RES-10105 Denying Conditional Use Permit Cingular WirelessRESOLUTION NO. 10105
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ORANGE DENYING CONDITIONAL USE
PERMIT 2541-05 TO ALLOW THE
INSTALLATION OF A 55-FOOT
WIRELESS COMMUNICATIONS MONO-PINE
ANTENNA AND RELATED EQUIPMENT
FACILITIES AND UPHOLDING APPEAL NO. 507-
06 OF THE PLANNING COMMISSION'S
PRIOR APPROVAL OF
SAME.APPLICANT: CINGULAR WIRELESS WHEREAS, Conditional Use Permit 2541-05 (hereafter, the
CUP) was filed by the Applicant Cingular Wireless in accordance with the provisions
of the City
of Orange Municipal Code; and WHEREAS, the CUP was processed in the time and
manner prescribed by
state and local law; and WHEREAS, the CUP is categorically exempt from
the provisions of the California Environmental Quality Act (CEQA) pursuant to State
CEQA Guidelines Section 15303 (Class 3 - New Construction or Conversion
of Small Structures); and WHEREAS, on April 17, 2006, at a duly noticed
public hearing, the Planning Commission reviewed the CUP and recommended approval thereof by
a 3-2 vote; and WHEREAS, an appeal of the Planning Commission's
decision was duly filed m accordance with Orange Municipal Code
Section 17.08.050; and WHEREAS, the City Council conducted a duly advertised
public hearing on July II,2006, for the purpose
of considering the CUP; and WHEREAS, as further set forth in this Resolution, the
City Council has determined to uphold Appeal No. 507-06 and deny the
requested CUP, finding that substantial evidence exists that the mono-pine antenna will create special problems
for the area in which it is proposed to be located
and cause deterioration of bordering land uses.NOW, THEREFORE, BE IT
RESOLVED BY THE CITY COUNCIL OF THE CITY OF ORANGE that Appeal No. 507-06 shall be
upheld and that the CUP to allow the construction of a 55-foot mono-pine
antenna shall be denied and such denial is supported by
SECTION 1 - FINDINGS 1.
In order to grant a CUP, the Orange Municipal Code requires, among other things,
that the proposed CUP be: (1) consistent with sound principles of land use; (2)be
in response to services required by the community; and (3) considered in relationship
to its effects on the community. A CUP should not be granted if it will cause
deterioration of bordering land uses or create special problems for the area in which
it is located. Orange Municipal Code Section 17.12.025.C.3provides that antenna "
shall be located in areas where existing topography, vegetation, buildings or other
structures provide the greatest amount of screening so at to minimize aesthetic impacts
on surrounding land uses. The City Council finds that as proposed, the mono-pine
antenna does not fulfill these CUP standards for the following reasons:a.
Approximately 10 speakers spoke against the proposed mono-pine
antenna and four in favor. Those in opposition expressed their opinion
that the antenna was too tall and would tower above all other structures
in the neighborhood, would be a visual blight from their residences, was
inadequately screened and would harm property values.
b. Those speaking in favor noted the need for the wireless phone service
coverage in the area that would be served by the antenna. The Cingular
Wireless representative stated that Cingular Wireless had documentation
that showed that such antenna do not cause a reduction in neighboring
property values, but no such documentation was submitted. Nor did
Cingular Wireless present anyone with an expertise in appraising
property to counter the neighbors' contentions about the harm done to
their property values. The staff report and accompanying documentation
showed that effort had been made at the Design Review Committee and
Planning Commission levels to try and ensure the mono-pine
design screened the
antenna.c. The evidence showed that the proposed antenna met some of
the standards for a CUP. The proposed antenna was in response to a
service that is required by the community. It was largely uncontroverted
that Cingular Wireless' coverage in the area to be served by the antenna
was poor and that the antenna would significantly improve such
coverage.The proposed accessory building housing related antenna equipment
and the garbage enclosure was well designed and compatible with
the existing church and would not cause any deterioration of bordering
land uses and if anything, would be an improvement over the
existing
structure.d. However, at least as viewed from residences to the north and west of
the site, the proposed 55-foot mono-pine antenna is of
such greater height than nearby existing and proposed trees and buildings that
it would have presented a towering perspective from residences to the
north and the west. The staff report states that "the proposed
antenna structure will not stand out because of its height since it is located in
an area where existing mature trees (ranging in height from 20 to
50 feet) and substantial size buildings (church sanctuary) exist."
The
again states "the proposed antenna structure will not 'stand-out'
because it is surrounded by existing trees of similar size and height." While
there are 20-foot trees immediately adjacent to the antenna location,
there are no immediately adjacent existing trees or facilities of similar
size and height that would "surround" the proposed antenna. The
features noted in the staff report, the church sanctuary and other 50-
foot trees, are largely to the east on Cambridge Street. From
the Cambridge Street perspective, the features noted in the staff report
would cause the proposed antenna to blend in or integrate
with its surroundings.However, from the perspective of residences to the north and
west of the site, which are the closest in proximity to the
proposed antenna, no features of a similar height exist. The 20-foot trees would
be just a little over one third the height of the proposed antenna,
which would be 35 feet or 175% higher than any nearby
landscaping or facilities. The landscaping that would accompany the proposed
antenna would not be of significant assistance since it would not be of
any greater height than what already exists. Thus, from the
perspective of the residential neighborhoods that are immediately adjacent to
the site, the proposed antenna would "stand out" and in fact,
would tower above its surroundings. In the case of residences to the
north, the antenna would starkly protrude into the skyline as residents and
visitors exited the front door. While noting that the mono-pine design
in and of itself provides screening of the antenna, the design was
not shown to be so sophisticated that it would be mistaken as a
real tree, even from a distance. Coupled with other surrounding
trees or features of similar height the mono-pine antenna
could have achieved the stealth and integration contemplated by
the Orange Municipal Code, but without such features, the artificial
tree
will tower noticeably above everything else.e. Although there was some
lay testimony of detrimental health effects from wireless antenna, there is
no credible scientific evidence of such health effects and other than this
lay testimony, the evidence produced at the hearing established that the
antenna and related facilities would
not cause any detrimental health effects.2. The City Council based its decision
on the facts, circumstances and regulations applicable to this proposed project and not based on any
prior approvals or denials
or any potential future zoning considerations.a. Cingular Wireless
submitted a four-plus-page letter from Attorney Robert Jystad
during the hearing. This late submittal provided little opportunity for either the
City Councilor City Attorney to review it in depth. Among other
contentions, Mr. Jystad states that "it cannot be fairly stated that
the Monopine would establish a precedent for these facilities in these locations"
in arguing that the City Council should not consider whether
allowance of the 55-foot mono-pine antenna would set a
precedent
Council should not consider precedence, Mr. Jystad later states that
precedence should be considered. "The City's approval of the 50-
foot monopine on church property at 681 North Rancho Santiago creates
an enviable fact pattern for a Section 332 discrimination claim."
The obvious implication by Mr. Jystad is that because of the precedence
of the prior mono-pine antenna approval, it was bound to approve
this one or face a claim that the City was discriminating
among cellular providers. The record does not support this contention.
The referenced mono-pine antenna at 681 North Rancho Santiago is in
another part of the City, is five feet shorter and is located in an
area where residential lots are a minimum size of 10,000 square feet.
The proposed antenna was to be located in an area where residential lots are a
minimum size of 6,000 feet, i.e., are of greater density and tend to
have shorter setbacks from neighboring properties. Other than both antennas
being located on church property in residential neighborhoods,
Cingular Wireless placed little evidence in the record to establish that the
antenna sites were similar. The discrimination contention is also
severely undermined by the fact that the record showed that Cingular
Wireless owned the antenna at 681
North Rancho Santiago.b. Attorney Jystad also argued that the City Council could
not base its decision on some anticipated future change to the zoning
code. The City Council reviewed this application based on the
facts and regulations applicable to this site and not based on any other approvals
or upon any future considerations of changes to the City'
s antenna zoning regulations. Other than perhaps the wording of the
appeal itself, no evidence was presented that any such changes are
being considered or that the City Council based its decision on anything
other than current regulations and facts specific
to this site.3. The City Council recognizes that its regulations and decisions
cannot prohibit or have the effect of prohibiting the provision of wireless telephone
service. The City Council finds that there was insufficient evidence tending to show that
denial of this specific CUP or the City's regulations in general prohibit or have
the effect of prohibiting the provision of wireless telephone service for
the following reasons:a. Antennas of 32-feet or less are permitted by
right under the Orange Municipal Code in the zone proposed for the 55-
foot antenna. There is a statement in the staff report that states that 26 feet "
is too low to allow for clear signal transmission",
but other than this somewhat conclusionary statement, little evidence was
submitted to show that the same or similar coverage could not
be reasonably and/or practicably accomplished with antenna(s) of less height
that would be overall more stealth and integrated. It appears on its
face that Cingular Wireless itself submitted evidence that the antenna could
be shorter. In his letter Attorney Jystad noted that the "
Monopine
is designed to permit collocation...[a]dditional antenna arrays could be
placed at 30 feet and at 40 feet even under
the
current design
of
such collocation is feasible at these heights for other wireless providers,
as Attorney Jystad implies, then this is at least some evidence that it is
feasible for Cingular Wireless to reduce the height of its antenna to 30
feet or 40 feet.
b. The City Council is willing to consider an antenna on this site that would
be better integrated with the surrounding community and specifically
with the property on which the antenna was proposed to be located.
c. Although it may well be the case, the City Council received little
evidence from Cingular Wireless that other more appropriate sites, such
as commercial sites, could not fill the coverage gaps noted in the
administrative record or that a lower antenna(s), allowed as a matter of
right, could provide similar coverage. It would have been helpful for the
City Council in making its decision if Cingular Wireless would have had
a technical representative present to testify to or respond to technical
coverage issues.
d. There was no evidence submitted that either the City's regulations or the
City's implementation of those regulations prohibit or have the effect of
prohibiting the provision of wireless cell service. The evidence
submitted was to the contrary. It was noted by City staff and Cingular
Wireless that the City had permitted a 50-foot mono-pine cell
site at another location in a residential neighborhood. It was
noted that Cingular Wireless owned that mono-pine. The ordinance
on its face allows cellular towers of up to 32 feet in residential
neighborhoods as a matter of right. Cingular Wireless submitted evidence
itself that the City's regulations don't have this effect: "Cingular
surveyed the Code and City practices and determined that the City is
willing to approve monopines on institutional properties
in
residential
zones and...is willing to grant CUPs to such monopines exceeding
the height
limit."Jystad letter.3. Orange MunicipalCode Section 17.12.025
provides specific regulations for wireless communications facilities including a requirement
that a "visual impact demonstration using photo-simulation, elevations
or other visual or graphic illustrations from adjacent properties
and/or public rights-of-way...depicting the potential visual impacts(
s) of the wireless communication facility in its proposed setting."
While the submitted photo simulation submitted by Cingular Wireless was apparently
done in coordination with the City's Planning Department, the photo simulations
provided did not depict how the antenna would look from the residential areas
that would be most impacted,i.e. the neighborhoods to the north and west of the
site. This failure made it difficult to support the position that the
antenna would be sufficiently screened or
integrated
SECTION 2 - ENVIRONMENTAL REVIEW The
CUP is categorically exempt from the provisions of the California Environmental Quality Act (
CEQA) pursuant to State CEQA Guidelines Section 15303 (Class 3 - New Construction or Conversion
of Small Structures).ADOPTED this
8th day of August, 2006.r, ity
of Orange ATTEST:i/
t~
rMary ErMurpiiy,
City Clerk, Ci y of Orange I, MARY
E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the
foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at
a regular meeting thereof held on the 8th day of August, 2006, by the following vote:AYES:NOES:
ABSENT:
ABSTAIN:
COUNCILMEMBERS:
Murphy,
Cavecche, Dumitru COUNCILMEMBERS: None
COUNCILMEMBERS: Smith
COUNCILMEMBERS: None
ec;f.
l(~Mary &
iVfilri "
y, City Clerk;City range6