Staff Report on Amending Livingston Municipal Code :Permit Requirements for Wireless Communication Facilities & Appeal Hearings for Conditional Use Permits and Variances.

STAFF REPORT

AGENDA ITEM: Introduce and Waive the First Readings of Ordinances of the City Council of the City of Livingston Amending Livingston Municipal Code (LMC) Title 5, Chapter 5, Table 12, Permit Requirements for Wireless Communication Facilities, and LMC Title 5, Section 5-6-9, Subsection F, and LMC Title 5, Section 5-6-10, Subsection D, relating to Appeal Hearings for Conditional Use Permits and Variances.

MEETING DATE: July 19, 2011

PREPARED BY: Donna M. Kenney, Community Development Director

REVIEWED BY: Victoria Lewis, Interim City Manager

NECESSARY ACTIONS:

1. Introduce and waive the first reading of Ordinance of the City Council of the City of Livingston amending Livingston Municipal Code Title 5, Chapter 5 Table 12, "Permit Requirements for Wireless Communication Facilities;" and

2. Introduce and waive the first reading of Ordinance of the City Council of the City of Livingston amending Livingston Municipal Code Title 5 section 5-6-9 (F) and section 5-6-10(D), relating to appeal hearings for Conditional Use Permits and Variances.

BACKGROUND AND DISCUSSION:

Staff was informed that the City Council desired to consider amendments to Title 5, the Zoning Ordinance of the Municipal Code. City Council approved Resolution of Intent 2011-30 on May 3, 2011 (Attachment 3) pursuant to LMC 5-6-2 B (2) to place three items on an upcoming Planning Commission agenda so that the Commission may make recommendation on the amendments in public hearing and can determine their General Plan consistency. The first item changes permit requirements for wireless communication facilities. The second and third items change the appeal processes for CUP and Variance determinations so that any interested party may appeal Planning Commission determinations to the City Council.

ITEM 1— LMC Title 5 Chapter 5 Permit Requirements for Wireless Communication Facilities

Table 12 of this Chapter provides the permit requirements for wireless communication facilities:

(Permitted use subject to Site Plan/Design Review Pennit, designated as "DR"; Conditional Use Permit required, designated as "CUP").

Table 12

*Notes Corresponding to Superscript Numbers in Table 10:

(1) If roof mounted antenna extends above the roofline, parapet wall, or similar roof screen, a Conditional Use Permit is required to authorize the antenna.

(2) A Conditional Use Permit is required if the co-location increases the height of the existing tower/structure.

As can be seen from the last two lines of the Table 12 above, a new antenna tower only requires a Conditional Use Permit from the Planning Commission yet additional antennas co-located on an existing tower require Site Plan / Design Review by both the Planning Commission and the City Council.

City Council asked the Planning Commission to consider a change which would require new towers, the type of project with the most possible impacts of the two, to receive Design Review and the project with less possible impacts, co-located antennas, to receive a Conditional Use Permit. Since Design Review requires two public hearings as opposed to the one public hearing for a CUP, the Council would have the opportunity to hear the item with the most possible impacts and take public comment.

The Planning Commission, at their regular meeting of June 14, 2011, recommended modification and the deletion of Footnote 2 though their recommendation was different than what was presented (Attachment 1, Exhibit A). After deliberation, the majority of the Planning Commission decided that changing the requirement for "Tower, co-location," from DR to a CUP was necessary; however, the Commission did not agree that the CUP requirement needed to change to DR for a "Tower." The majority of the Planning Commission decided that both should require a CUP, with the opportunity for the City Council to consider any application if the Planning Commission’s decision was appealed. If approved by Council, both new towers and the co-location of antennas on existing towers would require Conditional Use Permits (CUPs). Neither would require Design Review.

Table 12 Proposed

*Notes Corresponding to Superscript Numbers in Table 10:

(1) If roof-mounted antenna extends above the roofline, parapet wall, or similar roof screen, a Conditional Use Permit is required to authorize the antenna.

(2) A Conditional Use Permit is required if the co-location increases the height of the existing tower/structure.

RELATING TO CUP APPEALS

LMC Title 5 Chapter 6 Section 9 (F) Appeal Hearing (for a CUP)

LMC 5-6-9 (F) only allows the applicant (and the record owner of the real property who is also defined as an applicant per LMC 5-7-2 Definitions, Applicant) to appeal a Conditional Use Permit decision of the Planning Commission to the City Council. The proposed amendment would allow any interested party to appeal Planning Commission CUP determinations (Attachment 2, Exhibit A).

LMC 5-6-9: USE PERMITS (Existing):

F) APPEAL HEARING: If the applicant is dissatisfied with the action of the Planning Commission, written appeal must be filed within ten (10) days of a decision by the Planning Commission to the City Council. The City Council shall set a date for the public hearing and give notice to the Planning Commission of such appeal;  whereas the Planning Commission shall submit a report to the City Council, setting forth the reasons for action taken by the Commission prior to the appeal hearing. The City Council shall render its decision within thirty days of said public hearing.

At their regular meeting of June 14, 2011, the Planning Commission recommended the following change:

Use Permits Proposed ChangeThe above suggestion for appeal language would allow any interested party to appeal a Planning Commission decision, not just the project applicant. This would allow others, such as the neighbors to a particular project to appeal the Planning Commission’s decision to the City Council.

RELATING TO VARIANCE APPEALS

LMC Title 5 Chapter 6 Section 10 (D) Appeal Hearing (for a Variance)

The appeal process for zoning variances has the same limitations as discussed in Item 2 above. The proposed amendment would allow any interested party to appeal Planning Commission determinations regarding Variance applications (Attachment 2, Exhibit B).

LMC 5-6-10: ZONING VARIANCES (Existing)

D) APPEAL HEARING: If the applicant is dissatisfied with the action of the Planning Commission, written appeal must be filed within ten (10) days of a decision by the Planning Commission to the City Council. The City Council shall set a date for the public hearing and give notice to the Planning Commission of such appeal; whereas the Planning Commission shall submit a report to the City Council, setting forth the reasons for action taken by the Commission prior to the appeal hearing. The City Council shall render its decision within thirty days of said public hearing.

Similar to Item 2 above, LMC 5-6-10 (D) only allows the applicant (and the record owner of the real property who is also defined as an applicant per LMC 5-7-2 Definitions, Applicant) to appeal a Variance decision of the Planning Commission to the City Council.

Zoning Variance Proposed Change

ENVIRONMENTAL ANALYSIS:

The proposed amendments to the Ordinance are exempt from California Environmental Quality Act (CEQA) requirements pursuant to Section 21083.3 of the Public Resources Code as there are no new impacts that were not addressed in the 1999 General Plan EIR and 2025 General Plan Update EIR. The proposed amendments are also exempt from CEQA under the common sense exemption, CEQA Guidelines section 15061(b)(3). The common sense exemption applies because it can be seen with certainty that the proposed amendment will not have a significant effect on the environment.

GENERAL PLAN CONSISTENCY:

This Project is consistent with the 1999 General Plan and 2025 General Plan Update Commercial Land Use Policy according to the following objectives and policies:

• Community Design Element Objective 7.3 A, Commercial and Industrial Development, states the City should ensure that all commercial development is attractive, of high-quality design, and enhances the image of the City. By requiring Conditional Use Permits of all new antenna towers and antenna co locations by the Planning Commission, the City can ensure through a public hearing that a new tower or co-located antennas are attractive, of a high-quality design, and enhances the image of the City.

• Commercial Land Use Policy 3.1 A 6: The Conditional Use Permit process with its four findings required for approval shall be used where site conditions or project location will affect land use compatibility. The four findings for a CUP approval are:

    1. The site for the proposed use is adequate in size and shape to accommodate said use an all yards, spaces, walls and fences, parking, loading, landscaping, and other features required by the applicable zoning district.
    2. The site for the proposed use is served by streets and highways adequate to carry the quantity and kind of traffic generated by the proposed use.
    3. Public facilities are currently adequate to serve the proposed use or improvements are included in an approved Capital Improvement Plan or otherwise will be completed prior to the issuance of building permits.
    4. The proposed development is consistent with the General Plan.

Amending the appeal process for Zoning Variance applications and CUPs encourages community input in the planning process and does not conflict with the Livingston General Plan.

By allowing any interested party to appeal a Planning Commission decision on a Conditional Use Permit or Variance, the City Council will have an opportunity to review a project and take public comment if neighbors or other interested parties disagree with a Planning Commission decision.

FISCAL. IMPACT:

Unknown.

ATTACHMENTS:

1. Ordinance , an Ordinance of the City Council Concerning LMC 5-5-8 Table 12

Exhibit A – LMC 5-5-8 Table 12 Proposed Language

2. Ordinance _, an Ordinance of the City Council Concerning LMC 5-6-9 (F) and LMC 5-6-10 (D)

Exhibit A – LMC 5-6-9 (F) Proposed Language

Exhibit B – LMC 5-6-10 (D) Proposed Language

3. City Council Approved Resolution of Intent 2011-30

4. LMC Title 5 Chapter 5

5. LMC Title 5 Chapter 6

1676161.1

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