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HomeMy WebLinkAbout03 Resolution of Denial for Design Review 2013-121TY O AGENDA REPORT MEETING DATE: FEBRUARY 11, 2014 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT ITEM # 3 SUBJECT: RESOLUTION OF DENIAL FOR DESIGN REVIEW 2013 -12 BACKGROUND: AT &T California is proposing to install up to 25 aboveground utility cabinets in, or adjacent to, the public right -of -way in various locations throughout Tustin to house and operate its Lightspeed equipment for its U -verse service. AT &T U -verse is a subscription entertainment and communication program that integrates phone, internet, and television services. The application shows that the proposed U -verse cabinets for its Lightspeed project are approximately four (4) feet tall, four (4) feet wide, and two (2) feet deep, and must be within several thousand feet of residential customers and in close proximity to the existing Service Area Interface ( "SAI ") cabinets to use the existing copper distribution network and maintain sufficient signal speed and quality. Each U -verse cabinet is able to serve up to about 400 residences. The Planning Commission considered Design Review 2013 -12 at their November 12, 2013 meeting and continued the item to January 28, 2014, to provide the applicant the opportunity to fully address items of Commission's concerns, including: providing art/screening on the cabinets; the proposal's violation of the fundamental intent of Ordinance No. 1232 and the Design Guidelines; the lack of desire or ability to co- locate U- Verse and SAI cabinets; AT &T's inability to demonstrate the feasibility and /or infeasibility of undergrounding the cabinets at each location; noise levels from the existing cabinets and the potential impact of additional cabinets on quality of life; the effect of additional cabinets within the community on the character of the community; safety concerns related to impeding disabled access in rights -of -way and sidewalks; and the need for a schedule of maintenance. In response, AT &T submitted a brief letter indicating that AT &T is not willing to allow art on any of its cabinets, nor place the cabinets underground. AT &T did not address all of the Commission's concerns, and requested that the Commission only consider some of the proposed locations. Further, AT &T is not willing to co- locate their cabinets at any location. Resolution of Denial for Design Review 2013 -12 Planning Commission - February 11, 2014 Page 2 On January 28, 2014, the Planning Commission, by a 3 -2 vote (with Commissioners Kozak, Altowaiji, and Lumbard approving; and Commissioners Thompson and Smith dissenting), directed staff to prepare a resolution of denial with associated findings for consideration by the Commission at the next regularly scheduled Planning Commission meeting. DISCUSSION: Resolution No. 4254 includes findings articulated by a majority of the Commission pertaining to the proposed project's failure to comply with Tustin City Code Section 9272; Tustin City Code Section 7260 related to Design Review of Aboveground Utility Facilities on Public Property and in the Public Right -of -Way; City Council Resolution No. 01 -95; and the associated Design Guidelines for Aboveground Utility Facilities on Public Property and in the Public Right -of -Way; and testimony provided at the public meeting. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4254, denying Design Review 2013 -12, a request to install and operate 25 aboveground utility cabinets in, or adjacent to, the public right -of -way in various locations throughout Tustin to house and operate Lightspeed equipment for U -Verse service. Scott Reekstin Elizabeth A. Binsack Principal Planner Community Development Director Attachment: Resolution No. 4254 RESOLUTION NO. 4254 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, DENYING DESIGN REVIEW 2013- 12, A REQUEST TO INSTALL AND OPERATE 25 ABOVEGROUND UTILITY CABINETS IN, OR ADJACENT TO, THE PUBLIC RIGHT -OF -WAY IN VARIOUS LOCATIONS THROUGHOUT TUSTIN TO HOUSE AND OPERATE LIGHTSPEED EQUIPMENT FOR U -VERSE SERVICE. The Planning Commission of the City of Tustin does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That a proper application for Design Review 2013 -12 was filed by AT &T California requesting to install and operate 25 aboveground utility cabinets in, or adjacent to, the public right -of -way in various locations throughout Tustin to house and operate its Lightspeed equipment for its U -Verse service. B. That pursuant to Tustin City Code Sections 7264 and 9272, the Community Development Director is authorized to consider the proposed Design Review. However, the Community Development Director forwarded the Design Review application to the Planning Commission for consideration and action to allow for a public meeting to accept comments and testimony from the general public regarding the proposed project. C. That the applicant indicated in the letter dated August 28, 2013, that the Lightspeed technology consists of high -speed electronic circuitry to light the fiber- optics and convert the fiber signal to a bandwidth to transmit over copper to residences. As such, if it were placed underground, it would have to be in a Controlled Environment Vault (CEV). The CEV is not flush to grade, and the aboveground hatch may be larger than the proposed Lightspeed cabinets. In addition, the applicant indicated that it is not economically feasible to construct new CEVs for the Lightspeed technology. D. That a public meeting was duly called, noticed, and held for Design Review 2013 -12 on November 12, 2013, by the Planning Commission. E. That at the November 12, 2013 public meeting, the Planning Commission expressed their concerns which include the following items: Providing art/screening on the cabinets; the proposal's violation of the fundamental intent of Ordinance No. 1232 and the Design Guidelines; the lack of desire or ability to co- locate U -Verse and SAI cabinets; AT &T's inability to demonstrate the feasibility and /or infeasibility of undergrounding the cabinets at each Resolution No. 4254 DR 2013 -12 Page 2 location; noise levels from the existing cabinets and the potential impact of additional cabinets on quality of life; the effect of additional cabinets within the community on the character of the community; safety concerns related to impeding disabled access in rights -of -way and sidewalks; and the need for a schedule of maintenance. F. That Design Review 2013 -12 was continued to January 28, 2014, to provide the applicant the opportunity to fully address items of Commission concern. G. That a public meeting was duly called, noticed, and held for Design Review 2013 -12 on January 28, 2014, by the Planning Commission. H. That the applicant did not make a good faith effort to address the items of Commission concern, nor propose any changes to the proposed project to respond to those concerns. In response, AT &T submitted a brief letter indicating that AT &T is not willing to allow art on any of its cabinets, nor place the cabinets underground. AT &T did not address all of the Commission's concerns, and requested that the Commission only consider some of the proposed locations. Further, AT &T is not willing to co- locate their cabinets. That Tustin residents expressed concerns about the applicant's proposal through written correspondence and verbal testimony at the public meetings. Concerns included: Personal safety related to facilitating undesired access to enclosed residential rear and side yards; potential decreases in property values; obstruction of pedestrian and disabled access on sidewalks; impacts on lines of sight; the proliferation of utility cabinets in the community; the undesirable appearance of utility cabinets; and view impacts. J. That at the January 28, 2014, public meeting, a majority of the Planning Commission expressed their concerns which include the following items: That the applicant has not shown a willingness to address the Commission's concerns; that the applicant has not demonstrated the level of demand in Tustin for the U -Verse Service; the undesirable appearance of the cabinets; the lack of a master plan identifying proposed cabinets citywide; the precedent that would be set for other utility providers to not place equipment underground; that undergrounding of the proposed equipment is technologically feasible, but the applicant is unwilling to underground the equipment; that costs associated with the undergrounding of equipment should not be a consideration in reviewing the applicant's request; that the applicant should be willing to co- locate the proposed cabinets with existing SAI cabinets; that the applicant should be able to accommodate public art on some of the proposed cabinets and identify colors that do not invalidate equipment warranties; that the project is being piecemealed in violation of the Resolution No. 4254 DR 2013 -12 Page 3 California Environmental Quality Act; and identified safety hazards to pedestrians and motorists. K. That on January 28, 2014, the Planning Commission, by a 3 -2 vote, directed staff to prepare a resolution of denial with associated findings for consideration by the Commission at the next regularly scheduled Planning Commission meeting. L. That the proposed cabinet locations do not comply with Tustin City Code Section 7260 related to Design Review of Aboveground Utility Facilities on Public Property and in the Public Right -of -Way and with City Council Resolution No. 01 -95 establishing Design Review guidelines for aboveground utility facilities on public property and in the public right -of -way. M. That the location, size, and general appearance of the proposed cabinets are incompatible with the surrounding area in that the cabinets would be aboveground, and consists of only one of two color choices that may not blend with the surroundings. In accordance with the City's Guidelines, cabinets that cannot be effectively screened should be located underground. However, the applicant is unwilling to underground the proposed equipment. To allow the proposed cabinets that are not effectively screened to locate in the City's right -of -way would set a precedent such that other providers would disregard the City's guidelines. N. That City staff diligently worked with the applicant to facilitate and achieve a plan for approval. O. That the proposed utility facilities do not comply with City Council Resolution No. 01 -95 (Design Guidelines for Aboveground Utility Facilities and their Accessory Equipment) in that: 1. Location — At least five of the 25 cabinets are proposed at locations where there is significant interference with public use of the properties and /or the rights or reasonable convenience of property owners who adjoin the properties. Utility facilities at these proposed locations would significantly impact the use of private property and the reasonable convenience of property owners by creating safety hazards, impacting line of sight, creating visual clutter, and /or impeding pedestrian access. 2. Stealth Facility —The proposed cabinets are not stealth in design and the designs are not intended to integrate with existing structures or blend with the surrounding environment. The proposed cabinets would be one of two colors that may or may not blend with adjacent landscape features and structures, and the applicant is not willing to make the cabinets available for public art or of any color other than a shade of beige. Resolution No. 4254 DR 2013 -12 Page 4 3. Co- location - The proposed cabinets are not integrated with existing cabinets, no co- location alternative was submitted, and the applicant refused to consider co- location at any location. 4. Colors — The proposed cabinets would be one of two colors that may or may not blend with adjacent landscape features and structures, and the applicant is not willing to allow the placement of art on its cabinets or any color other than a shade of beige. 5. Screening /Landscaping — No specific screening method or landscaping was proposed for the cabinets; and therefore the proposal is inconsistent with the Design Guidelines. 6. Undergrounding — Pursuant to the 2001 Guidelines, the City reserves the right to require that all utility facilities, including their accessory equipment, be placed underground when technologically feasible. However, the applicant is unwilling to underground the proposed equipment and has not sufficiently shown that it is feasible and /or infeasible to place the equipment underground. P. That the location, size, aesthetic features, and general appearance of the proposed facilities will impair the orderly and harmonious development of the area, the present or future development therein, or the community as a whole. In making such findings, the Planning Commission has considered at least the following items: 1. Height, bulk, and area of proposed structure — The proposed aboveground utility cabinets, each with a height of about four feet, a width of about four feet and a depth of about two feet, are larger in size than most other utility cabinets in the public right -of -way. 2. Setbacks and site planning — Of the 25 proposed locations, 21 are within the public right -of -way, two are within homeowner association landscape areas, and two are within public parks. If not properly placed and /or conditioned, aboveground cabinets have the potential to obstruct line of sight requirements, obstruct or hinder the opening of vehicle doors and /or obstruct disabled access. 3. Exterior material and colors — The proposed cabinets are constructed of metal and each cabinet would be of one of two colors that may or may not blend with the surroundings. 4. Landscaping — The proposed cabinets within public parks and homeowners association landscape areas have the potential to be screened with landscaping. Minimal or no landscaping would be provided at other locations. 5. Location and appearance of equipment located outside of an enclosed structure — None of the 25 cabinets is proposed to be located within an Resolution No. 4254 DR 2013 -12 Page 5 enclosed structure. The 25 new cabinets combined with the existing 16 cabinets would create clutter, contribute to proliferation, and be incompatible with the appearance of the streetscape. 6. Physical relationship of proposed structure to existing structures — The proposed cabinets would be located in close proximity to existing residences, fences, and walls. Cabinets placed near walls could facilitate undesired access to enclosed residential rear and side yards. 7. Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares - The proposed cabinets would be one of two colors that may or may not blend with adjacent landscape features and structures, and the applicant is not willing to make the cabinets available for public art. Without adequate screening, the proposed cabinets would negatively impact the appearance of streetscapes. 8. Development guidelines and criteria as adopted by the City Council — the proposed cabinets do not comply with the City Council's adopted Design Guidelines for Aboveground Utility Facilities, as described herein. Q. That approving the placement of proposed cabinets that are not in compliance with the City Council's adopted Design Guidelines would set a precedent for other utility providers to not follow the City's Design Guidelines, resulting in a proliferation of aboveground cabinets citywide. R. That this project is exempt pursuant to Section 15270 (Projects which are disapproved) of the California Environmental Quality Act II. The Planning Commission hereby denies Design Review 2013 -12, a request to install and operate 25 aboveground utility cabinets in, or adjacent to, the public right -of -way in various locations throughout Tustin to house and operate its Lightspeed equipment for its U -Verse service. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting held on the 11th day of February, 2014. STEVE KOZAK Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4254 DR 2013 -12 Page 6 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4254 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 11th day of February, 2014, by the following vote: PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK Planning Commission Secretary