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HomeMy WebLinkAbout28-Development Services - --------- ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Findings of Fact for denial of Dept: Development Services Conditional Use Permit No. 07-28, a request to construct a monopalm telecommunications Date: February 14, 2008 tower and associated equipment on the north side of Baseline Street, approximately 245 feet east of Pennsylvania Avenue in the CG-1, Commercial General land use district. MCC Date: February 19, 2008 Synopsis of Previous Council Action: February 4, 2008: The Mayor and Common Council upheld an appeal, reversed the Planning Commission's approval of Conditional Use Permit No. 07-28 and continued the item to adopt findings of fact for denial of the Conditional Use Permit. Recommended Motion: That the Mayor and Common Council adopt the Findings of Fact for denial of Conditional Use Permit No. 07-28. Valerie C. Ross Contact Person: Terri Rahhal Phone: 384-5057 Supporting data attached: Staff Resort Ward: 6 FUNDING REQUIREMENTS: Amount: N/A Source: (Acct No.) Finance: Council Notes: ,06V/Owst-y Agenda Item No. CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Mayor and Common Council Meeting of February 19,2008 SUBJECT: Findings of Fact for denial of Conditional Use Permit No. 07-28 OWNER: APPLICANT: APPELLANT: Vietnamese Buddhist Temple OmniPoint Communications Libreria del Pueblo 1838 W. Baseline St. 3257 E. Guasti Rd. Ste. 200 251 Carousel Mall San Bernardino, CA 92411 Ontario, CA 91761 San Bernardino, CA 92401 909.381.1660 949.903.8721 909.926.3040 BACKGROUND At the regular meeting of the Mayor and Common Council on February 4, 2008, at a noticed public hearing, the Mayor and Common Council heard Appeal No. 07-06, an appeal of the Planning Commission's approval of Conditional Use Permit (CUP)No. 07-28. The CUP would permit the construction of a 70-foot cellular telecommunications tower and related equipment at the site of an existing telecommunications facility. The tower would be camouflauged as a palm tree, or"monopalm." At the appeal hearing, the Council received a report from staff and heard testimony from the appellant, local residents, and the applicant. Council members also offered relevant information based on their own knowledge of the project site and surrounding area. While the project site is located in the Commercial General land use district, staff advised that the site abuts residential areas to the north and northwest and is located only about 32 feet from the nearest residential property line. The City's Development Code requires that any telecommunications monopole or antenna located less than 75 feet from a property designated residential be reviewed for compatibility with the surrounding neighborhood, and that a CUP be obtained authorizing its construction. In particular, City of San Bernardino Development Code section 19.36.050 authorizes the approval of a CUP application only if each of seven Findings is made. Among the required Findings are the following: 1. The proposed use is conditionally permitted within, and would not impair the integrity and character of the subject land use district and complies with all of the applicable provisions of this Development Code. 5. The location, size, design, and operating characteristics of the proposed use are compatible with the existing and future land uses within the general area in which the proposed use is to be located and will not create significant noise, traffic or other conditions or situations that maybe objectionable or detrimental to other permitted uses in the vicinity or adverse to the public interest, health, safety, convenience, or welfare of the City. In view of the evidence presented to the Council at the appeal hearing, these two Findings could not be made. The Council therefore voted to uphold the appeal and reverse the Planning Commission's approval of the Conditional Use Permit. The Council directed staff to prepare Findings of Fact stating the grounds for the decision. FINDINGS OF FACT FOR DENIAL OF CUP APPLICATION Based on the following facts, the required Findings, Numbers (1) and (5), are not supported by the record: 1. The project would be visually obtrusive. The proposed tower would be substantially higher than natural trees and other existing objects in the vicinity, including the natural palms currently located at the site and the additional natural palms that would be placed there as part of the project. As a result, the tower would stand out and be plainly visible notwithstanding the camouflaging. 2. The tower would be visible from nearby residences. A resident testified that she could see the existing towers daily from her house. 3. The project would not be compatible with the architecture or character of the neighborhood. One of the residents stated she felt the existing towers were not architecturally compatible with the neighborhood. Several residents and the Council member in whose ward the project would be located similarly felt that the monopalms, because of their height, negatively impacted the character of the neighborhood. 4. The clustering that would result from the addition of another tower would intensify the undesirable visual impact. Several residents described the appearance of the two existing towers, which are comparable in height to the proposed tower, as a"giant gorilla in leotards" and a"gorilla with lipstick." 5. Several residents, and a Council member, also expressed concern about the over- proliferation of telecommunications towers in the neighborhood. It was noted that in addition to the two towers already on the site, construction of a third has been approved. The sentiment was expressed that four towers would be too many for the site. 6. The project could pose a safety hazard. Several residents noted that the project site is close to three schools, including a high school 250 feet away. A resident testified that children in the area would be attracted to the facility and would try to climb the trees, creating a risk of injury. 7. The project also would interfere with nearby residents' enjoyment of their property. A resident living close to the site complained of noise from the machinery associated with the existing facilities. 8. Denial of approval for the project will not be based on impermissible grounds. While some residents spoke of concerns about the effect of the project on the health of those living nearby, the Council was advised by staff that the federal Telecommunications Act of 1996 prohibits the City from regulating the placement of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that the facilities comply with the Federal Communication Commission regulations concerning such emissions. The Council therefore did not base its decision on that ground. 9. Finally, it should be noted that the concerns supporting denial of the CUP were not put before the Planning Commission when it approved the CUP. One of the local residents testified that at the time the Commission heard the matter, the residents who attended the hearing did not know the Commission could consider those concerns in deciding whether to approve the project. Therefore, the residents did not object to the project on those grounds, and the Commission did not know the residents had objections on those grounds, when it approved the project. For the reasons stated above, the project would impair the integrity and character of the subject land use district, would not be compatible with existing land uses within the general area in which the project is proposed to be located, would create significant noise and other conditions that would be objectionable or detrimental to other permitted land uses in the vicinity, and would be generally adverse to the public interest, safety, convenience, or welfare of the City. FINANCIAL IMPACT None. RECOMMENDATION That the Mayor and Common Council adopt the Findings of Fact for denial of Conditional Use Permit No. 07-28. OFFICE OF THE CITY CLERK RAcHEL G.CLARK,C.M.C.-Cffy CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax:909.384.5158 wwwsbcity.org San Bernar iBo SM February 20, 2008 Father Patricia Guillen Libreria del Pueblo 251 Carousel Mall San Bernardino, CA 92401 Dear Father Guillen: At their meeting of February 4, 2008, the Mayor and Common Council upheld Appeal No. 07-06, reversed the Planning Commission's approval of Conditional Use Permit No. 07-28, and continued the item to adopt findings of fact for denial of the Conditional Use Permit. At the meeting of the Mayor and Common Council held on February 19, 2008, the following action was taken: That the Mayor and Common Council adopt the Findings of Fact for denial of Conditional Use Permit No. 07-28. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, Rachel G. Clark City Clerk RGC:Ils pc: Marcia Brown, OmniPoint Communications, 3257 E. Guasti Road, Suite 200, Ontario, CA 91761 Terry Ngu, Vietnamese Buddhist Temple, 1838 W. Baseline Street, San Bernardino, CA 92411 Development Services CITY OF SAN BERNARDINO AnnPTFn SHARIM VALURS:Intevrity•Accrnmtahility•Respect for Human Dignity•Hnnecty r Continued. Approved MOTION: That the hearing be closed; that the Mayor and Common Council uphold Appeal No. 07-06 and that staff be directed to prepare and bring back findings of fact for denial of Conditional Use Permit No. 07-28 to the Council meeting on February 19, 2008. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX END OF PLANNING ITEMS 30. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA: A three-minute limitation shall apply to each member of the public who wishes to address the Mayor and Common Council/Community Development Commission on a matter not on the agenda. No member of the public shall be permitted to "share" his/her three minutes with any other member of the public. (Usually any items heard under this heading are referred to staff for further study, research, completion and/or future Council/Commission action.) 31. Adjournment. Consensus MOTION: That the meeting be adjourned. NOTE: The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for 1:30 p.m., Tuesday, February 19, 2008, in the Council Chambers, 300 North "D" Street, San Bernardino, California. 13 PLANNING XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX TO BE HEARD AT 4:30 P.M. 29. Public hearing - Conditional Use Permit No. 07-28 (Appeal No. 07-06) - appeal of the Planning Commission's approval of a telecommunications facility and associated equipment, on a site located on the north side of Baseline Street, approximately 245 feet east of Pennsylvania Avenue in the CG-1, Commercial General, land use district. (See Attached) (No cost to City.) Ward 6 Applicant: Marcie Brown OmniPoint Communications Inc. 3257 E. Guasti Road, Suite 200 Ontario, CA 91761 Appellant: Father Patricio Guillen Libreria Del Pueblo, Inc. 251 Carousel Mall San Bernardino, CA 92411 Owner: Terry Ngu 1838 W. Baseline Street San Bernardino, CA 92411 Request/Location: This is an appeal of Planning Commission's approval of Conditional Use Permit No. 07-28, a permit to construct a "monopalm" telecommunications tower disguised as a palm tree and associated equipment. The project is located on the north side of W. Baseline Street, approximately 245 feet east of Pennsylvania Avenue. Currently there are two existing wireless telecommunications facilities on the subject property. Each facility has a monopalm and equipment located inside a block wall enclosure. In addition, the site was approved to host another carrier with a similar monopalm tower on October 16, 2007. No Action Taken MOTION: That the hearing be closed; and that the Mayor and Common Council deny Appeal No. 07-06 and uphold the Planning Commission's approval of Conditional Use Permit No. 07-28, based upon the Findings of Fact contained in the Planning Commission's Staff Report, and subject to the Conditions of Approval (Attachment C to the Planning Commission Staff Report) and Standard Requirements (Attachment D to the Planning Commission Staff Report). (Item Continued on Next Page) 12 02/04/2008 CITY OF SAN BERNARDINO –REQUEST FOR COUNCIL ACTION From: Valerie C. Ross,Director Subject: Conditional Use Permit No. 07-28 (Appeal No. 07-06)–An appeal of the Planning Dept: Development Services Commission's approval of a telecommunications facility and associated Date: January 14, 2008 equipment, on a site located on the north side of Baseline Street, approximately 245 feet east of Pennsylvania Avenue in the CG-1, Commercial General land use district. MCC Date: February 4, 2008 Synopsis of Previous Council Action: None Recommended Motion: That the hearing be closed and that the Mayor & Common Council deny Appeal No. 07-06 and uphold the Planning Commission's approval of Conditional Use Permit No. 07-28, based upon the Findings of Fact contained in the Planning Commission Staff Report, and subject to the Conditions of Approval (Attachment C to the Planning Commission Staff Report) and Standard Requirements (Attachment D to the Planning Commission Staff Report). Valerie C. Ross Contact person: Waen Messner,, Assistant Planner Phone• (909) 384-5057 Supporting data attached: Staff Report Ward: 6 FUNDING REQUIREMENTS: Amount: N/A Source: (Acct.No.) (Acct. Description Finance: Council Notes: Agenda Item No. C- ;�Yl6e CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION STAFF REPORT Mayor& Common Council Meeting of February 4, 2008 SUBJECT: Conditional Use Permit No. 07-28 (Appeal No. 07-06) OWNER: APPLICANT: APPELLANT: Terry Ngu Marcie Brown Father Patricio Guillen 1838 W. Baseline St. OmniPoint Libreria Del Pueblo, Inc. San Bernardino Communications, Inc. 251 Carousel Mall CA 92411 3257 E. Guasti Rd. San Bernardino, CA 92411 909.381.1660 Suite 200 909.926.3040 Ontario, CA 91761 949.903.8721 BACKGROUND This is an appeal of the Planning Commission's approval of Conditional Use Permit (CUP) No. 07-28, a permit to construct a "monopalm" telecommunications tower disguised as a palm tree and associated equipment. The project is located on the north side of W. Baseline Street, approximately 245 feet east of Pennsylvania Avenue (Exhibit 1 — Location Map). Currently, there are two existing wireless telecommunications facilities on the subject property. Each facility has a monopalm and equipment located inside a block wall enclosure. In addition, the site was approved to host another carrier with a similar monopalm tower on October 16, 2007. On November 20, 2007, the Planning Commission approved the proposal to add a 4th wireless carrier to the site with CUP No. 07-28 (Exhibit 2 —Planning Commission Staff Report). During the Planning Commission hearing, two concerned citizens opposed the project, citing the potential harmful health effects caused by radio frequency (RF) emissions from wireless facilities (Exhibit 3 — Letter from the Concerned Neighbors Committee and BioInitiative Report). Planning Staff distributed additional information with regards to the RF emissions to the Planning Commission (Exhibit 4 — A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance, Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields and Information on Human Exposure to Radiofrequency Fields from Cellular and PCS Radio Transmitters). The Commission conferred with the Deputy City Attorney in attendance at the hearing, and informed the speakers that they did not have the authority to deny CUP No. 07-28 based on health concerns related to RF emissions. Then the Planning Commission voted unanimously to approve the application. Commissioners Dailey, Heasley, Mulvihill, Munoz, Rawls and Sauerbrun were in attendance. Commissioners Longville, Coute, Durr and Hawkins were absent. The appellant filed Appeal No. 07-06 on December 4, 2007, to request that the Mayor & Appeal No. 07-06 Hearing Date:February 4, 2008 Page 2 Common Council overturn the Planning Commission's approval of the proposed wireless telecommunications facility. In the Appeal application (Exhibit 5), the appellant's grounds for appeal are "the detrimental effects that the project may have or already has [sic] on the health and safety of existing residents in the adjacent area." The Planning Commission already informed the public during the hearing on November 20, 2007 that only the Federal Government has jurisdiction over decisions based on the environmental effects of RF emissions. The Telecommunications Act of 1996, under Section 704(a)(7)(B)(iv), states: "No State or local government or instrumentality thereof may regulate 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 Commission's regulations concerning such emissions." Pursuant to the above section of the Telecommunications Act of 1996, the City of San Bernardino Planning Commission determined that it did not have the authority to deny CUP No. 07-28 on the basis of the environmental effects of radio frequency emissions. Although not specifically stated on the appeal application, the Concerned Neighbors Committee (C.N.C.) also submitted additional information critical of the aesthetic quality of telecommunications facilities, in general (Exhibit 6). As noted in the Planning Commission Staff Report (Exhibit 2), the proposed project conforms to Code requirements for the design of telecommunications facilities, and will add screening and additional landscaping to enhance the condition of the existing facilities on the project site. The Planning Commission reviewed the application for conformance to Development Code requirements for the placement and design of telecommunications facilities, and the application was approved. Along with the C.N.C. letter, an article titled "IAFF Seeks Study on Health Hazards of Cell Phone Tower Radiation" (Exhibit 6) was also submitted. On January 3, 2008, a representative from the C.N.C. submitted another additional material titled "Twin Powers of Federal and Municipal Governments in the Ruling of Wireless Communications as Interpreted by the United States Court of Appeals" (Exhibit 7). FINANCIAL IMPACT The appellant paid the processing fee. However, on January 11, 2008, the appellant, as a non- profit organization, filed a request to refund the $165.00 processing fee. RECOMMENDATION Staff recommends that the Mayor and Common Council deny the Appeal and uphold the decision of the Planning Commission made on November 20, 2007. Appeal No. 07-06 Hearing Date:February 4, 2008 Page 3 EXHIBITS: 1. Location Map 2. Staff Report to Planning Commission dated November 20, 2007 3. Letter from the Concerned Neighbors Committee (C.N.C.) and BioInitiative Report: A Rationale for a Biologically-based Public Exposure Standard for Electromagnetic Fields (ELF and RF), submitted on November 20, 2007 (to be distributed under separate cover) 4. Three articles titled "Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance," "Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields" and "Information on Human Exposure to Radiofrequency Fields from Cellular and PCS Radio Transmitters,"distributed to Planning Commission on November 20, 2007 (to be distributed under separate cover) 5. Appeal Application received on December 4, 2007 6. Letter from the Concerned Neighbors Committee received on December 4, 2007 and an article titled "IAFF Seeks Study on Health Hazards of Cell Phone Tower Radiation" 7. An article submitted by the Concerned Neighbors Committee, titled"Twin Powers of Federal and Municipal Governments in the Ruling of Wireless Communications as Interpreted by the United States Court of Appeals" (to be distributed under separate cover) EXHIBIT 1 CITY O:SAN BERNARDINO PLANNIVISION PROJEP 07-28 (AP 07-06) LOCATIAP NORTH HEARINTE: FEBRUARY 4, 2008 Project Site —BASELINE ST --- FT (0, 'lity of San Bernardino ♦..+if^"e++w� -a. -.mss. -.+.ar-.-w-+Y.M! c EXHIBIT 2 SUMMARY CITY OF SAN BERNARDINO PLANNING DIVISION CASE: Conditional Use Permit No. 07-28 AGENDA ITEM: 1 HEARING DATE: November 20, 2007 WARD: 6 APPLICANT: OWNER: Marcie Brown Terry Ngu OmniPoint Communications, Inc. 1838 W. Baseline Street 3257 E. Guasti Rd., Suite 200 San Bernardino, CA 92411 Ontario, CA 91761 909.381.1660 949.903.8721 REQUEST & LOCATION: Request for a Conditional Use Permit to construct a wireless telecommunications facility consisting of a 70-foot monopalm tower and associated equipment. The project site is located on the north side of W. Baseline Street, approximately 245 feet east of Pennsylvania Avenue in the CG-1, Commercial General land use district. CONSTRAINTS & OVERLAYS: None ENVIRONMENTAL FINDINGS: ❑ Not Applicable 21 Exempt from CEQA, Section 15303 - New Construction of Small Structures ❑ No Significant Effects ❑ Potential Effects, Mitigation Measures and Mitigation Monitoring/Reporting Plan STAFF RECOMMENDATION: 0 Approval 2 Conditions ❑ Denial ❑ Continuance to: CLIP 07-28 Meeting Date:November 20, 2007 Page 1 PROJECT DESCRIPTION The project site is located on the north side of Baseline Street, approximately 245 feet east of Pennsylvania Avenue, in the CG-1, Commercial General land use district (Attachment A - Location Map). The applicant requests approval of a Conditional Use Permit under authority of Development Code §19.20.030(C)(7) to construct a 70'0" wireless telecommunications tower, camouflaged as a monopalm, with associated equipment (Attachment B - Site Plan and Elevations). SETTING & SITE CHARACTERISTICS 'The site is a rectangular parcel approximately 23,000 square feet in area. To the north of the site is a single-family neighborhood in the RS, Residential Suburban land use district. The west side of the parcel is adjacent to two different land use districts. Approximately 150 feet of the northwest side abuts single-family residences in the RS district and approximately 310 feet, or the rest of the west side, abuts vacant properties in the CG-1, Commercial General land use district. The proposed monopalm tower will be approximately 190 feet east of the nearest existing single-family residence and approximately 32 feet east of the abutting residential property line. To the east is also a vacant property in the CG-1. To the south is W. Baseline Street. Currently, the parcel hosts two existing wireless carriers and will host another carrier that was recently approved on October 16, 2007, each with a monopalm tower and an equipment enclosure. The proposed monopalm telecommunications facility will be located directly south of the southernmost existing monopalm. With the approval of this proposal, the parcel will have a total of 4 monopalms, surrounded by 9 live palm trees and other existing trees. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) The proposed project is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Section 15303 for new construction of small structures. FINDINGS & ANALYSIS I. Is the proposed use conditionally permitted a4thin, and avidd not impair the integrity and character of, the si{bject land nse district and complies zcitli all of the applicable provisions of the Development Code? The proposed 70'0"monopalm is conditionally permitted in the CG-1, Commercial General land use district under the authority of Development Code §19.20.030(3)(C)(7) for placement of antennas located within 75 feet from a property designated residential, or within 75 feet from an existing residence. The CUP 07-2s Meeting Date:November 20, 2007 Page 2 proposed telecommunications facility will be screened from view by a 6'0" high decorative block wall (i.e. split face or slump stone) with sandstone cap. Additional landscape of two 40 to 45-foot new live palm trees will be provided in addition to an existing tree. The site currently has two existing monopalm towers and equipment enclosures and was recently approved to have another monopalm tower. All of the facilities are or will be landscaped by a few live palm trees and shrubs. The proposal of an additional monopalm telecommunications facility would not alter the character of the site, and would therefore not impair the integrity and character of the subject land use district. In addition, The camouflaged telecommunications facility would comply with the applicable provisions of the Development Code. 2. Is the proposed use consistent u,lth the General Plan? The proposed tower is consistent with a number of General Plan goals and policies. General Plan Policy 9.8.1 (Utilities) provides for the continued development and expansion of telecommunications systems. General Plan Goal 2.2 (Land Use) promotes development that integrates with and minimizes impacts on surrounding land uses. Operation of the antenna and tower would not be apparent to the surrounding residential neighborhood, and would provide for continued development of the wireless telecommunications system. Finally, the new monopalm would also be consistent with Community Design Policy 5.2.4 for screening of above-ground infrastructure support structures. 3. Is the approval of the Conditional Use Permit for the proposed use in compliance zrith the requirements of the California Environmental Quality Act (CEQA) and Section 19.20.030(6) of the Development Code? The approval of a Conditional Use Permit for the 70'0" monopalm wireless facility is in compliance with the requirements of CEQA and Development Code §19.20.030(6), in that the project is exempt from CEQA under Section 15303 for new construction of small structures. 4. Are there potentially significant negatWe impacts upon environmental qualitil and natural resources that could not be properly mitigated and monitored? The site is not located within an area identified by the General Plan as having potentially significant biological resources or other potentially sensitive natural resources. The property is already disturbed by two existing telecommunication towers and is surrounded by urban development. No potentially significant impacts on environmental quality or natural resources can be anticipated to .r.r CUP 07-2s Meeting Date:November 20, 2007 Page 3 result from the proposed project. Therefore, no environmental mitigation would be necessary. 5. Are the location, size, design, and operating duzracteristics of the proposed use compatible zi,ith the existing and future land uses u,itliin the general area in u4iiclz the proposed use is to be located and zi,ill it create significant noise, traffic or otlier conditions or situations that may be objectionable or detrimental to otlier permitted uses in the vicinity or adverse to the public interest, healt1l, safety, convenience, or zoelfare of the City? The site currently has two existing monopalm towers, two equipment enclosures and is landscaped by a few live palm trees. On October 16, 2007, the Planning Commission approved another monopalm tower and equipment enclosure. Therefore the proposal is harmonious and compatible with existing improvement on the project site and future development within the land use district and general area. Currently, surrounding parcels to the north and northwest are developed with single-family houses and to the southwest and east are vacant properties. These surrounding properties are located within residential and commercial land use districts. Since the proposed project and related site improvements would be consistent with the existing uses on site, the proposed monopalm facility would not be detrimental to surrounding uses or adverse to the public interest, health, safety, convenience, or welfare of the City. 6. Is the subject site pliysicalli/ suitable for the type and density intensity of use being proposed? Although the subject parcel is approximately 23,000 square feet in size, it has a narrow lot width of 50 feet and an extremely long lot depth of 460 feet. Due to the unusual lot dimensions, this parcel is not suitable for commercial development. However, the site is sufficient in size for the proposed telecommunications facility. The intensity of the proposed project would be negligible and would not negatively affect surrounding properties. The proposed monopalm site will be accessible by an existing 12' wide paved driveway from Baseline Street. Therefore, there are no physical constraints or conditions on the site that would prevent development of the project. 7. Are there adequate provisions for public access, a7ater, sanitation, and public utilities and services to ensure that the proposed use mould not be detrimental to public health and safety? The existing site currently has adequate provisions for public access, water, and public utilities and services. The proposed use will not create additional demands for access, water, sanitation, or other public services. All necessary CUP 07-28 Meeting Date:November 20, 2007 Page 4 public and private utilities currently serve the site. Therefore, the proposed use will not be detrimental to public health and safety. CONCLUSION The proposal satisfies all Findings of Fact required for approval of Conditional Use Permit No. 07-28. RECOMMENDATION Staff recommends that the Planning Commission approve Conditional Use Permit No. 07-28 based upon the Findings of Fact contained in this Staff Report, and subject to the Conditions of Approval (Attachment C) and Standard Requirements (Attachment D). Respectfully Submitted, YMA� 'Rw Valerie C. Ross Development Services Director Waen Messner Assistant Planner Attachment A Location Map Attachment B Site Plan & Elevations Attachment C Conditions of Approval Attachment D Standard Requirements EXHIBIT 5 CITY OF SAN BERNARDINO ■ `7 � r �y vevelopment Services Department, Planning Division 300 North "D" Street, 3 Floor San Bernardino, CA 92418 �a11 BPPildl' 1110 Phone (909) 384-5057 • Fax (909) 384-5080 tlLV`LOPMENT SERVICES Web address: www.sbcity.org OEPARTi fff APPLICATION FOR APPEAL APPEAL FROM A DECISION OF THE (check one) ❑ Development Services Director ❑ Development/Environmental Review Committee T107 - 06 2K Planning Commission Case number(s): 1�v N��'� f v �,f Project address: J e_ Appellant's name: _Z d l C ez f,.A L�r Z F s5 ��c l !'�. /v, C, �: fit. cup Me,, Appellant's address: 62-f–i 4Z _ � fj�i/Al' ♦�/C. �'�i11� Appellant's phone: Q–�, � Appellant's e-mail address: r V d 0-,7 eb , ( O wj Contact person's name: / � a Contact person's address: Z a&.,2 _�' �1 � �� </� 4 4f4 1 Contact person's phone: / o� J ( DAD (� Q���� - �j/� 77 Contact person's e-mail address: r y�{ o Pursuant to Section 19.52.100 of the Development Code, an appeal must be filed on a City application form within 15 days following the final date of action, accompanied by the appropriate appeal filing fee. Appeals are normally scheduled for a determination by the Planning Commission or Mayor and Common Council within 30 days of the filing date of the appeal. You will be notified, in writing, of the specific date and time of the appeal hearing. OFFICE USE ONLY Date appeal filed: _Z– G �� G `-7 Received by: Al t 11/04 REQUIRED INFORMATION FOR AN APPEAL Specific action being appealed and the date of that action: ,:'�N q7� 4" Li,1-/ L ,I­�(n 9(fq d Z7,4 v d ^ ,✓ e Specific grounds for the appeal: 5 P � �, ✓ �� �,`��'�, c9<,/,-_ e J/ Action sought: /2�<};7G P e_,r C, 'a c Lc)_,�ki4 f° o� Tl l ry �a ,o C, r/� 1 4 ej,L r L. J j-0 Sect.✓c41 r Alkvty 4LA S/1 CO Ad e r1 U (✓o,vNL�" G- l / 7 "C-- i C` t L L/ OV t4 el C', IF Additional information: '�N ,cF��,e"w, 5 z j - 'he n- er,c_ee �e 5 It �vi f L. ,4c4 C �e4Le-�,v r e� /LiQr��dr,`Le 6)N d( e ©Nc--/ list ���, ht" IV - hela"g /i!�N l lerM - ecc b !Z S/C..l%>o c/+ /f P e 5 e i►G e J (.L4 ,c.( r C c-eeu, ev c,/ 6. P teS� �..i}t;w. {e�� n I'p .t�'N 4 t-°` ii�i�e�s D r e St ��.z��4.ro`d, S'-C.G�c,,/��e,�e✓ 5'�4ifi°�d ; ,c-:' ,I a r C W e, f/-i tIe L 4 (= %= ks Re,a(K q, A!,o-, 4i /-f,4 2- 1 Phc,,e- It L.,e_✓ rc. J, � / SGGL�/I iCr �GrY•+y� J �K A� ! !�e T'��'�� Zed / 6 , 64 e w=` Gl c'�' -i� f,rO ,4 car *et—pt 6v yJ lk,r a!- ! ,`C' /e- '-,p4z 0, jl Gad ` E'.l c Signature of appellant: Date: 2 11/04 EXHIBIT 6 C.N.C. Concerned Neighbors Committee To: Mayor Patrick J. Morris/City Council Persons And City Planning Commissioners Dear Mayor Morris, City Council Persons and Planning Co9mmissioners: This is an additional supplemental information of an Appeal to Conditional Use Permit No. 07-28 granted to Omnipoint Communications, Inc., to construct a 70 foot monopalm tower and associated equipment approximately 32 feet east of an abutting residential single family property line and other proximities which create an additional unnecessary burden as a nuisance to neighbors living nearby on 13`h. and Pennsylvania streets — this facility is not necessary for the adjacent community, since there is already adequate wireless service in the surrounding neighborhood. Also, cell monopalm constructions cause loss of property value to the residences in this area that will constitute a "visual commercial and residential blight" and would be detrimental to the character and safety of this neighborhood surrounded within a mile distance to the south near Arroyo Valley School, to the east by Martin Luther King School, to the west a recreational area adjacent to Rio Vista School. All of the mentioned above are residences and educational institutions where children and families are exposed to the unsightful and visually obtrusive features that create disturbing noises and display incompatible proportions, textures and details such as the view of an already cluttered ionopalm farm - low level/long term effects of EMR/ microwave radiation —these monopalms already have disturbed the area with one giving the appearance of "a giant gorilla in leotards" and the other like a "huge, ferocious gorilla with lipstick". A third one has been approved and we are not aware if the City is monitoring this cluster of microwave radiation instruments for compliance with FCC/ANSI Standards. We close declaring that the proposed facility would not further the policies of the City's applicable General Plan., q o h�e F�,�tt 7 3 L i, L' - w .r s %'c j� 3 8 rl_ Cl 1 IT-bJ Xf�dLR�- f G r �1 IAFF Seeks Study on Health Hazards of Cell Phone Tower Radiation "There currently is no good scientific study that determines whether or not cell towers on fire stations are hurting our members, so a study must be done," F, says IAFF General President Harold Schaitberger. "Fire fighters are already at higher risk of injury and illness from the hazards of their job, but we will not tolerate our members being put in additional danger while at the station housE from exposure to low-intensity radio frequency and microwave radiation from these cell towers and antennas." Until the health effects are truly tested and known, the IAFF believes no additional cell towers or antennas should be positioned on or near fire stations It is the general belief of international governments and of the wireless telecommunications industry that no consistent increases in health risk exist RREPAC * from exposure to radio frequency radiation. However, it's important to note ate 1i _x ` that these positions are based on non-continuous exposures to the general Site Search . public to low intensity radio frequency fields emitted from wireless Ov&ie Library • Re,�ue£i:rI�r�,rrce . telecommunications base stations. "Critical questions concerning the health effects and safety of radio frequency microwave radiation remain," says Schaitberger. "We want answers, not the biased opinions of cell phone industry groups." Most studies on this subject are at least five years old and generally look at th safety of the phone itself. IAFF is concerned about the effects of living directly under these stations for a considerable stationary period of time and on a dail), basis. The IAFF and its medical team believe a study with the highest scientific merit and integrity, contrasting fire fighters with residence in stations with towers to fire fighters without similar exposure, is necessary to truly determine the effects of radio frequency radiation on the central nervous system (CNS) and the immune system, as well as other metabolic effects observed in preliminary studies. Biological effects from exposure to low-level radio frequency microwave radiation have been recognized as markers of adverse health effects. Internationally acknowledged experts have shown that radio frequency microwave radiation transmissions of the type used in digital cellular antennas and phones can have critical effects on cell cultures, animals and humans in laboratories. Studies have also found epidemiological evidence of serious health effects at "anon-thermal" levels where the intensity of the radiation was too low to cause heating, including increased cell growth of brain cancer cells, changes in tumor growth, more childhood leukemia, changes in sleep patterns, headaches and neurological changes, decreased memory, retarded learning, increased blood pressure and other health hazards. The IAFF's efforts will attempt to establish a correlation between such biological effects and a health risk to fire fighters and emergency medical personnel due to the citing of cell phone antennas and base stations at fire stations and facilities where they work. For a full copy of the IAFF report on the potential risk of cell tower radiation, click here. International Association of Fire Fighters 1750 New York Ave., NW, Washington, DC 20006 • 202.737.8484 • 202.737.8418 (Fax) r OFFICE OF THE CITY CLERK - RACHEL G.CLARK,C.M.C.-CrrY CLERK 300 North"D"Street•San Bernardino•CA 92418-0001 909.384.5002•Fax: 909.384.5158 San Bern www.sbcity.org ar Ino SM February 5, 2008 Father Patricia Guillen Libreria Del Pueblo, Inc. 251 Carousel Mall San Bernardino, CA 92411 Dear Father Guillen: At the meeting of the Mayor and Common Council held on February 4, 2008, the following action was taken relative to the appeal of the Planning Commission's approval of a telecommunications facility and associated equipment on a site located on the north side of Baseline Street, approximately 245 feet east of Pennsylvania Avenue, in the CG-1, Commercial General, land use district: That the hearing be closed; and that the Mayor and Common Council uphold Appeal No. 07-06, and that staff be directed to prepare and bring back findings of fact for denial of Conditional Use Permit No. 07-28 to the Council meeting of February 19, 2008. If we can be of further assistance, please do not hesitate to contact the City Clerk's office. Sincerely, Rachel G. Clark City Clerk RGC:Ils pc: Marcia Brown, OmniPoint Communications Inc., 3257 E. Guasti Road, Suite 200, Ontario, CA 91761 Terry Ngu, 1838 W. Baseline Street, San Bernardino, CA 92411 Development Services CITY OF SAN BERNARDINO ADOPTED SHARED VALUES:Integrity•Accountability•Respect for Human Dignity•Honesty n into ReGOr(! et /� flag _,r,PxrGms Mtg: C 7-C� r Z s J TER OFFICE MEMCRANDU QRN 1N CITY ATT -- OFFICE OF THE SAN BERNARDII.IC� City ClerkICDC Secy CITY OF City of Sall Bernardino •sand Members of the Common Council TO: Mayor Patrick J.Morn FROM: James F.Penman, City Attorney DATE: February 14, 2008 E-mail from Planning Commissioner Jim Mulvihill RE: Response to Development Clark City Clerk;Fred Wilson, City Manager;Valerie Ross, COPY TO: Rachel Cla , Services Director DomDimichele reviewing the issues Attached is amemorandum fromDeputyCit' to M Attorney Morris. in Dr.Mulvihill` e-mail of February 12,2008 to May raised California Public Utilities Code section int Cell Tower CUP Appeal), and the case cited by Mr. As Mr. Dimichele indicates rce" mmpo ern ell Tom, Crr.2006)435 F.3d 993,is 7901 vis not relevant to this case ( has issued "subsequent concurrent opinions PCS Assets, LLC v. City of La Canada Flintridge(9 Mulvihill,Sprint al authority as the 9th Circus no longer valid leg superseding the original decision." Code section 7901,the 9`''Circuit"indicated a Also,in a case not involving Public Utilities C permitted uses." aesthetic considerations as a criterion for determining p general endorsement of Respectfully submitted, a es F.Penman, City Attorney Attachment: one(1) Morris re OmniPoint Cell Tower cup Appeal."d F:\PENMAN\MEM OS\Memo to Mayor -TV C7�_U a-I�-1 r CITY OF SAN BERNARDINO INTRA-OFFICE MEMORANDUM TO: James F. Penman, City Attorney Henry Empeno, Senior Deputy City Attorne FROM: Donn Dimichele, Deputy City Attorney DATE: February 14, 2008 RE: OmniPoint Cell Tower CUP Appeal I reviewed the attached email from Planning Commissioner Mulvihill concerning the above appeal. Here are my comments. 1. The email seems to be saying that California Public Utilities Code section 7901 prohibits the City from denying the CUP application unless the tower would restrict the public use of roads or highways. However, section 7901 only applies to equipment that is placed on a public highway or other public property, and therefore is not relevant to this case. Section 7901 says: "Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles,posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters." Although the language of the statute—"along or across any of the waters or lands within this State"—could be construed to include all property in the state, it is clear from court decisions that all the statute confers on a utility is the right to put equipment on a public right of way or other public property. In Pacific Tel. & Tel. Co. v. City of Los Angeles (195 5) 44 Cal.2d 272, 276, the California Supreme Court said that section 7901's predecessor(which contained the same language) gave a franchise to telegraph and telephone companies to use"the highways and other public places" for their lines and equipment. In Anderson v. Time Warner Telecom of California, Inc. (2005) 129 Cal.AppAth 411, 415-416, the court said that section 7901 is a continuing offer extended to telegraph and telephone companies "to use the highways" so long as telegraph or telephone service is continued. r In Los Angeles County v. General Tel. Co. of California (1967) 249 Cal.App.2d 903, 906, the court held that the right of a utility under section 7901 to use the highways includes the right to use highway bridges,because they are part of the highways. If section 7901 gave a utility a general right to use any land for its equipment, as opposed to a mere right to use the public right of way, the court would not have had to concern itself with whether a bridge is part of the highway. This case does not involve an application to put equipment on a public right of way or other public property. The site is privately owned. Therefore, section 7901 does not apply. 2. The email also seems to be saying that under Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge (9th Cir. 2006) 435 F.3d 993, the City cannot deny a cell tower permit based on aesthetics. However, the Sprint PCS decision was based on section 7901. Sprint wanted to construct wireless facilities along two public streets. The court held the city could not deny the applications based on aesthetic considerations, because section 7901 only permits denial of access if the equipment would interfere with the public use of the right of way. Since, as discussed above, section 7901 does not apply in this case, neither does Sprint PCS. In fact, even if Sprint PCS did apply, it is not valid legal authority. After the Ninth Circuit decided the case, it issued two subsequent concurrent opinions superseding the original decision. (Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge (9th Cir. 2006) 448 F.3d 1067; Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge (9th Cir. 2006) 250 P.U.R.4th 420, 182 Fed.Appx, 688.) In the first opinion, the court only held that the city's denial of the permits was not supported by the evidence. It did not address whether the denial violated section 7901. In the second opinion, the court reiterated its holding in the superseded opinion that section 7901 prohibited the city from denying the permits based on aesthetics. However, the court only published the first superseding opinion and not the second. Ninth Circuit Rule 36-3 provides that unpublished opinions of the court "are not binding precedent." Therefore, the second opinion is not legal authority and the question whether section 7901 allows denial of a permit is still undecided in the Ninth Circuit. Further, it does not appear that the Ninth Circuit intends to decide the issue. In 2007, the court asked the California Supreme Court to decide it. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2007) 508 F.3d 897.) To my knowledge, the court has not acted on the request yet. In the meantime, at least one lower federal court decided that section 7901 does not prohibit a city from regulating cell towers based on factors other than interference with the public right of way. (GTE Mobilnet of Cal. Ltd. Partnership v. City and County of San Francisco (N.D. Cal. 2006) 440 F.Supp.2d 1097.) The court noted that it was free to decide the issue either way, since the Sprint PCS decision had been superseded as discussed above. (Id. at p. 1104, fn. 4.) 2 However,the GTE Mobilnet court relied on a California Court of Appeal opinion(Sprint Telephony v. County of San Diego (2006) 140 Ca1.App.4th 748) which was later superseded by a grant of review by the California Supreme Court,which later dismissed review, again leaving the issue undecided. In sum, even if section 7901 applied to this case, it is still unclear whether the statute permits the denial of an application based on aesthetic considerations. Therefore, neither of the legal authorities cited in the email should have any effect on the Council's decision in this case. 3. Finally, in a case not involving section 7901, the Ninth Circuit indicated a general endorsement of aesthetic considerations as a criterion for determining permitted uses. In MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, the court noted that"most courts"have held that a local government may distinguish between telecommunications providers "based on `traditional bases of zoning regulation' such as `preserving the character of the neighborhood and avoiding aesthetic blight."' (Id. at p. 726.) The court also observed that the House Conference Report on the federal Telecommunications Act explained that the Act would allow local governments the flexibility to treat facilities differently based on"visual, aesthetic, or safety concerns"under generally applicable zoning requirements. Although"cases have found general,unsubstantiated aesthetics concerns to have marginal evidentiary value"(Voice Stream PCS I, LLC v. City of Hillsboro (D. Or. 2004) 301 F.Supp.2d 1251, 1257), "when the evidence specifically focuses on the adverse visual impact of the tower at the particular location at issue," a court can find substantial evidence to uphold the denial of an application. (Id. at p. 1258.) Therefore, even though the Council's decision was based in part on aesthetic considerations, that should not undermine the decision as long as the considerations were specific to the site and the proposed facility. 3 Page 1 of 1 Angie Rodriguez From: Ross_Va [Ross_Va @ci.san-bernardino.ca.us] Sent: Thursday, February 14, 2008 9:23 AM To: Angie Rodriguez (E-mail) Subject: FW: Wireless facility permits -----Original Message----- From: Frazier Ju On Behalf Of Morris Pat Sent: Thursday, February 14, 2008 9:22 AM To: Ross_Va Subject: FW: Wireless facility permits From: Jim Mulvihill [mailto:mulvihil @csusb.edu] Sent: Tuesday, February 12, 2008 1:09 PM To: Morris—Pat Subject: Wireless facility permits Pat: Regarding the appeal of the Planning Commission's approval of a cell phone tower, and recognizing my comments may be irrelevant if the cell tower is moved to an acceptable site, but the state Utilities Code, Section 7901, give phone companies broad authority to construct telephone facilities, only restricting those facilities if they restrict the public use of roads/highways. See also, Sprint PCS Assets, LLC v. City of La Canada Flintridge (9th Cir. 2006)435 F.3d 993, in which the specific use of"aesthetics" by the city to deny a location was specifically overturned by the court. I'm very gratified to have attended the Perris Hill Senior Center's expansion —after all, I'll likely be using it! Jim James L. Mulvihill, PhD, AICP Professor Emeritus Department of Geography& Environmental Studies California State University, San Bernardino CA 92407 Office: (909) 537-5522 Cell: (909) 744-2662 Sect'y: (909) 537-5519 FAX: (909) 537-7645 2/14/2008 .,GC k OC.1 ATTEST THAT MY WIRELESSS SERVICE AT HAS AN EXCELLLENT SERVICE AND MORE CELL CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. ��e }k e v r`a e r:5 13 I sera i[ W i recei V e re i•hct.t u,w e Glo not n e� ?"M ob r le yen e-c% 115 very we-li (hrovjhortier c*,+r NAME ADDRESS C'Qrr►ers.. PHONE psi 8C)q ►s 6s � h ! 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San Bernardino, California - December 28, 2007 ---_-- ---.� -- ----- — - -- _ _.__ - ---------- I 0 r-e b1 t r b ATTEST THAT MY WIRELESS SERVICE AT I 3�S k 1 a,5�1 t o, Lc�o-c-- HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 I TISCk Pe%,�JQ ATTEST THAT MY WIRELESS SERVICE AT I g R® . ( �7j 5 , a�i I.7 ✓tare ryl HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 Le(7�v ATTEST THAT MY WIRELESS SERVICE AT l S f�J.J `� � t_ �,, ��� ;�n HAS AN C 1,4, EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 I \1 AC'5;cn ATTEST THAT MY WIRELESS SERVICE AT } HAS AN C° a �2� 11 EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 iAc011, (� 'V'AQS CC) I �cY1c ATTEST THAT MY WIRELESS SERVICE AT f` ;. !��r'' 3 j.%y . Jcp� ���y Ict/ar✓rc�; LA, P- /"HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 a Is _,1210 �f—C S ATTEST THAT MY WIRELESS SERVICE AT/ �� `�j/ .), HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 1 i ATTEST THAT MY WIRELESS SERVICE AT S �,�,� J 1 j HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 ATTEST THAT MY WIRELESS SERVICE AT l 1/6 V HAS AN EXCELLENT SERVICE AND MORE MONOPALM CONSTRUCTIONS ARE NOT NECESSARY TO MEET MY TECHNICAL NEEDS. San Bernardino, California - December 28, 2007 �-E'�a �-cam-; t/ L�-✓�___._ San Francisco Neighborhood Antenna-Free Union Page 1 of 2 Home SNAFU Information & Research Neighborhood Action ' Friends of SNAFU Contact Broadway & Van Ness Marina 4 ; _.i Lower Pacific Heights peer Fi mc►re , . ..,� >� M,o�� r an handle i Outer Sunset Ocean Avenue u E ' SYiIWli1�� a.sY-:#.-e F'..:laplt4^1:vS.$-eR'7y11. Successful Resistance �. San Francisco neighborhoods that have successfully resisted the siting of wireless communications antennas in their area include: • Broadway&Van Ness by Mark Longwood Neighbors Convince Wireless Carrier to Withdraw from Proposed Antenna Site • Marina by Madeline Camisa Neighbors Successfully Appeal Planning Commission Approval to Board of Supervisors • Lower Pacific Heights Neighbors Convince Property Owner to Break Contract with Wireless Carrier and Successfully Appeal Planning Commission Approval to Board of Supervisors • Upper Fillmore by Mark Zier Neighbors Successfully Ape_al Planning Commission2 0 Approval to Board of Supervisors httn'//www.nnte.nnnfrPernninn nra/neiuhhnrhnnrlrrtinn htm /1Q/�MS2 San Francisco Neighborhood Antenna-Free Union Page 2 of 2 • Nannancne oy uavla M1na/y Neighbors Convince Property Owner to Break Contract with Wireless Carrier • Outer Sunset Neighbors Convince Property Owner to Break Contract with Wireless Carrier • Ocean Avenue Neighbors Successfully Appeal Planning Commission Approval to Board of Supervisors Site Map j Contact Us L://v;ww.,mtennafreeunion.org/neighborhoodaction.htrn 2/19/2008