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HomeMy WebLinkAboutMCUP 09-11; CLEARWIRE SDG5159B LOKER; Admin Decision Letter0 Cit of o FILE COPY Carlsbad ----~-i,#------~ .. - February 3, 2010 Mike Morganson 75_78 Gibraltar Street, Unit 3 Carlsbad, CA 92009 SUBJECT: MINOR CONDITIONAL USE PERMIT MCUP 09-11 -CA SDG51598 LOKER- Request for approval of a Minor Conditional Use Permit to allow the installation, operation, and maintenance of a Wireless Communication Facility (WCF) consisting of (12) Wimax panel antennas, (12) DAP head units, (10) directional units, and (1) equipment cabin~t located behind two proposed rooftop Radio Frequency (RF) transparent parapet walls for Clearwire. The project site is located at 2888 Loker Avenue East, in the Planned Industrial (P-M) Zone, and in Local Facilities Management Zone 5. Dear Mike Morganson, The Planning· Director has completed a review of your application for a Minor Conditional Use Permit MCUP 09-11 -CA SDG51598 LOKER for the installation, operation, and maintenance of a Wireless Communication Facility at 2888 Loker Avenue East. 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 October 12, 2009). After careful consideration of the circumstances surrounding this request and a review of the application's consistency with City Council Policy No. 64, the Planning Director has _determined that the 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 service systems in this part of the City; (b) the proposed Lise is consistent with the General Plan in that the Planned Industrial (Pl) Land Use designation does not preclude the provision of Wireless Communication Facility (WCF) uses. The proposed WCF is consistent with City Council Policy No. 64, Wireless Communication Facilities, in that it is in a preferred non-residential location and has a stealth design. • The project's location and stealth design comply wit~ 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 @ .{ 'i ., ~CUP'0~-11 -CA SDGSQB LOKER '.February 3, 201 0 .Page 2 0 2. That fhe requested use is not detrimental to existing uses or to uses specifically - perniitted in the zone in which the proposed use is to be located in that the proposed WCF is located within a preferred non-residential location (industrial zone} as listed in Location Guideline A.1.a. of City Council Policy Statement No. 64, and all aspects of the WCF exhibit stealth design and are completely hidden by the proposed rooftop parapet RF screen walls. The WCF use is not precluded by the .. pr<>ject site's Planned Industrial (P-M} zoning. Furthermore, the placement of the • antennas and associated WCF equipment on the rooftop will riot result in any • additional building coverage, does not visually impact the existing site ·or building design as the RF faux window screen panels are designed so. that they blend in with the building architecture, and does not interfere with nor is it visible to other surrounding uses. The project has been conditioned to comply with FCC RF Exposure Guidelines. 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 tha.t the proposed antennas anci associated equipment are located on the rooftop of an existing industrial/office building behind proposed RF transparent material exhibiting stealth design techniques. When completed, the installation of the new antennas and associated .WCF equipment will not impact the appearance of the building as the RF faux window panel screens are designed to blend in with the existing industrial/office building architecture. 4. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use in that the proposed WCF requires, on average, only monthly maintenance visits and occasional visits in response to_ operational problems. 5. That the existing and proposed WCF is consistent with City Council Policy No. 64 in that it is located in a preferred location ("industrial zone") as listed in Location Guideline A.1.a. of City Council Policy Statement No. 64 and exhibits stealth design, as the new antennas and associated equipment are located behind RF faux window screen panels (parapets) designed and textured to match the existing industrial/office building. 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 15303 -(New Construction of Small Structures}, of the state CEQA Guidelines. Additionally, as Clearwire 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 Planning 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 I \.J J MCUP 09-11 _ CA SDG51c3 LOKER February 3, 201 O 0 Page 3 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. Conditions: Planning: 1.. Approval is granted for MCUP 09-11 -CA SDG5159B LOKER as shown on Exhibits "A -G" dated February 3, 2010 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 shall 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 Minor Conditional Use Permit documents, as necessary to make them internally consistent and in conformity with the fini;:1I 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. Developer shall submit to the Planning Director a reproducible 24" x 36," mylar copy of the (Site Plan or other) reflecting the conditions approved by the final decision-making body. 6. This project shall comply with all conditions and mitigation measures which are required as part of the Zone~ 5 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. 7. The-Developer/Operator shall and·does hereby ag"reeito 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, froni (a) City's approval and issuance of this Minor Conditional MCUP 09-11 -CA SDG5QB LOKER February 3, 2010 , .. 0 Page 4 pse Permit, (b) City's approval or issuance of any permit or action, whether cllscretionary 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. '• ,. ·' 8. The Developer shall comply with all applicable provisions of federal, state, and local ordinanc~s Jn effect at the time of building permit issuance. 9. MCUP 0~~11 • 'shall be reviewed by the Planning Director on a yearly basis to determine if all conditib.ns 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 exercised 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. This Conditional Use Permit is granted for a period of ten (10) years from February 3, 2010 to February .2, 2020. 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 Commission may not grant such extension, unless it 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 Commission may grant. 11. Developer shall submit to the City a Notice of Restriction executed by the owner of the real property to be developed. Said notice is 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 Minor Conditional Use Permit on the property. 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. MCUP 09-11 -CA SDG51c3 LOKER February 3, 2010 Page 5 0 12. • Developer shall report, in writing, to the Planning Director within 30 days, any address change from that which is shown on the permit application. • 13. 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 'exten_sion 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 measureme~ts-of RF, ·emissior:is 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. 14. This approval shall become null and void if building permits are not issued for this project within 24 months from the date of project approval. 15. Developer shall report, in writing, to the Planning .Director within 30 days, any address change from that which is shown on the permit application, any change in the telecommunications provider, or any transfer in ownership of the site. Code Reminder·: 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 applic;:ption processing or.~ervice fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar t~ this, br as to which the statute of limitations has previously otherwise expired. 0 0 MCUP 09-11 -CA SDG5159B LOKER February 3, 2010 Page:6; •·; 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 $598.50. 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 Greg Fisher at (760) 602-4629. Sincerely, • ~~ CHRIS DeCERBO Principal Planner CD:GF:sm c: Mammoth Carlsbad 1, LLC, 29222 Rancho Viejo Road, Suite 203, San Juan Capistrano, CA 92675 Steve Bobbett, Project Engineer Glen Van Peski, Senior Civil Engineer File Copy Data Entry