City of Fontana
Action Report
Planning Commission
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2293 Agenda Date: 7/18/2023
Agenda #: PH-C Category: Public Hearing
FROM:
Planning Department
TITLE:
Master Case No. 23-062 and Appeal No. 23-015 - Appeal of the Director of Planning’s decision approving Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, a request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total pursuant to CEQA determinations.
RECOMMENDATION:
Based on the information in the staff report and subject to the attached Findings, staff recommends that the Planning Commission:
1. Deny Appeal No. 23-015, thereby upholding the decision of the Director of Planning, for Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, for the request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total.
2. Direct staff to prepare, execute, and file a CEQA Notice of Determination and a Notice of Exemption with the County Clerk, as appropriate, within five (5) working days of the Commission’s final action on Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 APPLICANT:
Robert Constant
28871 Blythewood Drive
Rancho Palos Verdes, CA 90275
LOCATION:
17010 Sierra Lakes Parkway (APN: 119-221-69)
REQUEST:
Master Case No. 23-062 and Appeal (APL) No. 23-015 - Appeal of the Director of Planning’sdecision approving Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 for a request to install a new wireless facility consisting of a 75’mono-palm with 14 antennas, 36 RRU’s,supporting equipment, and an equipment enclosure of 347 square feet total.
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PROJECT PLANNER:
Mai Thao, Assistant Planner
PROJECT DESCRIPTION:
Land Use Designation:
ANALYSIS:
Background
Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 consist of a request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of approximately 347 square feet that was approved by the Director of Planning at a scheduled public hearing on May 11, 2023.
Mr. Nikos Constant, representing the abutting property owner, communicated concerns verbally during the hearing that follow the concerns provided in the Appellant’s appeal justification letter as well as unrelated matters about various contractors trespassing on the abutting property owner’s property. Subsequent to the Director’s approval, Mr. Constant submitted written communications describing certain concerns raised.
The appeal period for the project was fifteen (15) calendar days after a decision had been made on May 11, 2023, therefore the appeal period closed on May 26, 2023. Since the City is closed on Fridays this extended the closing period until Monday, May 29, 2023. Staff received one (1) appeal application in opposition of the project. The appellant, Robert Constant, is the adjoining property owner located at APN: 1119-221-54, just north of the project site. The appellant has provided one (1) appeal justification letter citing six concerns which is attached hereto as Attachment No. 1. The grounds for the appeal stated in the appeal justification letter included concerns relating to: setback issue to fee simple relating to potential fall concerns, setback issue to private easements, high winds and liability insurance, security, privacy, and safety, unlimited future use, and view impairment.
Minor Use Permit (MUP) No. 22-007
Brett Smirl, on behalf of AT&T submitted the application for a Minor Use Permit No. 22-007 on September 26, 2022, for the operation of an unmanned wireless telecommunications facility within the Regional Mixed-Use zone, which was approved by the Director of Planning on May 11, 2023.
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the Regional Mixed-Use zone, which was approved by the Director of Planning on May 11, 2023.
This use is considered a public utility structure an dfacility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit. The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. The wireless facility will support the intended uses for the areas within the Regional Mixed Use land use designation.
Administrative Site Plan (ASP) No. 22-028
Brett Smirl, on behalf of AT&T submitted the application of an Administrative Site Plan (ASP) No. 22- 028 on September 26, 2022, for the site and architectural review for the unmanned wireless telecommunications facility that was approved by the Director of Planning on May 11, 2023.
According to the information submitted in the ASP22-028 application, AT&T will be the only carrier on the mono-palm tower at this time. The equipment enclosure is approximately eight (8) feet high and is 347 square feet in size and secured with a decorative stucco finish with a gate. The equipment enclosure will be accessed via a 12’non-exclusive access path on Mango Avenue for maintenance and service for the mono-palm tower.
Appeal Concerns:
The following is a summary of the items raised in the previously reference appeal; Attachment No. 1 is a copy of the appeal letter.
1. Setback issue to fee simple: The height of the tower at 75 feet, with a 65-foot setback would encroach on Constant’s fee simple by, at the minimum, ten feet if it falls.
Constant demands that air and land rights be secured for this encroachment.
Response: The Appellant does not claim that the proposed facility violates the Fontana Municipal Code’s requirement for setbacks and admits that the proposed facility will not encroach on his property once constructed. The Appellant is speculating about a scenario in which the proposed wireless facility would fall or collapse on his property. If the Appellant is attempting to claim that his property rights would be impaired by the City’sapproval of the proposed wireless facility, those concerns are not germane to the required findings for approval or would not serve as a basis for denial because the proposed facility will not actually encroach onto the Appellant’s property as constructed. Further, Chapter 32 Wireless Telecommunications Towers and antennas provides development standards for new towers and antennas. The maximum height allowed for a single user is 75 feet in height with the tower set back required to be a distance equal to at least 75 percent of the height of the tower from any adjoining lot line. The project complies with the development standards outlined in Chapter 32, with a setback distance proposed at 85 percent (approximately 64-foot setback) to the northern property line. Therefore, the project meets this development standard. The proposed AT&T tower and equipment has been reviewed and approved by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed once again prior to issuance of building permits.
2. Setback issue to fully negotiated private easements: The height of the tower, if it falls, also encroaches on several private easements secured by the Constant with both subservient neighbor as well as third parties. Constant demands further rights be City of Fontana Printed on 7/12/2023Page 3 of 9
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secured for this encroachment.
Response: Appellant’sconcerns raised here are similar to those raised in Issue 1 and concern a speculative scenario where the proposed wireless facility may fall or collapse onto the Appellant’s property. The Appellant’s claims that the proposed facility may in such a speculative circumstance impair certain unspecified property rights, would not serve as a basis for denial because the proposed facility will not actually encroachment onto the Appellant’s property as proposed. The AT&T wireless telecommunications facility will be installed at 17010 Sierra Lakes Parkway (APN:1119-221-69). As mentioned above, the project complies with the setback requirements as outlined in Chapter 32. The proposed AT&T tower and equipment has been reviewed by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed prior to issuance of building permits. The project will be built pursuant to all applicable building, zoning, fire codes and standards and complies with all applicable FCC and FAA regulations.
3. High winds and liability insurance: Due to year-round high winds in the area, Constant demands to be a named party on all liability insurance and be completely indemnified with any damages to Constant property paid out at treble damages rate, secured by a lien against tower.
Response: The Appellant has raised potential remedies that are not requirements of the Fontana Municipal Code and are not a condition of approval the City requires. The Appellant has no basis for his requests to be named a party on all liability insurance (it is unspecified whose policy this request would attach), to be indemnified, to receive treble damages, or to secure a lien on the proposed wireless facility. The proposed AT&T tower and equipment has been reviewed by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed prior to issuance of building permits. The project will be built pursuant to all applicable building, zoning, fire codes and standards and complies with all applicable FCC and FAA regulations.
4. Security, Privacy, and Safety: Due to the sensitive nature of telecommunications infrastructure locally, nationally, and internationally, as well as future unknowns to health and safety from EMF, Constant demands a more thorough public vetting of this project by City Council in an open forum.
Response: The City’sreview of the application and the Director’sapproval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 followed the procedures and process required by the Fontana Municipal Code. The Appellant has also raised concerns regarding the perceived health and medical risks posed by the proposed wireless facility. The City may not deny a wireless facility application based on concern about RF emissions exposure if the facility complies with FCC guidelines.1
1 In AT&T Wireless Servs. v. City of Carlsbad, 308 F. Supp. 2d 1148, 1161 (S.D. Cal. 2003). the city made a finding that the wireless facility would “negatively affect property values of nearby homes based upon the perceived fear of the health effects cause by the RF emissions.” The court held against Carlsbad, ruling that cities may not regulate based on the “direct or indirect concerns over the health effects of RF.” The court explained that a denial could not be based on substantial evidence (as required by law) “…if the fear of property value depreciation is based on concerns over the health effects caused by RF emissions.” City of Fontana Printed on 7/12/2023Page 4 of 9
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The health risks associated with the public’sexposure to radio frequency (RF) energy has been an area of public concern particularly in light of the public’sincreasing reliance on mobile devices and the proliferation of mobile technology and its supporting infrastructure. Setting the safety standards for RF emissions is exclusively the responsibility of the federal government, and the responsible agency is the Federal Communications Commission. Thus, Section 332 (c)(7)(B)(iv) prohibits the City from denying a wireless facility application based on concerns about RF emissions so long as the applicant has demonstrated that its facilities will comply with FCC standards. The Applicant has provided a certification that the proposed facility will comply with FCC standards for RF emissions. Further, the applicant’sfacility must comply with state and federal law and as such, the Applicant may only use equipment that is FCC approved.
5. Unlimited future use: Due to the open ended and unlimited nature of future usage of the project, Constant demands a renegotiation of all terms at any and every change of future use.
Response: The Director’s approval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 will not result in open ended or unlimited use. Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 authorize the construction and operation of a wireless facility to be used for personal wireless services in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. The City is authorized by Government Code Section 65964 to place a ten year limit on the term of the requested wireless permits, which would require the permittee to reapply for new permits at that time and the permittee would be required to comply with all City requirements in effect at that time. The permittee is required to follow all City requirements and processes for any changes to the wireless facility improvements or to any changes in use. Future uses will be analyzed by the City in light of requirements existing at the time of such proposals. Such proposals may or may not include discretionary approvals and/or conditions.
6. View: as a 75-foot tower with a large “monopalm” ball of technology and “camouflage” at the apex, Constant demands monetary settlement of view impairment to be negotiated in good faith before start of project with a complete sightline analysis provided by developer to fully assess impact on Constant’s property value.
Response: The Appellant has requested a monetary settlement of view impairment but has not specified the party that would enter into such a settlement. Without an easement in place encumbering the property subject to new development that has resulted in view impairment, property owners have no inherent right to prevent other property owners from obstructing their view. See Mira Mar Mobile Community v City of Oceanside, 119 Cal.App.4th 477 (2004). Further, the City does not have a view protection ordinance in place which could provide alternative relief. As stated previously, the tower as approved complies with the maximum height requirement outlined in Chapter 32, with a maximum height of 75 feet for a single user. The wireless tower is proposed to be disguised as a City of Fontana Printed on 7/12/2023Page 5 of 9
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height of 75 feet for a single user. The wireless tower is proposed to be disguised as a mono-palm with faux fronds and a faux growth pod, which will complement the surrounding neighborhood, which is characterized by existing commercial and industrial uses, and blend with the existing area. The proposed equipment enclosure will have a stucco finish with a desert color to match the drive-thru restaurant buildings. The enclosure will be surrounded by mature landscaping to compliment the landscaping of the surrounding properties which will match the surrounding neighborhood.
Findings for Approval for Minor Use Permit No. 22-007
Minor Use Permit No. 22-007, as approved on May 11, 2023, meets the mandatory MUP findings required pursuant to Section 30-178 Findings for approval. The original findings below were prepared by staff for Director of Planning’s consideration:
1. That the proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning and Development Code, General Plan, any applicable Specific Plan or area plan, and City regulations/standards.
The project site is located on the north side of Sierra Lakes Parkway and west side of Mango Avenue. The proposed project is for the installation a new 75-foot wireless facility disguised as a mono-palm. The new mono-palm will include fourteen (14) panel antennas, supporting equipment, and an equipment enclosure. The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. This use is considered a public facility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit. The wireless facility will support the intended uses for the areas within the Regional Mixed Use land use designation.
2. The site is physically suited for the type, density, and intensity of the proposed use including access, utilities, and the absence of physical constraints and can be conditioned to meet all related performance criteria and development standards.
The physical characteristics of the site are sufficient to accommodate the requested wireless mono-palm, supporting equipment, and equipment enclosure. The project site is approximately
1.8 acres in size and developed with two drive-thru restaurants pads and associated parking, landscaping, and drive aisles. The proposed mono-palm and equipment enclosure meets all applicable development standards including access, setbacks, parking, and drive aisles. There are no changes to the existing site circulation and access for the proposed project. The new wireless tower has been reviewed by Planning, Building and Safety, Engineering, and Fire Prevention and will meet or exceed all requirements.
3. Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, or materially injurious to persons, property, or improvements in the vicinity in which the project is located.
The proposed project has been reviewed by Planning, Engineering, Building and Safety, and County Fire Prevention for site circulation, access, and safety. In addition, the site meets all the City of Fontana Printed on 7/12/2023Page 6 of 9
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County Fire Prevention for site circulation, access, and safety. In addition, the site meets all the development standards of the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance and will provide a safe, well-designed facility.
Findings for Approval for Administrative Site Plan No. 22-028 Administrative Site Plan No. 22-028, as approved on May 11, 2023, meets the mandatory ASP findings required pursuant to Section 32-7.2 Findings for approval. The original findings below were prepared by staff for Director of Planning’s consideration:
1. The proposal meets or exceeds contained in this Chapter and is consistent with the General Plan and the applicable land use designation.
The project site is located on the north side of Sierra Lakes Parkway and west side of Mango Avenue. The proposed project is for the installation a new 75-foot wireless facility disguised as a mono-palm. The new mono-palm will include fourteen (14) panel antennas, supporting equipment, and an equipment enclosure. The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. This use is considered a public facility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit and an Administrative Site Plan for site and architectural review of the proposed wireless facility. The proposed project is consistent with the General Plan, the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance.
2. That the site for the intended use is adequate in size, shape, topography, accessibility, and other physical characteristics to accommodate the use and all the required provisions of this chapter.
The project site is an irregular shaped property consisting of one (1) parcel of approximately 1.8 acres, located at 17010 Sierra Lakes Parkway. The new wireless tower has been reviewed by Planning, Building and Safety, Engineering, and Fire Prevention and will meet or exceed all requirements. The proposed project will be built/installed pursuant to all applicable building, zoning, fire codes, and standards which will result in an appropriate, safe, and desirable development, as well as conditions of approval referenced herein. The site is adequate in parking, circulation, and access to the property including the addition of the proposed wireless facility.
3. The proposal of the tower and/or antenna is in its design and appearance consistent with the development and design of the surrounding structures and neighborhood.
The project proposal in its design and appearance as a result from this review will be compatible with the site and other similarly approved wireless facilities. The wireless tower is proposed to be disguised as a mono-palm with faux fronds and a faux growth pod, which will complement the surrounding neighborhood and blend with the existing area. The proposed equipment City of Fontana Printed on 7/12/2023Page 7 of 9
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the surrounding neighborhood and blend with the existing area. The proposed equipment enclosure will have a stucco finish with a desert color to match the drive-thru restaurant buildings. The enclosure will be surrounded by mature landscaping to compliment the landscaping of the surrounding properties and will match the surrounding neighborhood. The proposed project provides a safe and well-designed site that is both aesthetically and architecturally pleasing.
4. That the proposed use will be organized, designed, constructed, operated and maintained so as to be compatible with the character of the area as intended by the general plan.
The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The operation and maintenance of the facility will be regulated by specific requirements set forth in the Minor Use Permit and attached in the Conditions of Approval. In addition, the project will conform to the requirements of the Zoning and Developments Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance.
The proposed project has been reviewed by Planning, Engineering, Building and Safety, and County Fire Prevention for site circulation, access, and safety. The proposed project identified in Findings No. 1-3, meet or exceeds the standards of the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance and will provide a safe design.
5. That adequate streets and highways exist to carry the type and quantity of traffic anticipated to accommodate access for maintenance and/or service vehicles.
The proposed project has been designed to accommodate access for maintenance and/or service vehicles and will not conflict with existing easements or access on-site. The project site is accessed from Mango Avenue and Sierra Lakes Parkway, which are publicly maintained streets.
The proposed project will have one designated parking stall adjacent to the equipment enclosure for maintenance and/or service vehicles and will not conflict with the existing center.
6. The Director of the Planning Department shall make those findings enumerated in this section as amended from time to time, prior to approving any ASP pursuant to this chapter.
As a part of the approval of this Minor Use Permit and Administrative Site Plan, the Director of Planning made the required findings.
Staff prepared the above-listed findings for the Director of Planning’s consideration pursuant to Section 32-7.2 and Section 30-178, Findings for Approval. On May 11, 2023, the Director of Planning determined that the findings were consistent with the Fontana Municipal Code and FCC statues and regulations and approved the project. The proposed project has met all the requirements of the Fontana Municipal Code and the General Plan. As such, staff recommends the Planning Commission deny the request for appeal and uphold the approval of ASP No. 22-028 and MUP No. 22-007.
Environmental:
The installation of a new wireless telecommunications facility and ancillary equipment as described above associated with Master Case No. (MCN) 22-107 and Administrative Site Plan (ASP) No. 22- 028 and Minor Use Permit (MUP) No. 22-007 is exempt pursuant to Section No. 15311 Class No. 11 City of Fontana Printed on 7/12/2023Page 8 of 9
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028 and Minor Use Permit (MUP) No. 22-007 is exempt pursuant to Section No. 15311 Class No. 11 (Accessory Structures) and Section No. 15332 Class No. 32 (In-Fill Development Project) of the California Environmental Quality Act (CEQA), and Section No. 3.22 of the 2019 City of Fontana Local Guidelines for Implementing the California Environmental Quality Act.
MOTION:
1. Deny Appeal No. 23-015, thereby upholding the decision of the Director of Planning, for Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, for the request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total.
2. Direct staff to prepare, execute, and file a CEQA Notice of Determination and a Notice of Exemption with the County Clerk, as appropriate, within five (5) working days of the Commission’sfinal action on Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-
07. ATTACHMENTS:
1. Uniform Appeal Letter from Appellant
2. Vicinity Map
3. Project Plans
4. Project Packet
5. Notice of Public Hearing
6. Responses from AT&T
7. Letter in Support of Original Project
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13 ATTACHMENT NO. 2
VICINITY MAP
DATE: July 18, 2023
CASE: Master Case No. 23-062
Appeal No. 23-015
CITY OF FONTANA PLANNING DEPARTMENT
CIT
NORTH
Project Site
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 29
30 31
32 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
33 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
34 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
35 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
36 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
37 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
38 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
39 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
40 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
41 CITY OF FONTANA
PLANNING DEPARTMENT
APPROVED
Mai Thao
06/07/2023
Project Planner
Date
Case #'s
MCN22-107
ASP22-028
MUP22-007
MAY 11, 2023
42 NOTICE OF PUBLIC HEARING
SI DESEA INFORMACION EN ESPAÑOL REFERENTE A ESTA NOTIFICACION O PROYECTO, FAVOR DE COMUNICARSE AL (909) 350-6728.
In compliance with Section No. 202 of the Americans with Disabilities Act of 1990 (42 U.S.C.
Section No. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons with a disability.
Should you need special assistance to participate in this meeting, please contact the Planning Department by calling (909) 350 -6718. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE PLANNING COMMISSION OF THE CITY OF FONTANA FOR THE FOLLOWING:
Master Case No. 23-062 and Appeal No. 23-015
Review of an appeal to overturn the Director of Planning’s decision on May 11, 2023, approving Master Case No. 22-107, Administrative Site Plan No. 22 -028 and Minor Use Permit No. 22 - 007 for a new wireless telecommunications facility consisting of a 75’ mo no-palm with 14 antennas, supporting equipment, and an equipment enclosure totaling approximately 347 square feet.
Environmental
Determination:
The installation of a new wireless telecommunications facility and ancillary equipment as described above ass ociated with Master Case No. 22 -107, Administrative Site Plan No. 22 -028, and Minor Use Permit No. 22 -007 is exempted pursuant to Section No. 15311 Class No. 11 (Accessory Structures) and Section No. 15332 Class No. 32 (In -Fill Development Project) of the California Environmental Quality Act (CEQA), and Section No. 3.22 of the 2019 City of Fontana Local Guidelines for Implementing the California Environmental Quality Act.
Location of
Property:
17010 Sierra Lakes
Parkway (APN:1119-
221-69)
Date of Hearing: July 18, 2023
Place of
Hearing:
City Hall Council
Chambers, 8353
Sierra Avenue
Fontana, CA 92335
Attachment No. 5
43 Should you have any questions concerning this project, please contact Mai Thao, Assistant Planner, at (909) 350-6650 or by e-mail at [email protected].
ANY INTERESTED PARTY MAY PROVIDE INFORMATION BY LETTER OR EMAIL WHICH MAY BE OF ASSISTANCE TO THE PLANNING COMMISSION. A COPY OF THE APPLICATION AND ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION. PLEASE CONTACT THE PLANNER LISTED ABOVE.
IF YOU CHALLENGE ANY ACTION TAKEN CONCERNING THIS ITEM IN COURT, YOU MAY BE
LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE PUBLIC
HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE PROVIDED TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.
Publish: July 7, 2023
Time of Hearing: 6:00 P.M.
44 Aaron M. Shank
[email protected]
www.porterwright.com
Porter Wright
Morris & Arthur LLP
41 South High Street
Suites 2800-3200
Columbus, OH 43215
Direct: 614.227.2110
Fax: 614.227.2100
Main: 614.227.2000
www.porterwright.com
CHICAGO
CINCINNATI
CLEVELAND
COLUMBUS
DAYTON
NAPLES
PITTSBURGH
TAMPA
WASHINGTON, DC
June 30, 2023
City of Fontana Planning Commission
([email protected])
8353 Sierra Avenue
Fontana, CA 92335
RE: AT&T’s Response to Appeal from Approval of
Administrative Site Plan (ASP) No. 22-028; Minor Use
Permit (MUP) No. 22-007
17010 Sierra Lakes Parkway, Fontana, CA 92335
AT&T Site ID CSL02952
Dear Chair Fort, Vice Chair Sanchez, Secretary Thrasher, and Commissioners Sangha and Quintana:
I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T), to respectfully request the Planning Commission uphold the Planning Director’s approval of AT&T’s application to construct a stealth wireless telecommunications facility, disguised to appear as a palm tree (“Proposed Facility”) located at 17010 Sierra Lakes Parkway in the City of Fontana. The Proposed Facility is needed for AT&T to provide more robust and competitive wireless services in this portion of the city.
This carefully sited and well-designed facility will minimize visual impacts and it is the best available and least intrusive means to close AT&T’s significant service coverage gap in this area. The appeal raises a few general concerns that have been fully addressed by AT&T’s careful adherence with the city’s design and development regulations. Thus, AT&T requests the Commission deny the appeal and affirm approval of AT&T’s application for the Proposed Facility.
AT&T’s Proposed Facility
Consistent with Chapter 32 of the Fontana Municipal Code, AT&T seeks to construct the Proposed Facility as an alternative tower structure, which will be a stealth facility disguised as a palm tree. This “mono-palm” structure will be 75 feet tall, will be aesthetically and architecturally blended with the surrounding area, and will be subject to all applicable health and safety regulations as the city requires.
45 City of Fontana Planning Commission
June 30, 2023
Response to Appellant’s Criticisms
The appeal raises six (6) issues, none of which support upendi ng the Planning Department Director’s approval. AT&T responds to each of these six issues as follows:
1. Setback issue to fee simple. Appellant complains that the tower is taller than the distance from his property line. As the Planning Department found, however, AT&T’s Proposed Facility meets or exceeds all applicable City Code provisions, including in particular Chapter 32, Wireless Telecommunications Towers and Antennas. The Planning Director specifically found that “The proposed project will be built/installed pursuant to all applicable building, zoning, fire codes, and standards which will result in an appropriate, safe, and desirable development, as well as conditions of approval referenced herein.” In addition, the structural report for the tower, which will be submitted in connection with the city’s building permit process, will demonstrate the tower’s safety. Moreover, the appellant explains the tower will be located 65 feet from his property, which is even greater than the 75% of height setback applied in the more stringent conditional use process (see Fontana Code Section 32-7(b)(5)). There is, therefore, no basis to deny AT&T’s application with respect to the setback.
2. Setback issue to fully negotiated private easements. Appellant also raises a concern that the height of the tower “encroaches on several private easements.” Again, however, the Proposed Facility meets all applicable building and safety requirements, as well as design and development standards. Further, as the Planning Director found, the Proposed Facility will be compatible with the “size, shape, topography, accessibility, and other physical characteristics” of the site. This concern does not support denial.
3. High winds and liability insurance. Appellant raises a concern about the high winds in the area. Again, “The proposed project will be built/installed pursuant to all applicable building, zoning, fire codes, and standards which will result in an appropriate, safe, and desirable development, as well as conditions of approval referenced herein.” The structural report for the tower, which will be submitted in connection with the city’s building permit process, will include the effects from wind and will demonstrate the tower’s safety. Further, operating the facility will be conditioned on the City’s inspection. The appellant’s demands to be a named insured with specific benefits is not based on any city requirement and is not appropriate. These issues do not support denial.
4. Security, privacy, and safety. Appellant raises various vague concerns about wireless facilities generally, including the effects from RF emissions. AT&T submitted a Radio Frequency Theoretical Modeling Jurisdictional Report that demonstrates the Proposed Facility will comply with the Federal Communications Commission’s RF emissions regulations. As a result, the city is preempted from considering appellant’s concerns about effects of RF emissions by the federal Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iv).
5. Unlimited future use. Appellant asks the city to give him a right to “renegotiation of all terms at any and every change of future use.” While unclear exactly what is appellant’s concern here, AT&T notes that future requests to modify the Proposed Facility or the site will be 46 City of Fontana Planning Commission
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subject to the relevant city processes at that time. There is, therefore, no need to condition approval of the Proposed Facility on potential future changes to the facility or the site.
6. Views. Finally, appellant asks to be compensated based on his unsupported statement that the Proposed Facility might cause him damages due to its appearance. But the Proposed Facility fully complies with the city’s design requirements, including its specific design as an “alternative tower structure” as explicitly contemplated and preferred by the City Code. Indeed, the Planning Director found that the design and appearance of the proposed faux palm tree is appropriate:
The project proposal in its design and appearance as a result from this review will be compatible with the site and other similarly approved wireless facilities. The wireless tower is proposed to be disguised as a mono-palm with faux fronds and a faux growth pod, which will complement the surrounding neighborhood and blend with the existing area.
The Planning Director went further to find that “The proposed project provides a safe and well-designed site that is both aesthetically and architecturally pleasing.” Whereas the Proposed Facility design is fully in line with the city’s requirements, the appellant’s request for compensation is neither supported in fact nor based on the city’s regulations.
Conclusion
AT&T is working diligently to upgrade its network to provide and improve wireless services in this area. There has been no substantial evidence proffered on which the city could deny AT&T’s application. AT&T urges the Planning Commission to deny the appeal and affirm approval of AT&T’s application.
Sincerely,
Aaron M. Shank
cc: Mai Thao, Assistant Planner ( [email protected])
Patty Nevins, Planning Director ([email protected])
47 RP Taft 711 LLC
1187 Coast Village Road
Ste 1, #561
Santa Barbara, CA 93108
July 5, 2023
Mai Thao
Assistant Planner - Planning
City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
E-mail: [email protected]
Re: Master Case No. (MCN) 22-107; Administrative Site Plan No. (ASP)-028; Minor Use Permit No. (MUP) 22-007; New Wireless facility disguised as a mono-palm located at 17010 Sierra Lakes Parkway (APN:1119-221-69) ON APPEAL.
Dear Ms. Thao,
By way of introduction, I am the Manager and General Counsel of RP Taft 711 LLC who owns the property located at 17064 Sierra Lakes Parkway, Fontana, CA 92336. Our tenant is 7-Eleven who is anticipating opening in August. We are a neighboring landowner of the proposed project.
We enthusiastically support this project. I have reviewed the recommendation of the Planning Department Findings and Conditions of Approval and Approved Plan dated May 11, 2023.
The Planning Department has given careful and thoughtful consideration to this necessary project. These towers serve critical needs for surrounding businesses as well as residential users.
Aesthetic considerations have been well addressed consistent with other approved projects of this nature and with the surrounding neighborhood. The site is well suited for this project. Safety considerations have been fully evaluated and engineered.
We ask that this project be FULLY APPROVED.
Should have any questions please feel free to contact me.
Best Regards
Michael P. Mallery
Manager and General Counsel
RP Taft 711 LLC
[email protected]
(559) 341 4217
Delivered via e mail: [email protected]
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