HomeMy WebLinkAboutPC2020-034 - UPHOLDING THE DECISION OF THE ZONING ADMINISTRATOR APPROVING COASTAL DEVELOPMENT PERMIT NO. CD2020-119 FOR A SMALL CELL WIRELESS FACILITY LOCATED WITHIN THE PU05-14-19
RESOLUTION NO. PC2020-034
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, UPHOLDING THE
DECISION OF THE ZONING ADMINISTRATOR APPROVING
COASTAL DEVELOPMENT PERMIT NO. CD2020-119 FOR A
SMALL CELL WIRELESS FACILITY LOCATED WITHIN THE
PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER
0902, ON 38TH STREET NEAR LAKE AVENUE AND THE
NEWPORT ISLAND BRIDGE (PA2019-113)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by New Cingular Wireless, LLC (“Applicant”), with respect to
City of Newport Beach (“City”) Streetlight Number 0902 (“SLC0902”), located within the
public right-of-way at the northwestern corner of 38th Street and Lake Avenue requesting
a coastal development permit (“CDP”).
2. The Applicant proposes the installation of a small cell wireless facility on a City-owned
streetlight pole. Project implementation will be fully contained within the public right-of-way
on 38th Street and includes the following: (1) removal and replacement of an existing City
streetlight; (2) installation of a small cell wireless facility that consists of four remote radio
units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter
screening shroud. This equipment would be fixed to the top of the replaced streetlight pole
for a maximum height of 27 feet, 6 inches; and (3) establishment of supporting equipment
in an adjacent below-grade vault (“Project”).
.
3. Since SLC0902 is located within the public right-of-way, the proposal is regulated by
Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City-Owned
Property), as well as Chapter 20.49 (Wireless Telecommunication Facilities) of the
Newport Beach Municipal Code (“NBMC”). Pursuant to Section 20.49.060 (Permit
Review Procedures) of the NBMC, a minor use permit is required for this type of
installation.
4. The City’s regulatory review of wireless telecom siting is limited by three federal laws:
(1) the Communications Act of 1934; (2) Telecommunications Act of 1996
(Telecommunications Act); and (3) the Middle-Class Tax Relief and Job Creation Act of
2012 (Spectrum Act), which aim to facilitate wireless infrastructure development and
restrict certain aspects of local authority in review and permitting of wireless
telecommunications facilities;
5. On January 14, 2019, the Federal Communications Commission (“FCC”) Declaratory
Ruling and Order FCC 18-133 (“Order”), modified in part by City of Portland v. United
States, No. 18-72689 (9th Cir. 2020), removed barriers to wireless infrastructure
deployment and established accelerated timelines for processing wireless applications
at the local level. This Order also limited the City’s rights as a property owner, restricting
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the type and amount of fees that can be collected for private use of public property such
that the City’s review and approval is primarily limited to reasonable aesthetic
requirements, environmental concerns, and land use compatibility.
6. A telephonic public hearing was held on May 28, 2020 in the City Council Chambers
located at 100 Civic Center Drive, Newport Beach, due to the Declaration of a State
Emergency and Proclamation of Local Emergency related to COVID-19 A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. (“Ralph M. Brown Act”), as well as Chapter 20.62 (Public
Hearings) of the NBMC. Evidence, both written and oral, was presented to, and
considered by the Zoning Administrator at this public hearing.
7. The Zoning Administrator adopted Resolution No. ZA2020-047 approving Minor Use
Permit No. UP2019-032 for this Project. The appeal period expired in accordance with
Section 20.64.030 (Filing and Processing of Appeals and Calls for Review) of the NBMC
therefore rendering UP2019-032 effective.
8. The Project is located within the Coastal Zone. Subsection 21.49.020(B) (Permit and
Agreement Required) of the NBMC requires a CDP for a wireless telecommunication
facility unless said facility is exempted by Subsection 21.49.020(C) (Exempt Facilities).
In this case, the Project does not meet any of the prescribed exemptions; therefore, a
CDP is required. Upon finding that a CDP is required, the Applicant revised the request
to include said permit.
9. A telephonic public hearing was held on August 27, 2020 in the City Council Chambers
located at 100 Civic Center Drive, Newport Beach, due to the Declaration of a State
Emergency and Proclamation of Local Emergency related to COVID-19 A notice of time,
place and purpose of the hearing was given in accordance with the Ralph M. Brown Act
and Chapter 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was
presented to, and considered by, the Zoning Administrator at this public hearing.
10. The Zoning Administrator adopted Resolution No. ZA2020-057 approving CDP No.
CD2020-119.
11. On September 9, 2020, Mr. Jim Mosher filed an appeal of the Zoning Administrator’s
decision citing an inadequate consideration of alternative locations.
12. A de novo telephonic public hearing was held online on October 22, 2020, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach, California, observing
restrictions due to the Declaration of a State Emergency and Proclamation of Local
Emergency related to COVID-19. A notice of time, place and purpose of the public
hearing was given in accordance with the Ralph M. Brown Act, Chapter 20.62 and
Chapter 21.62 of the NBMC. Evidence, both written and oral, was presented to, and
considered by, the Planning Commissioner at this hearing.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. The Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant
to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class
3 (New Construction or Conversion of Small Structures), respectively, of the CEQA
Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it
has no potential to have a significant effect on the environment. Class 2 consists of
replacement or reconstruction of existing structures and facilities where the new
structure will be located on the same site as the structure replaced and will have
substantially the same purpose and capacity as the structure replaced. Class 3 consists
of construction and location of limited numbers of new, small facilities or structures;
installation of small new equipment and facilities in small structures; and the conversion
of existing small structures from one use to another where only minor modifications are
made in the exterior of the structure.
2. In this case, the Project includes the removal and replacement of an existing City
streetlight pole to install a small cell wireless facility, including below-grade accessory
equipment.
3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not
applicable. The project location does not impact an environmental resource of
hazardous or critical concern, does not result in cumulative impacts, does not have a
significant effect on the environment due to unusual circumstances, does not damage
scenic resources within a state scenic highway, is not a hazardous waste site, and is
not identified as a historical resource.
SECTION 3. REQUIRED FINDINGS.
In accordance with Subsection 21.52.015(F) (Coastal Development Permits, Findings and
Decision) of the NBMC, the following findings and facts in support of such findings are set forth:
Finding:
A. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The Project is considered a Class 3 (Public Right-of-Way) installation. Section 21.49.040
(Telecom Facility Preferences and Prohibited Locations) of the NBMC lists Class 3
installations as third on the installation preference list. It is not proposed at a location
that is prohibited by NBMC Subsection 21.49.040(B) (Prohibited Locations).
2. After a thorough review of the area, the Applicant concluded that a more preferred
location as defined by NBMC Subsection 21.49.040(A) (Preferred Locations), such as a
collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or
construction perspective. The analysis explained that small cell facilities are low
powered and must be located at the precise location selected to serve the network traffic
demands of the specific limited area. Further, this type of service cannot be
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accomplished with a traditional macro collocation or building mounted site in the area,
as it is focused to fill a coverage gap for the area and there are no viable buildings in the
area.
3. Three nearby streetlights were identified and investigated by the Applicant as possible
alternate locations for the small cell facility however none of the sites were found to be
suitable alternatives due to factors such as either the existing narrow width of the
adjacent sidewalk or proximity to a residential structure. The proposed site provides
greater separation from residences and impacts to public views will be minimal. There
were no opportunities for colocation within the area.
4. The project site abuts a vacant City-owned parcel to the west with residentially zoned
properties surrounding it. The streetlight pole is located within an existing landscaped
area, which provides visual interest and distraction from the streetlight. The taller palm
trees and their trunks will help to mask the equipment shroud on top of the streetlight
pole, which is anticipated to lessen the general visibility of the proposed small cell facility
and helps to ensure visual compatibility with the surrounding neighborhood and its
residential character.
5. The existing and replacement streetlight poles are not and will not impact the view or
character of the entrance and exit point to Newport Island, as seen when crossing the
bridge. The decorative acorn-style streetlamps are situated at a lower height, will not be
impacted, and will still frame the entrance to Newport Island. The visual character and
charm of the area will be maintained and is not expected to be negatively impacted by
the project based on a visual impact analysis of project renderings.
6. Pursuant to Subsection 21.49.050(B) of the NBMC, the Project has been reviewed for
compliance with Section 21.30.100 (Scenic and Visual Quality Protection). While 38th
Street is considered the first public roadway paralleling the sea and the sea, the subject
location is located within the roadway and is not between the first public roadway
paralleling the sea and the sea. It further is not on a coastal bluff, canyon, beach or
public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views),
and does not contain significant natural landforms or vegetation. Although the project
site may be visible from Newport Island Park approximately 175 feet northwest, as well
as the Rive Alto canal, the replacement streetlight pole will be placed in the same
location as the existing streetlight pole. The shroud on top is not anticipated to be highly
noticeable from any vantage point at the park or on the water, especially given that there
are existing taller palm trees immediately surrounding the proposed site. These trees
will serve to mask the facility and its additional height. The project also will not be visible
from 38th Street Park, which is located approximately 175 feet southwest of the site with
two rows of residential development in between. While it may be visible from the Lake
Street Park, across 38th Street to the east, views from this park are towards the canal
looking down the Rialto, such that the project will have no negative impacts on said
views.
7. The Project involves the removal and replacement of an existing City streetlight in the
same location with the same luminaire height. It has been designed to blend with its
surroundings and, while it will be visible, the replacement streetlight is consistent with
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the size, shape, style, and design of the existing pole. No above-ground mounted
equipment is proposed, and the support equipment is proposed to be placed in
underground handholes. All transmission equipment, including remote radio units and
the raycap disconnect switch, are fully concealed within a screening shroud. There will
be no negative impacts on coastal views or coastal resources with the Project’s
implementation.
8. The proposed replacement streetlight and antenna structure will comply with the
maximum allowable height limit of 35 feet from existing finished grade.
Finding:
B. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or
shoreline of any body of water located within the coastal zone.
Facts in Support of Finding:
1. As discussed in Fact in Support of Finding A.6, SLC0902 is not located between the
nearest public road paralleling the sea or shoreline. The Project site is within an existing
developed landscape area on 38th Street near Lake Avenue and the Newport Island
Bridge. All equipment will be either concealed within the replacement pole or vaulted
below grade. There will be no changes or obstructions to the pedestrian right-of-way
and access will be unaffected. As such, the project will not affect the public’s ability to
gain access to, use, and/or view the coast and nearby recreational facilities.
2. The Project will allow the installation of a small cell facility that complies with all
applicable Local Coastal Program (“LCP”) development standards and maintains
development attributes consistent with the existing and anticipated future surrounding
neighborhood pattern of development. Therefore, the Project does not have the potential
to degrade public views within the Coastal Zone.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The City’s Planning Commission hereby finds this Project is categorically exempt from
CEQA pursuant to Sections 15302 and 15303 under Class 2 (Replacement or
Reconstruction) and Class 3 (New Construction or Conversion of Small Structures),
respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division
6, Chapter 3, because it has no potential to have a significant effect on the environment.
The exceptions to the Class 3 exemption do not apply.
2. The City’s Planning Commission hereby approves CDP No. CD2020-119, subject to the
conditions set forth in “Exhibit A,” which is attached hereto and incorporated by
reference, in addition to the minor use permit already granted via Use Permit No.
UP2019-032.
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3. This action shall become final and effective ten (10) working days following the date this
Resolution was adopted unless within such time an appeal or call for review is filed with
the Office of the City Clerk in accordance with Title 21 (Local Coastal Program
Implementation Plan) of the NBMC. Final action taken by the City may be appealed to
the Coastal Commission in compliance with Section 21.64.035 (Appeals to the Coastal
Commission) of the NBMC, California Code of Regulations Title 14, Division 5.5,
Chapter 5, Subchapter 2, Sections 13111 through 13120, and Section 30603 of the
California Public Resources Code.
PASSED, APPROVED, AND ADOPTED THIS 22ND DAY OF OCTOBER, 2020.
AYES: Ellmore, Klaustermeier, Koetting, Lowrey, Rosene, and Weigand
NOES: Kleiman
ABSTAIN:
ABSENT:
BY: _________________________
Erik Weigand, Chairman
BY: _________________________
Lauren Kleiman, Secretary
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EXHIBIT “A”
CONDITIONS OF APPROVAL
Planning Division
1. The development shall be in substantial conformance with the plans, including elevation
exhibits and visual simulations, stamped and dated with the date of this approval (except
as modified by applicable conditions of approval).
2. The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
3. The Applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this
approval.
4. The Project approved by this permit shall comply with all applicable Federal and State
rules, regulations, and standards.
5. The replacement pole shall be reconstructed in the exact location of the existing
streetlight pole.
6. The reconstructed streetlight pole design shall be consistent with the size (including
diameter), shape, style, and design of the existing streetlight pole to the greatest extent
feasible, including the attached light arm and luminaire. All mounted equipment shall be
painted to match the color and style of the replacement streetlight pole.
7. All accessory support equipment of this Project shall be installed underground.
8. All electrical and antenna wiring shall be fully encased within the reconstructed
streetlight pole.
9. The Project approved by the use permit shall comply with any easements, covenants,
conditions, or restrictions on the underlying City-trust property upon which the Project is
located.
10. Anything not specifically approved by this permit is not permitted and must be addressed
in a separate and subsequent review.
11. Prior to building permit final, a Height Certification Inspection shall be required prior to
final of building permits. The small cell facility and base streetlight pole approved by this
permit shall not exceed a total of 27 feet, 6 inches in height from existing grade. The top
of the new luminaire shall not exceed a total of 21 feet in height from existing grade and
shall match the height and shape of the existing luminaire.
12. Prior to building permit issuance, all contractors and subcontractors shall have a valid
City of Newport Beach business license.
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13. The Applicant shall continually maintain the wireless telecom facility so that it retains its
original appearance at the time the building permit is finaled by the City of Newport
Beach.
14. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless
telecom facility, including the small cell facility and below-grade equipment areas, and
make all necessary repairs. The Community Development Director may require
additional inspections and/or maintenance activities at his/her discretion.
15. The Applicant shall not prevent the City of Newport Beach from having adequate
spectrum capacity on the City's 800 MHz radio frequencies at any time.
16. The Project shall transmit at the approved frequency ranges established by the FCC.
The Applicant shall inform the City in writing of any proposed changes to the frequency
range in order to prevent interference with the City's Public Safety radio equipment.
17. The Project shall at no time interfere with the frequencies used by the City of Newport
Beach for public safety. “Comprehensive advanced planning and frequency
coordination” engineering measures shall prevent interference, especially in the choice
of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices
Guide" published by the Association of Public-Safety Communications Officials-
International, Inc. ("APCO"), and as endorsed by the FCC.
18. Should interference with the City's Public Safety radio equipment occur, use of the
telecom facility authorized by this permit may be suspended until the radio frequency
interference is corrected and verification of the compliance is reported.
19. The Applicant shall provide a "single point of contact" for the carrier in its Engineering
and Maintenance Departments that is monitored 24 hours per day to ensure continuity
on all interference issues, and to which interference problems may be reported. The
name, telephone number, fax number, and email address of that person shall be
provided to the Community Development Department and Newport Beach Police
Department's Support Services Commander prior to activation of the facility. If the point
of contact changes, the City shall be immediately alerted and updated.
20. No advertising signage or identifying logos shall be displayed on the Project except for
small identification, address, warning, and similar information plates. A detail of the
information plates depicting the language on the plate shall be included in the plans
submitted for issuance of building permits.
21. Appropriate information warning signs or plates shall be posted on the base streetlight
pole of the transmitting antenna. In addition, contact information (e.g., a telephone
number) shall be provided on the warning signs or plates. The location of the information
warning signs or plates shall be depicted on the plans submitted for construction permits.
Signage required by State or federal regulations shall be allowed in its smallest
permissible size.
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22. Prior to the final of building permits, the Applicant shall schedule an evening inspection
by the Code Enforcement Division to confirm compliance with lighting. The telecom
facility shall be lighted to the extent deemed necessary by the Newport Beach Police
and Utilities Departments for security lighting and consistency with other streetlights in
the area.
23. The Applicant shall maintain the Project in a manner consistent with this approval.
24. The Applicant shall ensure that its Project complies with the most current regulatory,
operations standards, and radio frequency emissions standards adopted by the FCC.
The Applicant shall be responsible for obtaining and maintaining the most current
information from the FCC regarding allowable radio frequency emissions and all other
applicable regulations and standards. This information shall be made available by the
Applicant upon request of the Community Development Director.
25. The Project shall comply with all applicable provisions of U.S. Code Title 47
(Telecommunications) rules and regulations, including those related to FCC Radio
Frequency safety.
26. Prior to final of building permits, the Applicant shall schedule an inspection by the
Planning Division to ensure materials and colors match existing architecture as
illustrated in the approved photographic simulations and in conformance with NBMC
Section 21.49.050.
27. Any operator who intends to abandon or discontinue use of a telecom facility must notify
the Planning Division by certified mail no less than thirty (30) days prior to such action.
The operator shall have ninety (90) days from the date of abandonment or
discontinuance to reactivate use of the facility or remove the telecom facility and restore
the site.
28. The City reserves the right and jurisdiction to review and modify any permit approved
pursuant to NBMC Chapter 21.49, including the conditions of approval, based on
changed circumstances. The operator shall notify the Planning Division of any proposal
to change the height or size of the facility; increase the size, shape, or number of
antennas; change the facility's color or materials or location on the site; or increase the
signal output above the maximum permissible exposure ("MPE") limits imposed by the
radio frequency emissions guidelines of the FCC. Any changed circumstance shall
require the operator to apply for a review of the modification, and possible amendment
to the use permit, prior to implementing any change.
29. Costal Development Permit No. CD2020-119 shall expire unless exercised within 24
months from the date of approval as specified in Section 21.54.060 (Time Limits and
Extensions) of the NBMC unless an extension is otherwise granted.
30. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts
hours of noise-generating construction activities that produce noise to between the
hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction
activities are not allowed on Saturdays, Sundays or holidays.
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31. This approval may be modified or revoked by the Planning Commission if determined
that the proposed uses or conditions under which it is being operated or maintained is
detrimental to the public health, welfare or materially injurious to property or
improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
32. A copy of the Resolution, including conditions of approval Exhibit “A,” and approved
drawings from Southern California Edison (SCE) for the power supply and design, shall
be incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
33. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA).
In compliance with the MBTA, grading, brush removal, building demolition, tree
trimming, and similar construction activities shall occur between August 16 and January
31, outside of the peak nesting period. If such activities must occur inside the peak
nesting season from February 1 to August 15, compliance with the following is required
to prevent the taking of Native Birds pursuant to MBTA:
A. The construction area shall be inspected for active nests. If birds are observed flying
from a nest or sitting on a nest, it can be assumed that the nest is active. Construction
activity within 300 feet of an active nest shall be delayed until the nest is no longer
active. Continue to observe the nest until the chicks have left the nest and activity is no
longer observed. When the nest is no longer active, construction activity can continue
in the nest area.
B. It is a violation of state and federal law to kill or harm a native bird. To ensure
compliance, consider hiring a biologist to assist with the survey for nesting birds, and
to determine when it is safe to commence construction activities. If an active nest is
found, one or two short follow-up surveys will be necessary to check on the nest and
determine when the nest is no longer active.
34. The Applicant shall promptly notify the City if the landscaped parkway of the subject
streetlight pole is negatively affected or otherwise damaged by Project implementation.
35. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers,
employees, and agents from and against any and all claims, demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities,
costs and expenses (including without limitation, attorney’s fees, disbursements and
court costs) of every kind and nature whatsoever which may arise from or in any manner
relate (directly or indirectly) to City’s approval of AT&T Small Cell SLC4653, including,
but not limited to, Coastal Development Permit No. CD2020-118 (PA2019-115). This
indemnification shall include, but not be limited to, damages awarded against the City,
if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such
claim, action, causes of action, suit or proceeding whether incurred by Applicant, City,
and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify
the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing
the indemnification provisions set forth in this condition. The Applicant shall pay to the
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City upon demand any amount owed to the City pursuant to the indemnification
requirements prescribed in this condition.
Public Works Department
36. Prior to the issuance of a building permit, an encroachment permit shall be required.
37. Prior to the issuance of a building permit, traffic control plans illustrating compliance with
the 2016 WATCHBook requirements shall be reviewed and approved by the Public
Works Department before their implementation. Large construction vehicles shall not be
permitted to travel narrow streets as determined by the Public Works Department.
Disruption caused by construction work along roadways and by movement of
construction vehicles shall be minimized by proper use of traffic control equipment and
flagman.
Additional Conditions
38. No demolition or construction materials, equipment debris, or waste, shall be placed or
stored in a location that would enter sensitive habitat, receiving waters, or a storm drain
or result in impacts to environmentally sensitive habitat areas, streams, canals, the
beach, wetlands or their buffers.
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