Loading...
Res 23-005RESOLUTION NO. 23-005 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT (CUP) 22-001; FOR THE CONSTRUCTION OF A WIRELESS COMMUNICATIONS FACILITY AT THE TERMINUS OF COBBLESTONE CREEK ROAD; ASSESSOR PARCEL NUMBER 316-063-02 WHEREAS, Conditional Use Permit (CUP) 22-001 is a request by Dish Wireless (Applicant) and the Farley Living Trust (Owner), to construct a wireless communications facility (WCF) on property owned by the Farley Living Trust, located west of, and adjacent to, 12601 Cobblestone Creek Road, within the Rural Residential A (RR -A) zone. The WCF will be operated by Dish Wireless and will consist of three 12-foot-tall steel poles with one panel antenna and two remote radio heads mounted on each pole, and an equipment cabinet mounted on a concrete pad; WHEREAS, on February 7, 2023, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, relative to this application; WHEREAS, the City Council has read and considered the agenda report for the proposed project, including attachments, and has considered other evidence presented at the public hearing; and WHEREAS, the Poway Municipal Code (PMC) establishes findings required for granting CUP. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows: SECTION 1: The project is Categorically Exempt from the California Environmental Quality Act (CEQA), as Class 3 Categorical Exemption, pursuant to Section 15303(d) of the CEQA Guidelines, in that the project involves the installation of a small new telecommunications facility. SECTION 2: The findings, pursuant to Section 17.48.070 of the PMC, to approve CUP22-001 to allow the construction of a wireless telecommunication facility, are made as follows: A. The location, size, design, and operating characteristics of the proposed WCF are in accordance with the title and purpose of PMC Chapter 17.48 (CUP Regulations), the General Plan, and the development policies and standards of the City, including, but not limited to, the City Wireless Communications Policy in that the proposed WCF complies with the development standards for the RR -A zone. The antennas and remote radio heads (RRH) will be mounted on steel poles and the antennas will be covered with radio frequency socks that will match the foliage of the adjacent vegetation. The exposed mounting hardware and cable will be painted a camouflage pattern of browns and greens. No visual impacts to the community are anticipated. B. The location, size, design, and operating characteristics of the proposed WCF will be compatible with and will not adversely affect or be materially detrimental to, adjacent uses, Resolution No. 23-005 Page 2 people, buildings, structures, or natural resources in that the proposed WCF complies with the development standards for the RR -A zone. The antennas and remote radio heads (RRH) will be mounted on 12-foot-tall steel poles and the antennas will be covered with radio frequency socks that will match the foliage of the adjacent vegetation. The exposed mounting hardware and cable will be painted a camouflage pattern of browns and greens. The steel poles will be of comparable height to other WCFs located on the same property. The use will comply with Federal Communications Commission (FCC) design and operational standards. C. The proposed WCF is in harmony with the scale, bulk, coverage, and density of, and is consistent with adjacent uses in that the antennas will be mounted on 12-foot-tall steel poles that are below the maximum height allowed in the RR -A zone. D. There are adequate public facilities, services, and utilities available at the subject site to serve the proposed WCF. E. There will not be a harmful effect upon the desirable neighborhood characteristics in that the proposed WCF will visually blend with the surrounding vegetation and the WCF will comply with FCC design and operational standards. F. The generation of traffic will not adversely impact the capacity and physical character of the surrounding streets and/or the Circulation Element of the General Plan in that the proposed WCF will be unmanned and will only require periodic maintenance, thereby generating minimal traffic. G. The site is suitable for the type and intensity of use or development that is proposed in that the proposed WCF complies with all development standards for the RR -A zone and will enhance telecommunications coverage in the City with no significant visual impacts. H. There will not be significant harmful effects upon environmental quality and natural resources in that the proposed WCF will be located in an area of a property that is developed with two existing WCFs and does not involve the removal of natural habitat resources. There are no relevant negative impacts associated with the proposed modified WCF that cannot be mitigated in that the facility will comply with FCC design and operational standards. That the impacts, as described in subsections A through I of this Section, and the proposed location, size, design, and operating characteristics of the proposed WCF will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity, nor be contrary to the adopted General Plan in that the proposed WCF will meet all development standards for the RR -A zone, will visually blend in with the surrounding vegetation, and will comply with FCC design and operational standards. K. The proposed conditional use will comply with all the applicable provisions of this Title, in that the facility is a conditionally permitted use and has been designed and sited such that it will not result in significant visual impacts and will comply with FCC design and operational standards. Resolution No. 23-005 Page 3 SECTION 3: The City Council hereby approves CUP22-001, as shown on the approved plans incorporated herein by reference and stamped as "Exhibit A" and dated February 7, 2023 on file in the Development Services Department, except as noted herein, subject to the following conditions: A. The applicant shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any and all claims, actions, proceedings, damages, judgments, or costs, including attorney's fees, against the City or its agents, officers, or employees, relating to the issuance of this permit, including, but not limited to, any action to attack, set aside, void, challenge, or annul this development approval and any environmental document or decision. The City may elect to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification. In the event of such election, applicant shall pay all of the costs related thereto, including without limitation reasonable attorney's fees and costs. In the event of a disagreement between the City and applicant regarding litigation issues, the City shall have the authority to control the litigation and make litigation related decisions, including, but not limited to, settlement or other disposition of the matter. However, the applicant shall not be required to pay or perform any settlement unless such settlement is approved by applicant. B. Approval of this CUP request shall apply only to the subject project and shall not waive compliance with all sections of the Zoning Ordinance and all other applicable City Ordinances in effect at the time of Building Permit issuance. This CUP approval shall be in substantial conformance with the approved plans stamped as "Exhibit A" with minor modifications including antenna and equipment enlargements and relocations permitted by the Development Services Director. C. Within 30 days of the date of this approval, and before the issuance of any permit: (1) the applicant shall submit in writing that all conditions of approval have been read and understood; and (2) the property owner shall execute a Covenant Regarding Real Property. In order for the City to prepare the Covenant the applicant must first submit a legal description of the subject site. D. The use conditionally granted by this approval shall not be conducted in such a manner as to interfere with the reasonable use and enjoyment of surrounding uses. E. The conditions of CUP22-001 shall remain in effect for the life of the subject use and shall run with the land and be binding upon future owners, successors, heirs, and transferees of the current property owner. F. CUP22-001 may be subject to annual review, as determined by the Director of Development Services, for compliance with the conditions of approval and to address unresolved operational concerns that may have been raised during the prior year. G. The applicant shall obtain a Building Permit prior to work commencing. Prior to issuance of a Building Permit, the applicant shall comply with the following: 1. The site shall be developed in substantial accordance with the approved plans stamped as "Exhibit A" on file in the Development Services Department and the conditions contained herein. A final inspection from the appropriate City departments will be required. Resolution No. 23-005 Page 4 2. A $3,000 deposit shall be submitted to the Development Services Department to ensure completion and submittal of the required Confirming Radio Frequency (RF) Report, as specified in condition of approval 1.1 below. The deposit shall also be used to cover the cost of an independent consultant to review the report, as determined by the Director of Development Services. 3. The antennas shall not be activated for use until the Building Division conducts a final inspection of the proposed structures and finals the permit. 4. The Building Permit plans shall include a utility plan that shows the equipment layout. 5. All spoil materials from footings and foundations shall be legally disposed of off -site or if the material is to remain onsite, the material shall be placed per the requirements of the City grading ordinance. 6. The applicant shall incorporate Low Impact Development (LID) design features into the site development. These shall be clearly shown and identified on the site plan and be appropriately sized for the proposed level of development. 7. The applicant shall pay all applicable development impact fees according to the latest adopted master fee schedule at time of permit issuance. 8. The applicant shall pay the stormwater pollution inspection fee and minimum erosion control deposit according to the latest adopted master fee schedule. 9. The applicant shall attend a pre -construction meeting at the Department of Development Services. The scheduling request shall be submitted on a City standard form available from the City's project engineer. The applicant's action plan that identifies measures to be implemented during construction to address erosion, sediment and pollution control will be discussed. Compliance for sediment control shall be provided as directed by the project inspector. 10. Erosion control shall be installed and maintained by the developer from October 1 to April 30. The developer shall maintain all erosion control devices throughout their intended life. 11. Prior to start of any work within a City -held easement or right-of-way, a Right -of -Way Permit shall be obtained from the Engineering Division of the Development Services Department. All appropriate fees shall be paid prior to permit issuance. 12. The Standard Storm Water Quality Management Plan must be completed and submitted prior to building permit issuance. H. Prior to activation of the antennas, the applicant shall comply with the following: 1. The site shall be developed in substantial accordance with the approved plans on file in the Development Services Department stamped as "Exhibit A" and the conditions contained herein. A final inspection from appropriate City departments will be required. 2. All existing and proposed utilities or extension of utilities required to serve the project Resolution No. 23-005 Page 5 shall be installed underground. No extension of overhead utilities shall be permitted. 3. All utility services shall be installed and completed by the property owner and inspected and approved by the Engineering Inspector. 4. The drainage facilities, driveway, slope planting measures, and all utility services shall be installed, and completed by the property owner, and inspected by the Engineering Inspector for approval. 5. An adequate drainage system around the new building pad capable of handling and disposing all surface water shall be provided to the satisfaction of the Engineering Inspector. 6. The applicant shall repair, to the satisfaction of the City Engineer, any and all damages to public improvements caused by construction activity from this project. Upon establishment of the modified WCF, pursuant to CUP22-001, the following shall apply: Within 30 days of the commencement of operation of the antennas, the operator shall submit a report, prepared by a qualified professional, which specifies the actual RF levels within 500 feet of the facility and includes a statement as to compliance with the FCC Maximum Possible Exposure (MPE) limit. The format of this report shall conform to City requirements. The intent of the report is to measure exposure levels at the location after the facility is in operation and shall include the cumulative RF levels of all the telecommunications facilities at the subject site. A report of these measurements, and the engineer's findings with respect to compliance with MPE limits, shall be submitted to the Director of Development Services. If that analysis determines the MPE levels are exceeded, the operator shall cease operation immediately. Modifications shall be made to the facility and the operator shall conduct a second confirming RF report of the MPE levels. Full operation of the WCF shall not be allowed until the Director of Development Services has determined that the facility is in compliance with Federal guidelines. The City may conduct an independent verification of the results of the analysis provided by the operator, at the operator's cost. Upon demonstration, to the satisfaction of the Development Services Department, that the telecommunications installation is in compliance with all Federal Guidelines, any balance remaining from the security deposit shall be refunded to the applicant, upon written request by the applicant. 2. All facilities and related equipment shall be maintained in good repair. Any damage from any cause including wear and tear shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight. 3. The facility shall be operated in such a manner as to minimize any possible disruption caused by noise. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 10:00 p.m. and 7:00 a.m. on weekday nights. At no time shall equipment noise from any source exceed the noise standards contained in the PMC. Resolution No. 23-005 Page 6 4. The owner or operator of the WCF shall routinely and regularly inspect the site to ensure compliance with the standards set forth in this permit. 5. The operator of the WCF shall be strictly liable for interference caused by the WCF with City telecommunications systems or other public agency emergency communication systems. The operator shall stop operations and determine the cause prior to restarting the facility. The operator shall be responsible for all labor and equipment costs for determining the source of the interference, all costs associated with eliminating the interference (including, but not limited to, filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third -party claims against the City attributable to the interference. 6. The WCF shall not be operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end, no facility or combination of facilities shall produce, at any time, power densities within 500 feet of the WCF that exceed the FCC's MPE limits for electric and magnetic field strength and power densities for transmitters, or any more restrictive standard subsequently adopted or promulgated by the City, County, State of California, or the Federal government. 7. If there is any change in the operating characteristics of the WCF, a report pursuant to Condition 1.1 of this Resolution shall be submitted to the Director of Development Services for review and approval. The Director may also require the operator to prepare an updated RF report, and pay for a third -party review of that report, as part of any review of this CUP. 8. Any service light(s) shall only be operated when maintenance is being performed on the equipment. The service light(s) shall be adequately shielded and directed away from adjacent roadways. 9. The owner of the WCF shall remove all of the communication equipment, and associated structures, approved pursuant to this permit within 60 days of ceasing operation of the telecommunications facility. J. The following requirements shall be completed to the satisfaction of the Fire Department: 1. Do not block emergency vehicle access to any building, street, fire hydrant, or fire protection system. 2. Maintain an unobstructed emergency vehicle access way. 3. Secure compressed gas cylinders. 4. Do not store fuels for the purpose of refueling vehicles or equipment. 5. Provide a minimum 3A4013C fire extinguisher during construction. Resolution No. 23-005 Page 7 6. A fire department operational permit may be required for Cutting & Welding, LPG, Compressed Gases, Open Flames & Torches, Flammable & Combustible Liquids, if operations like these take place during construction. SECTION 4: The approval of CUP22-001 shall expire on February 7, 2025 at 5:00 p.m., unless prior to that time, a Building Permit has been issued and construction on the property in reliance on the CUP approval has commenced. SECTION 5: The parties are hereby informed that the time within which judicial review of this decision must be sought is governed by Section 1094.6 of the California Code of Civil Procedure. PASSED, ADOPTED AND APPROVED at a Regular Meeting of the City Council of the City of Poway, California on the 7th day of February, 2023 by the following vote, to wit: AYES: PEPIN, FRANK, DE HOFF, LEONARD, VAUS NOES: NONE ABSTAINED: NONE ABSENT: NONE DISQUALIFIED: NONE Steve Vaus, Mayor ATTEST: Carrie Gallagher, CMC, City Clerk