LIVINGSTON PLANNING COMMISSION
REGULAR MEETING AGENDA
JANUARY 11, 2011
The regular meeting of the Livingston Planning Commission was held in the City Hall
Conference Room on Tuesday, January 11, 2011. The meeting was called to order by Chair Soria at 7:06 p.m.
Chair Roy Soria, Commissioner Luis Enrique Flores,
Commissioner Alex Gonzalez, and Alternate Commissioner Manoj Bains.
Administrative Assistant Filomena Arredondo, Community Development Director Donna Kenney, Acting City Manager Vickie Lewis, and Interim City Attorney Jose Sanchez.
Council Liaison Theresa Land, Katherine Schell-Rodriguez, Warren Urnberg, and Lucas Turner – Clearwire, LLC.
PLEDGE OF ALLEGIANCE
The pledge of allegiance to the flag was recited.
ACTION MINUTES FROM REGULAR MEETING OF DECEMBER 14, 2010
Commissioner Flores pointed out some grammar corrections to the minutes.
Motion by Commissioner Flores, seconded by Commissioner Gonzalez, to approve the minutes from the regular meeting of December 14, 2010. Motion carried 4-0, as amended.
Members of the Audience
CONDITIONAL USE PERMIT 2010-05 — CLEARWIRE, LLC
Applicant applied for a Conditional Use Permit to install a sixty (60) foot monopalm and antennas at 321 Second Street, pursuant to LMC 5-5-8.
Interim City Attorney Jose Sanchez addressed the Commission stating that he had received some legal questions at the last minute pertaining to the project property and to the Municipal Code for which he did not have answers. Therefore, in due diligence, he would recommend that the Planning Commission continue this item to the next meeting in order to provide him the necessary time to answer these questions. He apologized to the applicant and added that the Commission could still open up the public hearing, listen to public comment, and listen to the applicant even though the opportunity would also be there at the next meeting.
Chair Soria asked the Commissioners if they agreed to continue the item.
Commissioner Flores said he would like to know what were the legal questions that were brought up. He also asked if he could address his questions and concerns at this meeting so they would be clarified before the next meeting if they continue the item.
Alternate Commissioner Bains would also like to know the concerns brought up.
Interim City Attorney Sanchez replied that there are concerns about the Municipal Code itself, which he would like the ability to look at. It is due diligence on the Conditional Use Permit process and the property itself. He added that there are some issues with either a lease or a property that used to be owned by the City and he is trying to make sure that all the documents are in place and look at the Municipal Code and check on some minor issues of the Conditional Use Permit process as well. The idea of discussing Commissioners’ questions and concerns at this time is very efficient so that they don’t find themselves at the next meeting with issues that he cannot answer.
Chair Soria said he would like to proceed with this item. In doing some research, he was informed that the issue of the ownership of the property came up. Those particular items come up lots of times. The building owner is paying a fee for the parking lot. So if he does own it, what is the problem? About the concerns of the Municipal Code, the Municipal Code is sometimes out of whack, so they cannot always be on it 100%.
Chair Soria asked Director Kenney if she had a copy of the title.
Director Kenney replied that the City had a copy of the recorded property deed.
Alternate Commissioner Bains asked why the question about who owns the property came up.
Chair Soria said that if the property deed shows the Friesens own the property, he doesn’t see a reason why they can’t continue with this item at this meeting.
Commissioner Bains said he thought they were just voting on the extra 10 feet that Clearwire was requesting.
Chair Soria said the Planning Commission could allow the additional 10 feet if they granted the Conditional Use Permit. City Code allows a height of 50 feet and the Commission can grant an additional height of 10 feet.
Director Kenney said that was correct and explained that the packets she gave the Commissioners had one map showing Clearwire’s coverage at the 50 foot height and the other map showing the additional coverage at the 60 foot height.
Interim City Attorney Sanchez clarified that the Conditional Use Permit is not just for the extra 10 feet. It is actually required by the chart in Table 12 of LMC Section 5-5-8; so the additional 10 feet is something that will be included in this Conditional Use Permit pursuant to the Code. He added that there may be issues with the ownership of the property and some other issues with the Municipal Code and even though sometimes the Municipal Code is out of whack and they don’t have to be 100%, this is something that he does want to be 100% clear and 100% legal and 100% answering any legal questions he has in front of him. He knows that the applicant will be satisfied with knowing that they did everything possible legally to make sure it is all correct with the location and the Code so it does not later come up as an issue.
Commissioner Bains asked the applicant how he feels about continuing this item.
Clearwire representative Lucas Turner, 3199 C Airport Luke Drive, Costa Mesa, CA 92626, stated that every time he comes to a hearing, he likes to walk out with an affirmative "Yes," that his project is approved. He appreciates due diligence to make sure they have all of their ducks in a row. Nothing stalls their projects more than having to deal with these issues when it comes time for plan check or in between their approvals.
Mr. Turner explained that another benefit of the additional 10 feet that they are asking for would be that the tower would also be co-locatab le. He knows the City would prefer to have a co-locatable structure so that way when future carriers come into town, there isn’t the additional impact of another site, so the additional 10 feet will be beneficial. The tower is proposed as a monopalm, so it’s going to be a tree and it’s going to be fairly blended. He explained that monopalms don’t look exactly like real t rees, but 90% of the average person driving by will not even notice that it’s there. He thinks that the additional 10 feet would definitely be warranted.
He added that the project is relatively easy. They are only asking for 200 amps service so it’s low power, low voltage. The construction itself, the footprint of the tower, is very small. The actual equipment that they put in is only 4’x3’x5′ tall. It draws about 50 amps service, so it’s smaller than the size of a refrigerator. Visually the impact to the site is going to be very nominal and he thinks it’s going to be a great benefit to the community because with the Clearwire service that they provide, they are not focusing on the voice service; they are focusing on bringing high speed broadband to the community. The advantage to the community as a whole with the additional 10 feet is that they will cover an additional 5,000 – 8,000 people.
Commissioner Flores voiced his comments and questions:
• Expressed concern about the proximity of the railroad tracks.
• On page 2 of the staff report, Item 3, under Development Standards for Towers, it states that there are no public trails nearby; however, there are many informal public trails. People walk to the taco truck and to go to True Value, and to the gas station, and to the Plaza, so although there are no formal public trails, there are informal public trails.
• He is always concerned about the vulnerable populations that are nearby. The Senior Citizen Center is very close to where this proposed site is. He added that when the other site by the Walnut Child Development Center was brought up, he voiced his concerns about the young children near that site.
• This is the second Clearwire permit that has been discussed by the Planning Commission within a very short time, so he is confused about why they need another Clearwire entity
in town if they already approved one recently.
• Who will be making these monthly site visits?
• To whom will the rent be for?
• The color scheme in the downtown area has to be neutral colors according to the Code.
He sees bright colors here – brown, auburn, and forest green.
• One of his biggest concerns is on page 4 of the staff report, under Operation and Maintenance Standards, Item 2. "Non-ionizing Electromagnetic Radiation (NIER) exposure." He asked where that is noted in the resolution. It’s sort of alluded to in the staff report, but it’s not especially clear.
• They had another item come before the Planning Commission just recently where the
Commission had to strictly follow Code and they didn’t want to bend the rules, so he is
not sure why they would want to bend the rules this time allowing the 10 additional feet.
Clearwire representative Lucas Turner replied to the question about who would be making the monthly site visits and explained that Clearwire has their own Member of Operations employees who would go out there. They have their trucks clearly marked and most of the time they do their maintenances in less than two or three hours, but they do require 24-hour access to the site just in case something comes up.
Commissioner Flores asked Mr. Turner what is the association with his Clearwire proposal and the one recently approved by the Planning Commission.
Director Kenney responded that was additional antennas on the existing tower out on Walnut Avenue. Her understanding is that the proposed facility and the Walnut Avenue facility would work together hand-in-hand.
Mr. Turner explained it is part of a network. You cannot just have one. Things would be so much easier and cheaper if they could just bring one tower into each town, but it doesn’t work like that. There are a lot of variables that come into play – Why and where and how many sites. It is part of the wireless network and the more that people sign up for the service, the more the communities grow, the more sites they are going to need.
Commissioner Flores asked how the rent would be handled.
Mr. Turner responded the rent is paid to the property owner.
Commissioner Flores asked if the owners of the entity are individuals or a corporation.
Director Kenney said the actual property owners on the deed are Larry and Connie Friesen.
Commissioner Flores asked if they were related to Brandon Friesen and noted that Brandon Friesen is a former Mayor of Livingston.
Director Kenney replied they are related.
Commissioner Flores asked about the brown and green color scheme. He recalls that at a Planning Commission meeting a few years ago, there was a discussion about the color scheme needing to be specific tones of brown and specific tones of green, so he just wanted to see the specifications on that.
Director Kenney said the colors for the DTC zone are a recommendation; they were never officially adopted, so she would assume the palm tree would follow other palm trees with a tan and green color scheme.
Commission Flores said he acknowledges that in discussing planning issues, Planning Commissioners cannot take into consideration things such as the proximity to the railroad tracks, the trail, or the proximity to the senior citizen center, but he would recommend that in the resolution it be made more specific about the HEIR. It is sort of alluded to, but not plainly addressed about the radio frequency and the waves transmitted to nearby populations. It is mentioned in the staff report, but not so much in the resolution.
Commissioner Flores commented that the image of a palm tree has a lot of significance in the Central Valley because when the Central Valley was developed palm trees were seated here to distinguish properties, so that is why you see several palm trees around the Central Valley.
Commissioner Gonzalez stated that Commissioner Flores did bring up a good point about bending the rules on height. He asked for clarification.
Director Kenney said she is not sure what he means about bending the rules, but if they were referring to Mr. Aguiar’s project at 1333 Second Street, that is a residential project in code enforcement and there is a specific section of the Code that addresses extra height for residential mechanical structures, fences, and trellises, where this project is a tower and is addressed underneath a different section of the Code and the Code does allow the Planning Commission to give an additional height to the tower if it is necessary for the transmission reception of the structure.
Commissioner Flores said his concern was that when the Planning Commission discussed the Aguiar item, Planning Commissioners where very adamant about not bending the rules. He referred to the minutes of the regular meeting of December 14, 2010, where Commissioner Gonzalez seconded Chair Soria’s motion after stating that he is a huge fan of the art, but he also believes in code enforcement. Commissioner Flores added that he does not want to be part of a Planning Commission full of hypocrites; they would not bend the rules for Mr. Aguiar, but will bend the rules for this project. He acknowledges that this is downtown zoning vs. residential, but it is still bending of the rules.
Director Kenney clarified that there is no bending of the rules. City Code allows the Planning Commission to give the applicant additional height if it is required for the tower to be efficient.
Commissioner Flores said in this instance the extra 10 feet is not a requirement; it is a nice to have.
Acting City Attorney Sanchez said he wanted to add some clarity to the legal issues. What they are dealing with here is legal issue vs. policy decisions. The legal issue is, you have a code which allows extra feet, which allows it in the residential as well. There is also a policy issue of whether or not the Commission wants to look at case specific situations and grant extra height and treat everybody the same no matter what zoning district they are (commercial, residential, industrial) or whether the Commission wants to look specifically at what project it is and where it is located.
That is kind of a policy decision. The legal issue as far as bending the rules, it does allow for the additional height if the Commission allows it. It is similar to the residential areas which allows the additional height if the Commission allows it. It is a policy decision of whether or not the Commission allows it.
Commissioner Flores said that when they were talking about the Aguiar item, that option was never presented to them as part of the staff recommendation, so he cannot understand why it is being recommended now.
Mr. Turner added that in addition to having the tower co-locatable when they can get a little bit of extra height, it also expands their frequency blueprint, which essentially will reduce future towers and have closer proximity for the network. With the 10 foot extra height, they can cover 8,000 more people.
Alternate Commissioner Bains asked the applicant why they chose this location.
Mr. Turner responded that there are a lot of things that go into the site selection. Clearwire has a group of specialists that go out and look for the most feasible sites. Typically they like to go on the commercial areas because the zoning allows it. It also has to do with response from the property owners. If they have an interested property owner that is willing to do the deal, they will pursue him as opposed to others.
Alternate Commissioner Bains asked how long it will take to complete this project. Mr. Turner replied that actual construction time would be about 30 days.
Commissioner Bains asked if they have thought of planting real palm trees around the building so that it blends in instead of just one tree 60 foot high.
Mr. Turner replied that they have done that in some jurisdictions to comply with Code
requirements, so if that is one of the conditions of approval, then they will comply; however, it will be a lot of additional work for them to plant those trees. He stated that they are a company trying to make money, they don’t buy the land and landscaping would require maintenance on their part for the life of the site. In addition, they would have to plant trees that are not going to exceed the height of their antennas because it will impede the signal.
Chair Soria opened the Public Hearing at 7:43 p.m.
Warren Urnberg, 1331 8th Street:
• The Planning Commission disapproved Mr. Aguiar’s Conditional Use Permit on Second Street which had to do with exceeding a few inches on height. There is also another resident in town that was building a gazebo in the back yard and had to stop because it is about 11 inches too tall and here we have an antenna going up from 50-60 feet, yet these other two projects have been denied.
• He thinks that it would be beneficial for Clearwire to look at placing their tower at the VFW/American Legion Hall property located on 7th Street and Peach Avenue. He talked to VFW State Commander Denis Wells and he asked Mr. Urnberg to suggest that to Clearwire and whatever they were being charged by the Friesens, he would go half their price and that money would go towards the community.
• Recommended the Planning Commission listen to the City Attorney about continuing this item.
Director Kenney stated that the Veteran’s Hall is zoned residential and City Code does not allow these towers in residential zoning districts.
Kathryn Schell Rodriguez, P.O. Box 163, said that if the City has problems with its Municipal Code, then they need to fix it. She stated, "Livingston already has a sucky reputation as it is when it comes to attracting businesses and if we need to fix the Code so that we are not delaying someone’s project again, then we need to do that." She added that there is nothing more frustrating to someone who wants to do a deal than to walk into a Planning Commission or City Council and hear that they have a legal problem with some questions about the Code so they have to put it off a month or so while they fix it, especially when the applicant is driving half way across the state to get here.
Chair Soria closed the Public Hearing at 7:48 p.m. there being no further public comment.
Chair Soria said he would like to vote on this project at this meeting. Why wait if the legal question is ownership of the property and they know who the legal owners are? Why not treat everybody the same? He added that the Planning Commission must understand that residential and commercial zonings are different; different things are allowed in those particular zoning districts. If he builds his house in a residential zoning district, he would like everybody to abide by the residential regulations. In the downtown commercial zoning district, City Code allows a height of 50 feet for towers and an extra 10 feet with the permission of the Planning Commission or City Council. He said there is no need for hypocrisy and he does not believe there is a double standard.
Chair Soria asked for a motion to either continue this item to the next meeting or to vote on it at this meeting.
Commissioner Flores asked how difficult would it be to change the City Code from 50 feet to 60 feet since it seems that 60 feet would be the standard for these types of projects.
Director Kenney replied that it is a zoning ordinance amendment so it does need to go to
Planning Commission and City Council. It is all the same process with the public hearings. She added that she is currently preparing documents for a zoning code update in the near future after the situation with the City’s General Plan Update is resolved, so staff could either add that into the comprehensive zoning code update or it could be brought forward individually. Interim City Attorney Sanchez added it would be a public hearing at the Planning Commission level and then it would go to City Council for the two readings there and then become law 30 days after.
Chair Soria asked for a motion to continue or approve this item.
Alternate Commissioner Bains moved to resolve this item tonight since the applicant came from so far away.
Interim City Attorney Sanchez stated he would definitely rather not approve a Conditional Use Permit that ends up being in any way illegal because that would cause a legal problem for him and for the City. He would rather answer all his questions up front and issue a legal Conditional Use Permit with everything answered than to issue something that is not legal and then run into the problems of revocation.
Alternate Commissioner Bains asked if he can request that the applicant not have to be present at the next meeting since he already answered all the questions the Planning Commission had.
Lucas Turner said he did not mind coming again.
Interim City Attorney said that would be his choice.
Alternate Commissioner Bains thinks Clearwire should add a couple more trees on the other side of the building so it makes it look a little bit nicer.
Director Kenney said she can ask Clearwire Land Use Planner, Sunny Ausink, to provide some photosims and elevations that include additional trees if that is Planning Commission’s desire.
Chair Soria asked for a motion to continue this item to the next meeting.
Commissioner Gonzalez moved to continue the meeting. Commissioner Flores seconded the motion and requested that his concerns about the NEIR and radiation exposure be made super specific, clear, and obvious in the resolution.
Director Kenney said she will copy it word for word into the resolution.
Chair Soria asked the Commission that they continue this item with an open mind at the next meeting and not think of whose property this particular project is going to be located on. He feels there is a lot of hostility out there. If they are going to keep excluding properties where projects should be located, they are never going to have anybody do business in this City.
The motion carried 4-0 unanimously by the following vote:
AYES: Chair Soria, Commissioners Flores and Gonzalez, and Alternate Commissioner Rains
• Asked if Mr. Aguiar’s item was going to be on the agenda at the next Council meeting.
Director Kenney responded it was not.
• He wanted to spread the word that on Monday, January 24"’, at 7:00 p.m., the 4th of July Committee is meeting at Geneo’s Pizza. He encouraged the Planning Commissioners and staff to help spread the word. A lot of community effort is needed in order for this event to happen.
• He agrees with Commissioner Flores that to make the best possible choices for the City the Planning Commissioners must see all the options available, the clear ones especially.
He is still new at this and he will miss some stuff, but it would be good to know all their options for future reference.
Nothing to report.
Nothing to report.
Community Development Director Kenney
Nothing to report.
Administrative Assistant Arredondo
Nothing to report.
Interim City Attorney Jose Sanchez
Nothing to report.
The regular meeting was adjourned by consensus at 8:00 p.m. APPROVED: February 8, 2011
Chair, ROY SORIA Secretary of the Planning Commission,
DONNA M. KENNEY