HomeMy WebLinkAbout2001-10-16; City Council; 16403; AT&T Wireless Services Appeal DenialL CITY OF CARLSBAD - AGENDA BILL L-.J
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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