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19-855RESOLUTION NO. 19.855 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA DENYING APPEAL NO. DEV2O19.O51 AND DENYING GONDITIONAL USE PERMIT NO.2018.078 FOR A WIRELESS COMMUNICATION FACILITY CONCEALED AS A 70' CLOCK TOWER PROPOSED AT WHEATFIELD PARK (30627 MENIFEE ROAD; APN: 364-070-026) WHEREAS, on March 29, 2018 the applicant, Smartlink, filed a formal application with the City of Menifee for a Conditional Use Permit (CUP 2018-078) to allow for the construction and operation of a wireless communication facility designed as a 7Q-foot-tall clock tower that is proposed to be attached to the existing multi-purpose building at the site, including a 715 square foot lease area to be located at the existing Wheatfield Park; and WHEREAS, on August 14,2019, the Planning Commission of the City of Menifee held a duly noticed public hearing on Conditional Use Permit No. 2018-078, considered all public testimony as well as all materials in the staff report and accompanying documents, which hearing was publicly noticed by a publication in the Press Enterprise, a newspaper of general circulation, an agenda posting, and notice to property owners within 300 feet of the project boundaries, and to persons requesting public notice; and, WHEREAS, at the August 14, 2019 Planning Commission public hearing, based on the public testimony as well as all materials in the staff report and accompanying documents, the City of Menifee Planning Commission instructed staff to prepare a resolution with denial findings for Conditional Use Permit No. 2018-078 and continued the public hearing until September 11,2019; and, WHEREAS, at the September 11, 2019 Planning Commission public hearing, based on the public testimony as well as all materials in the staff report and accompanying documents, the City of Menifee Planning Commission denied Conditional Use Permit No. 2018-078; and, WHEREAS, on September 19, 2019, Smartlink, on behalf of AT&T, filed an application to appeal the Planning Commission's decision, stating that the proposed wireless communications facility would close the existing coverage gap in the area, the proposal meets the City's siting requirements and that the proposa! complies with Federal Communications Commission (FCC) rules and regulations; and, WHEREAS, on November6, 2019, the City Council of the City of Menifee held a public hearing on the appeal of the Project, considered all public testimony, as well as all materials in the staff report and accompanying documents for Conditional Use Permit No. 2O1B-078, which hearing was publicly noticed by a publication in The Press Enterprise, a newspaper of general circulation, an agenda posting, and notice to property owners within 300 feet of the project boundaries, and to persons requesting public notice; and, WHEREAS, at the November 6, 2019 City Council public hearing, the City Council directed staff to research multiple issues including seeking further information on the basis for the applicant's assertion of the existence of a significant gap in coverage and its claim that other alternatives for filling that gap are not feasible or viable and continued the public hearing until December 4,2019; and, Appeal No. DEV2019-051 for Conditional Use Permit No. 2018-078' Page 2of9 WHEREAS, at the December 4, 2019 public hearing, based on the public testimony as well as all materials in the staff report and accompanying documents, the City Council instructed staff to prepare a Resolution with denial findings for DEV2019' 051 and Conditional Use Permit No. 2018-078; and, WHEREAS, at the December 18, 2019 City Council meeting based all materials in the staff report and accompanying documents, the City of Menifee City Council denied Appeal No. DEV2019-051 and Conditional Use Permit No. 2018-078. NOW, THEREFORE, BE !T RESOLVED that the City Council of the City of Menifee makes the following Findings: Section 1:Consisfency with the General Plan. The projecf is consisfent with the General Plan Land lJse Map, and applicable General Plan obiectives, policies, and programs: Consistencv with General Plan The General Plan land use of the subject site is the Menifee Village Specific Plan No. 158 (SP #158). More specifically, the site is Iocated within Planning Area 2-2 of the Specific Plan. Planning Area 2-2 is designated as Sports Park which allows a variety of active recreational uses. The proposed Project would consist of a wireless communications facility concealed as a 70' clock tower that will be attached to the existing multi-purpose building and a 715 square foot Iease area to be located at an existing sports park. The City's Wireless Communications Facilities code allows for stand alone wireless communication facilities in all recreational and Open Space zones when concealed or disguised. with rvation (MSHCP) The City of Menifee has two (2) active conservation plans within the City's boundary, the Western Riverside County MSHCP, and the Stephens' Kangaroo Rat Habitat Conservation Plan (SKR-HCP). The subject site is within the jurisdiction of the SKR-HCP and the Western Riverside County MSHCP. The project site is located inside the Stephen's Kangaroo Rat (Dipodomys stephensi) (SKR) Fee Area. The proposed project is located within the boundaries of the Western Riverside County Multiple Species Habitat Conservation Plan; however, the project is not located with a Criteria Cell or Cel! Group, and the project area is developed/disturbed. The project would be subject to the payment of fees consistent with Riverside County Ordinance No. 810.2 as adopted by the City of Menifee. Therefore, the project would not conflict with the provisions of the adopted HCP, Natura! Conservation Community Plan, or other approved local, regional, or State conservation plan and the impact is considered less than significant. Although the proposed project is allowed within the General Plan designation of SP #158 and is consistent with the MSHCP plan, the S Appeal No. DEV20L9-051 for Conditiona! Use Permit No. 2018-078 Page 3 of 9 a project is inconsisfenf with the following City of Menifee General Plan goals and policies: Land Use LU-1.4 Preserve, protect, and enhance esfab/ished rural, esfafe, and residential neighborhoods by providing senstftve and well- designed transitions (building design, landscape, etc.) between fhese neighborhoods and adjoining areas. Open Space and Conservation OSC-S.S A comprehensive sysfem of high quality parks and recreation programs that meets the diverse needs of the community. The project proposes a wireless communication facility that will be concealed as a 70' clock tower and would be attached to the existing multi-purpose building at Wheatfield Park. Currently, the existing park contains ballfield lights that are approximately 50-60 feet in overall height which are the only objects located at the park or in the immediate vicinity of the project site that are of a similar height. However, the height of the ballfield lights are still approximately 10-20 feet lower than the proposed clock tower height and the poles of the ballfield lights are not as large in size as the proposed tower; therefore, the ba!lfield lights are less visually intrusive than the proposed tower. The proposed clock tower would be the only structure of its mass and height in the immediate vicinity of the project site. There is an existing wireless communications facility located to the south of the project site on Bell Mountain; however, that facility is still approximately a mile away from the project site. The addition of the wireless communication facility would degrade the overall aesthetic quality of the existing park, adjacent residential neighborhoods and surrounding areas and would be in conflict with LU-1.4 and OSC-8.5. Project Design CD-3.3 Minimize visual impacts of public and private facilities and support structures through sensifrve srTe design and construction. This includes, but is not limited to: appropriate placement of facilities; undergrounding, where possib/e; and aesthetic design (e.9., cell tower stealthing). The project proposes a stealth wireless communication facility that would be concealed as a 70' clock tower and attached to the existing multi-purpose building on-site. The proposed location of the tower interior to the site and attached to the existing main building somewhat minimizes the potential visual impacts of the tower. However, given the overall proposed height of 70' and the overall size of the proposed structure, visual impacts would stil! occur as the structure would be the only structure of this height and size in the a o Appeal No. DEV2019-051 for Conditional Use Permit No. 2Ot8-O78 Page 4of9 immediate vicinity for quite a distance; therefore, creating an inconsistency with General Plan Policy CD-3.3. Due to the inconsistencies with the above mentioned General Plan policies, the project is not consistent with applicable General Plan objectives, policies, and programs and the City Council cannot make this finding. Consisfe ncy with the Zoning Code. The projecf is consisfe nt with the zone designation Map, and applicable development standards within the zone designation: The zoning classification of the project site is Specific Plan as the subject site is located within Planning Area 2-2 of SP #158. As mentioned above, Planning Area 2-2 is designated as Sports Park which allows a variety of active recreational uses. The proposed Project would consist of a wireless communications facility concealed as a 70' clock tower that wil! be attached to the existing main building at the subject site. The Project also proposes a 715 square foot lease area that will enclose the supporting equipment for the facility. The Project is proposed at an existing sports park within the City. Chapter 9.08 of the City's Municipal Code (MMC), Siting of Wireless Communications Facilities, allows for stand alone wireless communication facilities in all recreational and Open Space zones when concealed or disguised. MMC Section 9.08.050 "General Requirements for All Telecommunication Facilities and Antennas" (A) requires that facilities "Be consistent with the applicable general plan, any specific plan, zoning, design guidelines, and the permit requirements of any agency which has jurisdiction over the project. As noted in Section 1 above, the project is not consistent with General Plan Policies LU-1.4, OSC-8.5 and CD-3.3. Therefore, the project is not consistent with this standard of MMC Chapter 9.08. ln addition, MMC Section 9.08.050 (D) requires that facilities "Be sited to minimize their visibility as much as possible with maximum screening of support equipment and facilities." Although the facility is proposed to be a concealed facility, the 70 foot height of the clock tower/wireless facility is highly visible and surrounding development is not of comparable heights. The facility is situated in the center of a park, surrounded by sports fields. Development around the park consists of single-family residential development, not exceeding 2-stories in height, and a school, which also is approximately 2-stories in height. Therefore, the project is not consistent with this standard of MMC 9.08. The zoning of parcels surrounding the subject site includes the Menifee Village Specific Plan to the north, east and west and the One-Family Dwellings (R-1) zone to the south. The proposed project, a wireless communications facility concealed as a clock tower, is not compatible with surrounding residential zoning due to height and visibility. The maximum height allowed in the R-1 zone is three stories, not to exceed 40 feet. Therefore, the City Council cannot make this finding. Section 2: Appeal No. DEV2019-05L for Conditional Use Permit No. 2O18-O78 Page 5 of 9 Section 3: Section 4: Surrounding Uses. Approval of the application will not create conditions materially detrimental to the public health, safety and general welfare or injurious to or incompatible with other properties or land uses in the project vicinity. The proposed project is aesthetically incompatible with the surrounding uses and neighborhoods in the area. The project proposes a 70' wireless communications facility that will be concealed as a clock tower and will be attached to the existing multi-purpose building at the site. The project site is surrounded by existing residences and vacant land to the north and existing residences to the south and east of the site. Bell Mountain Middle School and Mount San Jacinto Community College are located directly to the west of the site. As previously mentioned, the existing park contains ballfield lights that are approximately 50-60 feet in overall height which are the only objects located at the park or in the immediate vicinity of the project site that are of a similar height. However, the overall height of the ballfield lights are still approximately 10-20 feet lower than the proposed clock tower height. The poles of the ballfield lights are not as large in size as the proposed tower; therefore, the ballfield lights are less visually intrusive than the proposed tower. The overall height and mass of the proposed tower causes the proposa! to be aesthetically incompatible with other properties or land uses in the project vicinity. Separately and independently, the City was presented with testimony from real estate agents and property owners that, due to the height, appearance, and view-obstructing characteristics of the facility, the facility would cause a decrease in property values to surrounding and nearby homes. Other members of the public presented evidence suggesting that the facility would present an attractive nuisance for indrviduals seeking to climb the facility and/or would present other hazards including catching fire or falling over. Given the incompatibility with the surrounding uses and neighborhoods, the project applicant should sufficiently consider alternatives to the project including alternative project sites where a clock tower of this size would be compatible with other properties or land uses in the immediate area. Therefore, the City Council cannot make this finding. Compliance with CEQA. Processing and denial of the permit application are in compliance with the requirements of the California Environmental Quality Act. The proposed use has been determined to be Statutorily Exempt ("Projects Which Are Disapproved") under the California Environmental Quality Act (CEQA) and CEQA Guidelines, Section 15270. CEQA does not apply to projects which a public agency rejects or disapproves. Effective Prohibition and Federal Preemption. Notwithstanding the existence of otherwise valid grounds, based on substantial evidence, for Section 5: Appeal No. DEV2019-051for Conditional Use Permit No. 2O18'O78 Page 6 of 9 the denial of the permit application, the Federal Telecommunications Act requires approval of the facility because denial of the application will result in a significant gap in coverage that cannot be filled in a /ess intrusive manner. Online coverage map information presented to the City Council on November 6, 2019 indicates that AT&T's wireless coverage in the asserted gap area is uniformly present and sufficient. AT&T responds that its online "Coverage Viewer" tool contains a disclaimer that actual coverage in an area "may differ from the website map graphics, and it may be affected by such things as terrain, weather, network changes, foliage, buildings, construction, high-usage periods, customer equipment, and other factors." When one map (the online map) shows ubiquitous coverage and another map (the propagation maps provided to City staff) purportedly show a"significanf coverage g?P," it cannot fairly be argued that one map "approximates" the other. To the contrary, the two maps stand for diametrically opposed propositions. That irreconcilable and marked inconsistency undermines the credibility and reliability of the data presented to the City. Moreover, while AT&T explains the various factors that may influence the results of its online coverage map depictions, it does not provide similar information related to the assumptions underlying the propagation maps that it tendered to City staff. Those propagation maps, Iike the online maps, are merely forecasting tools. They are not depictions of actual drive test data; rather, they merely approximate existing and proposed coverage based on modeling assumptions. AT&T's engineer states that the information is "developed from terrain and clutter databases, which simulate the environment, and propagation models that simulate signal propagation in the presence of terrain and clutter variation." Beyond that general statement, the City has not been provided any description of those assumptions, much less a description as to how, if at all, those assumptions differ from the assumptions used in the online maps. lt is altogether possible that the assumptions regarding "terrain, weather, network changes, foliage, buildings, construction, high-usage periods, customer equipment, and other factors" or the "terrain and clutter variation" in the propagation maps are the same, or Iess favorable, or less accurate, than those that are used for the online coverage map forecasting tool. The propagation maps provided by the applicant do not show any area where coverage does not exist. Rather, the maps provided by the applicant characterize the signal categories as "indoor," "in-vehicle," and "OUtdOOr." BaSed On the Online maps, it appears that an "OutdOOr" Signal is sufficient to constitute "cover?ge"; more to the point, AT&T does not provide argument or analysis to demonstrate how the absence of indoor, in-vehicle, or outdoor coverage is (or is not) sufficient to demonstrate the existence of a coverage gap. ln a later set of maps provided by the applicant, the color scheme and depiction of coverage remained constant, but the legend was changed so that "indoor" coverage became "reliable" coverage, "in-vehicle" coverage Appeal No. DEV2019-051 for Conditional Use Permit No. 2OL8-O78 Page 7 of 9 became "marginally reliable" coverage, and "outdoor coverage" became "unreliable" coverage. Again, no evidence or authority was provided for the proposition that a significant gap exists if wireless signal is not reliable in a vehicle or in a household. It is also apparent that the assertion of a coverage gap is based at least in part on forecasted, as opposed to actual, customer demand. This is noted in the "AT&T Mobility Radio Frequency Statement Wheatfield Park, Menifee CA" prepared by Mahesh Kolur (the "Kolur Report"). The Kolur Report begins by noting that .AT&T must knit together its spectrum assets to address customers' existing usage and forecasted demand for wireless services." The extent to which "forecasted demand" formed the basis for AT&T's assertion of an existing "coverage gap" is not specified; nor has AT&T provided factual or legal basis for including "forecasted demand" in an existing coverage gap analysis. Next, AT&T appears to define its "gap" aS one that relates to "LTE Coverage." The Kolur Report states "the proposed wireless communications facility in Wheatfield Park is needed fo close a LTE service coverage gap in an arca roughly ordered by Long Meadow Drive ..." The report continues by stating that "existing sites do not provide sufficient LTE service in the gap area. To meet ifs coverage objectives, AT&T needs to construct a new wireless communications facility." The report does not ever specifically define AT&T's "coverage objectives" or an 'LTE service coverage g?P," much less explain how either of those standards satisfy the "significant coverage gap" test under the Federal Telecommunications Act. The Kolur Report also does nof claim that the asserted "significant gap" relates to an inability to place or maintain calls. Rather, the Kolur Report appears to be focused on the inability to bring 4G LTE services indoors, stating: "the proposed facility will close this service coverage gap and provide sufficient 4G LTE, in-building coverage for AT&T customers in the affected area." Thus, the Kolur Report does nof identify a shortcoming in coverage when it comes to making phone calls; nor does it identify any shortcoming in data services (at least when delivered at 3G speeds). Rather, it defines the "gap" as relating to the ability to provide 4G services indoors. No evidence or argument was provided to show how or why meeting that standard is required by the Federal Telecommunications Act or any other law. Making a different argument for finding a "significant coverage g?P," AT&T notes that its facilities are part of the FirstNet public safety network. But no information has been provided to indicate that the FirstNet network is currently insufficient in the subject area, and when questioned regarding that issue, the applicant's representatives could not produce data regarding that subject. Separately and in combination, each of the foregoing supports the conclusion that there has not been demonstration of the existence of a significant coverage gap. observationsa sufficient Appeal No. DEV2019-05L for Conditional Use Permit No. 2OL8-O78 Page 8 of 9 Further, even if a significant coverage gap existed, there is evidence to suggest that Iess intrusive alternative may be available. During the November 6 2019, City Council Meeting, the applicant's representatives admitted that if a macro-cell tower is not installed in Wheatfield Park, then a series of small cell facilities could be built to address coverage issues. The applicant later claimed, through its engineer, that an expansion of macro facilities was necessary, and that small cells could only be used to improve capacity (not coverage). But, as noted above, the proposed facility in Wheatfield park is proposed to optimize a network and facilitate deployment of additiona! 4G data services in buildings. No evidence has been provided that wireless telephone coverage is unavailable, or that any shortcoming in capacity cannot be remedied with small cell facilities. Additionally, the Wheatfield facility is outside the indicated search ring, suggesting that the applicant's exploration of potential alternative locations could have been more broad than simply looking for available properties within the search ring. Last, the applicant admitted during the public hearing that a vacant site East of 1215 was within the search ring, and that it made an inquiry of that property owner. However, when the owner did not respond to the inquiry within thirty days, there was no further follow up. Had the applicant made an additional effort to confirm interest (or lack thereof) by the property owner, an alternative site may have been identified. Based on the foregoing, the City Council finds that less intrusive alternatives to the proposed site may be available. BE lT FURTHER RESOLVED, the City Council of the City of Menifee hereby denies Appeal No. DEV2019-051 and Conditional Use Permit No. 2018-078 subject to the following: 1. The Findings set out above are true and correct. 2. Appeal No. DEV2019-051 and Conditional Use Permit No.2018-078 is hereby denied. Appeal No. DEV2019-051for Conditional Use Permit No. 2Ot8-O78 Page 9 of 9 PASSED, APPROVED AND ADOPTED this the 18th day of DECEMBER, 2019 14F Attest: A. Manwa Approved as to form: Melching, City Sa STATE OF CALIFORNIA COUNTY OF RIVERSIDE CITY OF MENIFEE l, Sarah A. Manwaring, City Clerk of the City of Menifee, do hereby certify that the foregoing City Council Resolution No. 19-855 was duly adopted by the City Council of the City of Menifee at a meeting thereof held on the 18 of December 2019 by the following vote: SS ) ) ) Ayes: Noes: Absent: Abstain: Liesemeyer, Sobek, August Deines, Zimmerman None None rah A. Man ri ng,MC ty Clerk ' Itnert I FEEIffiD"-;: \\E# O3.