Rancho Palos Verdes City Council
   

NOVEMBER 16, 2004 RECONSIDERATION OF THE DECISION ON THE APPEAL OF CONDITIONAL USE PERMIT NO. 230 (PLANNING CASE NO. ZON2004-00453) NOVEMBER 16, 2004 RECONSIDERATION OF THE DECISION ON THE APPEAL OF CONDITIONAL USE PERMIT NO. 230 (PLANNING CASE NO. ZON2004-00453)

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: NOVEMBER 16, 2004

SUBJECT: RECONSIDERATION OF THE DECISION ON THE APPEAL OF CONDITIONAL USE PERMIT NO. 230 (PLANNING CASE NO. ZON2004-00453)

Staff Coordinator: Kit Fox, AICP, Senior Planner

RECOMMENDATION

Continue this matter to the City Council meeting of December 21, 2004, at the appellant’s request.

DISCUSSION

This matter was previously scheduled for the City Council’s consideration on October 5, 2004, but was continued to tonight’s meeting at Mr. Kay’s request so that his attorneys could discuss further changes to the conditions of the approval with the City Attorney. On October 11, 2004, Staff asked Mr. Kay’s attorneys and planning consultant to provide these requested changes by November 1, 2004, so that the analysis of them could be included in tonight’s Staff report. Unfortunately, they were not able to provide this information by that date, and submitted the attached request for a further continuance on November 2, 2004.

As an alternative to Staff’s recommended action, the City Council may wish to deny the request for a further continuance and consider this matter at tonight’s meeting. If so, since Mr. Kay’s attorneys and planning consultant provided no additional information to Staff since the October 5, 2004, City Council meeting, the attached Staff report of that date has not been revised. Also attached is a draft Resolution for consideration at tonight’s meeting, if that is the City Council’s desire.

Respectfully submitted:

Joel Rojas, aicp, Director of Planning, Building and Code Enforcement

Reviewed by:

Les Evans, City Manager

Attachments:

Request for continuance (received November 2, 2004)

Draft Resolution No. 2004-__

City Council Staff report of October 5, 2004

RESOLUTION NO. 2004-__

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 5-masted ,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 5-masted, 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 5-masted, roof-mounted 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…."; 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 February 19, 2002, March 19, 2002, March 25, 2002 and April 16, 2002, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, the City Council, on April 16, 2002, adopted Resolution No. 2002-27, thereby denying the appeal, modifying certain conditions of approval and conditionally approving the project; and,

WHEREAS, on May 15, 2002, Mr. Kay filed suit against the City in Federal District Court in order to overturn the City’s decision on the grounds, among other things, that it violated the Telecommunications Act of 1996; and,

WHEREAS, on July 14, 2004, the United States District Court for the Central District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the "City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A. Kay, Jr. to use his five mast antenna structure for commercial purposes, subject to reasonable conditions"; and,

WHEREAS, the City revised the conditions of approval for Conditional Use Permit No. 230 to allow the commercial use of Mr. Kay’s 5-masted, roof-mounted antenna array, which array existed at the time and was depicted on plans provided to the City of Rancho Palos Verdes with the original submittal of the application for Conditional Use Permit No. 230 on June 21, 2001; 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 October 5, 2004, and November 16, 2004, to reconsider Conditional Use Permit No. 230, 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 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 five (5) of the existing eight-and-one-half-foot long masts and two of the television antennae from the roof of the residence With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna array will be no different or more significant with its conversion to commercial use than they were for amateur use only. 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. By comparison, allowing the applicant to use all of the antennae that were placed on the property in 2001 while this application was pending before the Planning Commission 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. With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna array will be no different or more significant with its conversion to commercial use than they were for amateur use only. However, the approval of this proposal will be conditioned to require 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 six 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 but five (5) of the existing vertical antenna masts, which are the most 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 five (5) 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 order of the United State 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. 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, allegedly from antennae located inside the residence. 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, 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 __th day of November 2004, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

_______________________

Peter C. Gardiner, 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. 2004-__ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on __________, 2004.

_________________________________

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:

    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 (8½) feet in height, as measured from the point where the mast meets the roof surface.
    2. Each of the five 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, two (2) 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 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 five (5) roof-mounted masts that are to be retained 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. At all times, the applicant shall maintain the color of the entirety of the roof-mounted antenna support structure and all of the antennae and radiating elements located thereon, in a neutral color, such as gray, gray-green or gray-blue, that will blend with the background foliage and the sky, to the satisfaction of the Director. 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 that has been approved by the Director. The applicant 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. At the Director’s discretion, any portion of the antenna array may be left unpainted if, in its unpainted state, it conforms to the intent of this condition and substantially matches the existing gray color of the antenna support structure. In addition, the Director reserves the right to require the applicant to paint additional portions of the antenna support structure and array at any time that the Director finds that additional painting of some elements of the antenna support structure and array is necessary to further reduce the aesthetic impacts of the roof-mounted antenna support structure and the radiating elements and antennae located thereon.

10. The five 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 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.

13. All service vehicles related to the maintenance of the antennae and support equipment 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.

14. No new exterior building-mounted or any other exterior 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 roof-mounted antenna support structure, 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. The exterior appearance of the house and site shall be maintained at all times in a manner satisfactory to the Director by:

    1. Maintaining the exterior of the house and garage so that the paint is not peeling or cracking in a manner detrimental to the value of the property and neighboring properties; and,

b. Maintaining the landscaping in a neat and thriving condition.

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 an appropriate fire suppression system subject to the approval of the Director, 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 this CUP is effective.

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 only be used as an antenna support structure and for no other purposes.

25. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing of all 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.