ECEIVED
Notice of Appeal to the City Counsib JUN 23 PM 2:14
Identity of Appellant CITY CLERA
CITY OF
Appellant: Christina Price, 8052 Windy Sands Cir., Huntington Beach, CA 92647, 949-379=4467 Counsel for Appellant: Greenfire Law, P.C., c/o Ariel Strauss, 2748 Adeline Street, Suite A, Berkeley, CA 94703, [email protected], 510-900-9502 x 702 Decision from Which Appeal is Sought
1. Planning Commission decision of June 13, 2023 denying appeal and approving issuance of CUP No. 23-006 (Huntington Beach Community Church Wireless Communication Facility.
2. "New Construction or Conversion of Small Structures" CEQA exemption (CEQA Guidelines § 15303) in connection with the conditional use permit.
III. Grounds for Appeal
1. A tie vote by the Planning Commission on an appeal governed by Chapter 248 is not sufficient to grant a conditional use permit or to approve a CEQA exemption.
2. No Planning Commission vote was taken to approve the CEQA exemption.
3. The application was incomplete and did not include all information required by the City's Wireless Permit Application Form and Section 230.96(E) and (G).
4. The applicant has not provided sufficient evidence to:
(a) make the findings required by Chapter 241, including findings of: no detriment to property values in the neighborhood, lack of detriment to the general welfare and non-adversity to the General Plan, including the Noise Element and Noise Ordinance enacted pursuant to it;
(b) assure that findings required by Chapter 241 will remain satisfied over the term of the conditional use permit given that, notwithstanding the City's Zoning Ordinance, federal law (including but not limited to 47 U.S.C. § 1455(a) and 47 C.F.R. §
1.6100(b)(7)) entitles AT&T, or another wireless carrier, to increase the tower height and width by 20 feet in each direction, and otherwise modify the facility as provided by federal law, without meaningful City review;
(c) demonstrate compliance with the identification of all antennas within 1,000 feet and co-location requirements of Section 230.96 (E)(1)(g) and (G)(5); and (d) demonstrate satisfaction of Section 230.96(G)(7) regarding compliance with federal rules and regulations, including environmental analysis under the National Environmental Policy Act and avoidance of "take" under the Migratory Bird Treaty Act.
5. The project, including the 60-foot tower (which can be raised to 80 feet by-right under federal law), cooling equipment, 20kW diesel generator, and associated fuel adjacent to residential properties:
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(a) does not qualify for a CEQA exemption under CEQA Guidelines Section 15303 because the project does not entail the conversion or construction of a "small structure" within the meaning of the regulation and case law, and (b) "Unusual circumstances" also exist in light of the factors listed above and the potential harm to Cooper's hawks documented to roost and nest in trees on and adjacent to the project site.
6. Applicant has not demonstrated federal preemption applies due to the applicant:
(a) having submitted a materially incomplete application, (b) providing inadequate documentation of inability to substantially close a gap in personal wireless services, or otherwise meet the standard for federal preemption, in the event that this specific application is denied, and (c) because the City must retain an independent expert opinion pursuant to Section 230.96(A) and (F) prior to accepting a claim of denial of effective service, and has not done so.
IV. Payment of Fee
A check for the applicable fee has been tendered to the City Clerk along with this Notice of Appeal.
Respectfully submitted,
CDR
Christina Price
June 23, 2023
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