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January 16, 2024
ITEM TITLE
Planning Commission Appeal: Conditional Use Permit to Install a New 45 -Foot Freestanding Wireless Telecommunication Facility on a 2.09-acre Parcel Improved with an Existing Church Report Number: 24-0027
Location: 430 Second Avenue
Department: Development Services
G.C. § 84308: Yes
Environmental Notice : The Project (as defined below) qualifies for a Class 3 Categorical Exemption pursuant to Section 15303 (New Construction or Conversion of Small Structures) of the California Environmental Quality Act (“CEQA”) State Guidelines.
Recommended Action
Adopt a resolution denying the appeal and affirming the Planning Commission ’s decision to approve Conditional Use Permit , CUP22-0052, to install a new 45 -foot freestanding wireless telecommunication facility at 430 Second Avenue.
SUMMARY
On December 14, 2022, AT&T Wireless (“Applicant”) submitted a Conditional Use Permit (“CUP”) application to install a new 45-foot-high wireless telecommunication facility on a property improved with an existing church, located at 430 Second Avenue ( “Project”). The Project site is zoned R-1 (Single Family Residence) and RLM (Residential Low-Medium) within the General Plan (Attachment 1).
In accordance with Chula Vista Municipal Code (“CVMC”) Section 19.89.060, the Planning Commission may allow stealth-designed facilities to exceed the zone district height limit. The maximum building height of the underlying R-1 zone is 28 feet. The propose d facility will be 45 feet tall, exceeding the maximum building height by 17 feet, and thus approval from the Planning Commission was required.
On October 25, 2023, the Planning Commission considered and approved the Project by a vote of 7-0. The Planning Commission Report, including attachments, considered at the hearing on October 25 th is included as Attachment 2 of this report. The Planning Commission resolution is included as Attachment 3 of this report. During the October 25th hearing, there were two speakers present, Michael Daley and William Daley, P a g e | 2
who provided comments in opposition to the Project . Additionally, there were seven written comments received prior to the hearing that were all in opposition to the project (Attachment 4).
On November 3 , 2023, William D. Daley (the “Appellant”) filed an appeal of the Planning Commission’s decision to the City Council , citing “Factual Error” and “Findings Not Supported” as the bas is of the appeal (Attachment 5).
This item is now presented to the City Cou ncil for consideration and action. While this is an appeal of the Planning Commission’s October 25 , 2023 decision, City Council should take into full consideration the deliberations and decision of the Planning Commission. Under CVMC Section 19.14.588(B), the City Council has the authority to consider the Project, in its entirety, and make a de novo determination based upon appropriate findings.
After having considered all the evidence in the written record prior to the publication of this report, staff recommends that the City Council deny the appeal and uphold the Planning Commission’s decision. The proposed use is consistent within the R-1 zone, is compatible with existing and surrounding land uses and complies with the development standards specified in the City’s Wireless Telecommunications Facility Ordinance (CVMC Chapter 19.89). The proposed use also helps to achieve the Public Facilities and Services Element of the General Plan, including Policy PFS 24.1, regarding installing state-of-the-art wireless facilities, and Policy PFS 24.2, regarding reviewing new telecommunications facilities and requesting siting and design techniques that minimize community impacts. Accordingly, staff recommends that the appeal be denied, and the decision of the Planning Commission be upheld.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the proposed Project for compliance with 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 because the proposed Project would not result in a significant effect on the environment, create a cumulative impact, damage a scenic highway, or cause a substantial adverse change in the significance of a historical resource. Thus, no further environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
On October 25, 2023, the Planning Commission voted 7-0 to approve the Project.
DISCUSSION
The improved 2.09-acre Project site is located on the west side of Second Avenue, north of Alvarado Street, and south of G Street. To the west, south, and east of the Project site are existing single -family residential properties. To the north are existing single-family and multi-family residential properties (Attachment 1).
The proposed Project is a freestanding wireless telecommunications facility consisting of twelve (12) panel antennas mounted on a 45 -foot-high freestanding stealth tower, designed to re semble a eucalyptus tree rather than a wireless tower (Attachment 6). The facility also includes a 9 -foot-high concrete masonry unit wall, which will serve as an enclosure for the equipment , and camouflaging it in a manner that resembles a corral for trash cans or other non-wireless utilities. Other improvements include new landscape surrounding the ground-level enclosure, which will help blend the project in with adjacent landscaped areas. Additional P a g e | 3
planting material along the enclosure wall will further conceal the facility and provide protection against vandalism and graffiti.
In accordance with CVMC Chapter 19.89 (Wireless Telecommunications Facilities), wireless telecommunications facilities are allowed in any zone, subject to a CUP. Facilities that exceed the height limit of the underlying zoning must consist of a stealth design and be at the minimum technologically feasible height. The Project will be built to comply with the Wireless Ordinance’s Development Criteria and all other applicable City zoning and building regulations. Access to the site shall be kept to a minimum and conducted in a manner that does not negatively impact the residents or business customers.
On November 3, 2023, the Appellant filed an appeal claiming factual error and findings not supported as the basis of their appeal.
Factual Error
The first basis of appeal claimed by the Appellant was there were factual errors made by the Planning Commission in approving the Project. However, the Appellant did not provide any claims of factual error in the appeal.
Findings Not Supported
The appeal focuses solely on the claim that findings not supported. Specifically, the Appellant cites the following basis for appeal:
Conditional Use Permit Finding #1
The Appellant states the proposed use at the location is not necessary or desirable to provide a service or facility and will not contribute to the general well-being of the neighborhood or the community. They provide the following information to support this claim:
The Appellant has adequate cell service and does not have a problem reaching emergency services. The 45-foot-high proposed tower is not compatible in design with the surrounding single -family neighborhood.
The proposed tower is not the most technologically feasible option, and alternatives such as co - location on existing sites should be further explored.
Staff Response: The Appellant’s subjective opinion of their personal cell coverage does not speak to the coverage reception for the surrounding neighborhood residents. The Applicant has provided coverage maps indicating weak coverage areas and how the new facility will positively impact those coverage gaps (Attachment 7).
The proposed tower has also been designed to mimic a faux eucalyptus tree, which is consistent with existing landscaping within the adjacent community. The Applicant also provided information as part of their application submittal that alternative sites, specifically opportunities for co-location, were considered prior selecting the Project site to build a freestanding tower (Attachment 2).
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Conditional Use Permit Finding #2
The Appellant states the proposed use will be detrimental to the health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity. They provide the following information to support this:
The City’s General Plan states a goal to promote housing that helps to create s afe, livable, and sustainable neighborhoods.
Approving the CUP will change the landscape and neighborhood character and affect property values. Cell towers invite crime and jeopardize public safety by being receptors to graffiti and structure collapse via a natural disaster.
Staff Response: The City’s General Plan offers several different goals for the community. Goals PFS 24.1 and
24.2 speak to the need to implement new wireless facilities. Within the Public Facilities and Services Element of the General Plan, Policy PFS 24.1 relates to installing state-of-the-art wireless facilities, and Policy PFS 24.2 relates to reviewing new telecommunications facilities and requesting siting and design techniques that minimize community impacts. Although the various goals in the General Plan may require the City to balance potentially competing interests, City has a vested interest in promoting and providing adequate cell coverage to all of its residents and the Planning Commission is well positioned to make such balancing decisions (See General Plan GPI 3.3 and 6.3).
The proposed tower has been designed to meet current California Building Code Standards, and, to mimic a faux eucalyptus tree. This is consistent with existing landscaping within the adjacent community. The Project would also be required to comply with specific provisions regarding vandalism and graffiti within CVMC Section 19.89.060, by providing a secure, gate-locked block wall equipment enclosure, and graffiti-resistant coating on the same walls.
Conditional Use Permit Finding #3
The Appellant states the proposed use does not comply with the regulations and conditions specified in CVMC Title 19 for such use. They provide an itemized list of conflicts with the development standards within CVMC Section 19.89.060 to support this claim, including:
The proposed tower is not the most technologically feasible option for providing service. The smallest practical devices are not used via the tower, to achieve the needs of the wireless network.
The proposed tower’s design is not compatible with the surrounding area. The Applicant has not given enough information and alternatives to demonstrate co -location as a first option.
The proposed setbacks of the tower only meet the setbacks for a 28-foot-high structure within the R- 1 zone but should be set back further due to the increased height. The cell tower equipment shall be first placed underground, and not above -ground through a new tower.
Staff Response: Cellular technology and the size of equipment surrounding cell service is ever-changing and evolving. Much of cellular service today is still “line of sight” type technology, and thus new wireless facilities providing cell coverage are not typically placed underground . They are either installed via a freestandin g P a g e | 5
structure or placed on an existing building , but in either case, above ground. Moreover, the proposed concealment as a faux eucalyptus tree mitigates the impacts of the visual impacts from above -ground equipment.
The City’s Wireless Telecommunications F acility Ordinance defers to the site -specific zoning designations related to setbacks. The proposed tower is required to meet the setbacks under the R-1 zoning designation, which is 28 -feet. There is no requirement for a taller structure to adhere to a lar ger setback. The Project complies with the required 28-foot setback.
As part of their application submittal , th e Applicant provided information detailing their exploration of alternative sites, specifically opportunities for co -location, prior to selecting the Project site. If co-location cannot be achieved prior to application submittal and it is demonstrated through documentation, a freestanding tower may be constructed with the provision that future co-location opportunities are provided on the structure.
Conditional Use Permit Finding #4
The Appellant states the granting of this conditional use will adversely affect the General Plan of the City.
They provide various sections from the General Plan referring to policies regarding Community Image/Character, Healthy and Sustainable Communities.
Staff Response: There are several elements within the General Plan with each element containing a large number of goals. Some goals may seem contradictory while others complement one another well. The Public Facilities and Services Element of the General Plan, including Polic ies PFS 24.1 (installing state-of-the-art wireless facilities) and Policy PFS 24.2 (reviewing new telecommunications facilities ) require the City to uphold siting and design techniques that minimize community impacts.
Additionally, the Project provides a vital service in the 21st century by connecting neighborhoods to the larger telecommunications infrastructure and helps to achieve some structure diversity within existing neighborhoods. The proposed use is consistent within the R -1 zone, is compatible with existing and surrounding land uses and complies with the development standards specified in CVMC Chapter 19.89.
Code Violations
The appeal goes further and requests the City Council deny the Project based upon the Appellant’s claim that the property owner is not trustworthy due to previous zoning code violations filed against the property.
The City Council cannot consider code violations unrelated to the proposed project, and civil matters between the property owner and the community, as part of the final decision. Additionally, there are no open code violation cases against the property owner at 430 Second Avenue.
Conflict with Federal Law
In 1996, Congress passed the Telecommunications Act that, among many other things, attempted to balance the local interest in preserving zoning authority against the national interest in expanded communications facilities deployment. The Telecommunications Act generally preserved local zoning auth ority except for specifically enumerated limitations, such as preempting local prohibitions, discrimination, certain environmental regulations and unreasonably long or unclear decision-making processes. In 2012, Congress P a g e | 6
passed the Middle-Class Tax Relief and Job Creation Act of 2012, which included the Spectrum Act. The intent was to further encourage and enhance the growth of national telecommunications networks, including the creation of a broadband communications network for first responders. The Appell ant refers to “federal statutes of the Telecommunications Act” that need to be considered as part of the approval of the CUP. After further review the Spectrum Act of 2012, none of the claims the Appellant makes with respect to findings of the Planning Com mission are found within the Act, and therefore cannot to be considered as part of this action.
Conclusion
In conclusion, City Staff has determined that (1) there is substantial evidence in the record that the Project meets the findings for issuance of a Conditional Use Permit, and (2) the Project design is consistent with City design standards.
Staff recommends the City Council deny the Appellant’s appeal and affirm the Planning Commission’s approval of Conditional Use Permit CUP22-0052 to install a new 4 5-foot-high freestanding wireless telecommunication facility on a property improved with an existing church, located at 430 Second Avenue.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Council members and has found no propert y holdings within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real property -related financial conflict of interest under California Code of Regulations Title 2, section 18705.2(a)(11), for purposes of the Political Reform Act (Cal. Gov’t Code §87100, et seq.).
Staff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
An appeal fee of $250 was paid by the Appellant. The processing costs associated with the Project appeal are borne by the Applicant. There are no current -year fiscal impacts to the General Fund or the Development Services Fund as a result of this action.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact to the General Fund or the Development Services Fund as a result of this action.
ATTACHMENTS
1. Location Map
2. Planning Commission Staff Report and attachments
3. Planning Commission Resolution
4. Draft Planning Commission Minutes and Submitted Public Comments
5. Appeal Application
6. Photo Simulations
7. Coverage Maps
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Staff Contact: Chris Mallec, AICP, Senior Planner, Development Services Laura C. Black, AICP, Director of Development Services