1 RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AFFIRMING THE PLANNING COMMISSION
DECISION TO APPROVE CONDITIONAL USE PERMIT
(CUP22-0052) TO INSTALL A NEW 45 -FOOT
FREESTANDING WIRELESS TELECOMMUNICATION
FACILITY ON A 2.09 -ACRE SITE WITH AN EXISTING
CHURCH LOCATED AT 430 SECOND AVENUE.
WHEREAS, on December 14, 2022, a duly verified application for a Conditional Use Permit (“CUP”) was filed with the City of Chula Vista Development Services Department by AT&T (“Applicant”); and
WHEREAS, the Director of Development Services has reviewed the proposed Project for compliance with the California Environmental Quality Act (“CEQA”) and has determined that the Project qualifies for a Class 3 Categorical Exemption pursuant to Section 15303 (New Construction or Conversion of Small Structures) of the State CEQA Guidelines. Thus, no further environmental review is required; and
WHEREAS, the Director of Development Services set the time and place for a hearing before the Planning Commission on the CUP application, and notice of the hearing, together with its purpose, was given by its publication in a newspaper of general circulati on in the City and its mailing to property owners and residents within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and
WHEREAS, the duly called and noticed public hearing on the Project was held before the Planning Commission of the City of Chula Vista on October 25, 2023, in the Council Chambers, 276 Fourth Avenue, at 6:00 p.m. to hear public testimony and staff’s presentation; and
WHEREAS, the Planning Commission on October 25 , 2023, reviewed the Project and approved the CUP by a vote of 7-0; and
WHEREAS, on November 3, 20 23, William D. Daley filed an appeal of the Planning Commission’s decision to approve the CUP (CUP22-0052);
WHEREAS, the City Clerk set the time and place f or the public hearing before the City Council on the appeal and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City and its mailing to property owners and residents within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and
WHEREAS, City staff recommends denying the appeal and affirming the Planning Commission approval of CUP22-0052 for the Project; and
2 WHEREAS, the Chula Vista City Council has reviewed and considered all such materials for CUP for the Project; and
WHEREAS, the City Council held a duly noticed public hearing to consider said appeal at the time and place as advertised, namely January 16, 2024 at 5:00 p.m., in the City Council Chambers, 276 Fourth Avenue, before the City Council, and the hearing was thereafter closed.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby find and determine that the Pl anning Commission’s approval of Conditional Use Permit CUP22-0052 is hereby AFFIRMED, with findings as follows:
I. CONFORMANCE WITH CHULA VISTA MUNICIPAL CODE
That the City Council of the City of Chula Vista, in the exercise of its independent judgment, as set forth in the record of its proceedings does hereby adopt all findings made by the Planning Commission contained in resolution for the Project, which are attached hereto and incorporated herein by this reference, as if said findings were their own . The City Council specifically finds that the following are essential concealment elements of the stealth design for this proposed facility that make the facility look like something other than a wireless facility: (a) the design of the vertical support structure as a faux eucalyptus tree, including without limitation:
(i) the size and shape of the canopy of faux eucalyptus tree that resembles a mature natural eucalyptus tree, (ii) the placement of antennas and other tower -mounted equipment within the canopy of faux eucalyptus tree, and (iii) the painting of all surfaces to blend with he natural colors of the eucalyptus tree; (b) the design of the ground -level enclosure as one that resembles a trash corral; and (c) all the planting and related maintenance requirements.
BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista, based on the findings above, does hereby approve Conditional Use Permit CUP22 -0052, subject to the following conditions:
The following on-going conditions shall apply to the Project Site as long as it relies on this approval:
1. The Applicant shall maintain the Project Site in accordance with the approved plans for CUP22-0052, which include site plans and elevation plans dated June 6, 2023, and on file in the Planning Division, compliance with the conditions contained herein, and CVMC Title 19.
2. The conditions of approval for this Conditional Use Permit , CUP22-0052, shall be applied to the subject property until such time as the approval may be revoked, and the existence of this approval with conditions shall be recorded with the title of the property.
3. The Applicant and Owner shall execute this Conditional Use Permit acknowledging that the subject telecommunications use is the onl y use that has been approved under this permit. Any new use or modification/expansion of uses shall be subject to the review and approval of the Zoning Administrator.
3 4. The Applicant shall cooperate with telecommunications companies in co -locating additional antennas on the subject property, provided said co -locators have received a Conditional Use Permit from the City for such use. Applicant shall exercise good faith in co -locating with other communications companies and sharing the permitted site, provided such shared use does not give rise to a substantial technical level -or quality- of-service impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether Applicant has exercised good faith in accommodating other users, the City may require a third -party technical study at the expense of the Applicant.
5. Within 90 days of cessation of the business operations and use of the antennas, the Applicant shall submit a substitute user to the satisfaction of the Development Services Director and/or remove the Project and all associated equipment from the Project Site.
If the facility is removed, the Applicant shall restore the Project Site to its original condition. Any changes to this Conditional U se Permit shall require a modification to be reviewed by the Zoning Administrator.
6. The Property Owner and Applicant shall and do hereby agree to timely indemnify, protect, defend and hold harmless the City, its City Council members, Planning Commission members, officers, employees and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney fees (collectively, “liabilities”) incurred by the City arising, directly or indirectly, from (a) any environmental determinations; (b) the City’s approval and issuance of this Conditional Use Permit; and (c) the City’s approval or issuance of any other permit or action, whether discretionary or non -discretionary, in connection with the use contemplated herein. The Property Owner and Applicant shall acknowledge their agreement to this provision by executing a copy of this Conditional Use Permit where indicated below. The Property Owner’s and Applicant’s compliance is an express condition of this permit and shall be binding on any and all of the Property Owner’s and Applicant’s successors and assigns.
7. The conditions of approval for this Conditional Use Permit shall be applied to the Project Site until such time as the approval may be revoked, a nd the existence of this approval with the conditions shall be recorded with the title of the property.
8. Any violations of the terms and conditions of this permit may result in the imposition of civil or criminal penalties and/or the revocation or modification of this permit.
9. This Conditional Use Permit (CUP22-0052) may be reviewed 10 years from the date of approval (January 16, 2034) at which time the Zoning Administrator may review this use for compliance with the conditions of approval and any applicable codes and regulations and shall determine, in consultation with the Applicant, whether the Project shall be modified from its original approval, or revoked, and whether another review shall be necessary for the Project and if so, in what period of time.
10. This Conditional Use Permit (CUP22 -0052) shall become void and ineffective if not utilized within three (3) years from the effective date thereof ( January 16 , 2027), in 4 accordance with CVMC Section 19.14.260. Failure to comply with any conditions of approval shall cause this permit to be reviewed by the City for additional conditions or revocation.
I. GOVERNMENT CODE SECTION 66020(d)(1) NOTICE
Pursuant to Government Code Section 66020(d) (1), NOTICE IS HEREBY GIVEN that the 90 day period to protest the imposition of any impact fee, dedication, reservation, or other exaction described in this resolution begins on the effective date of this resolu tion and any such protest must be in a manner that complies with Government Code Section 66020(a) and failure to timely follow this procedure will bar any subsequent legal action to attack, review, set aside, void or annul imposition. The right to protest the fees, dedications, reservations, or other exactions does not apply to planning, zoning, grading, or other similar application processing fees or service fees in connection with this project; and it does not apply to any fees, dedication, reservations, or other exactions which have been given notice similar to this, nor does it revive challenges to any fees for which the statute of limitations has previously expired.
II. EXECUTION OF RESOLUTION OF APPROVAL
The Property Owner and Applicant shall execute this document by signing on the lines provided below, indicating that the Property Owner and Applicant have each read, understood, and agreed to the conditions contained herein, and will implement the same.
Upon execution, this document shall be signed an d returned to the City’s Development Services Department.
________________________________ _______________________ Signature of Property Owner Date
William Lewallen
William Lewallen for The Church in Chula Vista
Printed Name of Property Owner
________________________________ _______________________ Signature of Applicant Date
Tara Carmichael
Tara Carmichael for AT&T Wireless
Printed Name of Applicant
5 III. CONSEQUENCE OF FAILURE OF CONDITIONS
If any of the foregoing conditions fail to be met, or in the case that 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 th e 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; institute and prosecute litigation to compel their compliance with said conditions; or seek damages for their violation. Failure to satisfy the conditions of this permit may also result in the imposition of civil or criminal penalties.
VI. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent upon the enforceability of each and every term, provision, and condition herein stated and that, in the event that any one or more terms, provisions, or conditions are determined by a Court of competent jurisdiction to be invalid, illegal, or unenforceable, this Resolution and the permit shall be automatically revoked and of no further force and effect.
Presented by Approved as to form by
Laura C. Black, AICP Jill D.S. Maland
Director of Development Services Lounsbery Ferguson Altona & Peak Acting City Attorney