Agenda 03/25/2002 RPV, City, Council, Meeting, 2002, Agenda RPV City Council Meeting Agenda for 03/25/2002 Rancho Palos Verdes City Council Agenda March 25, 2002
March 25, 2002

DISCLAIMER

The following City Council agenda includes text only version of the staff reports associated with the business matters to be brought before for the City Council at its Regular Meeting of this date. Changes to the staff reports may be necessary prior to the actual City Council meeting. The City Council may elect to delete or continue business matters at the beginning of the City Council Meeting. Additionally, staff reports attachments, including but not limited to, pictures, plans, drawings, spreadsheet presentations, financial statements and correspondences are not included. The attachments are available for review with the official agenda package at the Reception area at City Hall.

...end of disclaimer...

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BEGINNING OF CITY COUNCIL AGENDA

This agenda has been prepared to provide for the orderly progression of City business. Detailed staff reports on specific items are posted in the hallway for public viewing. The City Council wants to hear your comments, however, to run the meeting efficiently, please observe the following rules when you participate in the meeting.

Please try to submit your REQUEST TO ADDRESS THE CITY COUNCIL form to the City Clerk prior to the start of the meeting. You will be called at the appropriate time to make your remarks.

For the sake of efficiency, the City Council agenda is divided into several sections:

Consent Calendar: This section consists of routine items which, unless a request has been received from the public, council or staff to remove a particular item for discussion, are enacted by one motion of the City Council. If you wish to speak to any Consent Calendar item(s) you will be limited to three minutes.

Public Hearings: This section is devoted to noticed hearings. Although the normal time limit is three minutes for each speaker, the Mayor may grant additional time to a representative speaking for an entire group; however, this should not discourage anyone from addressing the City Council individually.

Regular Business: This section contains items of general business and you will be allowed three minutes to speak on any item.

Public Comments: This part of the agenda is reserved for making comments on matters which are NOT on the agenda. If you have submitted a request to speak, you will be called by the City Clerk at the appropriate time and you may speak for up to three minutes. Please limit your comments to matters within the jurisdiction of the City Council. Due to State law, no action can be taken on matters brought up under Public Comments. If action by the City Council is necessary, the matter may be placed on a future agenda or referred to staff, as determined by Council.

Please make your remarks at the lectern microphone and direct your comments to the City Council and not to the staff or the public.

Conduct at the Council Meeting: The City Council has adopted a set of rules for conduct during City Council meetings. The following is an excerpt from those adopted Rules of Procedure:

Section 6.3 The Mayor shall order removed from the Council Chambers any person(s) who commits the following acts at a regular or special meeting of the City Council:

1. Disorderly, contemptuous or insolent behavior toward the Council or any member thereof, tending to interrupt the due and orderly course of said meeting.

2. A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due and orderly course of said meeting.

3. Disobedience of any lawful order of the Mayor which shall include an order to be seated or to refrain from addressing the Council.

4. Any other unlawful interference with the due and orderly course of the meeting.




RANCHO PALOS VERDES CITY COUNCIL

REGULAR ADJOURNED MEETING

MONDAY, MARCH 25, 2002

FRED HESSE COMMUNITY PARK, 29301 HAWTHORNE BOULEVARD


7:00 P.M. REGULAR SESSION

CALL TO ORDER:

ROLL CALL:

FLAG SALUTE:

NEXT RESOL. NO. 2002-22

NEXT ORD. NO. 376

APPROVAL OF AGENDA:


APPROVAL OF CONSENT CALENDAR:



1. Minutes of January 31, 2002. (Purcell)

Recommendation: Approve the minutes.


PUBLIC HEARINGS:



2. Appeal of Planning Commission’s conditional approval of Conditional Use Permit No. 230, requesting elimination of certain conditions imposed by the Planning Commission for the use of commercial antennae within a residential zone. (Applicant/Appellant: Schmitz & Associates representing James A. Kay, Jr., the owner of the property at 26708 Indian Peak Road). (Fox) (Continued from March 19, 2002 meeting.)

Recommendation: ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES MODIFYING CERTAIN CONDITIONS AS RECOMMENDED BY STAFF, DENYING THE APPEAL, AND CONDITIONALLY APPROVING CONDITIONAL USE PERMIT NO. 230.



3. Reconsideration of the Decision on the Appeal of Conditional Use Permit No. 207 (Appellant: Mark Abrams, 44 Oceanaire Drive). (Fox) (Continued from March 19, 2002 meeting.)

Recommendation: (1) ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ADOPTING THE MITIGATED NEGATIVE DECLARION PREPARED PURSUANT TO ENVIRONMENTAL ASSESSMENT NO. 720. (2) ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES CONDITIONALLY APPROVING CONDITIONAL USE PERMIT NO. 207.


PUBLIC COMMENTS: (at approximately 8:40 P.M.)

(This section of the agenda is for audience comments on items NOT on the agenda.)


REGULAR BUSINESS



4. Traffic Committee appointments: determination of terms of office. (Purcell)
(Continued from March 19, 2002 meeting.)

Recommendation: Appoint three Traffic Committee members to a two-year term of office until March 2, 2004, and four members to a four-year term of office until March 7, 2006.


ORAL CITY COUNCIL REPORTS: (This section designated to oral reports from councilmembers to report on Council assignments.)



ADJOURNMENT: Adjourn to 5:30 P.M. Tuesday, April 2, 2002 to interview candidates for chair of the Planning Commission and Finance Advisory Committee.

RANCHO PALOS VERDES CITY COUNCIL

REGULAR ADJOURNED MEETING

MONDAY, MARCH 25, 2002

FRED HESSE COMMUNITY PARK, 29301 HAWTHORNE BOULEVARD


7:00 P.M.REGULAR SESSION

CALL TO ORDER:

ROLL CALL:

FLAG SALUTE:

NEXT RESOL. NO. 2002-22

NEXT ORD. NO. 376

APPROVAL OF AGENDA:


APPROVAL OF CONSENT CALENDAR:



1. Minutes of January 31, 2002. (Purcell)

Recommendation: Approve the minutes.


D R A F T

M I N U T E S

RANCHO PALOS VERDES CITY COUNCIL

REGULAR ADJOURNED MEETING

JANUARY 31, 2002

The meeting was called to order at 6:00 P.M. by Mayor McTaggart at Fred Hesse Community Park, 29301 Hawthorne Boulevard, and was immediately recessed to a closed session per the Brown Act Checklist. At 7:07 P.M. the meeting reconvened.

After the Pledge of Allegiance, led by Director Allison, roll call was answered as follows:

PRESENT: Clark, Ferraro, Gardiner, Stern, and Mayor McTaggart
ABSENT: None

Also present were City Manager Les Evans; Assistant City Manager Carolynn Petru; City Attorney Carol Lynch; Director of Planning, Building and Code Enforcement Joel Rojas; Director of Public Works Dean Allison; Director of Finance Dennis McLean; City Clerk/Administrative Services Director Jo Purcell; and Recording Secretary Denise Bothe.


RECYCLE DRAWING:

George J. Gleghorn, 28850 Crestridge Road, was this week’s winner.

At this time, Mayor McTaggart announced that those wishing to get rid of old e-waste, such as old computers, monitors, printers, may drop these items off for disposal at the Joint Water Pollution Control Plant on Figueroa Street in Wilmington, between Sepulveda Boulevard and Lomita Boulevard, on February 23, 2002.

On behalf of the City Council and staff, Mayor pro tem Stern congratulated Mayor McTaggart and his wife on their 50th wedding anniversary, which will be this Saturday.


APPROVAL OF AGENDA:

Mayor pro tem Stern moved, seconded by Councilwoman Ferraro, to approve the Agenda as submitted. Motion carried


APPROVAL OF CONSENT CALENDAR:

Councilwoman Ferraro moved, seconded by Councilman Gardiner, that the amended Minutes from December 18, 2001, be brought back to the next City Council meeting for approval. Motion carried.

Councilman Clark requested that staff highlight the changes to the December 18, 2001, Minutes.

Mayor pro tem Stern moved, seconded by Councilman Clark, to approve the Consent Calendar, with the exception of the December 18, 2001, Minutes, as follows:

Motion to waive full reading

Adopted a motion to waive reading in full of all ordinances presented at this meeting with consent of the waiver of reading deemed to be given by all Councilmembers after the reading of the title.

Minutes of December 18, 2001

Amended Minutes to be brought back to the next City Council meeting in its entirety, with the amended portions to be highlighted.

January 2, January 14, and January 15, 2002

Approved as submitted.

Residential Overlay and Slurry Seal Program

(1) Awarded a professional service contract to Willdan for engineering services related to the implementation of the City’s Residential Overlay and Slurry Seal Program. (2) Authorized the Mayor and the City Clerk to execute a contract with Willdan for a not-to-exceed amount of $48,928, and authorized the additional expenditure of up to $4,000, for any unanticipated engineering services; and approved a total design budget of $52,928.

Policy for Recruitment and Selection of Members for the City’s Advisory Boards

Adopted a policy for the recruitment and selection of City Commission and Committee Members and Commission and Committee Chairs.

Notice of Completion for Traffic Signal Installation Project at Crest and Highridge

(1) Accepted the work as complete. (2) Authorized the City Clerk to file the Notice of Completion with the County Recorder; and if no claims are filed 35 days after recordation, notify the surety company to exonerate the Payment and Performance Bonds. (3) Authorized the Director of Public Works to release the 10% retention payment to Dynalectric 35 days after recordation of the Notice of Completion by the County Recorder contingent on no claims being filed on the project.

Claim Against the City by Christian Cameron

Rejected the claim and directed the City Clerk to notify the claimant of Council’s action.

November 2001 Treasurer’s Report

Received and filed.

Resol. No. 2002-03 - Register of Demands

ADOPTED RESOLUTION NO. 2002-03, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ALLOWING CERTAIN CLAIMS AND DEMANDS AND SPECIFYING FUNDS FROM WHICH THE SAME ARE TO BE PAID.

The motion to approve the Consent Calendar carried on the following roll call vote:

AYES: Clark, Ferraro, Gardiner, Stern, and Mayor McTaggart
NOES: None


PUBLIC HEARING:

Resol. No. 2002-04 - Amendments to the Current Fee Schedule for Specific Geotechnical Services and Planning Applications

Mayor McTaggart opened the public hearing on this request to consider amending the current fee schedule for specific geotechnical services and planning applications.

Senior Planner Mihranian presented the staff report of January 31, 2002 and the recommendation to adopt the proposed amending Resolution No. 92-68 (the City’s fee Resolution) to (1) increase the geologic site inspection fee from $150 to $200; (2) increase the geotechnical report review fee from $1,200 to $1,300; (3) increase the geologic planning review fee (site inspection and report review fee) from $1,350 to $1,500; and, (4) change the $240 landscape plan check and inspection fee from a fixed fee to a trust deposit fee.

Mayor pro tem Stern moved, seconded by Councilman Clark, to ADOPT RESOLUTION NO. 2002-04, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES, AMENDING RESOLUTION NO. 92-68 (THE CITY’S FEE RESOLUTION) TO (1) INCREASE THE GEOLOGIC SITE INSPECTION FEE FROM $150 TO $200. (2) INCREASE THE GEOTECHNICAL REPORT REVIEW FEE FROM $1,200 TO $1,300. (3) Increase the Geologic Planning Review Fee (Site Inspection and Report Review Fee) from $1,350 to $1,500. (4) Change the $240 Landscape Plan Check and Inspection Fee from a fixed fee to a trust deposit fee.

Mayor McTaggart closed the Public Hearing on this matter.


REGULAR BUSINESS:

Proposed Fiscal Year 2002-2003 Budget Process

City Manager Evans presented staff report of January 31, 2002, and the recommendation to approve a budget process for review and adoption of the second year (Fiscal Year 2002-2003) of the current Two-Year Budget. He explained that rather than going through a lengthy series of workshops, staff is recommending that the City Council use the existing Two-Year Budget as a basis – noting that it does have an operating budget for Fiscal Year 2002-2003; and mentioned that it is understood City Council has expressed a desire to look at the Capital Improvement Program and some policy issues from when the budget was put together. He expressed his belief that the State will likely pull some of the City’s funds, such as the Vehicle License Fees (VLF), and that the City will have to come up with some contingency budgets. City Manager Evans suggested that City Council set aside April 30, 2002, for a budget workshop; stated that at that workshop, staff and City Council will discuss the 2002-2003 budget, will discuss pertinent policy issues, and will be provided a five-year financial model that the Finance Advisory Committee has reviewed, along with some alternative budgets for City Council’s consideration.

Referring to Circle Page 9 of staff report, City Manager Evans stated that he took the Capital Improvement Plan out of the proposed 2001-2002 Budget; and noted that under the General Fund Contribution, $6,691,760 of General Funds are set aside for Capital Improvement Program projects.

Referring to Circle Page 12, the Capital Improvement Budget for FY 2002-2003, City Manager Evans stated that over $3 million of General Funds are in the Capital Improvement Budget; that between the two fiscal years, over $10 million are General Fund monies which are set aside for Capital Improvement Program projects; stated that at this point, even though the City is slightly more than half way through the first year of this two-year program, it has only committed a little over $3 million of that $10 million; and that the City Council may wish to consider whether it really wants to commit, possibly making up any contingency in this area – pointing out that the City does not have a lot of flexibility in making significant operating budget reductions.

Mayor pro tem Stern expressed his opinion that the likely budget cut is from the Capital Improvement Program (CIP), highlighting some of the exceedingly long-term projects, such as storm drains; stated that it would be advantageous to have the Financial Advisory Committee (FAC) look into not only the CIP, but some of the other budget items that would be characterized as long-term capital improvements; that the FAC investigate and evaluate alternative financing opportunities; and he noted his interest in discussing at the budget workshop his concern with making the CIP more equitable for current taxpayers versus future taxpayers.

Councilman Clark stated that before the City Council meets on April 30, the newly constituted FAC should be directed to investigate potential revenue sources or alternatives and that these findings be presented to the City Council at the workshop.

Councilman Gardiner expressed his support that the FAC evaluate different financing mechanisms, such as bonds; and requested that staff provide at the budget workshop a 2-year and 5-year projection on an Excel program, using an XY graph, so that trends can be studied.

Councilwoman Ferraro questioned whether the newly constituted FAC will have enough time to do in-depth research on the potential funding sources before the April 30 budget workshop.

Councilman Clark suggested that staff and members of the FAC pair up in researching and investigating specific areas and a variety of approaches; and expressed his belief that if properly parceled out and organized, there should be enough time to have interaction at the workshop.

Mayor McTaggart pointed out that the April 30th workshop wouldn’t be the last budget workshop.

Director McLean noted that in the past five and a half years, the trends he has witnessed are very predictable/stable in regards to expenditures for ongoing programs, whether public safety, recreation/parks, planning; that with this environment being a contract city, the variances are looking out for two years or five years with Capital Improvement Projects; and that the five-year model does a good job of helping staff go forward in assessing/predicting the next couple of years.

Councilman Clark stated that the workshop should include discussion regarding the State revenue stream and the high risk of the City’s dependency upon these funds.

Director McLean stated that the FAC is currently scheduled to meet at least twice before the April 30 budget workshop; and that the FAC will consider strategies for use of long-term financing to pay for part of the CIP.

City Manager Evans recounted the City Council’s suggestions for the FAC to investigate, such as the use of tax anticipation notes, bond financing, and state infrastructure banking.

Noting that the FAC will be charged with a challenging assignment, Councilman Clark expressed his belief that the FAC will need to meet more than twice before the budget workshop on April 30 in order to provide the City Council with the input/information it is seeking.

Legislative Guidelines for 2002

City Manager Evans presented the staff report of January 31, 2002, and the recommendation to consider adopting 2002 Legislative Guidelines; he explained that the City of Rancho Palos Verdes has not been involved nor represented well in the legislature over the years; commented on the necessity for Rancho Palos Verdes to adopt legislative agendas which address issues that will affect this region/city; and stated that staff is proposing that the City adopt a legislative agenda in order to ensure that the City Council is on record that City Council has authorized a particular individual(s) to speak on behalf of the City on these matters.

Beginning with Circle Page 3, City Manager Evans commented on the draft legislative guidelines; noted staff’s recommendation that City Council support the Continuation of Law Enforcement Block Programs, the Continuation of Citizen Option for Public Safety (COPS) funding, support State legislation that would restore and secure reliable revenue tax base to cities, oppose any VLF take-aways, support Proposition 40, support Proposition 42; and reiterated that if this City is going to have any impact in Sacramento or Washington, D.C., it needs to be able to respond when the City gets a call for action without calling a special meeting of the City Council.

Mayor McTaggart suggested a modification to the section entitled "Reform of Disposal Reporting System procedures to improve its accuracy of identifying the source of municipal solid waste disposal and diversion" -- stating that this could be interpreted by some people to mean that the City believes it could be more regimented; and expressed his belief that the goal the City should be trying to achieve is to have a reasonable system that acknowledges good-faith efforts.

Mayor pro tem Stern expressed his lack of comfort in giving staff the prerogative to interpret these general pronouncements and then to decide that the City will be supporting or opposing legislation.

City Manager Evans noted for Mayor pro tem Stern that staff would prefer to bring a list of legislative bills every two weeks for the City Council’s consideration and vote.

Mayor pro tem Stern noted his concern that the City not lose the VLFs and that support be given to Proposition 40.

Councilman Gardiner expressed his support that staff present a list of four or five issues every two weeks for the City Council to address; and that the Mayor be given the authority to speak on behalf of the City when necessary.

Councilman Clark questioned what other cities do for legislative representation, cities that have a similar makeup to that of Rancho Palos Verdes and its residents.

In response to Councilman Clark’s inquiry, City Manager Evans explained that none of the peninsula cities do this; that this draft legislative agenda is patterned after the cities of Lakewood, Cerritos, and some of the contract cities that usually have their own lobbyists and are very active in Sacramento; and mentioned that other City Councils and staff committees routinely go over legislation that is presented to City Councils when things change.

Mayor McTaggart stated that this City should have more contact with the California League of Cities, which has an office in Long Beach -- noting that the contract cities will support many of the issues which the California League of Cities supports.

Because of the negative noise impact to the peninsula, Councilman Clark suggested promoting a regional approach to airport development and usage.

Councilwoman Ferraro, in response to Councilman Clark’s comment, noted that the City is already on record in regard to airport noise.

Highlighting State B-1, Aviation – Promote a regional approach to airport development and usage, Councilman Clark suggested that added language address the implications of noise abatement for the peninsula; and he supported this as a reaffirmation.

Mayor pro tem Stern expressed his concern with the broad scope of Federal A-1, Public Utilities, Preservation and expansion of municipal rights in federal telecommunications law and regulatory setting deliberations, including cable television re-regulation until true competition occurs; and noted his preference that Federal A-1 be included as a focus topic.

Councilman Gardiner moved, seconded by Councilwoman Ferraro, to reaffirm Federal B-1, Continuation of Law Enforcement Block Grant Programs; State A-2, Continuation of COPS; State B-1, Aviation, Promote a regional approach to airport development and usage and include language specifying noise abatement. No objection was noted.

Councilman Gardiner moved, seconded Councilwoman Ferraro, to support State A-1, opposing any loss of VLF. No objection was noted.

City Manager Evans stated that this agenda reflecting the City Council’s positions will be brought back to the City Council for final review.

Councilman Gardiner moved, seconded by Councilman Clark, to support Proposition 40; to support State 2-A as a reaffirmation; and to support Parks D-1. No objection was noted.

City Manager Evans highlighted the three positions taken by the City Council: support of Proposition 40, support of State B-1, and support the protection of VLFs.

Councilman Gardiner moved, seconded by Councilwoman Ferraro, to affirm Federal and State B-1. No opposition was noted.

Mayor pro tem Stern stated that Policy 29 is at odds with the approach the City Council is taking this evening and that staff do whatever is necessary to see that it be harmonized with what is already in place.

Responding to Mayor pro tem Stern’s comment, City Manager Evans stated that staff will look at that issue and bring it back for the City Council’s review.

Mayor McTaggart requested that staff provide information on Proposition 42 for City Council consideration, with the possibility of supporting it. Mayor McTaggart stated that C-1 and C-2 will be focus issues. No objection was noted.

Councilman Clark reiterated his request that staff research what other similar cities are doing to provide an effective voice in Sacramento.

Vote was by consensus.


RECESS & RECONVENE:

At 8:30 P.M., Mayor McTaggart declared a recess. The meeting reconvened at 8:46 P.M.


PUBLIC COMMENT:

Lois Larue, 3136 Barkentine Road, commented on the limited number of parking spaces at Abalone Cove and urged the City to improve the parking resources in this area.

Dean Garth, 28619 Golden Meadow Drive, noted his concerns with the speeding vehicles in his neighborhood; and suggested that the City consider the placement of traffic signs or speed humps to slow the vehicles down. In regard to the proposed under-grounding of utility lines on the west side of Golden Meadow Drive, Mr. Garth expressed his opinion that it would be extremely unfair for the City to require the parcel owner to pay for placing the high tension line underground – pointing out that this distribution line not only supplies the people living in Rancho Palos Verdes and Palos Verdes, but that it also supplies those people living in Palos Verdes Estates; and urged the City to investigate other means to pay for this task, that it not be placed on the backs of the individual parcel owners.

Don Schultz stated that he has brought to the attention of the local Sheriff’s Department the nuisance flyers for curb painting – pointing out that no contact telephone number is provided; and noted that the Public Works Department will be providing this service free of charge.

Resol. Nos. 2002-05 and 06- Proposed Amendments to the Personnel Rules

Assistant City Manager Petru presented the staff report of January 31, 2002, and the recommendation to (1) adopt Resolution No. 2002-05, a Resolution of the City Council of the City of Rancho Palos Verdes, amending the competitive service employee personnel rules. (2) adopt Resolution No. 2002-06, a Resolution of the City Council of the City of Rancho Palos Verdes, amending the management personnel rules.

Councilman Gardiner noted his preference the Veterans’ Preference System only be applied to those who have been honorably discharged, not to those who have been dishonorably discharged.

Assistant City Manager Petru explained that the State broadly defines the word "veteran"; that State legislation is strongly encouraging cities to adopt this personnel rule; and that should this City decide not to adopt this rule, it would be required to adopt a resolution stating the reasons.

City Attorney Lynch explained that there is no current mechanism under State law for distinguishing between honorably and dishonorably discharged veterans; that if this City is going to adopt this rule, that it should stick with the definition of veterans as specified in State law so that the City is in accordance with the State’s requirements.

Councilman Gardiner requested of staff that more clarification on the requirements in regard to discharges be provided to City Council; and expressed his preference that these veterans not be limited only to entry-level competitive positions.

Responding to Councilman Gardiner’s inquiry, Assistant Manager Petru stated that a management employee would now be permitted to cash out up to 50% of their accrued vacation time; and advised that at no time will an employee lose their vacation leave accrual.

Councilman Clark stated that staff should be encouraged to take the vacation leave and that routine accumulation of vacation leave should not become standard practice.

Councilwoman Ferraro moved, seconded by Mayor pro tem Stern, to concur with staff’s recommendation. No objection was noted.

In response to Councilman Gardiner’s comment to amend the motion, City Manager Evans stated that staff will bring back to City Council for discussion further clarification in regard to the veterans preference system.

Mayor pro tem Stern requested that when the veterans preference issue is brought back for City Council consideration, that staff provide some examples so that he can understand the implications of changing the veterans criteria and how it applies to the personnel rules.

Proposal to Expand Advisory Board Duties

Mayor pro tem Stern commented on his suggestion to expand the ability of the City’s commissions and committees by allowing them to propose work programs and projects to the City Council; and explained that this be done as a philosophical policy approach, not a structured procedure – citing the tremendous talent of those serving on the City’s boards. He expressed his preference that these individuals be encouraged to be as creative and proactive as they can in providing suggestions on how the City might improve its current methods of operation; and encouraged not only board members, but also staff members and residents to come forward with creative suggestions on areas that will benefit and improve the City.

Mayor McTaggart expressed his belief that board members routinely provide suggestions on various issues; noted his concern that soliciting and encouraging all members to come up with suggestions may create some budget implications that city management will have to deal with; and stressed the importance of subcommittees, which historically meet to confer on specific issues, not involve a lot of staff time. Mayor McTaggart commended Mayor pro tem Stern for bringing this issue up, but reiterated his belief that individuals freely provide suggestions which they believe can benefit the City.

Mayor pro tem Stern expressed his belief that there are some individuals who feel inhibited in providing suggestions for City Council consideration; and that he is not looking at expending a lot of staff time, but that he is setting a tone and philosophy for bringing forth this creativity which may benefit the City.

Mayor McTaggart mentioned that at the monthly Mayor’s breakfast meeting, the chairs of various boards will be present; stated that they traditionally have not been shy about passing on plenty of information and/or suggestions; he expressed his belief that it would be beneficial for the other councilmembers to hear the input from these committees; and, that these breakfast meetings would provide an opportunity for every councilmember to hear this input a couple times a year.

Councilman Clark, echoed by Councilman Gardiner, noted his support for Mayor pro tem Stern’s suggestion, stating that it would be a tangible signal to the volunteers that City Council is interested in partnering with them and interested in establishing collaboration in this creative endeavor.

Tom Redfield, 31273 Ganada Drive, stated that in his experience working with a large corporation, some individuals do feel constrained in coming forward with ideas; and expressed his support that the City take advantage of the talent of staff and volunteers in this City.

Mayor pro tem Stern moved, seconded by Councilman Gardiner, that the various commissions and committees be encouraged to bring issues forth that they believe should be addressed by them and then on to City Council for consideration. No objection was noted.

Agreement for Design Services

City Clerk Purcell presented the staff report of January 31, 2002, and the recommendation to approve the agreement with Tom Hollingsworth for design services to ensure graphic continuity in the use of the City’s logo and custom typeface at a cost of $200 per month.

Councilwoman Ferraro moved, seconded by Councilman Gardiner, to concur with staff’s recommendation. Motion carried.

Councilman Clark suggested that one of the projects to be considered by Tom Hollingsworth would be design a new City lapel pin and a redesign of the City business cards.

Award a contract for services to prepare a Supplemental Environmental Impact Report for proposed project revisions to the approved BelmontCorp’s Belmont Village Senior Living Facility (formerly known as Marriott’s Brighton Gardens project)

Senior Planner Mihranian presented the staff report of January 31, 2002, and noted the recommendation to authorize the Mayor and the City Clerk to sign a professional services agreement in an amount not to exceed $38,000 with Peri Muretta, to prepare a Supplement to Final Environmental Impact Report No. 27 for project revisions to the approved BelmontCorp’s Belmont Village Senior Living project. Senior Planner Mihranian pointed out that these funds are not City funds.

Councilman Clark moved, seconded by Mayor pro tem Stern, to concur with staff’s recommendation. Motion carried.

Request to extend the current entitlements for the BelmontCorp’s Belmont Village Senior Living Project (formerly known as Marriott’s Brighton Garden project)

Senior Planner Mihranian presented the staff report of January 31, 2002, and the recommendation to approve the Applicant’s one-year time extension request from the date of expiration (February 2, 2002), setting the expiration date as February 2, 2003, to allow additional time to review proposed revisions to the existing project entitlements (Conditional Use Permit No. 195, et. al) for the BelmontCorp’s Belmont Village Senior Living project.

Staff noted for Mayor pro tem Stern the purpose in the Applicant’s request for an extension.

Mayor McTaggart advised that he recently had a discussion with the developer’s representative in regard to this matter; stated that one of the issues which he believes should go before the Planning Commission for consideration is the proposed export of evacuated earth – highlighting the difficult situation with using the proposed truck route on Crenshaw Boulevard; and noted that he had suggested to Belmont’s representatives that they should attempt to balance the earth materials on-site.

Director Rojas noted for Councilwoman Ferraro that once the supplemental EIR is completed, the Conditions of Approval, based on any revisions, would have to be reviewed by the City Council for final approval.

City Attorney Lynch stated that if it is the preference of the City Council, these proposed changes could go before the Planning Commission first and then on to City Council for final approval.

Councilwoman Ferraro mentioned that she had visited one of the existing Belmont Village Assisted Living facilities in Houston; stated that she was very impressed with the fine quality of the facility; and expressed her belief that this company will provide a quality facility that people in this community would desire. Councilwoman Ferraro stated that she is in support of the extension; that any proposed changes that need to be made should first go before the Planning Commission for consideration and then on to the City Council for final approval.

Director Rojas stated that the meetings in regard to any proposed changes would be properly noticed.

Mayor McTaggart noted the community need for this type of facility; and expressed his desire that the City find a way to accommodate what the Applicant would like to do.

Councilman Gardiner stated that he met with the developer’s representative some time ago; that the developer had explained that they had been surprised to discover a large amount of rock/concrete which has hampered the Applicant’s efforts; noted his support of granting an extension; and added that City Council consider the proposed changes.

Councilman Clark mentioned that the applicant is also looking at making some project improvements.

David Hail, representing Belmontcorp, owner, operator and developer of the assisted living communities, explained that during the company’s due diligence investigations, geotechnical studies surprisingly discovered a WWII bunker and a massive amount of rock – pointing out that nothing can be done with the rock except to export it from the site. Mr. Hail explained that because of the requirement to export materials, the Applicant has to go back to the Supplemental Environmental Impact Report process and make a revision to the CUP; advised that they’d like to make improvements by adding larger rooms and adding more amenities; reported that they are moving forward with this project; that the Notice of Preparation has been sent out; that the supplemental to the EIR is being prepared; and that they anticipate coming before the City Council for review of the application sometime this spring.

Mr. Hail noted for Mayor pro tem Stern that he is amenable to the revisions going before the Planning Commission prior to City Council consideration.

Mayor McTaggart addressed his concerns with how the change in staffing shifts would be made at this facility and how the shift changes might impact the neighbors across the road/ridge; and he questioned whether adequate parking is being proposed.

Responding to Mayor McTaggart’s concerns, Mr. Hail noted that these issues are currently being studied by the engineers – pointing out the Applicant’s desire to be as accommodating as possible; and he offered to provide the City Council members a tour of some of its local facilities.

Councilwoman Ferraro moved, seconded by Mayor pro tem Stern, to grant the extension for one year, with the understanding that the changes will go back to the Planning Commission and then on to City Council for final consideration. No objection was noted.

Mayor pro tem Stern advised that he had not met with the Applicant or any of the Applicant’s representatives.

City Council and Staff Team Building Workshop

Councilman Clark commented on his desire to schedule a City Council and staff workshop for the purpose of team-building, looking at how City Council and staff operate together; noted that the focus of the workshop will apply to specific areas, such as communication, concept of operation, philosophy, etc.; and highlighted his expectation that this workshop will assist the new Council and the current leadership of City staff in interacting effectively. He noted his anticipation that the workshop should only take a few hours.

Councilwoman Ferraro noted that a similar workshop had been conducted in the past and that it was beneficial to all involved.

Mayor McTaggart suggested hiring Len Wood as the workshop facilitator.

Mayor pro tem Stern noted his support of the workshop.

At this time, Saturday, March 9, 2002, 9:00 A.M., was selected to conduct the interviews for the Recreation and Parks Commission.

Following discussion with regard to proposed workshop dates, it was the consensus of the City Council to table selecting a workshop date until the next meeting, wherein staff will present to City Council some alternative dates that fit staff’s schedules.

Councilman Clark moved, seconded by Mayor pro tem Stern, that staff present at the next meeting some alternative dates for the City Council and Staff Team Building Workshop. No objection was noted.

Code Enforcement Case No. COD 001-00025 Status Report on a Code Enforcement Case Regarding Non-Permitted Commercial Antennae at 5905 Mossbank Drive

Director Rojas presented staff report of January 31, 2002, and the recommendation to receive and file and provide further direction to staff as deemed appropriate.

Mayor McTaggart advised that he had received a complaint about the commercial antennae from a resident living in this neighborhood; that no one has lived at this address for a couple of years; and stated that a determination has to be made as to whether this type of nonresidential facility is permitted in a residential neighborhood – pointing out that the antennae farm is making it difficult for the neighbors to use their telephones and televisions.

Councilwoman Ferraro requested that a status report in regard to this matter be provided to City Council at its next meeting.

Quarterly "Off-Site" City Council Meetings

Councilman Clark expressed his desire that the City Council meetings be conducted at other locations within the City on a quarterly basis – noting that this will benefit community outreach efforts.

Mayor pro tem Stern expressed his support of Councilman Clark’s suggestion.

Highlighting some problems with ample meeting notice, Mayor McTaggart suggested that the meetings be placed on the City’s website, in a newsletter, and City readerboards, for instance.

Councilwoman Ferraro noted that many people rely on the set locations, times and dates; and that if ample notice could be given so as not to confuse the residents, she would be in support of Councilman Clark’s suggestion.

City Attorney Lynch mentioned that it could be done with an Adjourned Meeting/Notice of Adjournment, thereby complying with the Brown Act.

Councilman Clark moved, seconded by Councilman Gardiner, that City Council conduct its meetings offsite once a quarter and that these offsite meetings be held at different geographic areas within the City. No objection was noted.

Councilwoman Ferraro stated that if scheduling or site selection becomes a problem, that the meetings be located/scheduled at staff direction.

Councilman Clark suggested that City Council work with staff and that this not become site specific.

City Manager Evans advised that staff will start working on some potential sites to conduct the quarterly City Council meetings and suggested that these sites be scheduled for the entire year.


CLOSED SESSION REPORT:

City Attorney Lynch reported that (1) no action was taken on either land acquisition item; (2) with regard to Chandler’s, City Council authorized a counteroffer be made with respect to the possibility of acquiring an easement, with Councilman Gardiner voting no; (3) and with regard to the Abhrams lawsuit, City Council received an update and no action was taken.


ORAL CITY COUNCIL REPORTS:

Councilman Gardiner briefly commented on the interesting voting structure of the Palos Verdes Transit Authority – noting that if only one person from a particular city holds their hand up, regardless of how the other person from the same city votes, that one person’s vote counts.

Councilwoman Ferraro noted the importance of at least one person from this City being present at the Palos Verdes Transit Authority meetings.

Mayor pro tem Stern stated that with the exception of Councilman Gardiner, the Councilmembers went to the legislative meetings in Sacramento two weeks ago; noted that budget concerns were discussed, as well as potential loss of the vehicle license fees; mentioned that they met with Assemblyman Lowenthal and State Senator Karnett; that both were very supportive of the City’s initiative to get the State funding for its open space acquisition; and expressed his belief that it helped to advance some of this City’s agenda and gave him a lot of insight on what’s going on from some of the leadership in the legislature.

Councilwoman Ferraro commented on the same visit to Sacramento and noted that they met other legislators, not just the ones who represent this district; and that the City Council members kept emphasizing not to take any funds away – pointing out to the legislators that this City is not asking for more funding. Councilwoman Ferraro expressed her belief that they received a good response from most of the legislators; and mentioned that the budget deficit is expected by some to exceed the Governor’s estimate by several billion dollars – noting that cities may have to be more conservative with budgeting for a while.

Councilman Clark advised that he had been contacted by the Board of Directors for the Palos Verdes Girls Softball League to discuss some preliminary concepts the League has for additional girls softball facilities in the community. Councilman Clark advised that he would provide City Council with some written material which the League had provided him.

Mayor McTaggart encouraged the residents to read the bill inserts which come with their utility bills, highlighting some interesting information.

Referring to the February 5, 2002, City Council meeting, Mayor McTaggart stated that due to out-of-town guests, it will be difficult for him to attend the meeting; and asked if there would be any objection to conducting the meeting on the 7th of February.

Director Alison mentioned that a public hearing regarding traffic calming has been duly noticed for the 5th which is expected to affect 400 residents along Vera Riviera.

City Manager Evans stated that staff will do all it can to get the word out to the residents for the rescheduled meeting; suggested that the traffic calming matter be continued to the 19th but that public input also be taken on the 7th for those who may not be able to attend the 19th meeting. No objection was noted.

McTaggart expressed his appreciation for rescheduling the meeting to the 7th of February.

Councilman Gardiner advised of some scheduling difficulties with March 4th through the 7th and asked that this issue be placed on the next Agenda for discussion purposes.


ADJOURNMENT:

The meeting was formally adjourned at 10:40 P.M.


____________________
MAYOR

ATTEST:


______________________
CITY CLERK


PUBLIC HEARINGS:






2. Appeal of Planning Commission’s conditional approval of Conditional Use Permit No. 230, requesting elimination of certain conditions imposed by the Planning Commission for the use of commercial antennae within a residential zone. (Applicant/Appellant: Schmitz & Associates representing James A. Kay, Jr., the owner of the property at 26708 Indian Peak Road). (Fox) (Continued from March 19, 2002 meeting.)

Recommendation: ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES MODIFYING CERTAIN CONDITIONS AS RECOMMENDED BY STAFF, DENYING THE APPEAL, AND CONDITIONALLY APPROVING CONDITIONAL USE PERMIT NO. 230.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: MARCH 25, 2002

SUBJECT: APPEAL OF THE PLANNING COMMISSION’S CONDITIONAL OF APPROVAL OF CONDITIONAL USE PERMIT NO. 230, REQUESTING ELIMINATION OF CERTAIN CONDITIONS IMPOSED BY THE PLANNING COMMISSION FOR THE USE OF COMMERCIAL ANTENNAE WITHIN A RESIDENTIAL ZONE. (Applicant/Appellant: Schmitz & Associates representing James A. Kay, Jr. the owner of the property at 26708 Indian Peak Road)

Staff Coordinator: Kit Fox, aicp, Senior Planner

RECOMMENDATION

Adopt Resolution No. 2002-__, thereby modifying certain conditions as recommended by Staff, denying the appeal, and conditionally approving Conditional Use Permit No. 230.

BACKGROUND

On March 19, 2002, the City Council opened the public hearing and heard testimony from the appellant and other interested parties regarding the conditions of approval for this project. The appellant also submitted a supplemental appeal brief on the afternoon of March 19th that was not analyzed in the previous Staff report. Staff has reviewed the additional material submitted by the appellant, and has made selected revisions to the attached Resolutions.

DISCUSSION

The appellant’s supplemental appeal brief elaborates on three issues related to this appeal and the proposed conditions of approval for Conditional Use Permit No. 230:

1. The alleged exempt status of the roof-mounted antenna array as is exists today, based upon the appellant’s assertion that the array is intended for non-commercial use;

2. The potential health and safety impacts on the home’s future resident(s) of requiring interior installation of antennae; and,

3. The constitutionality of certain conditions of approval vis-à-vis the issue of takings.

As to the first contention, given the provisions of the Ordinance 374U that was recently adopted by the City Council and applies to antennae that were added to a building-mounted structure after June 1, 2001, the existing roof-mounted antenna support structure and array is not exempt from City regulation. Even if the City Council accepts the appellant’s claim that all of the roof-mounted antennae are for non-commercial use, the current configuration of the roof-mounted array would require the approval of a non-commercial radio amateur antenna permit by the Planning Commission, pursuant to Section 17.76.020 of the Rancho Palos Verdes Municipal Code, as recently amended by Ordinance No. 374U. The photographs and plans submitted to the City by the appellant on June 21, 2001, clearly depict only five (5) vertical elements attached to the roof-mounted support structure. At most, Staff believes that the appellant can only reasonably claim that these five (5) vertical support structures are exempt, based upon the City’s July 1999 determination referenced in the previous appeal brief. It is for this reason that Staff recommends that the Planning Commission’s decision be modified to allow the configuration of the exterior antenna support structure that existed at the property on June 21, 2001 to remain at the site, that those antennae be allowed to be used either for commercial or noncommercial use, and that all of the other antennae and radiating elements that have been added to the roof-mounted antenna support structure since June 21, 2001 be removed. However, as noted in the previous Staff report, this is a diversion from the Planning Commission’s action, which required all but two (2) of the vertical antenna elements and two (2) television antennae to be removed.

With respect to the appellant’s second contention, Staff has reviewed the FCC publications "Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields (OET Bulletin 56)" and "A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules Procedures and Practical Guidance," which were attached to the appellant’s supplemental appeal brief. The appellant claims that the antennae in the upstairs bedroom of the house, which were the alleged source of the commercial transmissions that were previously monitored by the City, pose a serious health hazard to any future occupant(s) of the house. The FCC establishes RF exposure standards for the general public (i.e., uncontrolled exposure) and for persons whose occupations bring them into more frequent and direct contact with RF emissions (i.e., controlled exposure). The maximum permissible exposure (MPE) varies for each exposure category (controlled or uncontrolled), dependent upon the frequency range of the transmission(s) involved. Given that over a hundred commercial frequencies are licensed to this property, Staff has not been able to determine independently if the use of interior antennae would exceed FCC standards for RF exposure to the home’s occupants. However, making the most conservative assumptions about the effects of RF emissions on the home’s future residents, Staff believes that it may be appropriate to eliminate the requirement for the placement of the commercial antennae inside of the house, which was imposed by the Planning Commission, if it is still the intent of the City Council to require the house to be occupied.

Finally, with respect to the issue of takings, the appellant does not identify the specific conditions by number that constitute a taking of his property. However, the supplemental appeal brief does identify conditions "requiring the [appellant] to relocate all current and future antenna[e] not permitted under the CUP, requiring [the appellant’s] residence to be occupied full time and [requiring the appellant] to contract with a landscape firm [the City] authorizes" as violations of the appellant’s Fifth Amendment rights.

It is the view of the City Attorney that the applicant’s claim that the conditions imposed by this approval constitute a physical occupation of his property by the City, which will give rise to a compensable taking, are completely without merit. The City is not requiring the applicant to make the house available for use by the City. Instead, the City is requiring the applicant either to occupy the house himself or to have it occupied by someone of the applicant’s choosing. The purposes of this condition are to ensure that the property retains its primary residential use, so that it complies with the underlying zoning, and is properly maintained as a single-family dwelling. The imposition of the maintenance requirement also is important because the record demonstrates that, for many years, the property was vacant and became an eyesore due to lack of painting and insufficient maintenance of the landscaping. The conditions that were imposed by the Planning Commission are reasonably related to the substandard condition of the property during the applicant’s ownership, which the City is seeking to address.

Based upon the foregoing discussion, Staff has prepared the attached revised draft Resolutions for the City Council’s consideration. Please note that the revised language, shown in underlined and strike out text to show the changes from the draft Resolutions reviewed by the City Council on March 19, 2002, include revisions that will:

  • Modify the requirement for the placement of antennae inside of the house (Condition No. 2d), but leave this option available to the appellant at his discretion (Condition No. 11), if the City Council requires the house to be occupied.

  • Eliminate the former condition requiring the appellant to cooperate in future requests for co-location of additional wireless communications facilities on the site.

  • Modify the painting requirement (Condition No. 9) so that only the white or lighter-colored portions of the antenna support structure and array need to painted to blend with the gray color of the existing antenna support structure.

  • Modify the hours and days for maintenance (Condition No. 12) to allow the maintenance of the non-commercial antennae and related exterior support equipment and structures to occur between the hours of 7:00 AM and 7:00 PM, Monday through Saturday.

  • Modify the parking restrictions for service vehicles (Condition No. 13) to exclude the parking of vehicles related to the maintenance of the non-commercial antennae or to other household activities.

  • Add a condition (No. 16) establishing lighting restrictions for the roof-mounted antenna support structure and array.

  • Eliminate the former condition requiring indemnification of the City, but add a condition (No. 23) stating that the City is not obligated to defend any third-party legal challenge to the issuance of this conditional use permit.

  • Add a condition (No. 24) restricting the use of the antenna support structure and array to purposes related to the transmission and reception of approved radio frequencies in compliance with FCC regulations.

  • Add a condition (No. 25) requiring annual reporting to the City of all personal wireless services licensed to and/or using this site, and documentation of the site’s compliance with FCC emission requirements and limits.

  • Add a condition (No. 26) requiring that, at all times, the applicant shall maintain antennae on the site that are being used or are available for amateur use.

Staff has also prepared an alternate draft Resolution that more closely reflects the Planning Commission’s action in that it only allows two (2) vertical antenna supports to remain, rather than the five (5) recommended by Staff.

ADDITIONAL INFORMATION

At the March 19th meeting, Councilmember Clark raised a question about the environmental analysis of the project. At the time that the application for Conditional Use Permit No. 230 was deemed complete, the project description included an existing roof-mounted antenna support structure and array with five vertical elements and two television–type aerials. This configuration was consistent with the City’s regulations for non-commercial antennae at the time. Staff reviewed the then-existing conditions and the project description, and determined that the project would qualify for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination." Since the application was deemed complete, the appellant has more than tripled the number of vertical elements and antennae on the roof-mounted structure. Unfortunately, this change in the project began shortly before the first Planning Commission hearing. Because the environmental analysis had been completed based upon the original project description, Staff recommended the imposition of conditions that the roof-mounted antenna support structure and array be modified so that the additional antennae would be removed to minimize the aesthetic impacts of the project. However, Staff believes that if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant without mitigation, and thus would require further analysis pursuant to the requirements of CEQA.

Related to the issue of aesthetics, the appellant’s representative suggested at the March 19th meeting that a fiberglass screen be erected on the roof of the house that would hide the antennae from view from Indian Peak Road. When it was noted that the antennae were also visible from Fond du Lac Road, it was indicated that a second screen wall could be erected on that side of the roof. Staff has evaluated this proposal, but finds that it would potentially create more problems than it solves. In order to screen the existing antennae, the walls would need to extend to a height of approximately thirty feet (30’) above grade. The existing second story of the house was constructed to a height of twenty-two feet (22’) pursuant to a height variation in 1981. Although the City’s Development Code allows some architectural and mechanical elements—such as chimneys and vents—to exceed the City’s 16-foot height limit, the screen walls envisioned by the appellant’s representative would require the approval of a variance, which is not currently a part of the proposal before the City Council. In addition, the existing second story of the house is not well integrated aesthetically into the design of the house; it already looks like an afterthought that was "plunked" on the roof of the house. Staff believes that the addition of an 8- to 10-foot-tall screen or enclosure on the second-story roof, while hiding the antennae from view, would not be an aesthetic improvement to the property or the neighborhood.

CONCLUSION

Based upon the foregoing discussion in this and the previous Staff reports, Staff recommends that the City Council adopt Resolution No. 2002__, modifying certain conditions of approval as recommended by Staff, denying the appeal, and conditionally approving Conditional Use Permit No. 230.

ALTERNATIVES

The following alternatives, in addition to Staff’s recommendation, are available for the Council’s consideration:

1. Grant the appeal as requested by the applicant;

2. Grant a portion of the applicant’s appeal; or,

3. Deny the appeal, upholding the Planning Commission decision with no modifications to the conditions of approval.

Respectfully submitted:
Joel Rojas, aicp, Director of Planning, Building and Code Enforcement

Reviewed by:
Les Evans, City Manager

Attachments:

Draft Resolution No. 2002-__
Alternate draft Resolution No. 2002-__
Applicant’s supplemental appeal brief (submitted on March 19, 2002)
Ordinance No. 374U
Public correspondence


[Staff’s recommended draft Resolution]

RESOLUTION NO. 2002-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE-FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY

WHEREAS, on October 22, 1998, the applicant, James A. Kay, Jr., received approval of an application for Site Plan Review No. 8334 for after-the fact approval of an existing roof-mounted antenna support structure and array for non-commercial radio communications, which was conditioned expressly to exclude commercial operations; and,

WHEREAS, on November 4, 1998, prior to the expiration of the 15-day appeal period for Site Plan Review No. 8334, the City Council adopted Urgency Ordinance No. 341U, which established a moratorium on the processing of all antenna applications, including those applications upon which the City had acted but for which the appeal period had not yet expired; and,

WHEREAS, on April 16, 1999, the antenna moratorium was lifted, the City’s approval of Site Plan Review No. 8334 was voided, and the existing roof-mounted antenna support structure and array were determined by Staff to be exempt from City permits for non-commercial use pursuant to Section 17.76.020(C)(3)(c)(ii) of the Rancho Palos Verdes Development Code; and,

WHEREAS, on October 15, 1999, Mr. Kay submitted an application for Site Plan Review No. 8736 to the Department of Planning, Building and Code Enforcement for a 198-square-foot single-story storage room addition to the rear side of the house, which proposed a large number of electrical outlets, the installation of two dedicated air conditioning condensers for the room and no interior access to the rest of the house; and although Staff suspected that the addition was intended to house commercial radio transmitters, the City did not withhold approval of Site Plan Review No. 8736 based upon these suspicions; and,

WHEREAS, Staff subsequently reviewed Federal Communications Commission (FCC) licensing records and found that several active and pending commercial radio frequencies were licensed to Mr. Kay’s property on Indian Peak Road, and turned this FCC licensing information over to the City Attorney’s office; and,

WHEREAS, the City obtained warrants from the court and retained an expert in the field of radio transmissions, Dr. Henry Richter, to monitor transmissions from the site in connection with an investigation of the alleged commercial use of the existing antennae and found that commercial frequencies were in use at the site. Subsequently, on April 13, 2000, the City filed a complaint for preliminary and permanent injunction against Mr. Kay to prevent the non-permitted use of commercial antennae on the site, and this case currently is pending; and,

WHEREAS, Section 17.76.020(A) of the Rancho Palos Verdes Development Code requires an individual to obtain a conditional use permit to install or operate a commercial antenna within the City of Rancho Palos Verdes. Section 17.96.090 of the Rancho Palos Verdes Development Code further defines the term "commercial antenna" as follows:

"’Commercial Antenna’ means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, ‘commercial purposes’ shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). ‘Commercial antennas’ shall not include antennas owned or operated by governmental agencies; and micro-cell cellular antennas, owned and operated by state licensed cellular telephone utility companies, located on existing utility poles within the public right-of-way."

Under these provisions of the Rancho Palos Verdes Development Code, the applicant, Mr. Kay, was required to obtain a conditional use permit from the City to use his existing antennae and antenna support structure to broadcast on frequencies, deemed commercial by the FCC; and,

WHEREAS, on June 21, 2001, Mr. Kay submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after-the-fact approval to establish the existing antennae and related support structures and equipment on the site for commercial use, although Mr. Kay contested that the application was after-the-fact and requested a waiver of the penalty fee; and,

WHEREAS, on September 4, 2001 and September 18, 2001, the City Council considered Mr. Kay’s request for a waiver of the penalty fee for Conditional Use Permit No. 230, and denied the request based upon inability to make the fee waiver findings set forth in Section 17.78.010(B) of the Rancho Palos Verdes Development Code; and,

WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and,

WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt (Class 1, Section 15301); and,

WHEREAS, after the submittal of these applications on June 21, 2001,and while the Planning Commission was conducting the public hearings on this application, the applicant installed at least eleven (11) additional vertical antenna masts with attached antennae onto the previously existing roof-mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof-mounted antenna support structure and array; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, the applicant’s representative, Mr. Miner, testified that all of the antennae that currently are located at the subject property could be used either for commercial or non-commercial transmissions; and,

WHEREAS, the applicant’s representative, Mr. Schmitz, during the public hearing, stated that the applicant would be willing to comply with conditions that would improve the appearance of the property, such as painting the residence and planting landscaping, and having someone live at the residence, to ensure that the residence is in keeping with the residential character of the neighborhood and to establish the proposed commercial use as being clearly ancillary to the principal residential use of the property, so that the Commission could make a finding of consistency of the proposed commercial use with the City’s General Plan; and,

WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001-43 conditionally approving the project; and,

WHEREAS, the Applicant timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with "all conditions regulating the location, number and placement of antennas on the project site…."

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: The City Council hereby makes the following findings of fact with respect to the application for Conditional Use Permit No. 230 to legalize the use of existing roof-mounted and interior antennae and related support structures and equipment on the site for commercial purposes:

A. For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof-mounted antenna array" refer only to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744. The terms and phrases "existing antenna(e)" and "existing roof-mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above-mentioned photographs, regardless whether these parts, elements, components or other features were, or are, physically present on the subject property as of the effective date of this Resolution.

B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the development standards for commercial antennae, as specified in RPVDC Sections 17.76.020(A)(2) through (A)(10). The site provides for two (2) off-street parking spaces for maintenance and service vehicles and the existing roof-mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights-of-way, this foliage does not adequately screen any antenna support structures or antennae on the roof of the structure from view from many surrounding residences in the neighborhood and from nearby public rights-of-way, especially those residences located directly across the street and the residences located down slope from the rear yard on Fond du Lac Road. As such, the approval of this application is only for the existing antennae and existing roof-mounted antenna array, conditioned upon the removal of all parts, elements, components and other features of the antennae and antenna array that were added by the applicant since June 21, 2001. This condition is necessary to maintain the appearance of the structure as a single-family residence, and to integrate the commercial use into the residential neighborhood. In this case, the imposition of stricter limitations upon both commercial and non-commercial antennae than are otherwise required by the City’s Development Code is necessary to protect the aesthetics of the neighborhood while still allowing reasonable use of the site to transmit on both amateur and commercial frequencies, because the applicant’s representatives have testified that the antennae at the site can be "diplexed" so that each antenna can be used to transmit on two different frequencies at the same time. On the other hand, allowing the applicant to use all of the antennae that were placed on the property while this application was pending will dramatically alter the residential character of the home and create the appearance of a commercial antenna farm, which will adversely affect the surrounding residential neighborhood.

C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street. Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval.

D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. Since the conversion of the existing antennae to commercial use constitutes an intensification of the use that benefits the applicant financially but, as proposed by the applicant, does not offset the visual impacts of the antenna array upon the surrounding neighborhood, the approval of this proposal is only for the existing antennae and existing roof-mounted antenna array, conditioned upon the removal of all parts, elements, components and other features of the antennae and antenna array that were added by the applicant since June 21, 2001, and the painting of the remaining lighter-colored portions of the roof-mounted antennae and support structures that are permitted by this conditional use permit so as to blend better into the background sky and the gray color of the existing antenna support structure. In addition, no future changes to the location or configuration or which increase the number or the height of any approved antennae or element of the remaining roof-mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the City Council, in order to prevent further visual intrusion upon the surrounding neighborhood.

E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] 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 [FCC’s] regulations concerning such emissions."

F. The proposed use—as conditioned—is not contrary to the General Plan. The subject property and the Grandview neighborhood are designated Residential, 4-6 DU/acre, which is a land use designation intended to accommodate medium-density neighborhoods of detached, single-family homes and related accessory uses and structures. No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past three and one-half years. The evidence demonstrates that the property has not been maintained in a manner consistent with the quality of the surrounding neighborhood, and the residential character of the neighborhood has been eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, and to ensure that the proposed use is consistent with the General Plan, the approval of the proposed project includes conditions to address these deficiencies. The conditions include: 1) requiring contract landscape and maintenance services in the event that the home not properly maintained in conformance with the conditions; 2) requiring the removal of all of the additional parts, elements, components or other features of the antennae and antenna array that were added by the applicant since June 21, 2001; and 3) requiring the house to be occupied and maintained in an appropriate manner. These conditions will allow for the provision of wireless telecommunications services at this location, while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood.

G. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40.

H. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all parts, elements, components and other features of the antennae and antenna array that were added by the applicant since June 21, 2001; painting the lighter-colored portions of the remaining roof-mounted antennae and masts, and prohibiting any further modifications to them without first obtaining approval of modification to this conditional use permit; limiting regular maintenance hours to 8:00 AM to 5:00 PM, Monday through Friday; requiring the property to be landscaped and painted and that weekly landscape and general maintenance services shall be provided by contract with a qualified provider of such services if the residence is not properly maintained in accordance with the conditions; requiring the house to be occupied; requiring the applicant to obtain and maintain a valid business license; and reviewing the project for compliance with all conditions of approval within six (6) months of the date of the City’s final action on the application. These conditions are imposed through the City’s authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996.

I. The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property.

Section 2: The City Council finds that the appellant’s previous assertions that commercial transmissions utilized antennae located inside of the house are not credible. Based upon the review of FCC licensing data, the numerous commercial frequencies licensed by the FCC to operate at the subject property are designed to operate from a freestanding tower at an elevation of fifteen meters (15m) above the ground. However, the upstairs bedroom where the appellant claims that these commercial antennae were previously used is no more than seven meters (7m) above the ground. Therefore, it is reasonable to conclude that the roof-mounted antennae—which extend to a maximum height of approximately ten meters (10m)—were the antennae that were used for commercial purposes, and not the antennae that allegedly were located in the upstairs bedroom, despite the appellant’s claims to the contrary. It is also reasonable to conclude that the additional vertical support structures and antennae added to the roof-mounted antenna array by the appellant since June 21, 2001, are also intended to be used for commercial purposes, and not for exclusively amateur non-commercial purposes as claimed by the appellant. Accordingly, the City Council finds that the appellant’s arguments—that these additional vertical support structures and antenna are amateur antennae that previously were exempt from City regulation and that the roof-mounted antenna support structure and array has not been materially altered—to be without merit or credibility.

Section 3: The City Council finds that the proposed project—as conditioned—qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination." As conditioned, the existing roof-mounted antenna support structure and array would be modified so that most of the antennae are removed or relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the property will be required to be occupied and maintained in an appropriate manner that is consistent with City standards. Without the imposition of these conditions, and if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus would require further analysis pursuant to the requirements of CEQA.

Section 4: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the City’s Wireless Communications Antenna Development Guidelines. This application was heard by the Planning Commission within the time lines established by the State’s Permit Streamlining Act and CEQA (Guideline No. 1). Although the Guidelines express a preference for existing, non-single-family structures as antenna sites (Guideline No. 2), installations on single-family residences are not prohibited and have been approved previously elsewhere in the City. In addition, the conditions of approval for this project will help to enhance the residential character of the neighborhood by requiring the applicant to upgrade the appearance and maintenance of the property. As a condition of approval, all of the exterior antennae added since June 21, 2001 will be removed, so the project will have no significant impact upon any view corridors (Guideline No. 4). The removal of these antennae will also serve to balance the aesthetic impacts of the antennae upon the neighborhood with the applicant’s financial benefit from the operation of the commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed from the roof of the house, they will be effectively screened from view from adjacent properties or rights-of-way (Guideline No. 9).

Section 5: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the local zoning authority reserved to the City of Rancho Palos Verdes by the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)) for the following reasons:

  1. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably discriminate among providers of functionally equivalent services…and [does] not prohibit or have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (B)(i)(I) and (II)). In reviewing all of the applications to provide personal wireless services on other residentially-zoned property within the City, the City has applied consistently its regulations to these facilities so as to approve facilities that are compatible with surrounding uses and to modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved with conditions requiring the removal of most of the exterior antennae because it will otherwise result in adverse visual and aesthetic impacts upon adjacent properties. The City’s conditional approval of this specific proposal does not prohibit the applicant from providing wireless communications services because the applicant still has the ability to provide these services from the remaining exterior antennae. The applicant’s representative has stated at a public hearing that the applicant has the capability to diplex the antennae in order to utilize more frequencies. The applicant has also admitted that he has transmitted commercially from the site since 1998. The City has previously approved applications for commercial antennae for a variety of commercial wireless services and service providers, including applications for properties that were zoned or used for single-family residential purposes. Accordingly, the conditional approval of this particular application also does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes.
  2. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on September 19, 2001. The City has acted on the applicant’s request for Conditional Use Permit No. 230 "within a reasonable period of time after the request [was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act. The only delays in the processing of this application are attributable to the applicant’s request for a waiver of the penalty fee (which was denied by the City Council on September 18, 2001), the applicant’s request for a continuance of this application from the Planning Commission meeting of October 23, 2001 to the meeting of November 13, 2001, and the applicant’s appeal of the Planning Commission’s conditional approval and request for continuance of the appeal from the City Council meeting of February 19, 2002 to the meeting of March 19, 2002.
  3. In conditionally approving the application for Conditional Use Permit No. 230, the City has not "[regulated] 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 [Federal Communications] Commission's regulations concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required modifications to the existing antennae on the site are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the antennae upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The Planning Commission and City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers.

Section 6: The applicant’s appeal of the conditions of approval imposed by the Planning Commission is denied. However, modifications to the conditions entitle the applicant to a refund of one-half of the appeal fee pursuant to Rancho Palos Verdes Development Code Section 17.80.120.

Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City’s final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction.

Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 230, thereby approving the commercial use of certain antennae and related support structures and equipment on the site of a single-family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit 'A', attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare.

PASSED, APPROVED, AND ADOPTED this 25th day of March 2002, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:


_______________________
John McTaggart, Mayor

ATTEST:

____________________
Jo Purcell, City Clerk

State of California)
County of Los Angeles) ss
City of Rancho Palos Verdes)

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2002-____ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on March 25, 2002.


_________________________________
City Clerk


EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 230
(26708 Indian Peak Road)

1. Within ninety (90) days following adoption of this Resolution, the applicant and the property owner shall submit to the City a statement, in writing, that they have read, understand, and agree to all conditions of approval contained in this Resolution. Failure to provide said written statement shall render this approval null and void.

2. This approval is for the use of antennae and related support structures and equipment on the site of a single-family residence in the Grandview community for commercial purposes. The commercial use of the property is conditioned upon the following modifications, as depicted in the plans submitted to the City on June 21, 2001 by the applicant:

    1. The roof-mounted equipment shall consist of a maximum of five (5) vertical masts, each of which shall not exceed eight and one-half (8 ½) feet in height, as measured from the point where the mast meets the roof surface.
    2. Each of the five (5) masts may have up to four (4) radiating elements affixed thereon, similar to those that currently are present at the site, provided that they do not extend any higher than the mast itself and that each antenna or radiating element does not project more than two feet horizontally from the center of the mast.
    3. In addition, the two (2) existing television antennae also may remain on the roof of the residence, so long as they do not exceed eight and one-half (8 ½) feet in height, as measured from the point where they are attached to the roof surface; that the horizontal boom of each antenna does not exceed six feet in length; that no radiating element or antenna attached to the boom exceeds two feet in length, and that all of the antennae and support structures on the property are maintained in compliance with the Municipal Code.
    4. The Director of Planning, Building and Code Enforcement shall review the exterior masts and antennae to ensure compliance with this condition. Any additional exterior antennae, masts or other antenna support structure(s) shall require further approval or modification of this conditional use permit.
    5. The exterior masts and antennae described in this condition may be used for either commercial or non-commercial purposes.

The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions. Otherwise, any substantive change, such as the enlargement, expansion or addition to, the five (5) exterior masts and antennae that this approval allows outside of the existing residential structure shall require approval of a revision to Conditional Use Permit No. 230 by the City Council and shall require a new and separate environmental review.

3. All project development on the site shall conform to the specific standards contained in these conditions of approval or, if not addressed herein, in the RS-5 district development standards of the City's Municipal Code.

4. Failure to comply with and adhere to any or all of these conditions of approval may be cause to revoke the approval of the project by the City Council after conducting a duly noticed public hearing on the matter.

5. If the necessary modifications to site, the house and the existing roof-mounted antenna support structure and array, as specified by these conditions of approval, have not been made within ninety (90) days of the date of the City’s final action on this application, approval of the project shall expire and be of no further effect unless, prior to expiration, a written request for extension is filed with the Department of Planning, Building and Code Enforcement and approved by the City Council.

6. In the event that any of these conditions conflict with the recommendations and/or requirements of another permitting agency or City department, the stricter standard shall apply.

7. The applicant shall submit a plan depicting the roof-mounted masts and antennae that may be retained or erected pursuant to this approval, within (90) ninety days of the date of the City’s final action on this application. The applicant shall obtain a building permit and any other approval required by the Building Code to modify or construct the masts and attached antennae on the property.

8. Unless otherwise modified by these conditions, all conditions of approval for Site Plan Review No. 8736—for the 198-square-foot storage room addition—and Minor Exception Permit No. 555—for a front-yard fence in excess of the 42-inch height limit—remain in full force and effect.

9. The lighter-colored portions of the roof-mounted antennae and masts that are hereby approved shall be painted a neutral color—such as gray, gray-green or gray-blue—that helps to camouflage them against the background sky and the gray color of the existing antenna support structure. The applicant shall maintain the current gray color of the existing antenna support structure. The color shall be approved by the Director of Planning, Building and Code Enforcement before any portions of the antenna support structure and array are painted. Painting shall be completed and inspected by the Director within ninety (90) days of the date of the City’s final action on this application.

10. The five (5) roof-mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the City Council, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. Existing masts and antennae that are permitted by this approval may be removed and replaced for maintenance and/or repair as long as the replacement masts or antennae are the same or less in height, length and mass and in the same location as the approved masts and antennae, and provided that the total number of masts and antennae is not increased.

11. Notwithstanding Condition No. 10 above, within ninety (90) days of the date of the City’s final action on this application, the applicant shall remove all existing additional masts, antennae, horizontal support structure(s), pipes, ducts and other components of the roof-mounted antenna assembly that are not expressly approved by this Resolution. Any other antennae and antenna support structures shall be removed, but may be relocated inside the house at the applicant’s discretion.

12. Except in case of emergency, regular maintenance of the commercial antennae and related exterior support equipment and structures shall only occur between the hours of 8:00 AM and 5:00 PM, Monday through Friday. Maintenance of the non-commercial antennae and related exterior support equipment and structures may occur between the hours of 7:00 AM and 7:00 PM, Monday through Saturday.

13. All service vehicles related to the maintenance of the commercial antennae shall be parked off-street in the driveway or garage of the house. No more than two (2) such service vehicles are allowed on the site at any time. The parking of vehicles related to the maintenance of the non-commercial antennae or other household purposes are not restricted by this condition, but shall comply with the general parking restrictions imposed by the City’s Municipal Code.

14. No new exterior building-mounted antennae, related support equipment or structures will be allowed without approval of a modification to this conditional use permit by the City Council.

15. The support equipment for the antennae on the site, including air conditioning units, shall not generate noise levels in excess of 65 dBA, as measured at the property line of the subject property. Any sound attenuation measures to achieve this standard shall be the responsibility of the applicant, and shall be subject to the review and approval of the Director of Planning, Building and Code Enforcement.

16. No lights may be placed upon the antenna tower, nor may it be otherwise illuminated in any manner. This condition shall not restrict the use of hand-held lighting, nor the use of temporary lighting during the performance of emergency repairs.

17. The operation of the antennae on the site shall at all times comply with the requirements, standards and regulations of the Federal Communications Commission (FCC).

18. Within ninety (90) days of the date of the City’s final action on this application, the exterior appearance of the house and site shall be brought into consistency with neighborhood standards by:

    1. Painting the exterior of the house and garage and maintaining the exterior of the building so that the paint is not peeling or cracking in a manner detrimental to the value of the property and neighboring properties, to the satisfaction of the Director; and,
    2. Landscaping the front yard area, and maintaining the landscaping in a neat and thriving condition to the satisfaction of the Director.

19. Within ninety (90) days of the date of the City’s final action on this application, the property shall be occupied by the owner, or some other person chosen by the owner, as that person’s primary residence. The necessary improvements to make the house habitable shall be completed within the initial 90-day period—including a functional kitchen, toilet and bathing facilities and utility connections for gas, electricity, water and sewer—and shall be maintained continuously. The applicant shall contract with a landscape and maintenance service to provide weekly service at the property to ensure that the structure and grounds are maintained free from litter, debris, and overgrown vegetation so as not to become an eyesore, if the resident is not maintaining the property as required by these conditions of approval and by the City’s Municipal Code.

20. Within ninety (90) days of the date of the City’s final action on this application, the house shall be equipped with smoke alarms and fire extinguishers, including those areas where the commercial power supplies, transmitters and other related equipment are kept.

21. Within ninety (90) days of the City’s final action on this application, the applicant shall obtain a business license from the City. A valid City business license shall be maintained at all times while commercial radio transmissions occur from the property.

22. At approximately six (6) months from the date of the City’s final action on this application, the City Council shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked. Within the initial 6-month permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 6-month review process by the City Council.

23. Nothing in this Resolution or these conditions of approval shall be construed as requiring the City to defend any legal challenge to the issuance of Conditional Use Permit No. 230 by a third party.

24. The roof-mounted antenna assembly authorized by this approval shall not be used for any purpose other than to transmit and receive approved radio frequencies, in compliance with FCC regulations.

25. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing by FCC call sign of all personal wireless facilities, as defined by 47 U.S.C. Section 332, that are using this site and all other radio facilities or frequencies that are licensed by the FCC to this site. In addition, within thirty (30) days of this approval, and annually thereafter, the applicant also shall provide to the City documentation demonstrating that the site is being operated in accordance with FCC emission requirements and limits, considering all facilities that are licensed by the FCC to operate at the site or that use the site pursuant to an amateur radio operator's license.

26. Since this approval is for the joint use of the existing antenna support structure and array for both commercial and amateur purposes, at all times the applicant shall maintain antennae on the site that are being used or are available for amateur use.


[Alternate draft Resolution]

RESOLUTION NO. 2002-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE-FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY

WHEREAS, on October 22, 1998, the applicant, James A. Kay, Jr., received approval of an application for Site Plan Review No. 8334 for after-the fact approval of an existing roof-mounted antenna support structure and array for non-commercial radio communications, which was conditioned expressly to exclude commercial operations; and,

WHEREAS, on November 4, 1998, prior to the expiration of the 15-day appeal period for Site Plan Review No. 8334, the City Council adopted Urgency Ordinance No. 341U, which established a moratorium on the processing of all antenna applications, including those applications upon which the City had acted but for which the appeal period had not yet expired; and,

WHEREAS, on April 16, 1999, the antenna moratorium was lifted, the City’s approval of Site Plan Review No. 8334 was voided, and the existing roof-mounted antenna support structure and array were determined by Staff to be exempt from City permits for non-commercial use pursuant to Section 17.76.020(C)(3)(c)(ii) of the Rancho Palos Verdes Development Code; and,

WHEREAS, on October 15, 1999, Mr. Kay submitted an application for Site Plan Review No. 8736 to the Department of Planning, Building and Code Enforcement for a 198-square-foot single-story storage room addition to the rear side of the house, which proposed a large number of electrical outlets, the installation of two dedicated air conditioning condensers for the room and no interior access to the rest of the house; and although Staff suspected that the addition was intended to house commercial radio transmitters, the City did not withhold approval of Site Plan Review No. 8736 based upon these suspicions; and,

WHEREAS, Staff subsequently reviewed Federal Communications Commission (FCC) licensing records and found that several active and pending commercial radio frequencies were licensed to Mr. Kay’s property on Indian Peak Road, and turned this FCC licensing information over to the City Attorney’s office; and,

WHEREAS, the City obtained warrants from the court and retained an expert in the field of radio transmissions, Dr. Henry Richter, to monitor transmissions from the site in connection with an investigation of the alleged commercial use of the existing antennae and found that commercial frequencies were in use at the site. Subsequently, on April 13, 2000, the City filed a complaint for preliminary and permanent injunction against Mr. Kay to prevent the non-permitted use of commercial antennae on the site, and this case currently is pending; and,

WHEREAS, Section 17.76.020(A) of the Rancho Palos Verdes Development Code requires an individual to obtain a conditional use permit to install or operate a commercial antenna within the City of Rancho Palos Verdes. Section 17.96.090 of the Rancho Palos Verdes Development Code further defines the term "commercial antenna" as follows:

"’Commercial Antenna’ means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, ‘commercial purposes’ shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). ‘Commercial antennas’ shall not include antennas owned or operated by governmental agencies; and micro-cell cellular antennas, owned and operated by state licensed cellular telephone utility companies, located on existing utility poles within the public right-of-way."

Under these provisions of the Rancho Palos Verdes Development Code, the applicant, Mr. Kay, was required to obtain a conditional use permit from the City to use his existing antennae and antenna support structure to broadcast on frequencies, deemed commercial by the FCC; and,

WHEREAS, on June 21, 2001, Mr. Kay submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after-the-fact approval to establish the existing antennae and related support structures and equipment on the site for commercial use, although Mr. Kay contested that the application was after-the-fact and requested a waiver of the penalty fee; and,

WHEREAS, on September 4, 2001 and September 18, 2001, the City Council considered Mr. Kay’s request for a waiver of the penalty fee for Conditional Use Permit No. 230, and denied the request based upon inability to make the fee waiver findings set forth in Section 17.78.010(B) of the Rancho Palos Verdes Development Code; and,

WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and,

WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt (Class 1, Section 15301); and,

WHEREAS, after the submittal of these applications on June 21, 2001,and while the Planning Commission was conducting the public hearings on this application, the applicant installed at least eleven (11) additional vertical antenna masts with attached antennae onto the previously existing roof-mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof-mounted antenna support structure and array; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, the applicant’s representative, Mr. Miner, testified that all of the antennae that currently are located at the subject property could be used either for commercial or non-commercial transmissions; and,

WHEREAS, the applicant’s representative, Mr. Schmitz, during the public hearing, stated that the applicant would be willing to comply with conditions that would improve the appearance of the property, such as painting the residence and planting landscaping, and having someone live at the residence, to ensure that the residence is in keeping with the residential character of the neighborhood and to establish the proposed commercial use as being clearly ancillary to the principal residential use of the property, so that the Commission could make a finding of consistency of the proposed commercial use with the City’s General Plan; and,

WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001-43 conditionally approving the project; and,

WHEREAS, the Applicant timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with "all conditions regulating the location, number and placement of antennas on the project site…."

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: The City Council hereby makes the following findings of fact with respect to the application for Conditional Use Permit No. 230 to legalize the use of existing roof-mounted and interior antennae and related support structures and equipment on the site for commercial purposes:

A. For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof-mounted antenna array" refer only to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744. The terms and phrases "existing antenna(e)" and "existing roof-mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above-mentioned photographs, regardless whether these parts, elements, components or other features were, or are, physically present on the subject property as of the effective date of this Resolution.

B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the development standards for commercial antennae, as specified in RPVDC Sections 17.76.020(A)(2) through (A)(10). The site provides for two (2) off-street parking spaces for maintenance and service vehicles and the existing roof-mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights-of-way, this foliage does not adequately screen any antenna support structures or antennae on the roof of the structure from view from many surrounding residences in the neighborhood and from nearby public rights-of-way, especially those residences located directly across the street and the residences located down slope from the rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to require the removal of all but two (2) of the existing eight-and-one-half-foot long masts and two of the television antennae from the roof of the residence. This condition is necessary to maintain the appearance of the structure as a single-family residence, and to integrate the commercial use into the residential neighborhood. In this case, the imposition of stricter limitations upon both commercial and non-commercial antennae than are otherwise required by the City’s Development Code is necessary to protect the aesthetics of the neighborhood while still allowing reasonable use of the site to transmit on both amateur and commercial frequencies, because the applicant’s representatives have testified that the antennae at the site can be "diplexed" so that each antenna can be used to transmit on two different frequencies at the same time. On the other hand, allowing the applicant to use all of the antennae that were placed on the property while this application was pending will dramatically alter the residential character of the home and create the appearance of a commercial antenna farm, which will adversely affect the surrounding residential neighborhood.

C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street. Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval.

D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. Since the conversion of the existing antennae to commercial use constitutes an intensification of the use that benefits the applicant financially but, as proposed by the applicant, does not offset the visual impacts of the antenna array upon the surrounding neighborhood, the approval of this proposal will be conditioned to require the removal of all but two (2) of the existing eight-and-one-half-foot-tall antennae masts and two (2) of the television antenna(e) from the roof of the structure, the painting of the remaining lighter-colored portions of the roof-mounted antennae and support structures that are permitted by this conditional use permit so as to blend better into the background skyand the gray color of the existing antenna support structure. In addition, no future changes to the location or configuration or which increase the number or the height of any approved antennae or element of the remaining roof-mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the City Council, in order to prevent further visual intrusion upon the surrounding neighborhood.

E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] 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 [FCC’s] regulations concerning such emissions."

F. The proposed use—as conditioned—is not contrary to the General Plan. The subject property and the Grandview neighborhood are designated Residential, 4-6 DU/acre, which is a land use designation intended to accommodate medium-density neighborhoods of detached, single-family homes and related accessory uses and structures. No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past three and one-half years. The evidence demonstrates that the property has not been maintained in a manner consistent with the quality of the surrounding neighborhood, and the residential character of the neighborhood has been eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, and to ensure that the proposed use is consistent with the General Plan, the approval of the proposed project includes conditions to address these deficiencies. The conditions include: 1) requiring contract landscape and maintenance services in the event that the home not properly maintained in conformance with the conditions; 2) requiring the removal of most of the visible exterior evidence of the commercial use of the property; and 3) requiring the house to be occupied and maintained in an appropriate manner. These conditions will allow for the provision of wireless telecommunications services at this location, while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood.

G. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40.

H. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all but two (2) of the existing eight and one-half feet-long roof-mounted antenna masts and two of the television antenna(e), painting the remaining roof-mounted antennae and masts, and prohibiting any further modifications to them without first obtaining approval of modification to this conditional use permit; limiting regular maintenance hours to 8:00 AM to 5:00 PM, Monday through Friday; requiring the property to be landscaped and painted and that weekly landscape and general maintenance services shall be provided by contract with a qualified provider of such services if the residence is not properly maintained in accordance with the conditions; requiring the house to be occupied; requiring the applicant to obtain and maintain a valid business license; and reviewing the project for compliance with all conditions of approval within six (6) months of the date of the City’s final action on the application. These conditions are imposed through the City’s authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996.

I. The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property.

Section 2: The City Council finds that the appellant’s previous assertions that commercial transmissions utilized antennae located inside of the house are not credible. Based upon the review of FCC licensing data, the numerous commercial frequencies licensed by the FCC to operate at the subject property are designed to operate from a freestanding tower at an elevation of fifteen meters (15m) above the ground. However, the upstairs bedroom where the appellant claims that these commercial antennae were previously used is no more than seven meters (7m) above the ground. Therefore, it is reasonable to conclude that the roof-mounted antennae—which extend to a maximum height of approximately ten meters (10m)—were the antennae that were used for commercial purposes, and not the antennae that allegedly were located in the upstairs bedroom, despite the appellant’s claims to the contrary. It is also reasonable to conclude that the additional vertical support structures and antennae added to the roof-mounted antenna array by the appellant since June 21, 2001, are also intended to be used for commercial purposes, and not for exclusively amateur non-commercial purposes as claimed by the appellant. Accordingly, the City Council finds that the appellant’s arguments—that these additional vertical support structures and antenna are amateur antennae that previously were exempt from City regulation and that the roof-mounted antenna support structure and array has not been materially altered—to be without merit or credibility.

Section 3: The City Council finds that the proposed project—as conditioned—qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination." As conditioned, the existing roof-mounted antenna support structure and array would be modified so that most of the antennae are removed or relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the property will be required to be occupied and maintained in an appropriate manner that is consistent with City standards. Without the imposition of these conditions, and if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus would require further analysis pursuant to the requirements of CEQA.

Section 4: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the City’s Wireless Communications Antenna Development Guidelines. This application was heard by the Planning Commission within the time lines established by the State’s Permit Streamlining Act and CEQA (Guideline No. 1). Although the Guidelines express a preference for existing, non-single-family structures as antenna sites (Guideline No. 2), installations on single-family residences are not prohibited and have been approved previously elsewhere in the City. In addition, the conditions of approval for this project will help to enhance the residential character of the neighborhood by requiring the applicant to upgrade the appearance and maintenance of the property. As a condition of approval, most of the exterior antennae will be removed, so the project will have no significant impact upon any view corridors (Guideline No. 4). The removal of these antennae will also serve to balance the aesthetic impacts of the antennae upon the neighborhood with the applicant’s financial benefit from the operation of the commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed from the roof of the house, they will be effectively screened from view from adjacent properties or rights-of-way (Guideline No. 9).

Section 5: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the local zoning authority reserved to the City of Rancho Palos Verdes by the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)) for the following reasons:

  1. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably discriminate among providers of functionally equivalent services…and [does] not prohibit or have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (B)(i)(I) and (II)). In reviewing all of the applications to provide personal wireless services on other residentially-zoned property within the City, the City has applied consistently its regulations to these facilities so as to approve facilities that are compatible with surrounding uses and to modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved with conditions requiring the removal of most of the exterior antennae because it will otherwise result in adverse visual and aesthetic impacts upon adjacent properties. The City’s conditional approval of this specific proposal does not prohibit the applicant from providing wireless communications services because the applicant still has the ability to provide these services from the remaining exterior antennae . The applicant’s representative has stated at a public hearing that the applicant has the capability to diplex the antennae in order to utilize more frequencies. The applicant has also admitted that he has transmitted commercially from the site since 1998. The City has previously approved applications for commercial antennae for a variety of commercial wireless services and service providers, including applications for properties that were zoned or used for single-family residential purposes. Accordingly, the conditional approval of this particular application also does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes.
  2. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on September 19, 2001. The City has acted on the applicant’s request for Conditional Use Permit No. 230 "within a reasonable period of time after the request [was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act. The only delays in the processing of this application are attributable to the applicant’s request for a waiver of the penalty fee (which was denied by the City Council on September 18, 2001), the applicant’s request for a continuance of this application from the Planning Commission meeting of October 23, 2001 to the meeting of November 13, 2001, and the applicant’s appeal of the Planning Commission’s conditional approval and request for continuance of the appeal from the City Council meeting of February 19, 2002 to the meeting of March 19, 2002.
  3. In conditionally approving the application for Conditional Use Permit No. 230, the City has not "[regulated] 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 [Federal Communications] Commission's regulations concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required modifications to the existing antennae on the site are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the antennae upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The Planning Commission and City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers.

Section 6: The applicant’s appeal of the conditions of approval imposed by the Planning Commission is denied. However, modifications to the conditions entitle the applicant to a refund of one-half of the appeal fee pursuant to Rancho Palos Verdes Development Code Section 17.80.120.

Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City’s final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction.

Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 230, thereby approving the commercial use of certain antennae and related support structures and equipment on the site of a single-family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit 'A', attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare.

PASSED, APPROVED, AND ADOPTED this 25th day of March 2002, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:


_______________________
John McTaggart, Mayor

ATTEST:

____________________
Jo Purcell, City Clerk

State of California)
County of Los Angeles) ss
City of Rancho Palos Verdes)

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2002-____ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on March 25, 2002.


_________________________________
City Clerk


EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 230
(26708 Indian Peak Road)

 

1. Within ninety (90) days following adoption of this Resolution, the applicant and the property owner shall submit to the City a statement, in writing, that they have read, understand, and agree to all conditions of approval contained in this Resolution. Failure to provide said written statement shall render this approval null and void.

2. This approval is for the use of antennae and related support structures and equipment on the site of a single-family residence in the Grandview community for commercial purposes. The commercial use of the property is conditioned upon the following modifications:

a. The roof-mounted equipment shall consist of a maximum of two (2) vertical masts, each of which shall not exceed eight and one-half (8½) feet in height, as measured from the point where the mast meets the roof surface.

b. Each of the two masts may have up to four (4) radiating elements affixed thereon, similar to those that currently are present at the site, provided that they do not extend any higher than the mast itself and that each antenna or radiating element does not project more than two feet horizontally from the center of the mast.

c. In addition, the two (2) existing television antennae also may remain on the roof of the residence, so long as they do not exceed eight and one-half (8½) feet in height, as measured from the point where they are attached to the roof surface; that the horizontal boom of each antenna does not exceed six feet in length; that no radiating element or antenna attached to the boom exceeds two feet in length, and that all of the antennae and support structures on the property are maintained in compliance with the Municipal Code.

d. The Director of Planning, Building and Code Enforcement shall review the exterior masts and antennae to ensure compliance with this condition. Any additional exterior antennae, masts or other antenna support structure(s) shall require further approval or modification of this conditional use permit.

e. The exterior masts and antennae described in this condition may be used for either commercial or non-commercial purposes.

The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions. Otherwise, any substantive change, such as the enlargement, expansion or addition to, the two exterior masts and antennae that this approval allows outside of the existing residential structure shall require approval of a revision to Conditional Use Permit No. 230 by the City Council and shall require a new and separate environmental review.

3. All project development on the site shall conform to the specific standards contained in these conditions of approval or, if not addressed herein, in the RS-5 district development standards of the City's Municipal Code.

4. Failure to comply with and adhere to any or all of these conditions of approval may be cause to revoke the approval of the project by the City Council after conducting a duly noticed public hearing on the matter.

5. If the necessary modifications to site, the house and the existing roof-mounted antenna support structure and array, as specified by these conditions of approval, have not been made within ninety (90) days of the date of the City’s final action on this application, approval of the project shall expire and be of no further effect unless, prior to expiration, a written request for extension is filed with the Department of Planning, Building and Code Enforcement and approved by the City Council.

6. In the event that any of these conditions conflict with the recommendations and/or requirements of another permitting agency or City department, the stricter standard shall apply.

7. The applicant shall submit a plan depicting the roof-mounted masts and antennae that may be retained or erected pursuant to this approval, within (90) ninety days of the date of the City’s final action on this application. The applicant shall obtain a building permit and any other approval required by the Building Code to modify or construct the masts and attached antennae on the property.

8. Unless otherwise modified by these conditions, all conditions of approval for Site Plan Review No. 8736—for the 198-square-foot storage room addition—and Minor Exception Permit No. 555—for a front-yard fence in excess of the 42-inch height limit—remain in full force and effect.

9. The lighter-colored portions of the roof-mounted antennae and masts that are hereby approved shall be painted a neutral color —such as gray, gray-green or gray-blue—that helps to camouflage them against the background sky and the gray color of the existing antenna support structure. The applicant shall maintain the current gray color of the existing antenna support structure. The color shall be approved by the Director of Planning, Building and Code Enforcement before any portions of the antenna support structure and array are painted. Painting shall be completed and inspected by the Director within ninety (90) days of the date of the City’s final action on this application.

10. The two roof-mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the City Council, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. Existing masts and antennae that are permitted by this approval may be removed and replaced for maintenance and/or repair as long as the replacement masts or antennae are the same or less in height, length and mass and in the same location as the approved masts and antennae, and provided that the total number of masts and antennae is not increased.

11. Notwithstanding Condition No. 10 above, within ninety (90) days of the date of the City’s final action on this application, the applicant shall remove all existing additional masts, antennae, horizontal support structure(s), pipes, ducts and other components of the roof-mounted antenna assembly that are not expressly approved by this Resolution. Any other antennae and antenna support structures shall be removed, but may be relocated inside the house at the applicant’s discretion.

12. Except in case of emergency, regular maintenance of the commercial antennae and related exterior support equipment and structures shall only occur between the hours of 8:00 AM and 5:00 PM, Monday through Friday. Maintenance of the non-commercial antennae and related exterior support equipment and structures may occur between the hours of 7:00 AM and 7:00 PM, Monday through Saturday.

13. All service vehicles related to the maintenance of the commercial antennae shall be parked off-street in the driveway or garage of the house. No more than two (2) such service vehicles are allowed on the site at any time. The parking of vehicles related to the maintenance of the non-commercial antennae or other household purposes are not restricted by this condition, but shall comply with the general parking restrictions imposed by the City’s Municipal Code.

14. No new exterior building-mounted antennae, related support equipment or structures will be allowed without approval of a modification to this conditional use permit by the City Council.

15. The support equipment for the antennae on the site, including air conditioning units, shall not generate noise levels in excess of 65 dBA, as measured at the property line of the subject property. Any sound attenuation measures to achieve this standard shall be the responsibility of the applicant, and shall be subject to the review and approval of the Director of Planning, Building and Code Enforcement.

16. No lights may be placed upon the antenna tower, nor may it be otherwise illuminated in any manner. This condition shall not restrict the use of hand-held lighting, nor the use of temporary lighting during the performance of emergency repairs.

17. The operation of the antennae on the site shall at all times comply with the requirements, standards and regulations of the Federal Communications Commission (FCC).

18. Within ninety (90) days of the date of the City’s final action on this application, the exterior appearance of the house and site shall be brought into consistency with neighborhood standards by:

    1. Painting the exterior of the house and garage and maintaining the exterior of the building so that the paint is not peeling or cracking in a manner detrimental to the value of the property and neighboring properties, to the satisfaction of the Director; and,
    2. Landscaping the front yard area, and maintaining the landscaping in a neat and thriving condition to the satisfaction of the Director.

19. Within ninety (90) days of the date of the City’s final action on this application, the property shall be occupied by the owner, or some other person chosen by the owner, as that person’s primary residence. The necessary improvements to make the house habitable shall be completed within the initial 90-day period—including a functional kitchen, toilet and bathing facilities and utility connections for gas, electricity, water and sewer—and shall be maintained continuously. The applicant shall contract with a landscape and maintenance service to provide weekly service at the property to ensure that the structure and grounds are maintained free from litter, debris, and overgrown vegetation so as not to become an eyesore, if the resident is not maintaining the property as required by these conditions of approval and by the City’s Municipal Code.

20. Within ninety (90) days of the date of the City’s final action on this application, the house shall be equipped with smoke alarms and fire extinguishers, including those areas where the commercial power supplies, transmitters and other related equipment are kept.

21. Within ninety (90) days of the City’s final action on this application, the applicant shall obtain a business license from the City. A valid City business license shall be maintained at all times while commercial radio transmissions occur from the property.

22. At approximately six (6) months from the date of the City’s final action on this application, the City Council shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked. Within the initial 6-month permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 6-month review process by the City Council.

23. Nothing in this Resolution or these conditions of approval shall be construed as requiring the City to defend any legal challenge to the issuance of Conditional Use Permit No. 230 by a third party.

24. The roof-mounted antenna assembly authorized by this approval shall not be used for any purpose other than to transmit and receive approved radio frequencies, in compliance with FCC regulations.

25. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing by FCC call sign of all personal wireless facilities, as defined by 47 U.S.C. Section 332, that are using this site and all other radio facilities or frequencies that are licensed by the FCC to this site. In addition, within thirty (30) days of this approval, and annually thereafter, the applicant also shall provide to the City documentation demonstrating that the site is being operated in accordance with FCC emission requirements and limits, considering all facilities that are licensed by the FCC to operate at the site or that use the site pursuant to an amateur radio operator's license.

26. Since this approval is for the joint use of the existing antenna support structure and array for both commercial and amateur purposes, at all times the applicant shall maintain antennae on the site that are being used or are available for amateur use.



3. Reconsideration of the Decision on the Appeal of Conditional Use Permit No. 207 (Appellant: Mark Abrams, 44 Oceanaire Drive). (Fox) (Continued from March 19, 2002 meeting.)

Recommendation: (1) ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ADOPTING THE MITIGATED NEGATIVE DECLARION PREPARED PURSUANT TO ENVIRONMENTAL ASSESSMENT NO. 720. (2) ADOPT RESOLUTION NO. 2002-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES CONDITIONALLY APPROVING CONDITIONAL USE PERMIT NO. 207.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: MARCH 25, 2002

SUBJECT:RECONSIDERATION OF THE DECISION ON THE APPEAL OF CONDITIONAL USE PERMIT NO. 207 [APPELLANT: MARK ABRAMS, 44 OCEANAIRE DRIVE]

Staff Coordinator:Kit Fox, aicp, Senior Planner

RECOMMENDATION

Adopt Resolution No. 2002-__, adopting the Mitigated Negative Declaration prepared pursuant to Environmental Assessment No. 720; and adopt Resolution No. 2002-__, conditionally approving Conditional Use Permit No. 207.

BACKGROUND

On March 19, 2002, the City Council opened the public hearing and heard testimony from the appellant and other interested parties regarding the conditions of approval for this project. Staff has revised the attached Resolutions to reflect the City Council’s direction.

DISCUSSION

In response to the decision of the United States District Court and direction from the City Council, Staff has prepared the attached revised draft Resolutions for the City Council’s consideration. Please note that revised language is shown in underlined and strike out text to show the changes from the draft Resolutions reviewed by the City Council on March 19, 2002.

Consistent with the direction of the Court, the Resolution approving Conditional Use Permit No. 207 includes revised conditions that will:

  • Modify the painting requirement (Aesthetics Mitigation Measure No. 1 and Condition No. 9) so that only the white or lighter-colored portions of the antenna support structure and array need to painted to blend with the gray color of the existing antenna tower.

  • Modify the landscape screening requirement (Aesthetics Mitigation Measure No. 2 and Condition No. 10) so that the existing tree is generally maintained in size and fullness to continue to screen the antenna tower while allowing for trimming to maintain a 4-foot clearance from the tower, and requiring the planting of two (2) additional 24-inch-box evergreen trees to the immediate north and southwest of the antenna tower to provide additional screening.

  • Modify the hours and days for maintenance (Condition No. 11) to allow the maintenance of the non-commercial antennae and related exterior support equipment and structures to occur between the hours of 7:00 AM and 7:00 PM, Monday through Saturday.

  • Modify the parking restrictions for service vehicles (Condition No. 12) to exclude the parking of vehicles related to the maintenance of the non-commercial antennae or to other household activities.

  • Modify the tower lighting restrictions (Aesthetics Mitigation Measure No. 3 and Condition No. 14) to exempt the use of hand-held lighting and the use of temporary lighting for emergency repairs.

  • Add a condition (No. 18) restricting the use of the antenna tower to purposes related to the transmission and reception of approved radio frequencies in compliance with FCC regulations.

  • Add a condition (No. 19) requiring annual reporting to the City of all personal wireless services licensed to and/or using this site, and documentation of the site’s compliance with FCC emission requirements and limits.

  • Add a condition (No. 20) requiring that, at all times, the applicant shall maintain antennae on the tower that are being used or are available for amateur use.

  • Eliminate the former condition requiring indemnification of the City, but add language elsewhere in the Resolution noting that the City is not obligated to defend any legal challenge to the issuance of Conditional Use Permit No. 207.

None of these conditions requires any modification to the size, number, height or location of the existing antenna support structure and array on the property. As such, Staff believes that these conditions are consistent with the direction of the Court, as well as with the zoning authority reserved to the City by the Telecommunications Act of 1996. However, pursuant to the order of the U.S. District Court entered on March 18, 2002, the Court retains jurisdiction to review these conditions in the event of further disputes between the City and the appellant over the issuance of this permit.

CONCLUSION

Based upon the foregoing discussion and the order of the United States District Court in the case of Abrams v. Rancho Palos Verdes, Staff recommends that the City Council adopt Resolution No. 2002-__, thereby adopting the Mitigated Negative Declaration and adopt Resolution No. 2002-__, thereby conditionally approving Conditional Use Permit No. 207.

ALTERNATIVES

In addition to Staff’s recommendation, the alternatives available for the City Council’s consideration include:

  1. Approve Conditional Use Permit No. 207 with additional and/or modified conditions of approval. If this alternative is chosen, the City Council should continue this matter to the next City Council meeting so that Staff can prepare appropriate Resolutions and conditions of approval for the Mitigated Negative Declaration and Conditional Use Permit No. 207.
  2. Identify any issues of concern with the proposed project and environmental analysis, provide Staff with direction in modifying the conditions and/or environmental analysis, and continue the public hearing to the next City Council meeting.

Please note that the Court’s order requires the City Council to adopt a resolution approving Conditional Use Permit No. 207 by April 2, 2002.

Respectfully submitted:
Joel Rojas, aicp, Director of Planning, Building and Code Enforcement

Reviewed by:
Les Evans, City Manager

Attachments:

Resolution No. 2002-__ (MND) and Mitigation Monitoring Program
Resolution No. 2002-__ (CUP)


RESOLUTION NO. 2002-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES, ADOPTING A MITIGATED NEGATIVE DECLARATION THUS MAKING CERTAIN ENVIRONMENTAL FINDINGS IN ASSOCIATION WITH ENVIRONMENTAL ASSESSMENT NO. 720 AND CONDITIONAL USE PERMIT NO. 207 TO ALLOW THE PROPOSED COMMERCIAL USE OF EXISTING ANTENNAE ON AN EXISTING ANTENNA SUPPORT STRUCTURE, LOCATED AT 44 OCEANAIRE DRIVE IN THE DEL CERRO NEIGHBORHOOD

WHEREAS, on July 12, 1999, September 30, 1999, and January 21, 2000, Mr. Abrams submitted applications and supplemental information for Conditional Use Permit No. 207 and Environmental Assessment No. 720 to allow the commercial use of certain of the existing antennae on the existing antenna support structure on his property in the Del Cerro neighborhood; and,

WHEREAS, on January 31, 2000, the applications for Conditional Use Permit No. 207 and Environmental Assessment No. 720 were deemed complete by Staff; and,

WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et. seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), the City of Rancho Palos Verdes prepared an Initial Study and determined that the approval of Conditional Use Permit No. 207 could result in a significant adverse effect upon the environment unless mitigation measures were imposed and, therefore, a draft Mitigated Negative Declaration has been prepared and notice of same was given in the manner required by law; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code and the State CEQA Guidelines, the Planning Commission held a duly noticed public hearing on April 25, 2000, and May 9, 2000, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, on May 9, 2000, the Planning Commission adopted P.C. Resolution No. 2000-12, thereby denying the application for Conditional Use Permit No. 207 with prejudice; and,

WHEREAS, on May 10, 2000, within the 15-day appeal period prescribed by Section 17.80.070 of the Rancho Palos Verdes Development Code, Mr. Abrams appealed the Planning Commission’s denial of Conditional Use Permit No. 207 to the City Council; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on June 6, 2000, and July 5, 2000, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, after the public hearing was closed on July 5, 2000, the applicant objected to some of the information that had been submitted to the City Council during the public hearing and also sought to present additional information to the City Council, even though the public hearing already had been closed; and,

WHEREAS, in order to address Mr. Abrams’ concerns, on July 18, 2000, the City Council directed staff to re-notice the public hearing so that it could be re-opened and any additional information that is relevant to the application could be considered by the City Council prior to making a decision on the application; and,

WHEREAS, the re-opened public hearing was held on August 15, 2000, at which time all interested parties were given an opportunity to be heard and present evidence that had not been presented previously to the City Council; and,

WHEREAS, on August 15, 2000, the City Council adopted Resolution No. 2000-53, thereby denying the application for Conditional Use Permit No. 207 with prejudice; and,

WHEREAS, on August 24, 2000, Mr. Abrams filed suit against the City in Federal court in order to overturn the City’s action on the grounds that it violated the Telecommunications Act of 1996; and,

WHEREAS, on January 9, 2002, the United States District Court for the Central District of California ruled in the case of Abrams v. Rancho Palos Verdes and vacated the City’s denial of Mr. Abrams’ application for Conditional Use Permit No. 207; and,

WHEREAS, on February 25, 2002, the United States District Court for the Central District of California subsequently denied Mr. Abrams’ petition for damages in the case of Abrams v. Rancho Palos Verdes and ordered the City to issue Conditional Use Permit No. 207 without requiring Mr. Abrams to modify the size, height, location or configuration of the existing antennae support structure and array; and,

WHEREAS, the City revised the Mitigated Negative Declaration originally prepared pursuant to Environmental Assessment No. 720 to incorporate mitigation measures to reduce the aesthetic impacts of the existing antenna support structure and array to the extent feasible, in accordance with the Court’s order and in compliance with the provisions of CEQA; and

WHEREAS, on March 18, 2002, the United States District Court for the Central District of California entered its judgment in the case of Abrams v. Rancho Palos Verdes, ordering the City to issue Conditional Use Permit No. 207 by April 2, 2002 and allowing the imposition of reasonable conditions that are consistent with the Court’s order of January 9, 2002; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code and the State CEQA Guidelines, the City Council held a duly noticed public hearing on March 19, 2002 and March 25, 2002 to reconsider Conditional Use Permit No. 207 and Environmental Assessment No. 720, at which time all interested parties were given an opportunity to be heard and present evidence

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: The subject application would permit the conversion of an existing 52½-foot-tall antenna support structure and array from amateur use only to both amateur and commercial use. There will be no change in the number or type of antennae or the height, location or configuration of the antenna tower. The subject property is currently improved with a single-family residence. The City Council finds that the proposed project is permitted within the RS-2 zoning district—provided that a conditional use permit is issued—and that the commercial use of the existing antennae and support structure would not result in significant adverse environmental impacts. In making this finding, the City Council considered the project's mitigation measures, which address the issues of Aesthetics and Cumulative Impacts.

Section 2: With respect to aesthetics, the City’s Development Code and Wireless Communications Antenna Development Guidelines require antenna towers to be screened—to the maximum extent feasible—in order to reduce their visual impacts upon surrounding properties. In previous approvals for commercial antennae in the City, this screening has usually been accomplished by requiring antennae and antenna towers to be painted to blend into the background and/or by planting screening foliage. Although the existing antenna support structure and array does not significant impair the protected view from and surrounding residences, the aesthetic impacts of the structure also include its negative visual impacts upon the general scenic character of the neighborhood. These impacts are related to the height of the existing tower and antenna array as compared to other features in the neighborhood. The 52½-foot-tall tower is much taller than all the residences in the immediate area, and many of the lighter-colored elements of the structure stand out visually against the background sky and foliage. As a result of the recent court decision in the case of Abrams v. Rancho Palos Verdes, the City cannot require the existing antenna support structure and array to be modified in any way that reduces the number, size or height of the existing antennae or the tower itself. However, changing the color of the lighter-colored portions of the existing antenna support structure and array to a more uniform neutral color would help it to blend into the background sky and foliage. Prohibiting any lighting on the antenna tower will also reduce adverse visual impacts. There is also a large tree adjacent to the antenna tower that helps to screen and camouflage the tower, which should be retained and maintained in a manner to continue to provide this level of screening. In addition, two (2) more trees are required to be planted for screening purposes. As such, the City Council finds that imposition of mitigation measures regarding the color of the tower and the retention of existing screening foliage will reduce the aesthetic impacts of the project to less-than-significant levels.

Section 3: With respect to cumulative impacts, the proposed project does not include any physical modification or alteration of the existing, developed site. The direct environmental impacts of the project are limited to the effects related to the operation and maintenance of the commercial antennae, but these effects are expected to be less than significant. However, the indirect aesthetic impacts of the project are potentially cumulatively considerable. Although there are no similar projects existing or currently proposed on other properties in the immediate vicinity of the project site, the topography and geographic orientation of the neighborhood make it a desirable site for both amateur and commercial radio use. It is possible that a similar tower for either commercial or amateur use could be proposed on a nearby site at some future date. In order to address the potential for future cumulative impacts of this project, any future modifications to the existing antenna support structure and array that involve additional antennae or changes in the height or configuration of the antenna tower should require the approval of revision to Conditional Use Permit No. 207 by the City. As such, the City Council finds that imposition of a mitigation measure regarding future modifications of the existing antennae support structure and array will reduce the cumulative impacts of the project to less-than-significant levels.

Section 4: For reasons discussed in the Initial Study, which is incorporated herein by reference, the project will not have any potential to achieve short-term, to the disadvantage of long-term, environmental goals, nor would the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly.

Section 5: The applicant has consulted the lists prepared pursuant to Section 65962.5 of the Government Code and has submitted a signed statement indicating whether the project and any alternatives are located on a site which is included on any such list, and has specified any such list. The Lead Agency has consulted the lists compiled pursuant to Section 65962.5 of the Government Code, and has certified that the development project and any alternatives proposed in this application are not included in these lists of known Hazardous Waste and Substances Sites as compiled by the California Environmental Protection Agency.

Section 6: The mitigation measures set forth in the Mitigation Monitoring Program, attached hereto as Exhibit ’A’, are incorporated into the scope of the proposed project. These measures will reduce potential significant impacts identified in the Initial Study to a less than significant level.

Section 7: For the foregoing reasons and based on its independent review and evaluation of the information and findings contained in the Initial Study, Staff Reports, minutes, and records of the proceedings, the City Council has determined that the project as conditioned and mitigated will not result in a significant adverse impact on the environment and, therefore, adopts the Mitigated Negative Declaration making certain environmental findings in association with Environmental Assessment No. 720 and Conditional Use Permit No. 207 to allow the proposed commercial use of existing antennae on an existing antenna support structure, located at 44 Oceanaire Drive in the Del Cerro neighborhood.

Section 8: The City Council is adopting this Mitigated Negative Declaration for the subject commercial use at this specific location in order to comply with the order of the United States District Court issued on January 9, 2002 and March 18, 2002. If that order is reversed, the City Council hereby reserves the right to vacate this Resolution and decision and reinstate its prior decision denying the conditional use permit or, in the alternative, to reopen the hearing to consider adopting additional mitigation measures to further reduce the environmental impacts of the project, including but not limited to the reduction in the height and bulk of the existing antenna support structure and array.

PASSED, APPROVED, AND ADOPTED this 25th day of March 2002, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:


_______________________
John McTaggart, Mayor

ATTEST:


____________________
Jo Purcell, City Clerk

State of California)
County of Los Angeles) ss
City of Rancho Palos Verdes)

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2002-____ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on March 25, 2002.


_________________________________

City Clerk


Exhibit ‘A’

Mitigation Monitoring Program

Project: Environmental Assessment No. 720 for Conditional Use Permit 207

Location: 44 Oceanaire Drive, Rancho Palos Verdes, CA 90275

Applicant/ Landowner: Mark Abrams


TABLE OF CONTENTS

I. Introduction

II. Management of the Mitigation Monitoring Program

Roles and Responsibilities
Mitigation and Monitoring Program Procedures
Mitigation Monitoring Operations

III. Mitigation Monitoring Program Checklist

IV.Mitigation Monitoring Summary Table

I. INTRODUCTION

PURPOSE

This Mitigation Monitoring Program (MMP), to allow the conversion of an existing, 52½-foot-tall antenna support structure and array from amateur use only to both amateur and commercial use, located at 44 Oceanaire Drive in the City of Rancho Palos Verdes, responds to Section 21081.6 of the Public Resources Code. Section 21081.6 requires a lead or responsible agency that approves or carries out a project where a Mitigated Negative Declaration has identified significant environmental effects, to adopt a "reporting or monitoring program for adopted or required changes to mitigate or avoid significant environmental effects." The City of Rancho Palos Verdes is acting as lead agency for the project.

An Initial Study/Mitigated Negative Declaration was prepared to address the potential environmental impacts of the project. Where appropriate, this environmental document recommended mitigation measures to mitigate or avoid impacts identified. Consistent with Section 21080 (2)(c) of the Public Resources Code, a mitigation reporting or monitoring program is required to ensure that the adopted mitigation measures under the jurisdiction of the City are implemented. The City will adopt this MMP when adopting the Mitigated Negative Declaration.

ENVIRONMENTAL PROCEDURES

This MMP has been prepared in accordance with the California Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code Section 21000 et seq.) and the State Guidelines for Implementation of CEQA (CEQA Guidelines), as amended (California Administrative Code Section 15000 et seq.). This MMP complies with the rules, regulations, and procedures adopted by the City of Rancho Palos Verdes for implementation of CEQA.

MITIGATION MONITORING PROGRAM REQUIREMENTS

Section 21081.6 of the Public Resources Code states: "When making the findings required by subdivision (a) of Section 21081 or when adopting a negative declaration pursuant to paragraph (2) of subdivision (c) of Section 21081, the public agency shall adopt a reporting or monitoring program for the changes to the project which it has adopted or made a condition of project approval in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation. For those changes which have been required or incorporated into the project at the request of an agency having jurisdiction by law over natural resources affected by the project, that agency shall, if so requested by the lead or responsible agency, prepare and submit a proposed reporting or monitoring program."

II. MANAGEMENT OF THE MITIGATION MONITORING PROGRAM

ROLES AND RESPONSIBILITIES

The MMP for the project will be in place through all phases of the project including final design, pre-grading, construction, and operation. The City will have the primary enforcement role for the mitigation measures.

MITIGATION MONITORING PROGRAM PROCEDURES

The mitigation monitoring procedures for this MMP consists of filing requirements and compliance verification. The Mitigation Monitoring Checklist and procedures for its use are outlined below.

Mitigation Monitoring Program Checklist

The MMP Checklist provides a comprehensive list of the required mitigation measures. In addition, the Mitigation Monitoring Checklist includes: the implementing action when the mitigation measure will occur; the method of verification of compliance; the timing of verification; the department or agency responsible for implementing the mitigation measures; and compliance verification. Section III provides the MMP Checklist.

Mitigation Monitoring Program Files

Files shall be established to document and retain the records of this MMP. The files shall be established, organized, and retained by the City of Rancho Palos Verdes department of Planning, Building, and Code Enforcement.

Compliance Verification

The MMP Checklist shall be signed when compliance of the mitigation measure is met according to the City of Rancho Palos Verdes Director of Planning, Building, and Code Enforcement. The compliance verification section of the MMP Checklist shall be signed, for mitigation measures requiring ongoing monitoring, and when the monitoring of a mitigation measure is completed.

MITIGATION MONITORING OPERATIONS

The following steps shall be followed for implementation, monitoring, and verification of each mitigation measure:

1. The City of Rancho Palos Verdes, Director of Planning, Building, and Code Enforcement shall designate a party responsible for monitoring of the mitigation measures.

2. The City of Rancho Palos Verdes, Director of Planning, Building, and Code Enforcement shall provide to the party responsible for the monitoring of a given mitigation measure, a copy of the MMP Checklist indicating the mitigation measures for which the person is responsible and other pertinent information.

3. The party responsible for monitoring shall then verify compliance and sign the Compliance Verification column of the MMP Checklist for the appropriate mitigation measures.

Mitigation measures shall be implemented as specified by the MMP Checklist. During any project phase, unanticipated circumstances may arise requiring the refinement or addition of mitigation measures. The City of Rancho Palos Verdes, Director of Planning, Building, and Code Enforcement with advice from Staff or another City department, is responsible for recommending changes to the mitigation measures, if needed.  If mitigation measures are refined, the Director of Planning, Building, and Code Enforcement would document the change and shall notify the appropriate design, construction, or operations personnel about refined requirements.

III. MITIGATION MONITORING PROGRAM CHECKLIST

INTRODUCTION

This section provides the MMP Checklist for the project as approved by the Planning Commission of the City of Rancho Palos Verdes on May 8, 2001. Mitigation measures are listed in the order in which they appear in the Initial Study.

* Types of measures are project design, construction, operational, or cumulative.

* Time of Implementation indicates when the measure is to be implemented.

* Responsible Entity indicates who is responsible for implementation.

* Compliance Verification provides space for future reference and notation that compliance has been monitored, verified, and is consistent with these mitigation measures.

MITIGATION MEASURES

TYPE

TIME OF IMPLEMENTATION

RESPONSIBLE ENTITY

COMPLIANCE VERIFICATION

AESTHETICS

1. Within ninety (90) days of the date of the City’s final action on this permit, the applicant shall paint the white or lighter-colored portions of the antenna support structure and array in a neutral color—such as gray, gray-green or gray-blue—that will blend with the background foliage and sky and the gray color of the existing antenna tower. The applicant shall maintain the current gray color of the existing antenna tower, and shall provide the Director of Planning, Building and Code Enforcement with a selection of possible colors for approval prior to the painting of any portion of the antenna support structure and array. The applicant shall be continuously responsible for maintaining the antenna support structure and array in the approved paint color.

Project Design/
Operational

Within ninety (90) days after approval by the City

Applicant/
Developer

 

2. The existing tree in the rear yard of the subject property, as depicted in photographs of the property taken on March 18, 2002 and kept in the City’s files, provides screening for the existing antenna tower. This tree shall be generally maintained by the applicant in size and fullness so as to continue to provide a similar degree of screening for the antenna tower. In the event that this tree dies or is felled by an act of God or any other intentional or unintentional act, it must be replaced by another tree of an evergreen variety that is at least a twenty-four-inch (24") box size tree. In addition, the applicant shall plant two (2) additional 24-inch-box evergreen trees to the immediate north and southwest of the antenna tower, based upon the April 24, 2000 site plan in the City’s files. These additional trees must be allowed to grow to a sufficient height screen the antenna tower, but all of the trees specified in this condition may be trimmed by the applicant so as to maintain at least four feet (4’) of clearance from the antenna tower or the antennae themselves, as well as to protect other structures on the subject property and adjacent properties while still maintaining visual screening of the antenna tower.

Project Design/
Operational

On-going

Applicant/
Developer

 

3. No lights may be placed upon the antenna tower, nor may it be otherwise illuminated in any manner. This condition shall not restrict the use of hand-held lighting, nor the use of temporary lighting during the performance of emergency repairs.

Project Design/
Operational

On-going

Applicant/
Developer

 

CUMULATIVE IMPACTS

1. No additional antennae may be added to the existing antenna support structure without prior City approval of a revision to this conditional use permit. Existing antennae on the antenna support structure may be removed and replaced for maintenance and repair purposes, but the replacement antenna(e) must be the same size (or smaller), same height (or lower), same type and same location as the antenna(e) they are replacing.

Cumulative

Prior to any future modification of the existing antenna support structure and array

Applicant/
Developer

 



RESOLUTION NO. 2002-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 207, THEREBY APPROVING THE COMMERCIAL USE OF EXISTING ANTENNAE AND AN EXISTING ANTENNA SUPPORT STRUCTURE AND OTHER RELATED EQUIPMENT ON THE SITE OF A SINGLE-FAMILY RESIDENCE, LOCATED AT 44 OCEANAIRE DRIVE IN THE DEL CERRO COMMUNITY

WHEREAS, on January 8, 1990, the applicant/appellant, Mark Abrams, received approval of an application for Site Plan Review No. 5322 to permit the construction of a 40-foot-tall amateur radio antenna support structure and array on his property at 44 Oceanaire Drive in the Del Cerro neighborhood, which could be used only for amateur radio communications and was conditioned expressly to exclude commercial operations; and,

WHEREAS, on January 19, 1998, Mr. Abrams received approval of an application for Site Plan Review No. 8017 to permit the construction of a second, similar amateur radio antenna support structure and array on the same property; and,

WHEREAS, on January 20, 1998, the City’s approval of Site Plan Review No. 8017 was appealed to the Planning Commission by Karyl Newton, the owner of the adjacent property at 46 Oceanaire Drive; and,

WHEREAS, at a duly noticed public hearing on the appeal of Site Plan Review No. 8017, Mr. Abrams admitted that there was at least one antenna on the existing support structure and array that was used for commercial purposes, and evidence was also presented to the Planning Commission which confirmed this commercial use and demonstrated that the existing antenna support structure and array was taller than forty feet (40’0"); and,

WHEREAS, the Planning Commission’s consideration of the appeal of Site Plan Review No. 8017 was continued to a date certain, and was subsequently tabled by the imposition of a moratorium on applications for second antenna support structures, and the application subsequently was voided by the enactment of revisions to the City’s antenna regulations; and,

WHEREAS, the City investigated the allegations regarding the height of the existing antenna support structure and array and found that Building Permit No. 9827 had been erroneously issued and finaled in 1990 to allow the antenna support structure and array to exceed the 40-foot height limit; and,

WHEREAS, the City obtained warrants from the court and retained an expert in the field of radio transmissions, Dr. Henry Richter, to monitor transmissions from the site in connection with an investigation of the allegations regarding commercial use of the existing antennae and found that the allegations were valid. Subsequently, on June 29, 1999, the Los Angeles County Superior Court granted the City’s motion for a preliminary injunction, and on September 13, 1999, the court issued its written order, preventing Mr. Abrams from using the antennae for commercial purposes unless and until the City approved a conditional use permit for that use; and,

WHEREAS, Section 17.76.020(A) of the Rancho Palos Verdes Municipal Code requires an individual to obtain a conditional use permit to install or operate a commercial antenna within the City of Rancho Palos Verdes ("City"). Section 17.96.090 defines the term "commercial antenna" as follows:

"’Commercial Antenna’ means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, ‘commercial purposes’ shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). ‘Commercial antennas’ shall not include antennas owned or operated by governmental agencies; and microcell cellular antennas, owned and operated by state licensed cellular telephone utility companies, located on existing utility poles within the public right-of-way."

Under these provisions of the Rancho Palos Verdes Municipal Code, the applicant, Mr. Abrams, was required to obtain a conditional use permit from the City to use his existing antennae and antenna support structure to broadcast on commercial frequencies, as determined by the Federal Communications Commission ("FCC"); and,

WHEREAS, on July 12, 1999, September 30, 1999, and January 21, 2000, Mr. Abrams submitted applications and supplemental information for Conditional Use Permit No. 207 and Environmental Assessment No. 720 to allow the commercial use of certain of the existing antennae on the existing antenna support structure on his property in the Del Cerro neighborhood; and,

WHEREAS, on January 31, 2000, the applications for Conditional Use Permit No. 207 and Environmental Assessment No. 720 were deemed complete by Staff; and,

WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et. seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), the City of Rancho Palos Verdes prepared an Initial Study and determined that the approval of Conditional Use Permit No. 207 could result in a significant adverse effect upon the environment unless mitigation measures were imposed and, therefore, a draft Mitigated Negative Declaration has been prepared and notice of same was given in the manner required by law; and,

WHEREAS, after notice was issued pursuant to the requirements of the Rancho Palos Verdes Development Code and the State CEQA Guidelines, the Planning Commission held a duly noticed public hearing on April 25, 2000, and May 9, 2000, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, on May 9, 2000, the Planning Commission adopted P.C. Resolution No. 2000-12, thereby denying the application for Conditional Use Permit No. 207 with prejudice; and,

WHEREAS, on May 10, 2000, within the 15-day appeal period prescribed by Section 17.80.070 of the Rancho Palos Verdes Development Code, Mr. Abrams appealed the Planning Commission’s denial of Conditional Use Permit No. 207 to the City Council; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on June 6, 2000, and July 5, 2000, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, after the public hearing was closed on July 5, 2000, the applicant objected to some of the information that had been submitted to the City Council during the public hearing and also sought to present additional information to the City Council, even though the public hearing already had been closed; and,

WHEREAS, in order to address Mr. Abrams’ concerns, on July 18, 2000, the City Council directed staff to re-notice the public hearing so that it could be re-opened and any additional information that is relevant to the application could be considered by the City Council prior to making a decision on the application; and,

WHEREAS, the re-opened public hearing was held on August 15, 2000, at which time all interested parties were given an opportunity to be heard and present evidence that had not been presented previously to the City Council; and,

WHEREAS, on August 15, 2000, the City Council adopted Resolution No. 2000-53, thereby denying the application for Conditional Use Permit No. 207 with prejudice; and,

WHEREAS, although the applicant had previously asserted that commercial transmissions from the subject property originated from temporary tripod antennae located in the rear yard and not from the existing antenna tower, the City’s consultant, Dr. Richter, did not see such temporary antennae during the monitoring of commercial transmissions from the site. In addition, based upon the review of FCC licensing data, the numerous commercial frequencies licensed by the FCC to operate at the subject property are designed to operate from a freestanding tower at elevations from nine meters (9m) to fourteen meters (14m) above the ground. However, if temporary tripod antennae were used at the site but were not tall enough to be observed from adjacent properties by Dr. Richter, they could not have been anywhere near nine meters (9m) in height, much less the maximum height of the existing tower, which is approximately fourteen meters (14m). Therefore, it is reasonable for the City Council to conclude that the existing antenna tower was used for commercial purposes, and that the appellant’s claims to the contrary were false.

WHEREAS, on August 24, 2000, Mr. Abrams filed suit against the City in Federal District Court in order to overturn the City’s decision on the grounds that it violated the Telecommunications Act of 1996; and,

WHEREAS, on January 9, 2002, the United States District Court for the Central District of California ruled in the case of Abrams v. Rancho Palos Verdes and vacated the City’s denial of Mr. Abrams’ application for Conditional Use Permit No. 207; and,

WHEREAS, on February 25, 2002, the United States District Court for the Central District of California subsequently denied Mr. Abrams’ petition for damages in the case of Abrams v. Rancho Palos Verdes and ordered the City to issue Conditional Use Permit No. 207 without requiring Mr. Abrams to modify the size, height, location or configuration of the existing antennae support structure and array; and,

WHEREAS, the City revised the Mitigated Negative Declaration originally prepared pursuant to Environmental Assessment No. 720 to incorporate mitigation measures to reduce the aesthetic impacts of the existing antenna support structure and array, in accordance with the Court’s order and in compliance with the provisions of CEQA; and

WHEREAS, on March 18, 2002, the United States District Court for the Central District of California entered its judgment in the case of Abrams v. Rancho Palos Verdes, ordering the City to issue Conditional Use Permit No. 207 by April 2, 2002 and allowing the imposition of reasonable conditions that are consistent with the Court’s order of January 9, 2002; and,

WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on March 19, 2002 and March 25, 2002 to reconsider Conditional Use Permit No. 207 and Environmental Assessment No. 720, at which time all interested parties were given an opportunity to be heard and present evidence;

NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: Pursuant to the order of the United States District Court, the City Council hereby approves the application for Conditional Use Permit No. 207 to legalize the use of the existing antenna support structure and array on the site for commercial purposes:

A. For the purposes of this determination on the subject application and throughout this Resolution, the term "existing antenna support structure and array" and its variants refers only to the antenna support structure and antenna array depicted in the plans submitted to the City by the applicant on April 24, 2000, as part of his application for a conditional use permit, and in the photograph submitted by the applicant that is in the City’s file for Conditional Use Permit No. 207 and Environmental Assessment No. 720. The term "existing antenna support structure and array" and its variants, therefore, does not include any parts, elements, components or other features of the antenna support structure and/or antenna array that are not depicted on the plan submitted on April 24, 2000, or in the above-mentioned photograph. However, if any changes have been made to the antennae or the support structure after the applicant submitted the plan on April 24, 2000 and before the date of the ruling of the United States District Court on March 18, 2002, the applicant shall submit a revised plan depicting the antenna support structure and the number and configuration of the existing antennae located thereon within (90) ninety days of the date of the City’s final action on this application. This plan shall be retained in the City’s files and used as a basis for determining compliance with the conditions of approval for this project.

B. The site for the proposed use has adequate space for off-street parking of service vehicles and relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Oceanaire Drive, which is a public residential street. Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval.

C. The City Council is approving the subject commercial use at this specific location in order to comply with the order of the United States District Court issued on March 18, 2002. If that order is reversed, the City Council hereby reserves the right to vacate this Resolution and decision and reinstate its prior decision denying the conditional use permit or, in the alternative, to reopen the hearing. In approving the conditional use permit, conditions are being imposed as part of this approval to reduce the impacts of the antenna tower and the commercial use on the surrounding residential neighborhood to the extent feasible and in compliance with the order of the United States District Court. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from surrounding homes in the Del Cerro community. The approval of this proposal will be conditioned to require the lighter-colored portions of the existing antenna support structure and array to be painted to blend better into the background sky and foliage, and no future changes to the height, size, number, location or configuration of the antennae will be permitted without an amendment to this conditional use permit that is approved by the Planning Commission.

D. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] 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 [FCC’s] regulations concerning such emissions."

E. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40.

F. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general and which comply with the order of the United States District Court, have been imposed and include (but are not limited to) painting of the lighter-colored portions of the existing antennae support structure and array; maintaining the existing screening foliage on the property and requiring two (2) additional trees to be planted for screening purposes; prohibiting any further modifications to the existing antennae support structure and array without first obtaining approval of a modification to this conditional use permit; limiting regular maintenance hours for the exterior commercial antennae and equipment to 8:00 AM to 5:00 PM, Monday through Friday; precluding illumination of the antenna tower, requiring the applicant to obtain and maintain a valid business license; and reviewing the project for compliance with all conditions of approval within six (6) months of the date of the City’s final action on the application. These conditions are imposed through the City’s authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996 and in compliance with the order of the United State District Court in the case of Abrams v. Rancho Palos Verdes.

G. The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower.

Section 3: This application is consistent with some provisions of the City’s Wireless Communications Antenna Development Guidelines in that it was heard by the Planning Commission and City Council within the time lines established by the State’s Permit Streamlining Act and CEQA (Guideline No. 1). Although the City’s Antenna Guidelines express a preference for existing, non-single-family structures as antenna sites (Guideline No. 2), installations on single-family residences are not prohibited and have been approved previously elsewhere in the City. However, this approval is not consistent with other provisions of the City’s Antenna Guidelines.

Section 4: The City Council finds that the approval of Conditional Use Permit No. 207—as conditioned—is consistent with the order of the United States District Court and the local zoning authority reserved to the City of Rancho Palos Verdes by the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)) for the following reasons:

  1. The conditional approval of Conditional Use Permit No. 207 "[does] not unreasonably discriminate among providers of functionally equivalent services…and [does] not prohibit or have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (B)(i)(I) and (II)). In reviewing all of the applications to provide personal wireless services on other residentially-zoned property within the City, the City has applied consistently its regulations to these facilities so as to modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved pursuant to the order of the United States District Court with conditions requiring the implementation of measures to screen the appearance of the existing antenna support structure and array to the extent feasible and consistent with the order of the United States District Court so as to avoid modifying the size, type, number or location of existing antennae. The City’s conditional approval of this specific proposal allows the applicant to provide wireless communications services. Accordingly, the conditional approval of this particular application does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes.
  2. The application for Conditional Use Permit No. 207 was acted upon by the City "within a reasonable period of time after the request [was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). The public hearing to reconsider this application was held less than within thirty (30) days after the decision was rendered by the United States District Court in the case of Abrams v. Rancho Palos Verdes. This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act.
  3. In conditionally approving the application for Conditional Use Permit No. 207, the City has not "[regulated] 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 [Federal Communications] Commission's regulations concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required conditions of approval are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the existing antenna support structure and array upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers.

Section 5: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City’s final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction.

Section 6: The applicant objected to a condition of approval requiring him to defend, indemnify and hold the City and its officers, agents and employees harmless from any damages, attorney’s fees and court costs arising from any legal challenge to the approval of this permit, and as a result of this objection, the condition was not imposed. However, nothing in this Resolution shall be construed as requiring the City to defend any legal challenge to the issuance of Conditional Use Permit No. 207.

Section 7: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 207, thereby approving the commercial use of existing antennae and related support structures and equipment on the site of a single-family residence, located at 44 Oceanaire Drive in the Del Cerro community, subject to the conditions contained in Exhibit 'A', attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare, to comply with the order of the United States District Court issued on March 18, 2002. However, If that order is reversed, the City Council hereby reserves the right to vacate this Resolution and decision and reinstate its prior decision denying the conditional use permit or, in the alternative, to reopen the hearing.

PASSED, APPROVED, AND ADOPTED this 25th day of March 2002, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

_______________________
John McTaggart, Mayor

ATTEST:


____________________
Jo Purcell, City Clerk

State of California)
County of Los Angeles) ss
City of Rancho Palos Verdes)

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2002-____ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on March 25, 2002.


_________________________________
City Clerk


EXHIBIT 'A'
CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT NO. 207
(44 Oceanaire Drive)

1. Within ninety (90) days following adoption of this Resolution, the applicant/property owner shall submit to the City a statement, in writing, that he has read, understands, and agrees to all conditions of approval contained in this Resolution. Failure to provide said written statement shall render this approval null and void.

2. This approval is for the use of existing antennae and related support structures and equipment on the site of a single-family residence in the Del Cerro community for commercial purposes, subject to full compliance with the conditions of approval contained in this Resolution. The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions. Otherwise, any substantive change, such as the enlargement of, expansion of or addition of new antennae or radiating elements to the existing antennae support structure and array, shall require approval of a revision to Conditional Use Permit No. 207 by the City Council and shall require a new and separate environmental review.

3. All project development on the site shall conform to the specific standards contained in these conditions of approval or, if not addressed herein, in the RS-2 district development standards of the City's Municipal Code.

4. Failure to comply with and adhere to any or all of these conditions of approval may be cause to revoke the approval of the project by the City Council after conducting a duly noticed public hearing on the matter.

5. If the necessary modifications to site and the antenna support structure and array, as specified by these conditions of approval, have not been made within ninety (90) days of the date of the City’s final action on this application, approval of the project shall expire and be of no further effect unless, prior to expiration, a written request for extension is filed with the Department of Planning, Building and Code Enforcement and approved by the City Council.

6. In the event that any of these conditions conflict with any non-discretionary technical requirements of another permitting agency or City department, the stricter standard shall apply.

7. If any changes have been made to the antennae or the support structure after the applicant submitted the plan on April 24, 2000 and before the date of the ruling of the United States District Court on March 18, 2002, the applicant shall submit a revised plan depicting the antenna support structure and the number and configuration of the existing antennae located thereon within (90) ninety days of the date of the City’s final action on this application. This plan shall be retained in the City’s files and used as a basis for determining compliance with the conditions of approval for this project.

8. Within ninety (90) days of the date of the City’s final action on this permit, the applicant shall paint the white or lighter-colored portions of the antenna support structure and array in a neutral color—such as gray, gray-green or gray-blue—that will blend with the background foliage and sky and the gray color of the existing antenna tower. The applicant shall maintain the current gray color of the existing antenna tower, and shall provide the Director of Planning, Building and Code Enforcement with a selection of possible colors for approval prior to the painting of any portion of the antenna support structure and array. The applicant shall be continuously responsible for maintaining the antenna support structure and array in the approved paint color.

9. No additional antennae may be added to the existing antenna support structure without prior City approval of a revision to this conditional use permit. Existing antennae on the antenna support structure may be removed and replaced for maintenance and repair purposes, but the replacement antenna(e) must be the same size (or smaller), same height (or lower), same type and same location as the antenna(e) they are replacing.

10. The existing tree in the rear yard of the subject property, as depicted in photographs of the property taken on March 18, 2002 and kept in the City’s files, provides screening for the existing antenna tower. This tree shall be generally maintained by the applicant in size and fullness so as to continue to provide a similar degree of screening for the antenna tower. In the event that this tree dies or is felled by an act of God or any other intentional or unintentional act, it must be replaced by another tree of an evergreen variety that is at least a twenty-four-inch (24") box size tree. In addition, the applicant shall plant two (2) additional 24-inch-box evergreen trees to the immediate north and southwest of the antenna tower, based upon the April 24, 2000 site plan in the City’s files. These additional trees must be allowed to grow to a sufficient height screen the antenna tower, but all of the trees specified in this condition may be trimmed by the applicant so as to maintain at least four feet (4’) of clearance from the antenna tower or the antennae themselves, as well as to protect other structures on the subject property and adjacent properties while still maintaining visual screening of the antenna tower.

11. Except in case of emergency, regular maintenance of the commercial antennae and related exterior support equipment and structures shall only occur between the hours of 8:00 AM and 5:00 PM, Monday through Friday. Maintenance of the non-commercial antennae and related exterior support equipment and structures may occur between the hours of 7:00 AM and 7:00 PM, Monday through Saturday.

12. All service vehicles related to the maintenance of the commercial antennae shall be parked off-street in the driveway or garage of the house. No more than two (2) such service vehicles are allowed on the site at any time. The parking of vehicles related to the maintenance of the non-commercial antennae or other household purposes are not restricted by this condition, but shall comply with the general parking restrictions imposed by the City’s Municipal Code.

13. The support equipment for the antennae on the site, including air conditioning units, shall not generate noise levels in excess of 65 dBA, as measured at the property line of the subject property. Any sound attenuation measures to achieve this standard shall be the responsibility of the applicant, and shall be subject to the review and approval of the Director of Planning, Building and Code Enforcement.

14. No lights may be placed upon the antenna tower, nor may it be otherwise illuminated in any manner. This condition shall not restrict the use of hand-held lighting, nor the use of temporary lighting during the performance of emergency repairs.

15. The operation of antennae on the site shall at all times comply with the requirements, standards and regulations of the Federal Communications Commission (FCC).

16. Within ninety (90) days of the City’s final action on this application, the applicant shall obtain a business license from the City. A valid City business license shall be maintained at all times while commercial radio transmissions occur from the property.

17. At approximately six (6) months from the date of the City’s final action on this application, the City Council shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked. Within the initial 6-month permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 6-month review process by the City Council

18. The antenna tower authorized by this approval shall not be used for any purpose other than to transmit and receive approved radio frequencies, in compliance with FCC regulations.

19. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing by FCC call sign of all personal wireless facilities, as defined by 47 U.S.C. Section 332, that are using this site and all other radio facilities or frequencies that are licensed by the FCC to this site. In addition, within thirty (30) days of this approval, and annually thereafter, the applicant also shall provide to the City documentation demonstrating that the site is being operated in accordance with FCC emission requirements and limits, considering all facilities that are licensed by the FCC to operate at the site or that use the site pursuant to an amateur radio operator's license.

20. Since this approval is for the joint use of the existing antenna tower for both commercial and amateur purposes, at all times the applicant shall maintain antennae on the tower that are being used or are available for amateur use.


PUBLIC COMMENTS: (at approximately 8:40 P.M.)

(This section of the agenda is for audience comments on items NOT on the agenda.)


REGULAR BUSINESS



4.Traffic Committee appointments: determination of terms of office. (Purcell)
(Continued from March 19, 2002 meeting.)

Recommendation: Appoint three Traffic Committee members to a two-year term of office until March 2, 2004, and four members to a four-year term of office until March 7, 2006.

TO: HONORABLE MAYOR & CITY COUNCILMEMBERS

FROM: ADMIN. SERVICES DIRECTOR/CITY CLERK

DATE: MARCH 25, 2002

SUBJECT: TRAFFIC COMMITTEE TERMS OF OFFICE: SCHEDULE OF INTERVIEWS FOR RECREATION & PARKS AND EQUESTRIAN COMMITTEE

RECOMMENDATION

Appoint three Traffic Committee members to a two-year term of office until March 2, 2004, and four members to a four-year term of office until March 7, 2006.

INTRODUCTION

Setting the term of office for the Traffic Committee members will complete the appointment process started at the March 19th meeting during which the Council appointed the following residents: Lisabeth Aubrey, Barbara Covey, Barry Hildebrand, James Jones, William Schurmer, Ava Shepherd and Thomas Wall.

BACKGROUND

Traffic Committee

Term of Office

During the March 19th discussion of whether the longest serving members or the newly appointed members should be appointed for the two year term, Council requested that staff return on March 25th with information on the terms of the reappointed incumbents. That information follows:

Name Term Begins Term Expires

First Appointed

Jones 04/04/2000 04/02/2002 01/20/1998
Covey 04/04/2000 04/02/2002 04/04/2000
Hildebrand 04/04/2000 04/02/2002 01/08/1996
Jordan-Shepherd 04/02/2000 04/04/2002 07/16/1996
Reuben 04/04/2000 04/02/2002 04/04/2000
Schurmer 04/04/2000 04/02/2002 01/20/1998
Wall 04/04/2000 04/02/2002 04/04/2000

Appointment of Committee Chair

Council set April 16th at 5:30 P.M. as the time and date to interview the candidates for chair of this committee.

Equestrian Committee

Number of Members: Quorum

Also at the March 19th meeting, Council discussion of this nine-member committee focused on whether it could function effectively with seven members. Concern was expressed, however, about the committee losing its quorum in the event one or more members had to recuse themselves. Staff has looked into this matter and has learned that during the past year the committee has met monthly (except during December) and that there has been a quorum for each meeting; also, that during the last three years there were two permits considered by the committee that required certain members to recuse themselves.

Schedule of Interviews

At the March 19th meeting, Council also decided to conduct the interviews for the Recreation & Parks and Equestrian Committee applicants on Saturday, April 27th following the Community Leaders’ Breakfast. Interviews for the R&P candidates will run from 11:00 A.M. until 3:30 P.M.

The Equestrian Committee interviews will run until 4:30 P.M. As of this writing there are five applicants for this committee; all are incumbents. Obviously, if more applications are received, the interviews will extend beyond that time.

View Restoration Commission:Status

Whether this commission will be interviewed depends upon the outcome of Council’s review of their workload. This review is tentatively scheduled for sometime next month.

Emergency Preparedness Committee:Status

As of this writing nine applications have been received for this committee. No date has been set for interviews.

CONCLUSION

The recruitment and appointment process for the City’s advisory boards continues with interviews scheduled as outlined above.

Respectfully submitted,
Jo Purcell, Administrative Services Director/City Clerk

Reviewed:
Les Evans, City Manager


ORAL CITY COUNCIL REPORTS: (This section designated to oral reports from councilmembers to report on Council assignments.)



ADJOURNMENT: Adjourn to 5:30 P.M. Tuesday, April 2, 2002 to interview candidates for chair of the Planning Commission and Finance Advisory Committee.