M I N U T E S
RANCHO PALOS VERDES CITY COUNCIL
REGULAR ADJOURNED MEETING
MARCH 25, 2002
The meeting was called to order at 7:00 P.M. by Mayor McTaggart at Fred Hesse Community Park, 29301 Hawthorne Boulevard, notice having been given with affidavit thereto on file.
After the Pledge of Allegiance, roll call was answered as follows:
Clark, Ferraro, Gardiner, Stern, and Mayor McTaggart
Also present were City Manager Les Evans; City Attorney Carol Lynch; Director of Planning, Building and Code Enforcement Joel Rojas; Senior Planner Kit Fox, City Clerk/Administrative Services Director Jo Purcell; and Recording Secretary Arlene Jaentsch.
APPROVAL OF AGENDA:
Councilman Clark moved, seconded by Councilwoman Ferraro, to approve the agenda, as presented. Motion carried.
APPROVAL OF CONSENT CALENDAR:
Councilwoman Ferraro moved, seconded by Mayor Pro Tem Stern, to approve the Consent Calendar as amended. Motion carried.
Mayor Pro Tem Stern moved, seconded by Councilman Clark, to approve the Consent Calendar as follows:
Minutes of January 31, 2002.
Approved the minutes of January 31, 2002 as amended.
The motion to approve the Consent Calendar carried on the following roll call vote:
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).
Mayor McTaggart reported that this was a continued public hearing from March 19th on this request to an 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).
City Clerk Purcell announced that notice had been duly published and that all written comments received by the City had been forwarded to the Council.
Senior Planner Fox gave the staff report and presented photographs for the Council to review.
Mayor Pro Tem Stern questioned Senior Planner Fox regarding Mr. Kay’s disagreement with factual issues as stated in the report submitted regarding the use of antenna’s on the roof versus the 2nd floor rooms. City Attorney Lynch and Senior Planner Fox stated that they were aware that the nature of these types of radio frequency is that they travel in the line of sight. From the roof the waves would not be penetrating the house. Mayor McTaggart asked the source of this information regarding the line of sight. City Attorney Lynch said they were referring to the appellant’s submitted FCC manual.
Mayor McTaggart said that when dealing with one antenna mass the radio waves would not reflect off others.
Senior Planner Fox stated that this would be much more difficult to quantify for the subject property. However, with multiple antennas they would interfere with each other to some extent. He also stated that there is a standard for radiation (i.e. acceptable levels in the workplace) which lists the acceptable levels.
Councilman Gardiner questioned the ordinance wording, and asked if
the ordinance guided the decision making—if a specific thing is not
mentioned does that mean by the omission that it is prohibited, or if
it is not mentioned that it is permitted. City Attorney Lynch said that
it would depend on how the ordinance is written. Councilman Gardiner
questioned whether the definition of antenna support structure, which
refers to a vertical element, would also allow for a support element
that was horizontal.
Councilman Gardiner questioned the Staff’s original determination removing the roof-mounted antennas and the horizontal versus vertical structure. City Attorney Lynch explained that Staff would have made site visits to originally determine the nature of the attached structure. At the time it was determined that the antenna support could be permitted by right as an amateur radio antenna.
Mayor Pro Tem Stern inquired whether Council would be the party to interpret this wording and if Council had ever interpreted that language. City Attorney Lynch replied that she could not recall Council doing so. City Attorney Lynch stated that the structure could be not more than 12 feet high and each radiating element could be six feet in length. Antenna assembly was broadly interpreted to include any thing that was affixed, such as guide wires. Mayor McTaggart pointed out that the whole thing was out of compliance as a support structure. Councilman Gardiner then asked if he could put a Ferris Wheel on top of his home and call it an Antenna support structure.
Councilman Gardiner and Mayor Pro Tem Stern inquired why the house was not considered the support structure. In response to this question City Attorney Lynch said that at the time it was not considered as the support structure.
Mayor Pro Tem Stern wanted to focus on Conditions Nos. 3 and 4 and move through several of the others regarding painting and maintenance of a non-commercial Antenna. He asked what the maintenance hours allowed were and how were these determined. City Attorney Lynch said that the Municipal Code was the basic source for the painting and maintenance requirements as well as the parking and hours.
Councilman Clark said that the testimony suggests that amateurs working
voluntarily could only come on the weekend to comply with the hours
permitted by the council.
City Attorney Lynch said that the conditions must be appropriate for both Mr. Kay’s alleged commercial use and Mr. Abrams amateur use.
Mayor Pro Tem Stern again inquired about conditions and parking restrictions—i.e. maintenance and amateur users. Senior Planner Fox stated that Staff was trying to apply consistent conditions to both sites, the Abrams and Kay cases.
Councilman Gardiner then asked for Dale Hanks, an amateur radio operator, to come forward and address the council. Councilman Gardiner stated that Mr. Hanks had participated in the drafting of the City Ordinance.
Dale Hanks, Ham Radio Operator since he was 17, said that he had worked with the Planning Commission from 1998-1999.
Councilman Gardiner asked about the vertical and horizontal poles of the support structure.
Dale Hanks stated that the original intention was to have one support structure to support one antenna. Dale Hanks stated that this would serve most ham operations but in some cases they would like more. He said that what was anticipated was a vertical structure like a tower or pole holding up a vertical antenna, but not, a horizontal element supporting the antenna.
Councilman Gardiner referred to PRB-1 and stated that it is to promote and protect amateur antenna users. He said that it was not the intent to open the gate to as many frequencies as needed for a commercial operation in a residential neighborhood.
Councilman Clark noted that the judge did not focus on the zoning in the Abrams case.
Bruce Bartram, 407 N. Harbor Boulevard, San Pedro, attorney representing Mr. Kay, wished to speak on conditions of the Conditional Use Permit as detailed in the staff report in relation to the property being maintained and the exterior to be brought into consistency with City standards . He stated that his client has completed new landscaping and painting on the property to bring it up to the standards of the neighborhood.
Councilman Clark inquired into the current status of the property and the City’s policy of nuisance abatement.
City Attorney Lynch stated that at the beginning of the process the property was in a terrible state, but now the property is in keeping with the neighborhood.
Mr. Bartram had questions on the requirement for weekly maintenance.
Mayor McTaggart wanted to know if the property was for commercial use or would Mr. Kay be using it as his residence.
Mr. Bartram stated that Mr. Kay, in his deposition, under oath, said that he intended to renovate the home as a second residence.
Councilman Clark stated that the council had read the deposition. Mayor Pro Tem Stern said that he was skeptical of someone who buys a home in 1994 and never moves in. He stated that the neighborhood is residential and that if someone wishes to operate a commercial business where it is not zoned, he would not find it unreasonable to ask these questions.
Mr. Bartram said that the antenna was there when Mr. Kay bought the property. He also asked if there were ever any complaints made by the neighbors.
City Attorney Lynch stated that there had been a code enforcement complaint.
Mr. Bartram referred to the 1997 site plan review and the injunction.
Mayor Pro Tem Stern reminded Mr. Bartram, that Mr. Schmitz who was also representing Mr. Kay at the site plan review; had told the Planning Commission at that time, that the house would be landscaped and made nice for the neighborhood and that someone would be occupying the house as a residence.
Mr. Bartram said that this was a misstatement.
Mayor Pro Tem Stern pointed out that the Planning Commission issues the permit on the information supplied by the applicant. The applicant had said through his attorney that this was acceptable and now he says it is a misstatement.
Mr. Bartram explained that Mr. Schmitz was under a lot of stress and not prepared for the multiple questioning at the Planning Commission meeting. He said that he was not aware of the terms Mr. Kay would agree to.
City Attorney Lynch said that when staff was consulted about other permits for the property, that the permits were contingent on painting the house and maintenance of the landscaping.
Mr. Bartram said that if you mask the antenna there is nothing wrong
with the house.
Senior Planner Fox said that Staff have not been able to visually inspect the property in person and have only seen photos.
Mayor Pro Tem Stern asked if all the antennas could be placed in the interior and referred to past use of antennas from the second story. There was discussion regarding the radio frequency signals and the possibility of someone living in the downstairs section of the house and using the antenna from the second story or upstairs interior. He pointed out that it is Mr. Kay’s choice whether he wants to use his home for residential or commercial use.
Mr. Bartram referred to Mr. Kay’s declaration he said that Mr. Kay believes that he would be exposed to detrimental radio frequency signals.
Mayor Pro Tem Stern wanted to know if there was any distinction in the level of exposure to Mr. Kay living on the first floor and installing the antenna on the second floor as compared to occupying the whole house with antennas operating on the roof. He asked if Dr. Richter or Mr. Schmitz could provide some basis for Mr. Kay’s claims in writing.
City Attorney Lynch communicated that they were out of town but perhaps they could get something in writing.
Councilman Gardiner discussed the EMF effects of the use of antenna on the roof and in the bedroom.
Mayor Pro Tem Stern stated that the Council wished to evaluate a better or worse situation with antenna either on the second floor or the rooftop.
Mayor McTaggart questioned Mr. Bartram about the implied liability of Mr. Kay’s having workers repairing and working in proximity to the antenna and the radiation effect from transmissions. Mr. Bartram stated that all persons were apprised of what they were working with.
Mayor Pro Tem Stern referred to pictures presented by Larry Helftman, where it appears that antennas are sitting in from the rear of the house barely above what would be the top at about 8 or 10 feet just above the eaves.
City Attorney Lynch referred to the FCC licenses and indicated that the antennas are higher than they are on the roof. She noted that the FCC indicated that there was a lack of candor and that Mr. Kay had not been forthcoming with the FCC in other license matters.
Councilman Gardiner said that this is a factual matter not an opinion matter, that there is a responsibility by alerting someone exposed to radio frequencies and with notification of the dangers involved.
Mayor Pro Tem Stern said that if the Council did not require someone to live in the residence, the antennas could be placed on the interior. Councilman Clark felt that the home is in a residential area and that Mr. Kay was using this for commercial use. He pointed out that as of June 2001 there were only 5 antennas and that since then the applicant has added more and Councilman Clark wanted to know if the original exemption still applies.
Mr. Bartram reminded the council that the 5 antennas as stated in the
July 1999 report are not subject to regulation, they are exempt under
the then ordinance.
The council continued with questions and comments about FCC licenses. Reference was made to the Getty Museum, with whom, Mr. Bartram said there was not a contract. City Attorney Lynch said that the City did obtain a copy of the contract between Mr. Kay and the Getty Museum although neither the Getty nor Kay had activated transmissions at the site.
Mayor McTaggart questioned whether Mr. Kay is aware that when he was deposed the statements made are under the penalty of perjury. Mayor Pro Tem Stern commented, that Mr. Kay gave the impression that the Getty of their own accord went and obtained the license, he said that if there is a contract, it shows a troubling lack of candor on Mr. Kay’s part.
Councilman Clark also wanted to know why, if this is a residence, the
condition for someone to live there would be an issue, since the residence
is zoned for residential not commercial use.
Mr. Bartram asked whether a home has to have a fulltime resident to be considered a residence.
Councilman Clark asked if Mr. Kay had attended any of these meetings, if he was concerned with what the Council was considering.
Councilwoman Ferraro noted that Mr. Kay stated in the declaration, that he fully intended to use the home as a residence; and she questioned why is he now objecting to something he had agreed to.
Mayor Pro Tem Stern referred to circle page 58 from the March 19th Staff Report and then to Page 3 of Mr. Kay’s declaration. He read aloud Mr. Kay’s statement " that the Getty trust obtained a license without my knowledge or permission". He said that there appears to be a contract between Mr. Kay and the Getty, with his knowledge and his permission. Mayor Pro Tem Stern pointed out a need for Mr. Kay to explain this discrepancy and allow the City Council to have factual answers. He said that the statement appeared to be a factual inaccuracy under oath, and these inaccurate statements make it very difficult for the Council to consider this appeal.
Councilman Gardiner wanted to know if there was any indication presented so far that this facility had been used as an amateur site. He asked if there was any way to check to see if this location was used by amateurs.
Mr. Dale Hanks, stated that, after an operator received a license they could go to any location to transmit, and these were not usually logged.
City Attorney Lynch said that they only had Mr. Kay’s statements to go by that the property had been used for amateur radio transmission. She said that Dr. Richter did pick up commercial transmission after Staff expressed concern, which was the basis of the court injunction.
The Council discussed the conditions and the location of the antenna, the hours of maintenance and the parking restrictions.
Councilman Gardiner asked whether it would be possible to go into a closed session for more discussion. City Attorney Lynch stated that they had not noticed a Closed Session for this meeting but could for the April 2nd meeting.
Council discussed further the differences between a ham operator and a commercial operator.
Mayor McTaggart suggested a closed session with legal counsel and a full reading of the resolution.
Councilman Clark stated that he believed that since this is a residentially zoned area, he would not support any motion that exempts the residential requirement.
Councilman Gardiner wanted answers to issues about occupancy safety and liability.
City Attorney Lynch said that the City is immune from liability. The
site is required to be operated in compliance with the thresholds as
established by the FCC. Mayor McTaggart reminded them of the OSHA rules
that would apply as well. Mayor Pro Tem Stern stated that everyone with
an FCC license must be in compliance with the FCC.
Council discussed continuing the Public Hearing to the meeting of April 16, 2002.
It was the council consensus that more information would need to be supplied regarding the interior and occupancy issues to determine the antenna placement and they must have further information before a decision could be reached.
Mayor Pro Tem Stern also felt that the applicant needs to make the choice whether he plans to live in the home as a residence or not.
Councilman Clark also expressed his point of view that this entire
issue is the application for commercial use in a residential zone. He
said that the neighbors expect the home to be occupied and to be used
as a residence.
City Attorney Lynch stated that she would communicate with Bruce Bartram and the Staff.
Mayor Pro Tem Stern moved that no action be taken and the Public Hearing be continued to the meeting of April 16, 2002, the motion was seconded by Councilwoman Ferraro. Motion passed.
THE MEETING RECESSED AT 8:56 P.M.
MEETING RECONVENED AT 9:06 P.M.
Reconsideration of the Decision on the Appeal of Conditional Use Permit No.207 Mark Abrams, 44 Oceanaire Drive Public Hearing continued from March 19, 2002. (1203 x 1801)
City Clerk Purcell announced that notice had been duly published and that all written comments received by the City had been forwarded to the Council.
Reading of the Staff Report was waived and the Public Hearing continued
from March 19th.
The following citizens wished to speak to the Council regarding this matter:
Ian McDonald, 47 Oceanaire, stated that Mr. Abrams has greatly improved
the condition of his yard and in doing this cleared three trees which
now make the antennas visible to his neighbors. He supported the condition
to put in more trees to cover these up again. He also asked for an independent
company to monitor the radiation at the property line at Mr. Abrams
Karyl Newton, 46 Oceanaire Drive, stated that 99% of residents moved to Del Cerro for the rural beauty of the area, while 1 percent are interested in destroying that ambiance. She said that Mr. Abrams should be held responsible for the effects of this commercial equipment.
Mayor Pro Tem Stern noted the concern with the condition on painting the entire antenna. Certain aspects are already changed and they could determine what staff has changed and would still require painting but would allow the Planning Director to determine the areas to be painted.
Skip Hansen, 3250 Martingale Drive, stated that he has known Mark Abrams as an amateur radio operator but has not personally used equipment at Mr. Abrams home. He said that the first time he saw the property it was dilapidated and now, with the antenna taken out of the equation, a lot has been done to improve the property.
Meredith Eick , 2866 West 226th Street, Torrance owner of 6 Cove View Drive, radio amateur, professional electrical engineer. He stated his opinion that the applicant bought 44 Oceanaire to covertly operate a commercial business. He said he felt that the local radio amateurs including himself, are to blame for allowing this to continue. He claims that the applicant does not live at 44 Oceanaire all the time. Mr. Eick said he would not want to live next to an antenna farm.
Mark Abrams, 44 Oceanaire Drive, said that the interference problems of Mr. Eick are imaginary. He noted that the court has ordered the City to issue the Conditional Use Permit. He contended that no conditions are appropriate or reasonable. He objected to planting additional trees he because he would have to remove part of the house or patio, disturb the croquet, football and recreational use of my lawn.
Councilman Clark asked Mr. Abrams if he had heard of a Conditional Use Permit that did not have conditions associated with it.
Mark Abrams showed the council a diagram of the wall surrounding the pool area with two wrought iron gates.
Mayor McTaggart questioned if the lot coverage had been exceed. He also wanted to know the output power of the antenna.
Mayor Pro Tem Stern asked if there was a location further west where a tree could be planted.
Mr. Abrams stated that it depended on the property line. He said that the existing tree interferes with radio interception and has had a negative impact on the performance of the antennas.
Mr. Abrams addressed Karyl Newton’s interference noting that it was mainly due to conflicts with her cable and the ham repeaters. He said that the cable company has changed their frequency to address this.
Mayor McTaggart expressed disbelief with this explanation and said he has experienced interference. He did mention that Cox does forget to seal the connection when someone drops the service.
Councilman Gardiner thought it might be worthwhile to look at our Cox cable service provider.
Mayor Pro Tem Stern asked when Mr. Abrams put out commercial signals, there a limit to the number of signals. He wanted to know if by broadcasting commercially there impacts on amateur use.
Mr. Abrams replied that in order to minimize radio frequency interference, he has installed many expensive components to minimize this interference
Councilman Gardiner inquired into multiplexed antenna. He expressed
the belief that the capacity of the antenna increases when multiplexed.
Mr. Abrams said that it is his opinion that in no way is there an aesthetic impact that has to be mitigated. He felt that Dr. Richter is incompetent and that he could bring his own consultant and ten others to refute Dr. Richter.
Councilman Gardiner asked if the two antennas, one five feet from property line and the other the tower, had been considered by staff.
Mayor Pro Tem Stern said that he believed the dimensions had been reviewed.
Councilman Gardiner said that factually Mr. Abrams did not like the idea of conditions but the judge did not specify other than that the antenna could not be lowered.
Councilman Clark concurred that there are many Conditional Use Permits issued and that they all have conditions.
Mayor Pro Tem Stern asked the height which Mr. Abrams was planning to broadcast.
Mr. Abrams said that depending on what he needed to do at the time, but most likely 35 feet to the top. He stated that he and his wife have always wanted to add a second story and would be willing to add a second story to where there is the greatest visual exposure, the garage at the lower part of the house. He said that putting something over the top of the garage would add a visual screen he would be willing to do that but not the tree.
The Council discussed conditions 19 & 20, the two added on at the end of the last hearing. Additional discussion was spent on No. 15 and the new no. 18.
City Attorney Lynch stated that the No. 18 on page 31 was to address issues that arose at one time for the mobile antenna on the property, which Mr. Abrams used as a flag pole.
In response to condition no. 19, which asks Mr. Abrams to provide the city with a list of all FCC call signs, or all users of the site, Mr. Abrams said that this is privileged information that no company releases to the public. He stated that the Council is not allowed to regulate and the condition appears to serve no purpose other than to regulate based on frequencies.
Mayor Pro Tem Stern inquired the reason the Council cannot have the information.
Mr. Abrams said that this requirement is an intrusion on FCC jurisdiction and is a duplicate of No. 17 he said that the FCC preempts the disclosure and there is nothing in the scope of the municipality that requires this condition to be attached.
Councilman Gardiner agreed that this would be considered proprietary information and would need to be handled as such.
City Attorney Lynch said that they could add the wording to maintain confidentiality.
Mr. Abrams said he believes that the City cannot keep the information confidential.
Councilman Gardiner believes that the FCC would demand the local jurisdiction to monitor it.
Councilwoman Ferraro asked for City Attorney Lynch’s opinion.
City Attorney Lynch believed that this issue was covered already and that the condition was not necessary. The intent of the condition was for a mechanism of cross-referencing to maintain operating standards. She said that, if Mr. Abrams agrees to comply with the FCC, that would be enough.
In response to safety issues, Mr. Abrams said that there is no hazard
to anyone unless someone were to climb up and sit for 30 hours in front
of the antenna.
Councilman Clark suggested going over the conditions one by one on Circle page 28. He notes that Staff recommended a tree in the lawn area to provide screening of the view from Cove View.
Ian McDonald stated that Mr. Abrams had made a front garden by taking
out three very nice trees that screened the tower from Ocean Aire.
City Attorney Lynch said they would relate the tree distance to the antenna tower if it did not block the signal.
Mayor Pro Tem Stern asked if Mr. Abrams could work with staff to determine how much to trim and use this as a baseline, to work out an acceptable trimming level. City Attorney Lynch said Staff would rewrite the resolution accordingly.
Mayor McTaggart continued this Public Hearing to April 2, 2002, when the City Attorney will have completed the final form of the resolution to be adopted.
MEETING RECESSED AT 11:25 P.M.
MEETING RECONVENED AT 11:35 P.M.
Traffic Committee Appointments: Determination Of Terms Of Office. (301 x 1606)
Councilman Clark expressed the opinion that the most senior serving returning members should get the shorter terms of two years . These members are: Jim Jones, appointed in 1998; Barry Hildebrand appointed in 1996; and Ava Jordan-Shepherd appointed in 1996.
There was discussion among the Council regarding the terms.
With Councilman Clark indicating he thinks that the most senior serving returning members should get the shorter terms .
Councilwoman Ferraro expressed the opinion that the new members should get shorter terms with a transition to the members who had been on the longest so that the experienced members could orient the newer members.
Councilman Clark moved, seconded by Councilman Gardiner to appoint Barbara Covey, Barry Hildebrand, Ava Jordan-Shepherd to a two-year term of office until March 2, 2004, and the remaining four members; Libby Aubrey, James Jones, William Schurmer and Thomas Wall; to a four-year term of office until March 7, 2006.
The motion carried on the following roll call vote:
Lois Larue, 3134 Barkentine Road, commented on a recent article in the L.A. Times dated 1/31/2002. She also wanted the City to stop the work in Abalone Cove.
ORAL CITY COUNCIL REPORTS
Mayor McTaggart commented on a recent Palos Verdes Transit Authority Meeting. A noteworthy item he wanted to mention was the plan to put surveillance cameras on the bus interiors to monitor behavior.
Mayor McTaggart informed the Council about the Ocean Trails bankruptcy . All council members will be apprised that the bank has asked Lowe Enterprises to take over the Golf Course. There is the possibility of another sub-committee being formed to separate the issue of the Hotel and the Golf Course.
Councilman Gardiner wished to discuss the Equestrian Committee and
the possibility of discontinuing this Committee and instead designating
staff to handle the issues and bring them to Council.
The meeting adjourned at 12:00 p.m. to 5:30 p.m. on April 2, 2002 for interviews at Hesse Park.