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