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HomeMy WebLinkAbout02 PC REPORT DISH WIRELESS AGENDA REPORT ITEM #2 MEETING DATE: MARCH 12, 2024 TO: PLANNING COMMISSION FROM: JUSTINA L. WILLKOM, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: CONDITIONAL USE PERMIT 2023-0018 DESIGN REVIEW 2023-0029 APPLICANT: PROPERTY OWNER: BRIAN DE LA REE ALI SHAH TAZEROUNI DISH WIRELESS IRVINE LAW CENTER, LLC 7545 IRVINE CENTER DRIVE, SUITE 250 1352 IRVINE BOULEVARD IRVINE„ CA 92618 TUSTIN, CA 92780 LOCATION: 1352 IRVINE BOULEVARD GENERAL PLAN: PROFESSIONAL OFFICE (PO) ZONING: PROFESSIONAL DISTRICT (PR) ENVIRONMENTAL THIS PROJECT IS CATEGORICALLY EXEMPT PURSUANT TO THE STATUS: CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) SECTION 15303 (CLASS 3). REQUEST: WITHDRAWAL OF A REQUEST TO CO-LOCATE A NEW WIRELESS FACILITY ON THE ROOFTOP OF AN EXISTING COMMERCIAL BUILDING LOCATED AT 1352 IRVINE BOULEVARD. BACKGROUND On February 13, 2024, the Planning Commission considered the above-referenced applications, a request to co-locate a new wireless facility on the rooftop of an existing commercial building located at 1352 Irvine Boulevard (the "Dish Wireless Project"). Following a staff report, comments from the Planning Commission and a presentation by the Applicant, the Planning Commission continued the public hearing, to allow staff to further assess the scope of its review given federal oversight of telecommunications facilities. Punning Commission March 12, 2024 CUP 2023-0018 and DR 2023-0029 Page 2 The Dish Wireless Project proposal includes a rooftop cupola structure to screen the wireless infrastructure and match the existing architecture of the building. The building already hosts a separate rooftop mounted AT&T wireless communications facility approved administratively by staff in 2016. Because the cupola increases the building height to 40 feet, above the maximum structure height allowed in the zone, the application was routed as a "Major Wireless Communication" facility requiring Planning Commission approval of a Conditional Use Permit (CUP) and Design Review (DR). At the Planning Commission meeting, the applicant expressed that the proposal was in fact a co-location facility as defined by Federal Communications Commission (FCC) regulations. The Commission continued the proposal to March 12, 2024 to allow staff time to review the FCC regulation, and for the applicant to modify the proposed cupola to be better integrated with the existing structure. The continuation would also allow the applicant to provide an accurate photo simulation of the proposed project (Attachment A). ANALYSIS In response to the applicant's statement at the hearing, Planning staff, along with the City Attorney, researched the Spectrum Act and related FCC guidance. A key issue at the Planning Commission meeting was whether the placement of new roof mounted wireless facilities — separate and apart from the existing AT&T installation — constitutes a "co- location". In 2012, Congress enacted section 6409(a) of the Spectrum Act to streamline local review and approval of requests to modify existing wireless structures. The Act preempts local zoning authority. Significantly, the Act prohibits a local agency from denying a co-location or modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. The FCC then issued guidance explaining the meaning of these terms. Pursuant to FCC guidance, a "base station" is defined as a structure that currently supports or houses an antenna, transceiver, or other associated equipment at the time the application is filed. The term base station extends to support structures, including buildings, even where the structure was not built for the sole or primary purpose of providing such support. The term "co-location" is defined as the mounting or installation of transmission equipment on an eligible support structure. The term "eligible support structure" means any structure that falls within the definition of "tower" or "base station." (FCC 14-153; 2014 WL 5374631). Because the building at 1352 Irvine Boulevard housed the AT&T wireless facility at the time the Dish Wireless application was filed, the building itself is a "base station", per the FCC, and the mounting of a new wireless facility on the building is a co-location that must be approved unless it will substantially change the physical dimensions of the building. Specifically, the installation must be approved unless: (1) the proposed wireless facility within a cupula increases the height of the building by more than 10 percent or 10 feet, whichever is greater; (2) it protrudes from the edge of the building more than six feet; or Planning Commission March 12, 2024 CUP 2023-0018 and DR 2023-0029 Page 3 (3) involves the installation of more than four cabinets. None of these factors applies to the Dish Wireless Project. Because the Dish Wireless Project is a "co-location" as defined above, Federal law preempts the TCC. The City must approve the application and should not subject the application to discretionary review and/or denial by the Planning Commission based on either the height of the cupola or its proximity to adjacent residential uses. Staff-level administrative review, plan check, and approval of the project is required and appropriate. CONCLUSION The proposed Dish Wireless telecommunication facility is an eligible co-location facility underthe Section 6409(a) of the Spectrum Act, as it is less than 10 feet above the existing roof line; does not protrude from the side of the building; is limited to four or less new roof mounted equipment cabinets; and hides its antennas behind a faux cupola with decorative windows, similar to what was approved for Verizon Wireless. Because the proposal is an eligible co-location that does not substantially change to the physical conditions of the existing commercial building, the City must approve the proposal without discretionary review. Consequently, the applicant has withdrawn the CUP and DR applications, and will submit construction plans directly to the Building Division. The City will determine conformance with the FCC regulations during the building permit plan check review process. Attachment A: Photo simulation of proposed cupola Prepared by: Jay Eastma , Assistant Director- Planning Approved by: "IDLILI Ju na L. Willkom, Community Development Director TTACHMENT A L S S N A 0 1 1 1 5 C ARTISTIC �► N E W P O RT SMILES AEsims.com d.*.shl. 1 352 IRVINE BOULEVARD TUSTIN CA 927BO 8779AE.sims 1 drv•. ♦t ©2023 Goa le Maps I :! �PVry pt +5d9a"NNY °tu"xH'N'.Pmdmi.4 .,. CW PROPOSED ANTENNA SCREEN PROPOSED EQUIPMENT CABINET BEYOND � e ` r Ili iuuuuuuuuuuuuuuuuuuuuuuuuuu � '•. ��•��. ,�;n umi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mi mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm LOOKING SOUTH FROM IRVINE BOULEVARD L S S N A 0 1 1 1 5 C (CARTI.STIC �gner,,ig �► N E W P O RT SMILES AEsims.com d.*.sh 1 352 IRVINE BOULEVARD TUSTIN CA 927BO 8779AE.sims 1 'v 1. q. L 52023 Goo le Maps IF EXISTING 1 re rtMc. ' PROPOSED ANTENNA SCREEN PROPOSED EQUIPMENT CABINET BEYOND AI /ram'it ff` ;.. LOOKING WEST FROM IRVINE BOULEVARD L S S N A 0 1 1 1 5 C WifflSTIC �► N E W P O RT SMILES AEsims,com d.*.sh 1352 IRVINE BOULEVARD TUSTIN CA 927BO 8779AEsims �f t ©2023 Go le Maps ® p 1 t LOOKING NORTHEAST FROM PARKING LOT LSSNAO I 1 1 50 NEWPORT SMILES ARTISTIC dsh 1 352 IRVINE BOULEVARD TUSTIN CA 9278❑ AEsims cam 8779AE sims F, yy r,�l r ACCURACY OF PHOTO SIMULATION BASED UPON INFORMATION PROVIDED By PRI—EOT APPLICANT.