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CC SR 20180821 02 - 26708 Indian Peak Road CUP 230 Revocation PUBLIC HEARING Date: August 21, 2018 Subject: Consideration and possible action to revoke Conditional Use Permit No. 230 for the installation of commercial antennas at 26708 Indian Peak Road (Case No. PLMH2018- 0001). Subject Property/Location: 26708 Indian Peak Road 1. Report of Notice Given: City Clerk 2. Declare Public Hearing Open: Mayor Brooks 3. Request for Staff Report: Mayor Brooks 4. Staff Report & Recommendation: Ara Mihranian, Director of Community Development 5. Council Questions of Staff (factual and without bias): 6. Testimony from members of the public: The normal time limit for each speaker is three (3) minutes. The Presiding Officer may grant additional time to a representative speaking for an entire group. The Mayor also may adjust the time limit for individual speakers depending upon the number of speakers who intend to speak. 7. Declare Hearing Closed/or Continue the Public Hearing to a later date: Mayor Brooks 8. Council Deliberation: The Council may ask staff to address questions raised by the testimony, or to clarify matters. Staff and/or Council may also answer questions posed by speakers during their testimony. The Council will then debate and/or make motions on the matter. 9. Council Action: The Council may: vote on the item; offer amendments or substitute motions to decide the matter; reopen the hearing for additional testimony; continue the matter to a later date for a decision. RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 08/21/2018 AGENDA REPORT AGENDA HEADING: Public Hearing AGENDA DESCRIPTION: Consideration and possible action to revoke Conditional Use Permit No. 230 for the installation of commercial antennas at 26708 Indian Peak Road (Case No. PLMH2018- 0001). RECOMMENDED COUNCIL ACTION: (1) Adopt Resolution No. 2018-__, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES REVOKING IN ITS ENTIRETY AND EFFECTIVE IMMEDIATELY CONDITIONAL USE PERMIT NO. 230 FOR THE INSTALLATION OF COMMERCIAL ANTENNAS AND RELATED SUPPORT STRUCTURES AT 26708 INDIAN PEAK ROAD. FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Ara Mihranian, AICP, Director of Community Development REVIEWED BY: Hans Van Ligten, Consulting Attorney APPROVED BY: Doug Willmore, City Manager ATTACHED SUPPORTING DOCUMENTS: A. Resolution No. 2018-__ (page A-1) B. 2001 Antenna Photo Exhibit (page B-1) C. 2018 Antenna Photo Exhibit (page C-1) D. March 21, 2017, letter from Mr. Nakasu (page D-1) E. April 14, 2017, City Attorney letter (page E-1) F. Resolution No. 2005-75 (page F1) G. Resolution No. 2004-109 (page G-1) H. Resolution No. 2002-27 (page H-1) I. P.C. Resolution No. 2001-43 (page I-1) J. Public Comment (page J-1) BACKGROUND AND DISCUSSION: On June 21, 2001, the Applicant, Mr. James A. Kay, Jr., submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 (CUP 230) for after-the-fact approval to establish the then-existing 5-masted, roof-mounted antennae 1 and related support structures and equipment for commercial use at the residence located at 26708 Indian Peak Road. Between October and November 2001, the Planning Commission held three duly-noticed public hearings, and after considering evidence introduced as part of the public record, adopted P.C. Resolution No. 2001-43 on November 15, 2001 (Attachment I), thereby approving CUP 230 but with required modifications to the roof-mounted antenna array. Mr. Kay appealed the Planning Commission’s decision based on his disagreement with the conditions regulating the location, number and placement of antennas on the project site. The City Council considered this appeal at its meetings on February 19, 2002, March 19, 2002, March 25, 2002, and April 16, 2002. At its April 16, 2002 meeting, the City Council adopted Resolution No. 2002-27 (Attachment H), thereby denying the appeal, modifying certain conditions of approval, and conditionally approving the installation of five (5) roof-mounted mast antennas. On May 15, 2002, Mr. Kay filed suit against the City in Federal District Court in order to overturn the City’s decision on the grounds that, among other things, it violated the Telecommunications Act of 1996. On July 14, 2004, the United States District Court for the Central District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the “City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A. Kay, Jr. to use his five (5) mast antenna structures for commercial purposes, subject to certain conditions.” On December 21, 2004, the City Council adopted Resolution No. 2004-109 (Attachment G), thereby revising eight conditions of approval for CUP 230 pursuant to the July 14, 2004, court order. Mr. Kay subsequently petitioned the United States District Court to vacate the conditions of approval imposed by Resolution No. 2004-109. On April 4, 2005, the United States District Court issued an order in response to Mr. Kay’s petition, rejecting most of Mr. Kay’s contentions but finding that the provisions of Condition No. 19 of CUP 230 requiring that “Mr. Kay maintain the property as his primary residence [were] not reasonable.” All other conditions of approval imposed by Resolution No. 2004-109 were found reasonable and upheld by the court. On July 5, 2005, the City Council adopted Resolution No. 2005-75 (Attachment F) revising the language for Condition No. 19 of CUP 230, thereby requiring that Mr. Kay complete necessary improvements to make the house habitable, including but not limited to, a functional kitchen and bathroom, and connections to utilities, along with weekly landscape and maintenance services. The final version of the Conditions of Approval (as reflected in Resolution No. 2004-109 as amended by Resolution No. 2005- 75) were not further challenged in or overturned by any court proceeding. The City Council-adopted Resolution Nos. 2004-109 and 2005-75 approve, with conditions, CUP 230 to allow five (5) mast antenna structures for commercial purposes and related support structures and equipment at the subject residential property. Condition No. 2(d) states, among other things, that any additional exterior antennae, 2 masts, or other antenna support structure(s) shall require further approval or modifications of this Conditional Use Permit. Furthermore, Condition No. 10 states that the five roof-mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the City Council, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. In November 2014, the City discovered that a total of thirteen (13) roof-mounted antennae and support pole masts had been installed at the property, well over the five (5) City Council-approved, roof-mounted antennae and support pole masts. As of August 13, 2018, there now appears to be a total of fifteen (15) roof-mounted antennas (Attachment C). On November 28, 2014, the City issued a Notice of Violation, ordering the removal of all but the five (5) City Council-approved roof-mounted antennae and support pole masts from the roof, and requiring that the remaining five (5) City Council- approved, roof-mounted antennae and support pole masts comply with the City Council- adopted conditions of approval for CUP 230. On July 26, 2016, the City set a thirty (30) day period for compliance. However, at the request of Mr. Kay, the City, in good faith, granted a time extension to this compliance deadline to October 28, 2016. On October 28, 2016, a Conditional Use Permit revision application (Planning Case No. ZON2016-00517) was submitted to the City requesting an after-the-fact revision to legalize the unpermitted roof-mounted antennas. The application was deemed incomplete for process on November 23, 2016, and because the application originated from code enforcement action, the Applicant was given thirty (30) days, or until December 21, 2016, to submit the requested additional information in order continue processing the application. Approximately five (5) months after this deadline, the City received a letter on March 21, 2017, from Mr. Kay’s legal counsel, Mr. Nakasu (Attachment D), asserting that the application to revise CUP 230 with an after-the-fact amendment should be granted pursuant to RPVMC §17.76.020(A)(12)(b). On April 14, 2017, the City Attorney responded to this letter (Attachment E), outlining the City’s position that, pursuant to Resolution Nos. 2002-27, 2004-109, and 2005-75, the five (5) City Council-approved, roof-mounted antennae and support pole masts “refer only to the antennae and antenna array depicted in the plans submitted to the City on June 21, 2001, in photographs accompanying the application to revise CUP No. 230, and Environmental Assessment No. 744.” Further, the City Attorney stated that any suggestion that additional antennae, support pole masts, and other structures were mere modifications not requiring City Council approval directly contravened the binding Resolutions. The letter restated the application’s deficiencies and offered additional time to cure them. On June 28, 2017, City Staff, the City Prosecutor, Mr. Nakasu, and Mr. Kay met to discuss this matter. It was at this meeting that Mr. Nakasu indicated that the antennae 3 and support structures were “outdated” and “obsolete” and that they could be replaced with an alternative structure that would both address the telecommunications capacity needs, as well as the City’s safety and aesthetic concerns with the current structures. Four months elapsed after the June 28, 2017, meeting, during which time the City Prosecutor made several follow-up calls to Mr. Nakasu. During this time, Mr. Kay did not make any further attempts to cure the application deficiencies in order to proceed with processing a revision to CUP 230, or to rectify the purported technological obsolescence of the existing structures. In September 2017, the City Prosecutor again reached out to Mr. Nakasu to ascertain the status of the antennae and the application, and who in return requested additional time. After numerous communications back and forth between the City Prosecutor and Mr. Nakasu through September and October 2017, Mr. Nakasu requested an additional extension on October 19, 2017, in order to engage a new permit expediter company. On October 23, 2017, the City Prosecutor sent a letter to Mr. Kay and Mr. Nakasu, the purpose of which was to summarize events subsequent to the June 28, 2017, meeting, to reiterate the deficiencies in the CUP 230 revision application, to discuss potential replacement of current, “obsolete,” structures, and to discuss the potential for reinstating the Code Enforcement case, should the City’s demands not be met. On December 13, 2017, City Staff, City Prosecutor, Mr. Nakasu, and Mr. Kay met, and at this meeting, Mr. Kay proposed alternative designs to replace the existing antennae, such as a faux monopole tree or new roof antennae on the rear yard-facing roof pitch, that would address the City’s concerns and meet the needs of the commercial antennas. As a result, it was agreed that Mr. Kay would submit, by mid-January 2018, a concept drawing regarding a proposed alternative design for the City’s initial review, followed by an application for the CUP on or before February 28, 2018. To date, the City has not received any such information from Mr. Kay or his legal counsel. In accordance to RPVMC §17.60.080, if any of the conditions to the use or development are not maintained, then the Conditional Use Permit shall be null and void. Furthermore, the RPVMC states that the continued operation of a use that requires a Conditional Use Permit which is found to be in noncompliance with any condition of a Conditional Use Permit constitutes a violation of the Municipal Code. Thus, the installation of the unpermitted antennae/masts constitutes a violation of the City Council-adopted Conditional Use Permit and Conditions of Approval. The City had hoped that this matter could be addressed amicably through the appropriate review and application process. However, Mr. Kay’s non-responsiveness since December 2017 has left the City with no other choice than to recommend revoking CUP 230 pursuant to RPVMC §17.86.060. As noted in the various Planning Commission and City Council resolutions accompanying this Staff Report, a primary issue addressed by the Conditions of Approval was the demonstrated visual impact of approximately twelve (12) antennae/masts that were installed without lawfully-obtained building or other permits, which resulted in the “after-the-fact” application process leading to CUP 230. 4 (Attachment G - See Resolution No. 2004-109 §§ 1 (B), (D), (F) and (H).) Therefore the addition of any vertical elements was contemplated and prohibited by CUP 230. ADDITIONAL INFORMATION: Public Notice On August 2, 2018, a public notice announcing tonight’s meeting on the revocation of CUP 230 was mailed to Mr. Kay, Mr. Nakasu, and to property owners within a 500’ radius of the subject property. The public notice was also published in the Palos Verdes Peninsula News on August 2, 2018. Public Comments In response to the public notice, the City received an email from the Mr. Kay’s new legal counsel, Ms. Brill, requesting a continuance of the public hearing (Attachment J). The continuance request is to allow additional time for Mr. Kay’s new legal counsel to respond to the Public Notice and to hire a new permit expediter. In light of the amount of time that has passed since the code enforcement case was initiated in 2014, Staff and the City Attorney are of the opinion that additional time should not granted, unless the City Council feels otherwise. Mr. Kay was given numerous opportunities to work with the City to correct the violation, but has chosen not to. This was conveyed to Ms. Brill by the City Attorney’s office, and in response, the attached letter was submitted to the City on August 10, 2018, objecting to the recommendation to revoke the CUP 230. CONCLUSION: Staff recommends that the City Council revoke, in its entirety and effective immediately, Conditional Use Permit No. 230, which approved the commercial use of certain antennae and related support structures on the site of a single-family residence located at 26708 Indian Peak Drive, based upon the on-going violation of the express provisions of Resolution No. 2004-109, as amended by Resolution No. 2005-75. ALTERNATIVES: In addition to the Staff recommendation, the following alternative actions are available for the City Council’s consideration: 1. Allow the property owner to continue operating the City Council-permitted commercial antennas and require the non-permitted antennas to be removed within 30 days. 2. Continue the public hearing, as requested by the property owner’s new legal counsel, to a date certain to allow the property owner additional time to respond to the revocation notice. 3. Provide Staff and/or the property owner with additional direction regarding this matter, and continue the public hearing to a date certain. 5 RESOLUTION NO. 2018-__ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES REVOKING IN ITS ENTIRETY AND EFFECTIVE IMMEDIATELY CONDITIONAL USE PERMIT NO. 230 FOR THE INSTALLATION OF COMMERCIAL ANTENNAS AND RELATED SUPPORT STRUCTURES AT 26708 INDIAN PEAK ROAD. WHEREAS, on June 21, 2001, the Applicant/Appellant, Mr. James A. Kay, Jr., submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after-the-fact approval to establish the then-existing 5-masted, roof-mounted antennae and related support structures and equipment on the site for commercial use; and, WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would not have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt (Class 1, Section 15301); and, WHEREAS, after the submittal of these applications on June 21, 2001, and while the Planning Commission was conducting the public hearings on this application, the Applicant installed at least twelve (12) additional vertical antenna masts with attached antennae onto the previously existing roof-mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the Applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof-mounted antenna support structure and array; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001-43 conditionally approving the project; and, A-1 Resolution No. 2018-__ Page 2 of 7 WHEREAS, Mr. Kay timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with “all conditions regulating the location, number and placement of antennas on the project site….”; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on February 19, 2002, March 19, 2002, March 25, 2002 and April 16, 2002, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the City Council, on April 16, 2002, adopted Resolution No. 2002-27, thereby denying the appeal, modifying certain conditions of approval and conditionally approving the project; and, WHEREAS, on May 15, 2002, Mr. Kay filed suit against the City in Federal District Court in order to overturn the City’s decision on the grounds, among other things, that it violated the Telecommunications Act of 1996; and, WHEREAS, on July 14, 2004, the United States District Court for the Central District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the “City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A. Kay, Jr. to use his five (5) mast antenna structure for commercial purposes, subject to reasonable conditions”; and, WHEREAS, the City revised the conditions of approval for Conditional Use Permit No. 230 to allow the commercial use of Mr. Kay’s 5-mast, roof-mounted, antenna array, which existed at the time and was depicted on plans provided to the City of Rancho Palos Verdes with the original submittal of the application for Conditional Use Permit No. 230 on June 21, 2001; and, WHEREAS, this matter was agendized for the City Council’s review and consideration on October 5, 2004, and November 16, 2004, but on both occasions the matter was continued to a subsequent City Council meeting at Mr. Kay’s request in order to allow his legal counsel to discuss additional proposed revisions to the conditions of approval for Conditional Use Permit No. 230 with the City Attorney; and, WHEREAS, the City Council, on December 21, 2004, adopted Resolution No. 2004-109, thereby revising eight (8) conditions of approval for Conditional Use Permit No. 230 pursuant to the July 14, 2004, order of the United States District Court; and, WHEREAS, Mr. Kay subsequently petitioned the United States District Court to vacate the conditions of approval imposed by Resolution No. 2004-109; and, WHEREAS, on April 4, 2005, the United States District Court issued an order in response to Mr. Kay’s petition, finding that the provisions of Condition No. 19 of Conditional Use Permit No. 230 requiring “that Mr. Kay maintain the property as his A-2 Resolution No. 2018-__ Page 3 of 7 primary residence [were] not reasonable,” but also finding that all other conditions of approval imposed by Resolution No. 2004-109 were reasonable; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, on July 5, 2005, the City Council adopted Resolution No. 2005-75 revising the language for Condition No. 19 of Conditional Use Permit No. 230 thereby requiring that Mr. Kay complete necessary improvements to make the house habitable, including but not limited to, a functional kitchen and bathroom, and connections to utilities, along with weekly landscape and maintenance services; and, WHEREAS, on November 28, 2014, the City issued Mr. Kay a Notice of Violation for the installation of unpermitted roof-mounted antennas resulting in a total of thirteen (13) roof-mounted antennae and support pole masts, well in excess of the five (5) City Council-approved, roof-mounted antennae and support pole masts. The City ordered the removal of all but the five (5) City Council-approved roof-mounted antennae and support pole masts from the roof, and requiring that the remaining five (5) City Council-approved, roof-mounted antennae and support pole masts comply with the City Council-adopted Conditions of Approval for Conditional Use Permit No. 230; and, WHEREAS, on July 26, 2016, the City set a thirty (30) day period for compliance with the November 28, 2014, Notice of Violation. At the request of Mr. Kay, the City, in good faith, granted a time extension to this compliance deadline to October 28, 2016; and, WHEREAS, on October 28, 2016, a Conditional Use Permit revision application (Planning Case No. ZON2016-00517) was submitted to the City requesting to legalize the unpermitted roof-mounted antennas; and, WHEREAS, on November 23, 2016, the application was deemed incomplete for processing, and because the application originated from code enforcement action, the Applicant was given thirty (30) days, or until December 21, 2016, to submit the requested additional information in order continue processing the application; and, WHEREAS, on March 21, 2017, the City received a letter from Mr. Kay’s legal counsel, Mr. Nakasu, asserting that the application to revise Conditional Use Permit No. 230 with an after-the-fact amendment should be granted pursuant to RPVMC §17.76.020(A)(12)(b); and, WHEREAS, on April 14, 2017, the City Attorney responded by outlining the City’s position that, pursuant to Resolutions 2002-27, 2004-109, and 2005-75, the five (5) City Council-approved, roof-mounted antennae and support pole masts “refer only to the antennae and antenna array depicted in the plans submitted to the City on June 21, 2001, in photographs accompanying the application to revise CUP No. 230, and Environmental Assessment No. 744.” Further, the City Attorney stated that any suggestion that additional antennae, support pole masts, and other structures were mere modifications not requiring City Council approval directly contravened the binding resolutions; and, A-3 Resolution No. 2018-__ Page 4 of 7 WHEREAS, on June 28, 2017, City Staff, the City Prosecutor, Mr. Nakasu, and Mr. Kay met to discuss this matter, at which time, Mr. Nakasu indicated that the antennae and support structures were “outdated” and “obsolete” and that they could be replaced with an alternative structure that would both address the telecommunications capacity needs, as well as the City’s safety and aesthetic concerns with the current structures. Four months elapsed from the June 28, 2017, meeting, during this time, Mr. Kay did not make any further attempts to cure the application deficiencies in order to proceed with processing a revision to CUP No. 230, or to rectify the technological obsolescence of the existing structures; and, WHEREAS, on October 19, 2017, Staff granted, in good faith, Mr. Kay additional time to submit the requested information in order for Mr. Kay to acquire a new permit expediter company; and, WHEREAS, on October 23, 2017, the City Prosecutor sent a letter to Mr. Kay and Mr. Nakasu, the purpose of which was to summarize events subsequent to the June 28, 2017, meeting, to reiterate the deficiencies in the CUP No. 230 revision application, to discuss potential replacement of current, “obsolete,” structures, and to discuss the potential for reinstating the Code Enforcement case, should the City’s demands not be met; and, WHEREAS, on December 13, 2017, City Staff, City Prosecutor, Mr. Nakasu, and Mr. Kay met, and at this meeting, Mr. Kay proposed alternative designs to replace the existing antennae, such as a faux monopole tree or new roof antennae on the rear yard- facing roof pitch, that would address the City’s concerns and meet the needs of the commercial antennas. As a result, it was agreed that Mr. Kay would submit, by mid- January 2018, a concept drawing regarding a proposed alternative design for the City’s initial review, followed by an application for the CUP on or before February 28, 2018. To date, the City has not received any information from Mr. Kay or his legal counsel; and, WHEREAS, in accordance to RPVMC §17.60.080, if any of the conditions to the use or development are not maintained, then the Conditional Use Permit shall be null and void. Furthermore, the continued operation of a use requiring a Conditional Use Permit which is found to be noncompliant with any condition of a Conditional Use Permit shall constitute a violation of the Municipal Code; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Municipal Code, the City Council held a duly-noticed public hearing on August 21, 2018 to consider revoking Conditional Use Permit No. 230, at which time all interested parties were given an opportunity to be heard and present evidence. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: A-4 Resolution No. 2018-__ Page 5 of 7 Section 1: Having heard and considered the oral, written, and documentary evidence presented at the duly-noticed public hearing conducted by the City Council on August 21, 2018, the City Council makes the following findings: A. The property located at 26708 Indian Peak Road, Rancho Palos Verdes, California, (the “Subject Property”) is the subject of Conditional Use Permit No. 230 (“CUP No. 230”), as granted by the City Council in Resolution No. 2004-109, and as amended by Resolution No. 2005-75. The Applicant, Mr. James A. Kay, Jr., did not successfully challenge, within the time provided by law, Resolution No. 2005-75, and has from and after the adoption of Resolution No. 2005-75 (the “CUP Date”) accepted the benefits of CUP No. 230. B. CUP No. 230 required removal of all but five (5) of the existing eight-and- on-half-foot long masts and two of the television antennae from the roof, authorized a maximum of five (5) vertical masts, each with a height of eight and one-half (8 ½) feet, and not more than four (4) radiating per each mast. C. Condition of Approval No. 2.d states in part, “Any additional exterior antennae, masts or other antenna and support structure(s) shall require further approval or modification of this conditional use permit.” D. Further, Condition of Approval No. 2 goes on to state that the Director is authorized to make only minor modifications to the approved plans and conditions of approval. “Otherwise, any substantive change, such as the enlargement, expansion or addition to, the exterior masts and antennae that this approval allows outside of the exiting residential structure shall require approval of a revision to Conditional Use Permit No. 230 by the City Council and shall require a new and separate environmental review.” E. The Subject Property has at various times from after the CUP Date had installed antennae and/or vertical masts on the roof as testified to by staff and depicted in photographic evidenced submitted into the Administrative Record. Such evidence discloses installation of as many as twelve (12) additional vertical masts (the “Additional Masts”) over and above the five (5) permitted by CUP No. 230. F. Mr. Kay has failed to provide any evidence that any permits of any kind (zoning, building, etc.) were obtained by him, directly or by an agent acting on his behalf, authorizing the construction of the Additional Masts. Written correspondence from his attorney admits such construction has occurred, does not contest to permits were obtained in advance, and has confirmed such by submitting an incomplete application for an “after-the-fact” permit for the Additional Masts. A-5 Resolution No. 2018-__ Page 6 of 7 G. City records fail to show any action by the City Council subsequent to Resolution No. 2005-75 modifying, amending, or otherwise affecting CUP No. 230 to allow installation of more than five (5) vertical masts on the Subject Property. Further, although the City Council finds it would not properly be the subject of a minor modification, staff has indicated that no application for a minor modification was approved by the Director to that effect. H. The City staff has made various efforts to resolve these issues short of a revocation beginning in 2014. Despite numerous meetings, exchanges of correspondence, and opportunities to come into compliance with CUP No. 230 or, in the alternative, apply for a modification to CUP No. 230 to retroactively permit the Additional Masts, Mr. Kay has not diligently pursued any remedial opportunity and has continued to operate the unpermitted facilities while essentially “stringing along” the City. I. Based upon all the evidence presented, and after hearing the arguments and testimony on behalf of Mr. Kay, the public, and City staff, the City Council finds the evidence of construction of the unpermitted Additional Masts to be essentially uncontested in that Mr. Kay has admitted they exist. The City Council finds that no permits of any kind (zoning or building) were obtained by Mr. Kay and therefore the construction of the Additional Masts was in violation of the Rancho Palos Verdes Municipal Code and the specific provisions of the Conditions of Approval relating to modification or expansion of the use of the antennae structure by the increase in the number of masts above the five (5) permitted by CUP No. 230. J. The City Council further finds that the violation directly impacts surrounding properties due to the increased visual impact of commercial antennae which the limitation on the number of vertical masts was narrowly tailored to address, and that the Subject Property owner has repeatedly and knowingly violated the Conditions of Approval by the installation of the Additional Masts without any permits or other legally-required approvals, and subsequently has availed himself of numerous opportunities to come into compliance with the terms of CUP No. 230 such that revocation is the appropriate action and is necessary to protect the legitimate interests of the community. Section 2: Based on the information included in the Staff Report, the testimony and evidence presented at the public hearings in the past before the Planning Commission and the City Council, the administrative records related to those prior proceedings, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby revokes Conditional Use Permit No. 230, as amended, in its entirety. A-6 Resolution No. 2018-__ Page 7 of 7 PASSED, APPROVED, AND ADOPTED this 21st day of August 2018. ____________________ Mayor Attest: _____________________ City Clerk State of California ) County of Los Angeles ) ss City of Rancho Palos Verdes ) I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2018-__ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on August 21, 2018. ________________________ City Clerk A-7 B-1 C-1 SENIOR PARTNER OF COUNSEL C D.MICHEL*SCoTT M.FRANKLIN CLINT B.M0NFORT MANAGING PARTNER MICHAEL W.PRIcE JOSHUA RoBERT DALE I I LOS ANGELES,CA SPEAL COUNSEL MIC1J & W,LEESMITh Attrncys atLaw ASSOCIATES ANNAM.BARVIR SEAN A.BRADY MATTHEW D.CUBEIR0 MARGARET E.LEIDY JOSEPH A.SILvoso,III LOS ANGELES,CA WRITER’S DIRECT CONTACT: *ALSO ADMITTED IN TEXAS AND THE 562-2 I 6-4444 DISTRICT O COLUMBIA CMIcHEL©MIcHELLAwYERS .COM March2l,2017 VIA E-MAIL ONLY Hon.Brian Campbell, Mayor Hon.Jerry V.Duhovic,Mayor Pro Tern Hon.Susan M.Brooks,Councilwoman Hon.Ken Dyda,Councilman Hon.Anthony M.Misetich, Councilman CITY COUNCIL City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes,California 90275 [cc@rpvca.gov) Re:26708 Indian Peak Road Revision to Conditional Use Permit No.230 City Case No.Z0N2016-00517 Honorable Council Members, We submit this correspondence in anticipation of the City Attorney’s report to the City Council tonight regarding the status of the existing commercial antenna array at 2670$Indian Peak Road.We represent the property owner,Indian Peak Properties,LLC (“IPP”). The City Attorney indicated to us that he was going to submit a report to the Council on March 14,2017 in preparation for the March 21,2017 meeting.At the City Attorney’s suggestion,we attempted to schedule a meeting about the antenna array with the City Attorney and the City’s Community Development Director before the March 14,2017 report was due.Unfortunately,due to conflicting schedules we have been so far unable to have the meeting. We understand that IPP’s antenna array is not scheduled for public hearing on March 21,2017, and that the issues concerning IPP’s antenna array will be addressed during the Council’s closed session.We are submitting this correspondence for the Council’s consideration. I 80 EAsT OCEAN BouLEvARD •SuITE 200 •LONG BEACH •CALIFoRNIA •90802 TEL:562-2 I 6-4444 •FAX:562-2 I 6-4445 •WWW.MICHELIAWYERS.COM D-1 City Council, City of Rancho Palos Verdes March 21,2017 Page 2 of 5 Background: The antenna and equipment at 26708 Indian Peak Road are for both commercial and non commercial uses.IPP’s antenna array has been an issue with the City since 1998.On April 16,2002, after four years of applications,submissions,and negotiations with the City of Rancho Palos Verdes regarding the antennas and related support structures at 26708 Indian Peak Road,the City Council issued a resolution approving Conditional Use Permit No.230, for the commercial use of certain antennae and related support structures and equipment on the site of the single family residence located at 26708 Indian Peak Road.At the time it was initially issued,Conditional Use Permit No.230 was subject to 26 conditions.CUP No.230 allowed IPP to have roof-mounted equipment consisting of a maximum of two (2)vertical masts,which could not exceed eight and one-half (8½)feet in height. Each of the two masts could have up to four (4)radiating elements affixed thereon.In addition,two (2) television antennae could remain on the roof of the residence. On April 16,2002,the City Council adopted Resolution 2002-27,thereby denying IPP’s appeal, modifying certain conditions of approval and conditionally approving the project. On May 15,2002,IPP filed a lawsuit against the City in federal district court to overturn the City’s April 16,2002 decision because,among other things,it violated the Telecommunications Act of 1996. On July 14,2004,the United States District Court for the Central District of California ruled in the case of Kay v.Rancho Falos Verdes and ordered the “City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A.Kay,Jr.to use his five mast antenna structure for commercial purposes,subject to reasonable conditions.” On December 21,2004, the City revised the conditions of approval for Conditional Use Permit No. 230 to allow the commercial use of Mr.Kay’s 5-masted,roof-mounted antenna array.This antenna array had existed at the time and was depicted on IPP’s plans provided to the City of Rancho Palos Verdes with the original submission of the application for Conditional Use Permit No.230 on June 21, 2001. On December 21,2004,after IPP’s legal challenges to the Conditions of Approval to the Conditional Use Permit No.230,the City Council reconsidered its decision on the appeal of CUP No. 230.The Conditions of Approval were revised to allow the roof-mounted equipment to consist of the existing roof-mounted antennae support structure with a maximum of five (5)vertical masts and two (2) television antennae. For the next ten years,the antennas operated on the property without incident or complaint. Then,in 2014,the City’s Code Enforcement contacted IPP about the antenna array.On August 15, 2014,October 14,2014,and October 28,2014 the City of Rancho Palos Verdes’Community Development Department,Code Enforcement sent notices to IPP regarding the antennas claiming that the antenna array was in violation of Conditional Use Permit No.230 because of alleged changes to the antenna array. I 80 EA5T OcEAN BouLEvARD •SUITE 200 •LONG BEAcH •CALIFoRNIA •90802 TEL.:562-2 I 6-4444 •FAx:562-2 I 6-4445 •WWW.MICHELLAWYERS.COM D-2 City Council,City of Rancho Palos Verdes March 21,2017 Page 3 of 5 Thereafter a series of correspondence went back and forth between the City Attorney and IPP. There are multiple legal issues in dispute between the City and IPP,primarIly involving the degree to which local regulation of antennas are preempted by the federal Telecommunications Act.But the central issue at the moment is whether IPP has to submit an application for a new CUP,or an application for a modUlcation /revision to the existing CUP No. 230,and what the application fee should be. On April 5,2016,IPP responded to the City Attorney’s March 14,2016 correspondence.IPP reiterated its wish to comply with the CUP requirements,but once again raised concerns about the City’s permitting requirements for a modified CUP and the City’s demand for an excessive application fee based on what the City charges for a new application,rather than the modification of an existing one. IPP cited RPV Municipal Code section 17.76.020(A)(12)(b)as the applicable code section that governs the modification of an existing antenna array.This code section states,“new antennas mounted on existing towers or structures that would not require substantial modifications may be approved by the director with the following required information (i)an approved engineering study addressing structural,power and frequency compatibility with the existing tower and antennas, and (ii)a list of all proposed support equipment and anticipated maintenance needs.” In a May 5,2016 letter,IPP set forth all of the applicable RPV Municipal Code sections related to Conditional Use Permits for commercial and non-commercial antennas,and the requisite application fees and modification fees.IPP pointed out that the RPV Municipal Codes did not provide for any filing fees for “modifications”(Revision to Existing)to existing antennas, whether commercial or non commercial.IPP proposed it would comply with RPV Municipal Code section 17.76.020(A)(12)(b)for modification to an existing commercial antenna and to pay a reduced application fee of $500. In a July 26,2016 letter,the City Attorney finally agreed with IPP’s interpretation of the applicable RPV Code section and appropriate filing fee for a modification to an existing antenna structure. The City Attorney instructed IPP to submit a modification to the CUP,with the standard application for revision to an existing conditional use permit.“However,the same information required under RP VMC section 17.76.020(A)(12)(b)should be submitted with the application,rather than the more extensive information required under RPVMC section 17.76.020(A)(1 1),with the exception of the frequency compatibility study.The City has determined that a frequency compatibility study is not necessary at this time.”The City Attorney continued,“Your client,therefore,should submit,in addition to the standard application for revision to an existing CUP (which is attached to this letter):(1)an approved engineering study addressing structural and power compatibility with the existing tower and antennas;and (2)a list of all proposed support equipment and anticipated maintenance needs.”“Additionally,after further research,the required fee to modilr the existing Commercial Antenna Conditional Use Permit is $1,311.” The City Attorney on July 26,2016 stated that the City required IPP to take the following actions: I 80 EAsT 0cN BoULEvARD •SuITE 200 •LoNG BcH •CALW0RNIA •90802 TEL:562-2 6-4444 •FAX:562-2 6-4445 •WWWMICHELLAWYERS.COM D-3 City Council,City of Rancho Palos Verdes March 21,2017 Page 4 of 5 1.Removal all but the permitted five commercial antennas and two television antennas from the roof,and remove the large drum structure from the roof; 2.Submit the standard Application for Revisioit to an Existing Conditional Use Permit, as welt as tite information required by RP VMC section 17.76.020(A)(12)(b),with tite exception ofthefrequency compatibility study,whicit is (1)an approved engineering study addressing structural and power compatibility witit the existing tower and antennas,and (2)a list of all proposed support equipment and anticipated maintenance needs;and pay the required fee of $1,3llfor modjfication of an existing Commercial Antenna Conditional Use Permit. So,after years of back-and-forth with the City,IPP had finally received affirmation of its reading of the governing municipal code. Thereafter,IPP immediately began working to comply with the City’s July 26,2016 request for an Application for Revision to an Existing Conditional Use Permit.IPP hired Peak Surveys,Inc. (“Peak”)to coordinate the preparation and submission of the CUP application.On October 28,2016, Peak submitted IPP’s completed Application for Revision to an Existing Conditional Use Permit, supporting documentation including the engineering study,and the application fee of $1,311 to the City. The City accepted the application and the fee. On November 23,2016,Peak received a Letter of Incompleteness from the Senior Planner,Leza Mikhail.Ms.Mikhail’s letter stated,“due to missing information and/or inconsistencies between the project plans and submitted application,it has been determined that the application is incomplete.”Ms. Mikhail then cited another Municipal Code section (not cited by the City Attorney)for additional information/requirements about the antenna array.But,the code sections cited by Ms.Mikhail were spec jfically rejected by the City Attorney’s July 26,2016 letter for the code requirements for the application for CUP to modify existing commercial antennas. On December 20,2016,IPP responded to Ms.Mikhail’s November 23,2016 letter of incompleteness of CUP application with a letter to the City Attorney.IPP questioned the City’s continued inconsistencies of what code sections were applicable for a modification of existing commercial antennas.IPP reminded the City Attorney that IPP had complied with the instructions, code sections and requirements of the City Attorney’s July 26,2016 correspondence.Additionally, since IPP had previously gone through the new CUP application process (CUP No.230),it was not required to repeat the same process for a modjfication to the existing CUP. In response,the City Attorney suggested a meeting.On March 3,2017,IPP sent a letter to the City Attorney requesting an explanation of why the proposed meeting was necessary. On March 6,2017,the City Attorney called IPP’s attorney and explained that the reason for the meeting was that the City did not understand the information provided in IPP’s application and wanted some clarification about the application. Although a meeting did not take place before March 14,2017,WP remains committed to resolving this issue with the City and is still willing to meet with the City Attorney and the Community Development Director. 80 EAsT OcN BouLEvARD •SuITE 200 •LoNG BcH •CAUF0RNIA •g0802 TEL:562-2 I 6-4444 •FAx:562-2 I 6-4445 WWW.MICHELLAWYERS.COM D-4 City Council,City of Rancho Palos Verdes March 21,2017 Page 5 of 5 Conclusion: On October 28,2016,IPP filly complied with the City Attorney’s July 26,2016 requirements for the CUP process,when IPP submitted its CUP application.IPP has filed an application to modify the existing CUP under code section 17.76.020(A)(12)(b)and to paid the applicable application fee. IPP’s antenna array as granted under CUP No.230 has been updated and maintained in accordance with all applicable federal and state regulations.During the years since CUP No.230 was issued,there has been a proliferation of new federal radio spectrum and bandwidth that required IPP to modify its existing antenna array. Thank you for your consideration.We welcome your questions. Sincerely, Michel &Associates,P.C. CDM/cc I 80 EAST OcN BouLEvARD •SuITE 200 •LONG BscH •CALIFORNIA •90802 TEL:562-2 6-4444 •FAX:562-2 I 6-4445 •WWW.MICHELLAWYERS.COM D-5 ORANGE COUNTY |LOS ANGELES |RIVERSIDE |CENTRAL VALLEY gtucker@awattorneys.com (310) 527-6666 2361 Rosecrans Ave., Suite 475 El Segundo, CA 90245 P (310) 527-6660 F (310) 532-7395 AWATTORNEYS.COM 01203.0011/333709.10 April 14, 2017 Eric M. Nakasu, Esq. Michel & Associates 180 East Ocean Blvd., Suite 200 Long Beach, CA 90802 Re: Revision to Conditional Use Permit No. 230 Case No. ZON2016-00517 26708 Indian Peak Road Dear Mr. Nakasu: The purpose of this letter is to: (1) respond to the current status of the code enforcement case No. ZON2016-00517 as well as the legal status of other structures at 26708 Indian Peak Road; (2) respond to Counsel’s letter dated March, 21, 2017; and (3) provide clarity as to what the City of Rancho Palos Verdes (RPV) requires in order to process the property owner’s request to modify the existing Conditional Use Permit (CUP) for the roof-mounted antennae and support pole masts at 26708 Indian Peak Road. A. Background and Granting Original CUP In response to complaints over numerous unpermitted roof-mounted commercial antennae, a code enforcement action was initiated and resulted in the property owner’s application to legalize twelve (12) roof-mounted antennae at 26708 Indian Peak Road. The City Council approved Conditional Use Permit (CUP) No. 230 via Resolutions No. 2004-109 and 2005-75 in December 2004 and July 2005, respectively, approving the use of five (5) roof- mounted antennae support pole masts, with four (4) antennae on each support pole mast, at the subject property. In November 2014, the City found that a total of thirteen (13) roof-mounted antennae support pole masts were installed at the subject property, well over the five (5) Council- approved, roof-mounted antennae. Photographs show that at least one of the antennae located near the building’s ridgeline is attached to a horizontal metal structure. As a result, on November 28, 2014, the City issued a Notice of Violation to the property owner, ordering the removal of all but the five (5) Council-approved vertical antennae from the roof, and requiring that the remaining five (5) vertical roof antennae comply with the Council-adopted conditions of the original CUP No. 230. The City also informed the property owner that an after-the-fact revision of its CUP would be required in order for the City to consider allowing the unpermitted antennae to remain. The colloquy between the City and the property owner that has ensued can be characterized by the City’s insistence that the applicant comply with the RPV Municipal Code E-1 Eric M. Nakasu April 14, 2017 Page 2 01203.0011/333709.10 (RPVMC) and the Council-adopted CUP and the property owner’s position that the additions to the roof-top structures were merely modifications to the existing structures and as such, do not require additional engineering or any other revisions to the CUP. On April 25, 2016, the City Attorney’s office responded to the property owner’s letter dated April 5, 2016, stating that the City would not approve any after-the-fact additions to the roof-mounted antennae and support pole masts beyond those authorized by the Council in the original CUP. The April 25 th letter also stated that the additional antennae structures were “not minor and do in fact have an aesthetic impact that is readily noticeable.” The City demanded that the property owner either remove the unpermitted roof-mounted antennae and support pole masts or submit an application to revise the Conditions of Approval of CUP No. 230. On July 26, 2016, the City directed the property owner to remove all but the five (5) Council-approved, roof-mounted antennae and support pole masts, to remove the large drum structures from the roof, and to submit the standard application for a Revision to an Existing Conditional Use Permit, as well as the information required by RPVMC Section 17.76.020(A)(12)(b), with the exception of the frequency compatibility study (which the City determined was not necessary). B. Completion of the Application for Modification of CUP 230 On October 28, 2016, the City received the application requesting a revision to CUP No. 230 from the property owner 1 . Ms. Mikhail, Senior Planner for the City, responded to the application on November 23, 2016, indicating that there was “missing information and inconsistencies between the project plans and the submitted application,” thereby making the application “incomplete.” Ms. Mikhail also provided a summary of the conditions that needed to be satisfied for the application to be complete in order for the review process to begin. To date the applicant has not remediated these deficiencies. We will once again reiterate what is needed for the review process to proceed to modify CUP No. 230. 1 While new antenna added to an existing tower can be Director-approved under RPVMC Section 17.76.020(A)(12)(b), here there are additional towers and the modifications are substantial compared to what was approved under CUP 230. So a CUP amendment is required. “12. Review Procedure … b. New antennas mounted on existing towers or structures that would not require substantial modifications may be approved by the director with the following required information: i. An approved engineering study addressing structural, power and frequency compatibility with the existing tower and antennas, and ii. A list of all proposed support equipment and anticipated maintenance needs.” E-2 Eric M. Nakasu April 14, 2017 Page 3 01203.0011/333709.10 Elevations per RPV Municipal Code Section 17.76.020(A)(11(a)(i) that, at minimum, detail the height of each roof-mounted antennae, support pole mast, and any additional roof-top structure; Evidence of compliance with RPV Municipal Code Section 17.76.020(A)( 10)(a), (b), i.e. statements from the Federal Aviation Administration (FAA) and the Federal Communication Commission (FCC) that there has been compliance with those agencies’ regulations, copies of permits and licenses issued by those agencies (including the Specialized Mobil Radio license), and proof that all permits and licenses are current and valid; or a statement from the FAA and FCC that no such compliance is necessary; A statement of Anticipated Maintenance Needs in compliance with RPV Municipal Code Section 17.76.020(A)(6), by which the City will be apprised of the frequency of anticipated truck traffic on Indian Peak Road that serves the roof-mounted antennae and support pole masts on the subject property; Clear photos of the roof and all structures thereon from eastern, western, northern and southern perspectives,i.e.a 360° view of the entire assembly; and Evidence that the setbacks are adequate to contain any debris in the event of antenna support mast failure. The review of the property side yard setbacks appear to be approximately five (5) feet and are inadequate to contain debris in the event of a failure. RPV Municipal Code Section 17.76.020(A)(2) requires a minimum of a twenty-five (25) foot setback to each property line, as measured from the base of the equipment. Some of the antenna support pole masts extend more than twelve (12) feet above the roofline. If the property owner will provide the necessary information described above, City staff will process the application to revise the Conditions of Approval of CUP No. 230 2. Please note that the submitted CUP revision requires a public hearing before the City Council pursuant to Condition No. 2 of Resolution No. 2004-109. C. Letter of March 21 and Current Status Counsel’s letter of March 21, 2017 was distributed to the City Council as you intended, but was not discussed with the City Council as the meeting of March 21 was not held due to the lack of a quorum. The City Attorney does consult with the City Council, in closed session, about 2 Note that there are expired Building Permits, including a permit for an unpermitted deck repair, for which the property owner must obtain building permits. This must be corrected before permits could be issued pursuant to a revised CUP. This is discussed in Section D below. E-3 Eric M. Nakasu April 14, 2017 Page 4 01203.0011/333709.10 litigation matters. However, because the code enforcement cases at the subject property are currently on hold, the decision was made not to bring these matters to the attention of the City Council in closed session. The City Attorney’s office believes that this matter is capable of resolution by City staff and the property owner and thus an imminent threat of litigation does not yet exist. However, though we have not shared our position with the City Council, we would like to respond to your March 21 letter by outlining our basic position. The City reminds the property owner, pursuant to Resolutions 2002-27, 2004-109, and 2005-75 that the five (5) Council-approved, roof-mounted antennae and support pole masts “refer only to the antennae and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744.” This means that any suggestion that the additional antennae, antenna support pole masts, and other structures are mere modifications that do not require Council approval is in direct contravention to these binding Resolutions. Accordingly, while we have advised you to submit the application to revise the Conditions of Approval of CUP No. 230 –and it is appropriate for you to exhaust administrative remedies – we also want to be clear on what the City staff position will be with respect to that application. Given that the City Council originally determined in 2005 not to grant the extensive antenna installation requested because of impacts to the surrounding neighborhood and environment, it is the City staff’s position that a request to allow additional antennae and support pole masts aside from the five (5) Council-approved antennae and support pole masts beyond the scope of the original Conditional Use Permit are “new” within the meaning of RPVMC Section 17.76.020(A)(12)(b), that they constitute a “substantial change” within the meaning of both federal and state law, and as such, require a modification of the Conditional Use Permit. As such, the City staff will recommend to the City Council that the property owner’s proposed revisions cannot be supported. However, we also note that the City Council has the authority to accept the proposed application revisions should it choose to do so, and that the public hearing would allow appropriate evidence on such a question. In summary, the City is not attempting to prohibit a wireless carrier from providing telecommunication services. However, it is clear that the City can require that certain conditions be met to provide safety on, and adjacent to, the installation. The City is acting, and will continue to proceed, in conformity with federal and state statutes, and case law. D. Other Matters 1. For the sake of clarity, the City notes that there is also an outstanding issue involving the application for revision of Council-approved CUP No. 230, which must be resolved prior to granting any building permits for the subject antennae. This issue involves existing expired building permits, and the construction and/or repair of a deck/balcony that was E-4 Eric M. Nakasu April 14, 2017 Page 5 01203.0011/333709.10 undertaken without having acquired the appropriate building permit. In order to remedy this issue, the property owner must reinstate the expired building permits, and re-apply to re-initiate the after-the-fact Plan Check process for the deck/balcony, only after which can the City issue the required building permit. 2. In order to resolve these issues to the satisfaction of both parties, as indicated above, the City is willing to suspend all code enforcement actions so long as the property owner processes its application for the CUP revision in good faith and makes the corrections on the application identified in Section B above by May 15, 2017. The City also invites the applicant and legal counsel to meet with the City to mitigate any misunderstanding in communication. 3. The City, to accommodate any prior misunderstandings, will allow the thirty (30)- day period to review the revisions to the application to commence once the required information is submitted. The enforcement proceedings in 2004-2005 took far too long, and the current process has now stretched into over a year. As previously stated, we are happy to meet and outline a process to identify issues and ensure appropriate information can timely be generated for the City Council to make a decision. We hope we can agree to a specific schedule on which to proceed. Without such agreement, the matter would need to revert to the code enforcement process. Very truly yours, ALESHIRE & WYNDER, LLP Glen E. Tucker Attorney cc: City Council Doug Willmore, City Manager David Aleshire, City Attorney Ara Mihranian, Director of Community Development Leza Mikhail, Senior Planner Bea Stone, 2488 Townsgate Rd., #D, Westlake Village, CA 91361 E-5 RESOLUTION NO. 2005-75 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING REVISIONS TO CONDITION NO. 19 OF CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE - FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY. WHEREAS, on June 21, 2001, the applicant/appellant, Mr. James A. Kay, Jr., submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after - the -fact approval to establish the then - existing 5- masted, roof - mounted antennae and related support structures and equipment on the site for commercial use; and, WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ( "CEQA "), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt Class 1, Section 15301); and, WHEREAS, after the submittal of these applications on June 21, 2001, and while the Planning Commission was conducting the public hearings on this application, the applicant installed at least twelve (12) additional vertical antenna masts with attached antennae onto the previously existing roof - mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof - mounted antenna support structure and array; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001 -43 conditionally approving the project; and, WHEREAS, Mr. Kay timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with "all conditions regulating the location, number and placement of antennas on the project site.... "; and, F-1 WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on February 19, 2002, March 19, 2002, March 25, 2002 and April 16, 2002, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the City Council, on April 16, 2002, adopted Resolution No. 2002 -27, thereby denying the appeal, modifying certain conditions of approval and conditionally approving the project; and, WHEREAS, on May 15, 2002, Mr. Kay filed suit against the City in Federal District Court in order to overturn the City's decision on the grounds, among other things, that it violated the Telecommunications Act of 1996; and, WHEREAS, on July 14, 2004, the United States District Court for the Central District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the "City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A. Kay, Jr. to use his five mast antenna structure for commercial purposes, subject to reasonable conditions "; and, WHEREAS, the City revised the conditions of approval for Conditional Use Permit No. 230 to allow the commercial use of Mr. Kay's 5- masted, roof - mounted antenna array, which array existed at the time and was depicted on plans provided to the City of Rancho Palos Verdes with the original submittal of the application for Conditional Use Permit No. 230 on June 21, 2001; and, WHEREAS, this matter was agendized for the City Council's review and consideration on October 5, 2004, and November 16, 2004, but on both occasions the matter was continued to a subsequent City Council meeting at Mr. Kay's request in order to allow his legal counsel to discuss additional proposed revisions to the conditions of approval for Conditional Use Permit No. 230 with the City Attorney; and, WHEREAS, the City Council, on December 21, 2004, adopted Resolution No. 2004 -109, thereby revising eight (8) conditions of approval for Conditional Use Permit No. 230 pursuant to the July 14, 2004, order of the United. States District Court; and, WHEREAS, Mr. Kay subsequently petitioned the United States District Court to vacate the conditions of approval imposed by Resolution No. 2004 -109; and, WHEREAS, on April 4, 2005, the United States District Court issued an order in response to Mr. Kay's petition, finding that the provisions of Condition No. 19 of Conditional Use Permit No. 230 requiring "that Mr. Kay maintain the property as his primary residence were] not reasonable," but also finding that all other conditions of approval imposed by Resolution No. 2004 -109 were reasonable; and, Resolution No. 2005 -75 Page 2 of 9F-2 WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly- noticed public hearing on July 5, 2005 to consider revised language for Condition No. 19 of Conditional Use Permit No. 230, at which time all interested parties were given an opportunity to be heard and present evidence: NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: Section 1: The City Council hereby makes the following findings of fact with respect to the application for Conditional Use Permit No. 230 to legalize the use of existing roof - mounted and interior antennae and related support structures and equipment on the site for commercial purposes: A. For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof - mounted antenna array" refer on to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744. The terms and phrases "existing antenna(e)" and "existing roof - mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above - mentioned photographs, regardless whether these parts, elements, components or other features were, or are, physically present on the subject property as of the effective date of this Resolution. B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the development standards for commercial antennae, as specified in RPVDC Sections 17.76.020(A)(2) through (A)(10). The site provides for at least two (2) off- street parking spaces for maintenance and service vehicles and the existing roof - mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights - of -way, this foliage does not adequately screen any antenna support structures or antennae on the roof of the structure from view from many surrounding residences in the neighborhood and from nearby public rights -of -way, especially those residences located directly across the street and the residences located downslope from the rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to require the removal of all but five (5) of the existing eight- and -one- half -foot long masts and two of the television antennae from the roof of the residence. With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the Resolution No. 2005 -75 Page 3of9 F-3 City on June 21, 2001, the aesthetic impacts of the antenna array will be no different or more significant with its conversion to commercial use than they were for amateur use only. This condition is necessary to maintain the appearance of the structure as a single - family residence, and to integrate the commercial use into the residential neighborhood. In this case, the imposition of stricter limitations upon both commercial and non- commercial antennae than are otherwise required by the City's Development Code is necessary to protect the aesthetics of the neighborhood while still allowing reasonable use of the site to transmit on both amateur and commercial frequencies, because the applicant's representatives have testified that the antennae at the site can be "diplexed" so that each antenna can be used to transmit on two different frequencies at the same time. By comparison, allowing the applicant to use all of the antennae that were placed on the property in 2001 while this application was pending before the Planning Commission will dramatically alter the residential character of the home and create the appearance of a commercial antenna farm, which will adversely affect the surrounding residential neighborhood. C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street. Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval. D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna array will be no different or more significant with its conversion to commercial use than they were for amateur use only. However, the approval of this proposal will be conditioned to require maintenance of the roof - mounted antennae and support structures that are permitted by this conditional use permit in a neutral color so as to blend better into the background sky and the gray color of the existing antenna support structure. In addition, no future changes to the location or configuration or which increase the number or the height of any approved antennae or element of the remaining roof - mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the City Council, in order to prevent further visual intrusion upon the surrounding neighborhood. Resolution No. 2005 -75 Page 4 of 9 F-4 E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." F. The proposed five -mast antenna structure is contrary to the General Plan, but is being approved by the City Council, due to the orders of the United States District Court that were issued on July 14, 2004 and April 4, 2005. The subject property and the Grandview neighborhood are designated Residential, 4 -6 DU /acre, which is a land use designation intended to accommodate medium - density neighborhoods of detached, single - family homes and related accessory uses and structures. No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past six years. The evidence demonstrated that, in the past, the property had not been maintained in a manner consistent with the quality of the surrounding neighborhood prior to the initial hearings before the Planning Commission in 2001, and the residential character of the neighborhood was eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, the approval of the proposed project includes conditions to address these past deficiencies. The conditions include: 1) requiring landscape and maintenance services in the event that the home not properly maintained in conformance with the conditions; 2) requiring the removal of all but five (5) of the existing vertical antenna masts, which are the most visible exterior evidence of the commercial use of the property; and 3) requiring the house to be maintained in a manner suitable for occupancy as a single - family residence. These conditions will allow for the provision of wireless telecommunications services at this location, while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood. G. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40. H. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all but five (5) of the existing eight and one -half feet -long roof - mounted antenna masts and two of the television antenna(e), and prohibiting any further modifications to them without first obtaining approval of modification to this conditional use permit; limiting regular maintenance hours to 8:00 AM to 5:00 PM, Monday through Friday; requiring the property to be landscaped and painted and Resolution No. 2005 -75 Page 5 of 9 F-5 that weekly landscape and general maintenance services shall be provided by contract with a qualified provider of such services if the residence is not properly maintained in accordance with the conditions; requiring the house to be maintained in a manner suitable for occupancy as a single - family residence; requiring the applicant to obtain and maintain a valid business license; and reviewing the project for compliance with all conditions of approval within one hundred twenty (120) days of the date of the City's final action on the application. These conditions are imposed through the City's authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996. I. The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, orthat the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property. Section 2: The City Council finds that the proposed project —as conditioned — qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination." As conditioned, the existing roof - mounted antenna support structure and array would be modified so that most of the antennae are removed or relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the property will be required to be maintained in an appropriate manner that is consistent with City standards. Without the imposition of these conditions, and if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus would require further analysis pursuant to the requirements of CEQA. Section 3: The City Council finds that the approval of Conditional Use Permit No. 230 —as conditioned —is consistent with the City's Wireless Communications Antenna Development Guidelines. This application was heard by the Planning Commission within the time lines established by the State's Permit Streamlining Act and CEQA (Guideline No. 1). Although the Guidelines express a preference for existing, non - single - family structures as antenna sites (Guideline No. 2), installations on single- family residences are not prohibited and have been approved previously elsewhere in the City. In addition, the conditions of approval for this project will help to enhance the residential character of the neighborhood by requiring the applicant to upgrade the appearance and maintenance of the property. As a condition of approval, most of the exterior antennae will be removed, so the project will have no significant impact upon any view corridors (Guideline No. 4). The removal of these antennae will also serve to balance the aesthetic impacts of the antennae upon the neighborhood with the applicant's financial benefit from the operation of the Resolution No. 2005 -75 Page 6of9 F-6 commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed from the roof of the house, they will be more effectively screened from view from adjacent properties or rights -of -way (Guideline No. 9). Section 4: The City Council finds that the approval of Conditional Use Permit No. 230 —as conditioned —is consistent with the orders of the United States District Court for the following reasons: A. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably discriminate among providers of functionally equivalent services... and does] not prohibit or have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (13)(i)(1) and (11)). In reviewing all of the applications to provide personal wireless services on other residentially -zoned property within the City, the City has applied consistently its regulations to these facilities so as to approve facilities that are compatible with surrounding uses and to modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved with conditions requiring the removal of most of the exterior antennae because it will otherwise result in adverse visual and aesthetic impacts upon adjacent properties. The City's conditional approval of this specific proposal does not prohibit the applicant from providing wireless communications services because the applicant still has the ability to provide these services from the remaining exterior antennae. The applicant's representative has stated at a public hearing that the applicant has the capability to "diplex" the antennae in order to utilize more frequencies. The applicant has also admitted that he has transmitted commercially from the site since 1998, allegedly from antennae located inside the residence. The City has previously approved applications for commercial antennae for a variety of commercial wireless services and service providers, including applications for properties that were zoned or used for single - family residential purposes. Accordingly, the conditional approval of this particular application also does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes. B. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on September 19, 2001. The City has acted on the applicant's request for Conditional Use Permit No. 230 "within a reasonable period of time afterthe request was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (13)(ii)). This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act. The only delays in the processing of this application are attributable to the applicant's request for a waiver of the penalty fee (which was denied by the City Council on September 18, 2001); the applicant's request for a continuance of this application from the Planning Commission meeting of October 23, 2001 to the meeting of November 13, 2001; the applicant's appeal of the Planning Commission's conditional approval and request for continuance of the Resolution No. 2005 -75 Page 7 of 9 F-7 appeal from the City Council meeting of February 19, 2002 to the meeting of March 19, 2002; and the applicant's request for continuance of the reconsideration of the appeal from the City Council meeting of October 5, 2004, to the meetings of November 16, 2004 and then again to December 21, 2004. . C. In conditionally approving the application for Conditional Use Permit No. 230, the City has not "[regulated] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required modifications to the existing antennae on the site are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the antennae upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The Planning Commission and City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers. D. The previous provisions of Condition No. 19 of Conditional Use Permit No. 230 requiring that Mr. Kay to occupy the property at 26708 Indian Peak Road as his primary residence have been eliminated. However, language requiring the property to be maintained in a condition suitable for such occupancy has been retained in the revised condition. The City Council finds that the revised language of Condition No. 19 will ensure that, notwithstanding the roof - mounted antenna array, the property will be maintained so that it can be used as, and have the appearance of, an occupied, single - family residence, which was the City Council's original intent in adopting Condition No. 19. Section 5: The City Council is approving the commercial use of the pre- existing five- masted roof - mounted antennae array to comply with the orders of the United States District Court issued on July 14, 2004, and April 4, 2005, in the case of Kay v. Rancho Palos Verdes. If either or both of these orders are reversed, the City Council hereby reserves the right to vacate this decision and resolution and reinstate its prior decision or, in the alternative, to re -open the public hearing. Section 6: Modifications to the conditions of approval entitle the applicant/appel - lant to a refund of one -half of the appeal fee, pursuant to Rancho Palos Verdes Development Code Section 17.80.120. Resolution No. 2005 -75 Page 8 of 9 F-8 Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City's final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction. Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 230, thereby approving revisions to Condition No. 19 of Conditional Use Permit No. 230, thereby approving the commercial use of certain antennae and related support structures and equipment on the site of a single - family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit W, attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare. PASSED, APPROVED, AND ADOPTED this 5th day of July 2005. Attest: State of California ) County of Los Angeles ) ss City of Rancho Palos Verdes ) I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2005 -75 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on July 5, 2005. Resolution No. 2005 -75 Page 9of9 F-9 RESOLUTION NO. 2005-75 - EXHIBIT 'A' CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT NO. 230 26708 Indian Peak Road) The following condition of approval from Resolution No. 2002 -27 and Resolution No. 2004 -109 is hereby revised to read as follows: 19. Within ninety (90) days of the date of the City's final action on this application, the applicant shall complete the necessary improvements to make the house habitable, including a functional kitchen, toilet and bathing facilities, heating, and utility connections for gas, electricity, water and sewer, which shall be maintained continuously, regardless of whether or not the house is actually occupied. The applicant shall arrange for the provision of weekly landscape and maintenance service at the property to ensure that the structure and grounds are maintained free from litter, debris, and overgrown vegetation in compliance with the City's Municipal Code so as not to become an eyesore. Except as expressly modified herein, all of the prior recitals, findings of fact, conclusions of law and conditions of approval from Resolution No. 2002 -27, as originally adopted by the Rancho Palos Verdes City Council on April 16, 2002, and Resolution No. 2004 -109, as originally adopted by the Rancho Palos Verdes City Council on December 21, 2004, remain unchanged. Resolution No. 2005 -75 Exhibit A Page 1 of 1 F-10 RESOLUTION NO. 2004-109 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE - FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY. WHEREAS, on June 21, 2001, the applicant/appellant, Mr. James A. Kay, Jr., submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after - the -fact approval to establish the then - existing 5- masted, roof - mounted antennae and related support structures and equipment on the site for commercial use; and, WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ( "CEQA "), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt (Class 1, Section 15301); and, WHEREAS, after the submittal of these applications on June 21, 2001, and while the Planning Commission was conducting the public hearings on this application, the applicant installed at least twelve (12) additional vertical antenna masts with attached antennae onto the previously existing roof - mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof - mounted antenna support structure and array; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001 -43 conditionally approving the project; and, WHEREAS, Mr. Kay timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with "all conditions regulating the location, number and placement of antennas on the project site.... "; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on February 19, 2002, March 19, 2002, March 25, 2002 and April 16, 2002, at which time all interested parties were given an opportunity to be heard and present evidence; and, G-1 WHEREAS, the City Council, on April 16, 2002, adopted Resolution No. 2002 -27, thereby denying the appeal, modifying certain conditions of approval and conditionally approving the project; and, WHEREAS, on May 15, 2002, Mr. Kay filed suit against the City in Federal District Court in order to overturn the City's decision on the grounds, among other things, that it violated the Telecommunications Act of 1996; and, WHEREAS, on July 14, 2004, the United States District Court for the Central District of California ruled in the case of Kay v. Rancho Palos Verdes and ordered the "City Council of the City of Rancho Palos Verdes to issue a new resolution allowing James A. Kay, Jr. to use his five mast antenna structure for commercial purposes, subject to reasonable conditions "; and, WHEREAS, the City revised the conditions of approval for Conditional Use Permit No. 230 to allow the commercial use of Mr. Kay's 5- masted, roof - mounted antenna array, which array existed at the time and was depicted on plans provided to the City of Rancho Palos Verdes with the original submittal of the application for Conditional Use Permit No. 230 on June 21, 2001; and, WHEREAS, this matter was agendized for the City Council's review and consideration on October 5, 2004, and November 16, 2004, but on both occasions the matter was continued to a subsequent City Council meeting at Mr. Kay's request in order to allow his legal counsel to discuss additional proposed revisions to the conditions of approval for Conditional Use Permit No. 230 with the City Attorney; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly- noticed public hearing on October 5, 20049 November 16, 2004, and December 21, 2004, to reconsider Conditional Use Permit No. 230, at which time all interested parties were given an opportunity to be heard and present evidence: NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: Section 1: The City Council hereby makes the following findings of fact with respect to the application for Conditional Use Permit No. 230 to legalize the use of existing roof - mounted and interior antennae and related support structures and equipment on the site for commercial purposes: A. For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof - mounted antenna array" refer onl - to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744. The terms and phrases "existing antenna(e)" and "existing roof - mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above - mentioned photographs, regardless whether these parts, elements, components or otherfeatures were, or are, physically present on the subject property as of the effective date of this Resolution. B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the Resolution No. 2004 -109 Page 2 of 7 G-2 development standards for commercial antennae, as specified in RPVDC Sections 17.76.020(A)(2) through (A)(10). The site provides for at least two (2) off - street parking spaces for maintenance and service vehicles and the existing roof - mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights -of -way, this foliage does not adequately screen any antenna support structures or antennae on the roof of the structure from view from many surrounding residences in the neighborhood and from nearby public rights -of -way, especially those residences located directly across the street and the residences located downslope from the rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to require the removal of all but five (5) of the existing eight- and - one - half -foot long masts and two of the television antennae from the roof of the residence. With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna arraywill be no different or more significant with its conversion to commercial use than they were for amateur use only. This condition is necessary to maintain the appearance of the structure as a single - family residence, and to integrate the commercial use into the residential neighborhood. In this case, the imposition of stricter limitations upon both commercial and non - commercial antennae than are otherwise required by the City's Development Code is necessary to protect the aesthetics of the neighborhood while still allowing reasonable use of the site to transmit on both amateur and commercial frequencies, because the applicant's representatives have testified that the antennae at the site can be "diplexed" so that each antenna can be used to transmit on two different frequencies at the same time. By comparison, allowing the applicant to use all of the antennae that were placed on the property in 2001 while this application was pending before the Planning Commission will dramatically alter the residential character of the home and create the appearance of a commercial antenna farm, which will adversely affect the surrounding residential neighborhood. C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street. Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval. D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. With the removal of all but the five (5) vertical antenna masts that existed on June 1, 2001 and were depicted on the project plans submitted to the City on June 21, 2001, the aesthetic impacts of the antenna array will be no different or more significant with its conversion to commercial use than they were for amateur use only. However, the approval of this proposal will be conditioned to require maintenance of the roof - mounted antennae and support structures that are permitted by this conditional use permit in a neutral color so as to blend better into the background sky and the gray color of the existing antenna support Resolution No. 2004 -109 Page 3of7 G-3 structure. In addition, no future changes to the location or configuration or which increase the number or the height of any approved antennae or element of the remaining roof - mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the City Council, in order to prevent further visual intrusion upon the surrounding neighborhood. E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." F. The proposed five -mast antenna structure is contrary to the General Plan, but is being approved by the City Council, due to the order of the United States District Court that was issued on July 14, 2004. The subject property and the Grandview neighborhood are designated Residential, 4 -6 DU /acre, which is a land use designation intended to accommodate medium - density neighborhoods of detached, single - family homes and related accessory uses and structures. No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past six years. The evidence demonstrated that, in the past, the property had not been maintained in a manner consistent with the quality of the surrounding neighborhood prior °to the initial hearings before the Planning Commission in 2001, and the residential character of the neighborhood was eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, the approval of the proposed project includes conditions to address these past deficiencies. The conditions include: 1) requiring landscape and maintenance services in the event that the home not properly maintained in conformance with the conditions; 2) requiring the removal of all but five (5) of the existing vertical antenna masts, which are the most visible exterior evidence of the commercial use of the property; and 3) requiring the house to be occupied and maintained in an appropriate manner. These conditions will allow for the provision of wireless telecommunications services at this location, while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood. G. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40. H. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all but five (5) of the existing eight and one -half feet -long roof - mounted antenna masts and two of the television antenna(e), and prohibiting any further modifications to them without first obtaining approval of modification to this conditional use permit; limiting regular maintenance hours to 8:00 AM to 5:00 PM, Monday through Friday; requiring the property to be landscaped and painted and that weekly landscape and general maintenance services shall be provided by contract with a qualified provider of such services ifthe residence is not properly maintained in accordance with the conditions; requiring the house to be occupied; requiring the applicant to obtain and maintain a valid business license; and reviewing the Resolution No. 2004 -109 Page 4 of 7 G-4 project for compliance with all conditions of approval within one hundred twenty (120) days of the date of the City's final action on the application. These conditions are imposed through the City's authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996. The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property. Section 2: The City Council finds that the proposed project as conditioned — qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act CEQA) under Section 15301. The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination." As conditioned, the existing roof - mounted antenna support structure and array would be modified so that most of the antennae are removed or relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the property will be required to be occupied and maintained in an appropriate manner that is consistent with City standards. Without the imposition of these conditions, and if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus would require further analysis pursuant to the requirements of CEQA. Section 3: The City Council finds that the approval of Conditional Use Permit No. 230 — as conditioned —is consistent with the City's Wireless Communications Antenna Development Guidelines. This application was heard by the Planning Commission within the time lines established by the State's Permit Streamlining Act and CEQA (Guideline No. 1). Although the Guidelines express a preference for existing, non - single - family structures as antenna sites Guideline No. 2), installations on single - family residences are not prohibited and have been approved previously elsewhere in the City. In addition, the conditions of approval for this project will help to enhance the residential character of the neighborhood by requiring the applicant to upgrade the appearance and maintenance of the property. As a condition of approval, most of the exterior antennae will be removed, so the project will have no significant impact upon any view corridors Guideline No. 4). The removal of these antennae will also serve to balance the aesthetic impacts of the antennae upon the neighborhood with the applicant's financial benefit from the operation of the commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed from the roof of the house, they will be more effectively screened from view from adjacent properties or rights -of -way (Guideline No. 9). Section 4: The City Council finds that the approval of Conditional Use Permit No. 230 — as conditioned is consistent with the order of the United States District Court for the following reasons: A. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably discriminate among providers of functionally equivalent services... and [does] not prohibitor have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (13)(i)(1) and (II)). In reviewing all of the applications to provide personal wireless services on other residentially -zoned property within the City, the City has applied consistently its regulations to these facilities so as to approve facilities that are Resolution No. 2004 -109 Page 5of7 G-5 compatible with surrounding uses and to modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved with conditions requiring the removal of most of the exterior antennae because it will otherwise result in adverse visual and aesthetic impacts upon adjacent properties. The City's conditional approval of this specific proposal does not prohibit the applicant from providing wireless communications services because the applicant still has the ability to provide these services from the remaining exterior antennae. The applicant's representative has stated at a public hearing that the applicant has the capability to "diplex" the antennae in order to utilize more frequencies. The applicant has also admitted that he has transmitted commercially from the site since 1998, allegedly from antennae located inside the residence. The City has previously approved applications for commercial antennae for a variety of commercial wireless services and service providers, including applications for properties that were zoned or used for single - family residential purposes. Accordingly, the conditional approval of this particular application also does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes. B. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on September 19, 2001. The City has acted on the applicant's request for Conditional Use Permit No. 230 "within a reasonable period of time after the request [was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (13)(ii)). This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act. The only delays in the processing of this application are attributable to the applicant's request for a waiver of the penalty fee (which was denied by the City Council on September 18, 2001); the applicant's request for a continuance of this application from the Planning Commission meeting of October 23, 2001 to the meeting of November 13, 2001; the applicant's appeal of the Planning Commission's conditional approval and request for continuance of the appeal from the City Council meeting of February 19, 2002 to the meeting of March 19, 2002; and the applicant's request for continuance of the reconsideration of the appeal from the City Council meeting of October 5, 2004, to the meetings of November 16, 2004 and then again to December 21, 2004. C. In conditionally approving the application for Conditional Use Permit No. 230, the City has not "[regulated] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning such emissions" (47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required modifications to the existing antennae on the site are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the antennae upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The Planning Commission and City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the Resolution No. 2004 -109 Page 6 of 7 G-6 aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers. Section 5: The City Council is approving the commercial use of the pre- existing five - masted roof - mounted antennae array to comply with the order of the United States District Court issued on July 14, 2004, in the case of Kay v. Rancho Palos Verdes. If that order is reversed, the City Council hereby reserves the right to vacate this decision and resolution and reinstate its prior decision or, in the alternative, to re -open the public hearing. Section 6: Modifications to the conditions of approval entitle the applicant/appellant to a refund of one -half of the appeal fee, pursuant to Rancho Palos Verdes Development Code Section 17.80.120. Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City's final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction. Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council, the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 230, thereby approving the commercial use of certain antennae and related support structures and equipment on the site of a single - family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit W, attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare. PASSED, APPROVED, AND ADOPTED this 21St day of December 2004. J Mayor Attest: fflagft W • 31F., IR. % WOM10-__ State of California ) County 9f Los Angeles ) ss City of Rancho Palos Verdes ) I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2004 -109 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on December 21, 2004. Resolution No. 2004 -109 Page 7of7 G-7 RESOLUTION NO. 2004-109 - EXHIBIT 'A' CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT NO. 230 26708 Indian Peak Road) The following conditions of approval from Resolution No. 2002 -27 are hereby revised to read as follows: 2. This approval is for the use of antennae and related support structures and equipment on the site of a single - family residence in the Grandview community for commercial purposes. The commercial use of the property is conditioned upon the following modifications: a. The roof - mounted equipment shall consist of the existing roof - mounted antenna support structured and a maximum of five (5) vertical masts, each of which shall not exceed eight and one -half (8Y2) feet in height, as measured from the point where the mast meets the roof surface. b. Each of the five masts may have up to four (4) radiating elements affixed thereon, similar to those that currently are present at the site, provided that they do not extend any higher than the mast itself and that each antenna or radiating element does not project more than two feet horizontally from the center of the mast. c. In addition, two (2) television antennae also may remain on the roof of the residence, so long as they do not exceed eight and one -half (8y/) feet in height, as measured from the point where they are attached to the roof surface; that the horizontal boom of each antenna does not exceed six feet in length; that no radiating element or antenna attached to the boom exceeds two feet in length, and that all of the antennae and support structures on the property are maintained in compliance with the Municipal Code. d. The Director of Planning, Building and Code Enforcement shall review the exterior masts and antennae to ensure compliance with this condition. Any additional exterior antennae, masts or other antenna support structure(s) shall require further approval or modification of this conditional use permit. e. The exterior masts and antennae described in this condition may be used for either commercial or non - commercial purposes. The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions. Otherwise, any substantive change, such as the enlargement, expansion or Resolution No. 2004 -109 Exhibit A Page 1 of 3 G-8 addition to, the exterior masts and antennae that this approval allows outside of the existing residential structure shall require approval of a revision to Conditional Use Permit No. 230 by the City Council and shall require a new and separate environmental review. 7. The applicant shall submit a plan depicting the five (5) roof - mounted masts that are to be retained pursuant to this approval, within (90) ninety days of the date of the City's final action on this application. The applicant shall obtain a building permit and any other approval required by the Building Code to modify or construct the masts and attached antennae on the property. 9. At all times, the applicant shall maintain the color of the entirety of the roof - mounted antenna support structure and all of the antennae and radiating elements located thereon, in a neutral color, such as gray, gray -green or gray - blue, that will blend with the background foliage and the sky, to the satisfaction of the Director. At the Director's discretion, all or any portion of the antenna array may be left unpainted if, in its unpainted state, it conforms to the intent of this condition and substantially matches the existing gray color of the antenna support structure. However, the Director reserves the right to require the applicant to paint all or portions of the antenna support structure and array at any time that the Director finds that additional painting of some elements of the antenna support structure and array is necessary to further reduce the aesthetic impacts of the roof - mounted antenna support structure and the radiating elements and antennae located thereon. If the Director of Planning, Building and Code Enforcement requires the applicant to paint any portion of the antenna support structure or antennae located thereon to comply with this condition, the applicant shall provide the Director of Planning, Building and Code Enforcement with a selection of possible colors for approval prior to the painting of any portion of the antenna support structure and array. 10. The five roof - mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the City Council, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. Existing masts and antennae that are permitted by this approval may be removed and replaced for maintenance and /or repair as long as the replacement masts or antennae are the same or less in height, length and mass and in the same location as the approved masts and antennae, and provided that the total number of masts and antennae is not increased. 16. No lights may be placed upon the roof - mounted antenna support structure, nor may it be otherwise illuminated in any manner. In the event that the applicant is required by the Federal Aviation Administration (FAA) to illuminate any portion of the roof - mounted antenna support structure in order to comply with the provisions of 14 CFR Part 77 or any other applicable state or federal regulations regarding obstruction marking and lighting, the applicant may seek a modification Resolution No. 2004 -109 Exhibit A Page 2of3 G-9 of this provision from the Director of Planning, Building and Code Enforcement. This condition shall not restrict the use of hand -held lighting, nor the use of temporary lighting during the performance of emergency repairs. 19. Within ninety (90) days of the date of the City's final action on this application, the property shall be occupied by the owner, or some other person chosen by the owner, as that person's primary residence. The necessary improvements to make the house habitable shall be completed within the initial 90 -day period including a functional kitchen, toilet and bathing facilities and utility connections for gas, electricity, water and sewer and shall be maintained continuously. The applicant shall arrange for the provision of weekly landscape and maintenance service at the property to ensure that the structure and grounds are maintained free from litter, debris, and overgrown vegetation so as not to become an eyesore, if the resident is not maintaining the property as required by these conditions of approval and by the City's Municipal Code. 22. At approximately one hundred twenty (120) calendar days from the date of the City's final action on this application, the City Council shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked. Within the initial 120 -day permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 120 -day review process by the City Council. 25. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing of all radio facilities or frequencies that are licensed by the FCC to this site. In addition, within thirty (30) days of this approval, and annually thereafter, the applicant also shall provide to the City documentation demonstrating that the site is being operated in accordance with FCC emission requirements and limits, considering all facilities that are licensed by the FCC to operate at the site or that use the site pursuant to an amateur radio operator's license. The listing of all radio facilities or frequencies licensed by the FCC to the site will not become part of the public record, to the extent allowed by state law. If the City receives a demand to view this information, the City will timely notify the applicant so as to provide an opportunity for the applicant to object to the demand. Except as expressly modified herein, all of the prior recitals, findings of fact, conclusions of law and conditions of approval from Resolution No. 2002 -27, as originally adopted by the Rancho Palos Verdes City Council on April 16, 2002, remain unchanged. Resolution No. 2004 -109 Exhibit A Page 3 of 3 G-10 RESOLUTION NO. 2002-27 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF CERTAIN ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE-FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY WHEREAS, on October 22, 1998, the applicant, James A. Kay, Jr., received approval of an application for Site Plan Review No. 8334 for after-the fact approval of an existing roof-mounted antenna support structure and array for non-commercial radio communications, which was conditioned expressly to exclude commercial operations; and, WHEREAS, on November 4, 1998, prior to the expiration of the 15-day appeal period for Site Plan Review No. 8334, the City Council adopted Urgency Ordinance No. 341 U, which established a moratorium on the processing of all antenna applications, including those applications upon which the City had acted but for which the appeal period had not yet expired; and, WHEREAS, on April 16, 1999, the antenna moratorium was lifted, the City's approval of Site Plan Review No. 8334 was voided, and the existing roof-mounted antenna support structure and array were determined by Staff to be exempt from City permits for non-commercial use pursuant to Section 17.76.020(C)(3)(c)(ii)of the Rancho Palos Verdes Development Code; and, WHEREAS, on October 15, 1999, Mr. Kay submitted an application for Site Plan Review No. 8736 to the Department of Planning, Building and Code Enforcement for a 198-square-foot single-story storage room addition to the rear side of the house, which proposed a large number of electrical outlets, the installation of two dedicated air conditioning condensers for the room and no interior access to the rest of the house; and although Staff suspected that the addition was intended to house commercial radio transmitters, the City did not withhold approval of Site Plan Review No. 8736 based upon these suspicions; and, WHEREAS, Staff subsequently reviewed Federal Communications Commission FCC) licensing records and found that several active and pending commercial radio frequencies were licensed to Mr. Kay's property on Indian Peak Road, and turned this FCC licensing information over to the City Attorney's office; and, WHEREAS, the City obtained warrants from the court and retained an expert in the field of radio transmissions, Dr. Henry Richter, to monitor transmissions from the site in connection with an investigation of the alleged commercial use of the existing antennae H-1 and found that commercial frequencies were in use at the site. Subsequently, on April 13, 2000, the City filed a complaint for preliminary and permanent injunction against Mr. Kay to prevent the non-permitted use of commercial antennae on the site, and this case currently is pending; and, WHEREAS, Section 17.76.020(A)of the Rancho Palos Verdes Development Code requires an individual to obtain a conditional use permit to install or operate a commercial antenna within the City of Rancho Palos Verdes. Section 17.96.090 of the Rancho Palos Verdes Development Code further defines the term "commercial antenna" as follows: Commercial Antenna' means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, commercial purposes' shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). `Commercial antennas' shall not include antennas owned or operated by governmental agencies; and micro-cell cellular antennas, owned and operated by state licensed cellular telephone utility companies, located on existing utility poles within the public right-of-way." Under these provisions of the Rancho Palos Verdes Development Code, the applicant, Mr. Kay, was required to obtain a conditional use permit from the City to use his existing antennae and antenna support structure to broadcast on frequencies, deemed commercial by the FCC; and, WHEREAS, on June 21, 2001, Mr. Kay submitted applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 for after-the-fact approval to establish the existing antennae and related support structures and equipment on the site for commercial use, although Mr. Kay contested that the application was after-the-fact and requested a waiver of the penalty fee; and, WHEREAS, on September 4, 2001 and September 18, 2001, the City Council considered Mr. Kay's request for a waiver of the penalty fee for Conditional Use Permit No. 230, and denied the request based upon inability to make the fee waiver findings set forth in Section 17.78.010(B) of the Rancho Palos Verdes Development Code; and, WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No. 744 were deemed complete by Staff; and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines, Resolution No. 2002-27 Page 2 of 17 H-2 California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No. 230 and Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt Class 1, Section 15301); and, WHEREAS, after the submittal of these applications on June 21, 2001,and while the Planning Commission was conducting the public hearings on this application,the applicant installed at least eleven (11) additional vertical antenna masts with attached antennae onto the previously existing roof-mounted antenna support structure and array, including additional cables and conduits for the additional antennae; and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof-mounted antenna support structure and array; and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, November 13, 2001, and November 15, 2001, at which time all interested parties were given an opportunity to be heard and present evidence; and, WHEREAS, the applicant's representative, Mr. Miner, testified that all of the antennae that currently are located at the subject property could be used either for commercial or non-commercial transmissions; and, WHEREAS, the applicant's representative, Mr. Schmitz, during the public hearing, stated that the applicant would be willing to comply with conditions that would improve the appearance of the property, such as painting the residence and planting landscaping, and having someone live at the residence, to ensure that the residence is in keeping with the residential character of the neighborhood and to establish the proposed commercial use as being clearly ancillary to the principal residential use of the property, so that the Commission could make a finding of consistency of the proposed commercial use with the City's General Plan; and, WHEREAS, the Planning Commission, on November 15, 2001, adopted P.C. Resolution No. 2001-43 conditionally approving the project; and, WHEREAS, the Applicant timely appealed conditional approval by letter dated November 28, 2001, based on disagreement with "all conditions regulating the location, number and placement of antennas on the project site...." Resolution No. 2002-27 Page 3 of 17 H-3 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: Section 1: The City Council hereby makes the following findings of fact with respect to the application for Conditional Use Permit No. 230 to legalize the use of existing roof-mounted and interior antennae and related support structures and equipment on the site for commercial purposes: A. For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof- mounted antenna array" refer only to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No. 744. The terms and phrases"existing antenna(e)" and "existing roof-mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above-mentioned photographs, regardless whether these parts, elements, components or other features were, or are, physically present on the subject property as of the effective date of this Resolution. B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the development standards for commercial antennae, as specified in RPVDC Sections 17.76.020(A)(2)through (A)(10). The site provides for two (2) off-street parking spaces for maintenance and service vehicles and the existing roof-mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights- of-way, this foliage does not adequately screen any antenna support structures or antennae on the roof of the structure from view from many surrounding residences in the neighborhood and from nearby public rights-of-way, especially those residences located directly across the street and the residences located down slope from the rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to require the removal of all but two(2) of the existing eight-and-one- half-foot long masts and two of the television antennae from the roof of the residence. This condition is necessary to maintain the appearance of the structure as a single-family residence, and to integrate the commercial use into the residential neighborhood. In this case, the imposition of stricter limitations upon both commercial and non-commercial antennae than are otherwise required by the City's Resolution No. 2002-27 Page 4 of 17 H-4 Development Code is necessary to protect the aesthetics of the neighborhood while still allowing reasonable use of the site to transmit on both amateur and commercial frequencies, because the applicant's representatives have testified that the antennae at the site can be"diplexed"so that each antenna can be used to transmit on two different frequencies at the same time. On the other hand, allowing the applicant to use all of the antennae that were placed on the property while this application was pending will dramatically alter the residential character of the home and create the appearance of a commercial antenna farm, which will adversely affect the surrounding residential neighborhood. C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street. Aside from normal residential traffic associated with the existing house,the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval imposed by this approval. D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval. Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant adverse effects on surrounding properties. The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. Since the conversion of the existing antennae to commercial use constitutes an intensification of the use that benefits the applicant financially but, as proposed by the applicant, does not offset the visual impacts of the antenna array upon the surrounding neighborhood, the approval of this proposal will be conditioned to require the removal of all but two (2) of the existing eight-and-one-half-foot-tall antennae masts and two (2) of the television antenna(e)from the roof of the structure,the painting of the remaining lighter-colored portions of the roof-mounted antennae and support structures that are permitted by this conditional use permit so as to blend better into the background skyand the gray color of the existing antenna support structure. In addition, no future changes to the location or configuration or which increase the number or the height of any approved antennae or element of the remaining roof- mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the City Council, in order to prevent further visual intrusion upon the surrounding neighborhood. Resolution No. 2002-27 Page 5 of 17 H-5 E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from "[regulating]the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." F. The proposed use—as conditioned is not contrary to the General Plan. The subject property and the Grandview neighborhood are designated Residential, 4-6 DU/acre, which is a land use designation intended to accommodate medium-density neighborhoods of detached, single-family homes and related accessory uses and structures. No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past three and one-half years. The evidence demonstrates that the property has not been maintained in a manner consistent with the quality of the surrounding neighborhood, and the residential character of the neighborhood has been eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, and to ensure that the proposed use is consistent with the General Plan, the approval of the proposed project includes conditions to address these deficiencies. The conditions include: 1) requiring contract landscape and maintenance services in the event that the home not properly maintained in conformance with the conditions; 2) requiring the removal of most of the visible exterior evidence of the commercial use of the property; and 3) requiring the house to be occupied and maintained in an appropriate manner. These conditions will allow for the provision of wireless telecommunications services at this location,while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood. G. The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17.40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17.40. H. Conditions of approval, which the City Council finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all but two (2) of the existing eight and one-half feet-long roof- mounted antenna masts and two of the television antenna(e), painting the remaining roof-mounted antennae and masts, and prohibiting any further modifications to them without first obtaining approval of modification to this Resolution No. 2002-27 Page 6 of 17 H-6 conditional use permit;limiting regular maintenance hours to 8:00 AM to 5:00 PM, Monday through Friday; requiring the property to be landscaped and painted and that weekly landscape and general maintenance services shall be provided by contract with a qualified provider of such services if the residence is not properly maintained in accordance with the conditions; requiring the house to be occupied; requiring the applicant to obtain and maintain a valid business license; and reviewing the project for compliance with all conditions of approval within six (6) months of the date of the City's final action on the application. These conditions are imposed through the City's authority over placement, construction and modification of personal wireless service facilities, as expressly reserved to local government under the Telecommunications Act of 1996. I.The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property. Section 2: The City Council finds that the appellant's previous assertions that commercial transmissions utilized antennae located inside of the house are not credible. Based upon the review of FCC licensing data, the numerous commercial frequencies licensed by the FCC to operate at the subject property are designed to operate from a freestanding tower at an elevation of fifteen meters (15m)above the ground. However,the upstairs bedroom where the appellant claims that these commercial antennae were previously used is no more than seven meters (7m) above the ground. Therefore, it is reasonable to conclude that the roof-mounted antennae which extend to a maximum height of approximately ten meters ( the antennae that were used for commercial purposes, and not the antennae that allegedly were located in the upstairs bedroom, despite the appellant's claims to the contrary. It is also reasonable to conclude that the additional vertical support structures and antennae added to the roof-mounted antenna array by the appellant since June 21, 2001, are also intended to be used for commercial purposes, and not for exclusively amateur non-commercial purposes as claimed by the appellant. Accordingly, the City Council finds that the appellant's arguments that these additional vertical support structures and antenna are amateur antennae that previously were exempt from City regulation and that the roof-mounted antenna support structure and array has not been materially altered to be without merit or credibility. Section 3: The City Council finds that the proposed project as conditioned qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301. The exemption applies to Resolution No. 2002-27 Page 7 of 17 H-7 alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination." As conditioned, the existing roof-mounted antenna support structure and array would be modified so that most of the antennae are removed or relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized. In addition, the property will be required to be occupied and maintained in an appropriate manner that is consistent with City standards. Without the imposition of these conditions, and if the antennae and other elements that have been added to the property since the submittal of the application to the City were to remain in place, the City Council would not be able to find this proposed project exempt from the requirements of CEQA, due to aesthetic impacts which could be potentially significant and thus would require further analysis pursuant to the requirements of CEQA. Section 4: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the City's Wireless Communications Antenna Development Guidelines. This application was heard by the Planning Commission within the time lines established by the State's Permit Streamlining Act and CEQA (Guideline No. 1). Although the Guidelines express a preference for existing, non-single-family structures as antenna sites (Guideline No. 2), installations on single-family residences are not prohibited and have been approved previously elsewhere in the City. In addition, the conditions of approval for this project will help to enhance the residential character of the neighborhood by requiring the applicant to upgrade the appearance and maintenance of the property. As a condition of approval, most of the exterior antennae will be removed, sc the project will have no significant impact upon any view corridors (Guideline No. 4). The removal of these antennae will also serve to balance the aesthetic impacts of the antennae upon the neighborhood with the applicant's financial benefit from the operation of the commercial antennae on the site (Guideline No. 5). Finally, with most of the antennae removed from the roof of the house, they will be effectively screened from view from adjacent properties or rights-of-way (Guideline No. 9). Section 5: The City Council finds that the approval of Conditional Use Permit No. 230—as conditioned—is consistent with the local zoning authority reserved to the City of Rancho Palos Verdes by the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7))for the following reasons: A. The conditional approval of Conditional Use Permit No. 230 "[does] not unreasonably discriminate among providers of functionally equivalent services...and does] not prohibit or have the effect of prohibiting the provision of personal wireless services" (47 U.S.C. 332(c)(7), subsections (B)(i)(I) and (II)). In reviewing all of the applications to provide personal wireless services on other residentially-zoned property within the City, the City has applied consistently its regulations to these facilities so as to approve facilities that are compatible with surrounding uses and to Resolution No. 2002-27 Page 8 of 17 H-8 modify or deny applications that do or will have adverse visual, aesthetic or other impacts upon surrounding properties. The instant application is being approved with conditions requiring the removal of most of the exterior antennae because it will otherwise result in adverse visual and aesthetic impacts upon adjacent properties. The City's conditional approval of this specific proposal does not prohibit the applicant from providing wireless communications services because the applicant still has the ability to provide these services from the remaining exterior antennae . The applicant's representative has stated at a public hearing that the applicant has the capability to diplex the antennae in order to utilize more frequencies. The applicant has also admitted that he has transmitted commercially from the site since 1998, allegedly from antennae located inside the residence. The City has previously approved applications for commercial antennae for a variety of commercial wireless services and service providers, including applications for properties that were zoned or used for single-family residential purposes. Accordingly, the conditional approval of this particular application also does not result in a ban or prohibition of, or have the effect of prohibiting, the placement of these types of facilities within the City of Rancho Palos Verdes. B. The application for Conditional Use Permit No. 230 was deemed complete by City Staff on September 19, 2001. The City has acted on the applicant's request for Conditional Use Permit No. 230"within a reasonable period of time afterthe request was] duly filed with [the City], taking into account the nature and scope of such request" (47 U.S.C. 332(c)(7), subsection (B)(ii)). This application has been processed by the City in a timely fashion and in accordance with the time lines established by the State Permit Streamlining Act and CEQA, and the Telecommunications Act. The only delays in the processing of this application are attributable to the applicant's request for a waiver of the penalty fee (which was denied by the City Council on September 18, 2001), the applicant's request for a continuance of this application from the Planning Commission meeting of October 23, 2001 to the meeting of November 13, 2001, and the applicant's appeal of the Planning Commission's conditional approval and request for continuance of the appeal from the City Council meeting of February 19, 2002 to the meeting of March 19, 2002. C. In conditionally approving the application for Conditional Use Permit No. 230, the City has not"[regulated] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission's regulations concerning such emissions"(47 U.S.C. 332(c)(7), subsection (B)(iv)). Although interference and radio frequency emissions were raised as issues of concern to surrounding residents at the public hearing and in correspondence to the City, none of the required modifications to the existing Resolution No. 2002-27 Page 9 of 17 H-9 fi antennae on the site are in response to these concerns. Instead, these modifications are imposed only to address the aesthetic impacts of the antennae upon the surrounding neighborhood. City Staff advised the Planning Commission and the City Council that neither body could consider any environmental effects of emissions that comply with FCC regulations, including purported impacts upon health or alleged interference with television reception. The Planning Commission and City Council relied upon that advice and the provisions of the Act and, therefore, has not based its decision to conditionally approve the proposed project in any respect upon any actual or perceived environmental effects attributable to radio frequency emissions. Rather, the conditional approval regulates the aesthetic impacts and land use compatibility issues traditionally addressed through the exercise of local governmental police powers. Section 6: The applicant's appeal of the conditions of approval imposed by the Planning Commission is denied. However, modifications to the conditions entitle the applicant to a refund of one-half of the appeal fee pursuant to Rancho Palos Verdes Development Code Section 17.80.120. Section 7: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation. Pursuant to the Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(v)), any person adversely affected by the City's final action in this matter may, within thirty (30) days after such action, commence an action in any court of competent jurisdiction. Section 8: For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearings before the Planning Commission and the City Council,the Minutes and the other records of this proceeding on file with the City, the City Council of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No. 230,thereby approving the commercial use of certain antennae and related support structures and equipment on the site of a single-- family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit 'A', attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare. Resolution No. 2002-27 Page 10 of 17 H-10 PASSED, APPROVED,AND ADOPTED this 16th day of April 2002, by the following vote: AYES: Councilmembers Clark and Ferraro, Mayor Pro Tem Stern and Mayor McTaggart NOES: Councilmember Gardiner ABSTENTIONS: none ABSENT:none 0J i id, Ai,' 1hn McTaggart, ATTEST: 4 . _/. _P Jo Purcell, City Clerk State of California County of Los Angeles ss City of Rancho Palos Verdes ) I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2002-27 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on April 16, 2002. 41 -) /of City Clerk Resolution No. 2002-27 Page 11 of 17 H-11 EXHIBIT 'A' CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT NO. 230 26708 Indian Peak Road) 1. Within ninety (90) days following adoption of this Resolution, the applicant and the property owner shall submit to the City a statement, in writing, that they have read, understand, and agree to all conditions of approval contained in this Resolution. Failure to provide said written statement shall render this approval null and void. 2. This approval is for the use of antennae and related support structures and equipment on the site of a single-family residence in the Grandview community for commercial purposes. The commercial use of the property is conditioned upon the following modifications: a. The roof-mounted equipment shall consist of a maximum of two (2) vertical masts, each of which shall not exceed eight and one-half(8%)feet in height, as measured from the point where the mast meets the roof surface. b.Each of the two masts may have up to four (4) radiating elements affixed thereon, similar to those that currently are present at the site, provided that they do not extend any higher than the mast itself and that each antenna or radiating element does not project more than two feet horizontally from the center of the mast. c.In addition, two (2) television antennae also may remain on the roof of the residence, so long as they do not exceed eight and one-half (8%) feet in height, as measured from the point where they are attached to the roof surface; that the horizontal boom of each antenna does not exceed six feet in length; that no radiating element or antenna attached to the boom exceeds two feet in length, and that all of the antennae and support structures on the property are maintained in compliance with the Municipal Code. d. The Director of Planning, Building and Code Enforcement shall review the exterior masts and antennae to ensure compliance with this condition. Any additional exterior antennae, masts or other antenna support structure(s) shall require further approval or modification of this conditional use permit. e. The exterior masts and antennae described in this condition may be used for either commercial or non-commercial purposes. Resolution No. 2002-27 Page 12 of 17 H-12 The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions. Otherwise, any substantive change, such as the enlargement, expansion or addition to,the exterior masts and antennae that this approval allows outside of the existing residential structure shall require approval of a revision to Conditional Use Permit No. 230 by the City Council and shall require a new and separate environmental review. 3. All project development on the site shall conform to the specific standards contained in these conditions of approval or, if not addressed herein, in the RS-5 district development standards of the City's Municipal Code. 4.Failure to comply with and adhere to any or all of these conditions of approval may be cause to revoke the approval of the project by the City Council after conducting a duly noticed public hearing on the matter. 5.If the necessary modifications to site, the house and the existing roof-mounted antenna support structure and array, as specified by these conditions of approval, have not been made within ninety (90) days of the date of the City's final action on this application, approval of the project shall expire and be of no further effect unless, prior to expiration, a written request for extension is filed with the Department of Planning, Building and Code Enforcement and approved by the City Council. 6.In the event that any of these conditions conflict with the recommendations and/or requirements of another permitting agency or City department, the stricter standard shall apply. 7. The applicant shall submit a plan depicting the roof-mounted masts and antennae that may be retained or erected pursuant to this approval, within (90) ninety days of the date of the City's final action on this application. The applicant shall obtain a building permit and any other approval required by the Building Code to modify or construct the masts and attached antennae on the property. 8.Unless otherwise modified by these conditions, all conditions of approval for Site Plan Review No. 8736 for the 198-square-foot storage room addition and Minor Exception Permit No. 555—for a front-yard fence in excess of the 42-inch height limit remain in full force and effect. 9. At all times, the applicant shall maintain the color of the entirety of the roof-mounted antenna support structure and all of the antennae and radiating elements located Resolution No. 2002-27 Page 13 of 17 H-13 thereon, in a neutral color, such as gray, gray-green or gray-blue, that will blend with the background foliage and the sky, to the satisfaction of the Director. Within ninety 90)days of the date of the City's final action on this permit, the applicant shall paint the white or lighter colored portions of the antenna support structure and array in a neutral color that has been approved by the Director. The applicant shall provide the Director of Planning, Building and Code Enforcement with a selection of possible colors for approval prior to the painting of any portion of the antenna support structure and array. At the Director's discretion, any portion of the antenna array may be left unpainted if, in its unpainted state, it conforms to the intent of this condition and substantially matches the existing gray color of the antenna support structure. In addition, the Director reserves the right to require the applicant to paint additional portions of the antenna support structure and array at any time that the Director finds that additional painting of some elements of the antenna support structure and array is necessary to further reduce the aesthetic impacts of the roof- mounted antenna support structure and the radiating elements and antennae located thereon. 10. The two roof-mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the City Council, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. Existing masts and antennae that are permitted by this approval may be removed and replaced for maintenance and/or repair as long as the replacement masts or antennae are the same or less in height, length and mass and in the same location as the approved masts and antennae, and provided that the total number of masts and antennae is not increased. 11. Notwithstanding Condition No. 10 above, within ninety (90) days of the date of the City's final action on this application, the applicant shall remove all existing additional masts, antennae, horizontal support structure(s), pipes, ducts and other components of the roof-mounted antenna assembly that are not expressly approved by this Resolution. Any other antennae and antenna support structures shall be removed, but may be relocated inside the house at the applicant's discretion. 12. Except in case of emergency, regular maintenance of the antennae and related exterior support equipment and structures shall only occur between the hours of 8:00 AM and 5:00 PM, Monday through Friday. 13. All service vehicles related to the maintenance of the antennae and support equipment shall be parked off-street in the driveway or garage of the house. No more than two (2) such service vehicles are allowed on the site at any time. Resolution No. 2002-27 Page 14 of 17 H-14 14. No new exterior building-mounted or any other exterior antennae, related support equipment or structures will be allowed without approval of a modification to this conditional use permit by the City Council. 15. The support equipment for the antennae on the site, including air conditioning units, shall not generate noise levels in excess of 65 dBA, as measured at the property line of the subject property. Any sound attenuation measures to achieve this standard shall be the responsibility of the applicant, and shall be subject to the review and approval of the Director of Planning, Building and Code Enforcement. 16. No lights may be placed upon the roof-mounted antenna support structure, nor may it be otherwise illuminated in any manner. This condition shall not restrict the use of hand-held lighting, nor the use of temporary lighting during the performance of emergency repairs. 17. The operation of the antennae on the site shall at all times comply with the requirements, standards and regulations of the Federal Communications Commission (FCC). 18. The exterior appearance of the house and site shall be maintained at all times in a manner satisfactory to the Director by: a. Maintaining the exterior of the house and garage so that the paint is not peeling or cracking in a manner detrimental to the value of the property and neighboring properties; and, b. Maintaining the landscaping in a neat and thriving condition. 19. Within ninety (90) days of the date of the City's final action on this application, the property shall be occupied by the owner, or some other person chosen by the owner, as that person's primary residence. The necessary improvements to make the house habitable shall be completed within the initial 90-day period—including a functional kitchen, toilet and bathing facilities and utility connections for gas, electricity, water and sewer—and shall be maintained continuously. The applicant shall contract with a landscape and maintenance service to provide weekly service at the property to ensure that the structure and grounds are maintained free from litter, debris, and overgrown vegetation so as not to become an eyesore, if the resident is not maintaining the property as required by these conditions of approval and by the City's Municipal Code. 20. Within ninety (90) days of the date of the City's final action on this application, the house shall be equipped with an appropriate fire suppression system subject to the approval of the Director, smoke alarms and fire extinguishers, including those areas Resolution No. 2002-27 Page 15 of 17 H-15 where the commercial power supplies,transmitters and other related equipment are kept. 21. Within ninety (90) days of the City's final action on this application, the applicant shall obtain a business license from the City. A valid City business license shall be maintained at all times while this CUP is effective. 22. At approximately six (6) months from the date of the City's final action on this application, the City Council shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked. Within the initial 6- month permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 6-month review process by the City Council. 23. Nothing in this Resolution or these conditions of approval shall be construed as requiring the City to defend any legal challenge to the issuance of Conditional Use Permit No. 230 by a third party. 24. The roof-mounted antenna assembly authorized by this approval shall only be used as an antenna support structure and for no other purposes. 25. Within thirty (30) days of the date of this approval, and annually thereafter, the applicant shall provide to the City a listing of all radio facilities or frequencies that are licensed by the FCC to this site. In addition, within thirty (30) days of this approval, and annually thereafter, the applicant also shall provide to the City documentation demonstrating that the site is being operated in accordance with FCC emission requirements and limits, considering all facilities that are licensed by the FCC to operate at the site or that use the site pursuant to an amateur radio operator's license. 26. Since this approval is for the joint use of the existing antenna support structure and array for both commercial and amateur purposes, at all times the applicant shall maintain antennae on the site that are being used or are available for amateur use. Resolution No. 2002-27 Page 16 of 17 H-16 M:\Projects\CUP 230_EA 744(Kay)\Resolution No.2002-27.doc Resolution No. 2002-27 Page 17 of 17 H-17 P C RESOLUTION NO 2001-43 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF RANCHO PALOS VERDES APPROVING CONDITIONAL USE PERMIT NO. 230, THEREBY APPROVING THE COMMERCIAL USE OF INTERIOR ANTENNAE AND RELATED SUPPORT STRUCTURES AND EQUIPMENT ON THE SITE OF A SINGLE-FAMILY RESIDENCE, LOCATED AT 26708 INDIAN PEAK ROAD, IN THE GRANDVIEW COMMUNITY WHEREAS, on October 22, 1998, the applicant, James A. Kay, Jr, received approval of an application for Site Plan Review No 8334 for after -the fact approval of an existing roof -mounted antenna support structure and array for non-commercial radio communications, which was conditioned expressly to exclude commercial operations, and, WHEREAS, on November 4, 1998, prior to the expiration of the 15 -day appeal period for Site Plan Review No 8334, the City Council adopted Urgency Ordinance No 341 U, which established a moratorium on the processing of all antenna applications, including those applications upon which the City had acted but the appeal period had not yet expired, and WHEREAS, on April 16, 1999, the antenna moratorium was lifted, the City's approval of Site Plan Review No 8334 was voided, and the existing roof -mounted antenna support structure and array were determined by Staff to be exempt from City permits for non-commercial use pursuant to Section 17 76 020(C)(3)(c)(ii) of the Rancho Palos Verdes Development Code, and, WHEREAS, on October 15, 1999, Mr Kay submitted an application for Site Plan Review No 8736 to the Department of Planning, Building and Code Enforcement for a 198 - square -foot single -story storage room addition to the rear side of the house, which proposed a large number of electrical outlets, the installation of two dedicated air conditioning condensers for the room and no interior access to the rest of the house, and although Staff suspected that the addition was intended to house commercial radio transmitters, the City could not withhold approval of Site Plan Review No 8736 based upon these suspicions, and, WHEREAS, Staff subsequently reviewed Federal Communications Commission FCC) licensing records and found that several active and pending commercial radio frequencies were licensed to Mr Kay's property on Indian Peak Road, and turned this FCC licensing information over to the City Attorney's office, and, WHEREAS, the City obtained warrants from the court and retained an expert in the field of radio transmissions, Dr Henry Richter, to monitor transmissions from the site in connection with an investigation of the alleged commercial use of the existing antennae and found that commercial frequencies were in use at the site Subsequently, on April 13, I-1 2000, the City filed a complaint for preliminary and permanent inunction against Mr Kay to prevent the non -permitted use of commercial antennae on the site, and this case currently is pending, and, WHEREAS, Section 17 76 020(A) of the Rancho Palos Verdes Development Code requires an individual to obtain a conditional use permit to install or operate a commercial antenna within the City of Rancho Palos Verdes. Section 17.96 090 of the Rancho Palos Verdes Development Code further defines the term "commercial antenna" as follows. Commercial Antenna' means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, `commercial purposes' shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). 'Commercial antennas' shall not include antennas owned or operated by governmental agencies; and micro -cell cellular antennas, owned and operated by state licensed cellular telephone utility companies, located on existing utility poles within the public right-of-way " Under these provisions of the Rancho Palos Verdes Development Code, the applicant, Mr Kay, was required to obtain a conditional use permit from the City to use his existing antennae and antenna support structure to broadcast on commercial frequencies, as determined by the FCC, and, WHEREAS, on June 21, 2001, Mr Kay submitted applications for Conditional Use Permit No 230 and Environmental Assessment No. 744 for after -the -fact approval to establish the existing antennae and related support structures and equipment on the site for commercial use, although Mr Kay contested that the application was after -the -fact and requested a waiver of the penalty fee; and, WHEREAS, on September 4, 2001 and September 18, 2001, the City Council considered Mr. Kay's request for a waiver of the penalty fee for Conditional Use Permit No 230, and denied the request; and, WHEREAS, on September 19, 2001, the applications for Conditional Use Permit No. 230 and Environmental Assessment No 744 were deemed complete by Staff, and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Conditional Use Permit No 230 and P C Resolution No 2001-43 Page 2 of 13 I-2 0 0 Environmental Assessment No. 744 would have a significant effect on the environment and, therefore, the proposed project was determined by Staff to be categorically exempt Class 1, Section 15301); and, WHEREAS, after the submittal of these applications on June 21, 2001,and while the Planning Commission was conducting the public hearings on this application, the applicant installed at least eleven (11) additional vertical antenna masts with attached antennae onto the previously existing roof -mounted antenna support structure and array, including additional cables and conduits for the additional antennae, and on November 8, 2001, the applicant submitted revised plans to the City depicting a total of twenty (20) vertical antenna masts with attached antennae on the roof -mounted antenna support structure and array, and, WHEREAS, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission held a duly noticed public hearing on October 23, 2001, and November 13, 2001, at which time all interested parties were given an opportunity to be heard and present evidence, and, WHEREAS, the applicant's representative, Mr. Miner, testified that all of the antennae that currently are located at the subject property could be used either for commercial or non-commercial transmissions; and, WHEREAS, the applicant's representative, Mr Schmitz, during the public hearing, stated that the applicant would be willing to comply with conditions that would improve the appearance of the property, such as painting the residence and planting landscaping, and having someone live at the residence, to ensure that the residence is in keeping with the residential character of the neighborhood and to establish the proposed commercial use as being clearly ancillary to the principal residential use of the property, so that the Commission can make a finding of consistency of the proposed commercial use with the City's General Plan; NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS. Section 1: The Planning Commission hereby makes the following findings of fact with respect to the application for Conditional Use Permit No 230 to legalize the use of existing roof -mounted and interior antennae and related support structures and equipment on the site for commercial purposes A For the purposes of this determination on the subject application and throughout this Resolution, the terms and phrases "existing antenna(e)" and "existing roof -mounted antenna array" refer only to the antenna(e) and antenna array depicted in the plans submitted to the City by the applicant on June 21, 2001, and in photographs P C Resolution No. 2001-43 Page 3 of 13 I-3 0 0 accompanying the application for Conditional Use Permit No. 230 and Environmental Assessment No 744 The terms and phrases "existing antenna(e)" and "existing roof -mounted antenna array" do not include any parts, elements, components or other features of the antenna(e) and antenna array that are not depicted on the plan submitted on June 21, 2001, or in the above-mentioned photographs, regardless whether these parts, elements, components or other features were, or are, physically present on the subject property as of the effective date of this Resolution B. The site is adequate in size and shape to accommodate the proposed use and for all of the yards, setbacks, walls, fences, landscaping and other features required by the Development Code or by conditions imposed to integrate said use with those on adjacent land and within the neighborhood because, as conditioned, the proposed project complies with the development standards for commercial antennae, as specified in RPVDC Sections 17.76 020(A)(2) through (A)(10). The site provides for two (2) off-street parking spaces for maintenance and service vehicles and the existing roof -mounted antenna support structure and array does not require special markings or lighting to comply with Federal Aviation Administration (FAA) requirements. Although there is existing foliage on adjacent properties and rights-of- way, this foliage does not adequately screen the existing roof -mounted antenna support structure and array or the additional antennae added by the applicant since June 21, 2001 from view from many surrounding residences in the neighborhood, especially those residences located directly across the street and the residences located down slope from the rear yard on Fond du Lac Road. As such, the approval of this application is conditioned to require the removal of all but two (2) of the existing eight -and -one -half -foot long masts and two of the television antennae from the roof of the residence, and the relocation of all of the other existing or proposed antennae and related support structures and equipment to the inside of the house. C. The site for the proposed use relates to streets and highways sufficient to carry the type and quantity of traffic generated by the subject use because the subject property is served by Indian Peak Road, which is a public residential street Aside from normal residential traffic associated with the existing house, the only additional traffic expected to result from the proposed project is an occasional service vehicle, and would rarely involve large trucks or other equipment that could adversely affect local traffic for any extended period of time. Any adverse effects of any additional traffic are mitigated by the conditions of approval. D. In approving the subject use at the specific location, there will be no significant adverse effects on adjacent property or the permitted use thereof, due to the conditions that are being imposed as part of this approval Although service personnel would visit the site periodically, any impacts related to the maintenance and operation of the existing antennae would be very minor and have no significant P C Resolution No 2001-43 Page 4 of 13 I-4 0 0 adverse effects on surrounding properties The existing antennae are visible from homes across Indian Peak Road and from Fond du Lac Road below. Since the conversion of the existing antennae to commercial use constitutes an intensification of the use that benefits the applicant financially but, as proposed by the applicant, does not offset the visual impacts of the antenna array upon the surrounding neighborhood, the approval of this proposal will be conditioned to require the removal of all but two (2) of the existing eight -and -one -half -foot -tall antennae masts and two (2) of the television antenna(e) from the roof of the structure, the painting of the remaining roof -mounted antennae and support structures that are permitted by this conditional use permit so as to blend better into the background sky, and the relocation of all of the other antennae and related support equipment to the inside of the house. In addition, no future increase of the height, location or configuration of the remaining roof -mounted antenna array will be permitted without an amendment to this conditional use permit that is approved by the Planning Commission, and any new antennae and support structures must be placed inside of the house to prevent further visual intrusion upon the surrounding neighborhood. E. Any issues related to interference impacts upon electronic and other types of equipment, and actual or perceived effects upon human health, are strictly within the purview of the FCC, since Telecommunications Act of 1996 prohibits the City from regulating] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions " F. The proposed use—as conditioned—is not contrary to the General Plan. The subject property and the Grandview neighborhood are designated Residential, 4-6 DU/acre, which is a land use designation intended to accommodate medium -density neighborhoods of detached, single-family homes and related accessory uses and structures No evidence has been provided that the owner has ever resided at the existing home, and this property has not been occupied for at least the past three and one-half years, the property has not been maintained in a manner consistent with the quality of the surrounding neighborhood, and the residential character of the neighborhood has been eroded by the increasing deterioration and commercialization of this site. To prevent the proposed commercial use of the property from exacerbating the substandard condition of the residence, and to ensure that the proposed use is consistent with the General Plan, the approval of the proposed project includes conditions to address these deficiencies, some of which were suggested by the applicant's representative, to require the home to be occupied and maintained appropriately, and to require the removal of most of the visible exterior evidence of the commercial use of the property. These conditions will allow for the provision of wireless telecommunications services at this location, P C Resolution No 2001-43 Page 5 of 13 I-5 while minimizing the visual and aesthetic impacts of this commercial wireless operation on the surrounding residential neighborhood G The required finding that, if the site of the proposed use is within any of the overlay control districts established by RPVDC Chapter 17 40 (Overlay Control Districts), the proposed use complies with all applicable requirements of that chapter, is not applicable because the subject property is not located within any of the overlay control districts established by RPVDC Chapter 17 40 H Conditions of approval, which the Planning Commission finds to be necessary to protect the health, safety and general welfare, have been imposed and include (but are not limited to) removal of all but two (2) of the existing eight and one-half feet - long roof -mounted antenna masts and two of the television antenna(e) and painting the remaining roof -mounted antennae and masts and prohibiting any further modifications to them without the modification to this conditional use permit; requiring all other existing and any future antennae to be located inside of the house, limiting regular maintenance hours to 8 00 AM to 5 00 PM, Monday through Friday; requiring the property to be landscaped and painted and occupied by a full- time resident; requiring the applicant to obtain and maintain a valid business license, and reviewing the project for compliance with all conditions of approval within six (6) months of the date of the City's final action on the application The required findings that no existing or planned tower can accommodate the applicant's proposed antenna or proposed service area, or that the proposed tower cannot be located on the site of an existing or planned tower, are not applicable because the proposed project does not involve the construction or placement of a new antenna tower, and there is no antenna tower currently located on the subject property J By permitting some of the existing antennae to remain on the roof of the residence, and by permitting commercial antennae to be located in the interior of the residence, the City is facilitating the provision of personal wireless services to the surrounding community Placement of additional antennae within the residence appears to allow effective transmission of radio signals, because the applicant's representative testified that he installed antennae in the interior of the house in 1998, and that those antennae have been used to broadcast commercial radio transmissions from 1998 to the present. Section 2. The Planning Commission finds that the proposed project—as conditioned—qualifies for a Class 1 categorical exemption from the provisions of the California Environmental Quality Act (CEQA) under Section 15301 The exemption applies to alterations to existing minor structures and uses "involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination " As conditioned, P C Resolution No 2001-43 Page 6 of 13 I-6 the existing roof -mounted antenna support structure and array would be modified so that most of the antennae are removed and relocated to the inside of the house, and the negative aesthetic impacts of the existing antennae are minimized Without the imposition of this condition and the removal of the antennae and other elements that have been added to the property since the submittal of the application to the City, the Planning Commission would not be able to find this proposed project exempt from the requirements of CEQA. Section 3. The Planning Commission finds that the approval of Conditional Use Permit No 230—as modified and conditioned—is consistent with the City's Wireless Communications Antenna Development Guidelines Section 4: The Planning Commission finds that the approval of Conditional Use Permit No 230—as modified and conditioned—is consistent with the zoning and land use authority reserved to the City pursuant to the Telecommunications Act of 1996 Section 5. Any interested person aggrieved by this decision or by any portion of this decision may appeal to the City Council Pursuant to Sections 17 60 060 and 17 76 040(H) of the Rancho Palos Verdes Municipal Code, any such appeal must be filed with the City, in writing, accompanied by the payment of the appropriate appeal fee, no later than fifteen (15) days following November 15, 2001, the date of the Planning Commission's final action Section 6. For the foregoing reasons and based on the information and findings included in the Staff Report, the testimony and evidence presented at the public hearing, the Minutes and the other records of this proceeding on file with the City, the Planning Commission of the City of Rancho Palos Verdes hereby approves Conditional Use Permit No 230, thereby approving the commercial use of interior antennae and related support structures and equipment on the site of a single-family residence, located at 26708 Indian Peak Road, in the Grandview community, subject to the conditions contained in Exhibit'A', attached hereto and made a part hereof by this reference, which are necessary to protect the public health, safety and welfare P C Resolution No 2001-43 Page 7 of 13 I-7 E v PASSED, APPROVED, AND ADOPTED this 15th day of November 2001, by the following vote* AYES Chairman Lyon, Commissioners Long, Mueller, Paulson and Vannorsdall NOES- none ABSTENTIONS none ABSENT: Vice Chairman Clark, Commissioner Cartwright Joll Rous, Aidp DA ctor of la ping, Building and ode Enforc meat, and, Secretary to the Planning Commission Frank Lyon / Chairman P.0 Resolution No. 2001-43 Page 8 of 13 I-8 0 EXHIBIT 'A' CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT NO. 230 26708 Indian Peak Road) Within ninety (90) days following adoption of this Resolution, the applicant and the property owner shall submit to the City a statement, in writing, that they have read, understand, and agree to all conditions of approval contained in this Resolution Failure to provide said written statement shall render this approval null and void 2 This approval is for the use of interior antennae and related support structures and equipment on the site of a single-family residence in the Grandview community for commercial purposes The commercial use of the property is conditioned upon the following modifications - a The roof -mounted equipment shall consist of a maximum of two vertical masts, each of which shall not exceed eight and one-half (8'/z) feet in height, as measured from the point where the mast meets the roof surface b Each of the two masts may have up to four (4) antennae affixed thereon, similar to those that currently are present at the site, provided that they do not extend any higher than the mast itself and that each antenna or radiating element does not project more than two feet horizontally from the center of the mast c In addition, the two (2) existing television antennae also may remain on the roof of the residence, so long as they do not exceed eight and one-half (8 Y2) feet in height, as measured from the point where they are attached to the roof surface, that the horizontal boom of each antenna does not exceed six feet in length, that no radiating element or antenna attached to the boom exceeds two feet in length, and that all of the antennae and support structures on the property are maintained in compliance with the Municipal Code d The Director of Planning, Building and Code Enforcement shall review the exterior masts and antennae to ensure compliance with this condition Any additional antennae, masts or other antenna support structure(s) shall be placed inside of the house and, provided that they are completely located P C Resolution No 2001-43 Page 9 of 13 I-9 0 0 inside of the house, they shall not require further approval or modification of this conditional use permit. The Director of Planning, Building and Code Enforcement is authorized to make only minor modifications to the approved plans and any of the conditions of approval, and only if such modifications will achieve substantially the same results as would strict compliance with the approved plans and conditions Otherwise, any substantive change, such as the enlargement, expansion or addition to, the two exterior masts and antennae that this approval allows outside of the existing residential structure shall require approval of a revision to Conditional Use Permit No 230 by the Planning Commission and shall require a new and separate environmental review 3 All project development on the site shall conform to the specific standards contained in these conditions of approval or, if not addressed herein, in the RS -5 district development standards of the City's Municipal Code 4 Failure to comply with and adhere to all of these conditions of approval may be cause to revoke the approval of the project by the Planning Commission after conducting a duly noticed public hearing on the matter 5 If the necessary modifications to site, the house and the existing roof -mounted antenna support structure and array, as specified by these conditions of approval, have not been made within ninety (90) days of the date of the City's final action on this application, approval of the project shall expire and be of no further effect unless, prior to expiration, a written request for extension is filed with the Department of Planning, Building and Code Enforcement and approved by the Planning Commission 6 In the event that any of these conditions conflict with the recommendations and/or requirements of another permitting agency or City department, the stricter standard shall apply 7 The applicant shall submit a plan depicting the roof -mounted masts and antennae that may be retained or erected pursuant to this approval, within (90) ninety days of the date of the City's final action on this application The applicant shall obtain a building permit and any other approval required by the Building Code to modify or construct the masts and attached antennae on the property 8 Unless otherwise modified by these conditions, all conditions of approval for Site Plan Review No 8736—for the 198 -square -foot storage room addition—and Minor Exception Permit No 555—for a front -yard fence in excess of the 42 -inch height limit—remain in full force and effect. P C Resolution No 2001-43 Page 10 of 13 I-10 9. Pursuant to Section 17 76 020(A)(4)(c) of the City's Municipal Code, the applicant/landowner shall agree, in writing, to cooperate in possible future co - location of additional wireless communications facilities on this site Under the terms of this agreement, the applicant/landowner shall be obligated to a Respond in a timely, comprehensive manner to a request for information from a potential shared -use applicant; and b Negotiate in good faith for shared use by third parties 10. The roof -mounted antennae and masts that are hereby approved shall be painted a color that helps to camouflage them against the background sky. The color shall be approved by the Director of Planning, Building and Code Enforcement before the antenna support structure and array are painted. Painting shall be completed and inspected by the Director within ninety (90) days of the date of the City's final action on this application 11. The two roof -mounted masts and the two television antennae approved by this resolution shall not be increased or expanded without the advance approval of the Planning Commission, including, but not limited to, any additional antennae, masts, antennae support structures, antenna assemblies or radiating elements of any kind. Existing masts and antennae that are permitted by this approval may be removed and replaced for maintenance and/or repair as long as the replacement masts or antennae are the same or less in height, length and mass and in the same location as the approved masts and antennae, and provided that the total number of masts and antennae is not increased 12. Notwithstanding Condition No 11 above, within ninety (90) days of the date of the City's final action on this application, the applicant shall remove all existing masts, antennae, horizontal support structure, pipes, ducts and other components of the roof -mounted antenna assembly that are not expressly approved by this Resolution Any other antennae and antenna support structures either shall be removed or relocated inside the house 13. Except in case of emergency, regular maintenance of the antennae and related support equipment and structures shall only occur between the hours of 8.00 AM and 5 00 PM, Monday through Friday 14 All service vehicles related to the maintenance of the antennae shall be parked off- street in the driveway or garage of the house. No more than two (2) service vehicles are allowed on the site at any time. 15 Any new antennae and related support equipment and structures shall be located inside of the house. No new exterior building -mounted antennae or support P C Resolution No. 2001-43 Page 11 of 13 I-11 0 0 structures will be allowed without approval of a modification to this conditional use permit by the Planning Commission 16 The support equipment for the antennae on the site, including air conditioning units, shall not generate noise levels in excess of 65 db, as measured at the property line of the subject property Any sound attenuation measures to achieve this standard shall be the responsibility of the applicant, and shall be subject to the review and approval of the Director of Planning, Building and Code Enforcement. 17 The operation of antennae on the site shall at all times comply with the requirements, standards and regulations of the Federal Communications Commission (FCC) 18 Within ninety (90) days of the date of the City's final action on this application, the exterior appearance of the house and site shall be brought into consistency with neighborhood standards by• a Painting the exterior of the house and garage, and, b Landscaping the front yard area, and maintaining the landscaping in a neat and thriving condition 19 Within ninety (90) days of the date of the City's final action on this application, the property shall be occupied by the owner, or some other person chosen by the owner, as that person's primary residence The necessary improvements to make the house habitable shall be completed within the initial 90 -day period—including a functional kitchen, toilet and bathing facilities and utility connections for gas, electricity, water and sewer—and shall be maintained continuously 20 Within ninety (90) days of the date of the City's final action on this application, the house shall be equipped with smoke alarms and fire extinguishers, including those areas where the commercial power supplies, transmitters and other related equipment are kept. 21 Within ninety (90) days of the City's final action on this application, the applicant shall obtain a business license from the City A valid City business license shall be maintained at all times while commercial radio transmissions occur from the property 22 At approximately six (6) months from the date of the City's final action on this application, the Planning Commission shall review the project for conformance with the conditions of approval, and determine if any conditions of approval need to be added, deleted or modified, or if the permit should be revoked Within the initial 6- P C Resolution No 2001-43 Page 12 of 13 I-12 month permit period, the applicant shall be responsible for completing all of the site and use modifications described in this Resolution. Failure to fulfill these conditions may lead to the revocation of this permit during the 6 -month review process by the Planning Commission. M \Projects\CUP 230_EA 744 (Kay)\PC Resolution 2001-43 doc P C Resolution No 2001-43 Page 13 of 13 I-13 J - 1 J - 2 J - 3 J - 4 J - 5 J - 6 J - 7 J - 8 J - 9 J - 1 0 J - 1 1 J - 1 2 J - 1 3 J - 1 4 J - 1 5 J - 1 6 J - 1 7 J - 1 8 J - 1 9 J - 2 0 J - 2 1 J - 2 2 J - 2 3