Consideration of an Appeal (APP 19-261) of the Planning Commission’s denial of Design Review (DR 19-129, Verizon Wireless), Use Permit (UP 19-130, Verizon Wireless) and associated Coastal Development Permit, and consideration of an Encroachment Permit (EN 19-072) for the installation, operation and maintenance of five wireless communications facilities on existing PG&E utility poles located within the public right-of-way in the Single-Family Residential (R-1) Zoning District.

Deny the appeal and uphold the Planning Commission’s denial of Design Review (DR 19-129), Use Permit (UP 19-130) and the associated Coastal Development Permit, and deny Encroachment Permit (EN 19-072) for the installation, operation and maintenance of five, wireless communications facilities on existing or replacement PG&E utility poles located within the public right-of-way of the Single-Family Residential (R-1) Zoning District, at the following general locations: San Antonio 1 NW of Tenth Avenue; San Antonio 3 SE of Thirteenth Avenue; Tenth Street 1 NW of Dolores; Lincoln 3 NE of Twelfth Avenue; and, Mission 2 SW of Twelfth Avenue, subject to the attached Findings for Decision (Attachment 9).

Executive Summary:

Verizon Wireless has submitted Design Review, Use Permit and Encroachment Permit applications for five, wireless communications facilities mounted on existing or replacement PG&E utility poles in the public right-of-way (ROW) of the R-1 zoning district. On June 12, 2019, the Planning Commission denied the Design Review and Use Permit applications and on June 26^th the applicant filed an appeal. This is a de novo hearing and the City Council can render a decision on any aspect of the project. The staff report analyzes whether the project meets the required Design Review and Use Permit standards and responds to the applicant’s appeal letter. This staff report also analyzes whether the project meets the required Encroachment Permit standards.

STAFF ANALYSIS:

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:

• Do not prohibit or “effectively prohibit” wireless communications facilities;
• Do not unreasonably discriminate between communications service providers; or,
• 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 the Federal Communications Commission (FCC) adopted a looser standard and 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 decision is being appealed and while the FCC Order is technically in force, it is unclear which standard applies for now in the Ninth Circuit. Additionally, while the City has received a number of public comments expressing safety concerns with the proposed wireless facilities (refer to https://ci.carmel.ca.us/post/planning-commission-meetings and Attachment 2), 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.

In addition to the Telecommunications Act, State law (CUPC 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 their authority to determine the time, place and manner the ROW is accessed for temporary construction activities.

In April 2019, 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 can regulate aesthetics to further their obligation to ensure utilities’ use of the ROW 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.” The court further stated, “…cities and counties have inherent, constitutional police power to impose land use regulations including aesthetic requirements.”  As further discussed in this staff report, the City has adopted objective aesthetic standards and this project has been evaluated against those standards.

The FCC also sets certain “shot clocks” for cities and counties to review and take action on a wireless application. Wireless facilities larger than 3 cubic feet are subject to shot clocks of 90 or 150 days depending on whether the pole is being replaced. When the application was submitted, the proposed wireless facilities exceeded 3 cubic feet, and as such, a 90-day shot clock is applied to Sites 1 and 3 (placement of facilities on existing poles) and a 150-day shot clock is applied to Sites 2, 4 and 5 (placement of facilities on replacement poles). On August 6, 2019, the City and the applicant entered into a tolling agreement extending the applicable shot clock to September 13, 2019 to accommodate the applicant’s request to have the appeal heard at the September City Council meeting.

Finally, the FCC requires any decision on wireless facility applications 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. Staff has fully evaluated the project based on local codes and provided a written analysis in the form of a staff report along with written findings to support the conclusions. Legal counsel has advised the City that we should adhere to our local regulations and not assume that they are preempted by Federal or State Law.

Project Description:

Verizon Wireless has submitted Design Review, Use Permit and Encroachment Permit applications for five, “small cell” wireless communications facilities mounted on existing or replacement PG&E utility poles in the 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 Tenth & Thirteenth Avenues and Junipero & San Antonio Streets (refer to Attachment 3, Map of Project Site Locations).

Each wireless facility would contain a single 3’ tall canister mounted to the top of a utility pole and a 6’ tall equipment cabinet mounted 9’ above grade that includes the remote radio units (RRU’s), power supply and other associated equipment. A disconnect switch and PG&E smart pole meter would be mounted just below the equipment cabinet. 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 4.

Table 1. Existing and Proposed Pole Heights by Location

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

The project that was reviewed and denied by the Planning Commission included a 4’ tall canister with a 6’ tall equipment cabinet. Following the Planning Commission’s denial of the application, the applicant reduced the canister to 3’ tall. New antenna specifications along with updated radio frequency emissions reports have been submitted with the appeal application. All other aspects of the proposed facilities remain the same.

Local Regulations:

The regulations that pertain to the project include CMC Chapter 17.46 (Telecommunications and Wireless Facilities); Residential Design Guidelines; Polices and Standards for Public Way Design; and, CMC Chapter 12.08 (Encroachments) as discussed below.

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 (refer to Attachment 5, CMC 17.46). Additionally, any development within the coastal zone that qualifies as a project requires a Coastal Development Permit.

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.

Carmel Municipal Code Chapter 12.08 (Encroachments) 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.” (Refer to Attachment 6, Encroachment Permit Standards)

Staff Analysis:

Staff reviewed the project for conformance with local regulations. Below are the findings that must be adopted when rendering a decision on any use permit or design review permit, including permits for wireless communications facilities, followed by a staff response on whether the project meets the required findings for approval. The encroachment permit standards are discussed later in the report.

Use Permit Findings (CMC 17.64.010):

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

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

Staff Response: General Plan Policy P1-53 states, “Promote the undergrounding of utilities where feasible and with minimum detriment to the root systems of trees.” The applicant studied the feasibility of undergrounding the equipment associated with the wireless facilities (Attachment 7, Vaulting Feasibility Analysis) and identified a number of constraints to placing equipment underground in a vault including the following:

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 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).

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.

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.

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.

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.

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 negatively impacted. For these reasons, staff finds that the undergrounding of equipment would not be a viable alternative and is incompatible with the forest character of the village.

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.

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

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.

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: All five wireless sites would be located within the boundaries of the R-1 zoning district and therefore do not comply with this zoning standard. The facilities are not proposed to be located in any open space areas or in the R-4 district. However, Sites 1 and 2 are located within the Beach & Riparian Overlay District and the California Coastal Commission’s 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 and staff cannot conclude that this finding has been met.

Wireless communications facilities are also discouraged in the public ROW; therefore, all five sites do not comply with the zoning standards in Chapter 17.46.

The co-location of wireless facilities on existing utility poles does take advantage of existing infrastructure in the public ROW. The utility poles at Sites 2, 4 and 5 (San Antonio 3SE of Thirteenth; Lincoln 3 NE of Twelfth; and, Mission 2 SW of Twelfth) are proposed to be replaced with new poles with a 3’ high canister, that would contain three antennas, mounted to the top of the pole. The utility poles at Sites 1 and 3 (San Antonio 1 NW of Tenth and Tenth 1 NW of Dolores) would be retained and a 7’-4” wooden pole extension would be installed with the 3’ canister mounted to the top of the extension (refer to Attachment 8, 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 diameter of the canister is 1’; the diameter of each utility pole is unknown. However, the plans seem to indicate that the diameter of the canister will be slightly smaller than the diameter of the pole. The canister 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 canister attached) would range from 40’-7” to 49’-5”. A 24 cubic foot (6’ x 2’ x 2’) equipment cabinet would be mounted to the utility pole a minimum of 9’ above grade. The cabinet would contain the RRU’s, power supply and other equipment. Below the cabinet, a disconnect switch, PG&E smart pole meter and required RF signage would be mounted to the utility pole.

Sites 1 and 2 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 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 cabinet and below the cabinet, would create visual clutter on the utility pole at a height that is readily visible to the public and adjacent private residences. Staff cannot conclude this finding has been met because two of the facilities would be located in a high scenic area and all five facilities 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 Response: It is probable that approval of these wireless facilities will result in additional facilities 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. Staff cannot conclude that this finding has been met.

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 Response: The proposed wireless facilities would not make excessive demands on the public services identified in this standard, but instead, may improve data streaming services in the area proposed. This finding can be made in the affirmative.

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

Staff Response: 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) 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 (one for each location) 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 9, Statement of Hammett & Edison, Inc.). Those measures include,

• Providing appropriate RF safety training to all workers who have access within 22’ directly at the antenna;
• Prohibiting access within 5’ while the antenna is in operation; and,
• Posting explanatory signs at the antenna and/or on the pole below the antenna, readily visible from any angle of approach.
  
  

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, performing maintenance activities on private property in close proximity to the wireless facility, such as tree maintenance workers, painters or roofers. Additionally, the report recommends safety training but does not indicate who and by what means the safety training will be provided. Staff finds that the RF analysis is not based on proper assumptions and the mitigation measures are inadequate to ensure public safety and therefore compliance with FCC RF emissions standards has not been adequately demonstrated. 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.

Staff Response: CMC Section 17.08.010 & 020 states, “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 antenna and pole extensions, would be approximately 16’ to 25’ taller than the maximum allowed height in the underlying residential zoning district, with the tallest utility pole being 49'- 5". 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. Therefore, staff cannot conclude that this finding has been met.

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

Staff Response: Public health concerns regarding radio frequency (RF) electromagnetic fields are commonly expressed with regards to new wireless communications facilities. 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.

The applicant submitted documentation from Hammett & Edison, Inc. concluding that all five sites comply with FCC guidelines (refer to Attachment 9). However, 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, such as tree maintenance workers, painters or roofers. Additionally, the report recommends safety training but does not indicate who and by what means the safety training will be provided. Staff finds that the RF analysis is not based on proper assumptions and 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 eight findings must be met. Failure to meet just one of the eight findings would result in a denial of the use permit. Use Permit (UP 19-130) findings #1, 2, 3, 4, 6, 7 and 8 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 three 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.

Decisions to approve or deny a project must be justified based on the City’s own codes and tied to local requirements. The Carmel Municipal Code currently does not permit wireless facilities in the R-1 zoning district and discourages them in the public ROW. Additionally, wireless facilities “should not be cited to create visual clutter or negatively impact public or private views”.

Carmel is one-square mile, located wholly within the coastal zone and defined by its forest character, which has been a predominant feature of the village since incorporation in 1916. For these reasons, staff finds that the village itself is an area of high scenic quality and the placement of wireless facilities should be integrated to the greatest extent feasible with the forest character.

Furthermore, Sites 1 and 2 are located in the Beach & Riparian Overlay District and the Coastal Commission Appeal Jurisdiction. Development within the Overlay District includes public and private property and protection of public views must be considered.

For these reasons, staff finds the project inconsistent with the provisions of Title 17 and therefore this finding cannot be made.

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 3’ tall canister, which would be mounted to the top of poles ranging in height from 40’ to 50’ tall. While the overall height of the poles would increase significantly, the circular form is proposed to be maintained by using a 1’ wide canister that blends in with the pole. To further disguise the antennas, the applicant is also proposing to paint the canister a matte brown color. As previously discussed, Sites 1 and 2 specifically 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 planters, with sufficient space to establish screening vegetation or located underground with standard nonskid utility covers. After requesting a continuance of the May 8, 2019 Planning Commission meeting, the applicant conducted a feasibility analysis for the undergrounding of equipment. Staff reviewed the analysis and concluded that the benefits of undergrounding the equipment would have to be weighed against the effects of ground disturbance, potential impacts to nearby trees and the potential for loss of parking within the ROW.

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.”

The City Administrator and/or City Council acts on applications for encroachments in the R-1 district following review by the appropriate city departments. The City Administrator has referred the review of the encroachment application to the City Council.

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 provided an Alternatives Analysis allegedly demonstrating a significant gap, though the Analysis contains some shortcomings as further described below. 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: While the City has received a number of public comments expressing safety concerns with the proposed wireless facilities (refer to Attachment 2), 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.

As previously discussed in this report, Hammett & Edison, Inc. revised the RF emissions report following the Planning Commission’s denial of the project on June 12, 2019. Staff reviewed the revised report and finds that the conclusions are based on inadequate assumptions and therefore compliance with FCC RF emissions standards has not been adequately demonstrated to ensure the project will not create a hazard to the public health or safety.

The most recent submission by Verizon suggests it may not understand the City’s concern. The Hammett & Edison report is based on the assumption that the only situation under which anyone can come close enough to the equipment on the facility that emits RF radiation, to be within the range where exposure would exceed general or occupational limits, is where someone is working on the pole itself (to repair electrical or other communications equipment). The company has set up a means for preventing that exposure. However, certain facilities are in tree lines, and the City, the electric utility and property owners may come within close proximity to the antennas in the course of tree trimming, or other maintenance activities. Similarly, the reports only consider whether exposure levels will be exceeded in homes and do not consider general public uses that may bring the public much closer to the antennas than estimated. For example, photographs show that the area immediately next to the antennas are used to park vehicles with 8’-10’ roof lines, whose roofs are accessible to the public. While it could be that there is no risk of excessive RF exposures, the problem is that the analysis is not actually based on a careful consideration of accessibility and uses around the proposed antennas.

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 Response: Staff has not identified any potential impacts to drainage.

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 co-location of wireless facilities on existing utility poles takes advantage of existing infrastructure in the ROW. The project proposes to add wireless antennas and associated equipment to existing poles at Sites 1 and 3 and replacement poles at Sites 2, 4, and 5. The applicant has indicated that in order to meet PG&E’s requirements, the height of the poles must increase substantially (refer to Table 1). In addition to the height increase, the project includes a 6’ tall equipment cabinet mounted 9’ above grade, which would be readily visible to the public and to adjacent private residences. Additionally, two of the five sites would be located in the Beach & Riparian Overlay District and Coastal Commission Appeal Jurisdiction, which is an area of extraordinary scenic quality due to its proximity to natural resources. As a result, staff finds that the project would visually diminish the public enjoyment of the ROW.

The encroachment would be in the public interest in that it would provide enhanced data streaming services within the project area. However, according to the most recent Department of Finance projections, Carmel has a housing stock vacancy rate of 37.7%. A significant portion of the housing stock is vacant for the majority of the year and a growing number of homes are second homes and not the primary residence of the owners. As a result, the actual benefit of the wireless service within the proposed geographic area is unknown.

The Applicant provided an Alternatives Analysis allegedly demonstrating a significant gap in service in the South Carmel area (refer to Attachment 10). However, the Analysis does not identify the personal wireless services the Applicant provides, or intends to provide, that it contends are being effectively prohibited. In addition, the Analysis does not describe the key performance indicators (KPI) used to determine whether service is adequate or the standards for each KPI. Finally, the Analysis does not identify current KPIs or project what they would be post-installation of the facilities and how many people would be affected.

The drawings submitted to demonstrate a gap suggest that service is widely available in the 700 MHz band throughout Carmel, and it is not clear whether, given the levels of coverage shown, there is an actual problem with the delivery of personal wireless services as opposed to services which require more bandwidth that are not personal wireless services. Problems are claimed but proof of problems is not provided. It may be that additional information could be provided; however, the information that was provided was never submitted to the Planning Commission and was submitted late in the appeal process. We have no real way to assess the adequacy of the “least intrusive” means analysis since we do not know what areas could have been examined and hence no way to assess whether the “alternatives” reflect a realistic consideration of ways to address claimed service issues. Similarly, the material submitted does not support a claim under the new FCC standard because it does not actually show whether there are personal wireless service problems now, or the extent to which those personal wireless service problems would be remedied.

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: As previously discussed, the project is not consistent with the General Plan, Municipal Code, residential design guidelines and public way design. This project could set an undesirable land use precedent within the residential area of the village resulting in a proliferation of wireless facilities and associated equipment that would exacerbate the visual impacts of these facilities. The Applicant provided an Alternatives Analysis allegedly demonstrating a significant gap, but as described above, the Analysis contains shortcomings. Additionally, the granting of the permit would have an adverse impact the enjoyment of the ROW and adjoining parcels by creating unreasonable aesthetic impacts in a village characterized by its scenic environment as well as parking impacts.

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 that would minimize ground disturbance. However, the replacement of three poles 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. If bollards were installed, additional ground disturbance would occur. 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 1, 2, 4, 5 and 6 therefore staff does not recommend approval. Each of the reasons for finding that the application does not satisfy applicable standards independently justifies the denial.

BASIS FOR APPEAL:

In a letter prepared by Mackenzie & Albritton, LLP dated June 25, 2019 (Attachment 11) the applicant sets forth their reasons for filing an appeal of the Planning Commission’s decision to deny the Design Review and Use Permit applications. Provided below are the applicant’s reasons for the appeal followed by a staff response.

1)  The Planning Commission did not adopt findings for denial. The denial was not based on substantial evidence.

Staff Response: The Planning Commission adopted findings to support their decision based on substantial evidence which is included in the record. The June 12, 2019 staff report and the Findings for Decision attached to that report are both part of the decision record and set forth the facts in support of the Planning Commission’s decision. Because is a de novo hearing, the City Council can render a decision on any aspect of the project. Therefore, staff has provided a full analysis in this report on whether the required findings can be made to support approval of a Design Review and Use Permit for the proposed wireless facilities.

2) The City cannot bar wireless facilities from the R-1 zone or the right-of-way. RF emissions are beyond the City’s jurisdiction.

Staff Response: As further described in the Staff Analysis section, the City’s current Telecommunications and Wireless Facilities Ordinance allows wireless facilities in all zones except the R-1 district and discourages them in the public right-of-way. The Ordinance was last amended in 2002 and since that time, there have been a number of changes in Federal and State law.

The appeal letter asserts that the City’s ordinance constitutes an effective prohibition; however, in order to claim effective prohibition, the applicant must demonstrate that their ability to provide personal wireless services is “significantly impaired” under the FCC standard, or that there is a significant gap in coverage and the proposed facilities are the least intrusive means to address that gap under the Ninth Circuit standard. The applicant alleges that they have satisfied both tests, but their Analysis contains shortcomings, as described above, and therefore a claim of effective prohibition is incomplete at this time. Additionally, the applicant has not effectively demonstrated that disallowing wireless facilities in the R-1 zone would result in an effective prohibition of service within the City. Finally, even if an effective prohibition were shown, staff does not agree that the City must grant the application if placement would result in safety issues; or, unless each element of the facility as proposed is necessary to avoid the effective prohibition. For example, the applicant has not demonstrated that the placement of bollards is required, as opposed to merely convenient for the purposes of maintenance.

Lastly, staff notes that the new FCC standard permits enforcement of aesthetic standards as long as they meet certain requirements – compliant standards are deemed not to be effective prohibitions and Verizon has not addressed those standards at all.

Concerning RF emissions, the City does retain authority to ensure that the proposed wireless facilities comply with FCC requirements. The RF reports submitted to the City are inadequate in the assumptions as well as the proposed mitigations. RF emissions are further discussed above under the finding, “That the proposed use will not be injurious to public health, safety or welfare.”

3) The denial effectively prohibited Verizon Wireless from providing service. Verizon Wireless will provide technical data to establish that it has a significant gap in service in the area to be serviced by the proposed facilities.

Staff Response: The applicant provided an Alternatives Analysis but as described above, the Analysis contains shortcomings; therefore, the applicant’s claim of effective prohibition is incomplete at this time.

Project Revisions:

The applicant clarified during the public hearing with the Planning Commission that each proposed location contains three antennas within a single canister not 1 antenna as staff presumed. As a result, the project consists of three antennas at five locations for a total of 15 antennas. The antennas would be screen with a 3’ tall canister. As noted above, the canister was reduced from 4’ tall to 3’ tall following the Planning Commission’s denial of the project.

The RF emissions reports for each location have also been revised to reflect assumed setback distances based on field observations between the proposed wireless facilities and the nearest residential dwelling rather than estimates based on Google aerial images. However, the assumptions still do not address the safety concerns raised at the June 12th Planning Commission meeting, or described above in this report, and it is unclear how the proposed mitigations would be carried out to ensure the safety of those living or working in proximity to the facilities.

SUMMARY AND RECOMMENDATION:

There are a number of Federal and State laws governing wireless facilities that are currently being tested in the courts.  Staff has provided a thorough analysis of why this proposed application does not meet the City’s objective standards, and as such, recommends that the City Council deny the Design Review (DR 19-129) and Use Permit (UP 19-130) applications and deny the Encroachment Permit (EN 19-072) application. The basis for denial is that the application does not comply with all of the findings and standards required to support approval of the project.