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San Clemente, California
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AGENDA REPORT
CITY OF SAN CLEMENTE
CITY COUNCIL MEETING
CITY OF SAN CLEMENTE
Meeting Date: January 16, 2024 Agenda Item: 8C
Department: Community Development
Prepared By Adam Atamian, Community Development Director Jonathan Lightfoot, City Planner
Subject:
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PUBLIC HEARING TO CONSIDER CHANGING OR REVOKING CONDITIONAL PERMIT 1021/ VOLUNTARY COMPLIANCE AGREEMENT/ AND WIRELESS SCREENING FORM WMS 23- 231 RELATED TO THE PROPERTY LOCATED AT 616 DEL DIOS, ASSESSOR’S PARCEL NUMBER 690-552-05 AND FINDING THE PROJECT CATEGORICALLY EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT ..body
Fiscal Impact:
There are no direct costs associated with an action on this item. However, an action to continue the item for further discussion at additional public hearings would result in additional expenditure of City staff and City Attorney time.
Summary:
SCMC section 17.12.175 provides a process for the City to change or revoke approved applications when conditions of approval are violated, it is necessary to resolve a nuisance, and/or when applications contain incorrect, false, or misleading information. Because this matter involves a Conditional Permit issued in 1962, a public hearing with notice to the owner and applicant and an opportunity for them to present evidence is required.
At its December 5, 2023, regular meeting, the City Council adopted Resolution No. 23-159 to initiate a public hearing to consider changing or revoking Conditional Permit 1021, the Voluntary Compliance Agreement and the Wireless Screening Form WMS 23-231 and set the hearing date for its January 16, 2024 City Council meeting. In order to change or revoke an entitlement, the City Council must make one or more of the following findings:
1. Conditions of approval of the approved application(s) are being violated or are not being satisfied.
2. The site or land use is being operated in a manner that constitutes a nuisance.
3. The application contained incorrect, false, or misleading information.
Staff conducted additional research into allegations that the property has not been maintained in accordance with the terms of Conditional Permit 1021 and that the property has been managed in a manner that constitutes a nuisance. Based on the evidence provided herein, staff believes that there is credibility to these claims and recommends that the City Council change the entitlement to reduce issues of public safety and nuisance by requiring a redesign of the site that addresses the safety issues of access and prevents trespass onto the property and unauthorized climbing of the tower. This, however, can be accomplished without a full revocation of the underlying 1 ATTACHMENT 1
Meeting Date: January 16, 2024 Agenda Item: 8C
CITY OF SAN CLEMENTE
entitlement. The recommended changes to the entitlement, including added conditions of approval, are incorporated into Attachment 1, the draft Resolution.
Background:
1962 Conditional Permit
An existing telecommunications tower at the subject site is owned by American Tower Corporation (Owner). This facility was approved under a Conditional Permit in 1962 by the County of Orange (Attachment 2). Per the Conditional Permit, the telecommunications facility was approved for an approximate 28-foot by 58-foot building and a 70-foot tall antenna tower. Per Owner representatives, the tower component of the telecommunications facility was built to a height of 137.6 feet, but was then further extended to 156 feet when the height is measured from the highest existing appurtenance affixed to the tower.
Voluntary Compliance Agreement and Collocation Requests In 2020, the City denied a request for a wireless antenna collocation at this site when it was discovered that the height of the tower was not compliant with the terms of the 1962 Conditional Permit issued by the County of Orange prior to the annexation of this property into the City of San Clemente. This denial resulted in discussions between the Owner and the City.
The Owner ultimately agreed to voluntarily reduce the height of the existing tower to the 70-foot maximum height allowed by the 1962 Conditional Permit, which was the only violation of the Conditional Permit that the City was aware of at that time. A Voluntary Compliance Agreement was executed on July 6, 2023 between the Owner and the City to reduce the height of the existing antenna tower to the permitted height of 70 feet (Attachment 3). The City then approved building permit B23-1495 to de-stack the tower to the reduced height of 70 feet tall.
During the review of records that preceded entry into the Voluntary Compliance Agreement, legal counsel for the Owner represented that the tower is/was still used today for the wireless transmission of telephone services. This representation was maintained and repeated by Dish Wireless (Applicant) within Wireless Screening Form No. WMS 23-231 (Attachment 4), which was an Eligible Facilities Request to collocate equipment on the reduced-height tower.
Relying on these representations, staff approved the Voluntary Compliance Agreement and WMS 23-231 (which found the project met criteria for review under Section 6409(a) of the Spectrum Act, did not require discretionary review, and could proceed to building plan check). The aforementioned public meetings on October 17 and November 8, 2023, which called into question the validity of the Owner and Applicant’s representations and revealed Conditional Permit violations and nuisance at the site, occurred while the building permit was under review.
Section 6 of the Voluntary Complaint Agreement provides:
The City agrees that, following the reduction in the height of the tower, the Wireless Communications Facility will be in compliance with the 1962 CUP, and specifically that (i) the 1962 CUP is vested; (ii) the 1962 CUP does not contain an expiration date; and (iii) the 1962 CUP permits the current use of the Wireless Communications Facility for wireless telecommunication purposes; and (iv) the 1962 CUP permits a 70’ tower. As a result, the City shall not require a discretionary 2 Meeting Date: January 16, 2024 Agenda Item: 8C
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approval, including but not limited to a new CUP or renewal of the 1962 CUP, in connection with the reduction in height and ongoing operation of the Wireless Communications Facility consistent with the 1962 CUP.
Public Testimony in November-December of 2023
With respect to public health and safety considerations, some of the most notable comments from the public made about the nuisances occurring at the site indicate that on regular occasions the tower is not secure and neighborhood children who find access to the site through the dilapidated fence, climb the tower, and throw items off the tower. This is not the case with other telecommunications facilities in the City that have different designs.
Additional comments from the public indicate an existing issue stemming from the Owner’s/Applicant’s access through the Harborview Estates neighborhood to deliver equipment to the site and the neighboring homeowners associations contending that the Owner/Applicant do not have the legal right to access the site in that manner and have been violating the conditions of Conditional Permit 1021 by doing so. Issues requiring a response from the Orange County Sheriff’s Department deputies have arisen from this contention about the Owner’s/Applicant’s access to the site.
Given the public testimony, City staff requested a tolling agreement from the Applicant, which was executed on November 17, 2023 and extended the shot-clock review deadline until November 30, 2023 for the building permit to install new wireless transmission equipment on the existing tower.
The City has not issued this building permit. Under FCC regulations, the failure to approve a permit for eligible facilities within the specified timeframes makes the permit “deemed approved.” The Applicant was noticed, however, that if it elects to install its equipment on the tower, it would be proceeding at its own risk should the City Council decide to change or revoke Conditional Permit 1021.
The Owner has also reported to the City that trespasses onto the site have been occurring, repairs to the site fence have been damaged and that there have been instances of vandalism and damage to vehicles left on site.
Additional Research into Access, Leasing History, and Alleged Nuisances During testimony at public meetings in November and December of 2023, members of the public asserted that:
The facility was abandoned and non-operational for more than one year, contradicting the information provided within the Applicant and Owner’s discussions and applications to the City. San Clemente Municipal Code (SCMC) section 17.12.150 provides regulations related to the expiration of approvals, which indicate that a conditionally permitted land use is considered lapsed if it is inactive for a period of at least one year; The facility has not been maintained in accordance with the conditions of approval included within Conditional Permit 1021; and
The site has been operated in a manner that constitutes a public nuisance.
Following Council’s December 5, 2023 action to initiate a public hearing, staff gathered additional information related to these allegations.
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First, City staff requested that the Owner provide verification of their access rights to the property.
The Owner commissioned a survey (Attachment 5), which identified their easement rights. The survey (dated November 1, 2023) indicates that the Owner does not have access rights to their property via Del Dios, a private road which was used in October and November by contractors of the Owner to gain access to the site in July of 2023 to de-stack the tower (per Building Permit B23-1495) and to conduct landscape maintenance in October and November of 2023 in accordance with direction provided by an OCFA inspector. Rather, the Owner and their tenants and/or contractors should be and should have been accessing the site via the 20’ easement that links to the Salvador water tower site, approximately two miles south.
Second, City staff requested that the Owner provide verification of continued operation of the site.
The Owner provided a lease history (Attachment 6) detailing the various tenants and the dates of their license agreements. The Owner indicates that AT&T has had continuous license agreements since ATC acquired the site from AT&T in 2000. The “Schedule 2” license agreement indicates an initial term commencing February 28, 2000 with extension options for 30 years. The Owner also indicates that there was never an intention on ATC’s part to abandon the use.
It should be noted that SCMC section 17.72.060(B)(1) creates a rebuttable presumption that discontinued legal non-conforming uses have been abandoned, stating in part: “Nonconforming Uses discontinued for more than one year (365 consecutive calendar days) shall be rebuttably presumed to have been abandoned.” The California Supreme Court has explained that although “[t]he term ‘discontinued’ in a zoning regulation dealing with a nonconforming use is sometimes deemed to be synonymous with ‘abandoned,’” that is not the law. Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 569. Rather, “[c]essation of use alone does not constitute abandonment. ‘Abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use.’” Ibid. Pursuant to SCMC section 17.72.060(B)(3), the property owner has the burden to prove how many consecutive days a use has been discontinued and/or prove a use has not been abandoned.
Staff believes that the evidence provided by ATC is sufficient for the City Council to find that ATC has met its burden to prove that the use may continue and was not abandoned consistent with SCMC section 17.72.060(B)(3).
Third, City staff reviewed complaint history received through its Code Compliance Division related to this site. There have been five nuisance cases opened since 2012, the accompanying descriptions are the complaints received which initiated the cases:
CE2012-0536 Holes in fence
CE2012-1479 Hole in fence surrounding cell tower
CE2016-1519 RSC cell towers vandalized & security breached CE2018-0245 Transient Break-in
CE2020-0468 Graffiti on the Ridge Trail private cell site There have been three additional complaints received in 2023. These complaints did not result in code cases because underground cable work does not require a city permit and because the 4 Meeting Date: January 16, 2024 Agenda Item: 8C
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dispute over site access did not involve City property. However, the City did request proof of access/easement rights from the Owner, and a survey confirmed that they should not be accessing this property from Del Dios. The three additional complaints in 2023 were:
CRM2306-0148 Complainant stated: “There is work being completed to the tower on APN# 690-552-05 (might also be referenced under 616 Del Dios, San Clemente, CA 92672) that does not have a permit. I have spoken to the city to confirm that no recent permits were pulled; however, someone from Cox cable knocked on my neighbors door to indicated that Fisher (name of contractor) will be starting construction on Monday in order to run Fiber to the tower. When asked whether they are putting a cell tower and 5G at that location, Brian Hunter from Cox Cable confirmed that that was the purpose of the work.” CRM2306-0174 Complainant stated: “I believe there is working being done by Cox Communications subcontractor Team Fishel to move fiber from one location to another that is resulting in 3 days of boring and construction as they are taking up the sidewalk.” CRM2309-0201 Complainant stated: “There is construction on the tower owned by American Tower. Per their CUP, they must be accessing site via Calle Del Cerro or Salvador via the Ridgeline Trail. They are occupying, blocking and damaging our private road on Del Dios. They do not have an Encroachment Permit.” Fourth, City staff reviewed calls for service, received between January 1, 2019 and December 14, 2023, by the Orange County Sheriff’s Department (OCSD) related to the site. There appear to be 18 calls for service related to the Owner’s property in that timeframe. All calls indicate juveniles trespassing onto Owner’s property, climbing the tower, and creating noise disturbances or throwing things from the tower. Typically, the teenagers had left the area prior to a deputy arriving for a patrol check, but in a couple of instances, deputies did make contact with the teens directing them to clear the property.
The final four calls for service occurred between November 9-10, 2023. These calls were related to a civil dispute between residents and the contractor(s) for the property Owner, with each party alleging that the other had trespassed. This occurred when Owner’s contractor was conducting landscape reduction in accordance with OCFA/CalFire standards. As previously noted, survey results (provided after November 10, 2023) indicated that the utilities easement routed from the City’s Salvador water tower property and did not include access from Del Dios.
Law Related to Public Nuisances
Under Civil Code section 3480, a public nuisance affects an entire community or neighborhood, or any considerable number of persons at the same time, although the extent of the annoyance or damage inflicted on individuals may be unequal. SCMC section 8.52.020 states: “No person shall allow, maintain or commit any public nuisance, or willfully fail to commit any legal duty relating to the removal of a public nuisance.”
While state law contains a definition of nuisance, under Government Code section 38771, cities are free to declare, by ordinance, what constitutes a nuisance. SCMC section 8.52.030 declares, in part, it “a public nuisance for any person owning, leasing, occupying or having charge or 5 Meeting Date: January 16, 2024 Agenda Item: 8C
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possession of any premises in this City to maintain such premises in such manner that any of the following conditions are found to exist thereon:
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P. Maintenance of premises in such condition as to be detrimental to public health, safety or general welfare or in such manner as to constitute a public nuisance as defined by Civil Code Section 3479;
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W. Any building or structure which has any or all of the following conditions or defects:
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8. Whenever, for any reason whatsoever, the building or structure, or any portion thereof, is manifestly unsafe for the purpose for which it is used, ***
11. Whenever the building or structure has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated or deteriorated as to become an attractive nuisance to children who might play therein to their danger, or as to afford a harbor for vagrants, criminals or immoral persons, or as to enable persons to resort thereto for the purpose of committing nuisance or unlawful or immoral acts,
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Y. A structure, improvement, property, and/or land use not in compliance with terms and/or conditions of any City of San Clemente issued permit or approval.
Additionally, pursuant to California Civil Code section 1714(a), “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property….” Staff believes that recent trespasses onto the site via the dilapidated fence, climbing on and throwing objects from the tower and public health and safety concerns are sufficient for City Council to find a public nuisance occurring at the site within the meaning of SCMC section
8.52.030.
While the Owner disagrees that there is a nuisance, it has indicated that it would voluntarily agree to implement additional measures to address site security concerns resulting from trespassing and vandalization activities at the site. See Attachment 9. These measures are included in the draft Resolution.
Council Options:
Following a public hearing:
The City Council could decline to change or revoke Conditional Permit 1021. The City Council could change Conditional Permit 1021 by adding/modifying conditions of approval or standards for development and operation of the site to mitigate the complaints and calls for service and make the site safer for the public and eliminate the public nuisance. 6 Meeting Date: January 16, 2024 Agenda Item: 8C
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The City Council could revoke Conditional Permit 1021. If revoked, the Owner would need to apply for a new Conditional Use Permit (CUP) in order to reestablish a telecommunications use at the property. A new CUP would require review by the Planning Commission.
Environmental Review/Analysis
Each of the Council options referenced above is eligible for an exemption under CEQA:
Taking no action would not require a CEQA determination. Modifying the entitlement would be categorically exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15301 (14 CCR § 15301, Class 1:
Existing Facilities), Section 15302 (14 CCR § 15302, Class 2: New Construction or Conversion of Small Structures), and/or Section 15303 (14 CCR § 15303, Class 3: New Construction or Conversion of Small Structures).
Revoking the entitlement (CP 1021) would not be a project under CEQA.
Recommended Actions:
Staff Recommendation ..recommendation
Staff recommends that the City Council adopt Resolution No. 24-09, which would find the project categorically exempt under Classes 1, 2 and 3, would make public nuisance findings and would modify the entitlement (CP 1021) to incorporate the following conditions of approval:
1. The Owner, its tenants, and any contractors, shall access the property only by means of Avenida Salvador easement – unless they can demonstrate easement rights via Del Dios.
2. The Owner, their tenants, and any contractors shall require escorted access for any vehicles other than light duty pickup trucks. Any damage to the Ridgeline trail observed by City staff to have occurred as a result of access by Owner, their tenants, and any contractors shall be repaired by a contractor of the City’s choosing within one (1) month of noticed damage.
3. The Owner and/or their tenant(s) shall permanently solve ongoing safety issues at the site by preventing persons from climbing the tower, which may be accomplished by replacing the lattice tower with a new monopole tower meeting the general design goals of the City’s Wireless Master Plan or other feasible solution approved by the City.
4. The Owner and/or its tenant(s) shall repair and/or replace the fence with a material and style supported by the City’s Code Compliance Manager and the City’s police services Captain or designee for the purpose of mitigating the issue of ongoing trespass.
5. The Owner and/or its tenant(s) shall install security cameras on the Property to alert the Owner of trespass and safety issues and the Owner shall take proactive responsibility for mitigating and preventing the issue of ongoing trespass.
6. The Owner and its tenants shall operate and maintain the site in a manner that complies with all applicable laws and regulations.
7. The Owner shall defend and indemnify the City.
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Attachments:
1. Resolution 24-09
2. Conditional Permit 1021
3. Voluntary Compliance Agreement dated July 6, 2023
4. Wireless Screening Form No. WMS 23-231
5. Survey of Easement Access to Site
6. History of ATC Lease/License Agreements
7. ATC redacted Lease/License Agreements
8. ATC’s suggestions to improve site security
9. Public comments
Notification:
Public Hearing published in the San Clemente Times, posted near the site, mailed to Owner and all property owners within 300 feet of property, and provided electronically to Owner, Applicant, and adjacent HOAs.
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