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
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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
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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
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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
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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
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