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HomeMy WebLinkAbout2024-01-17; Planning Commission; Resolution 7504.,., PLANNING COMMISSION RESOLUTION NO 7504 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A MINOR CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO ALLOW THE INSTALLATION, OPERATION AND MAINTENANCE OF A WIRELESS COMMUNICATION FACILITY CONSISTING OF SIX (6) PANEL ANTENNAS MOUNTED WITHIN A 48 INCH RADOME CYLINDER ON A NEW 78-FOOT LIGHT POLE THAT WILL REPLACE AN EXISTING LIGHT POLE AND ASSOCIATED GROUND EQUIPMENT WITHIN AN EIGHT-FOOT TALL ENCLOSURE EAST OF THE SOUTHERN PARKING LOT OF POINSETTIA COMMUNITY PARK GENERALLY LOCATED AT 6600 HIDDEN VALLEY ROAD IN THE MELLO II SEGMENT OF THE CERTIFIED LOCAL COASTAL PROGRAM AND IN LOCAL FACILITIES MANAGEMENT ZONE 20. CASE NAME: POINSETTIA PARK WCF (AT&T) CASE NO.: CUP 2022-0023/CDP 2022-0070 (DEV2022-0206) Exhibit 1 WHEREAS, AT&T Wireless, "Developer", has filed a verified application with the City of Carlsbad regarding property described as THAT PORTION OF THE WEST HALF OF SECTION 21, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY. ("the Property"); and WHEREAS, said verified application constitutes a request for a Conditional Use Permit and Coastal Development Permit as shown on Exhibit(s) "A" -"K" dated Dec. 6, 2023, on file in the Planning Division, CUP 2022-0023/ CDP 2022-0070 {DEV2022-0206) -POINSETTIA PARK WCF {AT&T), as provided by Chapter 21.42 and Chapter 21.201.030 of the Carlsbad Municipal Code; and WHEREAS, the Planning Division studied the Conditional Use Permit and Coastal Development Permit application and performed the necessary investigations to determine if the project qualified for an exemption from further environmental review under the California Environmental Quality Act, (CEQA, Public Resources Code section 21000 et. seq.), and its implementing regulations (the State CEQA Guidelines), Article 14 of the California Code of Regulations section 15000 et. seq. After consideration of all evidence presented, and studies and investigations made by the city planner and on its behalf, the city planner determined that the project was exempt from further environmental review pursuant to State CEQA Guidelines section 15303 -New Construction or Conversion of Small Structures, in that the project is consistent with the General Plan, Zoning Ordinance and Local Coastal Program; the project includes the construction and location of small facilities or structures, and the installation of small equipment and facilities in small structures. The project will not have a significant effect on the environment and all the requirements of CEQA have been met; and WHEREAS, on Oct. 16, 2023, the city distributed a notice of intended decision to adopt the "New Construction or Conversion of Small Structures" exemption. The notice was circulated for a 10-day period, which began on Oct. 16, 2023, and ended on Oct. 26, 2023. The city did not receive any comment letters on the CEQA findings and determination. The effective date and order of the city planner CEQA determination was Oct. 26, 2023; and WHEREAS, the Planning Commission did, on Jan. 17, 2024 hold a duly noticed public hearing as prescribed by law to consider said request; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to the Conditional Use Permit and Coastal Development Permit. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad as follows: A) That the foregoing recitations are true and correct. B) That based on the evidence presented at the public hearing, the Commission APPROVES CUP 2022-0023/ CDP 2022-0070 (DEV2022-0206) -POINSETTIA PARK WCF (AT&T), based on the following findings and subject to the following conditions: Findings: Conditional Use Permit, CUP 2022-0023 1. That the requested use is necessary or desirable for the development of the community and is in harmony with the various elements and objectives of the general plan, including, if applicable, the certified local coastal program, specific plan or master plan, in that the use is consistent with the General Plan in that the Open Space Land Use designation does not preclude the provision of WCF uses. Within the Open Space {O-S) zone, CMC Chapter 21.33; WCFs are conditionally permitted uses. The requested WCF is necessary and desirable for the development of the community because of the benefit and demand for digital communications and data transmissions for businesses, residences, individuals, public agencies and emergency service systems in this part of the city. The use is consistent with the General Plan in that the Open Space Land Use designation does not preclude the provision of WCF uses. The use is in harmony with objectives that seek to maintain and enhance Carlsbad's appearance in that the WCF is integrated into a light pole; is designed so that the antennas will be attached as close to the light pole as possible with a concealing radome; and associated equipment is located within an enclosure designed to be compatible with the adjacent maintenance building, utilizing materials, colors, and textures that will match the maintenance building. 2. That the requested use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located in that the antennas are proposed to be mounted to a replacement light pole that is the same height as the existing light pole, and antennas are mounted as close to the light pole as technology will allow, thus reducing an outward noticeable appearance and minimizing visual impacts. The Telecommunication Act of 1996 preempts local governments from regulating the "placement, construction and modification of wireless communication facilities on the basis of the environmental effects of Radio Frequency (RF) emissions to the extent that such facilities comply with the Federal Communication Commission's {FCC) standards for such emissions." The proposed project would be consistent with the FCC's regulations for wireless facilities. The project complies with the FCC RF Exposure Guidelines. Lastly, a Generator Noise Assessment Letter was prepared by EBI Consulting (Oct. 28, 2022) in accordance with the City of Carlsbad's Noise Element of the General Plana and Noise Guidelines. The analysis concludes that the noise produced from operation of the proposed emergency back-up generator will comply with the Carlsbad Exterior Noise Limits at all receiving property lines. Therefore, based on the above, the project would not result in any detriment or significant health or safety risks to the surrounding area. 3. That the site for the proposed conditional use is adequate in size and shape to accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas, landscaping and other development features prescribed in this code and required by the City Planner, planning commission or City Council, in order to integrate the use with other uses in the neighborhood, in that the light pole on which the proposed antennas are to be located is the same height as the existing pole; the associated equipment is proposed to be located within an enclosure designed to be compatible with the adjacent remaining maintenance building, utilizing materials, colors, and textures that will match the maintenance building; the light pole and equipment are not within any required front, rear or side yard setbacks; and the proposed pole and equipment enclosure are located more than 160 feet from the nearest adjacent residential property. 4. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use, in that the unmanned WCF will require, on average, only monthly maintenance visits and occasional visits in response to operational issues. The existing street system is adequate to properly handle any traffic generated by the use. 5. That the proposed WCF is consistent with City Council Policy No. 64 in that the location, a public park, is a "preferred" location. The WCF is proposed to be installed on a structure that already exists, which will reduce its visibility and will be the least disruptive to the appearance of the park. The WCF will not be located on an exposed ridgeline and is satisfactorily screened and disguised by being located on a structure which will light an athletic field. The new antennas will be mounted as close to the light pole as technologically feasible within a four-foot diameter radome. The radome will be painted ,to match the color of the light pole, thereby minimizing visual impacts. The proposed ground mounted equipment will be located within an enclosure, which is designed and treated to match and compliment the adjacent maintenance building. The proposed light pole is consistent with the height requirements of the Open Space zone and will be the same height as the existing light pole to be replaced and the other existing light poles for the baseball field. The proposed installation is more than 160 feet away from the adjacent residentially zoned properties, which is more than double the 78-foot setback called for by the policy. Site selection information was provided that indicates other locations are not feasible. Color photo-simulations have been provided to show that the project will not substantially alter views to the site from surrounding viewpoints. A Generator Noise Assessment Letter was prepared by EBI Consulting (Oct. 28, 2022) in accordance with the City of Carlsbad's Noise Element of the General Plana and Noise Guidelines. The analysis concludes that the noise produced from operation of the proposed emergency back-up generator will comply with the Carlsbad Exterior Noise Limits at all receiving property lines. Coastal Development Permit, CDP 2021-0031 6. That the proposed development is in conformance with the Certified Local Coastal Program and all applicable policies in that the site is designated for non-residential uses and is already developed with an athletic-fields with field lights and other park amenities. The project consists of replacing one of the existing field light poles with a new pole that is the same height as the existing, and installing an unmanned WCF on the light pole. The WCF will not obstruct views of the coastline as seen from public lands or the public right-of-way, nor otherwise damage the visual beauty of the coastal zone. No agricultural activities, sensitive resources, geological instability, flood hazard or vertical coastal access opportunities exist onsite. Furthermore, the WCF facility is not in an area of known geologic instability or flood hazards. 7. The proposal is in conformity with the public access and recreation policies of Chapter Three of the Coastal Act in that the project is located outside of the coastal shoreline development overlay zone. Therefore, compliance with the public access and recreation policies of Chapter 3 of the Coastal Act is not required. 8. The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone {Chapter 21.203 ofthe Zoning Ordinance) in that the project will adhere to the city's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, BMP Design Manual and Jurisdictional Runoff Management Program (JRMP) to avoid increased urban runoff, pollutants, and soil erosion. No steep slopes or native vegetation are located on the subject property and the site is not located in an area prone to landslides, or susceptible to accelerated erosion, floods, or liquefaction. General 9. The Planning Commission has reviewed each of the exactions imposed on the Developer contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent apd the degree of the exaction is in rough proportionality to the impact caused by the project. Conditions: NOTE: Unless otherwise specified herein, all conditions shall be satisfied prior to building permit, whichever occurs first. 1. Approval is granted CUP 2022-0023/CDP 2022-0070 (DEV 2022-0206)-POINSETTIA PARK WCF (AT&T) as shown on Exhibits "A" -"K", dated Dec. 6, 2023, on file in the Planning Division and incorporated herein by reference. Development shall occur substantially as shown unless otherwise noted in these conditions. 2. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the city shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in interest by the city's approval of this Conditional Use Permit and Coastal Development Permit. 3. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Conditional Use Permit and Coastal Development Permit documents, as necessary to make them internally consistent and in conformity with the final action on the project. Development shall occur substantially as shown on the approved Exhibits. Any proposed development, different from this approval, shall require an amendment to this approval. 4. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of building permit issuance. 5. If any condition for construction of any public improvements or facilities, or the payment of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this c;1pproval shall be suspended as provided in Government Code Section 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 6. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney's fees incurred by the city arising, directly or indirectly, from (a) city's approval and issuance of this Conditional Use Permit and Coastal Development Permit, (b) city's approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the city's approval is not validated. 7. Prior to the issuance of a building permit, the Developer shall provide proof to the Building Division from the Carlsbad Unified School District that this project has satisfied its obligation to provide school facilities. 8. This project shall comply with all conditions and mitigation measures which are required as part of the Zone 10 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. 9. This approval shall become null and void if building permits are not issued for this project within 24 months from the date of project approval. 10. Developer shall pay the Citywide Public Facilities Fee imposed by City Council Policy #17, the License Tax on new construction imposed by Carlsbad Municipal Code Section 5.09.030, and CFD #1 special tax (if applicable), subject to any credits authorized by Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable Local Facilities Management Plan fee for Zone 10 pursuant to Chapter 21.90. All such taxes/fees shall be paid at issuance of building permit. If the taxes/fees are not paid, this approval will not be consistent with the General Plan and shall become void. 11. Prior to the issuance of the Conditional Use Permit and Coastal Development Permit, Developer shall submit to the city a Notice of Restriction executed by the owner of the real property to be developed. Said notice is to be filed in the office of the County Recorder, subject to the satisfaction of the City Planner, notifying all interested parties and successors in interest that the City of Carlsbad has issued a Conditional Use Permit and Coastal Development Permit by Resolution(s) No. 7492 on the property. Said Notice of Restriction shall note the property description, location ofthe file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The City Planner has the authority to execute and record an amendment to the notice which modifies or terminates said notice upon a showing of good cause by the Developer or successor in interest. 12. CUP 2022-0070 shall be reviewed by the City Planner annually to determine if all conditions of this permit have been met and that the use does not have a substantial negative effect on surrounding properties or the public health, safety and general welfare. If the City Planner determines that: 1) the Conditional Use Permit was obtained by fraud or misrepresentation; or 2) the use for which such approval was granted is not being exercised; or 3) the Conditional Use Permit is being or recently has been exercised contrary to any of the terms or conditions of approval or the conditions of approval have not been met; or 4) the use for which such approval was granted has ceased to exist or has been suspended for one year or more; or 5) the use is in violation of any statute, ordinance, law or regulation; or 6) the use permitted by the Conditional Use Permit is being or has been so exercised as to be detrimental to the public health, safety or welfare or so as to constitute a nuisance, the City Planner shall recommend that the Planning Commission hold a public hearing and after providing the permittee the opportunity to be heard, the Planning Commission may revoke and terminate the Conditional Use Permit in whole or in part, reaffirm the Conditional Use Permit, modify the conditions or impose new conditions. 13. This Conditional Use Permit is granted for a period of ten (10) years from Dec. 6, 2023, through Dec. 6, 2033. This permit may be revoked at any time after a public hearing, if it is found that the use has a substantial detrimental effect on surrounding land uses and the public's health and welfare, or the conditions imposed herein have not been met. This permit may be extended for a reasonable period of time not to exceed 10 years upon written application of the permittee made no less than 90 days prior to the expiration date. The Planning Commission may not grant such extension, unless it finds that there are no substantial negative effects on surrounding land uses or the public's health and welfare. If a substantial negative effect on surrounding land uses or the public's health and welfare is found, the extension shall be denied or granted with conditions which will eliminate or substantially reduce such effects. There is no limit to the number of extensions the Planning Commission may grant. 14. Developer shall report, in writing, to the City Planner within 30 days, any address change from that which is shown on the permit application, any change in the telecommunications provider, or any transfer in ownership of the site. 15. Developer/Operator shall comply with the Federal Communication Commission's guidelines on limits for human exposure to radio frequency (RF) electromagnetic fields. Within six (6) months after the issuance of occupancy, and with any time extension or amendment request, the Developer/Operator shall submit to the City Planner either (1) verification that the project is categorically excluded from having to determine compliance with the RF exposure guidelines per 47 CFR §1.1307(b)(l); or (2) a project implementation report which provides cumulative field measurements of RF emissions of all antennas installed at the subject site. The report shall quantify the RF emissions and compare the results with the exposure limits established by the FCC guidelines. Said report shall be subject to review and approval by the City Planner for consistency with the Project's preliminary report on RF exposure submitted with the initial project application and for consistency with the FCC guidelines. If, on review, the City finds that the Project does not meet the FCC guidelines, the City may revoke or modify this conditional use permit. 16. Except in an emergency posing an immediate public health and safety threat, maintenance activities shall only occur between 7 AM (8 AM on Saturdays) and sunset. Maintenance shall not take place on Sundays or holidays. 17. Future modifications to the facility shall not be approved unless the screening proposed and approved with this application, a four-foot radius radome cylinder, will continue to adequately screen new or replacement equipment. No expansion in size of the radome is allowed unless an amendment to CUP 2022-0023 and CDP 2022-0070 is approved. 18. No installed antennas or equipment shall be energized or activated unless the approved screening, a four-foot radius radome cylinder, is in place and secured on the light pole. This applies to any new or replacement equipment or antennas installed at a future date. 19. All installation activities shall be coordinated with the Community Development Department and the Parks & Recreation Department to avoid impacts to events within the public park. 20. The Developer/Operator shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the Developer/Operator, the subject property, the wireless communication facility or other infrastructure deployment or any use or activities in connection with the use authorized by this resolution, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the city planner or engineering manager (such as, without limitation, those requirements conditioned with this resolution). If the city planner or engineering manager finds good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF em1ss1ons, the city planner or engineering manager may require the Developer/Operator to submit a written report certified by a qualified radio frequency engineer familiar with the facility that certifies that the facility is in compliance with all such laws. The city planner or engineering manager may order the facility to be powered down if, based on objective evidence, the city planner or engineering manager finds that the facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the Developer/Operator demonstrates actual compliance with such laws. The Developer/Operator expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the Developer/Operator's obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce compliance with any applicable provision in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen Developer/Operator's obligation to comply in all respects with all applicable provisions in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation. Code Reminders: 1. Approval of this request shall not excuse compliance with all applicable sections of the Zoning Ordinance and all other applicable City ordinances in effect at time of building permit issuance, except as otherwise specifically provided herein. NOTICE TO APPLICANT An appeal of this decision to the City Council must be filed with the City Clerk at 1200 Carlsbad Village Drive, Carlsbad, California, 92008, within ten (10) calendar days of the date of the Planning Commission's decision. Pursuant to Carlsbad Municipal Code Chapter 21.54, section 21.54.150, the appeal must be in writing and state the reason(s) for the appeal. The City Council must make a determination on the appeal prior to any judicial review. NOTICE Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on Jan . 17, 2024 by the following vote, to wit: AYES: Merz, Meenes, Sabellico, Stine NAYES: Hubinger, Kamenjarin, Lafferty ABSENT: ABSTAIN: PETER MERZ, Chairperso CARLSBAD PLANNING COMMISSION ATTEST: ERIC LARDY City Planner