HomeMy WebLinkAbout2020-76 - Upholding the Decision of the Planning Commission Approving Minor Use Permit No. UP2019-030 and Coastal Development Permit No. CD2020-052 for a Small Cell Facility Located Within the Public Right- Of-Way on City Streetlight Number SLC0796, at thRESOLUTION NO. 2020-76
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, UPHOLDING THE
DECISION OF THE PLANNING COMMISSION APPROVING
MINOR USE PERMIT NO. UP2019-030 AND COASTAL
DEVELOPMENT PERMIT NO. CD2020-052 FOR A SMALL
CELL FACILITY LOCATED WITHIN THE PUBLIC RIGHT-
OF-WAY ON CITY STREETLIGHT NUMBER SLC0796, AT
THE NORTHWESTERN CORNER OF BALBOA
BOULEVARD AND 30TH STREET (PA2019-111)
WHEREAS, an application was filed by New Cingular Wireless, LLC ("Applicant"),
with respect to City of Newport Beach ("City") Streetlight Number SLC0796 ("SLC0796"),
located within the public right-of-way, at the northwestern corner of Balboa Boulevard and
30th Street, requesting approval of a minor use permit;
WHEREAS, the Applicant has applied for a minor use permit and coastal
development permit for 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 Balboa Boulevard 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 equipment shroud, with the equipment being fixed to the top of the replaced
streetlight pole for a maximum height of 34 feet, 9 inches; and (3) establishment of new
below -grade support equipment adjacent to the streetlight (the "Project");
WHEREAS, since the SLC0796 streetlight 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");
WHEREAS, 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;
WHEREAS, 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;
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WHEREAS, the Order also limited the City's rights as a property owner, restricting
the type and amount of fees that can be collected for private use of public property such
that City's review and approval is primarily limited to reasonable aesthetic requirements,
environmental concerns, and land use compatibility;
WHEREAS, a public hearing was held on April 16, 2020, in the Community Room
located at 100 Civic Center Drive, Newport Beach, California. 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"), Chapter 20.62 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;
WHEREAS, the Zoning Administrator adopted Resolution No. ZA2020-030
approving Minor Use Permit No. UP2019-030;
WHEREAS, on April 28, 2020, attorney Mark Pollock filed an appeal of the Zoning
Administrator's decision primarily citing concerns with the City's Master License
Agreement and the Applicant's authority to file for this application;
WHEREAS, the Project was scheduled for a de novo public hearing by the
Planning Commission for June 4, 2020, but was continued from that agenda to allow staff
additional time to review the Project.
WHEREAS, the Project is located within the Coastal Zone. Subsection
21.49.020(B) (Permit and Agreement Required) of the NBMC requires a coastal
development permit for a wireless telecommunication facility unless said facility is
exempted by Subsection 21.49.020(C) (Exempt Facilities);
WHEREAS, the Project does not meet any of the prescribed exemptions;
therefore, a coastal development permit is required;
WHEREAS, upon finding that a coastal development permit is required, the
Applicant revised the request to include said permit, the Zoning Administrator deferred
action on Coastal Development Permit CD2020-052 and referred the Project to the
Planning Commission pursuant to Section 21.50.020 footnote (3) (Authority for Decisions)
for consideration and final action along with Minor Use Permit No. UP2019-030;
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WHEREAS, the Project was noticed for the Planning Commission's review. A de
novo telephonic public hearing was held by the Planning Commission on July 9, 2020, in
the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, 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 this public meeting was given in
accordance with the Ralph M. Brown Act, Chapter 20.62 and Chapter 21.62 of the NBMC.
The Planning Commission considered evidence both written and oral at this hearing;
WHEREAS, the Planning Commission adopted Resolution No. PC2020-018
approving Coastal Development Permit No. CD2020-052 and upholding the Zoning
Administrator's decision to approve Minor Use Permit No. UP2019-030;
WHEREAS, on July 15, 2020, attorney Mark Pollock filed an appeal of the
Planning Commission's decision primarily citing concerns with the City's Master License
Agreement and the Applicant's authority to file for this application;
WHEREAS, a Master License Agreement for use of City -owned streetlights for
telecommunications facilities was executed by and between the City and New Cingular
Wireless PCS, LLC, dated February 12, 2019 (Contract No. C-8584-1);
WHEREAS, New Cingular Wireless PCS, LLC is a Delaware limited liability
company that is registered to do business in the State of California, whose Manager is
AT&T Mobility Corporation;
WHEREAS, AT&T Mobility Corporation recorded a Fictitious Business Name
Statement to do business as AT&T Mobility on November 21, 2016, as Instrument No.
20166459312 in the Official Records of Orange County, California;
WHEREAS, the City holds sufficient documentation showing the Licensee under
the MLA is the same entity represented as the Applicant under this permit application;
WHEREAS, the City will enforce the other terms of the Master License Agreement;
and
WHEREAS, a de novo telephonic public hearing was held by the City Council on
August 25, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport
Beach, California, 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 this public meeting
was given in accordance with the Ralph M. Brown Act, Chapter 20.62 and Chapter 21.62
of the NBMC. The City Council considered evidence both written and oral at this public
hearing.
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NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council does hereby uphold the Planning Commission's
approval of Minor Use Permit No. UP2019-030 and Coastal Development Permit No.
CD2020-052 subject to the conditions of approval attached as Exhibit "A," and
incorporated herein by reference. The City Council's decision is made in accordance with
the following subsections and is supported by the facts to support each beneath them:
Minor Use Permit
In accordance with Subsection 20.52.020(F) (Conditional Use Permits and Minor Use
Permits) of the NBMC, the following findings and facts in support of such findings are set
forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1. SLC0796 is designated as Public Right -of -Way ("ROW"), which is property held in
trust by the City, and allows for the construction and maintenance of public roads,
crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline,
water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23
(Siting of Wireless Telecommunications Equipment on City -Owned Property)
governs procedures and locations for siting wireless telecommunications
equipment in the ROW. Streetlights are eligible for telecom use, subject to
entitlements (such as this minor use permit request), yearly rent, and a license
agreement.
2. The City of Newport Beach General Plan ("General Plan") Natural Resources Goal
NR 21 recommends the "minimized visual impacts of signs and utilities." The
proposed design is consistent with NR 21 by introducing no new vertical
obstructions in the ROW, employing stealth elements like colorization (painting to
match the streetlight pole), and installing the associated equipment below grade.
Conditions of Approval No. 20 and 21 prohibit advertising signage or identifying
logos on the small cell facility except for small identification, address, warning, and
similar information plates. Signage required by State or Federal regulations shall
be allowed in its smallest permissible size.
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3. General Plan Land Use Policy LU 6.1.3 promotes "architecture and planning that
complements adjoining uses." The proposed design adjoins residential uses and
aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing
streetlight pole to decrease potential disruption of the visual environment. Adverse
impact to circulation, aesthetics, sounds, or odor are not anticipated from project
implementation.
4. General Plan Land Use Policy LU 4 calls for the "management of growth and
change to protect and enhance the livability of neighborhoods and achieve distinct
and economically vital business and employment districts, which are correlated
with supporting infrastructure and public services and sustain Newport Beach's
natural setting." The Project upholds the intent of LU 4 by providing infrastructure
to add system capacity for service gaps that may occur for residents and
businesses of the area in regular and high demand periods. It also benefits the
community by improving the existing coverage and capacity to increase the voice
and data system already in use by its customers. The small cell facility is designed
to adapt and accept future technologies, such as 5G, and will help meet local
demand and sustain the livability of the area.
5. SLC0796 is not located within a specific plan area
Finding:
B. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
1. See Fact in Support of Finding A.1.
2. Wireless telecommunication facilities are regulated by Chapter 20.49 (Wireless
Telecommunication Facilities) of the NBMC. To site small cell equipment in the
ROW assigns the project a Class 3 specification (Public Right -of -Way Installations)
and requires the Applicant to obtain a minor use permit from the Zoning
Administrator pursuant to Section 20.49.060 (Permit Review Procedures) of the
NBMC. In this case, the Zoning Administrator's approval was appealed; therefore,
the Planning Commission is the review authority.
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3. Section 20.49.040(A) (Preferred Locations) of the NBMC, prioritizes telecom
facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of
a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2
(Visible Antennas) and Class 3 (Public Right -of -Way); and (4) Class 4
(Freestanding Structure). Although lower on the listing of priority facilities, the
proposed facility consists of one (1) small cell facility that is designed to not visually
dominate the surrounding area and instead to blend into the existing block.
4. Section 20.49.050 (General Development and Design Standards) of the NBMC,
requires projects to be visually compatible with surrounding structures. In
reviewing this application, the review authority shall consider the proposed facility's
use of color blending, equipment screening, and the limited size of the equipment
designed consistently with the aforementioned criteria. All telecommunications
equipment on top of the streetlight pole would be concealed within a painted -to -
match 12 -inch diameter shroud. The Project would rely on likeness with the
streetlight pole through style, color, and material to help disguise its presence.
Engineering of the replacement streetlight pole accommodates and withstands the
weight of the small cell equipment and has ability to display a future City banner,
if needed. Electrical and wiring components of the telecommunications equipment
are designed to be fully contained within the new streetlight pole. The overall height
of 34 feet, 9 inches from finished grade to the top of the proposed facility complies
with the maximum allowed. Equipment not contained within the shroud on the
streetlight pole would be out of sight, located below the ground in the adjacent
ROW. Condition of Approval No. 32 requires approved design drawings from
Southern California Edison ("SCE") of the power supply to the small cell facility
before construction of the facility is to commence.
5. Existing residential properties contiguous to the Project are in the R-2 (Two -Unit
Residential) Zoning District. R -2 -zoned sites allow for structures up to 24 feet for
flat roof elements and 29 feet to the ridge of a sloped roof. The height of the existing
streetlight SLC0796 sits just above the maximum allowable height for residential
structures. The streetlight is separated from the residences by a large 20 -foot
vegetated parkway that is landscaped with taller palm trees. Given this buffer
between the streetlight and the residences, SLC0796 is softened and screened by
the landscaping from the residential neighborhood beyond. Furthermore, keeping
the luminaire the same height as the existing streetlight lessens visual obtrusion
from the proposed small cell facility with the line of the existing development.
6. Submitted materials from the Applicant demonstrate the proposal would conform
with Federal Communications Commission ("FCC") Rules and Regulations
regarding safety and radio frequency emissions.
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7. Section 20.49.080 (Agreement for Use of City -Owned or City -Held Trust Property)
of the NBMC requires a license agreement for all telecom facilities located on City -
owned or City -held trust property. A Master License Agreement for use of City -
owned streetlights for telecommunications facilities was executed by and between
the City and New Cingular Wireless PCS, LLC, dated February 12, 2019 (Contract
No. C-8584-1). New Cingular Wireless PCS, LLC (Licensee) is a Delaware limited
liability company that is registered to do business in the State of California, and
whose Manager is AT&T Mobility Corporation. AT&T Mobility Corporation
recorded a Fictitious Business Name Statement to do business as AT&T Mobility
on November 21, 2016, as Instrument No. 20166459312 in the Official Records of
Orange County, California. The City holds sufficient documentation showing the
Licensee under the MLA is the same entity represented as the Applicant under this
permit application.
8. The Project will comply with applicable requirements of the NBMC with
construction as shown on the plans and implementation of the conditions of
approval.
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding:
1. City of Newport Beach Streetlight No. SLC0796 is located within the public right-
of-way on the northern side of Balboa Boulevard at the northwestern corner of the
30th Street intersection. It is immediately adjacent to an unusually large vegetated
parkway that is approximately 20 feet wide. Beyond the parkway to the northeast
is a block of two -unit residential development. All surrounding land uses are
residential and vary in density from two -unit residential to single -unit residential.
The only exception is a CV (Commercial Visitor Serving) zoned parcel across 30th
Street from the site, which is presently developed with a laundromat (Beach Coin
Laundry).
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2. Under the new FCC Order, wireless providers are not required to demonstrate a
significant coverage gap, a qualification previously required by local jurisdictions
in order to support an application. Pursuant to the Order, the City cannot "materially
[inhibit] the introduction of new services or the improvement of existing services."
Moreover, pursuant to Section 332(c)(7)(13)(i)(II) of U.S. Code Title 47
(Telecommunications), the City may "not regulate the placement, construction or
modification of wireless service facilities in a manner that prohibits the provision of
personal wireless services." Although not required, the Applicant produced a
coverage map for the Project. This map indicates the proposed facility would boost
the supply of capacity and coverage in the vicinity.
3. SLC0796 serves as a part of the City's existing streetlight inventory. The Applicant
proposes to: (1) remove and replace SLC0796 with a new streetlight in the same
location; (2) maintain the existing luminaire height of 29 feet, 9 inches; (3) install
telecommunications equipment for a small cell wireless facility on top of the new
streetlight pole resulting in an overall height of 34 feet, 9 inches; and (4) establish
new below -grade support equipment adjacent to the streetlight, within the public
right-of-way.
4. The replacement streetlight pole design is consistent with the size, shape, style,
and design of that existing, including the attached light arm and luminaire. For
safety and circulation of the area during construction, Condition of Approval No.
40 requires traffic control plans illustrating compliance with the 2016 WATCHbook
to be reviewed and approved by the Public Works Department prior to the issuance
of any building permit.
5. The Project is anticipated to enhance coverage and capacity for residents, visitors
and businesses in the neighborhood by providing wireless access to voice and
data transmission services. The proposed telecom facility is not expected to result
in any material changes to the character of the local community.
6. See Facts in Support of Finding B.4, B.5, and B.6.
7. The Project will be unmanned, will have no impact on the circulation system, and,
as conditioned, will not generate noise, odor, smoke, or any other adverse impacts
to adjacent land uses.
Finding:
D. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and
medical) access and public services and utilities.
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Facts in Support of Finding:
1. Adequate public and emergency vehicle access, public services, and utilities are
provided to and around the subject site and the proposed use will not change this.
2. The Project will be unmanned and will have no permanent impact on the circulation
system and adjacent land uses due to its location in the parkway, outside of
existing vehicle or pedestrian circulation areas.
3. The Public Works Department and Utilities Department have reviewed the project
proposal and do not have any concerns regarding access, public services, or
utilities provided to the existing neighborhood and surrounding area.
Finding:
E. Operation of the use at the location proposed would not be detrimental to the
harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general
welfare of persons residing or working in the neighborhood of the proposed use.
Facts in Support of Finding:
1. The Project will only require periodic maintenance and will not generate any type
of significant adverse impacts to the environment, such as noise, odor, smoke, etc.
2. The Project must and will comply with the applicable Federal and State rules,
regulations and standards thus, ensuring public health and safety.
3. See Facts in Support of Finding B.4, B.5, B.6, and B.7.
4. The Project will be effectively blended based upon the design and location with the
incorporation of the conditions of approval to the greatest extent feasible. As a
result, the proposed facility at this location is not expected to result in conditions
that are materially detrimental to nearby property owners, residents, and
businesses, nor to public health or safety.
Wireless Telecommunications Facility
In accordance with Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities)
of the NBMC, the following additional findings and facts in support of such findings are
set forth:
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Finding:
F. The proposed telecom facility is visually compatible with the surrounding
neighborhood.
Facts in Support of Finding:
1. See Facts in Support of Finding B.4, B.5, and B.6.
2. The closest residentially zoned property is located approximately 20 feet northeast
of SLC0796 and is buffered by a large 20 -foot -wide parkway area with vegetation
of varying heights. SLC0796 is located along the inland side of a well -traveled
street and will blend in with the surrounding streetscape. There are no public parks
near the Project. The Project and below -grade accessory equipment meets the
City's design parameters approved by the City's Master License Agreement, which
emphasizes stealth techniques and best practices to not be materially detrimental
to the surrounding area.
Funding:
G. The proposed telecom facility complies with height, location and design standards, as
provided for in this chapter.
Facts in Support of Finding:
1. The 34 -foot, 9 -inch tall small cell facility would comply with the maximum height
limit of 35 feet for telecom facilities installed on streetlights within the public right-
of-way.
2. See Facts in Support of Finding B in its entirety.
3. The application includes documentation indicating the need to provide and improve
coverage to the residential areas within the City. Moreover, the additional system
capacity provided by the Project will address service gaps that occur during high
demand periods, as well as service gaps that exist at all demand periods to the
surrounding area. SLC0796 will help meet coverage objectives and improve
coverage to nearby areas that are currently marginal.
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Finding:
H. An alternative site(s) located further from a residential district, public park or public
facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the
proposed site.
Facts in Support of Finding:
1. See Fact in Support of Finding C.2.
2. Five nearby streetlights were identified and investigated by the Applicant as
possible alternate locations for this small cell facility; however, all sites were found
by the applicant to be not viable.
3. Alternative Site #1 is a wooden utility pole located approximately 100 feet north of
the proposed streetlight. This pole is located immediately in front of a two -unit
residential structure that is oriented towards Balboa Boulevard within a narrower
parkway area. Installation of small cell infrastructure at this location would require
placement of a crossarm with exposed equipment on either side of the wooden
pole and would not be as aesthetically compatible as the proposed location. Most
importantly, the wooden utility pole is located within an approved underground
assessment and utility district, which will aim to eventually eliminate such above-
ground utilities in the area.
4. Alternative Site #2 at City Streetlight No. SLC0767 located approximately 160 feet
northwest of the proposed streetlight on the opposite side of Balboa Boulevard.
This alternative location is in very close proximity to overhead powerlines, which
would make additional height above the existing streetlight pole infeasible.
Furthermore, the existing streetlight is located such that accessibility is limited and
a girthier pole could not be accommodated without further constraining the
sidewalk.
5. Alternative Site #3 is a wooden utility pole located approximately 78 feet west of
the proposed streetlight. This pole is located immediately adjacent to the front patio
of an existing, single -story residence. Like Alternative Site #1, installation of small
cell infrastructure at this location would require placement of a crossarm with
exposed equipment on either side of the wooden pole and would not be as
aesthetically compatible as the proposed location. Most importantly, the wooden
utility pole is located within an approved underground assessment and utility
district, which will aim to eventually eliminate such above -ground utilities in the
area.
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6. Alternative Site #4 at City Streetlight No. SLC0768 is located at the southwest
corner of Balboa Boulevard and 30th Street approximately 100 feet from the
proposed streetlight. Like Alternative Site #2, this alternative location is in very
close proximity to overhead powerlines, which would make additional height above
the existing streetlight pole infeasible. Accessibility is also limited here and a
girthier pole cannot be accommodated without further constraining the sidewalk.
7. Alternative Site #5 at City Streetlight No. SLC0766 is located at the alleyway
between 30th Street and 29th Street, approximately 175 feet southeast of the
proposed streetlight. Like Alternative Site #2 and Alternative Site #4, accessibility
is limited at this location and a girthier pole cannot be accommodated without
further constraining the sidewalk.
Finding:
1. An alternative plan that would result in a higher preference facility class category for
the proposed facility is not available or reasonably feasible and desirable under the
circumstances.
Facts in Support of Finding:
1. See Fact in Support of Finding C.2.
2. The Applicant's analysis concluded that a more preferred location as defined by
Subsection 20.49.040(A) (Preferred Locations) of the NBMC, 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
accomplished with a traditional macro collocation or building mounted site in the
area. The abutting properties are zoned for residential use and, as such, a building
mounted "stealth" facility would not be possible.
Coastal Development Permit
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:
J. Conforms to all applicable sections of the certified Local Coastal Program.
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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. See Fact in Support of Finding 1.2.
3. The Project complies with Section 21.30.100 (Scenic and Visual Quality
Protection) of the NBMC. It is not on a coastal bluff or canyon, not adjacent to or
within the viewshed of a public view point, coastal view road, public park or 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. The
Project scope involves the removal and replacement of an existing City streetlight
in the same location with the same luminaire height. The shielded antennas will
extend above the pole by approximately 5 feet, 6 inches while the antenna shroud
will be visible from the immediate vicinity. The Project has been designed to blend
in within the existing streetscape. The replacement streetlight is consistent with 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.
4. The proposed replacement streetlight and antenna structure will comply with the
maximum allowable height limit of 35 feet from existing finished grade.
Finding:
K. 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.
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Facts in Support of Finding:
1. SLC0796 is not located between the nearest public road and the sea or shoreline;
therefore, the Project will not affect the public's ability to gain access to, use, and/or
view the coast and nearby recreational facilities. Vertical access to the beach is
provided byway of street -ends in the area, including 30th Street. Lateral access along
the beach provided on the beach itself and along the Oceanfront Boardwalk. The
equipment will be below grade and will not impact any public way.
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 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
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Section 4: The City Council finds the adoption of this resolution 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. In this case, the
Project includes the removal and replacement of an existing City streetlight pole to install
a small telecommunications wireless facility, including below -grade accessory equipment.
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 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 25th day of August, 2020. /
A. -
ATTEST: -
ATTEST:
MAN.
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment(s): Exhibit "A" Conditions of Approval
Will O'Neill
Mayor
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 the Master License
Agreement (Contract No. C-8584-1) and 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.
The small cell facility and base streetlight pole approved by this permit shall not
exceed a total of 34 feet, 9 inches in height from existing grade (maximum
elevation height of 43.57 feet above finish grade using the North American Vertical
Datum of 1988 [NAVD88]).
12. Prior to building permit issuance all contractors and subcontractors shall have a
valid City of Newport Beach business license.
13. The Applicant shall continually maintain the Project 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
Project 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 carriers 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.
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 good repair, such that it is always
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 20.49.050.
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 Chapters 20.49 and 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. Coastal Development Permit No. CD2020-052 and Minor Use Permit No. UP2019-
030 shall expire unless exercised within 24 months from the date of approval as
specified in Sections 20.54.060 and 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 a.m. and 6:30 p.m., Monday through Friday.
Noise -generating construction activities are not allowed on Saturdays, Sundays or
holidays.
31. This approval may be modified or revoked by the City Council 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 shall promptly notify the City if the landscaped parkway -of the
subject streetlight pole is negatively affected or otherwise damaged by project
implementation.
34. 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 Small
Cell on SLC0796, including, but not limited to, Minor Use Permit No. UP2019-030
and Coastal Development Permit No. CD2020-052 (PA2019-111). 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 City upon demand any
amount owed to the City pursuant to the indemnification requirements prescribed
in this condition.
Public Works Department
35. Prior to the issuance of a building permit, an encroachment permit shall be
required.
36. 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 of Approval
37. 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 Project 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.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2020-76, was duly introduced before and adopted by the City Council of said City at a regular
meeting of said Council held on the 25th day of August, 2020; and the same was so passed and adopted
by the following vote, to wit:
AYES: Mayor Pro Tem Brad Avery, Council Member Diane Dixon, Council Member Duffy
Duffield, Council Member Jeff Herdman
NAYS: None
RECUSED: Mayor Will O'Neill, Council Member Joy Brenner, Council Member Kevin Muldoon
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 26th day of August, 2020.
n
Leilani I. Brown
City Clerk
Newport Beach, California