Planning Commission Meeting

MINUTES PLANNING COMMISSION AFTERNOON SESSION ONLY Tuesday, August 23, 2016 4:00 pm - 5:30 pm 580 PACIFIC STREET, COUNCIL CHAMBERS MONTEREY, CALIFORNIA Commissioners Present: Reed, Fletcher, Davis, Widmar, Dawson, Latasa Commissioners Absent: Millich Staff Members Present: Principal Planner Caraker, Senior Associate Planner Bennett, Recording Secretary Salameh CALL TO ORDER Chair Fletcher called the meeting to order at 4:02 p.m. CONSENT ITEMS Approval of Minutes 1. August 9, 2016 Action: Approved as amended. On a motion by Commissioner Davis, seconded by Commissioner Dawson, and carried by the following vote, the Planning Commission approved the Minutes as amended. AYES: 6 COMMISSIONERS: Reed, Fletcher, Davis, Widmar, Dawson, Latasa NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Millich ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None ***End of Consent Agenda*** PUBLIC COMMENTS None. PUBLIC HEARING 2. 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 (Continued from August 9, 2016) Planning Commission Minutes Tuesday, August 23, 2016 ACTION: Approved Appeal 16-292 of a Zoning Administrator Decision on Use Permit 16-138 and denied Application 16-138 to approve a New Personal Wireless (PWS) Facility. Staff Presentation/Commissioner Questions Senior Associate Planner Bennett presented the Agenda Report and answered Commissioners’ questions. Commissioner Davis asked if the base of the proposed pole for the site would be three feet in width. Commissioner Reed said that it would be three feet in circumference. Commissioner Davis asked if, considering the width of the sidewalk and right-of-way, that would create an accessible clearance for Americans with Disabilities (ADA) standards. Mr. Bennett said that the specific position for the pole within the right-of-way had yet to be determined. He explained that it would be a part of the process involved when the project reached the Building Department. Commissioner Davis asked if the utilities would be underground. Mr. Bennett said yes. Commissioner Reed noted that he had not been present at the August 9, 2016 Planning Commission meeting, but that he had watched it in full. He said that in his understanding, the project could not be approved or disapproved based solely on aesthetics. He expressed concern regarding the ability for the pole to be expanded upon once the project was approved, thus causing potential view impacts. He noted that he believed the City would have no jurisdiction over possible future project expansions upon this site, due to the pole already being in place. Mr. Bennett said that local jurisdictions had authority over time, place and manner of future developments and that the applicant would be responsible for adhering to the City code in matters pertaining to all future projects. He explained that the Federal Communications Commission (FCC) does restrict collocation or expansion of cellular sites and that all projects must meet minimum standards for the facility upon which they are maintained. He said that cellular sites could be expanded upon within specific parameters set forth by the FCC, and the City could not deny expansion if the applicant met all requirements within those parameters. He noted that on recommendation by the consulting attorney, Tripp May, the City was considering inclusion of a 10-year expiration date for these permits in the future, updated ordinance. He said that this would allow for cell towers to be improved as technology advanced. Chair Fletcher asked where the 10-year term originated. Mr. Bennett said that it originated from Mr. May’s suggestion, who had presented at the August 9, 2016 Planning Commission meeting. Chair Fletcher noted that technology advances more rapidly than in 10-year increments. Planning Commission Meeting Minutes Tuesday, August 23, 2016 2 Planning Commission Minutes Tuesday, August 23, 2016 Mr. Bennett said that Mr. May had suggested anything less than a 10-year increment would be over-burdensome. Commissioner Reed asked if the City could negotiate directly with cellular applicants as a landowner in order to request that the cell towers consistently maintain a specific appearance. He expressed unease regarding this particular tower continuing to grow, with the potential to obstruct views over time. Mr. Bennett said that he hesitated to give a formal legal response, but reiterated that the FCC places restrictions on local jurisdictions concerning time, place, and manner of future applications. He noted that communication companies have a right to place facilities within the right-of-way. Commissioner Reed asked if a cellular company would be considered, by the FCC, a telephone company. He said that telephone companies have rights to place facilities within the right-of-way. Mr. Bennett said that it is his understanding that a cellular company was considered a telephone company by the FCC. He said that as a private property owner, one may work with a cell company in terms of size, location, and appearance of the tower, provided that the tower meets the standards for the jurisdiction in which it is located. He said that in this instance, the Planning Commission and the City Council would be acting as the property owner on behalf of the entire city by adopting design guidelines and standards that any facility would need to meet, rather than negotiating them on a case-by-case basis. Commissioner Reed asked if the City had the right to make certain requests or changes regarding cell sites on City property. Mr. Bennett said that his understanding was no; that the City could not make requests or changes as a private property owner could. Commissioner Latasa noted that there had been some discussion at the previous meeting of retaining the existing pole, undergrounding the electrical wiring, and placing devices on a singular pole in a sleeker design. He asked if that option had been explored by the applicant. Mr. Bennett explained that the revised project involved retaining the existing pole with no changes and to install a new, stand-alone utility pole that would only accommodate a new personal wireless service (PWS) facility. He said that the existing utility pole also accommodates a street light and that there were certain conditions street lights must meet in location and distance from one another. He said that because of the conditions outlined, staff believed that maintaining the existing pole and creating a pole with a slimmer profile was the best option. Applicant Mark Hansen, Government Relations Specialist on behalf of Crown Castle, addressed his company’s previous submittal and said that they had made changes to the design in order to create a sleeker and more discreet appearance and allow access to overhead power lines. He said the following of the new design:  A new pole would be built in the public right-of-way at a new location near the northwest corner of 860 Wave Street with no aerial attachments and underground Planning Commission Meeting Minutes Tuesday, August 23, 2016 3 Planning Commission Minutes Tuesday, August 23, 2016 power and optics  Antennas are to be concealed within a pole-top enclosure, which fully reduces visual impacts  Height of the antennas would remain the same as previously proposed  All equipment will be painted to match the new wooden pole  The profile of the pole would be much slimmer in profile He asked that the project be approved by the Planning Commission as recommended by staff. Commissioner Dawson noted if the radios were to be placed underground, they would risk being flooded during heavy rains. Mr. Hansen said that the radios remained on the poles in the redesign. Appellant Nina Beety said that her reasons for requesting that the Planning Commission deny the project were the following:  Overall aesthetics and setting a precedent for significant visual impact  Creation of a precedent for locating more antennas on this particular pole as well as additional poles  A new use for the public right-of-way  The ADA issue of barrier to access  Causing discrimination against a class of disabled people  Enforcing due regulatory power of the City She spoke about wireless capacity versus seamless coverage and noted that the applicant had stated clearly that the purpose of this project was to create a higher cellular capacity. She referred to the correspondence that she sent to Planning Commissioners regarding the legal inability of telephone lines to encumber the public right-of-way and said that the addition of this cellular facility would significantly alter the public right-of-way without public acceptance. She questioned why any mention of her own personal health issues had been removed from the agenda report and explained the differences between ADA and health sensitivities. She said that she is disabled due to electromagnetic field (EMF) emissions and that if the microcell site was built at that sidewalk on Wave Street, people within the same class of disability as she would not be able to access that area, thus creating an issue of discrimination. She asked that her appeal fee be waived based on her disabled status, as well. She said that she was concerned with the ability of cellular companies to expand upon already-exiting poles and asked the Planning Commission to consider that this was the first site in Monterey of its kind; therefore it would be setting a precedent in many ways. Public Comments Patricia Domingo said that she lives in the neighborhood in which the pole is proposed to be installed and expressed concern regarding the aesthetics of the project and potential view impacts. She said that the notification process for items of this magnitude should be reconsidered and mentioned that there were methods of disguising cell towers in order to make them more aesthetically-appealing to their surrounding environments. She said that she felt the approval process had been disorderly and rushed and that attorney Tripp May presented in a conflict of interest. She said that health affects should be taken into consideration and that it would have been helpful to have the City Attorney present at this meeting to answer questions. Planning Commission Meeting Minutes Tuesday, August 23, 2016 4 Planning Commission Minutes Tuesday, August 23, 2016 Commissioner Comments Commissioner Dawson asked if it was possible for the applicant to add another series of antennas to this pole. Mr. Hansen referenced eligible facilities requests that he said he believed Commissioner Dawson was speaking of and explained that there are certain overall height requirements that the tower cannot exceed once installed. He said that the tower could be expanded to a certain degree, but limitations stipulated that no new ground equipment could be installed, overall height could not be extended by 10 feet or 10 percent – whichever was less, and that there could not be any new ground disturbance without a discretionary approval process. Commissioner Dawson asked if it would be possible for a competing company to add antennas to the top of the pole. Mr. Hansen said that he believed that could be invoked one time under an eligible facilities request. Commissioner Reed said that it was his understanding that it was not a one-time invocation, and that the eligible facilities request allowed an expansion of 10 percent or 10 feet total, whichever was less. Commissioner Dawson said that he understood expansion could also include an outward array of utilities. Commissioner Reed said yes, it could. Chair Fletcher asked why the applicant had chosen a wooden pole for the project. Mr. Hansen explained that Crown Castle believed it was the best choice for the community based on the existence of other wooden poles within the area. He said that a steel or fiberglass pole was presumed to stand out more and therefore they had opted against those choices. Chair Fletcher asked if this would set a precedent for the applicant to utilize wooden poles wherever they wished. Mr. Bennett said no; that approval of this application would not set a precedent to utilize that specific design in any future location. Commissioner Davis asked about the timeline required for a facility within the public right- of-way. He asked about the specifics regarding the shot clock for this project. Mr. Bennett explained that if an action is not concluded by the end of the shot clock, the original project proposal would be automatically approved. He said that this particular application was submitted over 150 days prior and that when the August 9, 2016 Planning Commission meeting occurred, the shot clock had expired, but the applicant volunteered to continue the project for an additional two weeks. He noted that the section of the City’s zoning code that refers to PWS facilities does not specifically address microcell sites. Commissioner Reed said that he disagreed with Mr. Bennett, based on the City Attorney’s Planning Commission Meeting Minutes Tuesday, August 23, 2016 5 Planning Commission Minutes Tuesday, August 23, 2016 comments at the August 9, 2016 Planning Commission meeting regarding whether or not the shot clock had stopped. He said that at that meeting, according to the Zoning Administrator’s decision, the shot clock had stopped. He said that he understood the appeal was not part of that decision. Mr. Bennett said that it was his understanding that the consulting attorney had said the matter was unsettled law insofar as to whether an appeal would truly stop the shot clock. He said that because it was unsettled law, the applicant could argue that the shot clock had expired at this point. Commissioner Latasa asked Mr. Bennett if he could explain the appellant’s request to waive any further appeal fees. Mr. Bennett explained that Ms. Beety felt that the appeal fee associated with her appearance at the current meeting created a barrier to her exercise of her rights of due process. Chair Fletcher asked what the policy for appeal fees was. Ms. Caraker said that staff was unable to waive the appeal fees. She said that the City Manager or any member of City Council has the ability to call an item up to be considered without requirement of an additional fee. Chair Fletcher asked what options an applicant or appellant would have if the project was not called up. Ms. Caraker said that currently there were no options, but that the process was under review by the City Council. Commissioner Reed said that despite being an avid cell phone user himself, he understood Ms. Beety’s concerns regarding cellular radiation. He noted that this was a precedent-setting situation and that he believed once this application was approved, there would be an influx of other applications. He expressed concern regarding the chosen location for this site and said that it was a poor location choice because the tower would be very conspicuous. He noted that the Planning Commission should have all of their questions thoroughly answered and that there was not enough time at this meeting to adequately discuss all elements of the project. He said that he felt this was a matter the City Council should consider. Commissioner Davis expressed concern regarding whether it was too late for the Planning Commission to have any impact on this particular location due to the shot clock being stopped. He mentioned that the Planning Commission could work with the applicant on a less conspicuous design and then asked the City Council to give direction concerning further impacts. Commissioner Reed said that he was concerned that the Planning Commission was currently making the presumption that the applicant had the unilateral right to place towers within the public right of way as proposed. Commissioner Widmar asked Commissioner Reed if this was based on his concern that this was a telecommunications service. Planning Commission Meeting Minutes Tuesday, August 23, 2016 6 Planning Commission Minutes Tuesday, August 23, 2016 Commissioner Reed said no, that telephone utilities were installed about 80 years ago and the laws were written for them decades ago. He questioned whether the law had been updated to consider individual cell towers. He said that he felt that individual cell towers did not have the right such as in this case; otherwise these applications would have become prevalent long ago. He noted that if PG&E wanted to hardwire electricity, the company would have the ability within the public right of way. Commissioner Widmar said that Commissioner Reed mentioned a good point and that he had never seen the Planning Commission faced with an issue that created so much uncertainty and surrounded by so many regulations. He asked what action the Planning Commission could take in order to allow a more uniform approach within their scope of regulation. Commissioner Dawson asked if an updated ordinance was within reach. Ms. Caraker said yes, that it would be discussed at the next Planning Commission meeting. Commissioner Reed said that this application must be considered under the current ordinance. Commissioner Dawson said that once a new ordinance was adopted, the Planning Commission would have more capacity concerning decisions made on individual cell towers. He noted that whether this application occurred on the new ordinance or the old, it stood alone because of the precedent that it would set. Commissioner Latasa said that at the previous meeting he had the impression that the Planning Commission had no option but to approve the project. He noted that Commissioner Reed had created a carefully-considered opposing viewpoint and he felt uncertain about the project himself. He noted that he was concerned about the precedent that this project would set. Chair Fletcher said that he believed the City Council should be involved in this project. He said that he was concerned about serious aesthetic impacts to City and was not interested in the financial impacts to a large corporation regarding placement of a singular pole. Commissioner Davis noted that the pole would stand out on the empty lot, and it would be better suited to the lot if it were already built upon. He said that he preferred the updated proposal rather than adding arms to the existing pole, but noted that he was uncertain of the circumstances surrounding the shot clock. Commissioner Dawson said that he believed this was only the beginning for this technology and therefore cell sites would become more compact and less intrusive with time. Commissioner Reed moved to grant the appeal and deny the application for the tower based upon the evidence that was presented at the August 9, 2016 and August 23, 2016 Planning Commission meetings. Commissioner Dawson asked if the appeal would then go to City Council if it was granted. Planning Commission Meeting Minutes Tuesday, August 23, 2016 7  Planning Commission Minutes Tuesday, August 23, 2016 Mr. Bennett said the he anticipated that the applicant would appeal the Planning Commission’s decision to grant the appeal. Commissioner Fletcher noted that he had never seen the Planning Commission struggle so much and that illustrated what a challenging decision this was. Commissioner Widmar said that because of the overall the aesthetics of these sites and particularly in the public right of way, it is not fair to continue to request that the applicant revise their application. He noted that 5th generation (5G) cell sites use higher frequencies and therefore their locations must be considered carefully because more of them would inevitably be placed in order to serve their purpose. He said that he would support Commissioner Reed’s motion based on the specific aesthetics of the site and cumulative aesthetics of future sites. On a motion by Commissioner Reed, seconded by Commissioner Dawson, and carried by the following vote, the Planning Commission approved Appeal 16-292 of a Zoning Administrator Decision on Use Permit 16-138 and denied Application 16-138 to approve a New Personal Wireless (PWS) Facility. AYES: 6 COMMISSIONERS: Reed, Fletcher, Davis, Widmar, Dawson, Latasa NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Millich ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 3. Consider Recommendation to the City Council to Amend City Code Section 38- 112.4, Personal Wireless Service Facilities, to Reflect Changes in Cellular Technology (Exempt from CEQA per Article 19, Section 15305) CONTINUE TO SEPTEMBER 13, 2016 ACTION: Continued to September 13, 2016 Planning Commission meeting. On a motion by Commissioner Davis, seconded by Commissioner Widmar, and carried by the following vote, the Planning Commission continued the item to the September 13, 2016 Planning Commission meeting. AYES: 6 COMMISSIONERS: Reed, Fletcher, Davis, Widmar, Dawson, Latasa NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Millich ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None COMMISSIONERS COMMENTS Commissioner Dawson mentioned the Base Realignment and Closure Symposium that took place on August 16, 2016 and that it was a very interesting meeting. He noted that it may or may not bring good news in the future. Planning Commission Meeting Minutes Tuesday, August 23, 2016 8  Planning Commission Minutes Tuesday, August 23, 2016 INFORMATIONAL REPORTS & STAFF COMMENTS 4. Planning Office Update  Update received  Ms. Caraker also gave the following updates: o The Parks and Recreation Master Plan would be tabled at the City Council special meeting scheduled for August 24, 2016 ADJOURNMENT There being no further business, the meeting adjourned at 5:21 p.m. Respectfully Submitted, Approved, Elizabeth Caraker, AICP Chair Principal Planner Planning Commission Planning Commission Meeting Minutes Tuesday, August 23, 2016 9