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As is the case with other Chapters of the Zoning Regulations, an applicant could seek exception to the height, lot coverage or other limits of this Chapter by seeking a Variance or other exception as appropriate.
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B.
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ENVIRONMENTAL REVIEW
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An Initial Study was prepared and a Negative Declaration issued in conformance with CEQA guidelines (see Attachment H) and was circulated for public and agency comment from April 21 to May 21, 2008. Staff received a letter from Midpeninsula Regional Open Space District, which is included as Attachment M, and discussed below in Section D.2, public comment.
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A letter was also received from the Bay Conservation and Development Commission, which is included as Attachment N. The letter notes the lands and projects under the jurisdiction of the Commission, but does not include specific recommendations for changes to the proposed ordinance.
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C.
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REVIEWING AGENCIES
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County Counsel
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Department of Public Works
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Bay Conservation and Development Commission
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California Coastal Commission
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Golden Gate National Recreation Area
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Midpeninsula Regional Open Space District
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Personal Communications Industry Association and the California Wireless Association (PCIA/CalWA)
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Information Services Department (ISD)
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Following the October 28, 2008, Board of Supervisors hearing, ISD staff contacted Planning staff and asked for an addition to the proposed ordinance. Specifically, ISD staff requested that the ordinance specify that if technically practical and without creating any interruption in commercial service caused by electronic magnetic interference (EMI), floor space, tower space and/or rack space for equipment in a wireless telecommunication facility shall be made available to the County for public safety communication use. This language has been added to Sections 6512.3.J and 6513.2.H of the proposed ordinance.
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D.
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PUBLIC COMMENT
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1.
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Correspondence Received from PCIA/CalWA
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a.
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April 22, 2008 Letter
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On April 22, 2008, prior to the first Planning Commission hearing, staff received a letter from the Personal Communications Industry Association (PCIA)/the Wireless Infrastructure Association and the California Wireless Association (CalWA), which is included as Attachment L.
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Radius Search
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The letter noted that most facilities are placed one to two miles apart to ensure adequate coverage, and that effective transmission distance is reduced in hilly terrain. The letter recommended reducing the required radius search for potential co-location sites in Section 6512.5.B.11 from the originally-proposed five miles to one-half mile. However, based on the correspondence, a two-mile radius search would be needed to identify all potential co-location locations within two miles of the proposed facility. In further researching this issue, staff examined ordinances that require such a radius search in California and elsewhere. Many localities do not require such a search at all. Of the seven ordinances examined that did have such a requirement, the required radius search varied from one-quarter or one-half mile for municipal ordinances in urban areas, up to three or four miles for county ordinances for primarily rural areas. At the Planning Commission hearing on April 23, a Commission member stated that a wider radius search would be preferable to one that is so narrow that potential co-location locations are missed. Based on the Commission’s direction, information in the letter received, and staff’s research, the revised ordinance proposes that the radius search be conducted for all locations within 2.5 miles of the proposed facility.
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Compliance with Original Use Permit
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The PCIA letter also stated that the proposal’s requirement that the applicant for co-location demonstrate compliance with the original use permit and be required to complete an administrative review process is wasteful of time and resources. However, staff notes that verifying compliance with the originally-issued use permit is a typical requirement in the County for any expansion of a facility or renewal of permits. Staff therefore does not recommend changing the ordinance in this regard.
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Design and Blending Standards
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The letter further stated that design and blending standards should be applied on a case-by-case basis where appropriate, instead of as a blanket requirement for permit approval, and should not apply to locations in industrial areas. Staff notes that the proposed ordinance does give the Community Development Director the option of waiving the screening standards on a case-by-case basis in industrial and commercial areas, if appropriate. However, staff also notes that General Plan Policy 4.20 requires the minimization of the adverse visual impacts of utility structures throughout the unincorporated area. In fact, there might be instances where screening and blending might be necessary to minimize visual impacts even in industrial areas, especially those adjacent to residential areas and transit corridors. Staff recommends that the proposed ordinance not be modified as proposed by the PCIA in this instance.
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The letter also suggested that requirements are vague in that they do not articulate the criteria for deciding the appropriate blending design. The ordinance was worded in order to allow some flexibility in how applicants comply with General Plan Policy 4.20, which requires the minimization of adverse visual impacts. At its April 23 hearing, the Planning Commission noted that camouflage is often not the preferred method of minimizing visual impacts and heard public testimony in which it was recommended that the ordinance list the methods for addressing visual impact in order of priority. In response, relevant sections of the ordinance were redrafted to emphasize that the first priority is to locate facilities outside the public viewshed and use existing vegetation and features to cloak telecommunication facilities. When facilities cannot be located outside the public viewshed, the ordinance requires that impacts be mitigated through the use of landscape screening and paint colors that blend with the surrounding environment. Design techniques that attempt to replicate trees or other natural features shall be considered only as a last resort.
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The letter also stated that the application of blending, screening and painting criteria to co-location facilities could force a co-locator to adhere to design standards that were not applied to the original facility. Staff notes that the proposed ordinance is so worded in order to comply with General Plan Policy 4.20 regarding the minimization of adverse visual impacts. Staff recommends that such standards be applied to co-location proposals, even if they were not applied to the original facility, and does not recommend changing this part of the ordinance.
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RF Emissions
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Finally, the letter stated that the applicant should only be required to submit a signed statement that the proposed facility will not violate Federal law regarding Radio Frequency (RF) emissions, rather than submit an RF report to the County. Local regulation based on RF emissions is prohibited by Section 332(c)(7) of the Federal Communications Act, as noted above in Section A.2 of the staff report and referenced in Attachment J. Current County practice is to require the submission of an RF report in order to verify that the proposed facility does not violate Federal RF emission standards, and the proposed ordinance formalizes that practice. In addition to verifying that the proposed facility does not violate Federal standards regarding RF emissions, the required report provides a basis to compare future RF reports associated with co-location projects in order to ensure compliance with Federal RF standards is maintained. Staff recommends retaining the proposed wording.
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b.
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June 24, 2008 PCIA Letter
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Radius Search
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On June 24, prior to the second Planning Commission hearing on this matter, staff received a second letter from PCIA, which is included as Attachment Q. The letter recommended that Section 6512.5.B.11 of the proposed ordinance be altered to use the applicant’s coverage objective as the driving element in evaluating alternate locations for facilities, rather than requiring a 2.5-mile radius search of existing facilities as proposed in the ordinance. Staff notes that it would be difficult to determine the appropriate radius search and evaluate the applicant’s coverage objective on a case-by-case basis. In addition, the language proposed by PCIA could preclude an effective evaluation of potential co-location alternatives. However, partly based on PCIA’s recommendation, staff added language to Section 6512.5.B.11 that would include the applicant’s radio frequency coverage objective in the list of application requirements, so that issues related to radio frequency can be appropriately considered during the evaluation of siting and co-location alternatives.
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Removal of Facilities
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The letter also stated that Section 6512.3.E of the proposed ordinance requiring removal of obsolete facilities empowers the County to dictate business decisions of wireless carriers. The PCIA asked who would determine if a facility is obsolete and how the determination would be made. In recognition of the difficulties in determining when a facility or technology becomes obsolete, staff removed the reference to obsolete facilities, clarified the ordinance to include a definition of abandonment, and added requirements for restoring and revegetating abandoned sites.
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Buildout Plan
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Regarding the ten-year buildout plan proposed in Section 6512.5.B.10, PCIA noted the difficulty of forecasting long-term facility plans. The PCIA recommended that if the Planning Commission feels that such a plan is necessary, it could “include general designs for future co-locations at the facility, and that the Commission would review and approve the buildout plan along with the new facility.” This is, in fact, the intent of the proposed ordinance. The ordinance would require that the ten-year plan identify the location, footprint, maximum tower height, and general arrangement of future co-locations and facility expansions. Staff added clarifying language to Section 6512.6 that makes explicit that the approval of the use permit includes approval of the ten-year buildout plan.
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Co-locations
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The PCIA recommended that for co-location plans consistent with the approved buildout plan, only a building permit be required. This is in fact similar to what is proposed in Section 6513 and following of the proposed ordinance, which defines the standards, requirements and procedures for administrative review of co-location proposals.
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The letter also suggested that for consideration of a co-location proposal that represents a minor alteration from the approved buildout plan, planning staff could review and comment administratively. Staff notes that the ordinance proposes that the Community Development Director determine if a proposal is to be considered a minor alteration. If it is indeed considered minor, the co-location proposal would follow the streamlined co-location administrative review process.
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The PCIA then suggested that co-locations that are a significant departure from the approved buildout plan have a second administrative review process rather than a discretionary use permit. Staff proposes that such co-locations be evaluated using the same process as the use permit process for new facilities. Staff maintains that a use permit review including a public hearing would still be appropriate in these instances, and that they should not be handled ministerially, as suggested by the PCIA.
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The PCIA proposed a two-track administrative review process in accordance with Section 6513.A. For those co-location proposals that do not meet the criteria in Section 6513.A (i.e., on a non-conforming facility), the PCIA recommended a process more intensive than the administrative review outlined, but not as intensive as that for new facilities. Following this approach would require the drafting of a third set of requirements, standards and procedures for these co-locations. It is not clear that such a process would benefit the interests of the County or its residents, or provide any meaningful procedural benefits. For instance, a public hearing and discretionary review of a co-location proposal on an existing non-conforming facility might indeed be useful in evaluating such a proposal. Accordingly, staff recommends that co-locations on non-conforming facilities be considered under the same process as the use permit process for new facilities.
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c.
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July 21 and 22, 2008 PCIA Letters
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Prior to the third and final Planning Commission hearing, staff received a letter from PCIA on July 21, and another on July 22 (Attachment T) that elaborated on the July 21 letter. The letter suggested changing the definition of an abandoned facility in Section 6511.A from six months to twelve, because providers might need a six-month off-line period to overhaul their network. At its July 23 hearing, the Planning Commission rejected this proposed change, opting to retain the six-month definition of abandoned facility. In Section 6412.2.E, the PCIA recommended using the term “the facility’s coverage objectives” because “adequate coverage” is subjective. However, staff did not recommend following this suggestion, as the County and the applicant might have different objectives.
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The County’s adequate coverage standard would permit the construction of new facilities that would reduce documented gaps in the provider’s service area that could not otherwise be filled through co-location.
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Height Limits
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The PCIA letters objected to the proposed height limits in Section 6512.2.2.I(1) in rural areas that would prohibit towers from “exceeding the height of the forest canopy,” because telecommunication technology needs a clear “line of sight” and the antennas must be higher than their surroundings. Staff notes that these height limits already effectively apply in the RM and TPZ districts. This topic was discussed at the July 23 Planning Commission hearing, and the Commission amended the ordinance to allow tower heights in forested rural areas to exceed the height of the tree canopy by 5 feet, or 10 percent of the height of the canopy, whichever is less.
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The letters also objected to the proposed heights in residential areas for the same reason as the objection to height limits in rural areas. The letter also objected to the proposed 10 percent height exception for co-locations on utility poles in public rights-of-way in residential areas. It noted that this would typically allow the district height limit to be exceeded only by 3.6 feet, and that co-located antennas require 10 feet of separation. Staff notes that it would still be possible to have multiple antennas on one pole that are more than 10 feet apart. This was also discussed at the July 23 Planning Commission hearing, and the Commission modified this section to allow an exception of 5 feet, or 10 percent of the height of the existing structure, whichever is less.
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Other Development Standards
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The letters also asked for clarification in the ordinance to allow more than one accessory building or cabinet per residential parcel. In response, staff modified Section 6512.2.J of the ordinance to allow more than one telecommunication facility accessory building per parcel, provided that the total footprint of these facilities do not exceed the established site coverage limits.
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The letters also objected to the proposed site coverage limits in Section 6512.2.K for the footprint of telecommunication facilities in residential areas. Staff did not recommend changing this portion of the ordinance, which was drafted to respond to comments from community members and the Commission in support of site coverage limits in residential areas. This item was also discussed by the Commission at its July 23 hearing, and the Commission opted not to change the ordinance as requested by the PCIA.
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Performance Standards
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The letters also objected to the proposed language in Section 6512.2.L, which discourages the use of diesel generators as emergency backup power sources for facilities when other alternatives such as solar and natural gas are feasible. This language was included at the direction of the Planning Commission, and staff notes that the proposed ordinance allows the use of diesel generators if other emergency power sources are not feasible.
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The letters also objected to Section 6512.2.H regarding the proposed limits on hours of maintenance, as maintenance is typically conducted at night when call volume is low. In response, staff changed the proposed ordinance to allow facility maintenance at all hours. The Planning Commission modified this further to prohibit the maintenance of diesel generators at night, due to noise concerns.
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Buildout Plan
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The letters again raised concerns with the requirement for a ten-year buildout plan for new facilities, on the basis that this is a long-time horizon for an applicant to plan for a facility’s needs. This was discussed at the June 25 Commission hearing, and is further discussed in Section E.2 of the report.
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Co-location
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The letters again objected to standards and requirements for co-location in Section 6513, arguing that they would be a disincentive to co-location. Staff disagrees, as the same design, development and performance standards should apply to co-location as to the original facility, as further discussed in Section D.1.a of this report.
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The letters also again raised concerns with the co-location search radius of 2.5 miles in Section 6512.5.B.11 of the ordinance, and suggested that an analysis of the proposed facility’s RF objective would allow a realistic co-location search ring to be determined. Staff notes that this proposal by PCIA would require a complex case-by-case analysis at project intake and impede full consideration of potentially viable co-location alternatives. The proposed ordinance instead includes a more uniform standard that ensure options for co-location are adequately evaluated.
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New Facilities
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The letters also raised issue with Section 6512.5.B.16 regarding the requirement that an application for a new facility in a residential district include an evaluation of an alternative site or combination of sites that could reduce gaps in the coverage network, on the basis that such a requirement is an unnecessary burden on providers that increases costs. Staff does not recommend changing this portion of the ordinance, as this language is necessary to conduct an adequate evaluation of alternative non-residential sites and thereby protect the integrity of residential districts.
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Finally, the letters objected to the “preponderance of the evidence” standard for locating a new site in residential areas in Section 6512.2.B. and asked who would interpret this standard. This standard would be interpreted by staff and ultimately by the decision-maker. Staff does not recommend changing this language, which was suggested at the June 25 Planning Commission hearing.
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d.
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October 27, 2008 PCIA Letter
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On October 27, 2008, PCIA/CalWA sent a letter to the Board of Supervisors regarding the proposed ordinance (Attachment W). The letter summarized the organization’s earlier correspondence, particularly its objections to the proposed requirement for a ten-year buildout plan. They also asked that the Board allow facilities to rise above the height of the surroundings in order for such facilities to be effective, and for the Board to consider the desires of the wireless consumer.
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Staff continues to recommend that the ordinance require a buildout plan for new facilities, and has clarified that this requirement only applies to new facilities that have the technical capacity to support additional service providers. In other words, small facilities, such as “micro cells,” installed on existing utility poles that cannot feasibly support additional equipment would not have to provide a buildout plan. However, on larger facilities that can accommodate additional equipment, a buildout plan is necessary to encourage future co-locations and allow for their administrative review. This will help consolidate telecommunication facilities in appropriate areas while avoiding their proliferation in residential, scenic, or environmentally sensitive areas.
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In response to the comment regarding height, the current proposal, includes changes made by the Planning Commission at their July 23 hearing, which allow height exceptions in both residential and rural areas, and permit towers and other facilities to exceed the height of their surroundings if necessary.
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2.
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Comments from Midpeninsula Regional Open Space District
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On May 20, 2008, staff received a letter from the Midpeninsula Regional Open Space District, included here as Attachment M, commenting on the environmental review and the proposed text amendment. The letter addressed three issues: co-location, sensitive habitats, and viewshed impacts and facility design.
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Co-location: The District’s letter encouraged co-location and states that applicants should document both their attempts to co-locate and the extent to which additional facilities can be accommodated at the proposed location. In response, the language of Section 6512.5.B.9 of the recommended ordinance was clarified in order to achieve these objectives.
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Sensitive Habitats: The District’s letter encouraged a broad interpretation of the prohibition against locating new telecommunication facilities in sensitive habitats. The District recommended that a qualified biologist or ecologist evaluate each site to determine if it is a sensitive habitat.
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The general locations of sensitive habitats are mapped as part of the General Plan and LCP, and are further defined in those documents to include areas that meet the definition of sensitive habitats that may not be shown on adopted maps. The existing permit process does not require that a biologist examine each site being considered for a new telecommunication facility to determine if it is a sensitive habitat. However, under current policy, staff will require that this be done if a site has the potential of supporting a sensitive habitat. For example, staff would typically not require a biologist to evaluate a site in an existing commercial or industrial area, or in the back yard of an existing residence, but might require such an evaluation if the proposed site were located in a rural area or near a stream, even if it were not mapped as a sensitive habitat. Staff maintains that requiring the services of a biologist in every instance regardless of location would be unnecessary in some situations and would incur unnecessary additional expense to applicants. Staff
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proposes that the discretion and flexibility allowed by the existing approach and proposed amendment are adequate to identify sensitive habitats.
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Viewshed Impacts and Facility Design: The District’s letter recommended that the proposed ordinance’s provision that facilities in the Coastal Zone not be visible from a public location be extended Countywide. Staff notes that this provision is currently only proposed to apply to a very limited area of the Coastal Zone, namely locations generally west of Highway 1. Verifying that proposed locations in all other parts of the County are not visible from public locations such as parks and preserves would be difficult to determine and burdensome to enforce. It is possible that such a broad prohibition would greatly reduce the area available for telecommunication facilities, and significantly impair the ability to provide adequate service coverage. The proposed ordinance does include language in Section 6512.2.E that requires that new facilities be sited outside of the public viewshed whenever possible. The ordinance also establishes specific requirements to minimize adverse visual impacts of facilities when such sites are not available.
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The District’s letter also recommended that specific facility design features be incorporated to reduce the visual impacts of telecommunication facilities, including maximizing the use of existing vegetation, natural features, and planted native species. In response, staff modified Section 6512.2.E to include the language proposed by the Midpeninsula Regional Open Space District in the menu of methods to reduce the adverse visual impacts of telecommunication facilities. Specifically, the options to be considered when determining the appropriate method for minimizing and mitigating unavoidable visual impacts have been expanded to include “maximizing the use of existing vegetation and natural features to cloak telecommunication facilities” and “constructing towers no taller than necessary to provide adequate coverage.”
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3.
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Other Correspondence Received
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a.
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Staff received an e-mail from Trish Taylor on June 19 regarding clarification of the procedure for handling the expiration of use permits, which is included here as Attachment O. In response to these comments, staff added clarifying language to Section 6512.6 of the ordinance. These clarifications specify the standards and procedures for use permit terms, renewals, and expiration.
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b.
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Staff received an e-mail from Alicia Torre and Jonathan Nimer on June 24 regarding use permit renewals and limits on telecommunication facilities in residential areas, which is included as Attachment P. The correspondence proposed that use permit renewals be subject to the same provisions as permits for new facilities. In response, staff added clarifying language to Section 6512.6 to address this concern and to specify that use permit renewals are subject to the same standards as use permits for new facilities.
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The e-mail also advocated further restrictions on the maximum footprint, height of structures, and number of structures in residential areas. The issues of maximum height and footprint were discussed at the June 25 Planning Commission hearing and are discussed under Section E.2 of this report. Regarding the limit of one pole per property proposed in the e-mail, staff notes that this would be a disincentive to co-location. Staff was unable to confirm the assertion in the e-mail that the City of San Carlos’s zoning chapter regulating antenna support structure and television satellite dish antennas includes a limit of one pole per property. Although the proposed ordinance does not limit the number of poles per property, the requirements for pursuing alternative non-residential sites, and those that limit height and footprint coverage, are adequate to protect surrounding residential uses. Staff therefore did not modify the proposed ordinance as suggested in this particular instance.
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c.
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Correspondence Received at the July 23 Planning Commission Hearing
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At the July 23 Planning Commission hearing, staff received written comment from Kurt Oppenheimer and the Palomar Property Owners (Attachment S), and from Alicia Torre and Jonathan Nimer (Attachment U). Mr. Oppenheimer had also submitted a letter dated July 16, which is included as Attachment R. These items are all discussed under the Public Comment at the July 23 Planning Commission hearing portion of the report, Section E.3.
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d.
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Correspondence of October 23, 2008 from Mackenzie and Albritton LLP/Verizon Wireless
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On October 23, 2008, the Board of Supervisors received a letter and redline version of the proposed ordinance from the law firm of Mackenzie and Albritton LLP, which represents Verizon Wireless (Attachment V). The correspondence argues that the proposed ordinance is an overreaction to SB 1627, especially in its distinction between co-location applications and those for new facilities, and its requirement for a ten-year buildout plan for new facilities. Staff maintains that SB 1627 itself makes the distinction between these two types of permits, and that the proposed ordinance is consistent with this State legislation. Likewise, the ten-year buildout plan is consistent with the State legislation requiring administrative review of co-location if an approved buildout plan has been approved and other conditions have been met.
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Verizon’s objections to the ten-year buildout plan are similar to those raised earlier in the Planning Commission review process by PCIA/CalWA (see discussion above in Section D.1, which references Attachments L, Q, T and W). In fact, over the course of three public hearings the Planning Commission deliberated on the requirements for a ten-year buildout plan and its requirement for communication between providers prior to approval of such a plan, and helped shape the ordinance as it is proposed. Staff recommends retaining the ten-year buildout plan requirement proposed in the ordinance, and has added new language clarifying that this requirement only applies to new facilities that have the technical capacity to support additional equipment. The updated version of the ordinance recommended by staff also incorporates many of the specific language changes proposed by Verizon in the redline that they have submitted (see Items (1)-(20) below).
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The letter also objects to the limits placed on accessory buildings used in support of telecommunication facilities in residential areas. It appears that this comment pertains to an earlier draft of the ordinance, which was modified by the Planning Commission at its July 23 hearing. The modified ordinance presented to the Board should address these concerns.
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The letter also challenges the “preponderance of the evidence” standard in the proposed ordinance. However, this language was specified by the Planning Commission at its June 25 hearing, and staff does not recommend modifying the Planning Commission’s recommendation (see D.3.d(6) below for further discussion).
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The letter also states that the proposed ordinance violates vested rights of carriers. Staff notes that this provision of the proposed ordinance (part of Section 6512.6) was added by the Planning Commission at its June 25 hearing in response to public comment from Alicia Torre and Jonathan Nimer (discussed in D.3.b above, and referenced in Attachments P and U). Staff maintains that this language does not eliminate vested rights.
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The redline attachment to Attachment V contains specific recommended language changes to the proposed ordinance. Staff met with Verizon representatives, James Singleton of NSA Wireless, Inc., and Kurt Oppenheimer of the Palomar Park Property Owners Association on November 7 to discuss their concerns. After considering the letter, the redline attachment, and listening to the concerns of the interested parties, staff recommends making a number of specific changes to the proposed ordinance, including the following:
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(1)
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The word “wireless” has been added throughout the proposal as requested by Verizon.
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(2)
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Section 6510.B. Verizon recommends changing the ordinance to encourage, rather than require, co-location where it will reduce environmental impacts. Staff does not recommend the proposed use of the word “encourage” because the mandatory requirement for co-location, when it is technically feasible to do so, is the primary way in which the ordinance will avoid the proliferation of facilities in residential, scenic, and environmentally sensitive areas of the County. The proposed ordinance has been updated, however, to eliminate the requirement for co-location that would result in a greater environmental impact than constructing a new facility.
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(3)
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Section 6511.B. Verizon recommends deleting the word “co-location” in the definition of “administrative review.” Staff recommends retaining the originally-proposed language as administrative review would, in fact, only be applicable to co-location proposals.
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(4)
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Section 6511.E. Verizon recommends replacing the word “transmission” with “broadcast.” Staff does not object to this change and has incorporated it into the updated ordinance as requested.
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(5)
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Section 6512.2.A. Verizon recommends allowing facilities in sensitive habitats in order to fill a gap in coverage. Although this change is inconsistent with Policy 7.4 of the LCP, which only permits resource dependent uses in sensitive habitats of the Coastal Zone, and telecommunication facilities are not a resource dependent use, in cases where the Federal Telecommunications Act preempts State and local law the change should be made to the ordinance.
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(6)
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Section 6512.2.B. Verizon recommends deleting the “preponderance of the evidence” standard. Staff does not recommend this change as this specific phrase was inserted by the Planning Commission at its April 23 hearing. Staff maintains that this standard does not conflict with the “substantial evidence” test in the Federal Telecommunications Act referenced by Verizon.
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(7)
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Section 6512.2.B. Verizon recommends limiting the review of alternate sites for new facilities to those areas not zoned residential. Verizon also recommends allowing improvements in capacity to be a criteria for locating a new facility. Staff does not agree with the first recommendation, as there may be suitable alternate sites that are in fact zoned residential. However, staff concurs with the second recommended change.
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(8)
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Section 6512.2.C. Verizon recommends that co-location would only be preferable to a new facility if the environmental impacts would be less. Staff agrees with this proposed change.
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(9)
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Section 6512.2.D. Verizon recommends adding aesthetic appropriateness as a criteria for accommodating co-location, and allowing economic feasibility to be used as a criteria for avoiding the requirement that new facilities be made available for co-location. While staff concurs with the first change, staff does not agree with the second recommendation. During its deliberations, the Planning Commission specifically declined to insert language allowing economic feasibility as a reason for carriers to not be required to accommodate future co-location.
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(10)
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Section 6512.2.E. Verizon recommends adding the term “whenever feasible” to the requirement that new facilities be located outside the public viewshed. Staff has no objection to this change.
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(11)
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Section 6512.2.I and J. These specific language changes were comments on an earlier version of the ordinance. They were subsequently updated by the Planning Commission at its July 23 hearing. Staff does not recommend altering them further.
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(12)
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Section 6512.2.K. Verizon recommends allowing an exception to the proposed maximum footprint limits in residential areas for co-locations. Staff notes that these proposed limits are intended to apply to all facilities, including co-locations, and therefore does not concur with the recommendation.
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(13)
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Section 6512.3.B and E. Verizon suggests specific language changes regarding verification of State and Federal licensing and registration requirements. Staff concurs with these recommended changes.
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(14)
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Section 6512.3.G. Verizon recommends that requirements to minimize sedimentation in streams align with State law. Staff does not recommend this change, as the County may have requirements to minimize sedimentation that differ from State requirements.
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(15)
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Section 6512.4.A. Verizon recommends changing the requirement that facilities in the Coastal Zone west of Highway 1 not be visible, to one that would require only that antennas and equipment not be visible, in order to allow for camouflaged sites. Staff does not recommend this change, as the Planning Commission did not favor camouflaging sites to mimic natural objects (see discussion under D.4.b.2 below).
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(16)
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Section 6512.5.B.10. Verizon requests changes to the proposed ordinance that make the requirement to coordinate the ten-year buildout plan with other carriers somewhat easier. Staff does not object to these proposed changes, and recommends including them.
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(17)
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Section 6512.5.B.11, 13 and 16. Verizon recommends specific language changes to the application requirements. Staff has no objection to these proposed changes.
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(18)
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Section 6512.6. Verizon recommends that use permits be valid for a minimum of ten years, rather than a set term of ten years. Staff does not concur with this proposal, because the specific ten-year duration for new use permits will help ensure that they are all processed consistently. Verizon also recommends adding the phrase “where required” to the use permit renewal requirement. Staff does not object to this change but notes that use permits typically have an expiration date, and that renewal will therefore be required in almost all cases.
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(19)
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Section 6512.6. Verizon recommends allowing the Community Development Director to use the administrative review process to renew use permits. Staff does not agree with this recommendation, as the public hearing associated with use permit renewals provides an important opportunity for surrounding property owners and other interested parties to express their concerns and recommendations regarding the continued operation and potential expansion of a telecommunication facility. Staff also notes that this sentence was added by the Planning Commission at its June 25 hearing in response to an e-mail by Alicia Torre and Jonathan Nimer (see discussion under D.3.b above, and referenced in Attachments P and U).
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(20)
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Section 6513. The redline from Verizon contains suggested changes to this section on co-location that are similar to the recommended changes for new facilities. The updated ordinance recommended by staff incorporates some of the suggested changes but not others, in accordance with the reasoning presented in as detailed in parts D.3.d(1) to (19) of the staff report, above.
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e.
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Exhibit Submitted by Palomar Park Property Owners at the October 28, 2008, Board of Supervisors Hearing, and Comments on Cellular Sites in Residential Neighborhoods Submitted on November 7, 2008 and E-mail Submitted November 18, 2008
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At the October 28, 2008 Board of Supervisors hearing Mr. Kurt Oppenheimer of the Palomar Park Property Owners submitted an exhibit (Attachment X) requesting that the maximum footprint for telecommunication facilities in residential areas be reduced to 750 sq. ft. from the 1,600 sq. ft. proposed in the ordinance. Staff recommends retaining the 1,600 square foot limit as proposed for several reasons: (1) as the exhibit mentions, the proposed limit is derived from an already adopted 1,600 sq. ft. limit for towers in Section 6405 of the Zoning Regulations. Establishing a lower limit will cause existing facilities that were built in accordance with current standards to become non-conforming; (2) the recommended ordinance requires that all buildings associated with telecommunication facilities in residential areas comply with accessory building regulations, which allow a maximum of 1,000 sq. ft.; (3) the PCIA model ordinance (Attachment L) recommends a 1,500 sq. ft. limit for one telecommunication building in a residential area, with no limit specified for co-location, and no limit on the overall size of the facility; (4) other jurisdictions surveyed by staff have no specific limit on facility footprint; (5) the Planning Commission considered the request to reduce the limit to 750 sq. ft. at its July 23 hearing, but declined to recommend this change. Mr. Kurt Oppenheimer also provided comments on cellular sites in residential neighborhoods at the November 7, 2008, meeting with County staff and Verizon representatives.
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On November 18, 2008, staff received an e-mail from Kurt Oppenheimer of the Palomar Property Owners (Attachment AA). The e-mail summarized the neighborhood’s wishes with respect to the proposed ordinance, including their desire to strongly limit the placement of new telecommunication facilities in residential neighborhoods. The e-mail listed a number of environmental, aesthetic, and quality of life concerns with regard to such facilities and expressed support for a ten-year facility buildout plan as proposed in the ordinance. It also reiterated earlier stated objections to the proposed maximum facility size (see discussion in preceding paragraph). The e-mail states that Verizon’s proposed edits to the ordinance (see discussion under D.3.d, above) would remove many of the protections for residential neighborhoods, and advocates that the Board adopt the ordinance as recommended by the Planning Commission.
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f.
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Letter and Redline of Ordinance dated November 11, 2008 from NSA Wireless
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On November 12, staff received a letter and suggested revisions to the ordinance (Attachment Y) from NSA Wireless, a private consulting firm that participated in staff’s meeting with Verizon representatives and Mr. Kurt Oppenheimer on November 7. The letter points out that carriers do not typically cooperate with each other when choosing new locations and also objects to the proposed 1,600 sq. ft. facility limit in residential areas. The basis for this limit is discussed in Section D.3.e above and is necessary to protect the quality and integrity of residential neighborhoods. NSA Wireless has not submitted any specific information to demonstrate that this limit will impede the establishment of adequate wireless service within the County. Staff’s response to the additional changes to the ordinance suggested by NSA Wireless are provided below:
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(1)
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Section 6512.2.E. The letter proposes deleting the requirement that towers be no taller than necessary to provide adequate coverage. Staff does not agree with this proposed change, as this language is needed to implement General Plan Policy 4.20 which requires the visual impacts from utility structures to be minimized, while fulfilling the objective of establishing adequate service.
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(2)
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Section 6512.2.I.1. NSA requests deletion of the paragraph regarding height limits in forested areas of specified zoning districts, and asks that language be added to allow tree pruning for maintenance. Staff recommends retaining the text proposed for deletion, which implements the existing regulations of the LCP and the referenced zoning districts, and was carefully considered by the Planning Commission at its July 23 hearing (see discussion under E.3 below). Staff agrees that specific permits can allow tree pruning as necessary; however, this can be accomplished on an as-needed basis through conditions of approval to the individual use permit, or through a separate tree cutting permit if required.
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(3)
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Section 6512.2.J. NSA proposes clarifying that the maximum footprint for accessory buildings does not include standalone cabinets that do not have a roof. Staff concurs with this recommendation, and has removed the reference to cabinets and shelters in this section of the ordinance. The existing definition of accessory building in the zoning regulations will be used to determine which components of a telecommunication facility are subject to accessory building size limits, which cannot exceed 1,000 sq. ft. in a residential district. All other components must fit within the 1,600 sq. ft. of aggregate coverage allowed on a residential site.
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(4)
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Section 6512.2.K. NSA objects to the 1,600 sq. ft. limit to facilities in residential areas, and asks if the limit applies to generator area and access easements. Staff proposes retaining the proposed 1,600 sq. ft. limit, for the reasons explained in D.3.f above. In response to NSA’s question, staff proposes adding clarifying language to this section to make clear that the limit would apply to a generator or any other above-ground equipment, but not to easements or underground utilities.
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(5)
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Section 6512.2.L. NSA proposes eliminating wording that discourages the use of diesel generators for emergency power. Staff recommends retaining the existing language, which was specified by the Planning Commission at its June 25 hearing (see E.2 below), and carries out the County’s commitment to preserving natural resources.
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(6)
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Section 6513.B and E. These proposed language changes are the same proposed by Verizon in D.3.d(13) above. Staff recommends making the requested changes.
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(7)
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Section 6512.4.A. NSA recommends that facilities west of Highway 1 be allowed if they are “substantially screened from view,” rather than “not visible from a public location,” which is the currently proposed wording. As with D.3.d(15) above, staff does not recommend this change, as the currently proposed language is more consistent with LCP Policy 8.22.c, which requires that utilities in State Scenic Corridors not be substantially visible from any public road.
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(8)
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Section 6512.5.B.8. NSA recommends changing the wording relating to erosion control plan submittals to indicate that a preliminary erosion control plan is required with the use permit application, and that the complete plan shall be submitted at the building permit stage. Staff concurs with this proposed change, and has revised the recommended ordinance accordingly.
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(9)
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Section 6512.5.B.10. NSA recommends deleting the application requirement for a ten-year buildout plan. Staff does not agree with this proposed change, as it is a key component of the proposed ordinance, was developed in response to SB 1627, and was discussed in detail by the Planning Commission at its April 23 hearing (see Section E.1 below). Instead, staff recommends making the changes proposed by Verizon’s attorneys as detailed in D.3.d(16) above.
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(10)
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Section 6512.5.B.11 and 16. Staff agrees with the requested language changes that would address carrier’s capacity needs.
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(11)
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Section 6512.6. NSA requests the deletion of the sentence that would apply the requirements for new facilities to use permit renewals for existing facilities constructed prior to the adoption of the ordinance. Staff does not recommend making this change. This sentence was added by the Planning Commission at its June 25 hearing in response to e-mails from Alicia Torre and Jonathan Nimer (discussed in Section D.3.b above, and referenced in Attachments P and U).
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(12)
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Section 6513. The redline from NSA contains suggested changes to this section on co-location that are similar to their recommended changes for new facilities. Staff recommends that similar language changes as detailed in parts D.3.f(1) to (11) above be made to this section of the proposed ordinance, with the following exceptions:
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(13)
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Section 6513.1.G. NSA recommends deleting sentences that would preclude building additional accessory buildings for telecommunication facilities on a residential parcel if there are existing non-telecommunication accessory buildings on the parcel, and vice-versa. Staff does not recommend making this change, as Section 6410 of the accessory building regulations currently limits the number of accessory buildings to one. In addition, the language is the same as in Section 6512.2.J, which NSA did not propose to change.
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(14)
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Section 6513.1.J. NSA proposes removing this section which allows the Community Development Director to administratively approve co-locations which deviate slightly from the approved buildout plan. Staff does not recommend changing the language as requested. The proposed language would allow the Director to approve minor changes, as is the case with other types of planning permits, while stipulating that significant deviations from the approved buildout plan would trigger a requirement for a use permit amendment.
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4.
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Public Comment at the Planning Commission Hearings
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a.
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Public Comment at the April 23 Planning Commission Hearing
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(1)
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Mr. Kurt Oppenheimer spoke in favor of establishing a maximum footprint for telecommunication facilities in residential areas. In response to this comment, staff subsequently modified Section 6512.2.K of the ordinance to establish a maximum facility footprint in residential areas.
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(2)
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Mr. Rich Landi expressed a desire to limit telecommunication facilities in residential areas. The proposed ordinance does have provisions in Section 6512.2.A limiting location of new telecommunication facilities in residential areas.
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(3)
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Mr. Leon Glahn expressed support for requiring a use permit for co-location applications. However, staff notes that this would conflict with State Senate Bill 1627, which specifies that co-location proposals meeting certain criteria shall not be subject to a discretionary use permit. Section 6513.A of the proposed ordinance requires discretionary review of all co-location projects that are not required by SB 1627 to be reviewed ministerially.
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(4)
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Mr. Blair asked what would happen to the use permit should the facility change ownership. Staff notes that in such instances, the use permit runs with the facility, not the owner or operator, and remains valid as long as conditions of approval continue to be met.
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(5)
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Ms. Lennie Roberts of the Committee for Green Foothills asked that the project be referred to the Golden Gate National Recreation Area (GGNRA). Staff subsequently sent GGNRA a copy of the environmental review and the ordinance, but no comment was received. Ms. Roberts also asked if co-location of a facility at an existing project site that had not been subject to a CEQA EIR or Initial Study would require a use permit. Staff confirms that under Section 6513.A.3 of the proposed ordinance, a use permit would be required for co-location if, among other reasons, approval of the original facility did not include the adoption of an EIR, Negative Declaration, or Mitigated Negative Declaration.
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Ms. Roberts also noted that disguising facilities as trees is not always appropriate in open, rural areas, and Commission members echoed this comment. In response, staff revised Section 6512.2.E of the ordinance so that camouflage shall only be considered as a mitigation of last resort. Ms. Roberts also expressed concern with the allowed heights for towers. Ms. Roberts noted that tall towers would only likely be necessary for television and radio transmission. Staff concurs with this assessment, and notes that the proposed ordinance would not affect the regulation of TV or radio facilities. Staff also subsequently modified the height limits in the proposed ordinance, as discussed in Section A.5 of this report.
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b.
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Public Comment at the June 25 Planning Commission Hearing
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(1)
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Mr. Kurt Oppenheimer spoke in favor of establishing maximum lot coverage and height limits for facilities in residential areas. These items are addressed in Section E.2 of this report, Planning Commission review. He also raised concern with the major development pre-application review. This item is discussed in Section A.2 of the report. Mr. Oppenheimer stated that public agencies can determine if a technology becomes obsolete, in contrast to the position of the PCIA as noted in Section D.1.b of this report, and raised questions regarding the requirement to remove abandoned facilities. Many jurisdictions do require the removal of abandoned facilities, and staff does not recommend changing the proposed ordinance in this regard. Mr. Oppenheimer also advocated that the ten-year buildout plan specify the architectural style of future co-locations. In order to address this concern, staff added language to Section 6513.1.B to require that the design of co-location facilities be in visual harmony with the other telecommunication facilities on the site.
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(2)
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Ms. Lennie Roberts from the Committee for Green Foothills spoke in favor of height limits for telecommunication facilities in residential and rural areas. Height limits are discussed in the Planning Commission review section of this report, Section E.2, as well as in Section A.5, Zoning Compliance. Ms. Roberts also asked how the County would know if a facility has been abandoned. In order to address this question, staff added language to Section 6512.3.E of the ordinance specifying that the facility owner or operator shall notify the Planning and Building Department upon the abandonment of a facility. Ms. Roberts also recommended prioritizing the menu of methods for reducing the visual impact of facilities, with the lowest priority given to camouflaging poles as trees. In order to address this recommendation, staff changed the language in Sections 6512.2.E and 6513.1.B so that an applicant could propose a camouflage facility only if other listed methods of reducing the visual impact are inadequate.
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c.
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Public Comment at the July 23 Planning Commission Hearing
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(1)
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Ms. Alicia Torre presented a letter in person to the Commission at its July 23 meeting (Attachment U) and also spoke regarding the ordinance. Ms. Torre asked that co-locations on individual residential properties be required to be grouped. In response, staff modified Section 6512.2.K of the ordinance to require that accessory buildings and cabinets in support of telecommunication facilities be grouped, and that towers and poles also be grouped to the extent that is technically feasible. Ms. Torre also stated that the proposed 1,600 sq. ft. or 15 percent of lot area maximum footprint for facilities in residential areas should be reduced. Staff notes that the proposed limit was derived from the existing limit in Section 6405 of the Zoning Regulations, as discussed in Section A.5 of this report, and does not recommend modifying it further. The Commission agreed and decided not to change the ordinance in this regard.
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(2)
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Mr. Kurt Oppenheimer also spoke at the hearing and presented a handout, included as Attachment S. Mr. Oppenheimer spoke in favor of reducing the maximum lot coverage for telecommunication facilities in residential areas from the 15 percent proposed in the ordinance to 5 percent, and proposed a maximum total lot coverage of 35 percent for all structures on the parcel, including homes. Staff notes that several residential zone districts already permit lot coverage to exceed 35 percent. The limit of 15 percent proposed by staff was derived from the existing limits in Section 6405 of the Zoning Regulations, as further discussed in Section A.5 of this report. The Commission agreed with the staff proposal and decided not to change the ordinance in this regard.
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Mr. Oppenheimer also spoke in favor of modifying the pre-application workshop requirement in Section 6512.5.A by designating telecommunication sites as “primary,” “secondary,” or “tertiary.” Staff is concerned that such a change would require establishment of a potentially complicated designation system for all telecommunication sites that would be of marginal benefit. The Commission agreed with this and decided not to change the ordinance in this regard.
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Mr. Oppenheimer also submitted comments and spoke about height limits on existing poles in residential areas. This item is discussed under Section E.3 of this report, Planning Commission Review.
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Mr. Oppenheimer also spoke in favor of prohibiting maintenance of diesel generators at night. The Commission concurred, and staff accordingly modified Section 6512.3.H of the proposed ordinance accordingly.
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(3)
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Mr. Rich Landi asked if construction of telecommunication facilities would allow the removal of trees. Staff notes that tree removal for the purpose of building a new facility would require the appropriate permit, in most cases a Tree Removal Permit. Mr. Landi also noted that the operation of diesel generators requires a regional permit from the Bay Area Air Quality Management District (BAAQMD).
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E.
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PLANNING COMMISSION REVIEW
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1.
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April 23 Hearing
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The Planning Commission reviewed the first draft of the proposed ordinance at its April 23 meeting. There was support for requiring co-location where feasible, while at the same time, avoiding concentrating telecommunication facilities at individual sites in residential areas. In response to this, staff changed Section 6513.1.H of the ordinance so that expansion of co-location facilities in residential areas would be limited to that proposed in the original use permit or planned maximum buildout.
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The Commission expressed concern regarding the feasibility of accurately assessing future buildout, as required by the initial draft ordinance. In response, staff modified Section 6512.5.B.10 of the ordinance to require only a ten-year buildout plan for the site, the same term as that of the use permit. Under this section, the applicant would be required to contact other telecommunication facilities operators to determine the future demand for co-location at the site. In addition, staff made modifications to Section 6512.6 that require applications for use permit renewals to include an updated buildout description for the next ten-year period.
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The Commission also asked how many telecommunication facilities exist in residential areas. The County has either issued or has pending approximately 170 use permits, amendments, renewals and administrative reviews for telecommunication facilities since implementing the existing permit tracking system in 1999. The vast majority of these have either already been constructed, or are administrative reviews, renewals and/or amendments for existing facilities. Of the total number of permits, about 13 percent have been in commercial areas, 7 percent have been in industrial areas, 45 percent have been in agricultural or resource management areas, and 30 percent (about 50 permits) have been in residential areas. These 50 permits in residential areas are located in approximately 35 separate locations, with up to five separate operators utilizing the same parcel. These figures do not necessarily include all facilities, only those permitted or pending since 1999. There are approximately one dozen active pending permits for telecommunication facilities. Most of these are for co-locations.
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The Commission encouraged staff to consider the correspondence received from Jonathan Nimer in January 2007 urging the County to adopt a policy for the permitting of telecommunication facilities. That correspondence is included as Attachment K. It urged a moratorium on new facilities in residential areas until such a policy is established and states that such facilities should not be located in residential neighborhoods. Staff did not propose a moratorium on telecommunication facilities in residential areas, as the construction of some facilities in residential districts may be necessary for adequate coverage. Section 6512.2.B of the proposed ordinance does, however, include provisions that regulate the location of facilities in residential areas. Staff also modified this part of the ordinance to require applicants for new facilities in residential areas to conduct a review of other options and demonstrate that no other non-residential sites or combination of sites allows feasible service or adequate coverage.
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The Commission also asked that staff specify which ordinances it examined in writing the draft ordinance. Staff examined ordinances from Albuquerque (New Mexico), San Carlos, San Diego City, South San Francisco, Woodside (which is included as part of Attachment K), Los Angeles County, San Luis Obispo County, Santa Cruz County, and the PCIA Model Wireless Telecommunications Ordinance (which is included as part of Attachment L). All of these ordinances were adopted before the passage of State Senate Bill 1627 and so do not address its requirements. The only California jurisdiction found to have adopted a telecommunication ordinance since the passage of Senate Bill 1627 is San Juan Bautista City, and its ordinance does not specifically address the provisions of the Senate Bill. Staff also conducted a brief survey of ordinances outside of California in order to determine the appropriate radius search for identifying potential co-location facilities, as explained in Section D.1.a of this report.
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2.
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June 25 Hearing
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The Commission reviewed a revised version of the draft ordinance at its June 25 public hearing. The Commission asked that the word “collocation” be replaced with “co-location”; that change is reflected in the attached revised ordinance. A Commission member also queried whether the Negative Declaration should be re-circulated, as it did not address the noise impacts of diesel generators. Staff and County Counsel stated that the Negative Declaration was adequate as the use of diesel generators was not something specifically proposed in the ordinance, would be project specific, and would be addressed during the environmental review of projects that propose to use diesel generators. The Commission also asked if restrictions could be placed upon the use of diesel generators as backup power sources. In response, staff added language to Sections 6512.2.L and 6512.3I of the ordinance that diesel generators shall not be used unless solar, wind or other renewable energy sources are not feasible, and that the operation of such generators comply with the County Noise Ordinance. The Commission also asked for more detail on the proposed requirement that applicants identify possible alternative sites for co-location. In response, staff added language to the application requirements part of the ordinance, Section 6512.5.B.11, that specifies that applicants shall explain why alternative sites studied but rejected are not viable for co-location.
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The Commission discussed the proposal for height limits in residential areas. Staff summarized the height limit regulations in Woodside, South San Francisco, Santa Cruz County, and in the PCIA model ordinance. By way of reference, the height limit is 150 feet in the PCIA’s model ordinance, and both Santa Cruz County and Woodside fix the limit at that established for the district, although Santa Cruz allows exceptions to this limit. The Commission expressed a preference for Woodside’s approach, which limits height in residential zones to that established in the zoning district. Staff added language in Section 6512.2.I to accomplish this objective. This would establish a height limit for telecommunication facilities in residential zones of between 28 and 36 feet, depending on the district. One Commission member also expressed a desire for an exception to this height limit for co-location on an existing structure in the public right-of-way, and suggested that a 10 percent allowance might be appropriate. To this end, staff proposed adding language that would define the height limit for co-location facilities in R districts as that established in the district, but would allow that limit to be exceeded by 10 percent for co-locations on existing structures within the public right-of-way. This last item was further refined at the July 23 hearing.
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The Commission also discussed establishing maximum footprints for telecommunication facilities and maximum sizes for equipment buildings and shelters in residential areas. The County’s existing regulations for accessory buildings in Sections 6410 and 6411 establish a maximum building size of 1,000 sq. ft. Staff proposed that this existing provision be extended to include equipment buildings, shelters and cabinets in support of telecommunication facilities, by adding language to Sections 6512.2.J and 6513.1.G that cross references the existing accessory building regulations. This would establish 1,000 sq. ft. as the maximum size for any combination of equipment buildings, cabinets, or shelters used in support of a telecommunication facility. The County’s existing regulations for towers in Section 6405 also suggests a maximum footprint for telecommunication facilities by allowing exceptions to district maximum height limits up to 150 feet so long as the base area does not exceed 1,600 sq. ft. or 15 percent of the lot area, as discussed in Section A.1 of this report. Staff proposed that the maximum footprint allowed in Section 6405 be fixed at 1,600 sq. ft. for telecommunication facilities (including equipment cabinets, accessory buildings and tower base area) in residential districts. The language in Sections 6512.2.K and 6513.1.H would establish a maximum footprint of 1,600 sq. ft. or 15 percent of the lot area, whichever is less, for telecommunication facilities in residential areas.
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The Commission also directed staff to update Finding #7 in Attachment A so that its language parallels that of the ordinance. Staff revised Recommended Finding #7 to reflect this. The Commission also asked if County Counsel was comfortable with Recommended Finding #5. Staff subsequently circulated this report to County Counsel for their comment, if any, on this finding, and Counsel did not object to the wording of this finding.
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3.
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July 23 Hearing
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At its July 23 hearing, the Commission made additional amendments to the revised ordinance, and recommended approval to the Board.
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The Commission modified the height limits in both rural forested areas and on existing structures in the public right-of-way in residential areas. In the rural TPZ, TPZ-CZ, RM, RM-CZ, and PAD zone districts, the maximum tower height allowed in forested areas would be 10 percent above the height of the tree canopy, or 5 feet, whichever is less. Similarly, in Residential (R) zone districts, the maximum tower height allowed for co-locations on existing poles would be 10 percent above the height level allowed in the district, or 5 feet, whichever is less. These changes affect Section 6512.2.I of the ordinance, and are discussed more fully in Section A.5 of the staff report.
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In residential areas, the Commission recommended that buildings accessory to telecommunication facilities be grouped, and that floor area and site coverage maximums for accessory buildings in support of such facilities should be applied in the aggregate. Shelters, equipment cabinets, and similar accessory buildings in support of telecommunication facilities would be required to be grouped. The limits on square footage and site coverage in the accessory building regulations would apply to these buildings in the aggregate and would allow more than one accessory building in support of such facilities. These changes affect Sections 6512.2.J and K.
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The Commission discussed allowing a greater variety of emergency power backup sources, including electricity and natural gas. These changes are included in Section 6512.2.L of the ordinance. At the request of the PCIA and in response to public comment, the amended ordinance would allow maintenance work on telecommunication facilities outside of daytime working hours, with the exception of maintenance on diesel generators, which could not be worked on at night. The changes affect Section 6512.3.H of the ordinance. At the request of County Counsel, a severability clause was also added as Section 6514 of the ordinance.
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The attached ordinance also includes changes to Section 6513.1.B to make its language consistent with that of Section 6512.2.E, and to Section 6513.4.H to make it consistent with Section 6512.5.B.13, as well as adding clarifying language to Section 6513.1.J. The Planning Commission’s recommended changes to the draft ordinance (a “redline” version) are noted in Attachments D and E. For reference, the Initial Study (Attachment H) includes the original draft of the ordinance.
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F.
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BOARD OF SUPERVISORS REVIEW
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The Board considered the proposed ordinance at its October 28, 2008, hearing. Representatives from Verizon Wireless requested that the Board continue the item to allow time to consider its letter of October 23 (Attachment V). The Board granted the request and continued the item until December 9, 2008. Mr. Kurt Oppenheimer of the Palomar Park Property Owners also spoke and submitted an exhibit (Attachment X), which is discussed in Section D.3.e of this report. Mr. Oppenheimer also noted that Section 6513.1.F.3 was not consistent with Section 6512.2.I.3. Staff has since corrected this error.
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The Board also asked that staff consider Verizon’s comments regarding lack of notification about the proposed ordinance, how the ordinance would address technological changes and small discrete sites, and the proposed ten-year buildout plan. Staff met with Verizon representatives and other interested parties on November 7 to discuss these issues and others raised in the letter.
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In response to these questions, staff notes that representatives of major local providers, including Verizon, were notified of the proposed ordinance in writing prior to the first Planning Commission hearing of April 23, 2008, using addresses that they had provided when applying for permits. None provided written comments prior to the October 23, 2008 letter from Verizon. However, the industry trade group PCIA/CalWA did provide written comments throughout the Planning Commission hearing process (Attachments L, Q, T and W), which raised many of the same issues of concern to Verizon. Comments from PCIA/CalWA are discussed in Section D.1 of this report.
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Regarding the proposed ordinance’s regulation of small discrete sites and new technologies, staff discussed this issue with Verizon at the November 7 meeting. Staff maintains that the proposed ordinance contains enough regulatory flexibility to adequately permit potential discrete sites, and has clarified the ordinance to make it clear that accommodating future co-locations and providing a ten-year buildout plan is not required for projects that use small components that do not have the capacity to support additional equipment. Staff has also added language to Section 6513.1.K to give the Community Development Director discretion to approve co-location proposals using new technology that are smaller and have less impact than the originally approved buildout plan.
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Staff recommends retaining the proposed ten-year buildout plan requirement for projects that have the technical capacity to support additional equipment, as this is one of the primary ways in which the ordinance seeks to avoid the proliferation of facilities in residential, scenic, and environmentally sensitive areas of the County. This is more fully discussed in Section D.3.d of this report.
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FISCAL IMPACT
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There is no anticipated fiscal impact on the County as a result of this amendment.
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ATTACHMENTS
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A.
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Recommended Findings
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B.
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Resolution Adopting Telecommunication Facilities Ordinance
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C.
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Telecommunication Facilities Ordinance
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C2.
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“Redline” of Telecommunication Facilities Ordinance Showing Changes Made Following October 28, 2008 Board of Supervisors Meeting
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D.
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“Redline” of Telecommunication Facilities Ordinance Showing Changes Made at the July 23, 2008 Planning Commission Meeting
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E.
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“Redline” of Telecommunication Facilities Ordinance Showing Changes Made at the June 25, 2008 Planning Commission Meeting
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F.
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Cell Tower Image
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G.
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Cell Tower Image – Camouflaged
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H.
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Initial Study and Negative Declaration
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I.
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State Senate Bill 1627
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J.
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Section 332(c)(7) of Title 47 of the U.S. Code
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K.
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Letter dated January 22, 2007 from Alicia Torre and Jonathan Nimer
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L.
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Letter dated April 22, 2008 from PCIA/CalWA
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M.
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Letter dated May 20, 2008 from Midpeninsula Regional Open Space District
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N.
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Letter dated May 19, 2008 from Bay Conservation and Development Commission
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O.
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E-mail dated June 19, 2008 from Trish Taylor
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P.
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E-mail dated June 25, 2008 from Alicia Torre and Jonathan Nimer
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Q.
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Letter dated June 24, 2008 from PCIA/CalWA
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R.
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Letter dated July 16, 2008 from Kurt Oppenheimer and Palomar Property Owners
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S.
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Exhibit dated July 22, 2008 from Kurt Oppenheimer and Palomar Property Owners
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T.
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Letter dated July 22 from PCIA/CalWA
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U.
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Letter dated July 23, 2008 from Alicia Torre and Jonathan Nimer
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V.
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Letter and Redline of Ordinance dated October 23, 2008 from Mackenzie and Albritton
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W.
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Letter dated October 27, 2008 from PCIA/CalWA
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X.
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Exhibit Submitted at October 28, 2008 Board Hearing from Palomar Park Property Owners
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Y.
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Comments on Cellular Sites in Residential Neighborhoods Submitted November 7, 2008 by Palomar Property Owners
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Z.
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Letter and Redline of Ordinance dated November 11, 2008 from NSA Wireless
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AA.
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E-mail dated November 18, 2008 from Kurt Oppenheimer and Palomar Property Owners
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Attachment A
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COUNTY OF SAN MATEO
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PLANNING AND BUILDING DEPARTMENT
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RECOMMENDED FINDINGS
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Permit File Number: PLN 2008-00048
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Board Meeting Date: December 9, 2008
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Prepared By: Matt Seubert, Project Planner
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For Adoption By: Board of Supervisors
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RECOMMENDED FINDINGS
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Regarding the Negative Declaration, Find:
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1.
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That this Negative Declaration reflects the independent judgment of San Mateo County.
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2.
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That the Negative Declaration is complete, correct and adequate and prepared in accordance with the California Environmental Quality Act and applicable State and County guidelines.
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3.
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That, on the basis of the Initial Study, comments received hereto, and testimony presented and considered at the public hearing, there is no substantial evidence that the project will have a significant effect on the environment.
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Regarding Adoption of Chapter 24.5 of Division VI, Part One, of the San Mateo County Ordinance Code (Zoning Regulations), Find:
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4.
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That the text amendment is consistent with and adequate to carry out both the General Plan and the County’s Local Coastal Program (LCP), as discussed in Sections A.3 and A.4 of the staff report, respectively.
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5.
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That the text amendment is consistent with relevant State and Federal statutes and regulations, including California Senate Bill 1627, as discussed in Section A.2 of the staff report.
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6.
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That in order to protect the public health, safety, and the environment, it is in the public’s interest for the local government to establish rules and regulations relating to the construction, design, siting, major modification, and operation of wireless communication facilities and their compatibility with surrounding land uses.
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7.
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That commercial wireless communication facilities are typically incompatible with the character of residential zones in the County and, therefore, should not be located on residentially-zoned parcels unless it can be proven by the applicant that there are no alternative non-residential sites or combination of sites from which can be provided adequate coverage.
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8.
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That the proliferation of antennas, towers, satellite dishes, and other wireless communication facility structures could create significant, adverse visual impacts. Therefore, there is a need to regulate the siting, design, and construction of wireless communication facilities to ensure that the appearance and integrity of the community is not marred by unsightly commercial facilities, particularly in residential, historically significant, scenic coastal areas, and other environmentally sensitive areas.
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9.
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That the proposed ordinance addresses these findings, and furthermore is consistent with the Commitments and Goals of the County’s Shared Vision 2010 document, as stated in the Vision Alignment Section of the staff report.
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