Cotati City Council
Agenda Staff Report
Item type: PUBLIC HEARINGS (ACTION)
To: City Council
Subject: APPEAL OF COMMUNITY DEVELOPMENT DIRECTOR
DECISION TO APPROVE A MINOR USE PERMIT TO ALLOW
AN UNMANNED TELECOMMUNICATIONS FACILITY AT 680
EAST COTATI AVENUE.
Date: November 12, 2024
Written by: Noah Housh, Director of Community Development Recommendation
It is recommended by the Community Development Department that the City Council deny an appeal of the Community Development Director’s decision and reaffirm approval a Minor Use Permit to allow an unmanned telecommunications facility at 680 East Cotati Avenue.
Background
The Telecommunications Act of 1996 (47 USC §332) prohibits the City from either conditioning or denying projects based on radio frequency emissions (“RF”) concerns, if the proposed facility complies with the Federal Communications Commission (“FCC”) guidelines on RF emissions.
In 2012, the Middle-Class Tax Relief and Job Creation Act was passed, requiring projects that propose co-location of wireless facilities be approved by the City (if all Federal and State standards are met) through a ministerial (building permit) process.
In 2018, the Federal Communications Commission (FCC) Declaratory Ruling was made regarding ‘Small Cell’ wireless facilities. The FCC order: a) limits local permitting and discretion; b) establishes new/shorter time limits and deadlines for processing and action; c) limits the fees that can be charged; and d) requires advanced publication of any aesthetic regulations and fees.
California Government Code Section 65964.1 - Deems approved any application for new or substantially changed wireless facilities when time limits and deadlines are not met (subject to specific noticing requirements).
In March 2024, the City of Cotati updated the Telecommunication Facility Ordinance, bringing the City’s regulations into compliance with Federal and State requirements and expanding the allowable areas where these facilities may be located.
T-Mobile West LLC “applicant” submitted a minor use permit application for the telecommunication facility on June 27, 2024. A public hearing was held by the Community Development Director on September 3, 2024. After reviewing Cotati Municipal Code (CMC) Chapter 17.44 (Telecommunications Facilities), pertinent information and documents, and listening to public comment regarding the project, the Director approved a Minor Use Permit allowing an unmanned rooftop telecommunication facility at 680 East Cotati Avenue.
On September 16, 2024, the Village Walk Alliance filed an appeal of the Director’s decision, citing improper noticing of the hearing (see Attachment B).
On October 7, 2024, the Planning Commission held a public hearing to consider the appeal of the Director’s decision. After considering all public testimony, relevant documents, and evidence, the Planning Commission took no action on the appeal.
On October 17, 2024, the Village Walk Alliance filed a second appeal of the Director’s decision, citing health risks, decreases in property values, and vulnerability to cyber-attacks (see attachment C).
Analysis/Discussion
This item is the City Council consideration of an appeal of a Minor Use Permit allowing an unmanned rooftop telecommunication facility at 680 East Cotati Avenue, with a recommended resolution attached that reaffirms the Community Director’s decision to approve a Minor Use Permit to allow the facility. The proposed telecommunication facility consists of six (6) new rooftop antennas contained within two 8-foot by 8-foot fiber-reinforced polymer (FRP) architectural elements that will be textured and painted to match the existing structure. The telecommunication facility will also include base station equipment located (outside) at the southwest corner of the building. The base equipment will be screened from view by an existing 6-foot concrete wall (see Attachment A).
Section 17.44.040 of the CMC conditionally permits building mounted telecommunication facilities when approved through a Minor Use Permit. 680 East Cotati Avenue is a 2-acre parcel within the Commercial, East Cotati Corridor or (CE) District. The parcel is currently developed with a health/fitness facility. The project site is located on the South side of East Cotati Avenue within the CE District. There are other commercial uses directly west of the subject parcel, and residential uses to the North, East, and South.
The proposed telecommunication facility will utilize a stealth design feature (as is required by the CMC) by incorporating antennas into two 8-foot by 8-foot FRP architectural features that will be textured and painted to match the existing building. This design is consistent with the design of the existing structure and the height increase complies with Section 17.44.060(B)(3) of the CMC, which allows an increase of up to 15 feet above the maximum allowed height of the zoning district for stealth designed, building mounted telecommunication facilities. As designed, the facility complies with all design and siting requirements of CMC Section 17.44.060. The facility will also comply with all operation and maintenance standards listed in CMC Section
17.44.070, as conditioned.
CMC Chapter 17.44 can be found in its entirety at the following link:
https://www.codepublishing.com/CA/Cotati/#!/html/Cotati17/Cotati1744.html Minor Use Permits are utilized by the City to review and consider uses that are conditionally permitted, but which may benefit from site specific consideration, limitation on their use and/or public engagement in their decision. CMC Section 17.62.050 governs the process by which a minor use permit much be decided, and identifies the finding required to be made in order to approve such a request.
Minor Use Permit Findings
To approve the Minor Use Permit, the following findings must be made:
1. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of the Land Use Code and Municipal Codes.
The proposed use is allowable within the CE (Commercial, East Cotati Corridor) Zoning District with prior Minor Use Permit approval by the Director to allow the telecommunication facility. As conditioned, the proposed use satisfies the requirements in the Land Use Code and Municipal Code.
2. The proposed use is consistent with the General Plan and any applicable specific plan.
The proposed use is consistent with the General Commercial land use designation in the General Plan, which allows for the properties to be used to provide the service needs of the local community. The project will not alter the primary use of the properties, the density, or development patterns within the zoning district.
3. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and future land uses in the vicinity.
The proposed design is consistent with the design of the existing structure and the height increase is consistent with the requirements of the Land Use Code. The proposed telecommunication facility will utilize stealth design and complement the architectural characteristics of the existing building. The proposed project will not impact use of the primary structure as a commercial building.
4. The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints.
The existing use is supported by an existing street and other necessary facilities and services. The existing access and utilities are adequate to support the proposed project. There are no physical constraints.
5. Granting the permit would not be detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zoning district in which the property is located.
The proposed project is consistent with the requirements of the Cotati General Plan and Land Use Code. The proposed facility will also comply with FCC regulations and operate at radio frequencies authorized by the FCC, and there are no anticipated impacts to public interest, health, or safety. This project is categorically exempt from CEQA, and no significant environmental impacts are anticipated with this project.
6. The communication facility complies with all applicable requirements of this chapter (Cotati Municipal Code Section 17.44).
As conditioned, the proposed communication facility complies with all applicable design, location, operation, and maintenance standards as required by CMC 17.44.
7. The communication facility will not adversely impact the character and aesthetics of any public right-of-way.
The proposed communication facility is located on the roof of an existing structure and will utilize a stealth design, thus will not impact any public right-of-way.
Allegations of the Appeal and Findings to Deny the Appeal
1. Allegation of the Appeal:
Property values around the telecommunication facility will decrease.
Finding:
Potential impacts to property value are not criteria that the City uses when making decisions to approve or deny projects.
Facts in Support of Finding:
The set of criteria that the City uses to make decisions on projects are “findings” found in the Municipal Code. The findings required for a Minor Use Permit are listed above and can be found at Cotati Municipal Code Section 17.62.050(F). These findings address a number of areas of concern for the City including: zoning and General Plan consistency, site suitability, aesthetics, and public health. Potential impacts to surrounding property values are not included in the required findings.
2. Allegation of the Appeal:
The Director’s decision failed to address the known vulnerability of these antennas to cyber-attacks and potential loss of privacy.
Finding:
Cyber-attacks are outside of the purview of the City. Cyber-attacks, and the security of the cell towers would fall under the purview of the FCC, and T-Mobile.
Facts in Support of Finding:
The FCC is responsible for ensuring telecommunications systems are secure from cyber threats, per Section 201(b) of the Communications Act of 1934 and Section 706 of the Telecommunications Act of 1996. Section 201(b) of the Communications Act of 1934 allows the FCC to regulate service carrier practices related to the security and reliability of their networks. Section 706 of the Telecommunications Act of 1996 mandates that the FCC promotes the deployment of advanced telecommunications capability. The FCC has used these provisions to provide guidance and establish regulations regarding cybersecurity.
As a private telecommunications provider, T-Mobile is responsible for ensuring the security of its own network infrastructure. T-Mobile is responsible for following FCC guidance and regulations on cybersecurity to mitigate risks and secure their network infrastructure.
3. Allegation of the Appeal:
There are perceived negative health risks associated with the cell towers.
Finding:
The Director’s decision conformed to federal law and the limits imposed on cities and counties when considering approval of new or expanded cellular towers and antennas.
Facts in Support of Finding:
Federal law preserves a local jurisdiction’s authority to make decisions regarding the placement, construction, and modification of personal wireless service facilities with certain exceptions. The City of Cotati’s provisions regarding cell tower placement, design and construction are set forth in Chapter 17.44 (Telecommunication Facilities) of the Cotati Municipal Code.
A primary exception to the City’s authority to regulate placement of cellular towers and antennas relates to radio frequency emissions. Specifically, Section 704 of the Telecommunications Act of 1996 amended Section 332(c)(7)(B)(iv) of Title 47 U.S.
Code (The Communications Act of 1934) to expressly prohibit state and local government regulation of 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 Commission’s (FCC) regulations concerning such emissions. Section 332(c)(7)(B)(v) further provides that Parties may seek relief from the FCC if they are adversely affected by a state or local government’s final action or failure to act that is inconsistent with the provision.
In response to concerns about radio frequency emissions raised at the public hearing the Director added condition #2 (see below) that requires the applicant to submit the RF Exposure Report required by the FCC prior to issuance of a building permit. This report was provided and has been included as an attachment. Any subsequent additions to the telecommunication facility will require submission of an updated RF Exposure Report, compliance with the RF limitations in Federal law and a building permit.
4. Allegation of the Appeal:
The proposed project fails to address fire safety by omitting details on back-up batteries.
Finding:
There are no proposed back-up batteries or generators for this project.
Facts in Support of Finding:
Plans submitted by the applicant do not propose back-up batteries or generators for power storage. If the applicant had proposed back-up batteries or generators for power storage, plans would have been referred to the Rancho Adobe Fire District (RAFD) for review, and the appropriate conditions would have been imposed to address fire safety concerns.
The Community Services and Facilities, Economic Vitality, and Land Use chapters of the 2015 Cotati General Plan include several goals, policies and actions which support the requested Minor Use Permit. Specifically, this direction includes:
Goal CSF 1 Provide high quality public services and facilities to all residents, businesses and visitors in Cotati.
Policy EV 1.2: Ensure the long-term public services and infrastructure needs of the community are met as part of the overall approach to economic vitality and sustainability.
Goal LU 3 Provide for a range of Commercial, Industrial and Mixed Uses to provide Cotati’s residents access to jobs and employment to support the local economy.
Policy LU 4.1 Ensure that public facilities, services and amenities are distributed in a manner that enhances the quality of life for the broadest number of Cotati’s residents.
Action CSF 1d: Provide assistance and support, when feasible, to residents, businesses, and new development areas to secure high-speed communications technologies in areas of the City not currently served by such infrastructure.
The Cotati General Plan can be found at:
https://www.cotaticity.org/DocumentCenter/View/256/General-Plan PDF
Staff Response:
Staff finds that the proposed project complies with FCC guidelines and the City’s updated Telecommunications Facility Ordinance. Further, the project will implement and further the 2015 General Plan goals, policies, and actions in that the proposed telecommunication facility will allow higher quality telecommunication services throughout the City ensuring the long-term infrastructure needs are met; will provide a wider range of uses on commercial through-out the City; will help to more evenly distribute the available telecommunication services throughout the City; and that the project would aid in providing for the basic service needs of the local community by improving wireless cell service in the surrounding area and implement the General Plan as identified above.
Financial Considerations
Denial of the appeal and approval of the minor use permit is not expected to have a significant fiscal impact on the City or 2024/25 General Fund. While appeal fees are subsidized and do not cover the full cost of processing these applications, the fee does cover a majority of the hard costs (postage and noticing), with the remainder being staff time to review the materials, manage the project and prepare the documents for the public hearing.
Environmental Issues
The proposed project is categorically exempt from environmental review under a Class 3 Categorical Exemption pursuant to CEQA Guidelines Section 15303 New Construction or Conversion of Small Structures. Further that the proposed project is consistent with the program Final Environmental Impact Report (SCH# 2013082037) for the Cotati General Plan Update that was certified on March 24, 2015 (Resolution Number 2015-11), and pursuant to Section 15168 of the CEQA Guidelines, no further environmental review is required.