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HomeMy WebLinkAboutRes 2020-74 - Case 19-0002 SmartLink LLCResolution No. 2020-74 CITY COUNCIL STAFF REPORT CITY OF PALM DESERT COMMUNITY DEVELOPMENT DEPARTMENT MEETING DATE: October 15, 2020 PREPARED BY: Nick Melloni, Assistant Planner REQUEST: Grant an appeal to overturn the Planning Commission's decision to approve Case No. CUP 19-0002 for a 65-foot cell tower located at 78-0005 Country Club Drive Case No. 19-002 (AT&T-Smartlink, LLC, Applicant) (SBA 2012TC Assets, LLC, Appellant) (Continued from the meeting of September 24, 2020). Recommendation Waive further reading and adopt Resolution No. 2020-74, grant an appeal to overturn Planning Commission Resolution No. 2779, thereby granting the Appeal. Strategic Plan Obiectives The appeal of Planning Commission Resolution No. 2779 does not implement any specific goals of the Strategic Plan. Executive Summary The City Council held a public hearing and received testimony on September 24, 2020, to consider an Appeal of CUP 19-0002 by SBA 2012 TC Assets LLC. Following the public hearing and extensive Council discussion, the City Council continued the item to October 15 and directed City staff to prepare a resolution, including Findings, to grant the Appeal, overturning the Planning Commission's decision to approve the CUP. Adoption of the attached Resolution would grant the Appeal thereby denying the CUP submitted by AT&T. Discussion Based upon Council's discussion at the previous meeting, and subsequent staff analysis, this discussion is provided as a basis for the findings contained in the attached resolution. The proposed tower is inconsistent with the standards, purpose and intent of the City's Communication Tower and Antenna Regulations Ordinance as established under Section 25.34.130 of Palm Desert Municipal Code. There is an existing vacant tower within 1,000 feet of the project site which enables Smartlink/AT&T to provide coverage to the area, and makes the proposed tower unnecessary. October 15, 2020 — City Council Staff Report Case No. CUP 19-0002 Appeal for Smartlink Page 2 of 2 Findinqs Per Council Direction, Staff has prepared findings for denial which are included in the attached draft resolution. LEGAL REVIEW DEPT. REVIEW FINANCIAL ASSISTANT CITY REVIEW MANAGER RVALOC C`fe-.#L� N/A f�udysrgszuq Robert W. Hargreaves Ryan Stendell, Director of Janet Moore Andy Firestine City Attorney Community Development Director of Finance Assistant City Manager Interim City Manager Rey APPLICANT: Smartlink, LLC. 2033 San Elijo Avenue, Suite 600 Cardiff, CA 92007 ATTACHMENT: 1. Applicant's Appeal Form 2. Draft City Council Resolution No. 2020-74 Case No_ REUEtVED RECEIYI_D CIT f Ci pRK'SESEP OFr iCITY OF PALM DESERT, CAUFORN� A t h ERIcs)tbtp OFFICE A11G 25 Pm 12- APPLICATION TO APPEAL20 AUG 25 Pit 12: OF DECISION OF THE (Name of Determining Body] CUP 1 g-0002 Palm Desert Planning Commission Date of Decision: August 18, 2020 Name of Appellant SBA 2012 TC Assets, LLC Phone (323) 655-6171 Address 8051 Congress Ave., Boca Raton, FL 33487 Description of Application or Matter Considered: Approval of conditional use permit for telecommunications tower at 78005 Country Club Drive Reason for Appeal (attach additional sheets if necessary): see attached letter from John A. Henning, Jr., dated August 25, 2020 SBA 2012 T G Assets, LLC y;� ,, (Signature of Appellant) By: John A. Henning, Jr., its argent and attorney FOR OFFICIAL USE ONLY Date Appeal FiledAW(m-, }Ao Free Received: d ,9-71P Ili Treasurer's Receipt No. 4t7 A;A(? Received by: Sdt? ( L Date of Consideration by City Council or City Official: 7~��-,.4 Action Taken: Date: Rachelle D. Klassen, City Clerk NtkiusemvYp atwFL�DCSFDR+�Suwf to oape.V wpd wv a2"2 JoHN A. HENNING, JR. ATTORNEY AT Law 125 N. $WEETZER MF.NUE Los ANGELEs, CALIFORNIA 90048 TELEPHONE: (323) 655-61+71 E-MAIL-jben,ning@planninglawgroup.com August 25, 2020 VIA HAND DELIVERY Grace L. Mocha Acting City Clerk City of Palm Desert, California 73510 Fred Waring Dr. Palm Desert, CA 92260 Re: Aimeal to City Council of CUP 19-0002 - 78005 Country Club Drive (Aua_ ust 18, 2020 meeting of Planning Commission, Agenda Item X-A) Dear Ms. Rocha: I represent SBA 2012 TC Assets, LLC. This letter provides the grounds for the attached appeal to the City Council of the August 18, 2020 decision of the Planning Commission approving a Conditional Use Permit ("CLIP") for a telecommunications tower at 78005 Country Club Drive. The Planning Commission abused its discretion by approving the subject CUP as follows: (1) the project injects a 65-foot tall, unsightly new industrial structure into a heavily traveled corridor at a gateway to the City, while providing no offsetting benefit to the City or its residents, whether in terms of improved cell coverage or otherwise; (2) the Commission failed to apply provisions of the City's municipal code requiring good -faith consideration of feasible alternative sites for such structures; (3) the decision was not supported by the findings; (4) the findings were not supported by substantial evidence in the record; and (5) the Commission improperly relied upon a categorical exemption from the California Environmental Quality Act ("CEQA") and failed to conduct full review of the environmental impacts of the project under CEQA. We will provide additional facts and argument prior to the hearing on the appeal. Very truly yours, AA --- John A. Henning, Jr. RESOLUTION NO. 2020-74 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, GRANTING APPEAL TO OVERTURN PLANNING COMMISSION RESOLUTION NO. 2779, APPROVING AN APPEAL BY SBA 2012 TC ASSETS, LLC, AND DENYING A CONDITIONAL USE PERMIT TO ALLOW FOR THE CONSTRUCTION OF A 65-FOOT-TALL WIRELESS TELECOMMUNICATIONS FACILITY, AND A 288-SQUARE-FOOT EQUIPMENT ENCLOSURE AT 78005 COUNTRY CLUB DRIVE CASE NO: CUP 19-0002 WHEREAS, the Planning Commission of the City of Palm Desert, California ("Planning Commission"), did on the 71" day of July 2020, hold a duly noticed public hearing to consider the request by Smartlink, LLC, on behalf of AT&T, for approval of a Conditional Use Permit ("CUP") to allow for the Construction of a 55 foot tall Wireless telecommunications facility and a 288 square foot equipment enclosure at 78005 Country Club Drive, and at the said public hearing the Planning Commission continued the public hearing to their meeting on the 41" day of August 2020; and WHEREAS, the Planning Commission did on the 41" day of August 2020, continue the request for the CUP to their next meeting on the 181" day of August 2020 without reopening the public hearing and listening to additional public testimony; and WHEREAS, the Planning Commission did on the 18t" day of August 2020, after hearing all testimony at the public hearing, did adopt Planning Commission Resolution No. 2779 and approved the CUP subject to the conditions of approval; and WHEREAS, on the 25t" day of August 2020, SBA 2012 TC Assets, LLC, filed a timely appeal objecting to the Planning Commission's adoption of Planning Commission Resolution No. 2779, pursuant to Section 25.60.080 of the Palm Desert Municipal Code ("PDMC"); and WHEREAS, pursuant to Section 25.60.080 (F) of the PDMC, each appeal shall be considered a de nov❑ (new) hearing and City Council of the City of Palm Desert, California ("City Council") may act to confirm, modify, reverse the action of the Planning Commission, in whole or in part, or add or amend such conditions as it deems necessary; and WHEREAS, the City Council did on the 241" day of September 2020, hold a duly noticed public hearing to consider the appeal by SBA 2012 TC Assets, LLC, to consider public testimony on the appeal and the City Council considered all relevant public comments including all testimony and arguments of all interested persons desiring to be heard and the appeal was comprehensively reviewed and considered; and WHEREAS, the City Council continued the appeal to their next meeting on the 151" day of October and directed City staff to prepare a resolution to approve the appeal, overturning the Planning Commission's decision, thereby denying the CUP; and WHEREAS, said appeal has complied with the requirements of the "City of Palm Desert Procedure for Implementation of CEQA" Resolution No. 2019-41, in that the Director of Community Development has determined that CEQA does not apply to projects which are denied. RESOLUTION NO. 2020-74 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS: SECTION 1. Recitals. The City Council of the City of Palm Desert hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings of this Resolution. SECTION 2. Comvliance with CEQA. As the appeal authority for the project, the City Council has reviewed and considered the information contained in the application and administrative record on file with the City and available for review at 73510 Fred Waring Drive, Palm Desert, California. The Council finds that CEQA does not apply as the project is being denied. SECTION 3. Findings Required for Conditional Use Permit. Based on all written and oral evidence presented to the City Council, including without limitation staff reports, public testimony, and City Council deliberations, the City Council is unable to make the following required findings needed for approval of the CUP in accordance with Section 25.34.130 of the PDMC. 1. That existing towers and buildings do not technologically afford the applicant the ability to provide service to the service area of the applicant or service provider. The applicant, Smartfink LLC., has failed to demonstrate that existing towers and buildings do not technologically afford the applicant the ability to provide service to the service area in question. The applicant has requested approval to construct a new freestanding tower at a height of 65' with antennas centered at height of 56'. The record shows that there is an existing and vacant 65' tower, located within 1,000 feet of the project site at 77850 Country Club Drive. This tower was approved by the City with Planning Commission Resolution 1989 for CUP 00-06. The owner of the tower, SBA LLC, has provided evidence in the record showing that has actively submitted offers to Smartlink LLC, and A T& T to allow the carrierplace equipment on the existing tower on the primary arrays. The applicant has provided coverage maps showing that this existing tower is capable of providing wireless coverage within the gap area. The applicant has stated on the record that it will not agree to sign a lease to locate on the existing tower, and has not provided technological evidence that the tower cannot support equipment to provide similar coverage 2. That the geographical boundaries of the proposed service area cannot technologically be bifurcated to avoid the necessity for a freestanding tower/antenna at the height proposed. The applicant is proposing a tower at a height of 65, which exceeds the allowed height of 50' for new communication towers based on the separation distance required between existing communications as established by the Palm Desert Municipal Code. The applicant has not demonstrated that the geographical 2 RESOLUTION NO. 2020-74 boundaries of the proposed service area cannot be bifurcated to avoid the necessity of a new freestanding to at the height proposed. 3. That the applicant shows compelling technological or economic reason(s) for requiring a new freestanding facility. The applicant has not provided compelling technological or economic reasons for requiring a new freestanding facility at the proposed location. The record shows that there is an existing tower within 1, 000 feet of the proposed tower location. This vacant tower is within in the service gap area and the applicant has provided coverage maps showing the existing tower can be used to provide coverage to the area. SECTION 5. Avnroval of AQveal. The City Council hereby finds that the CUP is not consistent with the requirements of the PDMC and in conjunction with all written and oral evidence presented to the City Council, including staff reports, public testimony, and City Council deliberation, constituting substantial evidence, approves SBA 2012 TC Assets, bt_C's request to overturn Planning Commission Resolution No. 2779 and overturns the approval of the CUP by the Planning Commission. SECTION 6. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City's office at 73510 Fred Waring Drive, Palm Desert, CA 92260. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the 15th day of October 2020, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: GINA NESTANDE, MAYOR GRACE ROCHA, ACTING CITY CLERK 0 smartlink October 15, 2020 City of Palm Desert Planning Department " CD 73-510 Fred Waring Dr Palm Desert, CA 92260 cn m r, Re: Withdrawal of Application of CUP 19-002 N ; T Attn: Planning Department/Nick Melloni We are providing this letter to the City of Palm Desert of our intention to withdrawal our application assigned CUP No. 19-002 effective October 15, 2020. Sincerely, AL. xi,3-, Alexis Dunlap Smartlink LLC 3300 Irvine Avenue, Suite 300, Irvine, California 92660 alexis.dunlap@smartlinkgroup.com 3300 Irvine Ave, Suite 300, Newport Beach, CA 92660 p (949) 861-2201 f (949) 468-0931 smartlinkgrvup.com