Resolution Number 01-5-1-3RESOLUTION NO. 01-5-1-3
DENYING AN APPEAL OF A PLANNING COMMISSION ACTION AND CONFIRMING
CONDITIONAL USE PERMIT (CUP 00-05)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, DENYING AN APPEAL OF A PLANNING
COMMISSION ACTION AND CONFIRMING A REQUEST TO INSTALL,
OPERATE, AND MAINTAIN AN UNMANNED WIRELESS DATA FACILITY
ON THE AQUACATE RESERVOIR TANK LOCATED AT 31301 AQUACATE
ROAD, AND MORE PRECISELY REFERRED TO AS ASSESSORS
PARCEL NUMBER 121-070-04. (PACIFIC BELL WIRELESS)
WHEREAS, Louis Burke, 31351 Aguacate Road, San Juan Capistrano, CA
92675 has appealed the Planning Commission's March 13, 2001, action to approve
Conditional Use Permit 00-05 for property located at 31301 Aguacate Road; and,
WHEREAS, the City of San Juan Capistrano, is owner of real property
described as Assessor's Parcel Number 121-070-04 and located at 31301 Aguacate, San
Juan Capistrano; and,
WHEREAS, O' Neal Communications, 18500 Von Karman Ave. # 870,
Irvine, CA 92612 has requested approval of Conditional Use Permit (CUP) 00-05 to allow
the installation, operation, and maintenance of an unmanned wireless data facility on the
side of the Aquacate Reservoir tank located at 31301 Aquacate Road which is General
Plan -designated "General Open Space' and classified as "Growth Management" on the
Official Zoning Map; and,
WHEREAS, Pacific Bell Wireless on December 6, 2000 has entered into a
five (5) year Communications Facility License Agreement with the City of San Juan
Capistrano for space on the Aquacate Reservoir tank to install a unmanned wireless data
facility; and,
WHEREAS, the proposed project has been processed pursuant to Section
9-2.301, Development Review of the Land Use Code; and,
WHEREAS, the Environmental Administrator has reviewed the project
pursuant to Section 15061 of the California Environmental Quality Act (CEQA) and issued
a Class 3 categorical exemption and caused a Notice of Exemption to be posted pursuant
to Section 15062 of the CEQA Guidelines, and has otherwise complied with all applicable
provisions of the California Environmental Quality Act (CEQA); and,
WHEREAS, the Planning Commission has considered the Environmental
Review Board's determination pursuant to Section 15074 of the California Environmental
Quality Act (CEQA); and,
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WHEREAS, the Planning Commission conducted a duly noticed public
hearing on March 13, 2001 pursuant to Section 9-2.313 of the Municipal Code to consider
public testimony on the proposed project; and,
WHEREAS, the City Council conducted a duly -noticed public meeting on May
1, 2001 pursuant to Section 9-2.313 of the Municipal Code to consider public testimony on
the proposed project.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
San Juan Capistrano does hereby deny the appeal of Louis Burke, and makes the
following findings:
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The proposed project is consistent with the policies and objectives of the San
Juan Capistrano General Plan, specifically, the Community Design Element
because the Community Design Element of the General Plan refers to
specific design criteria that is intended to help protect and enhance the
image and identity of the community, which includes and requires:
a. [Structural] designs which are sensitive to views from all sides.
b. Appropriate use of screening materials for peripheral areas.
The proposed design, which incorporates the placement of panel antennas
attached to the existing water tanks and painted to match the overall color
of the tanks, maintains an unimpeded view and blends the antennae into the
overall form of the water tanks as seen from all visual perspectives.
SECTION 2.
The proposed project complies with all applicable provisions of the Land Use
Code subject to the conditions of approval contained in this resolution.
SECTION 3.
The proposed project complies with all applicable provisions of the City's
administratively approved guidelines for wireless antenna installations.
SECTION 4.
The establishment of the subject public utility upon an existing water tank
would not create any adverse impacts to the surrounding properties, and no
correlation of reduced property values and the establishment of cell sites has
been provided by the appellant to support the claim that property values
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would be reduced; therefore, the appellants claim of loss of property values
is rejected.
SECTION 5.
The proposed project has been designed in a manner in which the addition
of 2,000 pounds or less of related equipment to various locations on-site
would not create a situation that may endanger the public at large. As for the
concern of emissions of radio frequency (RF) electromagnetic fields, the
Federal Communications Commission (FCC) establishes federal guidelines
and rules on radio frequency (RF) electromagnetic fields that transmitting
facilities must comply with, and therefore local authority of this issue is
superseded by Federal Law. Section 332 (c) (47 U.S.C. 332 (c)) paragraph
(7) PRESERVATION OF LOCAL ZONING AUTHORITY- (B) LIMITATIONS -
(iv) "No state or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the Commission's
regulations concerning such emissions." FCC standard for continuous public
exposure is set at a power density of 1,233 in which Pacific Bell Wireless
must comply, and the proposed facility will operate with a maximum power
intensity is 375 at 20' from the site, which is much less than the value
specified by the NCRP. The claim based on Public Safety therefore is
rejected.
SECTION 6.
The closest cellular site is approximately 5,700 feet away from the proposed
project site; therefore, the project site does not constitute an over saturation
of cellular sites. The over saturation claim is therefore invalid and is rejected
as a basis for appeal.
SECTION 7.
Pacific Bell Wireless has signed a Communication Facility License
Agreement with the City, where upon the Licensee assumes all risk of any
damage to the subject access easement. The claim based on easement
road abuse is found to be invalid and is rejected as a basis for appeal.
SECTION 8.
That the proposed antennae facility as defined as an attractive nuisance
does not correlate to the project in consideration, and the appellant has not
provided information in support of this claim. Therefore, the appeal based on
the claim that the site would be an Attractive Nuisance is rejected.
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SECTION 9.
The subject application was processed in accordance with the San Juan
Capistrano Municipal Code. Public notification for Conditional Use Permit
00-05 was executed pursuant to Section 9-2.313 of the Municipal Code; the
Public Hearing notice was published in the Capistrano Valley News and
copies of the notice were posted at City Hall, the Public Library, the
Community Center, and mailed to all real property owners, as shown on the
last equalized assessment roll, within 300 feet of the boundaries of said
parcel. Therefore, the appeal based on the claim that insufficient public
noticing had occurred is rejected.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of
the City of San Juan Capistrano does hereby confirm issuance of a categorical exemption
and confirms approval of the proposed project subject to the following Conditions of
Approval:
CONDITIONS OF APPROVAL
SECTION 1.
Building permit plans shall substantially comply with the preliminary plans
approved by the Planning Commission.
SECTION 2.
Prior to approval of any building permits, the applicant shall submit to the
Fire Chief a list of the quantities of all hazardous, flammable, and
combustible materials, liquids or gases. These liquids and materials are to
be classified according to the "Orange County Fire Authority Chemical
Classification Handout." The submittal shall provide a summary sheet listing
each hazard class, the total quantity of chemicals stored per class and the
total quantity of chemicals used in that class. All forms of materials are to be
converted to units of measure in pounds, gallons, and cubic feet.
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Prior to the issuance of a building permit, the applicant shall submit plans for
review and approval of the Fire Chief. The applicant shall include
information on the plans required by the Fire Chief.
SECTION 4.
The ultimate aesthetic appearance of the completed project shall be subject
to the review and final approval of Planning Department staff to ensure that
the installed equipment is as visually unobtrusive as possible.
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SECTION 5.
Notice of change of ownership shall be provided to the City. Lawfully
constructed wireless data facilities that are no longer in operation shall be
removed promptly from the premises no more than 90 days after the
discontinuation of the facility.
SECTION 6.
The applicant shall agree to indemnify, hold harmless, and defend the City,
its officers, agents, and employees from any and all liability or claims that
may be brought against the City arising out of its approval of this Conditional
Use Permit.
SECTION 7.
The applicant shall repaint the existing water tanks and all associated
wireless equipment prior to final building permit sign -off; and, shall ensure
that all equipment undergoes routine maintenance which keeps the material
and color composition in a state that is not visually obtrusive and blends in
with existing water tanks, subject to review and approval of the Planning
Director and Public Works Director.
SECTION 8.
The applicant shall ensure that all associated coaxial cables are located in
a manner that conceals them from all visual perspectives.
SECTION 9.
A post -construction inspection shall be conducted by the Planning
Department to ensure that adequate landscaping and finish colors are
provided in a manner that blends the wireless facility into the surrounding
environment, subject to final review and approval of the Planning Director.
SECTION 10.
Prior to issuance of building permits the applicant shall conduct a video
survey of the entire length of all access easements to be used by Pacific Bell
Wireless, and shall provide the City of San Juan Capistrano with a file copy,
subject to review and acceptance by the Planning Director.
SECTION 11.
Prior to issuance of building permits the applicant shall obtain a written
release from the Capistrano Valley Water District that confirms that the
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subject reservoirs and the surrounding property have been inspected, and
determined to be structurally sound and stable, subject to review and
approval by the Director of Building & Engineering.
SECTION 12.
All access easement obtained are to be legal and appropriate and all traffic
accessing the site will do so legally as determined by the office of the City
Attorney.
EFFECTIVE DATE AND FINAL APPROVAL: The conditional use must be
established atthe approved location within one year of the final approval ofthe Conditional
Use Permit (CUP). If the preceding requirements are not met within one year of final CUP
approval, the CUP shall be null and void. The Planning Commission may extend the time
period for meeting the requirements for establishment of the use up to one additional year,
provided that a public hearing is held prior to any action on the time extension.
ATTEST:
PASSED, APPROVED, AND ADOPTED this 1" day of May 2001.
WYAT ART, MAYOR
R. MONAHAN, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do
hereby certify that the foregoing Resolution No. 01 -5-1 -3 was duly adopted by the City
Council of the City of San Juan Capistrano at a regular meeting thereof, held the 1 st day
of May 2001, by the following vote:
AYES: Council Members Bathgate, Greiner and Mayor Hart
NOES: Council Members Gelff and Swerdlin
ABSTAIN: None
ABSENT: None
(SEAL)
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R. MONAHAN, CITY CLERK