Fremont City Council Meeting: 03/19/24 07:00 PM
3300 Capitol Avenue Div/Dept: Planning
Fremont, CA 94538 Category: Appeals
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5084) DOC ID: 5084
Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 1
APPEAL OF CONDITIONAL USE PERMIT FOR AT&T WIRELESS OHLONE COLLEGE (PLN2023-00261) – Public Hearing (Published Notice) To Consider a Third Party Appeal of the Planning Commission’s Approval of a Conditional Use Permit For a Stealth Wireless Telecommunication Facility Located on the Ohlone College Campus at 43600 Mission Boulevard, and a Resolution Approving the Conditional Use Permit Based Upon Findings and Conditions Including a Finding that No Further Environmental Review is Required Pursuant the California Environmental Quality Act (CEQA) Per CEQA Guidelines Section 15303, New Construction or Conversion of Small Structures, and CEQA Guidelines Section 15183, as the Project Is Consistent With the General Plan, For Which an Environmental Impact Report (EIR) (SCH#2010082060) Was Previously Prepared and Certified. Each of the foregoing Provides a Separate and Independent Basis for CEQA Compliance.
Contact Persons:
Name: Spencer Shafsky Joel Pullen
Title: Planner II Planning Manager
Div/Dept: Planning Planning
Phone: 510-494-4452 510-494-4436
E-Mail: [email protected] [email protected]
Executive Summary: AT&T Mobility requested a Conditional Use Permit (CUP) to remove an existing eucalyptus tree and install an 80-foot tall stealth wireless telecommunication facility designed to resemble a eucalyptus tree (monoeucalyptus) in its place and an associated equipment enclosure on the Ohlone College Campus at 43600 Mission Boulevard.
The project received a recommendation from the Historical Architectural Review Board (HARB) and was approved by the Planning Commission. A third-party appeal was filed asking the City Council to deny the Conditional Use Permit on the grounds that the proposed facility is unnecessary, will negatively impact public health, is not the least intrusive means to close the gap in service, and is located too close to residential properties. Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s approval of the Conditional Use Permit to allow the proposed monoeucalyptus and associated equipment enclosure to be constructed.
BACKGROUND: The subject third-party appeal requests that the City Council overturn the approval of a Conditional Use Permit for an AT&T wireless facility consisting of an 80 -foot tall stealth monopole disguised as a eucalyptus tree (“monoeucalyptus”) and associated ground equipment enclosure proposed to be located on the Ohlone College Campus. The project was previously reviewed by the Historical Architectural Review Board and the Planning Commission, as detailed below.
Historical Architectural Review Board (HARB) Review and Recommendation The subject site is located within the Mission San Jose Historical Overlay District (HOD). Per Chapter 18.135.050 of the Fremont Municipal Code (FMC), new buildings, structures and Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 2
signage within the HOD require review by the Historical Architectural Review Board (HARB) for compatibility with the applicable design guidelines of the HOD.
On September 7, 2023, a public hearing was conducted by HARB to consider the project.
The project was found to be compliant with the Mission San Jose HOD Guidelines and was recommended by HARB for approval. See attached HARB minutes attached as Informational Enclosure 1.
Planning Commission Action
On October 26, 2023, the Planning Commission held a public hearing and voted to approve staff’s recommendation supporting the proposed facility’s CUP. The project was opposed by several neighborhood residents who were concerned with the impacts of radio frequency radiation (“RF emissions”), particularly on students at the college. Community members also brought up concerns regarding wireless service in the area and whether the site was the most appropriate location for a wireless facility.
Staff indicated during the Planning Commission hearing that it recommended approval of the application on the grounds that the facility: (a) is in compliance with the requirements set forth in FMC Chapter 18.187 and Chapter Four of the Citywide Design Guidelines; (b) would be set back 700 feet from the nearest residential property; and (c) would be designed to resemble a eucalyptus tree so that it would not be visually intrusive. The applicant provided evidence that the tower’s radio frequency (RF) emissions would be well below federal standards. To demonstrate a need for the tower, the applicant also showed “before and after” coverage maps, discussed the rising need for cell reception in the area, and explained the impact of current demands for service on other cell towers in the vicinity . See attached Coverage Maps as Informational Enclosure 8. Finally, the applicant explained efforts taken to identify alternative sites and the reasons those sites were rejected. See attached Planning Commission minutes attached as Informational Enclosure 2.
Appeal
An Appeal of the Planning Commission’s decision to the City Council was filed by Salil Suri on November 3, 2023. The Appeal asserts that the proposed facility is unnecessary, will negatively impact public health, is not the least intrusive means to close the gap in service, and is located too close to residential properties. The Appeal letter is included in the attachments as Informational Enclosure 4 and the applicant’s (AT&T) response is attached as Informational Enclosure 5.
DISCUSSION/ANALYSIS:
Project Description and Setting
The project site is located on the Ohlone Community College campus adjacent to an existing parking lot approximately 1,000 feet to the east of Mission Boulevard and approximately 655 feet to the south of Witherly Lane. The area is within a fully developed section of the campus between the Administrative Services Offices and the Business and Technology building known as “Hyman Hall”. The wireless facility would be located in a landscaped area at the southeast rear portion of the parking lot. One existing mature eucalyptus tree would be removed and replaced with the monoeucalyptus in the same location.
The proposed 80-foot monoeucalyptus would contain nine antennas in three arrays of three antennas each, all located within the top branches of the monoeucalyptus. The proposed Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 3
monoeucalyptus and associated ground-based equipment would be located within a secured 900 square-foot leased area of the project site.
See Informational Enclosure 3 for the Planning Commission Report for the project.
Federal Regulations Governing Telecommunication Facilities The City Council’s consideration of the project is governed by both the City’s zoning regulations and the Federal Telecommunications Act. Under the City’s regulations, the project must be consistent with the General Plan and zoning for the site and comply with the development standards for wireless facilities set forth in FMC Chapter 18.187 and Chapter Four of the Citywide Design Guidelines.
The Federal Communications Act limits the Council’s consideration of the project under these local standards in two significant ways. First, federal law prohibits the City from conditioning or denying the project based on concerns stemming from the environmental effects of RF emissions if the proposed facility complies with federal RF standards.
Regulation of RF emissions is preemptively regulated by the FCC. Local governments can require applicants to meet the FCC standards but cannot require lower radio frequency emission. (see 47 U.S.C. Sec. 332(c)(7)(B)(iv).
Second, federal law prohibits the City from denying a project if it has the effect of prohibiting the provision of wireless services, by materially limiting or inhibiting the ability of any competitor or potential competitor to compete in a fair and balanced regulatory environment.” (FCC Order 18-133 (Sept. 27, 2018). An effective “prohibition” exists if a city’s denial ”materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” (See FCC Order 18- 133 Part III A.35 and Part III C.82). In essence, the City may not deny an application if (a) the facility is necessary to fill a significant gap in the applicant’s own wireless network; and (b) the facility is the least intrusive means of filling the service gap.
Grounds of the Appeal
The appellant has listed seven grounds for their Appeal within Informational Enclosure 4.
The grounds of the Appeal and brief responses by the City are as follows. Please also see applicant’s letter, in Informational Enclosure 5, which contains responses to the assertions raised in the Appeal:
Ground #1: The Appeal asserts that under Federal Communications Commission (FCC) guidelines, the City of Fremont has freedom and power to regulate issues related to cell towers as long as it does not adopt its own radiation permissible exposure level.
The Federal Telecommunications Act of 1996 (the “Act”) severely restricts the ability of local governments to regulate or deny wireless telecommunication facility installations. Under the Act, local governments retain the ability to regulate installations for certain limited purposes (such as aesthetics). However, local governments are preempted from regulating or denying wireless installations based on concerns regulating radio frequency (“RF”) emissions. Local governments can require applicants to meet the FCC standards but cannot require lower radio frequency emission. (See 47 U.S.C. Sec. 332(c)(7)(B)(iv)). In addition, the City cannot deny an application if it would utilize the least intrusive means for filling a significant service coverage gap within the applicant’s own network.
Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 4
The proposed project does not meet the standards for denial under the applicable requirements. As discussed below, the applicant has provided evidence that the proposed facility would be the least intrusive means for filling an identified significant gap in service coverage. FMC Chapter 18.187 — Wireless Facilities, as well as Chapter Four of the Fremont Citywide Design Guidelines, contain the requirements established for wireless telecommunication facilities. The proposed project was found to comply with these requirements, including setback, height, stealth design, and filling a gap in wireless coverage.
The proposal complies with all applicable requirements to comply with the RF exposure limitations set forth by the FCC. The applicant provided an RF report prepared by Waterford Consultants stating that the proposed wireless facility is within the FCC limits for RF exposure. See Informational Enclosure 6.
Ground #2: The Appeal asserts that there is no service gap in the Mission Tierra Area.
The applicant submitted coverage maps demonstrating that there is a significant service coverage gap in the area of Mission Boulevard and the project site. These maps show that AT&T lacks adequate indoor service on and around the Mission Tierra community. (See Informational Enclosure 8).
Ground #3: The Appeal asserts that the proposed facility is not the least intrusive means of filling the service gap.
The proposed facility has been designed to resemble a mature eucalyptus tree (monoeucalyptus) and would be located in an area of existing mature eucalyptus trees and administration buildings. The facility would be sited 700 feet to the south of the Mission Tierra community within a fully developed area of the Ohlone College Campus. The applicant submitted photo simulations demonstrating that the monoeucalyptus would conceal the panel antennas. See Informational Enclosure 7.
The applicant has provided substantial evidence that the proposed project would provide the be the least intrusive means for filling an identified gap in its service coverage. The project complies and is consistent with FMC Chapter 18.187 — Wireless Facilities, as well as the Fremont Citywide Design Guidelines, including Chapter Four, which contains the requirements established for wireless telecommunication facilities. The proposed project complies with these requirements, including, without limitation, setback, height, stealth design, and as the least intrusive means for filling a gap in wireless coverage.
The appellant has not provided further substantiation or evidence that supports their claim of visual intrusiveness or that a less intrusive means for filling the service gap is available.
Ground #4: The Appeal asserts the 80-foot tower will be intrusive to the neighborhood.
The installation is approximately 700 feet south of the Mission Tierra neighborhood and is designed as a “stealth” facility, which will minimize visual intrusion by approximating the size and appearance of a mature Eucalyptus tree where one presently exists. Appellant has Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 5
not provided further substantiation or evidence that support their claim of visual intrusiveness.
Ground #5: The Appeal asserts the removal of the existing mature tree accommodating the new cell tower violates the Mission San Jose HOD Design Guidelines and Regulations.
The proposal is consistent with the Mission San Jose HOD Design Guidelines and Regulations. The proposed wireless facility was reviewed at a public meeting of the City of Fremont Historical Architectural Review Board (HARB) on September 7, 2023, where the removal and replacement of the existing eucalyptus tree with the monoeucalyptus tree was found to be in compliance with the Mission San Jose Design HOD Guidelines. See Informational Enclosure 1 for the HARB report for the project.
Ground #6: The Appeal asserts the tower will lower property values.
The applicant has provided no substantial evidence to support their claim that the proposal would lower their property values. The proposed wireless facility is not proposed to be located within the Mission Tierra Neighborhood nor directly adjacent to an existing residential property. Impacts on property values (particularly, as here, theoretical impacts not supported by evidence) are not a relevant factor in the scope of the City’s wireless facility review.
Ground #7: The Appeal asserts the cell tower can be detrimental to the public safety.
The proposed cell tower would be constructed following the current Building and Fire codes in effect at the time of construction. The City has reviewed and approved many such facilities without incident. As noted above, the City is preempted from regulating or denying an application for cell tower on the basis of health concerns regarding RF emissions, beyond requiring compliance with FCC standards.
Findings for Approval
Conditional Use Permit Findings
The subject appeal hearing is considered de novo. In order to approve the proposed CUP, the City Council must make the following findings pursuant to FMC Section 18.230.060:
a. The proposed use is consistent with the General Plan and any applicable community or specific plan.
Analysis: The proposed wireless telecommunication facility is consistent with the General Plan because such facilities are a permitted use within the site’s Public Facility land use designation.
b. The site is physically suitable for the type and density or intensity, as applicable, of the proposed use.
Analysis: The project site is physically suitable for the proposed use as it is a fully developed site that features existing mature eucalyptus trees which the proposed Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 6
monoeucalyptus is designed to resemble.
c. The design, location, size, and operating characteristics of the proposed use are compatible with proposed development in the vicinity and in the zoning district.
Analysis: The proposed wireless telecommunications facility would improve the carrier’s existing wireless coverage for the area. The height of the antennas is the minimum height required to achieve the coverage area, and the facility is designed to accommodate one additional carrier. The project complies and is consistent with FMC Chapter 18.187 — Wireless Facilities, as well as Chapter Four of the Fremont Citywide Design Guidelines, which contain the requirements established for wireless telecommunication facilities. The proposed project complies with these requirements, including, without limitation, setback, height, stealth design, and as the least intrusive means for filling a gap in wireless coverage.
d. The proposed use would not be detrimental to the public health, safety, or welfare of persons or public property in the vicinity or the zoning district in which the use would be located.
Analysis: The project will be located on a stealth monopole designed to resemble a mature eucalyptus tree, which is an established feature of the project site. The wireless facility is compatible with surrounding uses and will not create nuisances because of its location and the provision of appropriate safety equipment. In addition, businesses, residents and first responders will benefit from the telecommunication facility. The project will comply with federal requirements for RF emissions.
ENVIRONMENTAL REVIEW: The project is exempt from the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15303, New Construction or Conversion of Small Structures, which allows construction of limited numbers of new facilities or structures (such as a single-family residence, small commercial building, or accessory structure) as well as the installation of small new equipment and facilities in small structures and CEQA Guidelines Section 15183, as the project is consistent with the General Plan, for which an Environmental Impact Report (EIR) (SCH#2010082060) was previously prepared and certified. Each of the foregoing provides a separate and independent basis for CEQA compliance.
ATTACHMENTS:
• Draft Resolution ATT Conditional Use Permit
• Exhibit A - Project Plans
• Exhibit B - Findings and Conditions of Approval
• Informational Enclosure 1 - HARB Staff Report
• Informational Enclosure 2 - Planning Commission Minutes • Informational Enclosure 3 - Planning Commission Staff Report • Informational Enclosure 4 - Appeal Letter
• Informational Enclosure 5 - Appeal Response Letter
• Informational Enclosure 6 - RF Report
• Informational Enclosure 7 - Photosimulations
Council Staff Report (ID # 5084) Meeting of March 19, 2024 Updated: 3/15/2024 2:12 PM by Susan Gauthier Page 7
• Informational Enclosure 8 - Coverage Maps
RECOMMENDATIONS:
1. Hold public hearing.
2. Adopt a Resolution denying the appeal, adopting findings, and approving Conditional Use Permit PLN2023-00261 as shown on Exhibit “A” subject to findings and conditions in Exhibit “B.”