR CONDITIONAL USE PERMIT NO. MCUP 09-02 -NEXTEL WEST OLIVENHAIN WCF -Request for Approval of a Minor Conditional Use Permit (MCUP 09-02; replaces CUP 03-25) to allow the continued operation of a wireless communication facility generally located at the southwest corner of Rancho Santa Fe Road and Olivenhain Road on the Olivenhain Municipal Water District site, in the O Zone and Local Facilities Management Zone 6. Dear Ms.Thorne, The Planning Director has completed a review of your application for a Minor Conditional Use Permit MCUP 09-02 -Nextel West Olivenhain WCF for the continued operation of a wireless communication facility consisting of 12 panel antennas co-located on a monopine with associated equipment cabinet located near the base of the tree on property located at 1966 Olivenhain Road. A notice was sent to property owners within a 300' radius of the subject property requesting comments regarding the above request. No comments were received within the ten day notice period (ending on March 18, 2009) and a request for an Administrative Hearing was not filed. After careful consideration of the facts set forth in the application, and a review of the project's consistency with City Council Policy No. 64, the Planning Director has determined that the four findings required for granting a Minor Conditional Use Permit can be made and therefore, APPROVES this request based on the following findings and conditions. Findings: 1. That the requested use is necessary or desirable for the development of the community, and is in harmony with the various elements and objectives_ of the general plan, including, if applicable, the certified local coastal program, specific plan or master plan in that (a) the use is necessary and desirable for the development of the community because of the benefit and demand for digital communications and data transmissions for businesses, individuals, public agencies, and emergency services systems in this part of the City; (b) the existing use is consistent with the General Plan in that the Governmental Facilities (G) General Plan Land Use designation does not preclude the provision of the Wireless Communication Facility (WCF) uses. The WCF is consistent with City Couhcil Policy No. 64, Wireless Communication Facilities, in that it is in a preferred commercial zone and has a stealth design. The project's location and stealth design comply with General Plan objectives that seek to maintain and enhance Carlsbad's appearance. 1635 Faraday Avenue• Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 • www.ci.carlsbad.ca.us @ MCUP 09-02 -NEXTEL W.OLIVENHAIN WCF November 4, 2009 Page 2 • 2. That the requested use is not detrimental to existing uses or to uses specifically permitted in the -zone in which the proposed use is to be located in that the existing WCF is located within a preferred location as listed in the Location Guidelines A.1.b. of City Council Policy No. 64 (Office Zone) and all aspects of the WCF exhibit stealth design and are completely hidden by existing improvements. The WCF use is not precluded by the project sites Office (0) zoning. Furthermore, the existing WCF will not result-in additional building coverage, does not alter the site or building design, and does not interfere with nor is it visible to other surrounding uses. 3. That the site for the proposed conditional use is adequate in size and shape to accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas, landscaping and other development features prescribed in this code and required by the Planning Director in order to integrate the use with other uses in the neighborhood in that the WCF antennas and equipment cabinets, which are stealth in design, are an existing use and no modifications are being proposed. The original approval of the use (CUP 03-25) was permitted on April 7, 2004. 4. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use in that the existing unmanned WCF use would require, on average, only one monthly maintenance visit and occasional visits in response to operational problems. 5. That the proposed WCF is consistent with City Council Policy No. 64 in that the existing WCF is co-located on an existing monopine in the Office Zone (0) and is considered stealth by design. The Policy identifies commercial zones as a preferred location for WCFs. The equipment cabinet is located at the base of the tree and is screened by perimeter fencing and is not visible from public views. Furthermore, as part of this application the stealth design of the monopine has been enhanced through the addition of more branches. The project has been conditioned to maintain compliance with FCC RF Exposure Guidelines. 6. That the Planning Director has determined that the project belongs to a class of projects that the State Secretary for Resources has found do not have a significant impact on the environment, and it is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15301 -"Existing Facility", of the state CEQA Guidelines.. In making this determination, the Planning Director has found that the exceptions listed in Section 15300.2 of the state CEQA Guidelines do not apply to this project. Additionally, as Nextel must comply with FCC regulations, radio frequency emissions from the proposed facility are below levels established as acceptable by the FCC, and are therefore not considered a health hazard. In making this determination, the Planning Director has found that the exceptions listed in Section 15300.2 of the state CEQA Guidelines do not apply to this project. 7. The Planhing Director has reviewed each of the exactions imposed on the Developer contained in this resolution, and hereby finds, in this case that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the degree of the exaction is in rough proportionality to the impact caused by the project. MCUP 09-02 -NEXTEL WE.OLIVENHAIN WCF November 4, 2009 Page 3 Conditions: • 1. Approval is granted for MCUP 09-02 -Nextel West Olivenhain WCF as shown on Exhibits "A-G" dated November 2, 2009 on file in the Planning Department and incorporated herein by reference. Development shall occur substantially as shown unless otherwise noted in these conditions. 2. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shc;3II have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in interest by the City's approval of this Minor Conditional Use Permit. 3. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the MCUP 09-02 documents, as necessary to make them internally consistent and in conformity with the final action on the project. Development shall occur substantially as shown on the approved Exhibits. Any proposed development different from this approval shall require an amendment to this approval. 4. If any condition for construction of any public improvements or facilities, or the payment of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 5. The Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Minor Conditional Use Permit, (b) City's approval or issuance of any permit or action, whether discretiohary or non-discretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. 6. The Developer shall comply with all applicable provisions of federal, state, and local ordinances in effect at the time of building permit issuance. 7. This project shall comply with all conditions and mitigation measures, which are required as part of the Zone 6 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. 8. All conditions of approval imposed upon Conditional Use Permit CUP 03-25 as stated in Planning Commission Resolution No. 5593 shall apply as conditions of approval for MCUP 09-02 -NEXTEL W.OLIVENHAIN WCF November 4, 2009 Page 4 • MCUP 09-02 and are incorporated by this reference, except Condition No. 9 which is replaced by Condition No. 11 below. 9. MCUP 09-02 shall be reviewed by the Planning Director on a yearly basis to determine if all conditions of this permit have been met and that the use does not have a substantial negative effect on surrounding properties or the public health, safety and general welfare. If the Planning Director determines that: 1) the minor conditional use permit was obtained by fraud or misrepresentation; or 2) the use for which such approval is granted is not being exercised; or 3) the conditions of approval have not been met; or 4) the minor conditional use permit is being or recently has been exercjsed contrary to any of the terms or conditions of approval; or 5) the use for which such approval was granted has ceased to exist or has been suspended for one year or more; or 6) the use is in violation of any statute, ordinance, law or regulation; or 7) the use permitted by the minor conditional use permit is being or has been so exercised as to be detrimental to the public health, safety or welfare or so as to constitute a nuisance, the Planning Director shall hold an informal public hearing and after providing the permittee the opportunity to be heard, the planning director may revoke and terminate the minor conditional use permit in whole or in part, reaffirm the minor conditional use permit, modify the conditions or impose new conditions. 10. Developer/Operator shall comply with the Federal Communication Commission's guidelines on limits for human exposure to radio frequency (RF) electromagnetic fields. Within six (6) months after the issuance of occupancy, and with any time extension or amendment request, the Developer/Operator shall submit to the Planning Director either (1) verification that the project is categorically excluded from having to determine compliance with the RF exposure guidelines per 47 CFR §1.1307(b)(1); or (2) a project implementation report which provides cumulative field measurements of RF emissions of all antennas installed at the subject site. The report shall quantify the RF emissions and compare the results with the exposure limits established by the FCC guidelines. Said report shall be subject to review and approval by the Planning Director for consistency with the Project's preliminary report on RF exposure submitted with the initial project application and for consistency with the FCC guidelines. If on review, the City finds that the Project does not meet the FCC guidelines, the City may revoke or modify this conditional use permit. 11. This Conditional Use Permit is granted for a period of ten (10) years retroactively from April 6, 2009 to April 5, 2019. This permit may be revoked at any time after a public hearing, if it is found that the use has a. substantial detrimental effect on surrounding land uses and the public's health and welfare, or the conditions imposed herein have not been met. This permit may be extended for a reasonable period of time not to exceed ten (10) years upon written application of the permittee made no less than 90 days prior to the expiration date. The Planning Director may not grant such extension, unless he/she finds that there are no substantial negative effects on surrounding land uses or the public's health and welfare. If a substantial negative effect on surrounding land uses or the public's health and welfare is found, the extension shall be denied or granted with conditions which will eliminate or substantially reduce such effects. There is no limit to the number of extensions the Planning Director may grant. 12. Owner/Applicant shall submit to the City a Notice of Restriction to be filed in the office of the County Recorder, subject to the satisfaction of the Planning Director, notifying all interested parties and successors in interest that the City of Carlsbad has issued a MCUP 09-02 -NEXTEL W.OLIVENHAIN WCF November 4, 2009 • Page 5 Minor Conditional Use Permit on the real property owned by the owner/applicant. Said Notice of . Restriction shall note the property description, location of the file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The Planning Director has the authority to execute and record an amendment to the notice which modifies or terminates said notice upon a showing of good cause by the Developer or successor in interest. 13. Developer shall report, in writing, to the Planning Director within 30 days, any address change from that which is shown on the permit application. Engineering: 14. Developer shall comply with the City's Stormwater Regulations, latest version, and shall implement best management practices at all times. Best management practices include but are not limited to pollution treatment practices or devices, erosion control to prevent silt runoff during construction, general housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices or devices to prevent or reduce the discharge of pollutants to stormwater, receiving water or stormwater conveyance system to the maximum extent practicable. 15. Developer shall complete and submit to the City Engineer a Project Threat Assessment Form (PTAF) pursuant to City Engineering Standards. Concurrent with the PTAF, Developer shall also submit the appropriate Tier level Storm Water Compliance form and Tier level Storm Water Pollution Prevention Plan (SWPPP) as determined by the completea PTAF all to the satisfaction of the City Engineer. Code Reminders: 16. Approval of this request shall not excuse compliance with all applicable sections of the Zoning Ordinance and all other applicable City ordinances in effect at time of building permit issuance, except as otherwise specifically provided herein. NOTICE Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." You have 90 days from the date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a MCUP 09-02 -NEXTEL W.OLIVENHAIN WCF November 4, 2009 Page 6 • NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. This decision may be appealed by you or any other member of the public to the Planning Commission within ten days of the date of this letter. Appeals must be submitted in writing to the Planning Department at 1635 Faraday Avenue in Carlsbad, along with a payment of $613.00. The filing of such appeal within such time limit shall stay the effective date of the order of the Planning Director until such time as a final decision on the appeal is reached. If you have any questions regarding this matter, please feel free to contact Dan Halverson at (760) 602-4631. Since·rely, t!:l.~B:l Assistant Planning Director GTB:DH:lt c: Olivenhain Water District, 1966 Olivenhain Road, Encinitas, CA 92024 Michele Masterson, Senior Management Analyst Chris DeCerbo, Team Leader Clyde Wickham, Project Engineer File Copy- Data Entry