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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