Planning Commission Meeting

MINUTES PLANNING COMMISSION Tuesday, August 9, 2016 4:00 pm - 5:30 pm 7:00 pm - 11:00 pm 580 PACIFIC STREET, COUNCIL CHAMBERS MONTEREY, CALIFORNIA Commissioners Present: Fletcher, Millich, Davis (evening session only), Dawson, Latasa, Widmar Commissioners Absent: Reed Staff Members Present: Chief of Planning Engineering & Environmental Compliance Cole, Principal Planner Caraker, Senior Associate Planner Bennett, City Attorney Davi, Recording Secretary Leinen CALL TO ORDER Chair Fletcher called the meeting to order at 4:02 p.m. CONSENT ITEMS Commissioner Dawson made a motion to approve the Consent Items with amendments to the minutes. Commissioner Widmar seconded the motion. On a motion by Commissioner Dawson, seconded by Commissioner Widmar, and carried by the following vote, the Planning Commission approved the CONSENT ITEMS with amendments to the minutes: AYES: 5 COMMISSIONERS: Fletcher, Millich, Dawson, Latasa, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 2 COMMISSIONERS: Davis, Reed ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None Approval of Minutes 1. July 26, 2016 ACTION: Approved as amended. Commissioner Latasa requested that page five of the minutes be corrected by removing former Commissioner Garden’s name. ***End of Consent Agenda*** PUBLIC COMMENTS None. PUBLIC HEARING 2. Consider 2 Upper Ragsdale Drive; Use Permit 16-126 for a New Core and Shell Medical Office Building (Building A) on 25% Slopes, Variance 16-261 for Increasing the Limiting Height from 35’ to 40’-7”, and Lot Line Adjustment 16-313 for Resizing and Reconfiguring Parcels 4 and 5; Applicant and Owner Community Hospital Properties; I- R-150-D-2 Zoning District (CEQA Initial Study with Mitigated Negative Declaration Previously Circulated and Certified) Planning Commission Minutes Tuesday, August 9, 2016 ACTION: Adopted Resolutions approving Use Permit 16-126 for a new core and shell medical office building on 25% slopes, Variance, 16-261 for increasing the limiting height from 35’ to 40’-7” and Lot Line Adjustment 16-313 for resizing and reconfiguring Parcels 4 and 5. Staff Presentation/Commissioner Questions Fernanda Roveri presented the Agenda Report and answered Commissioners’ questions. Kimberly Cole was also present and answered Commissioners’ questions. Applicant Tim Nylen, Vice President of Community Hospital Properties, gave a brief history of the project and said the proposed building will be used for Peninsula Primary Care. Mr. Nylen said Peninsula Primary care hopes to increase their physicians from 40 to 80 over the next five years to meet community need. Mr. Nylen said the project is a 23 million dollar project and asked the Planning Commission to approve the variance to avoid any additional costs. Don Myers of Boulder Associates, project architect, gave a presentation and showed photo simulations of the proposed project. Mr. Myers said the proposed building is indicative of the height and character of the other two buildings on the campus, and that the building will be the shortest of the three buildings and appear to be 35 feet tall. He also said that the number of trees proposed for removal has increased due to the fire district requiring an increased fire line and storm water requirements. Mr. Myers described other design options explored for the building and said a variance is necessary because the way building height is measured today is different than when the project was originally approved. In response to Chair Fletcher’s question, Mr. Myers said if the site was graded to prevent the need for a height variance, more trees would have to be removed and it would affect a grove of trees that would otherwise be preserved. In response to Commissioner Latasa’s question, Mr. Nylen said the site obtained water credits through a Water District and CalAm approved purchase from a private party. Public Comments None. Commissioner Comments Commissioner Dawson said there is an 18 foot differential on the site from one end to the other, and because of this, the height variance should be approved. Commissioner Widmar said he was a Planning Commissioner when the project was originally approved and that the proposal is a good project that has improved in the years since its original approval. He also said the building is appropriate for the site and will be harmonious with the campus. Commissioner Widmar made a motion to adopt Resolutions approving Use Permit 16-126 for a new core and shell medical office building on 25% slopes, Variance, 16-261 for increasing the limiting height from 35’ to 40’-7” and Lot Line Adjustment 16-313 for resizing and reconfiguring Parcels 4 and 5. Vice Chair Millich seconded the motion. Commissioner Latasa said he agrees with the other Commissioners’ comments and that a good case for hardship was made to approve the variance. He also said the architect did a handsome job on the building and that he supports the motion. On a motion by Commissioner Widmar, seconded by Commissioner Millich, and carried by the following vote, the Planning Commission adopt Resolutions approving Use Permit 16-126 for a Planning Commission Meeting Minutes Tuesday, August 9, 2016 2  Planning Commission Minutes Tuesday, August 9, 2016 new core and shell medical office building on 25% slopes, Variance, 16-261 for increasing the limiting height from 35’ to 40’-7” and Lot Line Adjustment 16-313 for resizing and reconfiguring Parcels 4 and 5: AYES: 5 COMMISSIONERS: Fletcher, Millich, Dawson, Latasa, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 2 COMMISSIONERS: Davis, Reed ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None Chair Fletcher adjourned the afternoon session at 4:42 p.m. RECONVENE ***Evening Session Agenda*** 7:00 – 11:00 pm Chair Fletcher called the evening session to order at 7:00 p.m. CONTINUED PUBLIC COMMENTS None. PUBLIC HEARING 3. Consider Portion of the City of Monterey Right-of-Way Immediately Adjacent to 860 Wave Street; Appeal 16-292 of a Zoning Administrator Decision on Use Permit 16-138 to Approve a New Personal Wireless Service (PWS) Facility; Appellant Nina Beety; Owner City of Monterey; Zoning District C-2; Exempt from CEQA Requirements per Article 19, 15303 ACTION: Continued the appeal to August 23, 2016 for the project applicant to submit a revised plan. Staff Presentation/Commissioner Questions Elizabeth Caraker presented the Agenda Report and answered Commissioners’ questions. Ms. Caraker said that Zoning Administrator Todd Bennett, Consulting Attorney Tripp May, and City Attorney Christine Davi are present and available to answer questions. Vice Chair Millich said he is concerned because he interprets Code Section 38.211 of the Appellate Body to state that the Planning Commission hearing is not a de novo hearing because it takes into account the appellate record along with additional evidence. Ms. Davi said from the City’s perspective, a de novo hearing is when additional evidence is allowed and said City Code does not say that deference has to be given to the factual findings of the Zoning Administrator. Commissioner Dawson asked if would be appropriate during the Planning Commission’s deliberations to make a suggestion on how to make the design of the proposed personal wireless service (PWS) facility more aesthetically pleasing. Ms. Davi deferred to Mr. May, who said if the applicant is agreeable to the change there would be no problem. Appellant Nina Beety, appellant, asked what financial gain the City will have from the proposed cell tower and future small cell antennas, whether the City has proposals from other cellular companies, Planning Commission Meeting Minutes Tuesday, August 9, 2016 3 Planning Commission Minutes Tuesday, August 9, 2016 what the maximum emissions from the each of the proposed cell antennas will be, and why Crown Castle’s Jerrold Bushberg provided extensive health information which has nothing to do with what the City can legally decide. Ms. Beety said that the proposed project is precedent-setting and, if approved, the City will be required to approve all future cell tower proposals in the public right-of-way. She also spoke regarding the aesthetic precedent being set and the cumulative aesthetic effect. Ms. Beety said this was a lack of due process because the City heard the application before the Planning Commission’s study session and adoption of Wireless Ordinance amendments. She also said there is no proven need for the cell tower because there is no significant gap in coverage, and that the City’s Ordinance permits denial of the project. Ms. Beety said Public Utilities Codes 7901 and 7901.1 allow the City to keep cell towers out of the public right-of-way and prohibit incommoding those with electromagnetic sensitivity (EMS). Ms. Beety raised the potential conflict of interest of the City collecting rent on cell towers that they permit. She also said the Zoning Administrator is not qualified to determine that the tower would pose no risk to public health or safety. Ms. Beety also raised the issues of a lack of enforcement by the F.C.C., emissions from the proposed tower, factual errors with staff’s presentation, ADA discrimination, effects of the proposed tower on visitors to Monterey with EMS, the report provided to Crown Castle by Dr. Bushberg and the qualifications of Dr. Bushberg, the Telecom Law Firm, the potential of an apartment building being built close to the proposed cell tower, and the City’s appeal process being confusing. Ms. Beety said she is happy to provide the Planning Commission a copy of Public Utilities Code 7901. Applicant Mark Hansen, Government Relationship Specialist with Crown Castle, asked the Planning Commission to deny the appeal and approve staff’s recommendation. Commissioner Dawson asked if it would be possible to underground the power to the pole in order to have the antenna panels against the wood to improve the aesthetics. Mr. Hansen said even if the antennas were flush-mounted, the climbing space on the pole may still need to be preserved and that he would have to take the question back to his construction experts. Public Comments None. Commissioner Comments In response to Commissioner Davis’ question, Mr. Bennett confirmed that this is the first application for a pole-mounted PWS facility in the City. Mr. Bennett also said co-location of PWS facilities is the preferred option. Mr. May said in the City, approval of the project does not set a baseline dictating how all other facilities must look, but if approved, the tower will be an existing facility in the right-of-way and certain federal regulations would require the City to approve modifications to it. In response to Commissioner Dawson’s question regarding aesthetics, Mr. May confirmed that local entities can control aesthetics of PWS facilities. Vice Chair Millich asked if it would be beneficial to continue the application to give the applicant time to determine whether aesthetic changes can be made to the tower. Commissioner Widmar said the appeal is not based on the aesthetics of the antenna and the decision of the Planning Commission should be based on the appeal. Vice Chair Millich said additional evidence has been provided by the applicant and questions that are part of the administrative record have been asked, so the matter of aesthetics is properly before the Planning Commission. Planning Commission Meeting Minutes Tuesday, August 9, 2016 4 Planning Commission Minutes Tuesday, August 9, 2016 In response to Commissioner Widmar’s question, Mr. May said there is not a standard definition for “significant gap in coverage.” Commissioner Widmar said a gap could also mean having adequate coverage and a strong signal, but not enough capacity in an area. He said that the finding of a gap in coverage could likely always be made. Mr. May said because there is not a definition that is required to be followed, most courts either avoid the issue or assume that a gap exists and then move to the next part of the analysis, whether the tower is the least intrusive means. Mr. May also said that Public Utilities Code 7901 allows telephone and telegraph corporations to use the right of way, subject to some limitations. In response to Commissioner Davis’ question regarding Condition of Approval #14 of the Resolution, Mr. Bennett said the Condition of Approval was added due to comments from Mr. Donangelo of the Cannery Row Company at the Zoning Administrator hearing to lessen the potential impacts to one particular property. Mr. Bennett also said that the pole has to be placed in a location where it can receive power and also meet City guidelines for streetlights and utility poles. Mr. Bennett said the applicant’s intention was to remove and replace the existing pole. Chair Fletcher said the appellant’s presentation had many questions, and asked how these questions would be addressed. Ms. Caraker responded to questions raised by the appellant and said at this time the City does not have any plans for financial gain from cell towers and there are no other formal proposals or long range plans at this time. Chair Fletcher said the pole could have a significant visual impact and that he does not think the pole is appropriate for the City of Monterey. Commissioner Dawson said the Planning Commission is charged with deciding whether the Zoning Administrator made a mistake in approving the application, and he moved to deny the appeal. Mr. May asked if any further discussion with the applicant regarding the undergrounding of utilities was needed. Commissioner Dawson withdrew his motion. Mr. Hansen addressed the Commission and said if technically feasible, Crown Castle is agreeable to flush mounting the antenna panels and adding a radome to the top of the pole. He said another possibility would be to leave the street light and have an additional straight pole with a minimal profile. Vice Chair Millich said the main issue appears to be aesthetics, so he is in favor of continuing the appeal in order to have the applicant bring back aesthetic details for the Commission’s approval. In response to Commissioner Dawson’s question regarding legal timeframes, Mr. May said the best approach if continuing the item would be to enter a tolling agreement with the applicant to avoid any uncertainty. Vice Chair Millich asked the applicant if he would agree to bring back revised plans for the Commission to review. Mr. Hansen said he would prefer an approval with Conditions of Approval rather than a continuance, but he would agree to come back with the designs as discussed with the radome or flush-mounted panels if technically feasible. Mr. Hansen confirmed that two weeks would be enough time for him to bring back revised plans. Vice Chair Millich made a motion to continue the appeal to August 23, 2016 for the project applicant to submit a revised plan. Commissioner Latasa seconded the motion. Commissioner Latasa asked what the appellant’s interest in the project is, seeing that her address listed on the application is in another area of the City. Chair Fletcher invited the appellant to come forward to address the question. Ms. Beety said the project is precedent setting, will bring antennas into the neighborhoods, interferes with her access to the area where the facility will be placed, and will interfere with her access to her home and ability to Planning Commission Meeting Minutes Tuesday, August 9, 2016 5  Planning Commission Minutes Tuesday, August 9, 2016 travel freely within the City. Chair Fletcher reopened public comment. Seeing no one wishing to speak, Chair Fletcher closed public comment. On a motion by Commissioner Millich, seconded by Commissioner Latasa, and carried by the following vote, the Planning Commission continued the appeal to August 23, 2016 for the project applicant to submit a revised plan: AYES: 6 COMMISSIONERS: Fletcher, Millich, Dawson, Davis, Latasa, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Reed ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None STUDY SESSION 4. Receive Report on Wireless Facilities Regulations ACTION: Received a report on federal and State regulations pertaining to personal wireless facilities. Staff Presentation/Commissioner Questions Ms. Caraker reintroduced Tripp May of Telecom Law Firm, who provided an overview of F.C.C and telecom regulations in relation of the City’s current wireless guidelines. Mr. Trip provided information on macrocells, small cell facilities, cellular facility regulations, a regulatory overview for wireless facilities, the Telecommunications Act, California Public Utilities Code, Government Code AB57, F.C.C. regulations and definitions, stealth macrocells, camouflaged macrocells, and the public right-of-way. In response to Commissioner Dawson’s question, Mr. Tripp said he does not think that the use of cable television will be completely replaced by wireless internet television, however, wireless internet is being used in many ways today, including in vending machines, parking meters, and traffic signals. In response to Commissioner Latasa’s question regarding the potential of the F.C.C. changing their safety standards, Mr. Tripp said the F.C.C. sets the standard at 50 times lower than the power density that would be required to cause a change in human physiology, so there is a safety margin. He also said if the safety standard was increased, the facilities would have to be closer together and there would be additional safety concerns. In response to Commissioner Davis’ question, Ms. Caraker said the evening’s study session was to give the Commissioners additional knowledge on wireless regulations in preparation for review of the City’s revised wireless ordinance. Mr. Tripp said the biggest changes the Commission will see are changes are regarding “deemed approval” and “deemed granted” and bolstered design guidelines and applications procedures. Commissioner Latasa said it seems as though a majority of the Zoning Administrator hearings are for wireless facilities, but ARC hardly ever sees the applications, and he asked if there has been a change in procedures. Mr. Bennett said that most of the recent applications to the Zoning Administrator have been for modifications to existing facilities, which are required to be approved, and the City goes through a use permit process to provide the public with an opportunity to provide comments. Mr. Tripp added that the City is reviewing the projects administratively to respond to the 60 day timeframe of the law. Planning Commission Meeting Minutes Tuesday, August 9, 2016 6  Planning Commission Minutes Tuesday, August 9, 2016 Public Comments Nina Beety said it is difficult for her to sit in the Council Chambers due to the wifi and that the City has refused to accommodate her. She also said she is very disappointed in City staff for misrepresenting a very complex issue and not giving a balanced presentation. Ms. Beety discussed 5G and said antennas will be everywhere in the City unless action is taken to stop them. She also spoke about a National Toxicology Program report, the Telecommunications Act, concerns with F.C.C. standards and carcinogenic radiation from cellular towers. Ms. Beety expressed concern about a conflict of interest with the Telecom Law Firm and the City. She said it is up the City and the citizens to stand up and interpret the law. Commissioner Comments Chair Fletcher thanked Mr. May. Vice Chair Millich said the presentation by Mr. May was excellent. COMMISSIONERS COMMENTS Vice Chair Millich said he will not be present for the August 23, 2016 meeting of the Planning Commission. INFORMATIONAL REPORTS & STAFF COMMENTS 5. Planning Office Update  Update received.  Ms. Caraker also gave the following updates:  The Wireless Ordinance update will be on the August 23, 2016 Planning Commission agenda.  The proposed revision to the Sign Ordinance will be reviewed by City Council on August 16, 2016.  The Parks and Recreation Commission’s recommendation on the Parks and Recreation Master Plan will be reviewed by the City Council at the end of August.  The Lighthouse Specific Plan will be reviewed by the City Council in September.  There will be a Housing Element Implementation workshop at the end of August. ADJOURNMENT There being no further business, the meeting adjourned at 8:36 p.m. Respectfully Submitted, Approved, Elizabeth Caraker, AICP Chair Principal Planner Planning Commission Planning Commission Meeting Minutes Tuesday, August 9, 2016 7