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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 2 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 3 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. 4 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 5 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 6 "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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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. 15 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 16 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. 17 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. 18 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 19 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. 20 • 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. 21 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 22 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. 23 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- 24 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 25 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 27 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 28 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] 29 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 31