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HomeMy WebLinkAbout2001-10-16; City Council; 16403; AT&T Wireless Services Appeal DenialL CITY OF CARLSBAD - AGENDA BILL L-.J AB# f(d-@3 MTG. 10/16/01 DEPT. CA TITLE- DENIAL WITHOUT PREJUDICE OF THE APPEAL OF AT&T WIRELESS SERVICE FOR A CELLULAR DEPT. HD. COMMUNICATIONS FACILITY CITY ATTY. CASE NAME: AT&T WIRELESS SERVICES CASE NO.: CUP 00-36 CITY MGR.-%?’ RECOMMENDED ACTION: Adopt Resolution No. 2001-309 denying without prejudice the appeal of AST&T Wireless for a cellular communications facility based on the findings contained therein. ITEM EXPLANATION: At its meeting of Tuesday, October 9, 2001, the City Council deadlocked 2 (Lewis, Hall) - 2 (Nygaard, Finnila) on Agenda Bill No. 16,383. Therefore, the matter remains before the Council pursuant to Carlsbad Municipal Code section 1.20.370. Attached is a letter from applicants attorney, dated October 9, 2001, and a response dated October IO, 2001, which will be part of the record on appeal. FISCAL IMPACT: Denial of this appeal will not have a fiscal impact on the City. ENVIRONMENTAL REVIEW: Projects which are denied are exempt from CEQA review pursuant to Public Resources Code section 21080(b)(5) and CEQA Guidelines section 15270. However, should the project be approved, it will need environmental review. EXHIBITS: 1. Resolution No. 2001-309 2. Council Policy Statement No. 64 3. Letter from Cole, Raywid & Braverman dated October 9, 2001 4. Letter to Cole, Raywid & Braverman in response, dated October IO, 2001 / 1 2 3 4 5 6 7 8 9 10 11 12 9 8 mum Yr 7 so"0 B 13 0lUg 3LL, $044 14 &$Z 9 OclB 15 a<$: ZUlUI" nohi&- p; 16 a:$ >-a 17 k 0 V RESOLUTION NO. 2001-309 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAB, CALIFORNIA, DENYING WITHOUT PREJUDICE THE APPEAL OF AT&T WIRELESS FOR A CELLULAR COMMUNICATIONS FACILITY ON RESIDENTIAL PROPERTY LOCATED AT 7512 CADENCIA STREET IN LOCAL FACILITIES MANAGEMENT ZONE 6 CASE NAME: AT&T WIRELESS SERVICES CASE NO.: CUP 00-36 The City Council of the City of Carlsbad, California does hereby resolve as follows: WHEREAS, AT&T Wireless Services, “Developer”, has filed a verified application with the City of Carlsbad on property owned by Patrick and Viona L. Van Hoose, hereinafter referred to as “Owner”, which property is generally described as: “Lot 486 of Carlsbad Tract 72-20 of 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” referred herein throughout as “the Property”; and WHEREAS, the real property owner has signed the appropriate 18 application and disclosure statement giving consent to applicant to locate its cellular 19 facilities on the residential property; and 20 21 WHEREAS, said verified application constitutes a request for a Conditional Use Permit as shown on Exhibits “A” - ‘IF”, dated May 16, 2001 on file in 22 23 the Carlsbad Planning Department, entitled “AT&T Wireless Services, CUP 00-36”, as 24 provided by Chapters 21.42 and 21.50 of the Carlsbad Municipal Code; and 25 WHEREAS, the Planning Commission did hold a duly noticed public 26 hearing as prescribed by law on May 16, 2001 to consider said verified application; and 27 28 1 1 2 3 4 5 6 7 8 9 10 11 12 9 gj mwm yz-; %8, s 13 VW% ~lL0 $035 14 &;F 9 0 si@ 15 BBS: 16 054 i= m a:: >- 17 t V 9 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the Planning Commission did hold a duly notice public hearing as prescribed by law on June 20,200l to approve Planning Commission Resolution No. 5006 denying the Conditional Use Permit; and WHEREAS, the Planning Commission carefully considered the law, evidence and arguments presented at the public hearing held before it; including the fact that quasi-public buildings and facilities are conditionally permitted within residential zones, according to the Carlsbad zone code and subject to the Telecommunications Act of 1996; and WHEREAS, the Planning Commission 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, recognizing that a local government may not regulate the placement, construction and modification of personal wireless 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, the Planning Commission is mindful that the Telecommunications Act of 1996 requires it to act on the request for authorization to place, construct or modify personal wireless facilities within a reasonable period of time and this action is within a reasonable period of time since the filing of the application on October 18,200O; and WHEREAS, both the Carlsbad Municipal Code and the Telecommunications Act of 1966 require that any decision by a local government to 1 2 3 4 5 6 7 8 9 10 11 12 18 19 20 21 22 23 24 25 26 27 28 deny requests to place, construct or modify personal wireless service facilities be in writing and supported by substantial evidence contained in the written record; and WHEREAS, at the conclusion of the public hearing at which 17.residents of the surrounding neighborhood testified and a petition in opposition to approval of the Conditional Use Permit signed by 37 residents was presented, the Planning Commission voted unanimously to deny the verified application of AT&T Wireless Services for a Conditional Use Permit; and WHEREAS, the neighbors have testified that a similar wireless cellular service facility for another provider also concealed by the construction of an additional faux chimney was approved by the Planning Commission on April 5, 2000 to be located at 7412 Cadencia Street, two lots and less than 500 feet away from the site under consideration; and WHEREAS, the application of AT&T Wireless Services is for a Conditional Use Permit authorizing the addition of a faux chimney and a garage-like structure at 7512 Cadencia Street, which will house the equipment, are clearly visible to the neigh borhood; and WHEREAS, testimony at the hearing by a neighbor was that near the proposed location at 7512 Cadencia Street is extensive existing ham radio antenna equipment on the roof of a residence which creates a visual blight and radio interference in the neighborhood; and WHEREAS, testimony from several residents who are subscribers to applicant service indicate that there is adequate coverage in the neighborhood without the proposed additional cell site; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the applicant has indicated that it has some flexibility in the placement of the facilities necessary to remedy coverage gaps; and WHEREAS, the applicant has indicated that the proposed location would provide coverage for a radius of only one mile and that additional sites will also be necessary to provide coverage outside of that radius; and WHEREAS, neighbors, one of whom was a local residential real estate sales agent, testified that the disclosure that such facilities located in a residence or concentrated within a residential neighborhood would have a detrimental effect on resale value of the neighborhood homes, due in part to a perceived potential health hazard; and WHEREAS, there was no evidence that alternative locations either on commercially zoned or residentially zoned properties which would not require the intensification of uses at this location have been exhaustively explored; and WHEREAS, the Planning Commission considered the testimony of numerous neighbors to the proposed site, voicing objections to the construction of additional protrusions and buildings in their residential neighborhood to accommodate quasi-public facilities without adequate guidelines to avoid unnecessary concentration of such uses and structures which in their opinion are not necessary or desirable or in harmony with the character of the residential neighborhood; and WHEREAS, the application of AT&T Wireless Services for a Conditional Use Permit was unanimously denied by the Planning Commission on June 20,200l; and WHEREAS, AT&T Wireless Services filed a notice of appeal on July 2, 2001 appealing the Planning Commission’s decision of June 20, 2001; and 1 2 3 4 5 6 7 8 9 10 11 12 2 8 mwo, f?z-: arrg 13 400 VW&y iLc3 $045 14 >dZ IrkSa: nvnf? G,gj 15 zwmv 2:&a- oaa 16 L urn a$jz FT- 17 t 3 0 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the matter was docketed for an appeal hearing in the manner prescribed by law and that appeal hearing was continued for reasons explained to the appellant and took place on August 21, 2001 in which the Council received the staff report, evidence, arguments and testimony from all persons interested in the matter; and WHEREAS, the Council continued the hearing for the limited purposes of accepting new evidence on the impacts of an existing cellular facility within two lots of the proposed facility; and WHEREAS, the continued public hearing date of September 11, 2001 was cancelled due to the tragedies in New York City and Washington, D.C.; and WHEREAS, the continued hearing was held on September 18,200l and the public hearing was reopened for the limited purpose of admitting the new evidence requested previously and allowing arguments and testimony on the new evidence by all persons interested therein and to receive the written arguments filed with the City since the close of the initial public hearing on August 21, 2001; and WHEREAS, the Council indicated its intent to work with the applicant and extended its good-faith offer of cooperation to assist it in obtaining one of its preferred locations in a commercial area and indicated that appellant’s previous attempts at obtaining an alternative location at one of its preferred site was insufficient and further indicated that this particular site was objectionable to the neighborhood as evidenced by the uniform community opposition, the potential saturation of locations on this particular street, the visual monotony and increased density that would result from the appellant locating what would be a massive six car garage and additional chimney 5 9 10 11 12 9 gj mum yz-; 8 3::: 13 ~LLclrn ,4035 14 &ge ovos 2gm42 15 zwffl(J g$& 16 052 != a:: >.- 17 t $ V 18 19 20 21 22 23 24 25 26 27 28 which would be out-of-character with the surrounding neighborhood on a residential street; and WHEREAS, the Council indicated its intention to deny the appeal without prejudice and directed the City Attorney to return with documents memorializing that decision, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the appeal is denied without prejudice and appellant is encouraged to work with the City to find a new and preferred location that would provide the coverage it requires and avoid this particular location. 3. That the Council is willing to remand this matter to staff to work with the appellant at obtaining an alternative location in one of its preferred alternative sites or some other locations and that it would retain jurisdiction over this appeal in order to expedite that approval. 4. That for guidance in selecting an alternative location the appellant is directed to Council Policy No. 64, a copy of which is attached hereto as Exhibit A. 5. The applicant is further notified that this action is final the date this resolution is adopted by the City Council. The provision of Chapter 1.16 of the Carlsbad Municipal Code, “Time Limits for Judicial Review” shall apply: “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 6 1 2 3 4 5 6 7 8 9 10 11 12 % % mwm yzr aag 13 a00 VW% dLc3 $gzz 14 n'lclg 2 -I 15 ZLS$ i?&&- 16 052 L a:: t- 17 t V 9 18 19 22 23 24 25 26 27 28 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 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 16th day of OCTOBER , 2001 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Hall NOES: Council Members Finnila, Nygaard ABSENT: None CITY OF CARLSBAD Page 1 of 9 Policy No. 64 COUlkIL POLICY STATEMENT Date Issued October 3, 2001 DATED: September 21,200l Effective Date October 3, 2001 Cancellation Date Supersedes No. General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File - PURPOSE AND GOAL: Wireless communication facilities, or WCFs, refer to the many facilities with antennas and supporting tquipment that receive and transmit signals and together enable mobile or other “wire-free” communication and information services. Unlike ground-wired telecommunications, such as the land- 3ased telephone system, wireless communication technologies, by their operational nature, require a letwork of antennas mounted at various heights and attached typically to buildings, structures and poles. 4 common name for a WCF is “cell site.” NCF proposals to the city became commonplace in the mid-1990s. Since then, Carlsbad has processed dozens of new WCF applications and numerous permit renewals for existing facilities, all without benefit of specific review criteria. As the City’s population and the popularity and variety of wireless services grow, lroviders are expected to install more facilities to improve coverage and gain user capacity. ?his policy’s purpose is to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction, and modification of WCFs. The goal is to assure WCFs in Carlsbad: . Are reviewed and provided within the parameters of law. 0 Are encouraged to locate away from residential and other sensitive areas, except in limited circumstances. . Represent the fewest possible facilities necessary to complete a network without discriminating against providers of functionally equivalent services or prohibiting the provision of wireless services. . Use, as much as possible, “stealth” techniques so they are not seen or easily noticed. 0 Operate consistent with Carlsbad’s quality of life. This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas and dish and other antennas installed on a residence for an individual’s private use. BACKGROUND: To secure the right to provide wireless services to a region, companies obtain airwave licenses that are auctioned by the Federal Communications Commission (FCC), the federal agency that regulates the telecommunications industry. The FCC mandates the licensees establish their service networks as quickly as possible. ‘n Carlsbad, there are three common types of wireless communication systems: Cellular, PCS (Personal ;ommunications Services), and ESMR (Enhanced Specialized Mobile Radio). The table below provides the relevant similarities and differences between the three. CITY OF CARLSBAD COUNCIL POLICY STATEMENT , DATED: September 21, 2001 General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File ATTRIBUTES SYSTEM Cellular ESJUI R PCS Technology Analog, converting to digital Digital Analog: Established Network ‘Overage Digital: Developing Developing Frequency 800 MHz 1900 MHz Telephone, call waiting, voice mail, caller ID, paging, e-mail, and Internet access Features (Notes: Analog cellular does not provide a// of these features. ESMR also offers dispatching and two-way radio. PCS also has video transmission ability.) A network of interconnected WCFs carries signals across a city and beyond. Each Transmission WCF contains antennas that transmit and receive signals over a small geographic area known as a “cell.” As the user travels from one cell to another, the signal is passed from one WCF to another in the next cell. Cell Size Radius Average 5 miles 0 - 1 mile Antenna Types Dish, Panel (or sector), and Whip Antenna Support 1 Lattice towers, Monopoles, Building or Structure-Attached Supporting Equipment In buildings generally under 500 square feet In cabinets about the size of vending machines Provider Verizon. AT&T, Cingular Wireless Nextel Sprint PCS Table Notes . More facilities may be needed to complete a PCS network since its higher operating frequency limits the range of its antennas and consequently the size of its cells. . The antennas for all three systems function on a line of sight transmission. Antennas need to be placed at specific heights in relation to one another in order to transmit and receive signals. As a result, height is a determining factor in the design and location of WCFs. . Monopole antenna supports may be installed on buildings or on the ground. . A single wireless communication facility may consist of two or more antennas and antennas of different types. A facility may also include the antennas and supporting equipment of more than one provider. This is known as “collocation.” Collocation also refers to a WCF placed together with utility structures such as water tanks, light standards, and transmission towers. . WCFs are usually unmanned and require maintenance visits once or twice each month. . This table is based on current information that is subject to change. - CITY OF CARLSBAD COUNCIL POLICY STATEMENT DATED: September 21, 2001 Policy No. Date Issued Effective Date Page 3 of 9 64 October 3. 2001 October 3. 2001 General Subject:. Specific Subject: Cancellation Date , Supersedes No. WIRELESS COMMUNICATION FACILITIES Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File REVIEW RESTRICTIONS: The Federal Telecommunications Act of 1996 (TCA) preserves the City’s ability to regulate the placement, construction, and modification of wireless communication facilities subject to the following restrictions, as contained in TCA Section 704. 0 The City may not favor any carrier. Regulations may not unreasonably discriminate among competitive providers. l The City may not prevent completion of a network. Regulations may not prohibit or have the effect of prohibiting the provision of wireless communication services. 0 Applications are to be processed in a reasonable time. A city must act on an application for JvCFs within a “reasonable” amount of time, roughly the same time as for any similar application. l The City cannot deny an application because of perceived radio frequency health hazards. If federal standards are met, cities may not deny permits or leases on the grounds that radio frequency emissions are harmful to the environment or to the health of residents. However, local governments may require wireless carriers to prove compliance with the standards. The FCC has established procedures to enforce compliance with its rules. . A decision to deny an application must be supported by substantial evidence. A decision to deny a WCF application must be in writing and supported by substantial evidence contained in a written record. I In Air-touch Cellular v. Citv of El Caion (gth Cir. 2000) 83 F. Supp. 2d 1158, 1166, the court ruled that a city I nay consider factors such as community aesthetics and noise in regulating the placement, construction, t or modification of WCFs. I HEALTH CONCERNS 8, SAFEGUARDS: >ossible health risks from exposure to the radio frequency (RF) electromagnetic fields generated by NCFs are a significant community concern. Accordingly, the FCC requires facilities to comply with RF exposure guidelines published in the Code of Federal Regulations (see 47 CFR $1.1307 and 47 CFR $1.1310). The limits of exposure established by the guidelines are designed to protect the public health with a very large margin of safety as they are many times below the levels that generally are accepted as laving the potential to cause adverse health effects. Both the Environmental Protection Agency and Food -+nd Drug Administration have endorsed the FCC’s exposure limits, and courts have upheld the FCC rules .equiring compliance with the limits. - CITY OF CARLSBAD COUNCIL POLICY STATEMENT DATED: September 21, 2001 Policy No. Date Issued Effective Date Page 4 of 9 64 October 3, 2001 October 3. 2001 General Subject: Specific Subject: Cancellation Date Supersedes No. WIRELESS COMMUNICATION FACILITIES Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File Most WCFs create maximum exposures that are only a small fraction of the limits. Furthermore, because the antennas in a PCS, cellular, or other wireless network must be in a line of sight arrangement to effectively transmit, their power is focused on the horizon instead of toward the sky or ground. Generally, unless a person is physically next to and at the same height as an antenna, it is not possible to be exposed to the established limits for RF exposure. The FCC requires providers, upon license application, renewal, or modification, to demonstrate :ompliance with RF exposure guidelines. Where two or more wireless operators have located their antennas at a common location (called “collocation”), the total exposure from all antennas taken together nust be within FCC guidelines. Many facilities are exempt from having to demonstrate compliance with XC guidelines, however, because their low power generation or height above ground level is highly Jnlikely to cause exposures that exceed the guidelines. XEVIEW AND APPROVAL GUIDELINES:, Carlsbad Municipal Code Section 21.42.010(2)(J) allows accessory public and quasi-public buildings and facilities, which include WCFs, in all zones with the approval of a conditional use permit (CUP). These guidelines should be followed in the review of conditional use permits for new wireless facilities as well as extensions and amendments to CUPS for existing installations. Location Guidelines I. Preferred Locations - WCFs should locate on buildings and structures, not on vacant land. In addition, WCFs should locate in the following zones and areas, which are listed in order of descending preference: E: Industrial and public utitity zones. Commercial zones. C. Public property (e.g., city facilities) not in residential areas. d. Other non-residential zones, except open space. e. Public utility installations (not publicly accessible) in residential and open space zones (e.g., water tanks, existing lattice towers, reservoirs). f. Parks and community facilities (e.g., places of worship, community centers) in residential zones. 2. Discouraged Locations - WCFs should not locate in any of the following zones or areas unless the applicant demonstrates no feasible alternative exists as required by Application and Review Guideline 0.2. a. Open space zones and lots (except as noted in Location Guideline A.1 .). b. Residential zones. C. Major power transmission corridors next to a residential zone -CITY OF CARLSBAD Page 5 of 9 Policy No. 64 COUNCIL POLICY STATEMENT Date Issued October 3, 2001 DATED: September 21, 2001 Effective Date October 3, 2001 Cancellation Date Supersedes No. General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File B. 3. d. Environmentally sensitive habitat. e. On vacant land in any zone. Visibility to the Public - In all areas, WCFs should locate where least visible to the public and where least disruptive to the appearance of the host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or corridor, or residential area unless it is satisfactorily located and/or screened so it is hidden or disguised. 4. Collocation - Collocating with existing or other planned wireless communication facilities is recommended whenever feasible. Service providers are also encouraged to collocate with water tanks, major power transmission and distribution towers, and other utility structures when in compliance with these guidelines. 5. Monopoles - No new ground-mounted monopoles should be permitted unless the applicant demonstrates no existing monopole, building, or structure can accommodate the applicant’s proposed antenna as required by Application and Review Guideline D.3. Design Guidelines I. 2. 3. 4. Stealth Design - All aspects of a WCF, including the supports, antennas, screening methods, and equipment should exhibit “stealth” design techniques so they visually blend into the background or the surface on which they are mounted. Subject to City approval, developers should use false architectural elements (e.g., cupolas, bell towers, dormers, and chimneys), architectural treatments (e.g., colors and materials), elements replicating natural features (e.g., trees and rocks), landscaping, and other creative means to hide or disguise WCFs. Stealth can also refer to facilities completely hidden by existing improvements, such as parapet walls. Equipment - Equipment should be located within existing buildings to the extent feasible. If equipment must be located outside, it should be screened with walls and plants. If small outbuildings are constructed specifically to house equipment, they should be designed and treated to match nearby architecture or the surrounding landscape. Collocation - Whenever feasible and appropriate, WCF design and placement should promote and enable collocation. Height - WCFs should adhere to the existing height limitations of the zone in which they are located. CITY OF CARLSBAD Page 6 of 9 Policy No. 64 COUiWL POLICY STATEMENT Date Issued October 3-2001 DATED: September 21, 2001 Effective Date October 3, 2001 Cancellation Date Supersedes No. General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File 5. . Setbacks - WCFs, including all equipment, should adhere to the building setback requirements of the zone in which they are located, with the following clarifications: . a. If on a site next to a residential zone, the WCF should be set back from the ,residential zone boundary a minimum distance equal to the above-ground height of the antenna. b. If in a residential zone and in a public utility installation, park, or community facility, the WCF should be set back from the property boundaries of the utility installation, park, or community facility a minimum distance equal to the above-ground height of the antenna. C. The Planning Commission may decrease or increase these setbacks if it finds such changes would improve the overall compatibility of the WCF based on the factors contained in Application and Review Guideline D.4. 6. Building or Structure-Mounted WCFs: a. Antennas and their associated mountings should generally not project outward more than 18 inches from the face of the building. b. Roof-mounted antennas should be located as far away as possible from the outer edge of a building or structure and should not be placed on roof peaks. C. If permitted, WCFs on residential buildings should only be allowed if disguised as a typical residential feature (e.g., a chimney, a dormer) and if all equipment is located inside, not outside, the building. 7. Ground-mounted Monopoles: a. All antennas should be mounted as close as possible to the monopole to improve facility appearance. b. The placement, screening, and disguise of the monopole should fit with the surrounding site design, architecture, and landscaping. Tree disguises, such as a “mono-palm,” may be acceptable depending on their quality and compatibility with ‘landscaping nearby. C. Landscaping should be provided as necessary to screen, complement, or add realism to a monopole. Landscaping should include mature shrubs and trees. Some of the trees should be tall enough to screen at least three-quarters of the *height of the monopole at the time of planting.- Sometimes, landscaping may not be needed because of the monopole’s location or vegetation already nearby. d. When possible and in compliance with these guidelines, monopoles should be placed next to tall buildings, structures, or tall trees. 8. Lattice Towers a. New lattice towers should not be permitted in the City. COUNCIL POLICY STATEMENT DATED: September 21, 2001 Policy No. 64 Date Issued October 3.2001 Effective Date October 3, 2001 I CITY OF CARLSBAD I Page 7 of 9 c. Performance Guidelines General Subject: Specific Subject: Cancellation Date Supersedes No. WIRELESS COMMUNICATION FACILITIES Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File b. On existing lattice towers, all antennas should be mounted as close as possible to the tower so they are less noticeable. 9. 10. Undergrounding - All utilities should be placed underground. Regulatory Compliance - WCFs should comply with all FCC, FAA (Federal Aviation Administration), and local zoning and building code requirements. 1. Noise - All equipment, such as emergency generators and air conditioners, should be designed and operated consistent with the City noise standards. 2. Maintenance - All facilities, related equipment, and landscaping should be maintained in good condition and free from trash, debris, graffiti, and any form of vandalism. All required landscaping should be automatically irrigated. Damaged equipment and damaged, dead, or decaying landscaping’ should be replaced promptly. Replacement of landscaping that provides facility screening should be, as much as possible, of similar size (including height), type, and screening capability at the time of planting as the plant(s) being replaced. 3. Maintenance Hours - Except in an emergency posing an immediate public health and safety threat, maintenance activities in or within 100 feet of a residential zone should only occur between 7 AM (8 AM on Saturdays) and sunset. Maintenance should not take place on Sundays or holidays. 4. Lighting - Security lighting should be keptto a minimum and should only be triggered by a motion detector where practical. 5. Compliance with FCC RF Exposure Guidelines - Within six (6) months after the issuance of occupancy, and with each time extension or amendment request, the developer/operator should submit to the Planning Director either verification that the WCF is categorically excluded from having to determine compliance with the guidelines per 47 CFR §l.l307(b)(l) or a project implementation report that provides cumulative field measurements of radio frequency (RF) electromagnetic fields of all antennas installed at the subject site. The report should quantify the RF emissions and compare the results with currently accepted ANSI/IEEE standards as specified by the FCC. The Planning Director should review the report for consistency with the project’s preliminary proposal report submitted with the initial project application and the accepted ANSI/IEEE standards. If, on review, the Planning Director finds the project does not meet ANSI/IEEE standards, the City may revoke or modify the conditional use permit. CITY OF CARLSBAD COUNCIL POLICY STATEMENT Policy No. Date Issued Page 8 of 9 64 October 3, 2001 DATED: September 21, 2001 Effective Date October 3, 2001 Cancellation Date Supersedes No. General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File D. 6. Abandonment - Any WCF that is not operated for a continuous period of 180 days will be considered abandoned. Within 90 days of receipt of notice from the City notifying the owner of such abandonment, the WCF owner must remove the facility and restore the site, as much as.is reasonable and practical, to its prior condition. If such WCF is not removed within the 90 days, the WCF will be considered a nuisance and in addition to any other available remedy, will be subject to abatement under Chapter 6.16 of the Carlsbad Municipal Code. If there are two or more users of a single WCF, then this provision will not become effective until all users stop using the WCF. The provider or owner must give notice to the City of the intent to discontinue use of any facility before discontinuing the use. Application and Review Guidelines 1. Besides the typical submittal requirements for a conditional use permit (including plans, landscape details, and coior and material samples, as appropriate), all WCF applications should include the following items: a. A description of the site selection process undertaken for the WCF proposed. Coverage-objectives and the reasons for selecting the proposed site and rejecting other sites should be provided. b. A description or map of the applicant’s existing and other proposed sites. C. .A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). d. Verification that the proposed WCF will either comply with the FCC’s guidelines for human exposure to radio frequency (RF) electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR $1.1307(b)(l). If WCFs are proposed for collocation, the verification must show the total exposure from all facilities taken together meets the FCC guidelines e. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The Planning Director may waive the requirement to provide the exhibits if he determines they are unnecessary. 2. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in Location Guideline A.2., the applicant should provide evidence that no location in a preferred zone or area as listed in Location Guideline A.1 _ can accommodate the applicant’s proposed facility. Evidence should document that preferred zone or area locations do not meet engineering, coverage, location, or height requirements, or have other unsuitable limitations. CITY OF CARLSBAD COUNCIL POLICY STATEMENT Policy No. Date Issued Page 9 of 9 64 October 3. 2001 I DATED: September 21, 2001 Effective Date October 3, 2001 Cancellation Date Supersedes No. General Subject: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and operation guidelines for wireless communication facilities Copies to: City Council, City Manager, City Attorney, Department Heads and Division Heads, Employee Bulletin Boards, Press, File 3. For proposed new ground-mounted monopoles, the applicant should also provide evidence to the City’s satisfaction that no existing monopole, building, structure, or WCF site (“existing facility”) could accommodate the proposal. Evidence should demonstrate any of the following: a. No existing facility is located within the geographic area or provides the height or structural strength needed to meet the applicant’s engineering requirements. b. The applicant’s proposed WCF would cause electromagnetic interference with the existing antennae array or vice versa. ~ c. The fees, costs, or contractual provisions required by the owner to locate on an existing facility or to modify the same to enable location are unreasonable. Costs exceeding new monopole development are presumed to be unreasonable. d. The applicant demonstrates to the Planning Commission’s satisfaction that there are other limiting factors that render an existing facility unsuitable. 4. In considering a Conditional Use Permit for a WCF, the Planning Commission should consider the following factors: a. Compliance with these guidelines. b. Height and setbacks. El Proximity to residential uses. The nature of uses on adjacent and nearby properties. e. f. g. h. Surrounding topography and landscaping. Quality and compatibility of design and screening. Impacts on public views and the visual quality of the surrounding area. Availability of other facilities and buildings for collocation. 5. Conditional Use Permits for WCFs should be granted for a period not to exceed five years, Upon a request for either an extension or an amendment of a CUP, the WCF should be reevaluated to assess the impact of the facility on adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with these guidelines. Additionally, the City should review the appropriateness of the existing facility’s technology, and the applicant should be required to document that the WCF maintains the technology that is the smallest, most efficient, and least visible and that there are not now more appropriate and available locations for the facility, such as the opportunity to collocate or relocate to an existing building, COLE, RAYWID 6, BRAVERMAN, L.L.P. ROBERT JYSTAD 310 643.7999 Ex-r 104 RJYSTAD@cRBLAW.COM A-lTORNClS AT LAW 238 I ROSECRANS AVENUE, SUITE 110 EL SEGUNDO, CALIFORNIA 90245-4290 TELEPHONE (310) 643-7999 FAX (310) 643-7997 WWW.CRBlAW.COM WASHINGTON. D.C. OFFICE 1919 PENNSYLVANIA AVENUE, N.W WASHINGTON. O.C. 20006-3458 TELEPHONE (2OZ) 659-9750 FAX ,202,452-0067 October 9,200l Via Facsimile Ronald R. Ball City Attorney CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: AT&T Wireless Services -CUP 00-36 (7512 Cadencia Street1 Dear Mr. Ball: We received the Agenda Bill and Resolution 2001-309. Thank you. I am writing on behalf of AT&T Wireless (“AT’I’W”) to respond to the representations made in the Resolution. It is incorrect to report that the item was scheduled for September 11 and then continued as a result of the tragic events of that day. Although we expected in August that it would be scheduled for September 11, the item was never agendized by the City for the September 11 City Council meeting. There are other errors and mischaracterizations in the Resolution and it makes a number of irrelevant observations. In short, however, the Resolution supports a number of claims against the City. For example, it is clear under the Resolution that the purported visual blight/monotony associated with a chimney and a garage addition are pretext for unlawfully attempting to regulate the placement of ATTW’s facilities on the basis of environmental effects of radio frequency emissions. In addition, retroactive application of the City’s “Council Policy Statement” to ATTW facilities is further evidence of the City’s willingness to violate ATTW’s due process rights. Moreover, it is surprising that the City would recommend the policy to ATTW as guidance for relocating the 75 12 Cadencia site, when the site fully meets the design requirements for residential locations that are permitted, furthering support for the claims that the City is unreasonably discriminating against ATTW and that the City is being arbitrary and capricious in its decision to deny the CUP. I can be contacted today at 3 1 O-87 l-8 189 prior to the City Council meeting. Respectfully submitted, J” r A T&T Wireless c: Mr. Joseph Morales Daniel E. Smith, Esq. Jeremy H. Stem, Esq. RONALD R. BALL CITY AlTORNEY JANE MOBALDI ASSISTANT CITY AlTORNEY DAMIEN B. BROWER DEPUTY CITY Al7ORNEY CINDIE K. McMAHON DEPUTY CITY AlTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1989 (760) 434-2891 FAX: (760) 434-8367 October IO, 2001 RANDEE HARLl6 SECRETARY TO CITY AnORNEY ARDIS SEIOEL LEGAL SECRETARY/PARALEGAL Robert Jystad, Esq. Cole, Raywid 81 Braverman, LLP Suite 110 2381 Rosecrans Avenue El Segundo, CA 902454290 RE: AT&T WIRELESS Dear Mr. Jystad: Thank you for hand delivering me your letter of October 9,200l at the City Council meeting that evening in which the final resolution of your client’s appeal was considered. I was surprised that you did not speak to the resolution since it deadlocked at 2-2 and it was my understanding that your client wanted a final decision so it could proceed to the next step. After our conversation earlier in the day, I went back and reviewed the minutes of the meeting of August 21, 2001 which was handled by another attorney from my office because I was out of the country. According to the minutes from that meeting, the item was continued to September 11,200l. I have enclosed a copy of the face sheet of the agenda bill indicating that fact. Perhaps the reason that you were not planning to attend that meeting of September 11, 2001 was, in part, based on a conversation I had with your partner on August 31,200l in which I told him that I would recommend the matter be tentatively scheduled for the Council hearing of September 18, 2001. If the Council meeting of September II,2001 had not been cancelled, your client’s appeal would have appeared on the agenda and I would have recommended it be continued to September 18, 2001. There is no guarantee in this but the Council normally accepts that recommendation. We do not agree with your statement that the resolution is unlawfully attempting to regulate the placement of your client’s facilities and it is a fair characterization that the project, if completed, would be out of character with the neighborhood. The inclusion of the policy for your client’s future use was a good faith attempt to familiarize it with acceptable locations and standards in connection with future proposals. What did not happen in this case and what must happen in future cases will be guided by the policy which indicates that wireless communication facilities should not locate in any residential zone unless the applicant demonstrates no feasible alternative exists considering engineering, coverage, location or height requirements, or other unsuitable limitations. I continue to urge your client to work within these guidelines in selecting a new location for its facilities and I believe you understand the Council’s genuine entreaties in this regard. I appreciate your prompt attention to these matters. -RONALD R. BALL City Attorney rmh enclosure c: Mayor and City Council City Manager Planning Director