HomeMy WebLinkAbout7154 RESOLUTION NO. 7154
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DENYING THE APPLICANT'S APPEAL OF PLANNING
COMMISSION RESOLUTION NO. 1970 AND DENYING CONDITIONAL
USE PERMIT NO. CUP 15-03, ARCHITECTURAL DESIGN REVIEW NO.
ADR 15-06, AND WIRELESS REGULATION WAIVER REQUEST NO. W
15-01 FOR THE REVISED PROPOSAL FOR A NEW WIRELESS
COMMUNICATION FACILITY HOUSED IN A 53'-0" TALL, FAUX BELL
TOWER STRUCTURE IN THE SOUTHEASTERLY PORTION OF THE
PARKING LOT AT THE CHURCH OF THE TRANSFIGURATION
PROPERTY AT 1881 SOUTH FIRST AVENUE
WHEREAS, on April 2, 2015, an application was filed by Mr. Ryan Birdseye of
Los Angeles SMSA Limited Partnership, dba Verizon Wireless, for a Conditional Use
Permit for a new wireless communication facility with a monopole antenna structure
disguised as a eucalyptus tree and an equipment shelter at the Church of the
Transfiguration property at 1881 S. First Avenue, Development Services Department
Case No. CUP 15-03; and
WHEREAS, on April 2, 2015, an application was filed by Mr. Ryan Birdseye of
Los Angeles SMSA Limited Partnership, dba Verizon Wireless, for Architectural Design
Review for the proposed new wireless communication facility at 1881 S. First Avenue,
Development Services Department Case No. ADR 15-06; and
WHEREAS, on April 2, 2015, an application was filed by Mr. Ryan Birdseye of
Los Angeles SMSA Limited Partnership, dba Verizon Wireless, for a Waiver Request for
the proposed new wireless communication facility to allow a new wireless
communication facility with a monopole antenna structure and an equipment shelter in
the R-1 zone, where such facilities are otherwise prohibited, at 1881 S. First Avenue,
Development Services Department Case No. W 15-01; and
WHEREAS, on November 18, 2015, Planning Services completed an
environmental assessment for the project in accordance with the California
Environmental Quality Act ("CEQA"), and it was determined to recommend that the
Planning Commission find that the project is exempt under CEQA per Section 15303(d)
of the CEQA Guidelines (Review for Exemption) because the project has no potential to
cause a significant effect on the environment, and because it consists of the extension
of a utility per CEQA Guidelines Section 15303, Class 3; and
WHEREAS, duly-noticed public hearings were held by the Planning Commission
on January 12, 2016 and March 22, 2016, at which times all interested persons were
given full opportunity to be heard and to present evidence; and
WHEREAS, following consideration of the staff reports and receiving public
testimony at both public hearings, and following discussion, the Planning Commission
found that the design of the proposed project did not satisfy various aesthetic and visual
standards for conditional use permit and architectural design review approvals in the R-
1 zone and that the applicant had not satisfied the conditions for a waiver request, and
denied the applications by Resolution No. 1952; and
WHEREAS, the applicant filed an appeal of the Planning Commission's decision
on March 29, 2016; and
WHEREAS, the City and the applicant agreed to defer the hearing of the appeal
by the City Council to allow additional investigation by the applicant of alternative
designs, with the understanding that if, as a result of this further investigation, the
application is substantially revised in a manner that warrants further review by the
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Planning Commission, the revised proposal would be reviewed by the Planning
Commission; and
WHEREAS, on July 29, 2016, the applicant submitted a revised proposal
including a new design to enclose the wireless facility in a faux bell tower next to the
church administration building at 1881 S. First Avenue and the City and the applicant
agreed that the revised proposal warranted further review by the Planning Commission;
and
WHEREAS, a duly-noticed public hearing was opened by the Planning
Commission on August 23, 2016, at which time all interested persons were given full
opportunity to be heard and to present evidence; and
WHEREAS, with the mutual agreement of the neighbors and the applicant, the
public hearing was continued to the September 27, 2016, Planning Commission
meeting; and
WHEREAS, the continued public hearing was held by the Planning Commission
on September 27, 2016, at which time all interested persons were given full opportunity
to be heard and to present evidence; and
WHEREAS, at the conclusion of the September 27, 2016 public hearing, the
Planning Commission directed staff to prepare a resolution denying the permit, for
consideration at the next regular meeting on October 11, 2016; and
WHEREAS, at the public meeting of October 11, 2016, the Planning Commission
adopted Resolution No. 1970, denying Conditional Use Permit No. CUP 15-03,
Architectural Design Review No. ADR 15-06, and Wireless Regulation Waiver Request
No. W 15-01 for the revised faux bell tower proposal; and
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WHEREAS, on October 18, 2016, the applicant filed an appeal of the Planning
Commission decision of October 11, 2016; and
WHEREAS, a duly-noticed public hearing was held by the City Council at the
regular meeting on November 15, 2016, at which time all interested persons were given
full opportunity to be heard and to present evidence; and
WHEREAS, at the request of the applicant, the City Council granted a
continuance of the public hearing to the January 17, 2017, regular meeting; and
WHEREAS, at the January 17, 2017, meeting, the City Council continued the
public hearing to the February 7, 2017, regular meeting; and
WHEREAS, the continued public hearing on the appeal was held by the City
Council on February 7, 2017, at which time all interested persons were given full
opportunity to be heard and to present evidence;
WHEREAS, at the conclusion of the February 7, 2017 public hearing on the
appeal, the City Council directed staff to prepare a resolution denying the appeal and
the applications, for consideration at the next regular meeting on February 21, 2017.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA
RESOLVES AS FOLLOWS:
SECTION 1. That the City Council has considered the Planning Commission
record and factual data submitted by the Development Services Department in the staff
report dated February 7, 2017, and all testimony, evidence and arguments submitted by
interested parties at the public hearing on the appeal.
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SECTION 2. This Council finds:
a. That the use applied for at the location indicated is properly one for
which a Conditional Use Permit could be authorized with a Waiver.
FACT: The zoning of The Church of the Transfiguration property is R-1, Second
One-Family Zone, where wireless facilities are normally prohibited by Arcadia Municipal
Code Section 9288.6 except for facilities on public rights-of-way and City-owned
properties. Only by satisfying the requirements for a Waiver, as provided by Arcadia
Municipal Code Section 9288.8 would the facility be allowed. However, the City Council
has determined that the applicant has not demonstrated that the project meets the
standards of the Waiver request for the reasons described in Section 2.b. below.
b. That a waiver of certain provisions of the wireless communication
facility regulations, as provided in Arcadia Municipal Code Section 9288.8, is not
justified in order to avoid having the effect of prohibiting the provision of wireless
communications services pursuant to the United States Telecommunications Act
of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)).
FACT: As provided in Arcadia Municipal Code Section 9288.8, a waiver of any of
the location, design or other requirements and restrictions in Division 8 (Wireless
Communication Facilities) may be granted by the City, upon the request of the
applicant, where the applicant demonstrates that such restriction or requirement
prohibits or has the effect of prohibiting the provision of wireless communications
services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C.
§332(c)(7)(B)(i)(II)). This generally involves the applicant demonstrating both (i) that
there is a significant gap in the applicant's personal wireless service in the area where
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the proposed facility is to be located, and (ii) that the applicant's proposed facility is the
means of addressing that significant gap that is the least intrusive to the values that the
Arcadia Municipal Code's location, design or other requirements and restrictions sought
to serve, having made a good faith inquiry into the availability and feasibility of
alternative facilities or site locations for addressing that significant gap.
In Resolution No. 1970, the Planning Commission found that the applicant had
failed both to meet its burden of demonstrating that there is a significant gap in its
service and to meet its burden of demonstrating that the proposed wireless facility
concealed in a 53 foot tall faux church bell tower is the least intrusive means to address
the alleged significant gap. Having reviewed the record of the Planning Commission
proceeding, and the additional testimony, materials, evidence and arguments submitted
at the public hearing on the appeal, the City Council has determined that the applicant
has again failed both to meet its burden of demonstrating that there is a significant gap
in its service and to meet its burden of demonstrating that the proposed wireless facility
concealed in a faux church bell tower is the least intrusive means to address the alleged
significant gap. The reasons are set out below.
1. The applicant has not demonstrated there is a "significant gap" in its
wireless service in the R-1 residential area of south Arcadia where it proposes to
install its wireless communications facility.
In the initial Waiver Request prepared for the applicant by Tectonic Engineering
& Surveying (dated August 26, 2015; revised December 9, 2015), maps showing
existing coverage and drive test data were provided and the report stated there was a
gap, but did not describe it as significant. Instead the report stated that Verizon
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"identified a gap in coverage at the intersection of South Santa Anita Avenue and West
Longden Avenue" and described this as "a gap in coverage in the residential land use
dominated neighborhoods of South Arcadia." The report indicated the applicant had
established a "search ring" labelled "Wistaria" bounded "to the north by Camino Real
Ave. — to the south by Longden Ave. — to the west by El Monte Ave. — and to the East
by 2nd Ave." The report explained that Verizon "has made it a top priority to provide
competitive mobile data coverage. Specifically, this means more than coverage for calls
but coverage for online content i.e. newsfeeds, radio feeds, social media content and all
of the associated movies-videos-and music-related to these sites." Further, the report
stated "Verizon Wireless responding to the high demand for data coverage in service
limited areas such as low density residential neighborhoods and responding to the ever
increasing market demand for competitive internet/web data speeds for its customers
feels that the proposed site selected at the Church of the Transfiguration is justified."
As required by Section 9288.8(b) of the Arcadia Municipal Code, a consultant
from Commvergent Technologies, an independent, technical firm reviewed the Waiver
Request filed by the applicant with its initial application and provided an initial report
dated January 5, 2016. In the discussion of the justification for the placement of the site,
the reviewer stated that the "[c]overage map projections for this site before and after
installation are included in the application and demonstrate how this particular site will
improve coverage. In addition, Verizon has performed a drive test of the area to verify
the modeled projections of signal coverage from existing sites to confirm the data." As
to whether Verizon had demonstrated a "significant gap" in its service, the reviewer did
not clearly express an opinion. The applicant's initial Waiver Request was denied by the
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Planning Commission in Resolution No. 1952 in part because it was not clear that any
alleged gap in personal wireless services was significant.
After the Planning Commission denied its initial application for a wireless facility
concealed as a faux mono-eucalyptus tree, the applicant revised, resubmitted and
supplemented its initial Waiver Request several times. The applicant now specifically
claims that it has a "significant gap" in its fourth-generation long-term evolution (LTE)
service in the south Arcadia area. The applicant has submitted two reports by RF
Engineers who were in the employ of Verizon Wireless when the reports were prepared.
These are the Mata report dated July 27, 2016 (which was provided to the Planning
Commission before its hearing on the revised application with the faux bell tower
design); and the Nguyen report dated November 7, 2016 (which was provided to the
City Council, along with the Mata report as part of the applicant's appeal materials).
The Mata report provides maps and data which purported to demonstrate that
there exists coverage and capacity demands in south Arcadia resulting in a significant
gap in LTE service. The coverage gap is described as an absence of LTE in-building
coverage in an area roughly bounded by La Sierra Drive to the north, Fourth Avenue to
the northeast, Sixth Avenue to the southeast, the Longden Avenue area to the south,
and El Monte Avenue to the west, and including residential areas along Santa Anita
Avenue. The statement further indicates the subject site will provide reliable LTE service
to an area of approximately 1.3 square miles and a population of 31,000 residents. The
capacity gap is identified as arising because east-facing antennas on the Amada
Arcadia medical facility serving a large area of the alleged gap are "projected to reach
capacity exhaustion in mid-2018." Verizon claims that capacity exhaustion will severely
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compromise the Verizon Wireless network serving the south Arcadia area, leading to
"call failures and slow data speeds." No data on actual call failures or slow data speeds
was provided. The Mata statement also indicates that: "At times of high traffic volume,
the coverage area of the surrounding Verizon Wireless facilities shrinks to
accommodate an increasing number of mobile devices closer to that facility. As a result,
the Coverage Gap area is actually enlarged during times of high customer usage."
During the Planning Commission's public hearing on September 27, 2016,
members of the Planning Commission raised numerous questions about the
methodology and assumptions used by Mr. Mata in his analysis and propagation maps,
and about the basis for the conclusions contained in the written statement, in particular
concerning the basis for determining the existence and significance of the alleged gap.
Mr. Mata was not present at the hearing to answer these questions and the applicant's
representative who was in attendance was not a RF engineer and was unable to fully
and adequately answer these or other questions of the Planning Commission.
Concerning the significance of the alleged gap, Planning Commissioners also
questioned how it had been determined that "an area of approximately 1.3 square miles
and a population of 31,000 residents" (which amounts to almost half of Arcadia's total
population but only a small portion of its land area) are currently being impacted by a
lack of coverage in this area. The Planning Commissioners asked for more information
such as how many of the 31,000 residents were actual Verizon customers and how
many dropped calls have they had. The applicant's representative was unable to
provide specifics as to how the 31,000 figure was determined. The Planning
Commissioners concluded that the applicant had failed to adequately explain the
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assumptions underlying the applicant's claim of a significant gap and had therefore
failed to meet its burden of demonstrating that there was a significant gap in its service.
After the Planning Commission denied the application, the applicant submitted a
revised Waiver Request as part of its appeal to City Council which included a
supplemental statement from another Verizon RF Engineer (Nguyen report) dated
November 7, 2016. The Nguyen report explained that the 31,000 figure in the Mata
report really referred to the total coverage area of the proposed facility even where
service would duplicate that of existing Verizon facilities, and that a more accurate
representation of the affected population who would receive improved voice and data
services directly from the proposed facility was estimated at approximately 8,000
residents. At the public hearing, the applicant estimated that its customer base in the
area would be approximately 35-40% of the affected population. The Nguyen report
also discussed Verizon's 2015 drive test data that purports to demonstrate that this
south Arcadia area is experiencing unacceptably weak LTE signal.
Collectively, Verizon's evidence purported to show a significant gap in service by
illustrating three factors: First, the coverage gap was shown by a "Current LTE
Coverage Map" depicting decreasing levels of coverage, and a "Drive Test Reference
Signal Receive Power" map plotting the signal along the drive test area. In the Nguyen
report's discussion of this LTE coverage map, RSRP above -85 dBm (shown in green)
was described as good coverage that would provide consistent and reliable network
coverage in vehicles and in homes; RSRP between -85 and -95 dBm (shown in yellow)
was described as representing reliable in vehicle service but not in buildings; and RSRP
between -95 and -105 (shown in purple) indicated poor service areas with marginal
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coverage unsuitable for in vehicle use. However, in the drive test map discussion, the
Nguyen report described a higher standard for in-building coverage, stating that only
areas above -80 dBm are "where calls can be made in a building or vehicle or on the
street. Weaker signal (less than -80 dBM)...are areas where Verizon Wireless
customers will experience poor service indoors." Unlike the coverage map, the drive test
map does not show areas that are above -85 dBm, but color-codes various ranges
including one that is -90 to -80 dBm. Second, the alleged capacity gap was shown by
depicting best server plots for nearby Verizon Wireless facilities. This showed that
Verizon's Amada Arcadia Medical facility's east facing antenna sector serves a large
area described as the significant gap area. A capacity graph for this antenna sector
indicated that the antenna sector was projected to reach capacity exhaustion in mid-
2018, which in Mata's view "severely compromises the Verizon Wireless network
serving the south Arcadia area, leading to call failures and slow data speeds." No actual
data was presented on call failures or slow data speeds in south Arcadia in connection
with this statement. Third, the unreliability of the LTE service in the gap area was
purportedly demonstrated by a map in the Mata report depicting signal-to-interference-
plus-noise ratio (SINR). Areas marked in dark blue and white were said to receive "poor
LTE signal from multiple surrounding Verizon Wireless antenna sectors causing
customer handsets to alternate between weak signals from multiple antenna sectors,
resulting in poor connection speeds and dropped connections." What SINR that
category represented was not indicated on the map or explained in the discussion of the
map, and no actual data was provided on poor connection speeds or dropped
connections in connection with this statement. The applicant also included the results of
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a text message it sent to customers with Arcadia zip codes asking if there was a need
for "improved Verizon Wireless service in Arcadia" which it claimed resulted in 446 text
messages received supporting improved service in Arcadia. At the public hearing, the
applicant confirmed that today there are currently 5 Verizon Wireless facilities serving
this area of Arcadia including with LTE service as shown on the coverage map, and
what the new facility would do is provide the dominant signal for the alleged gap area.
The applicant also explained that it provides services on four frequency bands, and that
its 3G service is being phased out and 4G LTE AWS is replacing it.
Commvergent was retained by the City to peer review Verizon's updated Waiver
Request including the Mata and Nguyen reports and to update Commvergent's initial
report. In a report dated January, 2017, the Commvergent reviewer agreed the Verizon
data showed a gap in reliable in-building LTE coverage in the area around the proposed
site. No independent drive test data collection was performed. The report relied on
Verizon's data and publicly available sources of information. At the public hearing, it
was explained that drive test data measures the signal in the street (not in the buildings)
and then extrapolates what the signal strength would be inside the buildings using
software. The reviewer thought Verizon's assumptions were reasonable and agreed
with the conclusion reached that the gap was significant based on the alleged 8,000
residents affected in the 1.3 square mile area of poor coverage. The assumption that
8,000 residents would be affected was said to be consistent with the population density
for the area as reported by the US Bureau of Census. Nonetheless, at the public
hearing, the Commvergent reviewer also expressed the view that the applicant's current
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voice coverage in the alleged gap area has a likelihood of dropping a call of less than
1% and that it is also currently possible to stream data in the area.
At the public hearing on the appeal, members of the public who formed a group
opposed to the project called Arcadians Against Residential Towers (AART), presented
evidence that highlighted discrepancies and inconsistencies in Verizon's own reports
and in other industry data regarding what signal strength is considered good or poor for
in building LTE coverage. Mark Xiong, an RF design engineer with a Bachelor of
Science in Electrical Engineering from University of Illinois at Urbana-Champaign, and a
Master of Science in Electrical Engineering with an emphasis in RF Communications
from the University of Southern California, provided a statement on behalf of AART. Mr.
Xiong pointed to numerous discrepancies in Verizon's data and reports such as
discrepancies in the drive test dates and data reported for the drive test which may
indicate there was not one but two drive tests a day or two apart which reported
dramatic differences in the results without explanation. Mr. Xiong also included copies
of several engineers' reports and maps submitted by Verizon Wireless (or its
consultants) to other jurisdictions as part of its applications for wireless facilities in those
communities, including in San Marino, a residential community nearby to Arcadia.
These reports stated that an LTE signal of -95 dBm RSRP was targeted for in-building
coverage, which was inconsistent with the application for Arcadia in which the applicant
stated it viewed RSRP between -85 and -95 dBm, as not representing reliable in
building service and needed to target either RSRP above -80 or above -85 dBm for in
building coverage (depending on the Verizon map). Mr. Xiong also included publicly
available data from Root Metrics, a company that tests mobile network performance
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from a consumer's point of view, which also showed that the area of the proposed
facility had good LTE coverage from Verizon Wireless measured at -95 dBm RSRP. As
against the equivocal and inconclusive information submitted in the Nguyen and Mata
reports we have conflicting evidence from Verizon suggesting it doesn't need the
coverage level claimed, from Root Metrics, and we have the other discrepancies
pointed out by Mr. Xiong. The conflicting expert evidence is material to our
determination as to whether there is a gap in in building coverage and its significance
because, among other reasons, as Mr. Xiong points out in his statement, the alleged
gap entirely disappears on one of the applicant's coverage maps if -95 dBm RSRP is
used as the measure of adequate in building coverage. Verizon did not address the
conflicting expert evidence at the hearing, but Commvergent indicated that some
coverage standards are more appropriate for rural areas and others for suburban areas.
Mr. Xiong also pointed out that the alleged capacity gap is not an existing gap, but one
which the Mata report states is projected to occur in mid-2018 based on predicted
usage trends.
We are not persuaded that the results of the applicant's text message campaign
asking if there was a need for "improved Verizon Wireless service in Arcadia"
demonstrates anything more than the fact that it is human nature to want goods or
services always to be better. And we find it to be no more persuasive or less anecdotal
than the claims of already having excellent Verizon Wireless coverage made by some
opponents of the project at the public hearing.
In light of all of the evidence presented by the applicant, the City's reviewer and
AART, the City Council is not convinced that Verizon has met its burden of establishing
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a gap in in building LTE service, but even assuming the evidence on balance shows
there is a "gap", we are not convinced that the applicant has demonstrated it is
significant. In considering whether any gap is "significant", the City Council is guided by
case law summarized in the record indicating that "'significant gap' determinations are
extremely fact-specific inquiries that defy any bright-line legal rule." MetroPCS v. City &
County of San Francisco, 400 F.3d at 733. Federal law, "does not guarantee wireless
service providers coverage free of small 'dead spots'." Id. See also, MetroPCS Inc. v.
City & County of San Francisco, 2006 U.S. Dist. LEXIS 43985, 28-34 (N.D. Cal. June
16, 2006)("...the court is mindful that the TCA does not guarantee MetroPCS seamless
coverage in every location within the Richmond district. Indeed, courts have expressly
recognized that the presence of 'dead zones,' or pockets in which coverage does not
exist, are not actionable for purposes of arguing effective prohibition claims under the
TCA...."). In a case referred to in the materials, Sprint PCS Assets, L.L.C. v. City of
Palos Verdes Estates, 583 F.3d 716 at 727(9th Cir. Cal. 2009), the court provided
numerous examples of "context specific factors" that have been considered in
assessing the significance of alleged gaps. The examples include: whether gap affected
significant commuter highway or railway; assessing the "nature and character of that
area or the number of potential users in that area who may be affected by the alleged
lack of service"; whether facilities were needed to improve weak signals or to fill a
complete void in coverage; gap covers well-traveled roads on which customers lack
roaming capabilities; considering "drive tests"; whether gap affects commercial district;
whether gap poses public safety risk.
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In this instance, on the one hand the applicant suggests the gap is significant
because 8,000 residents in a 1.3 square mile area would potentially benefit from
improved LTE coverage particularly focused on in building coverage. The Commvergent
reviewer agreed but AART presented evidence that suggested the population figure
should be just over 6,500 based on 2010 U.S. Census data.
On the other hand, setting aside those numerical disputes, the City Council can
take notice of the following, which is evident to anyone who lives or works in Arcadia.
The area where a "significant gap" is claimed to exist consists almost entirely of single-
family homes. Many of the homes front relatively small streets, and several of those
streets are not through-streets or are cul-de-sacs. There is a church, a few schools, and
a few small parks in the area. There are very few commercial businesses. As a result, it
is clear that any gap — which affects an area that is roughly 4 blocks wide and 4 blocks
deep — would affect primarily the area's residents. It has not been claimed that there is a
significant gap in service to the broader public that can be closed least intrusively by the
proposed facility. In other words, this area is a suburban residential community where
there are no significant commuter highways, railways, commercial districts, or other
well-travelled roads in the vicinity that might heighten the significance of this alleged
gap. Nor has it been claimed that the applicant is unable to provide personal wireless
service even to the residents within the gap area — rather, the claim is that personal
wireless service using a particular frequency and technology (LTE) may be impaired.
The Commvergent report indicated that LTE service today is principally used for video
streaming. The applicant did indicate that LTE can also be used for voice service
(VOLTE) when the other frequencies are tied up, and for data streaming such as for
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computers in police vehicles. However, the local roads in the area are not lacking in-
vehicle service according to the applicant's Current LTE Coverage Map which appears
to show there is existing LTE coverage outdoors and in vehicles on the streets of this
residential area. The areas of marginal coverage and Verizon's significant gap claim
rests only on the significance of poor in-building LTE coverage in single family
residential homes. No actual data was presented indicating there have been dropped
calls or even dropped data connections in homes in the area as a result of the current
level of in building LTE service. Today there is voice and data service available in the
alleged gap area, and there is LTE service in much of the alleged gap area that is at
least functional.
In light of all the evidence, the City Council is not convinced that if there is any
gap in in building LTE service in this residential area of south Arcadia today, that the
alleged in building gap amounts to a significant gap in LTE service in this residential
neighborhood today or in the immediate future.
Failing to meet either of the two prongs of the effective prohibition standard
merits denial of the Waiver Request. For this reason, the Waiver Request is denied.
Below, assuming our conclusion there is a no significant gap may be challenged, the
City Council has also evaluated whether the applicant has satisfied its burden of
showing that the proposed facility is the least intrusive means of filling the alleged
significant gap.
2. The applicant has not demonstrated that the proposed wireless
communications facility is the least intrusive on the values that the restriction on
wireless communications facilities in the R-1 residential area sought to serve.
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Even assuming that there were a significant gap in LTE service, after considering
the alternatives, arguments and evidence in the record and presented at the public
hearing, the City Council finds that the applicant has not met the burden of proof that
the applicant's preferred alternative — a standalone wireless tower proposed to be
disguised as a 53 foot tall faux bell tower — is the means of filling the gap in this
residential area of south Arcadia that is least intrusive to the values that the Arcadia
Municipal Code's location, design or other requirements and restrictions sought to
serve.
To evaluate least intrusive means requires an evaluation of the proposed facility
in light of the land use values of the affected area. In the R-1, Second One-Family Zone,
uses are limited almost exclusively to single family dwellings and height, appearance
and exterior features are tightly regulated. Commercial uses are generally not permitted
and likewise wireless facilities are prohibited in the R-1 Zone by Arcadia Municipal Code
Section 9288.6 except for facilities on public rights-of-way and City-owned properties
and those that qualify for a waiver.
The applicant proposes to conceal its wireless tower in a 20' x 20' faux bell tower
to be constructed in the parking lot of the Church of the Transfiguration near an
administrative building. The applicant proposes to design the tower with similar
architectural features as the existing church buildings with a pitched roof edged with
terra cotta tiles, plaster stucco walls and arched panels complementing the shape of the
chapel. The base of the tower would have space to enclose equipment cabinets and a
standby diesel generator.
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There were numerous other concerns expressed at the public hearing about the
proposed design, materials, and location of the faux bell tower which called into
question the extent to which it would be compatible with the existing buildings on the
site, would blend into the neighborhood or would otherwise meet the standards in
Section 9275.1.2 of the Arcadia Municipal Code for granting a Conditional Use Permit,
which require, among others, that the granting of such Conditional Use Permit will not
be detrimental to the public health or welfare or injurious to the property or
improvements in such zone or vicinity; that the site for the proposed use is adequate in
size and shape to accommodate said use, and all yards, spaces, walls, fences, parking,
loading, landscaping, and other features required to adjust said use with the land and
uses in the neighborhood; and that the granting of such Conditional Use Permit will not
adversely affect the comprehensive General Plan. Examples of the types of concerns
that were expressed include:
• That the City consider the potential health risks to sensitive receptors
when considering the application, due to the close proximity of the
proposed diesel generator to sensitive receptors such as children. This
concern was expressed in a letter the City received from the South Coast
Air Quality Management District (SCAQMD) staff prior to the public
hearing.
• That the height of the tower would far exceed the existing 30 foot height
limit for the R-1 residential zone, and that the tower would be a looming
presence dwarfing the mostly single story ranch style homes in the
neighborhood. Commvergent's report pointed out that the original
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photosimulations provided by the applicant did not accurately represent
the height of the proposed tower, and the applicant submitted corrected
photosimulations prior to the public hearing. AART suggested both the
height and the width of the proposed tower were misrepresented in the
original photosimulations.
• That the proposed location of the tower — in the parking lot more than 7
feet away from the administrative building — looked out of place on the
site as it would not be in the yard with the other church buildings or
attached to any church building like a typical church tower, and it would
not even be adjacent to the actual church on the site.
• That locating the tower at the back of the property did not provide a safe
set back or fall zone from other buildings such as the school in the
adjacent lot, and that it would involve trenching along the dripline of 9
coast live oak trees which are protected trees under the Arcadia
Municipal Code.
• That the special RF screening materials used to ensure that the signals
can pass through the tower walls would not match or age like the other
buildings on the site.
• That the property was already in violation of ADA handicapped parking
requirements and landscaping requirements of prior conditional use
permits and that eliminating additional parking spaces to accommodate
the proposed tower would exacerbate non-compliance.
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• That the proposed faux bell tower would negatively affect property values
because of Feng Shui, concerns about radio frequency emissions, and
concerns the tower could be modified without the City's consent to a
height as tall as 81 feet as a result of federal preemption under Section
6409 of the Middle Class Tax Relief and Jobs Creation Act of 2012.
At the public hearing, the applicant indicated a willingness to exclude the standby
generator to address concerns about sensitive receptors. The applicant indicated that
the proposed height was needed to achieve coverage objectives and the location on the
site was chosen to accommodate the requirements of the property owner and to
facilitate access to the tower for construction and maintenance. Planning staff indicated
that existing non-compliance would have to be remedied, and that the plan check and
building permit stage would ensure that appropriate building materials would be
selected. The spokesperson for the church also expressed a serious interest in ensuring
the tower match existing buildings.
The evidence and testimony on radio frequency emissions presented by Dr.
Bushberg on behalf of the applicant fully demonstrated that the applicant's proposed
facility would comply with the Federal Communications Commission's regulations on
radiofrequency emissions. The City Council dismisses as speculative or unfounded all
concerns raised at the hearing about the impact on property values due to Feng Shui
principles, concerns about radio frequency emissions, and concerns about the possible
future application of Section 6409 of the Middle Class Tax Relief and Jobs Creation Act
of 2012 to the proposed tower.
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However, the City Council shares the concerns expressed about the proposed
height, design and location of the proposed facility and we are doubtful that, even if it
were a church tower without a wireless facility, it is the type of development that would
be approved in this residential area because no matter how well its appearance
matches existing buildings, its excessive height and location in the parking lot are not
compatible with and do not blend in with the existing structures on the property, would
detract from the "positive physical image and identity" of the neighboring single-family
home neighborhood, would not be sensitive to neighborhood context, building forms,
and scale, and would compromise the "visual character of the community." While the
faux bell tower may be somewhat similar in proportion to towers at other churches in the
City, those churches with tall bell towers are located on busy streets and in or near
commercial areas of the City unlike the subject site. As such, it is in our view not
reasonable for the Church to have such a tall structure, particularly one in the parking
lot detached from the other church buildings and not near the actual church. Thus, the
project will be visually intrusive upon the residential neighborhood.
As part of its showing that its selected alternative is the least intrusive means, the
applicant is also required to demonstrate that it has made a good faith inquiry into the
availability and feasibility of alternative facilities or site locations for addressing the
alleged significant gap. At the public hearing, the applicant indicated that it had been
guided by the Arcadia Municipal Code in its search for alternatives that would be the
least intrusive. The applicant's initial Waiver Request stated that the proposed site at
1881 S. 1st Avenue was the preferred site, and mentioned four alternatives, two school
sites, one park and the right of way. The school and park sites were dismissed due to
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lack of landlord interest or for technical reasons. The report stated: "Of the candidate list
provided below potential Right Of Way sites were largely deemed infeasible for
logistical/operational reasons. Also, [Verizon] felt that a more centralized approach to
providing coverage is an advantageous and less intrusive trend in low density single
family residential neighborhoods like Arcadia." The report provided four reasons for not
pursuing the right of way sites: "(1) Parcels surrounding the proposed site extend out to
the curb rendering the ROW limited to the street. (2) Sidewalk style small cell
development necessitates multiple locations with very complex underground designs.
(3) ROW sites are considered low in height, low RAD center will not meet coverage
required for this project. (4) Large antennas (8ft) are required to achieve -15Dbd (sic) of
gain desired, large antennas are not allowed on ROW sites." Thus, the applicant
appeared initially to reject two types of right of way alternatives, larger installations in
the right of way near the church property, and small cell networks.
Commvergent Technologies commented on this site selection in its initial report
dated January 5, 2016. The reviewer expressed the opinion that the applicant's chosen
location "has been designed to be the least practical intrusion consistent with sound
engineering practices[]" as compared to the alternative locations investigated by the
applicant. With regard to the right of way alternatives, the report suggested that the
applicant only looked at a single large installation in the right of way, and opined that at
least 4 larger right of way sites would be required to" duplicate the coverage" of the
proposed site. The reviewer found that these larger facilities would be infeasible and
difficult to site due to their large size. He did not comment on a small cell network
alternative.
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Testimony provided by the applicant at the March 22, 2016 Planning Commission
hearing seemed to contradict the conclusion that a small cell network alternative would
be infeasible. The Planning Commission Resolution No. 1952 denying the wireless
facility disguised as a faux tree noted that the applicant's representative stated that
multiple locations on the public rights-of-way could also provide an equal level of
service. The resolution said it was arguable that the applicant's alternative of multiple
small antennas in the public rights-of-way could not only provide an equal level of
service but could do so in a manner that would be less intrusive.
After that first Planning Commission denial, the applicant submitted two revised
Waiver Requests which included revised alternatives analyses dated July 28, 2016 and
November 7, 2016. Both of these alternatives analyses listed not 4, but 13 alternatives
plus the small cell network alternative (six of the additional alternatives being sites that
are stated to be outside the gap area and discounted due to lack of landlord interest).
The other three additional alternatives reviewed and dismissed for technical/interference
reasons or lack of landlord interest included another park, another school and a water
tank.
The revised alternatives analyses considered a small cell facilities network of 10
small cell facilities comprised of two- to four-foot antennas mounted on streetlight or
utility poles as well as equipment cabinets mounted on the poles and on the ground
adjacent to the poles. The applicant stated these would be required in residential areas
with yards abutting the curb with no sidewalk or visibly public space for ground-mounted
equipment. The applicant evaluated a network of 10 proposed locations and concluded
that such a network would provide "inferior coverage" compared to "more ubiquitous" in-
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building coverage from the proposed tower at the church site because it would leave
some gaps in in-building coverage. The applicant also speculated that the individual
aesthetic and environmental impact of each of the 10 small cells would "likely" be more
intrusive on immediate neighbors than the minimal impacts of the church site. Therefore
the applicant concluded that the small cell network could not be considered a less
intrusive and feasible alternative to the proposed tower. The applicant's analyses did
not include photos or photosimulations of small cell sites. But the Staff Report provided
to the Planning Commission and to the City Council included
photographs/photosimulations of two small cell network installations (at least one of
which depicts a Verizon Wireless facility in Arcadia).
After considering the July 28 alternatives analysis, the Planning Commission
indicated in its decision that it felt it was unclear whether the gaps left by the 10 small
cell network would be "significant" or how many additional small cell sites might be
required to achieve comparable coverage to the proposed tower. Although a small cell
network alternative would require facilities at multiple sites, the Planning Commission
took the view that these facilities would seem to involve relatively small facilities
attached to existing infrastructure (utility poles or street lights) and cabinets which are
already fairly commonplace in the residential zone. Thus, even on a cumulative basis,
the Planning Commission suggested this alternative would appear to be less intrusive to
the affected residential neighborhood as compared to the proposed 53-foot tall faux
church bell tower.
The City Council has before it additional information to evaluate a small cell
network alternative, including testimony and another revised alternatives analysis from
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the applicant (with a slightly longer discussion of the small cell network alternative but
still no photos or photosimulations), testimony and an updated report from
Commvergent (which reviews and addresses the small cell network alternative), and
testimony and examples of other small cell deployments compiled and submitted by
AART.
Though the discussion in its latest alternatives analysis is slightly expanded, the
applicant's conclusions about the alternative of a network of 10 small cells are little
changed from those presented to the Planning Commission, and it continues to believe
that a small cell network would be "inferior to the more ubiquitous in-building coverage
provided by the Proposed Facility." The applicant also concludes that the inferior
coverage of small cells and the potential increased impacts due to multiple locations
means "a small cell network is not the proper technology to serve the broader
Significant Gap." However, despite this claim, the report also states that "a small cell
network would provide limited service absent a large number of small cell nodes." --
which suggests service limitations could largely be overcome with a large enough
network. The report never explained why a network of only 10 small cells and not some
larger number was considered. The Commvergent report reached a similar conclusion
about the network of 10 small cells. However, when asked at the public hearing about
the number of small cells that might be required for comparable coverage to the macro
site in the alleged gap area, Commvergent's consultant suggested it could be in the
range of 25 to 30. At the public hearing, the applicant concurred with that estimate.
When asked if a small cell network could be built in lieu of the proposed macro site, the
applicant agreed a small cell network could be built but maintained it would provide
26
inferior in-building coverage and leave gaps, as the blocks in the area are long. .
However, the applicant also said that small cell networks are a "very viable way of
providing service" and they are typically used to complement macro site coverage, but
they do come in a range of sizes and configurations. The applicant indicated that small
cell networks are generally used for LTE only, but in order to provide all of its services
using a small cell network in the gap area, it would likely require small cells with larger
equipment configurations of the type shown in the photo of the Verizon Wireless small
cell included in the Staff Report (with 24 inch cans, 4 feet high and ground equipment),
rather than the smaller more elegant designs installed by Verizon Wireless in some
cities such as San Francisco. The applicant stated that they endeavor to site small cells
on existing infrastructure such as utility poles. The applicant also noted that in other
jurisdictions where it was installing large networks of small cells, such as 90 in Palo
Alto, and 400 in San Francisco, there had been difficulties siting them because some
people found them visually intrusive while others did not. The applicant acknowledged
that it was the City Council's decision if that would be more intrusive than the proposed
tower but stated the applicant believed it would be and so did the Commvergent
reviewer. Members of AART also submitted a substantial package of materials with
photos and other information about other small cell deployments (including many by
Verizon Wireless as well as other carriers) on utility poles and street lights in other
southern California cities such as Los Angeles, Atwater, Pasadena, San Marino, Orcutt
and Fallbrook, as well as in Arcadia. The AART materials included photos of what they
described as unobtrusive small cell deployments by Verizon Wireless and also pointed
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out that various roadsides in the alleged gap area have pre-existing utility poles that
might be used for small cell installations.
Additionally, the applicant failed to reasonably demonstrate to the City Council
that co-locating a new facility at the existing facility at El Monte and Palm is not feasible,
in lieu of the currently proposed location. In response to questioning, the applicant
merely stated, without demonstrating a factual foundation, that such an alternate facility
would not be sufficient to eliminate the applicant's asserted gap.
After considering these materials and evidence, the City Council is not
persuaded that the applicant has met its burden of demonstrating that the faux bell
tower is the least intrusive alternative. The applicant does not seem to have given
sufficient consideration of the small cell network alternative which appears to be an
available and technologically feasible alternative deployed by the applicant in other
communities. We note that wireless communications facilities are permitted in the public
right of way in residential zones in Arcadia, and recognize that a small cell network
alternative would likely require relatively small facilities at multiple sites attached to
existing infrastructure (utility poles or street lights) and cabinets which are already fairly
commonplace in the residential zone. We understand that the applicant believes such a
network may not provide coverage as ubiquitous as the applicant's preferred alternative
and may leave small dead spots, but we are also mindful that federal law does not
guarantee coverage free of small dead spots either.
Based on all the evidence, the applicant has not demonstrated that the proposed
faux bell tower is the least intrusive means of filling the alleged significant gap in
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service. For this reason, the City Council also finds that the project does not meet the
Municipal Code standards for approval of the Waiver Request.
c. Because the City Council has determined that the applicant has not
demonstrated that the project meets the standards for the Waiver, the Conditional Use
Permit and Architectural Design Review requests must also be denied.
FACT: Without the Waiver grant, the City Council may not approve the
Conditional Use Permit and Architectural Design Review applications.
SECTION 3. For the foregoing reasons the City Council denies the Applicant's
appeal of Planning Commission Resolution No. 1970, and denies Conditional Use
Permit No. CUP 15-03, Architectural Design Review No. ADR 15-06, and Wireless
Regulation Waiver Request No. W 15-01 for a new wireless communication facility
housed in a 53'-0" tall faux bell tower at 1881 S. First Avenue. This decision modifies
and replaces the denial decision of the Planning Commission in Resolution No. 1970.
This decision shall be final.
SECTION 4. The City Clerk shall certify to the adoption of this Resolution.
[SIGNATURES ON THE NEXT PAGE]
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Passed, approved and adopted this 21st day of February, 2017.
i, `�-
Mayor of the of Arcadia
ATTEST:
r C'yC -r
APPROVED AS TO FORM:
Stephen P. Deitsch
City Attorney
30
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF ARCADIA
I, GENE GLASCO, City Clerk of the City of Arcadia, hereby certifies that the
foregoing Resolution No. 7154 was passed and adopted by the City Council of the City of
Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said
Council held on the 21st day of February, 2017 and that said Resolution was adopted by
the following vote, to wit:
AYES: Amundson, Chandler, Tay, Verlato, and Beck
NOES: None
ABSENT: None
- r
,,,,,,•000slifcitirofte of th- City of Arcadia
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