REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Al Zelinka, City Manager
VIA: Ursula Luna-Reynosa, Director of Community Development
PREPARED BY: Hayden Beckman, Senior Planner
Subject:
title
Appeal of the Planning Commission’s action that upheld the Zoning Administrator’s approval of Conditional Use Permit No. 23-006 (Huntington Beach Community Church Wireless Communication Facility)
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Statement of Issue:
Transmitted for your consideration is Christina Price’s appeal of the Planning Commission’s action that upheld the Zoning Administrator’s approval of Conditional Use Permit No. 23-006. This application is a request to construct a new freestanding ‘mono-broadleaf’ wireless communication facility at an overall maximum height of 60 ft. on a commercial property occupied by a church. The installation would include a four sector array of four panel antennas each that utilizes stealth design by disguising the new wireless facility within the branches of a faux broadleaf tree. The Planning Commission held a public hearing on June 13, 2023, to consider an appeal of the Zoning Administrator’s decision to approve the project. The hearing resulted in a 3-3 vote and upheld the Zoning Administrator’s approval. On June 23, 2023, Christina Price appealed the Planning Commissions’ action citing multiple reasons outlined in the appeal letter (Attachment No. 2) and analyzed below.
Financial Impact:
Not Applicable.
Recommended Action:
recommendation
A) Find the proposed project exempt from the California Environmental Quality Act pursuant to Section 15303 of the CEQA Guidelines; and
B) Approve Conditional Use Permit No. 23-006 with findings and conditions of approval (Attachment No. 1)
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Alternative Action(s):
A) Do not make the suggested findings for Conditional Use Permit No. 23-006, which will result in a mandatory denial pursuant to Section 241.10(C) of the Huntington Beach Zoning and Subdivision Ordinance.
B) Continue Conditional Use Permit No. 23-006 and direct staff accordingly.
Analysis:
A. PROJECT PROPOSAL:
Applicant: John Silverman, Smartlink Group, 1227 West Raymar Street, Santa Ana CA 92703
Property Owner: Huntington Beach Community Church, 8101 Slater Avenue, Huntington Beach CA 92647
Location: 8101 Slater Avenue, 92647 (North side of Slater Avenue, west of Marken Lane)
The project site is a 0.88-acre commercial property, currently developed as the Huntington Beach Community Church. The subject request is to construct a new freestanding ‘mono-broadleaf’ wireless communication facility at an overall maximum height of 60 ft., including the installation of an ancillary equipment enclosure located in the northwest corner of the property. The proposed maximum overall height of the antennas is 55 ft., and the freestanding tower is designed utilizing stealth techniques to camouflage the tower, antennas, and equipment by resembling a broadleaf tree.
A comprehensive description of the proposed project as well as the General Plan and Zoning analysis can be found in the June 13, 2023 Planning Commission staff report (Attachment No. 4).
B. PLANNING COMMISSION MEETING AND RECOMMENDATION
The subject Conditional Use Permit was originally approved at the April 19, 2023 Zoning Administrator public hearing. The Zoning Administrator’s approval was appealed by Christina Price, and the project was subsequently heard in a de novo public hearing before the Planning Commission on June 13, 2023. During public comments, nearby residents, including adjacent residential property owners, spoke in opposition to the project citing health and property value concerns. Additionally, Ariel Strauss, counsel for the appellant, also provided comments outlining issues related to wireless facility co-location feasibility, perceived deficiencies in the project application, compliance with Federal requirements, including the National Environmental Protection Act (NEPA), potential for noise impacts to adjacent properties, potential impacts to migratory birds, and the California Environmental Quality Act (CEQA) exemption determination.
Following public comments, discussion between the Commissioners, staff, the applicant, and the appellant included the quality and scale of the submitted photographic simulations provided by the applicant, requesting that the applicant consider alternative simulations to improve public awareness of visual impacts, 4G vs. 5G frequencies, the identified outputs of the proposed facility, safety signage requirements for wireless communication facilities, and if any complaints received by the City regarding currently operating wireless facilities.
Planning Commission Action on June 13, 2023
A motion was made by Commissioner Rodriguez, seconded by Commissioner Adam, to approve Conditional Use Permit No. 23-006 with findings and conditions of approval.
Subsequently, a substitute motion was made by Chair Pellman, seconded by Vice-Chair Twining, to deny Conditional Use Permit No. 23-006.
AYES: Pellman, Twining, Kennedy
NOES: Adam, Rodriguez, Acosta-Galvan
ABSTAIN: None
ABSENT: Wood
SUBSTITUTE MOTION TO CONTINUE FAILED
AYES: Adam, Rodriguez, Acosta-Galvan
NOES: Pellman, Twining, Kennedy
ABSTAIN:
ABSENT: Wood
MOTION TO APPROVE FAILED
As a result of a 3-3 split vote, the Planning Commission failed to reach a majority vote on both the motion to deny and the motion to approve CUP No. 23-006. Pursuant to Roberts Rules of Order, in the event of a tie, the motion fails. Because there essentially is no action taken, the lower discretionary body’s decision is upheld. This procedure is confirmed in the Parliamentary Procedure section of the City Council Manual. Therefore, the Zoning Administrator’s approval of CUP No. 23-006 on April 19, 2023 stands.
A timely appeal of the Planning Commission’s decision was appealed by Christina Price on June 23, 2023 (Attachment No. 2). In the appeal letter, counsel for the appellant cites the two discretionary decisions being appealed, and the grounds for the appeal. Below is staff analysis and response to the subject appeal letter:
Appellant’s Grounds for Appeal
1. A tie vote by the Planning Commission on an appeal governed by Chapter 248 is not sufficient to grant a conditional use permit or to approve a CEQA exemption.
The tie vote by the Planning Commission did not grant the subject CUP nor approve the recommended CEQA exemption. A tie vote on both motions by the Planning Commission resulted in a failure to meet the findings for both an approval and a denial. Thus, the Zoning Administrator’s action of April 19, 2023 approving the project and findings the request exempt from CEQA was upheld.
2. No Planning Commission vote was taken to approve the CEQA exemption.
Each of the motions made by Commissioners in this hearing were inclusive of the respective motion to either find the project exempt from CEQA, or not, as referenced under the recommended action of the staff report and on the agenda.
3. The application was incomplete and did not include all information required by the City’s Wireless Permit Application Form and Section 230.96 (E) and (G).
Staff deemed the application complete for processing on March 21, 2023, within 30 days of its receipt, having found that the items provided to the City met the minimum requirements for a Conditional Use Permit. A Wireless Permit application was not filed and is not necessary for the subject project, as it was clear at the time of submittal that the subject request is subject to the review and approval of a Conditional Use Permit (CUP) by the Zoning Administrator, pursuant to Section 230.96 (E), which states:
“No Facility shall be installed without first securing either a wireless permit or a conditional use permit…”
The request to install and operate a new ground-mounted wireless facility is subject to a CUP pursuant to HBZSO Section 230.96 (E)(3). As such, a wireless permit is not required since the wireless permit review process, in addition to that of a CUP, would be duplicative. The applicant provided the minimum necessary information to process a CUP request for the proposed facility. Further, there is no other operating freestanding wireless facility within 1,000 feet of the proposed project site. Therefore, the proposed project complies with the provisions of HBZSO Sections 230.96 (E) and (G).
4. The applicant has not provided sufficient evidence to:
(a) Make findings required by Chapter 241, including findings of: no detriment to property values in the neighborhood, lack of detriment to the general welfare and non-adversity of the General Plan, including the Noise Element and Noise Ordinance enacted to pursue it;
Staff has reviewed the proposed project, and has identified sufficient evidence to support findings of approval, based on the project’s compliance with the HBZSO’s established standards for wireless communication facilities. There is no requirement for applicants to demonstrate to the City that there would be no detriment to property values in the neighborhood. City staff are unaware of any negative property value impact claims related to any previously approved wireless communication facility in the City. Further, the appellant has not provided any evidence to support the claim that the project would have an impact to the value of surrounding properties. The project is consistent with the goals and policies of the General Plan, as outlined in Attachment No. 1. Upon installation, the proposed facility is required by Code to comply with established noise ordinance standards.
(b) Assure the findings required by Chapter 241 will remain satisfied over the term of the conditional use permit given that, notwithstanding the City’s Zoning Ordinance, federal law (including but not limited to 47 U.S.C. 1455(a) and 47 C.F.R. 1.6100(b)(7)) entitles AT&T, or another wireless carrier, to increase tower height and width by 20 feet in each direction, and otherwise modify the facility as provided by federal law, without meaningful City review:
Although federal law can preempt the City’s zoning ordinance in some regard as it applies to wireless communication facilities, the above stated scenario would require a new Conditional Use Permit application before any such modification could be made to an existing monopole facility such as is proposed. The subject CUP, if approved, is a discretionary authorization of the identified scope of work only, and does not include any modification outside of the stated scope of work, whether exempt or otherwise. Finally, demonstration of this is not a requirement of the applicant for land use approval by the City.
(c) Demonstrate compliance with the identification of all antennas within 1,000 feet and co-location requirements of Section 230.96 (E)(1)(g) and (G)(5);
HBZSO Section 230.96 (E)(1)(g) and (g)(5) apply to co-location. As previously stated, the proposed project was not subject to the review or approval of a wireless permit, and thus this section is not applicable. For the purposes of Section 230.96 (G)(5), there are no operating wireless facilities within 1,000 feet of the project site, as verified by staff during its review of the CUP application.
(d) Demonstrate to the satisfaction of Section 230.96 (G)(7) regarding compliance with federal rules and regulations, including environmental analysis under the National Environmental Policy act and avoidance of “take” under the Migratory Bird Treaty Act.
HBZSO Section (G)(7) states:
“Interference. To eliminate interference at all times, other than during the 24-hour cure period, the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having adequate spectrum capacity on the City’s 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City’s facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated.”
This section does not require that the applicant demonstrate compliance with either the National Environmental Policy Act (NEPA) or the Migratory Bird Treaty Act (MBTA) as a part of its local discretionary review. There may exist a requirement for the applicant to comply with NEPA or the MBTA for compliance with the federal license, but these standards are not a local requirement and therefore not a requirement to obtain land use approval to install and operate a wireless facility in Huntington Beach.
5. The project, including the 60-foot tower (which can be raised to 80 feet by-right under federal law), cooling equipment, 20kW diesel generator, and associated fuel adjacent to residential properties:
(a) Does not qualify for a CEQA exemption under CEQA Guidelines Section 15303 because the project does not entail the conversion or construction of a “small structure” within the meaning of the regulation and case law, and
(b) “Unusual circumstances” also exist in light of the factors listed above and the potential harm to Cooper’s hawks documented to roost and nest in trees on and adjacent to the project site.
The project does qualify for an exemption under CEQA Guidelines Section 15303. In the scope of describing what is considered a small structure, the Guidelines offer a range of structures that include, at the maximum, a 10,000 sq. ft. commercial building, which is far larger in size and scope than the proposed project.
The appellant’s letter identifies that public comments advise the existence of the Cooper’s hawk nesting on the subject property. While citing the presence of Cooper’s hawk does not indicate that the project will have a significant impact on them, Cooper’s hawk is a protected species under the MBTA. The MBTA protects over 1,000 species, including geese, ducks, shorebirds, raptors, songbirds and many relatively common species. Although existing trees within and near the project site may contain nesting areas for birds, the project site does not serve as a wildlife corridor or habitat linkage as it is essentially isolated vegetation within an urbanized area. Notwithstanding, the Federal MBTA protects migratory birds and their occupied nests and eggs and as such, any vegetation removal should occur outside of the bird-nesting season. If active nests are encountered outside of the nesting season, standard protocols of the regulatory agencies such as the California Department of Fish and Wildlife are in place to ensure no impacts to protected species would occur. As such, the presence of Cooper’s hawk and implementation of applicable laws and regulations to protect Cooper’s hawk as well as other avian species do not constitute unusual circumstances.
Further, as noted in No. 4 above, compliance with the MBTA is not a requirement of the HBZSO, nor an applicable function of CEQA, in that the project is exempt and complies with all applicable development standards for wireless communication facilities.
6. Applicant has not demonstrated federal preemption applies due to the applicant:
(a) Having submitted a materially incomplete application,
(b) Providing inadequate documentation of inability to substantially close a gap in personal wireless services, or otherwise meet the standard for federal preemption, in the event this specific application is denied, and
(c) Because the City must retain an independent expert opinion pursuant to Section 230.96(A) and (F) prior to accepting a claim of denial of effective service, and has not done so.
As discussed previously, the application for the subject CUP is complete. The applicant’s project description (Attachment No. 3) provides documentation that a gap in coverage exists.
The language referenced above is in reference to HBZSO Section 230.96 (F), wherein an applicant may assert federal preemption at time of appeal to the Planning Commission. It should be noted that the federal preemption would apply only if and when the discretionary review body were to successfully vote to deny an application for a CUP to install and operate a wireless communication facility. The Zoning Administrator acted to approve the CUP application, which did not require the applicant to invoke the federal preemption. Further, the applicant would have had to file a request for Denial of Effective Service pursuant to HBZSO Section 230.96 (F) during the appeal period following the Zoning Administrator’s action. The project was not denied and the applicant did not have to file a request for a Denial of Effective Service. Therefore, this section is not applicable to the subject project and the appellant’s objection is moot.
Strategic Plan Goal:
Infrastructure & Parks
Attachments:
1. Suggested Findings and Conditions of Approval
2. Site Plans, Elevations, and Photo-simulations
3. Notice of Appeal received and dated June 23, 2023
4. Zoning Justification Letter
5. Gap in Coverage Exhibit
6. Planning Commission Staff Report dated June 13, 2023