Legal and Regulatory Background

Federal and State laws are increasingly limiting local land-use discretion over wireless communications facilities. Under the Telecommunications Act, local governments retain their authority to regulate wireless facilities as long as the regulations:

1)    Do not prohibit or “effectively prohibit” wireless communications facilities;

2)    Do not unreasonably discriminate between communications service providers; or,

3)    Do not regulate based on potential environmental impacts associated with radio frequency (RF) emissions.

In a Ninth Circuit court decision, the court ruled that an applicant could demonstrate an “effective prohibition” on wireless services if there was a significant gap in service coverage and the proposed facility was the least intrusive means to address that gap. Recently effective Federal Communications Commission (FCC) rules adopt a much looser standard and specifically rejected the “significant gap/least intrusive alternative test,” instead saying an effective prohibition occurs when the ability to provide personal wireless services is “significantly impaired.” The FCC also ruled that for applications submitted after April 15, 2019, while aesthetics may be regulated, aesthetic standards must be objective, reasonable, non-discriminatory and published in advance.

The FCC also requires decisions to pass certain tests. A decision must be in writing, based on a written record, and supported by “substantial evidence” in that record. The substantial evidence test looks to whether an approval or denial is justified based on the City’s own codes. While a denial based on a local code is subject to challenge under federal law as an “effective prohibition,” if a denial is not properly tied to local requirements, it can also be challenged and overturned by a federal court.

Lastly, the FCC also sets certain “shot clocks” for cities and counties to review and approve a wireless application. In September 2018, the FCC adopted new rules governing the installation of “small wireless facilities” in the public right-of-way, including shot clocks as short as 60 days. These regulations only apply to sites whose physical dimensions fall within certain guidelines established by the FCC. The five sites proposed by Verizon do not fall within those physical dimensions. Therefore, the FCC’s 90-day shot clock applies for Sites 1 and 3. Because pole replacements are proposed at Sites 2, 4, and 5, the FCC’s 150-day shot clock applies to those facilities.

State law (CPUC Section 7901) grants telephone companies (including wireless providers and providers of wireless infrastructure) a limited right to use the public right-of-way (ROW) to “erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway.” Cities and counties retain the authority to determine the time, place and manner the right-of-way is accessed for temporary construction activities.

In April of this year, the California Supreme Court upheld a local ordinance regulating the aesthetics of wireless facilities (T-Mobile West LLC v. City and County of San Francisco). The Court ruled that local governments may regulate aesthetics to further their obligation to ensure utilities’ use of the right-of-way does not “incommode” the public under CPUC Section 7901. The Court broadly defined incommode to include, “noise generation, negative health consequences, or safety concerns that may come from telecommunications deployment and could disturb the use and quiet enjoyment of the public road” and “…cities and counties have inherent, constitutional police power to impose land use regulations including aesthetic requirements.”

Project Description

Verizon Wireless has submitted Design Review, Use Permit and Encroachment Permit applications for five, “small cell” wireless communications facilities to be mounted on existing or replacement PG&E utility poles in the public right-of-way (ROW) of the R-1 zoning district. The reference to “small” reflects the smaller geographic area that the antenna’s signals cover. The proposed facilities would be generally located between 10^th & 13^th Avenues and Junipero & San Antonio Streets (refer to Attachment 1).

Each wireless facility would contain one, 4’ tall antenna mounted to the top of a utility pole and one, 6’ tall equipment shroud mounted 9’ above grade to screen the remote radio units (RRU’s), power supply and other associated equipment. A disconnect switch and pole meter would also be mounted to the utility pole just below the equipment shroud. The antenna, associated equipment and all pole attachments would be painted a matte brown color. A summary of each site is provided in Table 1 below. Photo simulations are provided in Attachment 2.

Table 1. Existing and Proposed Pole Heights by Location

*Replacement poles are proposed at Sites 2, 4 and 5.

All five wireless facilities exceed the physical dimensions of a “small wireless facility” as defined by the FCC. Specifically, FCC regulations provide that each antenna in a small wireless facility must not exceed three cubic feet in volume, and that the associated equipment for each site must not exceed twenty-eight cubic feet. Each of the proposed facilities includes a canister-shaped antenna four feet in height and 14.6 inches in diameter. The volume of each antenna has been calculated at approximately 4.6 cubic feet. As a result, and for at least this reason, the proposed facilities do not qualify for treatment as small wireless facilities under federal law.

Local Regulations

The regulations pertaining to the proposed project include, CMC Chapter 17.46 (Telecommunications and Wireless Facilities), Residential Design Guidelines, Polices and Standards for Public Way Design, and the Encroachments Ordinance.

Carmel Municipal Code Chapter 17.46 (Telecommunications and Wireless Facilities) sets forth standards for the “siting, design, construction, maintenance and monitoring of wireless communication facilities.” The intent of the Ordinance is to, “promote the public health, safety and community welfare; preserve natural resources and scenic quality; and, protect the health and character of the City’s residential neighborhoods.” Chapter 17.46 requires a use permit and design review for wireless communication facilities.

Residential Design Guidelines are specific to the R-1 zoning district and focus on maintaining the traditional character of Carmel. Some of the key principles are to respect Carmel’s design traditions and balancing the built environment with the forest character.

The Policies and Standards for Public Way Design sets forth guidelines and standards for review of design (including placement), construction or reconstruction of utilities located on public ways within the City.

Municipal Code Chapter 12.08 requires an encroachment permit to, “…create, erect, construct, place, operate or maintain any obstruction, structure or encroachment including utility lines, sanitary system transmission lines or reclaimed water system lines in, over, under or on any sidewalk area, street, public right-of-way, park or parkway.”

The project has been reviewed for conformance with CMC Chapter 17.46 (Telecommunications and Wireless Facilities), the Residential Design Guidelines, the Policies and Standards for Public Way Design and CMC Chapter 12.08 (Encroachments). CMC Chapter 17.46 is included as Attachment 3 and the encroachment permit standards are included as Attachment 4.

Below are the findings that must be adopted when approving any use permit or design review permit, including permits for wireless communications facilities, followed by a staff analysis on whether the project meets the findings necessary for approval. A discussion of the encroachment permit standards is provided later in the report.

Use Permit Findings (CMC 17.64.010)

The decision to grant a use permit must meet the following findings:

1. That the proposed use will not be in conflict with the City’s General Plan.

Staff Analysis: General Plan Policy P1-53 states, “Promote the undergrounding of utilities where feasible and with minimum detriment to the root systems of trees.” Since the continuance of this item from the May 8^th meeting, the applicant has provided additional information on the undergrounding of equipment associated with the proposed wireless facilities (Attachment 6). The applicant identified a number of constraints to placing equipment underground in a vault including the following:

a)    The amount of space required for both the equipment and servicing of equipment. To accommodate the equipment, a vault of 8’-2” long by 5’-8” wide would be needed (approximately 46 square feet). 24” square exhaust vents would need to be placed on either side of the vault, at ground level, for ventilation equipment.  Based on all of these factors, the applicant estimates the total required excavation area to be 18’ long by 10’ wide by 8’-1” deep (1,440 cubic feet).

b)    The placement of the vault would need to be a minimum of 6’-10’ from the utility pole but no more than 30’ away. Trees, tree roots, driveways and underground utilities such as water, storm water, sewer and gas lines, as well as potential underground electric and/or communication lines serving individual homes could impede excavation and placement of underground vaults. Sloped areas would also need to be graded flat which could impede private driveway access and parking in the ROW would be lost to ensure that access to the vaults are not obstructed. To further ensure that vehicles do not park on top of vaults, bollards may be installed.

c)     The use of a vault would also require a ground mounted electric meter that would need to be protected with bollards further impacting parking in the ROW.

d)    Landscaping in the ROW would need to be trimmed or removed to provide the necessary clearances from both the vault and the electric meter pedestal.

e)    Without open air ventilation, additional equipment would need to be placed in the vault to cool the equipment and prevent condensation and moisture buildup. This equipment could generate noise although it is not known what the decibel level would be.

f)      Water intrusion would require the necessity for sump pumps and connection to a storm drain. Power outages would render the sump pumps inoperable which could lead to flooding of the underground equipment. Power outages would also render the ventilation equipment inoperable thereby shutting down the facilities during an outage.

In accordance with General Plan Policy P1-53, the feasibility of undergrounding equipment presents a number of challenges. The forest character of the village in the residential district including, minimally paved roadways; the lack of sidewalks, curbs and gutters; unimproved portions of the ROW that allow for a forested edge, trees, and informal parking, would be impacted. For these reasons, staff finds that the undergrounding of equipment may be infeasible without certain trade-offs.

As further discussed below, projects that do not comply with the zoning code and all applicable design and development standards cannot be found in conformance with the General Plan/Local Coastal Program.

2. That the proposed use will comply with all zoning standards applicable to the use and zoning district.

The zoning standards applicable to wireless facilities is found in Chapter 17.46 (Telecommunications and Wireless Facilities). The proposed project does not comply with the following standards:

A. Wireless communications facilities shall be allowed within all zones except the R-1 district. Such facilities shall be discouraged in open space areas, areas of extraordinary scenic quality and in the R-4 district.

Staff Response: All five wireless sites are proposed within the boundaries of the R-1 zoning district and therefore do not comply with this zoning standard. The facilities are not proposed in open space areas or the R-4 district. However, Sites 1 and 2 are located within the Beach & Riparian Overlay District and the California Coastal Commission’s coastal development permit appeal jurisdiction. Development within the Overlay District includes public and private property (CMC 17.20.140) and must consider the protection of public views to and along the ocean and scenic coastal areas. The view provisions of the Overlay District are intended to preserve the extraordinary scenic quality of the district; therefore, Sites 1 and 2 specifically are discouraged.

B. Wireless communications facilities, to every extent possible, should not be sited to create visual clutter or negatively affect important public or private views as determined by the Planning Commission. Wireless communications facilities are discouraged in the public right-of-way.

Staff Response: Wireless communications facilities are discouraged in the public ROW; therefore, all five sites do not comply with this standard. The Planning Commission may exercise their discretion in determining whether the facilities create visual clutter or negatively impact important views.

The co-location of wireless facilities on existing utility poles takes advantage of existing infrastructure in the public ROW. The utility poles at Sites 2, 4 and 5 (San Antonio 3SE of 13th; Lincoln 3 NE of 12th; and, Mission 2 SW of 12th) are proposed to be replaced with new poles with a 4’ high cylindrical antenna mounted to the top of the pole. The utility poles at Sites 1 and 3 (San Antonio 1 NW of 10th and 10th 1 NW of Dolores) would be retained and a 7’-4” wooden pole extension would be installed with the 4’ antenna mounted to the top of the extension (refer to Attachment 7, Project Plans). The applicant has indicated that the pole extensions are necessary in order to maintain PG&E’s required clearances between electric distribution lines and the new antenna.

The antenna diameter is approximately 4.6”. The diameter of each utility pole is unknown; however, the plans seem to indicate that the diameter of the antenna will be slightly smaller than the diameter of the pole. The antenna would be painted a matte brown color to blend with the wooden utility pole.

As noted in Table 1 above, proposed pole heights (with the antenna attached) would range from 40’-10” to 49’-9”. A 24 cubic foot (6’x2’x2’) equipment shroud would be mounted to the utility pole a minimum of 9’ above grade. The shroud would screen the RRU’s, power supply and other equipment. Below the shroud a disconnect switch, smart pole meter and required RF signage would be mounted to the utility pole.

Sites 1 and 2 in particular are located within the Beach & Riparian Overlay District and the Coastal Commission Appeal Jurisdiction, an area of high scenic quality that provides both private and public views of Carmel Bay. The additional height of the poles (40’-10” and 48’, respectively) with an antenna mounted on top would create visual clutter in such a high scenic area. Furthermore, the size of equipment area, both within the shroud and below the shroud, would create additional visual clutter on the utility pole at a height that is readily visible to the public and adjacent private residences. Therefore, all five sites do not comply with this standard because they are located in a area that is discouraged and they would create visual clutter.

3. That granting the use permit will not set a precedent for the approval of similar uses whose incremental effect will be detrimental to the City, or will be in conflict with the General Plan.

Staff Analysis: It is probable that approval of these wireless facilities will result in additional facilities being proposed throughout the City to enhance existing levels of wireless coverage and prepare for the eventual release of 5G services. While there are numerous utility poles within the R-1 district, not all poles would be suitable for a wireless facility due to the required clearances between utilities sharing a single pole. However, wireless carriers may propose to replace existing poles, install additional poles, or place multiple antennas on a single pole which would have an incremental effect that would be detrimental to the aesthetic character of the R-1 zoning district, in addition to the visual clutter and aesthetic harm which would already be caused by these five sites.

4. That the proposed use will not make excessive demands on the provision of public services, including water supply, sewer capacity, energy supply, communication facilities, police protection, and fire protection.

Staff Analysis: The proposed wireless facilities would not make excessive demands on the public services identified in this standard, but instead, would likely improve wireless communication services in the area proposed.

5. That the proposed use will not be injurious to public health, safety or welfare.

Staff Analysis: The project would be required to be installed, operated and maintained in accordance with all applicable codes, ordinances and regulations including federal standards for radio frequency (RF) emissions. The City’s Telecommunications and Wireless Facilities Ordinance (CMC 17.46) also requires the following:

“Prior to the issuance of building permits, the approved telecommunications carrier shall submit an installation test plan for approval by the Community Planning & Building Department that describes the type of testing that will be performed in order to verify that operation of the facility will remain compliant with its licensing specifications and will not create adverse frequency impacts resulting in health hazards or interference with existing wireless facilities, network communications, computers, appliances, etc., in the vicinity.” And, “Upon activation, the approved telecommunications carrier shall submit the test results to the Community Planning & Building Department. The City may require an approved carrier to conduct frequency testing at any time and report results to the City. Failure to comply with this condition and/or violation of FCC emissions standards for Radio Frequency (RF) shall result in revocation of the use permit approval.”

Title 47 § 332 of the United States Code allows a city or county to require that emissions comply with FCC RF emissions standards, but precludes a jurisdiction from making a decision based on health or environmental concerns if the RF emissions meet federal standards.

The applicant has submitted a statement from the firm of Hammett & Edison, Inc., Consulting Engineers regarding compliance with appropriate guidelines limiting human exposure to RF electromagnetic fields. The reports conclude that each location will comply with the FCC guidelines limiting public exposure to RF energy, with the application of mitigation measures (refer to Attachment 8). Those measures include,

1) Providing appropriate RF safety training to all workers who have access within 19’ directly at the antenna (refer to Attachment 8);

2) Prohibiting access to within 4’ while the antenna is in operation; and,

3) Posting explanatory signs at the antenna and/or on the pole below the antenna, readily visible from any angle of approach.

The report conclusions are based on estimated setback distances of 20-30 feet obtained from Google maps, not actual site conditions. Further, the report assumes that the only individuals that might approach the pole are workers and that they would have adequate warning through posted caution signs on the pole. The report does not consider residents, or persons hired by residents, to perform maintenance activities on private property in close proximity to the wireless facility. Staff finds that the RF analysis is not based on proper assumptions and therefore compliance with FCC RF emissions standards has not been adequately demonstrated. Therefore, staff cannot conclude that this finding has been met.

6. That the proposed use will be compatible with surrounding land uses and will not conflict with the purpose established for the district within which it will be located.

CMC Section 17.08.010 & 020 state, “The purpose of residential zoning districts are to maintain the residential village character of the City and encourage originality, flexibility and diversity in residential design that respects the forest setting; the constraints of each site; and, the surrounding neighborhood.” And, more specifically, the purpose of the R-1 Single-Family Residential District is “to provide an appropriate land area for permanent single-family residential uses and structures and to enhance and maintain the residential character of the City.”

In the R-1 district, structure height is limited to 24’. While it is recognized that existing utility poles in the public ROW exceed this height limit by 5’ to 14’, the proposed pole heights with the antenna, including pole extensions, would be 16’ to 26’ taller than the maximum allowed height in the underlying zoning district, with the tallest utility pole being 49'- 9". While utility poles are not required to conform to the building height within the residential district, they should be compatible with the surrounding neighborhood context in order to maintain the residential character of the area. Utility poles extending up to 50’ would not only be out of scale with the residential character, they would be dramatically taller than the average utility pole within the residential district.

Additionally, the size and location of the equipment area is incompatible with the residential village character. Carmel is “primarily, essentially and predominately a residential city” (Ordinance 96) which is void of traffic signals and street lights, and their associated equipment, within the residential district in order to preserve and maintain the “village in a forest” character that is the aesthetic foundation of the community. Similarly, parking bollards are incompatible with the R-1 district which is characterized by underdeveloped roadways, an unpaved, informal area between the edge of the roadway and private property, which may or may not have informal plantings, and where obstructions such as boulders, logs, timbers and raised planters are prohibited. The introduction of bollards in the public ROW is incompatible with the character of the R-1 district which does not currently contain bollards at utility poles and is incompatible, and in direct conflict with, the provision of parking in the unpaved portions of the public ROW.

7. That the proposed use will not generate adverse impacts affecting health, safety, or welfare of neighboring properties or uses.

Public health concerns regarding radio frequency (RF) electromagnetic fields are commonly expressed with regards to new wireless communications facilities. As stated above in the response to Finding #5, the FCC sets the standards for limiting public exposure to RF emissions and wireless providers are required to demonstrate that their facilities comply with these emissions standards. While the applicant has submitted documentation from Hammett & Edison, Inc concluding that all five sites comply with FCC guidelines, staff finds that the RF analysis is not based on proper assumptions and therefore compliance with FCC RF emissions standards has not been adequately demonstrated. Therefore, staff cannot conclude that this finding has been met.

Use Permit Findings Summary: In order for a use permit to be granted, all seven findings must be met. Failure to meet just one of the seven findings would result in a denial of the use permit. Use Permit (UP 19-130) findings #1, 2, 3, 5, 6 and 7 cannot be made based on the information provided in the application and therefore the permit must be denied. Each of the reasons for finding that the application does not satisfy applicable standards independently justifies the denial.

Design Review Findings (CMC 17.64.080)

The decision to grant a design review permit must meet the following findings:

1. The project, as conditioned, conforms to the applicable policies of the General Plan and the Local Coastal Program.

Staff Analysis: As described above and further described below, projects that do not comply with the zoning code and all applicable design and development standards cannot be found in conformance with the General Plan/Local Coastal Program.

2. The project, as conditioned, complies with all applicable provisions of Title 17.

Staff Analysis: As discussed above in the Use Permit Findings analysis, the project does not comply with the following provisions of Title 17:

A. Wireless communications facilities shall be allowed within all zones except the R-1 district. Such facilities shall be discouraged in open space areas, areas of extraordinary scenic quality and in the R-4 district.

B. Wireless communications facilities, to every extent possible, should not be sited to create visual clutter or negatively affect important public or private views as determined by the Planning Commission. Wireless communications facilities are discouraged in the public right-of-way.

3. The project, as conditioned, is consistent with applicable Design Guidelines.

Staff Analysis: Chapter 17.46 (Telecommunications and Wireless Facilities) sets forth the design review standards for wireless communication facilities located outside of the R-1 district. The preferred installations are those that are visually indistinguishable from the buildings to which they are attached or located behind parapet walls or on roof areas where they are not visible to the public. Associated equipment should be located inside existing buildings or underground (CMC 17.46.050.A.1-3).

The proposed wireless facilities would be located on utility poles in the public ROW rather than on buildings where they could be screened from public view. To minimize visual impacts, each utility pole is proposed to contain one antenna which would be mounted to the top of poles ranging from 40’ to 50’ tall. While the overall height of the poles would increase significantly, the form is proposed to be maintained by using a cylindrical antenna which causes it to blend in with the pole. Additionally, the applicant is proposing to paint the antennas a matte brown color to further disguise them. However, Sites 1 and 2 are located in an area of extraordinary scenic quality (Beach & Riparian Overlay District) and the increased pole heights would be incompatible with the protection of public views to and along the ocean and scenic coastal areas.

The associated equipment is proposed to be mounted to the side of the pole at a height of 9’ above grade. Mounting equipment to the pole allows for passive cooling which eliminates the need for cooling equipment which would increase the size of the equipment area and may generate audible noise. Conversely, the pole mounted equipment would add mass to the utility pole in a location that is not typically used for equipment and is readily visible to the public and adjacent private residences. Staff finds this would unreasonably diminish views from the public way and private property.

Section J of the Public Way Design guidelines addresses the location of utility boxes, encouraging that they be incorporated into sidewalk planters with sufficient space to establish screening vegetation or located underground with standard nonskid utility covers.

Design Review Findings Summary: In order for a design review permit to be granted, all three findings must be met. Failure to meet just one of the three findings would result in a denial of the design review permit. Design Review (DR 19-129) findings #1, 2 and 3 cannot be made based on the information provided in the application and therefore the permit must be denied. Each of the reasons for finding that the application does not satisfy applicable standards independently justifies the denial.

Encroachment Permit Standards (CMC 12.08)

The Municipal Code recognizes that “special and unusual conditions may justify the erection, installation, or placement of encroachments on, over, or under public property” however it is the policy of the City to “discourage encroachments onto public lands and that such encroachments shall be kept to a minimum and shall be permitted only when consistent with the General Plan, are for the preservation of public health, safety or welfare, contribute to the furtherance of the general planning and zoning objectives of the City and are characteristic within the appearance of the neighborhood and City.”

Applications for encroachments in the R-1 district are acted on by the City Administrator and/or City Council following review by the appropriate city departments. The City Administrator intends to refer the encroachment applications to the City Council. The Planning Commission may make recommendations regarding the project’s consistency with the following encroachment permit standards.

A. Need. The applicant shall be determined to have a justifiable need for the encroachment, and the encroachment shall not be contrary to the public interest.

Staff Response: The applicant has not provided any data supporting a justifiable need for the wireless facilities in the locations proposed. CMC Section 17.46.020.D.2 states that applications shall provide sufficient information to make clear “the service area to be covered by the local system facilities.” This has not been demonstrated to support the standard of “Need”.

B. Safety. The granting of an encroachment permit shall not create a hazard to public health or safety.

Staff Response: The City is preempted by Title 47 § 332 of the United States Code from regulating wireless facilities based on environmental impacts from radio frequency (RF) emissions. Regardless, the City has received a number of public comments expressing safety concerns with the proposed wireless facilities (refer to Attachment 10).

As discussed above, the conclusions in the Hammett & Edison, Inc RF emissions report are not based on proper assumptions and therefore compliance with FCC RF emissions standards has not been adequately demonstrated.

C. Drainage. The proposed encroachment shall not adversely affect the normal drainage of surface water unless an acceptable mitigation is included that will be advantageous to the general public and meet the standards herein.

Staff has not identified any potential impacts to drainage as a result of the project.

D. Circulation and Parking.

1. The proposed encroachment shall not adversely affect vehicular and/or pedestrian traffic nor the parking of vehicles.

2. The proposed encroachment shall not adversely impact existing rights-of-way nor preclude or make difficult the establishment or improvement of existing or potential streets or pedestrian ways.

Staff Response: Parking bollards are proposed adjacent to several utility poles and would create an obstruction that would impede the parking of vehicles on the unpaved portion of the public ROW. This encroachment would have an adverse impact on parking within the residential area. Due to small lot sizes throughout the village, many residents have a single parking space within a garage. In many instances, garages are placed near the front property line eliminating a driveway for on-site parking. Residents rely on the unpaved portions of the right-of-way for the parking of second vehicles and for guest parking. The loss of parking in the right-of-way would be adverse and detrimental to the residential district.

E. Public Use and Enjoyment.

1. The proposed encroachment shall not diminish public use or enjoyment, either visual or physical, of the City property or public right-of-way to be encroached upon.

2. The encroachment and enjoyment shall be in the public interest.

3. The length of time an encroachment has existed shall not by itself prejudice a decision.

Staff Response: The size and location of the equipment area would have a visual impacts which would diminish the public use and enjoyment of the public ROW. The specific aspects of the wireless facilities which create these impacts are discussed above in the analysis of Use Permit findings.

The encroachment would be in the public interest by providing enhanced data streaming services within the project area; however, it is estimated that up to 40% of the housing stock is vacant for the majority of the year and a growing number of homes in the City are second homes and not the primary residence of the owners. Therefore, the actual benefit of the wireless service within the proposed geographic area is unknown. Additionally, the applicant has not demonstrated that there are gaps in coverage that need to be filled so staff is unable to conclude that the project meets this standard.

F. Compatibility.

1. The proposed encroachment and its mitigation shall be consistent with the General Plan and the adopted ordinances of the City. Particular attention shall be given to Section P1-48 of the General Plan, which prohibits the construction of sidewalks and concrete curbs in the R-1 district, unless necessary for drainage and/or pedestrian safety.

2. The encroachment shall not create, extend, or be reasonably likely to lead to an undesirable land use precedent.

3. Granting of a permit shall not adversely affect the usability or enjoyment of one or more adjoining parcels.

4. The proposed encroachment and its mitigation shall be compatible with the surrounding area and adjoining properties.

Staff Response: The project is not consistent with adopted ordinances of the City which prohibit wireless facilities in the R-1 zoning district and discourage them in the public ROW and could set an undesirable land use precedent within the residential areas of the village. That aside, the project would also have an adverse affect on the enjoyment of adjoining properties due to the visual impacts of the facilities which is attributable to the size of the structures compared to infrastructure already in place.

G. Public Property/Greenbelt.

1. The proposed encroachment shall not adversely affect any public property, including existing vegetation or its root structure, and shall not significantly reduce greenbelt area that may be used for tree planting.

2. Significant trees which would be affected by the proposed encroachment shall be identified by the Director of Forest, Parks and Beach and approval for removal shall follow City policy.

Staff Response: The applicant is proposing pole mounted equipment which would minimize ground disturbance. However, three poles are proposed to be replaced and would require some amount of excavation. Impacts to nearby trees and their root systems would need to be further evaluated prior to and during any construction activity. Tree protection measures would also need to be in place prior to any construction activity. Additional ground disturbance would occur if the bollards were installed. As discussed above the loss of parking in the ROW would be a significant adverse effect. Other ground disturbance would include a 14” wide ground test well. The project as currently proposed would not meet this standard; however, with the application of conditions may achieve compliance.

Encroachment Standard Summary: The encroachment application does not comply with standards A, B, D, E and F, therefore staff would not recommend approval. Each of the reasons for finding that the application does not satisfy applicable standards independently justifies the denial.

May 8, 2019 Public Hearing: The project was scheduled and publicly noticed for the May 8, 2019 Planning Commission meeting. On May 8^th, the applicant’s legal counsel, Mackenzie & Albritton LLP submitted a letter requesting a continuance to the June 12^th meeting (Attachment 9).On May 24^th staff received a letter from Mackenzie & Albritton LLP providing responses to the analysis contained in the May 8^th staff report (Attachment 10). Staff has reviewed the letter and provided additional information in this staff report for the Commission’s consideration. Staff’s analysis is based on objective standards contained in the adopted codes and regulations of the City and finds that the applicant has not provided factual evidence to support a claim of  “effective prohibition” or that a denial would impair their ability to provided covered services.

Alternatives: Staff recommends that the Planning Commission deny the Design Review (DR 19-129) and Use Permit (UP 19-130) applications because the proposal does not comply with all of the findings necessary to approve the applications. Furthermore, the application does not comply with the City's encroachment standards.

If the Planning Commission supports approval of the Design Review and Use Permit applications, appropriate findings would need to be made and entered into the decision record. Based on those findings, the Encroachment Permit applications would be presented to the City Council for review.