HomeMy WebLinkAboutCC Resolution 9857 (Wireless Communications Facilities)RESOLUTION NO. 9857
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL DENYING THE
APPEAL OF THE PLANNING COMMISSION'S APPROVAL OF A USE
PERMIT AMENDMENT TO ALLOW INSTALLATION OF WIRELESS
COMMUNICATIONS FACILITIES
1 Wellbrock Heights, AP175-606-56
WHEREAS, the proposed project consists of an Environmental and Design
Review Permit application for wireless communication facilities and a Use
Permit Amendment to allow the installation of the wireless communication
facilities; and,
WHEREAS, the project was reviewed in accordance with the California
Environmental Quality Act (CEQA) and was found to be categorically exempt
under Section 15303, Class 3; and,
WHEREAS, on April 15, 1997, the San Rafael Planning Commission held a duly
noticed Public Hearing on the proposed Use Permit Amendment, accepting
public testimony and the written report of the Planning Department staff and
voted to approve said Use Permit Amendment; and,
WHEREAS, on February 11, 1997, the Planning Commission had previously held
a duly noticed Public Hearing on an Environmental and Design Review Permit
for telecommunication facilities (panel antennas and ground equipment) at the 1
Wellbrock Heights address, accepted public testimony and the written report of
the Planning Department staff, and voted to approve said Environmental and
Design Review Permit; and,
WHEREAS, on February 15,1997, the Neighbors and Concerned Citizens In the
Wellbrock Heights Area appealed the Planning Commission's approval of the
I R9f!'N",C,l q1%s-1
Environmental and Design Review permit based on the following reasons
quoted and listed as Points 1 through 3 below:
Point 1:
The "site use restriction" set forth in the 1981 use permit for the Church
transcends any provisions of the Telecommunication Act.
Point 2:
The neighbors stated that they were not given an opportunity to present their
concerns fully at the Planning Commission hearing of February 11, 1997.
Point 3:
The neighbors requested a delay on the final vote until the City publishes written
reference to the Telecommunication Acts' provisions cited by the City Attorney
as reasons for approval of a project that so many of the neighbors feel so strongly
about.
WHEREAS, on April 15,1997, the San Rafael Planning Commission held a duly
noticed Public Hearing on the proposed use permit amendment to allow the
communication facilities, accepted public testimony and the written report of the
Planning Department staff, and voted to approve the use permit amendment;
and,
WHEREAS, on April 19,1997, the Neighbors and Concerned Citizens in the
Wellbrock Heights Area appealed the Planning Commission's approval of the
use permit amendment, also based on the following reasons quoted and listed as
Points 4 through 6 below:
Point 4:
The neighbors stated that the language of the Telecommunications Act of 1996
prohibits amendments to land use restrictions to allow telecommunications
facilities
Point 5:
The Planning Commission should have denied the Aldersgate Church request
for a use permit amendment based on the "potentially hazardous" nature of the
proposed facility.
Point 6:
The Planning Commission, in approving the use permit amendment, had failed
to provide the appellants with a reference to the provisions of the Act allowing
the City to "amend" the Act.
WHEREAS, the City Council considered the appeal at a duly noticed public
hearing on May 19, 1997 and received public testimony on this item from all
interested parties; and,
WHEREAS, the City Council determined that the appeal was without merit.
NOW THEREFORE BE IT RESOLVED, that the San Rafael City Council hereby
makes the following determinations and findings relating to the Points of the
appeal:
Point #1- The "site use restriction" set forth in the 1981 use permit for the
Church transcends any provisions of the Telecommunication Act.
That portion of the appeal relating to Point 1 is denied. The City Council finds
that the original use permit for the Church (UP81-57) intended to prevent uses
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which would add to noise and traffic impacts in the neighborhood; which the
proposed PCS facilities will not create. Further, both the Design Review Board
(DRB) and the Planning Commission correctly found that the proposed PCS Site
conforms with the design criteria set forth in the City's Zoning Ordinance
because the design is properly integrated with the existing structures, and there
is minimal visual/ aesthetic impact.
Point #2 - The neighbors stated that they were not given an opportunity to
present their concerns fully at the Planning Commission hearing of February 11,
1997.
That portion of the appeal relating to Point 2 is denied. The City Council finds
that the February 11, 1997 Planning Commission meeting was duly noticed
according to State law. In addition, although not required, a courtesy notice was
provided for the January 7,1997 Design Review Board meeting. Members of the
public, including Appellants, were present and spoke at both of the above -
referenced hearings.
Point #3 - The neighbors requested a delay on the final vote until the City
publishes a written reference to the Telecommunication Act's provisions cited by
the City Attorney as reasons for approval of a project that so many of the
neighbors feel so strongly about.
That portion of the appeal relating to Point 3 is denied. The City Council finds
that local government authorities are preempted from regulating the location of
such facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the FCC's regulations
concerning such emissions. The proposed facility will fully comply with the
regulations. Additionally, the subject PCS site was approved because the
location is appropriate, the design presents minimal visual impacts to the
community, it is consistent with the City's design and location criteria for PCS
sites and presents significantly less impact than would a two -site alternative.
Point #4 - The language of the Telecommunications Act of 1996 prohibits
amendments to land use restrictions to allow telecommunications facilities.
That portion of the appeal relating to Point 4 is denied. The City Council finds
that this interpretation is contrary to the clear meaning of the Act. The City's
land use authority, preserved by the Act, includes the City's authority to amend
existing use permits, as per San Rafael Municipal Code Section 14.22.080. The
Council finds, and concurs that the Planning Commission considered the
Aldersgate Church use permit amendment in accordance with existing City
regulations, and found that all the requirements for approving an amendment
had been met.
Point #5 - The Planning Commission should have denied the Aldersgate Church
request based upon the "potentially hazardous" nature of the proposed facility.
The portion of the appeal relating to Point 5 is denied. The City Council finds
that both February 11, 1997 and the April 15, 1997 staff reports to the Planning
Commission have references and attachments citing an engineer's opinion that
the radio frequency emission associated with the proposed facilities would
comply with the Federal Communication Commission's regulations as required
by the Act, and there was no contrary evidence submitted to the Planning
Commission. Accordingly, the Planning Commission was precluded by the Act
from denying the use permit amendment on the basis of these radio frequency
emission. Furthermore, the Council finds that, based upon incontrovertible,
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expert information presented by the applicants at the hearing, the proposed
facilities would comply with FCC regulations
Point #6 - The Planning Commission, in approving the use permit amendment,
had failed to provide the appellants with a reference to the provisions of the Act
allowing the City to "amend" the Act.
That portion of the appeal relating to Point 6 is denied. The City Council finds
that the Planning Commission's approval of the use permit amendment does not
in any way amount to an amendment of the Act, but instead follows and is
consistent with the City's own land use regulations which remain unchanged by
the Act.
BE IT FURTHER RESOLVED, that the City Council finds based upon
competent and incontrovertible expert testimony presented at the hearing, that
the placement of the facilities at the Aldersgate Church will have no adverse
effect on the value of properties in the area.
BE IT FURTHER RESOLVED, that the City Council denies the appeal and readopts the
following findings of the Planning Commission:
1. As conditioned, the proposed PCS communications towers are in
accord with the objectives of the General Plan and the purposes of
the zoning ordinance as stated Section 14.01.030, in that it fosters
a "workable relation among land uses", and strengthens "the
economic base" of the City by facilitating new
telecommunications facilities without any of the negative visual
impacts of traditional telecommunications services such as
telephone poles and wires. The proposed use is in accord with the
purposes of residential districts as stated in zoning ordinance
Section 14.04.010, in that it provides "opportunities for churches.
.. and other uses which are considered to be compatible and
desirable land uses within residential neighborhoods". The
proposed use will serve the growing demand for wireless
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telecommunications in the residential neighborhoods around the
Alersgate church, and will provide obvious financial benefits
which will help to sustain the functions of the Aldersgate Church
at its present location.
2. The modification of the 1981 use permit will not be detrimental to
the public health, safety, comfort or general welfare of persons in
the neighborhood nor will it be injurious to property and
improvements at the site, in the neighborhood or to the City. The
1981 Planning Commission minutes of UP81-57 indicate that the
"non -church related purposes" restriction was intended to prevent
adverse noise and traffic impacts to the neighborhood, none of
which will be involved with the proposed use. Additionally, the
proposed use will not have any more adverse visual or aesthetic
impacts than the miniaturized satellite dishes which are permitted
in residential neighborhoods without any land use restrictions, and
which the Church could install as an accessory to its own church
functions. The proposed modification to the 1981 use permit does
not violate any of the provisions of the zoning ordinance and the
standards for the residential zone in which it is located.
BE IT FURTHER RESOLVED that in order to document the extent of any noise
and traffic impacts of the wireless antenna facilities approved at this site, that
applicant shall submit a biannual written report for a period of one year to the
Planning Department documenting the frequency and nature of trips to the site
in connection with maintenance or operation of the wireless antenna facilities,
which reports shall be made available for inspection by the public.
BE IT FURTHER RESOLVED that the approved use permit amendment and
environmental design review permit shall not entitle the applicant to permit the
co -location of any additional antenna facilities at this site without further
environmental and design review permit approval to assure no adverse noise,
traffic, visual or other environmental impacts.
BE IT FURTHER RESOLVED that the use permit amendment and
environmental and design review permit approval of the wireless antenna
facilities for this site shall be subject to review and modification in the event that
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future evidence demonstrates that the operation of the facilities presents a health
hazard which the City has the power to regulate under its police powers.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the Council of said City on Monday, the Second day of June, 1997, by the
following vote, to wit:
AYES: COUNCILMEMBERS : Heller, Miller and Mayor Boro
NOES: COUNCILMEMBERS : Phillips
ABSENT: COUNCILMEMBERS: Cohen
JEANNE M. LEONCINI, City Clerk