HomeMy WebLinkAbout2004-03-02; City Council; Resolution 2004-066RESOLUTION NO. 2004-066
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, DENYING WITH PREJUDICE A
CONDITIONAL USE PERMIT FOR A CELLULAR
COMMUNICATIONS FACILITY ON PROPERTY GENERALLY
LOCATED BETWEEN ESFERA STREET AND PIRAGUA
STREET, NORTH OF CAB0 COURT IN LOCAL FACILITIES
MANAGEMENT ZONE 6
CASE NAME: AT&T WIRELESS
CASE NO: CUP 03-22
WHEREAS, AT&T Wireless, “developer” has filed a verified application
with the City of Carlsbad on property previously owned by BCE Development
Properties, Inc., and currently owned by Monica Jellinek et ux, hereinafter referred to as
“owner” which property is generally described as:
Lot 401 of Carlsbad Tract No. 72-20 (La Costa Vale) Unit No. 3, in
the City of Carlsbad, County of San Diego, State of California,
according to Map thereof No. 7950, filed in the Office of the
County Recorder of San Diego County, June 3, 1974.
referred herein throughout as “the property”; and
WHEREAS, said verified application constitutes a request for a
Conditional Use Permit as shown on Exhibit “A drawing numbers 953-010-102A-TOI,
BO1 and ZO1 through 204 and on file in the Office of the City Clerk entitled “AT&T
Wireless Services, SDG&E Tower No. 173” as provided by Chapters 21.42 and 21 50
of the Carlsbad Municipal Code; and
WHEREAS, there is located on the property a 119’ steel lattice tower
owned by San Diego Gas & Electric Company which has signed the verified application
form and given its consent to applicant to locate its cellular antennas on said tower; and
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WHEREAS, this site was previously considered for a conditional use
permit for wireless facilities for GT&E and that application for a conditional use permit
was denied by the City Council on October 17,2000; and
WHEREAS, AT&T Wireless has obtained a court order in the case AT&T
Wireless Services of California LLC, a Delaware limited liabilitv companv dba AT&T
Wireless v. Citv of Carlsbad, Case No. 01 CV 2045 JM (LAB) that its application for a
Conditional Use Permit No. 00-36, for facilities located at 7512 Cadencia Street be
approved; and
WHEREAS, AT&T Wireless has presented this application (CUP 03-22)
as an alternative to said Conditional Use Permit No. 00-36 and represented to the City
Council that the issuance of this CUP would eliminate the need for CUP No. 00-36 at
the 7512 Cadencia Street location and another unspecified location in the
neighborhood; and
WHEREAS, AT&T Wireless has proposed different facilities than those
that were previously the subject of and denied in the previous application to this site in
an effort to respond to the City Council findings in denying that application (City Council
Resolution No. 2000-323 [copy attached]); and
WHEREAS, the application of AT&T Wireless for cellular facilities at 7512
Cadencia Street was denied without prejudice (City Council Resolution No. 2001 -309
[copy attached]) so that AT&T Wireless could present an alternative location in one of
the preferred alternative sites or some other location and that it would retain jurisdiction
over this appeal in order to expedite that approval; and
WHEREAS, the City Council did hold a public hearing to consider this
application on August 19, 2003 which hearing was continued to September 9, 2003,
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Resolution No. 2004-066 page 2
and further continued to September 23, 2003, October 14, 2003, October 21, 2003,
December 2, 2003 and February 17, 2004 so that the full Council could consider the
item; and
WHEREAS, the City Council did hold a noticed public hearing to consider
this application on October 14, 2003 which hearing was continued over the objection of
AT&T; and
WHEREAS, the City Council did hold a noticed public hearing to consider
this application on October 21, 2003 which hearing was continued to December 2,
2003; and
WHEREAS, the City Council did hold a noticed public hearing to consider
this application on December 2, 2003 at which the Council concurred with the Mayor to
reconsider this application to a future meeting subject to renoticing all concerned
parties because Council understood that property ownership changed; and
WHEREAS, on December 16, 2003 the City Council approved Resolution
No. 2003-351 authorizing the expenditure for a telecommunication consult to assist in
the placement of wireless facilities in the public right of way; and
WHEREAS, such report was prepared by Comp Comm, Inc., and
WHEREAS, on February 17, 2004 the City Council held a duly noticed
public hearing at which the Council carefully considered the law, the evidence and
arguments presented at this hearing and denied with prejudice the application for CUP
03-22 for a cellular facility located on property generally located between Esfera Street
and Piragua Street, north of Cab0 Court in Local Facilities Management Zone 6; and
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tesolution No. 2004-066 page 3
WHEREAS, accessory and quasi-public buildings and facilities are
conditionally permitted within the Planned Community (PC) and Open Space (OS)
zones; and
WHEREAS, the verified application is subject to the Telecommunications
Act of 1996, hereinafter the “Act,” which preserves local zoning authority for the
placement, construction and modification of personal wireless service facilities subject
to the limitations set forth in that Act; and
WHEREAS, both the Carlsbad Municipal Code and the Act require that
any decision by a local government to deny a request to place, construct or modify
personal wireless service facilities be in writing and supported by substantial evidence
contained in the written record; and
WHEREAS, recognizing that a local government may not regulate the
placement, construction and modification of personal wireless service facilities on the
basis of the environmental effects of radio frequency emissions to the extent that such
facilities comply with the federal communications regulations concerning such
emissions; and
WHEREAS, these facilities comply with radio frequency powered density
standards (ANSVIEEE C 95.1-1992) and that they are small facilities or structures as
contemplated by Class 32 categorical exemption under the California Environmental
Quality Act (CEQA Guidelines, §I 5303), the project is assumed not to have a significant
adverse environmental effect on the environment; and
WHEREAS, the modifications to the proposed facilities at Tower 173 are
insufficient to overcome the original findings that the proposed facilities, even as
modified, are not compatible with the neighborhood, represent an additional visual
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blight and additional noise which are not compatible nor in essential harmony with the
General Plan and zoning ordinance; and
WHEREAS, the proposed facilities and structures are within the open
space easement and proximate to existing residences and residential uses and the
proposed antennas and proposed equipment buildings are clearly visible throughout
portions of the neighborhood; and
WHEREAS, the proposed antennas, equipment buildings and related
facilities would add to the existing visual obstructions, create further impairment of
views and aesthetically degrade the site; and
WHEREAS, the City Council is aware of its obligation not to unreasonably
discriminate among providers of functionally equivalent services and not to prohibit or
have the effect of prohibiting the provision of personal wireless services; and
WHEREAS, the City Council is mindful that the Act requires it to act on
the request for authorization to place, construct or modify personal wireless service
facilities within a reasonable period of time; and
WHEREAS, the applicant has indicated flexibility in the location of
equipment facilities but was unable to specify the degree of flexibility or the distance
limitations; and
WHEREAS, testimony from neighbors were unanimously in opposition to
the proposed facilities and presented petitions from 146 other residents who were
opposed to this location; and
WHEREAS, a resident testified that another wireless service was able to
provide uninterrupted calls without tower facilities in the neighborhood; and
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WHEREAS, the construction of equipment facilities, air conditioning or fan
units, a gate and a concrete driveway would add additional visual blight to the
neighborhood; and
WHEREAS, the documents submitted with the application indicate the
noise level generated by the equipment would equal 74 db at its peak; and
WHEREAS, the City noise standards prohibit noise in excess of 60 Cnel
and the noise impact analysis prepared for AT&T Wireless Telecommunications Facility
dated September 9, 2003 and presented at the hearing do not entirely eliminate those
concerns .
NOW, THEREFORE, the City Council of the City of Carlsbad, California,
finds as follows:
1. That the foregoing recitations are true and correct.
2. That the requested use and structures are not necessary or desirable
for development of the community at this location nor are they in essential harmony
with the various elements and objectives of the General Plan which encourage quiet
neighborhoods and maintenance of a high quality of life by preserving open space, and
to preserve the neighborhood atmosphere and identity of existing residential areas, and
the proposed project does not preserve the neighborhood aesthetics, property values
nor maintain community identity, nor does it achieve a sense of natural spaciousness,
nor provide visual relief and would therefore be detrimental to existing uses specifically
permitted within these zones.
3. That although the proposed site for the intended cellular facilities is
sufficient in size and shape to accommodate that use, the collection of panels on the
existing tower and the proposed equipment building cannot be located on the site
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without visually obscuring and degrading the views and aesthetics of nearby residents
in the neighborhood.
4. That the location of the proposed equipment facilities, the block wall
and landscaping around the equipment room will not be sufficient to reduce its visibility
from nearby residences or persons using the residential areas, and the location of the
panels on the transmission tower will add to the negative visual effects of the cellular
facility.
5. That the proposed air conditioning units which are shown on the plans
and which applicant represented at the hearing could be changed to fan units will
create additional noise pollution and require periodic monitoring. That the equipment is
exposed to the elements and subject to vandalism and will require additional
monitoring.
6. The Council further finds that it is important to maintain the integrity of
the residential neighborhood surrounding the proposed project and to allow the
construction of wireless communication facilities would create aesthetic and
environmental impacts including the introduction of additional noise into the
neighborhood. Carefully weighing these factors along with the substance of the Act and
the Court’s instruction in the case AT&T Wireless Services of California LLC, a
Delaware limited liabilitv company dba AT&T Wireless v. Citv of Carlsbad, Case No. 01
CV 2045 JM (LAB), the Council finds that the increased visual, aesthetic, noise and
other construction impacts to this area outweigh the need and desirability of the
proposed facilities under traditional planning and zoning considerations. The testimony
and petitions of the residents in the surrounding neighborhood expressed concern that
their formerly peaceful, private and quiet homes will be changed if this proposed facility
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is permitted and the addition of such facilities would degrade their quality of life. The
City Council finds that these concerns of the property owners are legitimate and that the
evidence presented to the City Council, including oral and written testimonials, petitions
and other documentation support this position. The applicant has failed to present
evidence sufficient to convince the City Council to the contrary.
7. That the current property owner, Monica Jellinek, has testified that the
real property which is the subject of this action will be used for open space and that no
wireless telecommunication facilities will be permitted.
8. That there are alternative sites more suitable to a wireless
telecommunication facility as shown on the report entitled “Analysis of Alterate (sic)
Sites for Proposed AT&T Wireless Services Wireless Communications Facilities’’ dated
January 7, 2004, on file in the office of the City Clerk.
9. That appellant’s application for a CUP is denied with prejudice.
10. That the City Clerk is directed to give notice to the applicant of this
action pursuant to Carlsbad Municipal Code section I .I 6.01 0 specifying time limits for
judicial review which states:
“NOTICE TO APPLICANT”
“The time within which judicial review of this decision must be
sought is governed by Code of Civil Procedure, Section
1094.6, which has been made applicable in the City of
Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any
petition or other paper seeking judicial review must be filed in
the appropriate court not later than the ninetieth day following
the date on which this decision becomes final; however, if
within ten days after the decision becomes final a request for
the record of the proceedings accompanied by the required
deposit in an amount sufficient to cover the estimated cost of
preparation of such record, the time within which such petition
may be filed in court is extended to not later than the thirtieth
day following the date on which the record is either personally
delivered or mailed to the party, or his attorney of record, if he
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has one. A written request for the preparation of the record of
the proceedings shall be filed with the City Clerk, City of
Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California
92008."
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
Council of the City of Carlsbad held on the 2nd day of March , 2004 by
the following roll call vote, to wit:
AYES:Council Members Lewis, Finnila, Kulchin, Hall and Packard
NOES: None
ABSENT: None
(SEAL)
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