FROM:
Planning Department
SUBJECT:
Title
Master Case No. 23-062 and Appeal No. 23-016: Appeal of the Planning Commission’s decision to uphold the Director of Planning’s approval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, for the request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total, pursuant to CEQA determinations.
End
RECOMMENDATION:
Recommendation
Based on the information in the staff report and subject to the attached Findings, staff recommends that the City Council:
1. Deny Appeal No. 23-016, thereby upholding the decision of the Planning Commission and Director of Planning approving Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, for the request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total.
2. Direct staff to prepare, execute, and file a CEQA Notice of Exemption with the County Clerk, as appropriate, within five (5) working days of the Council’s final action on Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007.
End
APPELLANT/ APPLICANT FOR APPEAL:
Robert Constant
28871 Blythewood Drive
Rancho Palos Verdes, CA 90275
LOCATION:
17010 Sierra Lakes Parkway (APN: 0119-221-69)
PROJECT DESCRIPTION:
Land Use Designation:
ANALYSIS:
Background
Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 consist of a request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of approximately 347 square feet that was approved by the Director of Planning at a scheduled public hearing on May 11, 2023. Mr. Nikos Constant, representing the abutting property owner, communicated concerns verbally during the hearing that follow the concerns provided in the Appellant’s appeal justification letter as well as unrelated matters about various contractors trespassing on the abutting owner’s property.
Subsequent to the Director’s approval, staff received one (1) appeal application in opposition of the project. The appellant, Robert Constant, is the adjoining property owner located at APN: 1119-221-54, just north of the project site. The grounds for the appeal included concerns relating to: setbacks, high winds and liability insurance, security, privacy, and safety, unlimited future use, and view impairment.
On July 18, 2023, the Planning Commission held a noticed public hearing on the above-referenced appeal application. After the information was presented and considered, the Planning Commission denied Appeal (APL) No. 23-015 and upheld the Director of Planning’s decision approval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007. Subsequent to the Planning Commission’s decision, staff received one (1) appeal application. The appeal letter request, dated July 31, 2023, is attached for the City’s Council’s consideration (Attachment No. 1).
Minor Use Permit (MUP) No. 22-007
Brett Smirl, on behalf of AT&T submitted the application for a Minor Use Permit No. 22-007 on September 26, 2022, for the operation of an unmanned wireless telecommunications facility within the Regional Mixed-Use zone, which was approved by the Director of Planning on May 11, 2023. This use is considered a public utility facility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit. The General Plan Land Use designation and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. The wireless facility will support the intended uses for the areas within the Regional Mixed Use land use designation.
Administrative Site Plan (ASP) No. 22-028
Brett Smirl, on behalf of AT&T submitted the application of an Administrative Site Plan (ASP) No. 22-028 on September 26, 2022, for the site and architectural review for the unmanned wireless telecommunications facility that was approved by the Director of Planning on May 11, 2023. According to the information submitted in the ASP No. 22-028 application, AT&T will be the only carrier on the mono-palm tower at this time. The equipment enclosure is approximately eight (8) feet high and is 347 square feet in size and secured with a decorative stucco finish with a gate. The equipment enclosure will be accessed via a 12’ non-exclusive access path on Mango Avenue for maintenance and service for the mono-palm tower.
Both the Director of Planning and the Planning Commission determined that the proposed facility meets the City’s requirements for telecommunication facilities as well as the required findings. The findings for approval are discussed at the end of this staff report.
Appeal Concerns:
The following is a summary of the items raised in the previously referenced appeal letter attached in the Planning Commission Packet (Attachment No. 4); and Appellants’ second appeal letter, dated July 31, 2023, attached hereto as Attachment No. 1, which follows the same issues raised in the Appellant’s first letter and expands upon some of the concerns originally raised.
1. Setback:
Response: The Appellant does not claim that the proposed facility violates the Fontana Municipal Code’s requirement for setbacks and admits that the proposed facility will not encroach on his property once constructed. The Appellant is speculating about a scenario in which the proposed wireless facility would fall or collapse on his property. If the Appellant is attempting to claim that his property rights would be impaired by the City’s approval of the proposed wireless facility, those concerns are not germane to the required findings for approval or would not serve as a basis for denial because the proposed facility will not actually encroach onto the Appellant’s property as constructed. Further, Chapter 32 Wireless Telecommunications Towers and antennas provides development standards for new towers and antennas. The project complies with the development standards outlined in Chapter 32, with a setback distance proposed at 85 percent (approximately 64-foot setback) to the northern property line. Therefore, the project meets this development standard. The proposed AT&T tower and equipment has been reviewed and approved by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed once again prior to issuance of building permits.
2. Setback issue to fully negotiated private easements:
Response: Appellant’s concerns raised here are similar to those raised in Issue 1 and concern a speculative scenario where the proposed wireless facility may fall or collapse onto the Appellant’s property. The Appellant’s claims that the proposed facility may in such a speculative circumstance impair certain unspecified property rights, would not serve as a basis for denial because the proposed facility will not actually encroach onto the Appellant’s property as proposed. The AT&T wireless telecommunications facility will be installed at 17010 Sierra Lakes Parkway (APN:1119-221-69). As mentioned above, the project complies with the setback requirements as outlined in Chapter 32. The proposed AT&T tower and equipment has been reviewed by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed prior to issuance of building permits. The project will be built pursuant to all applicable building, zoning, fire codes and standards and complies with all applicable FCC and FAA regulations.
3. High winds and liability insurance:
Response: The Appellant has raised potential remedies that are not requirements of the Fontana Municipal Code and are not a condition of approval the City requires. The Appellant has no basis for his requests to be named a party on all liability insurance (it is unspecified whose policy this request would attach), to be indemnified, to receive treble damages, or to secure a lien on the proposed wireless facility. The proposed AT&T tower and equipment has been reviewed by the City of Fontana Building and Safety and Fire Departments and structural plans would be reviewed prior to issuance of building permits. The project will be built pursuant to all applicable building, zoning, fire codes and standards and complies with all applicable FCC and FAA regulations.
4. Security, Privacy, and Safety:
Response: The City’s review of the application and the Director’s approval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 followed the procedures and process required by the Fontana Municipal Code. The Appellant has also raised concerns regarding the perceived health and medical risks posed by the proposed wireless facility. The City may not deny a wireless facility application based on concern about RF emissions exposure if the facility complies with FCC guidelines.1
1 In AT&T Wireless Servs. v. City of Carlsbad, 308 F. Supp. 2d 1148, 1161 (S.D. Cal. 2003). the city made a finding that the wireless facility would “negatively affect property values of nearby homes based upon the perceived fear of the health effects cause by the RF emissions.” The court held against Carlsbad, ruling that cities may not regulate based on the “direct or indirect concerns over the health effects of RF.” The court explained that a denial could not be based on substantial evidence (as required by law) “…if the fear of property value depreciation is based on concerns over the health effects caused by RF emissions.”
The health risks associated with the public’s exposure to radio frequency (RF) energy has been an area of public concern particularly in light of the public’s increasing reliance on mobile devices and the proliferation of mobile technology and its supporting infrastructure. Setting the safety standards for RF emissions is exclusively the responsibility of the federal government, and the responsible agency which is the Federal Communications Commission. Thus, Section 332(c)(7)(B)(iv) prohibits the City from denying a wireless facility application based on concerns about RF emissions so long as the applicant has demonstrated that its facilities will comply with FCC standards. The Applicant has provided a certification that the proposed facility will comply with FCC standards for RF emissions. Further, the applicant’s facility must comply with state and federal law and as such, the Applicant may only use equipment that is FCC approved.
The Appellant has also raised speculative concerns about potential unspecified cybersecurity risks due to the presence of a new telecommunications facility. In regard to cybersecurity concerns, hacking most often occurs because of phishing attacks through email spamming, downloading or installing illicit apps for individuals who visit and access unsafe pages on the internet that carry viruses, malware and spyware. Hacking can also potentially occur from using free wi-fi, leaving phones and devices unattended in public, using public charging stations, and having weak passwords. Security technology continues to improve. There are now stronger methods of authentication, identity theft protection, and defense against cyber attacks being developed daily. In many cases, cell tower information increases personal safety. These towers with wireless equipment are built and located at safe and federally regulated distances.
5. Unlimited future use:
Response: The Director’s approval of Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 will not result in open ended or unlimited use. Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007 authorize the construction and operation of a wireless facility to be used for personal wireless services in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. The permittee is required to follow all City requirements and processes for any changes to the wireless facility improvements or to any changes in use. Future uses will be analyzed by the City in light of requirements existing at the time of such proposals. Such proposals may or may not include discretionary approvals and/or conditions. In Appellant’s second appeal letter, the Appellant has also raised speculative concerns about potential unspecified cybersecurity risks due to the presence of a new telecommunications facility. These concerns are not germane to the required findings for approval or would not serve as a basis for denial.
6. View:
Response: The Appellant has requested a monetary settlement of view impairment. Without an easement in place encumbering the property subject to new development that has resulted in view impairment, property owners have no inherent right to prevent other property owners from obstructing their view. See Mira Mar Mobile Community v City of Oceanside, 119 Cal.App.4th 477 (2004). Further, the City does not have a view protection ordinance in place which could provide alternative relief. As stated previously, the tower as approved complies with the maximum height requirement outlined in Chapter 32, with a maximum height of 75 feet for a single user. The wireless tower is proposed to be disguised as a mono-palm with faux fronds and a faux growth pod, which will complement the surrounding neighborhood, which is characterized by existing commercial and industrial uses, and blend with the existing area. The proposed equipment enclosure will have a stucco finish with a desert color to match the drive-thru restaurant buildings. The enclosure will be surrounded by mature landscaping to compliment the landscaping of the surrounding properties which will match the surrounding neighborhood.
Findings for Approval for Minor Use Permit No. 22-007
Minor Use Permit No. 22-007, as approved on May 11, 2023, meets the mandatory MUP findings required pursuant to Section 30-178 Findings for approval. The original findings below were prepared by staff for Director of Planning’s consideration:
1. That the proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning and Development Code, General Plan, any applicable Specific Plan or area plan, and City regulations/standards.
The project site is located on the north side of Sierra Lakes Parkway and west side of Mango Avenue. The proposed project is for the installation a new 75-foot wireless facility disguised as a mono-palm. The new mono-palm will include fourteen (14) panel antennas, supporting equipment, and an equipment enclosure. The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. This use is considered a public utility facility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit. The wireless facility will support the intended uses for the areas within the Regional Mixed Use land use designation.
2. The site is physically suited for the type, density, and intensity of the proposed use including access, utilities, and the absence of physical constraints and can be conditioned to meet all related performance criteria and development standards.
The physical characteristics of the site are sufficient to accommodate the requested wireless mono-palm, supporting equipment, and equipment enclosure. The project site is approximately 1.8 acres in size and developed with two drive-thru restaurants pads and associated parking, landscaping, and drive aisles. The proposed mono-palm and equipment enclosure meets all applicable development standards including access, setbacks, parking, and drive aisles. There are no changes to the existing site circulation and access for the proposed project. The new wireless tower has been reviewed by Planning, Building and Safety, Engineering, and Fire Prevention and will meet or exceed all requirements.
3. Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, or materially injurious to persons, property, or improvements in the vicinity in which the project is located.
The proposed project has been reviewed by Planning, Engineering, Building and Safety, and County Fire Prevention for site circulation, access, and safety. In addition, the site meets all the development standards of the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance and will provide a safe, well-designed facility.
Findings for Approval for Administrative Site Plan No. 22-028
Administrative Site Plan No. 22-028, as approved on May 11, 2023, meets the mandatory ASP findings required pursuant to Section 32-7.2 Findings for approval. The original findings below were prepared by staff for Director of Planning’s consideration:
1. The proposal meets or exceeds contained in this Chapter and is consistent with the General Plan and the applicable land use designation.
The project site is located on the north side of Sierra Lakes Parkway and west side of Mango Avenue. The proposed project is for the installation a new 75-foot wireless facility disguised as a mono-palm. The new mono-palm will include fourteen (14) panel antennas, supporting equipment, and an equipment enclosure. The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The Regional Mixed-Use zoning is intended for a wide range of retail commercial, office, medium density residential, civic, open space and job-rich light manufacturing uses. This use is considered a public utility facility and is allowed within the Regional Mixed Use zoning district with the approval of a Minor Use Permit and an Administrative Site Plan for site and architectural review of the proposed wireless facility. The proposed project is consistent with the General Plan, the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance.
2. That the site for the intended use is adequate in size, shape, topography, accessibility, and other physical characteristics to accommodate the use and all the required provisions of this chapter.
The project site is an irregular shaped property consisting of one (1) parcel of approximately 1.8 acres, located at 17010 Sierra Lakes Parkway. The new wireless tower has been reviewed by Planning, Building and Safety, Engineering, and Fire Prevention and will meet or exceed all requirements. The proposed project will be built/installed pursuant to all applicable building, zoning, fire codes, and standards which will result in an appropriate, safe, and desirable development, as well as conditions of approval referenced herein. The site is adequate in parking, circulation, and access to the property including the addition of the proposed wireless facility.
3. The proposal of the tower and/or antenna is in its design and appearance consistent with the development and design of the surrounding structures and neighborhood.
The project proposal in its design and appearance as a result from this review will be compatible with the site and other similarly approved wireless facilities. The wireless tower is proposed to be disguised as a mono-palm with faux fronds and a faux growth pod, which will complement the surrounding neighborhood and blend with the existing area. The proposed equipment enclosure will have a stucco finish with a desert color to match the drive-thru restaurant buildings. The enclosure will be surrounded by mature landscaping to compliment the landscaping of the surrounding properties and will match the surrounding neighborhood. The proposed project provides a safe and well-designed site that is both aesthetically and architecturally pleasing.
4. That the proposed use will be organized, designed, constructed, operated and maintained so as to be compatible with the character of the area as intended by the general plan.
The General Plan Land Use designation is Regional Mixed-Use (R-MU) and the zoning designation is Regional Mixed Use (RMU). The operation and maintenance of the facility will be regulated by specific requirements set forth in the Minor Use Permit and attached in the Conditions of Approval. In addition, the project will conform to the requirements of the Zoning and Developments Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance.
The proposed project has been reviewed by Planning, Engineering, Building and Safety, and County Fire Prevention for site circulation, access, and safety. The proposed project identified in Findings No. 1-3, meet or exceeds the standards of the Zoning and Development Code and Chapter 32 of the Fontana Municipal Code (FMC) as outlined in the Wireless Telecommunications Towers and Antennas ordinance and will provide a safe design.
5. That adequate streets and highways exist to carry the type and quantity of traffic anticipated to accommodate access for maintenance and/or service vehicles.
The proposed project has been designed to accommodate access for maintenance and/or service vehicles and will not conflict with existing easements or access on-site. The project site is accessed from Mango Avenue and Sierra Lakes Parkway, which are publicly maintained streets. The proposed project will have one designated parking stall adjacent to the equipment enclosure for maintenance and/or service vehicles and will not conflict with the existing center.
6. The Director of the Planning Department shall make those findings enumerated in this section as amended from time to time, prior to approving any ASP pursuant to this chapter.
As a part of the approval of this Minor Use Permit and Administrative Site Plan, the Director of Planning made the required findings.
Staff prepared the above-listed findings for the Director of Planning’s consideration pursuant to Section 32-7.2 and Section 30-178, Findings for Approval. On May 11, 2023, the Director of Planning determined that the findings were consistent with the Fontana Municipal Code and FCC statues and regulations and approved the project. The proposed project has met all requirements of the Fontana Municipal Code and the General Plan. As such, staff recommends the City Council deny the request for the appeal and uphold the Planning Commission and Director of Planning’s approval of ASP No. 22-028 and MUP No. 22-007.
Environmental:
The installation of a new wireless telecommunications facility and ancillary equipment as described above associated with Master Case No. (MCN) 22-107 and Administrative Site Plan (ASP) No. 22-028 and Minor Use Permit (MUP) No. 22-007 is exempt pursuant to Section No. 15311 Class No. 11 (Accessory Structures) and Section No. 15332 Class No. 32 (In-Fill Development Project) of the California Environmental Quality Act (CEQA), and Section No. 3.22 of the 2019 City of Fontana Local Guidelines for Implementing the California Environmental Quality Act.
FISCAL IMPACT:
None
MOTION:
1. Deny Appeal No. 23-016, thereby upholding the decisions of the Planning Commission and Director of Planning approving Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007, for the request to install a new wireless telecommunications facility consisting of a 75’ mono-palm with 14 antennas, supporting equipment, and an equipment enclosure of 347 square feet total.
2. Direct staff to prepare, execute, and file a CEQA a Notice of Exemption with the County Clerk, as appropriate, within five (5) working days of the Commission’s final action on Administrative Site Plan No. 22-028 and Minor Use Permit No. 22-007.
ATTACHMENTS:
1. Uniform Appeal Letter from Appellant
2. Vicinity Map
3. Director’s Action Packet
4. Planning Commission Packet
5. Notice of Public Hearing
6. Responses from AT&T
Attachments Under Separate Cover:
1. Project Plans