RESOLUTION NO. XX
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF COTATI DENYING A SECOND APPEAL OF THE COMMUNITY DEVELOPMENT DIRECTOR’S DECISION AND REAFFIRMING APPROVAL OF A
MINOR USE PERMIT FOR AN UNMANNED ROOFTOP TELECOMMUNICATIONS FACILITY AT 680 EAST COTATI AVENUE IN THE CE (COMMERCIAL, EAST COTATI CORRIDOR) ZONING DISTRICT (144-292-024 / FILE NO. PA# 24/20) WHEREAS, on June 27, 2024, T-Mobile West LLC, submitted an application to the City of Cotati for a Minor Use Permit for an unmanned rooftop telecommunications facility at 680 East Cotati Avenue (“Project”); and
WHEREAS, Section 17.44.040 of the City of Cotati Land Use Code conditionally permits this type of use when approved through a Minor Use Permit; and WHEREAS, Sections 17.60.020 (Table 6-1) and 17.62.050(C) of the Land Use Code establishes the Community Development Director (“Director”) as the appropriate review authority to decide on Minor Use Permit applications; and WHEREAS, pursuant to Section 17.88.020 of the Cotati Land Use Code, notices describing the proposed Project were mailed to neighboring property owners and published in a newspaper of general circulation at least ten days before the date of the hearing; and WHEREAS, on September 3, 2024, the Director held the required public hearing and considered public testimony and all documents and evidence related to the proposed Project prior to adopting Resolution No. CDD-2024-2 approving a Minor Use Permit for an unmanned rooftop telecommunications facility at 680 East Cotati Avenue; and WHEREAS, on September 16, 2024, the City of Cotati received an appeal filed by the Village Walk Association appealing the Director’s decision to approve a Minor Use Permit for the unmanned rooftop telecommunications facility at 680 East Cotati Avenue (“Appeal”); and WHEREAS, notices of the Planning Commission’s hearing on the Appeal and Project were sent to all neighboring property owners and occupants, the Project applicant, the appellants, all parties having requested notice, and were published in a newspaper of general circulation in the City in accordance with law; and
WHEREAS, October 7, 2024, the Planning Commission held a public hearing on the Appeal and Project and did consider all oral and written public testimony, all other relevant documents, and evidence which are part of the Record of Proceedings (“Record”) prior to voting 2-2 (one commissioner absent) on a resolution to deny the appeal, effectively taking no action on the Appeal application; and
2 WHEREAS, notices of the City Council’s hearing on the Appeal and Project were sent to all neighboring property owners and occupants, the Project applicant, the appellants, all parties having requested notice, and were published in a newspaper of general circulation in the City in accordance with law; and
WHEREAS, November 12, 2024, the City Council (“Council”) held a public hearing on the Appeal and Project and did consider all oral and written public testimony, all other relevant documents, and evidence which are part of the Record of Proceedings (“Record”) prior to acting on the Project and Appeal; and
WHEREAS, the Record upon which the City Council bases its decision includes, but is not limited to: (1) the State CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3); (2) the Cotati Municipal Code; (3) the City of Cotati General Plan and its related Environmental Impact Report (EIR); (4) all staff reports, city files, records, and other documents prepared for and/or submitted to the City Council; (5) all documentary and oral evidence received at the public hearings or submitted to the City during the comment period on the Project; and (6) all other matters of common knowledge to the City Council, and the City, including, but not limited to, City, state and federal laws, policies, rules, regulations, reports, records, and projections related to development within the City and its surrounding areas.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cotati does hereby find and resolve as follows:
Section 1. Denial of the Appeal
A. That the above recitals are true and correct and constitute a part of the findings made by the Council in support of this Resolution.
B. The City Council has reviewed and considered the Record, including all staff reports, all oral and written testimony presented at, or prior to, the hearing on the Appeal and all other matters deemed material and relevant prior to adopting this Resolution.
C. The City Council does, based thereon, hereby deny the Appeal and adopts the following Findings on 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 3 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 4 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 of approval would have been imposed to address fire safety concerns.
Section 2. Approval of Minor Use Permit and Findings
Based upon the analysis in the staff report and the Record as a whole, the City Council does hereby find:
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. 5 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.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the of the City of Cotati does find that the proposed project is categorically exempt from environmental review under a Class 3 Categorical Exemption pursuant to CEQA Guidelines Section 15303 6 (New Construction or Conversion of Small Structures); and 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 15183 of the CEQA Guidelines, no further environmental review is required.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of Cotati does hereby approve a Minor Use Permit to allow an unmanned rooftop telecommunications facility at 680 East Cotati Avenue, subject to each of the following conditions:
1. Applicant shall comply with the latest adopted ordinances, resolutions, policies, and fees adopted by the City Council at the time of building permit review and approval. All fees must be paid prior to issuance of a building permit.
2. To ensure all proposed and future towers are FCC compliant, the applicant shall submit the RF Exposure Report required by the FCC prior to issuance of a building permit. Any subsequent additions will require submission of an updated RF Exposure Report prior to building permit issuance.
3. A building permit is required prior to any construction activities.
4. Final review of the design of the facility will occur during building permit review. Minor modifications to the approved design which are in substantial conformance with this approval may be approved or required by the Director.
5. The owner or operator of the facility shall submit and maintain current at all times basic contact and site information. The owner or operator shall notify the city of any changes to the information submitted within thirty days of any change, including change of the name or legal status of the owner or operator. This information shall include the following:
A. Identity, including name, address, telephone number, and legal status of the owner of the facility including official identification numbers and FCC certification, and if different from the owner, the identity and legal status of the person or entity responsible for operating the facility;
B. Name, address, and telephone number of a local contact person for emergencies; C. Type of service provided; and
D. Identification signs, including emergency phone numbers of the utility provider, shall be posted at all communication facility sites.
6. The communication facility and related equipment, including stealth architectural features and elements, lighting, fences, shields, cabinets, and poles shall be maintained in good repair, free from trash, debris, litter, graffiti, and other forms of vandalism, and any damage or deterioration from any cause shall be repaired as soon as reasonably possible to minimize occurrences of dangerous conditions or visual blight. Graffiti shall be 7 removed by the service provider from any facility or equipment as soon as practicable, and in no instances more than forty-eight hours from the time of notification by the city.
7. The owner or operator of the facility shall routinely and regularly inspect the site to ensure compliance with the standards identified in Section 17.44.070 of the Cotati Municipal Code.
IT IS HEREBY CERTIFIED that the foregoing resolution was duly adopted at a regular meeting of the City Council of Cotati held on November 12, 2024, by the following vote, to wit:
Approved: ________________________
Mayor
Attest: ___________________________
Kevin Patterson, Deputy City Clerk
Approved as to form: ___________________________
City Attorney