HomeMy WebLinkAboutCC Resolution 13462 (Wireless Antenna Facility Node Appeal)RESOLUTION 13462
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DENYING AN
APPEAL (AP12-006) OF PLANNING COMMISSION RESOLUTION NO 12-17 GRANTING
APPROVAL FOR PLACEMENT OF A WIRELESS ANTENNA FACILITY NODE (LUC-003A)
WITHIN PUBLIC RIGHT-OF-WAY ADJACENT TO 739 PENNY ROYAL LANE.
WHEREAS, on November 16, 2010 ExteNet Systems, LLC submitted a pre -application review
(PA10-004) for installation of telecommunications equipment onto existing PG&E utility poles in the
public right-of-way; and
WHEREAS, on March 25, 2011, ExteNet Systems, LLC (a telephone corporation) filed formal
zoning applications (UP 11-20, ED 11-24 & EX 12-002) for installation of five omni -antenna and related
wireless telephone equipment infrastructure placed on existing utility poles in public rights-of-way
throughout the Lucas Valley area of San Rafael, in PD and R residential zoning districts within the Santa
Margarita, Terra Linda and Mont Marin -San Rafael Park neighborhood areas (within Manuel T. Freitas,
Las Gallinas Ave., Penny Royal Lane and Del Ganado Road rights-of-way); and
WHEREAS, pursuant to the pre -application review (PA10-004)conducted for the project, at the
request of the applicant, it was confirmed and established that ExteNet Systems has: i) obtained a
Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission
(PUC), which is required for a telephone corporation to utilize public rights of way pursuant to PUC
Section 7901, ii) demonstrated that they are a member of the Joint Poles Authority, established to assure
joint use and maintenance of utility poles, and iii) understood the City's position that the project would
remain subject to the City of San Rafael Wireless Communications Facilities provisions of Municipal
Code Section 14.16.360; and
WHEREAS, on June 19 and August 7, 2012 the City of San Rafael Design Review Board
reviewed the project. On August 7, 2012, the DRB by a vote of 4-0-2 (with Chair Kent and Member
Lentini absent) recommended approval of the project to the Planning Commission, with certain
conditions, including: 1) their support of project without inclusion of an extended skirt at the base of the
antenna; 2) alternate placement/location of underground antennae on Manuel Freitas instead of Hibiscus
Way; and 3) underground placement of all cabinets at all five locations; and
WHEREAS, upon review of the application, the project has been determined to be exempt from the
requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15301(b) and
Section 15303(d) of the CEQA Guidelines which exempts utility extensions and utility improvements,
and
WHEREAS, on September 25, 2012, the San Rafael Planning Commission held a duly noticed
public hearing on the project zoning entitlements, accepting all oral and written public testimony and the
written report of the Community Development Department staff; and
WHEREAS, on September 25, 2012 the City of San Rafael Planning Commission by Resolution
No. 12-17 approved a Master Use Permit (UPI 1-20), Master Environmental and Design Review Permit
(ED 11-24) and Exception for Height (EX 12-002), pursuant to the applicable provisions of San Rafael
Municipal Code Section 14.16.360 (Wireless communications facilities) for the ExteNet Distributed
Antenna System wireless antenna facility infrastructure project consisting of initial installation of 5
wireless antenna nodes placed on existing utility poles locations within City public rights of way; and
WHEREAS, pursuant to City of San Rafael Municipal Code Chapter 14.28, on October 2, 2012,
David J. Carey, filed a timely appeal (AP12-006) of the Planning Commission action to include antenna
node LUC-003A as part of its action granting the master zoning entitlements for the ExteNet DAS project;
and;
WHEREAS, on November 2, 2012, at least 15 days before the scheduled hearing date on the
subject appeal, the City of San Rafael Planning Division and City Clerk caused notice of the appeal to be
mailed to residents within at least 300 feet of the subject project location and interested parties, posted
notice on-site and published notice in the Marin Independent Journal, in compliance with the City of San
Rafael Municipal Code Section 14.29 (Public Notice); and;
WHEREAS, on November 19, 2012, the City Council conducted a duly noticed public hearing to
consider the appeal, accepting staff's written and verbal report and all public testimony.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby denies the Appeal
(AP12-006)and upholds the September 25, 2012 decision of the Planning Commission action granting a
Master Use Permit (UPI 1-020), a Master Environmental and Design Review Permit (ED 11-024) and
Exception (EX12-002) for the ExteNet Systems, LLC in its entirety approving a wireless infrastructure
distributed antenna system network within public rights of way consisting of five initial antenna nodes
including node LUC-003A at 739 Penny Royal Lane, which is the subject of this appeal. The City
Council finds and determines that the points of the appeal cannot be supported for the following reasons:
Appeal Point #1. The appellant strongly objects to the installation clue to a fear of health risks to
his family from transmission of cellular signals. The antenna transmitter would be located less
than one hundred feet from their patio area and gardens.
Response and Finding: The point of appeal that the appellant strongly objects to the installation due
to a fear of health risks to his family from transmission of cellular signals, that antenna transmitter
would be located less than one hundred feet from their patio area and gardens is not sufficient to
uphold the appeal.
As noted in the staff report provided to the City Council, a detailed analysis of the project has been
conducted by staff, the Design Review Board and Planning Commission that resulted in adoption of
findings and conditions to support the project by Planning Commission (PC) Resolution No. 12-17.
The criteria for approval of the project have been deemed satisfied based on the analysis found on
pages 6 through 11 of staffs report to the Planning Commission and findings in PC Resolution No.
12-17. Based on the federal Telecommunications Act, a local government is precluded from denying
any wireless facility based on perceived health risks, where the facility has been found to comply
with the Federal Communications Commission (FCC) regulations and within the limits established
by the FCC for Radio Frequency (RF) emissions. A study was presented by the applicant's engineer
confirming that any new RF emissions would be at 5% of the FCC's established threshold and limit.
The City of San Rafael then conducted a third party peer review (Jonathan Framer and Associates)
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of the RF emissions study and confirmed the findings of the applicant's study that the equipment
would be in compliance with FCC mandates; as discussed on PC Report pages 5-6 and 9-10, and PC
Exhibit 4. Given that the proposed facility would operate within the established FCC standards, the
City does not have the ability to preclude this facility based solely on perceived health impacts.
Appeal Point #2. The Design Review Board had requested that the two node locations at Hibiscus
and the subject site at Penny Royal Lane be relocated e.g., to less visible locations outside of
immediate residential neighborhoods]. The site at Hibiscus Way was relocated to median location
along Freitas Parkway, while the one on Penny Royal was left. This would be the only house with
a cell phone tower adjacent to a backyard. This is a complete violation. This installation should
be relocated to medians of divided secondary roads in a similar manner as the other 4 nodes
proposed within the City.
Response and Finding: The point of the appeal that the Design Review Board had requested that the
two node locations at Hibiscus and the subject site at Penny Royal Lane be relocated [e.g., to less
visible locations outside of immediate residential neighborhoods], that the site at Hibiscus Way was
relocated to median location along Freitas Parkway, while the one on Penny Royal was left, that this
would be the only house with a cell phone tower adjacent to a backyard, that this is a complete
violation and that this installation should be relocated to medians of divided secondary roads in a
similar manner as the other 4 nodes proposed within the City does not provide sufficient grounds to
uphold the appeal.
As discussed in the staff report to the City Council, staff had suggested relocating or undergrounding
the subject node locations on Hibiscus and Penny Royal Lane (subject site), which were immediately
adjacent to residential yard areas and lacked any buffer between the utility poles and adjacent lots.
This recommendation was made due to the visual implications of the equipment associated with
these facilities. As noted on pages 10 and 11 of the September 25, 2012 Planning Commission staff
report, the Design Review Board recommended placing equipment associated with the two nodes
located adjacent to residential yards below ground. In response, ExteNet placed Penny Royal Lane
equipment underground and relocated the Hibiscus Way site to Freitas Parkway arterial road
frontage. The Board supported these revisions as they complied with its prior direction. The
Planning Commission also supported the design concepts recommended by the Board, with further
direction provided to require all equipment cabinets be placed below grade. There was no further
direction given to relocate all proposed poles to median/arterial collector street locations in order to
avoid placement directly adjacent to a residential side yard location. Based on the determinations
made by the Board and Planning Commission, staff would not recommend support of the appeal on
this point.
Appeal Point #3. The telephone poles will have a sign posted with a health warning that will have
an impact on property values.
Response and Finding: The point of appeal that the telephone poles will have a sign posted with a
health warning that will have an impact on property values does not provide sufficient grounds to
uphold the appeal. As noted in staffs report to the City Council, the warning signs consist of an 8"
by 10" standard sign placed on the utility pole 6" below the antenna on the pole -top. These are
required to be posted on the poles for notification to utility workers and are not intended to be visible
at street level; which is described on page 5 of the Peer Review Report prepared for the subject site
LUC-3A. attached as CC Report Exhibit 5-4. The findings required for approval or denial of the
zoning entitlement does not require analysis of any potential affects on property values, which is
difficult to determine and generally considered to be outside of the City's scope of review.
Appeal Point 94. There is plenty of cellphone coverage from multiple carriers in this immediate
area. There is no need for a cellphone transmission tower on Penny Royal Lane. It is of no
benefit to the San Rafael citizens living here.
Response and Findinv-: The point of appeal that there is plenty of cell phone coverage from multiple
carriers in this immediate area, that there is no need for a cell phone transmission tower on Penny
Royal Lane, and that it is of no benefit to the San Rafael citizens living here does not provide
sufficient grounds to uphold the appeal. As discussed in the report to the City Council, the State
Public Utilities Commission has regulatory authority in detennining the need for such equipment.
The City purview in this case is limited to design compatibility and aesthetic impacts of the project,
through assuring conformance with City design policies. Undergrounding and concealment of
equipment has been required to the extent feasible, which is deemed appropriate and supported by
City General Plan policies and design criteria.
Appeal Point #5. Request that ExteNet find an alternate location that would not pose a health
risk that is unnecessary.
Response and Findim4: The appeal request that ExteNet find an alternate location that would not
pose a health risk that is unnecessary cannot be supported. As stated above the City cannot regulate
this facility based on perceived health risks, as the analysis prepared for the project indicates the
facility would comply with FCC regulations. Based on finding that the facility would not generate
RF emissions exceeding 5% of the FCC exposure limit for the general public and therefore is
considered to pose no health risk. The City purview is primarily related to consideration of the
aesthetic impacts of the facility, and the City may encourage locations that provide the lowest
potential for visual impact on neighborhoods.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council does hereby deny
the Appeal (AP12-006) and upholds the September 25, 2012 decision of the Planning Commission action
granting a Master Use Permit (UPI 1-020), a Master Environmental and Design Review Permit (ED 11-024)
and Exception (EX12-002) for the ExteNet Systems, LLC in its entirety approving a wireless infrastructure
distributed antenna system network within public rights of way consisting of five initial antenna nodes
including node LUC-003A which is the subject of this appeal based on the following findings:
Master Use Permit (UPI 1-020)
Findings
A. The project, as conditioned, is in accord with the pertinent San Rafael General Plan 2020 Infrastructure
Element policies including, Policy 1-2 (adequacy cif infrastructure), 1-4 (anility undergrounding), and
1-15 (access to reliable, modern and cast -effective lelecoinnninications) and the general objectives and
purposes of the zoning ordinance given that. i) the proposed wireless antenna infrastructure omni-
anteima, supports and equipment cabinets would be designed to minimize visual impacts, including
screening and undergrounding of cabinets to be compatible with the existing neighborhood and other
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utility infrastructure improvements in the neighborhoods, and ii) project conditions require
modification or relocation of the wireless antenna infrastructure at such time as the other electric, cable
and telephone utility infrastructure that share the above ground utility pole infrastructure can be
relocated underground which would render the joint utility pole obsolete.
B. The project, as conditioned, would not be detrimental to the public health, safety or welfare or
materially injurious to properties or improvements in the vicinity or the general welfare of the City
given that the facility has been reviewed to assure compliance with Federal Communications
Commission limits on general public exposure to radio-frequency radiation emissions would be met,
the wireless antenna has been required to be designed to blend with existing infrastructure, and an
encroachment permit is required to be obtained to assure the time, manner and place of access to the
public rights-of-way is conducted in accord with City Public Works Department requirements.
C. The project, as conditioned complies with each provision of San Rafael Municipal Code (SRMTC)
Section 14.16.360 given that all required entitlements have been submitted and reviewed for this case,
including design review, and the design would result in wireless antenna infrastructure improvement
project that minimizes visual impacts of the facility to the maximum extent deemed feasible and
necessary-, as discussed further in the Environmental and Design Review Permit findings.
Master Environmental and Design Review Permit (EDI 1 -024)
Findings
A. The project design is in accord with the General Plan, the objectives of the Zoning Ordinance, and the
purposes of Zoning Ordinance Chapter 25 (Design Review) given that the project has been reviewed
by the Design Review Board and Planning Commission for compliance with the Wireless
communications facility criteria in SRMC Section 14,16.360 to ensure that the design is compatible
with its setting, as required by the General Plan and Zoning Ordinance.
B. The project design is consistent with all applicable site, architecture and landscaping design criteria
given that the project design would minimize visual impacts by concealing conduit runs, replacing
existing utility poles to minimize aesthetic impacts of taller pole heights required by the antenna,
minimizing the size of equipment enclosures and undergrounding related mechanical equipment, and
has applied for and obtained approval for an exception to exceed the maximum 30 foot height limit
that applies to the area, which may be permitted for wireless facilities through design review approval.
C. As conditioned, theP roject design minimizes environmental impacts and given that it involves a minor
utility infrastructure project located within public rights-of-way, which qualifies for a categorical
exemption from the provisions of the California Environmental Quality Act (CEQA):. pursuant to
Sections 15301.b and 15303.d.
D. The project design will not be detrimental to the public health, safety or welfare, nor materially
injurious to properties or improvements in the vicinity given that the project has been reviewed by the
appropriate agencies and conditioned accordingly, and as further discussed under Use Permit Finding
B above.
Exception (EX12-002)
Findings
A. There are special circumstances applicable to the project that warrant an exception to the 30 -foot
height limit, given that the project involves a wireless telephone infrastructure improvement that
would require a location on utility poles which typically are not subject to the zoning height limit
provisions, and which is considered appropriate to achieve coverage and minimize design impacts
of the project.
B. Granting of the exception would not be detrimental or injurious to property or improvements in the
vicinity or to the health, safety or welfare of the general public, as discussed in Use Permit Finding
B and Environmental and Design Review Permit Finding D above.
BE IT FURTHER RESOLVED, that the City Council of the City of San Rafael upholds and
approves the requests for a Use Permit, Environmental and Design Review Permit and Exception to height
subject to the following conditions:
Master Use Permit (UPI1-020)
Conditions of Approval
Community Development Department, Planning Division
1. This approval grants a Master Use Permit for installation of distributed antenna system (DAS) wireless
antenna infrastructure within public rights-of-way by the ExteNet Systems telephone corporation, and
its successor(s), as indicated on approved plans and subject to compliance with all Environmental and
Design Review Permit (ED 11-024) conditions of approval.
2. Any changes, modifications, expansions, alterations, etc. proposed to the distributed antenna system
"DAS" network infrastructure shall be subject to prior review and approval by the Planning Division to
assure it remains in compliance with this approval. The Community Development Director shall
determine whether such change, modification, expansion, alteration, etc. shall require a major or minor
amendment to this use permit approval.
3. An expansion of the DAS system network shall be permitted under the terms of this use permit without
requiring an amendment, provided that it consists of an expansion of the original system approved
under this permit with antenna nodes similarly spaced and designed consistent with the related design
approval ED 11-024 and a minor design permit is obtained.
4. The DAS system equipment shall not preclude any efforts in the future to underground utility wires and
utility infrastructure in the area. In the event that other utility equipment is proposed to be placed
underground, the telephone corporation responsible for the DAS equipment shall agree to obtain
revised zoning approvals to relocate its infrastructure or retain the equipment on stand alone utility
poles.
5. The applicant shall comply with all post -approval requirements for wireless facilities as required by
Section 14.16.360.N of the San Rafael Zoning Ordinance, as they may be updated from time to time,
including the following:
on
a. Within forty-five (45) days of commencement of operations, the applicant for the wireless
communication facility shall provide the community development department with a report,
prepared by a qualified expert, indicating that the actual RFR levels of the operating facility,
measured at the property line or nearest point of public access and in the direction of maximum
radiation from each antenna, is in compliance with the standards established by the FCC for
RFR.
b. The owner or operator of an approved wireless communication facility shall participate in and
pay proportionate cost for periodic review of measurement by the City of the RFR of the
facility, to be scheduled and conducted on a routine basis by the City.
c. The owner or operator of an approved wireless communication facility shall remove any
abandoned facilities or restore the existing approved use of a facility within ninety (90) days of
termination of use.
d. Any operational or technological changes to an approved wireless communication facility
affecting RFR exposures shall be reported promptly to the city, including any change of
ownership. The city may require new RFR testing within forty-five (45) days of notification.
e. Owner or operators of all approved wireless communication facilities shall make necessary
changes or upgrades to their facilities in order to comply with any newly adopted FCC
standards for RFR. Upgrades to facilities shall be made no later than ninety (90) days after
notification of the changed FCC standards and the owner or operator shall notify the city in
writing that the upgrades have been completed.
f. The City will contract with a qualified expert to perform the testing and the owners or operators
shall bear the proportionate cost of testing for its facility.
6. ExteNet and or its client(s) shall place and maintain an 8 wide by 12" high permanent RFR caution
sign in English and Spanish at the base of the 6' tall utility pole extension just above the cross arm. The
sign shall be compliant with FCC OET Bulletin 65 or ANSI C95.2 for color, symbol and content
conventions. The sign shall provide at all times a working local or toll free telephone number to its
network operations center, and such telephone number shall reach a live person who can exert
transmitter power -down control over this site as required by the FCC. The location of the sign must be
visible immediately prior to climbing above the base of the utility pole extension.
7. An encroachment permit shall be obtained for the work within public -rights-of-way.
8. This Use Permit approval shall be valid for two years from date of approval, and shall expire unless an
encroachment permit has been submitted and work is pursued diligently to completion.
VA
Master Environmental and Design Review Permit (ED11-024)
Conditions of Approval
Community Development Department, Planning Division
1. This Design Review Permit (EDI1-024)shall be valid for two years from approval, or until September
25, 2014, and shall be null and void if an encroachment permit is not issued or a time extension granted
prior to the expiration date. Once the encroachment permit is issued and the facilities are installed, the
Design Review Permit shall remain valid and run with the land subject to all conditions of approval.
2. The building techniques, materials, elevations and appearance of this project, as presented for approval
by the Planning Commission on September 25, 2012, shall be the same as required for the issuance of
an encroachment permit, except as further conditioned herein. Any future additions, expansions,
remodeling, etc., shall be subject to the review and approval of the Community Development Director.
3. The distributed antenna system network infrastructure shall be designed as indicated on approved plans,
consisting of initial installation of five antenna nodes comprised of the following details or
components:
a. A small 2'2" by 16" diameter omni -antenna attached to the top of a utility pole replacement,
without need for any extension arm.
b. New poles shall be placed in the same location as existing utility poles.
c. Conduit runs shall be concealed with U -Guard painted to match the pole.
d. Equipment cabinets shall be placed in underground vaults, in order to minimize visual blight
and potential for graffiti.
e. Existing utility poles may be replaced with taller poles (e.g., allowing placement of wireless
antenna on poles exceeding the height limit established for the area) if necessary to provide the
minimum 6 -feet of separation required for safety between the proposed antenna facility
equipment and PG&E electrical transmission lines.
4. Prior to issuance of an encroachment permit, the following changes shall be made to the plan and
installed accordingly:
a. The "skirting" proposed on the project plans to conceal the bracket and wire connections below
the omni -antennas shall not be utilized (consistent with the recommendation of the Design
Review Board to reduce the visual impact of the facility).
b. The location LUC-004B is approved at the Manual T Freitas/Munson Park location instead of
the previously proposed Hibiscus Way site.
c. All utility cabinets for all locations shall be placed underground.
5. Additional nodes may be added to the network, as deemed permitted under the terms of Master Use
Permit (UP 11-020), through grant of an administrative environmental and design review permit and
subject to compliance with stealth design approaches approved herein and shown on project plans.
6. Construction activities shall comply with City s Noise Ordinance.
Department of Public Works
7. The applicant shall apply for and receive an encroachment permit for this work prior to any
construction or operation occurring. Proper security such as a bond shall be required to assure the
equipment shall be removed in the event of its discontinued use.
8. It is recommended and in the interest of the City to have a single contractor perform work in one
neighborhood to avoid conflicts.
9. The applicant shall pursue utilization of the smallest equipment cabinet enclosure possible.
10. ExteNet shall enter into an agreement with PG&E or AT&T to remove the facilities from the joint
utility pole and public rights-of-way if in the future they are no longer needed.
11. Provide a signed agreement with AT&T or PG&E allowing the use of the existing utility pole and
infrastructure. Provide verification that ExteNet has rights to work on these facilities and is covered
under state franchise agreement.
12. Provide evidence of easements for any infrastructure occurring outside of public rights of way.
Exception (EX12-002)
Conditions of Approval
Community Development Department, Planning Division
1. This Exception EX12-002 permits new omni -antenna to be placed on utility poles in excess of the 30 -
foot height limit established in the subject residential areas, as part of a wireless antenna infrastructure
project, consistent with and subject to related zoning entitlements UP 11-020 and ED 11-024 granted for
the ExteNet Lucas Valley DAS Infrastructure Project.
I, ESTHER C. BEIRNE, 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 City Council of the City of San
Rafael, held on Monday, the 19t" of November 2012, by the following vote, to wit:
AYES: COUNCILMEMBERS: Connolly, Heller, Levine, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
_iAd L g .
ESTHER C. BEIRNE, City Clerk -
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