Title
Adopt a Resolution to Reject an Appeal (PLN24-0040) by Wayne D. Russo (appellant) of the decision of the Planning Commission to Approve a Conditional Use Permit (PLN23-0031) to build an 80-foot high Wireless Telecommunications Facility (monopole camouflaged as a pine tree and related equipment) at 440 Peralta Ave and to Affirm the Planning Commission’s approval of the Conditional Use Permit. APN: 075-0225-001-04. Zoning District: DA-2. Applicant: Tower Engineering Professionals. Property Owner: Donald R. and Jo A. Lee Trust. Appellant: Wayne D. Russo
Staffreport
SUMMARY AND RECOMMENDATIONS
The applicant requested approval of a Conditional Use Permit to build a new Wireless Telecommunications Facility at 440 Peralta Avenue. The Wireless Telecommunications Facility would consist of a freestanding 80-foot high monopole designed to resemble a pine tree (“monopine”) and related equipment. The Planning Commission approved the Conditional Use Permit after a duly noticed public hearing on November 7, 2024 by a vote of 7-0. On November 20, an appeal of the Planning Commission’s decision (PLN24-0040) was timely filed by Wayne Russo, the owner of the property adjacent to the subject property where the facility is proposed. This appeal hearing was scheduled in accordance with the requirements of the San Leandro Zoning Code. The Zoning Code requires the hearing to be held within 60 days of the date the appeal was received. The 60th day was Sunday, January 19. Because the appeal is being heard on the first business day after the 60th day, the appeal is still timely. Staff recommends that the City Council adopt the attached Resolution, rejecting the appeal and affirming the Planning Commission’s approval of the Conditional Use Permit (PLN23-0031), based on the recommended Findings of Fact and subject to the recommended Conditions of Approval.
BACKGROUND AND RELATIONSHIP TO SURROUNDING AREA
The project site is 440 Peralta Avenue, a 57,784 square foot parcel in the DA-2 (Downtown Area 2) zoning district. The L-shaped parcel has frontage along San Leandro Boulevard and Peralta Avenue. The site contains a 23,200 square foot warehouse and a 2,100 square foot garage, with two ancillary parking areas. Nearby properties, to the northeast, include a tow yard, warehouses, public storage facilities, Siempre Verde Park, and single-family residences across San Leandro Boulevard. The site is bordered on the west by overhead BART rail lines and Union Pacific rail lines, with the Cherrywood residential tract further west.
APPLICABLE LEGAL STANDARDS
The federal government adopted several laws and regulations that severely restrict the City’s land use authority with respect to wireless telecommunications facilities. Those restrictions relevant to the proposed project are briefly discussed in this report.
Under the federal Telecommunications Act of 1996, cities have some ability to regulate where wireless telecommunications facilities are permitted. However, cities may not adopt a regulation that has the effect of prohibiting the provision of personal wireless services. (47 USC §332(c)(7)(B)(i)(II).) A regulation has the effect of prohibiting the provision of personal wireless services if, among other things, it prevents a wireless services provider from closing a “significant gap” in the provider’s own coverage. (See e.g. Metro PCS, Inc. v City & County of San Francisco (9th Cir 2005) 400 F3d 715.) There is no strict test for determining when a coverage gap is “significant”.
If a wireless services provider claims a proposed facility is necessary to close a significant coverage gap, it must provide data and documentation showing how the proposed facility would close the coverage gap, as well as documentation showing why other potential locations for the facility would not close the coverage gap. If the City determines that the documentation and data provided by the wireless services provider do not show that the proposed facility would close a significant coverage gap, the provider is permitted an opportunity to respond.
If the provider’s documentation shows that the proposed facility would close a significant coverage gap, the City must allow the facility if the provider demonstrates that it made a good faith effort to identify and evaluate feasible alternative locations. For example, the provider might provide information showing that other locations would not close the coverage gap, or that owners of potential alternative sites would not enter into lease agreements with the provider. These federal regulations preempt contrary local regulations, which means that a city could be required to approve a proposed facility even if its zoning code prohibits wireless telecommunications facilities in that location. Even if a city is required to allow a wireless facility in a specific location, it can still apply adopted aesthetic regulations, as long as the application of such regulations would not have the effect of preventing the closure of the coverage gap.
Federal law also completely preempts the ability of cities to regulate wireless facilities based on radio frequency (“RF”) emissions (47 USC § 332(c)(7)(B)(iv).) The Federal Communications Commission (“FCC”) establishes RF emissions regulations, which differ depending on whether the area is accessible to the public. Cities are prohibited from establishing standards different from those set by the FCC, or denying a project due to RF emissions concerns if the project complies with the FCC’s standards. A city’s only authority is to require a wireless provider to submit reports demonstrating compliance with the FCC’s RF emissions regulations.
PROJECT PROPOSAL
The applicant, Tower Engineering Professionals, proposes to build a new Wireless Telecommunications Facility that will support cellular service in San Leandro and AT&T’s FirstNet broadband network for use by emergency responders. See Attachment C - Attachment 1 - Exhibit A - Project Statement.
The proposed Wireless Telecommunications Facility would be located at the rear of the subject property, within an existing parking area near the north property line. The Wireless Telecommunications Facility would include an 80-foot high monopine with four levels of antennas and an equipment shelter (approx. 1,100 square feet) at the base of the tower. Two antenna levels would be reserved for co-locations by other carriers.
The proposal includes establishing a six-foot wide utility easement to bring power and fiber lines from Peralta Avenue to the facility, and a 20-foot wide utility and access easement from San Leandro Boulevard to the facility.
The City’s adopted 2023-2031 Housing Element identifies 440 Peralta Avenue as a housing opportunity site with a realistic capacity of 117 units. Based on the size and location of the proposed wireless facility, the site could still accommodate a residential building with that number of units.
STAFF ANALYSIS
Conditional Use Permit
In the DA-2 zoning district, a Conditional Use Permit is required for new monopoles.
Consistency Development Regulations / Specific Design Criteria
The project complies with specific design criteria for new freestanding towers, as listed in Attachment C - Attachment 3 - Development Regulations, and as summarized below:
• Providing camouflaging in the form of a monopine;
• Incorporating branches and bark cladding to support the monopine design;
• Routing conduit underground and through the trunk of the monopine;
• Securing the facility with a masonry wall; and
• Landscaping the facility with live plants to provide a visual buffer.
Factors Considered in Evaluating Wireless Facilities Applications
Pursuant to Zoning Code Section 4.04.376(K), the following factors shall be considered in evaluating the proposed monopine:
• Height of the cell tower - The monopine would be 80 feet in height. The applicant has provided documentation showing that there is a significant gap in coverage that the proposed monopine will eliminate. The applicant has submitted an Alternative Sites Analysis (Attachment C - Attachment 7), which demonstrates that 80 feet is the minimum height needed to provide effective wireless service in the target coverage area. Per Z.C. Section 4.04.376(C)(1), the height limitations in the DA-2 zoning district do not apply to Wireless Telecommunications Facilities. The Alternative Sites Analysis also demonstrates that alternative potential locations for the monopine will not fully close the coverage gap.
• Proximity to elementary schools and residential structures, property lines, and district boundaries - The subject site is not located near any elementary schools. The proposed Wireless Telecommunications Facility would be located a sufficient distance from residential properties to meet federal Radio Frequency (RF) emission standards, as documented in Attachment C - Attachment 5 - EME (electromagnetic energy) Report.
• Visual and other potential impacts to surrounding land uses - The applicant has submitted Photo Simulations (Attachment C - Attachment 4), with vantage points from within Siempre Verde Park, and Park Street, a residential street east of the subject property. The photo simulations demonstrate that the monopine would not create any negative visual impacts.
• Surrounding topography - The property is relatively flat and capable of accommodating the proposed facility.
• Surrounding tree coverage and foliage - On both the subject property and nearby properties, there are medium-height evergreen cypress trees, and tall deciduous and evergreen trees (such as spruces, pines, and cypresses) that are consistent with the proposed monopine design.
• Design of the facility and the characteristics that reduce or eliminate visual impacts - A masonry wall would be constructed to match existing masonry on the property and landscaping would be provided to screen the facility. The monopine would provide sufficient branches and cladding to achieve effective camouflaging. (See Attachment C - Attachment 1 - Exhibit B - Project Plans, Sheet C-2.2, Northeast Elevation).
• Existing and proposed parking, as well as site ingress and egress - The facility would establish a 20-foot wide access easement, through an existing driveway, from San Leandro Boulevard to provide sufficient site access. Due to the proximity to a Major Transit Stop (San Leandro BART), the site is not required to provide any parking pursuant to State Law.
• Availability of suitable existing towers, buildings and structures that would provide site sharing and co-location opportunities in the project vicinity - The applicant has submitted an Alternative Sites Analysis (Attachment C - Attachment 7), which includes a coverage map illustrating the existing coverage gap, and a list of sites considered for co-location. The Alternative Sites Analysis indicates that the proposed Wireless Telecommunications Facility is needed to provide effective service in the target coverage area.
GENERAL PLAN CONFORMANCE
The proposed project would be consistent with the following goals and policies in the General Plan Community Services and Facilities Element:
Goal CSF-4: Maximize access to information and communication services for San Leandro residents and businesses.
Policy CSF-4.1: Telecommunications. Collaborate with telecommunication service providers, the business community, and investors to foster access to emerging information and communication technology.
GOAL CSF-6: Ensure that local water, sewer, storm drainage, solid waste, energy, and telecommunication facilities are well maintained; improvements meet existing and future needs; and land use decisions are contingent on the adequacy and maintenance of such facilities.
As noted, the subject site was identified in the City’s 2023-2031 General Plan Housing Element’s Sites Inventory as a suitable location for housing. The RF emissions analysis in Attachment C - Attachment 5 - EME Report demonstrates that the installation of the proposed Wireless Telecommunications Facility would not interfere with the ability to construct housing on the subject site in the future.
FINDINGS OF FACT
Staff analyzed the proposal and determined that the required findings can be made for the project.
Conditional Use Permit
Pursuant to Zoning Code Section 5.08.124, to approve a Conditional Use Permit, the following findings must be made.
1. The proposed location of the Project is in accord with the objectives of the Zoning Code and the purposes of the DA-2 (Downtown Area 2) Zoning District, in which the Property is located.
The DA-2 zoning district encourages a range of commercial and residential uses, which would benefit from the improved wireless telecommunications service that the project would provide.
2. The proposed location of the Project and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan; will not be detrimental to the public health, safety or welfare of persons residing, or working in, or adjacent to, the neighborhood of such use; and will not be detrimental to properties or improvements in the vicinity, or to the general welfare of the City.
The proposed facility would be consistent with the General Plan, including policies which call for improving telecommunications in residences, businesses, and future desired uses. The project would not be detrimental to public health, safety, or welfare of nearby stakeholders or the City at large, because the facility would comply with federal and state regulations for the construction of the facility and the operation of the equipment.
3. The proposed Project will comply with the provisions of the Zoning Code, including all requirements for the proposed use in the DA-2 Zoning District in which it would be located.
The proposed project would comply with the applicable development regulations of the DA-2 zoning district, including required setbacks and access. The project would also comply with the development regulations / specific design criteria for freestanding towers.
4. The proposed Project will not create adverse impacts on traffic or create demands exceeding the capacity of public services and facilities, which cannot be mitigated.
The proposed Project will not create adverse impacts on traffic or create demands exceeding the capacity of public services and facilities because the subject property is already served by the necessary access and utilities necessary for the operation of the facility. The applicant would be required to install all necessary new electrical connections and to secure access easements. The amount of traffic anticipated would be limited to equipment servicing professionals, who would use the access easements.
PLANNING COMMISSION ACTION
At its regular meeting on November 7, 2024, the Planning Commission voted 7-0 to approve the project. During the public hearing, three speakers provided verbal comments, with one speaking in opposition to the project. Four comments were received in writing prior to the public hearing expressing opposition to the project, citing concerns about the perceived negative impact of RF emissions on nearby residential properties.
After closing the public hearing, the Commission raised questions regarding the limited authority the City has in reviewing cell tower applications, which legal counsel addressed and clarified. The deliberation then focused on the impact that the RF emissions could have on the subject property and the northerly adjacent property, which are both Housing Element opportunity sites. The discussion addressed whether RF emissions because of the project could negatively affect residents of future housing developments. Following deliberation, the Planning Commission approved the project, with additional conditions of approval to address the concerns.
Conditions of Approval numbers 57 and 58 were added to the resolution, requiring that the facility provide an EME report 30 days after activation - and every year for five years - and that if a future EME report identifies that the project violates the FCC standards within any adjacent or neighboring residential building, that the applicant shall adjust the facility until the emissions in the residential building do not exceed FCC standards.
Basis of Appeal
The appeal was submitted by Wayne Daniel Russo Jr., the owner of the parcel adjacent to 440 Peralta Avenue. The appeal raises six main arguments: 1) Mr. Russo was not notified of the Planning Commission’s public hearing, 2) the proposed wireless facility raises health concerns due to RF exposure and the FCC’s regulations are inadequate, 3) the proposed facility interferes with Mr. Russo’s planned development of 523 San Leandro Blvd., 4) the height and appearance of the tower are incompatible with the neighborhood’s aesthetic character, 5) the proposed facility’s height and structure poses potential hazards in the event of an earthquake or extreme weather conditions, and 6) the City has not conducted sufficient environmental review since an environmental impact report (EIR) was not prepared. City staff believes none of these arguments have merit, for the reasons discussed below.
First, the City sent notice of the Planning Commission’s public hearing ten days before the hearing to all property owners within five hundred feet (500') of the project site, including Mr. Russo, and also posted notice of the hearing in three different locations, including at the project site. Notices were sent to the addresses on file with the County Tax Assessor. Notice was provided in the manner required by San Leandro Zoning Code Section 5.08.116. Even if the notice was lost in the mail, the City satisfied its notice obligations by mailing and posting notice in this manner.
Second, the project complies with the FCC’s RF emissions regulations, and therefore Federal Law prohibits the City from denying the project on that basis. The applicant submitted an EME Report showing the proposed facility complies with the FCC’s standards. The report indicates that there are certain locations surrounding the proposed monopole where the FCC’s RF standard for accessible areas is violated. However, those locations are more than fifty feet (50') in the air and not accessible to the public, and therefore the regulations are not currently violated.
In the future, if there is a proposal to develop a structure with a height greater than 30 feet on the adjacent property, the applicant is responsible for conducting a new Radio-Frequency Compliance Report to analyze the impact of the proposed development and, if necessary, modifying the wireless facility within 90 days to ensure that RF standards are met before anyone can access that area. This may involve adjusting the antennas, moving where they are located on the monopine, or removing the monopine completely. The applicant is required to submit a new Radio-Frequency Compliance Report to confirm the adjustments result in continued compliance with the FCC’s RF standards. Separately, the applicant is required to submit a new Radio-Frequency Compliance Report demonstrating that the facility meets the FCC’s standards for radio-frequency emissions once the monopine is installed, and annually for five years after facility is installed. These requirements are memorialized as conditions of approval 57-59.
Third, the proposed facility in no ways limits how Mr. Russo can develop his property. To the extent Mr. Russo is concerned about the RF emissions from the facility, those concerns are addressed above and by conditions of approval 57-59. Mr. Russo also states that the existence of a wireless facility next door will deter future residents of any potential development. However, this is not a compelling argument. The Zoning Code permits many different uses of property; if residents of an adjacent property may prefer some uses over others is not a deciding factor. Similarly, if Mr. Russo submits an application for a proposed use of his property, how potential future residents of adjacent properties might perceive such a proposed use will not be determinative. Furthermore, since the applicant has demonstrated that the proposed facility is necessary to close a significant coverage gap, federal law does not allow the City to consider Mr. Russo’s future plans for his property or the project’s impact on property values when considering the proposed facility.
Fourth, the applicant has submitted Photo Simulations (Attachment C - Attachment 4), with vantage points from within Siempre Verde Park, and Park Street demonstrating that the monopine would not create any negative visual impacts. Although the monopine will be taller than adjacent buildings, it will be adjacent to the elevated BART rail lines. Those existing rail lines created a visual impact, which the proposed facility will not increase significantly. Furthermore, the applicant submitted an Alternative Sites Analysis (Attachment C - Attachment 7), which demonstrates that 80 feet is the minimum height needed to provide effective wireless service in the target coverage area and close the significant coverage gap. Accordingly, the City is prohibited from denying the proposed monopine unless it can show the alternative sites analysis is incorrect.
Fifth, there is nothing in the record to indicate that the proposed facility’s height and structure pose potential hazards in the event of an earthquake or extreme weather conditions. The facility will be required to comply with the California Building Code, which establishes requirements to ensure the safety of structures constructed in California.
Sixth, there is no need to prepare an environmental impact report for this project. CEQA Guidelines Section 15303 exempts the new construction of small structures from further environmental review. Courts have previously held that this exemption may be used for new wireless facilities similar to the proposed project where the facility fits within its setting. (Don't Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338.) In contrast, the exemption may not be used when a cell tower will far exceed the height of every structure or tree within its vicinity. Here, the proposed cell tower fits within the setting. Although the monopine is not immediately adjacent to another structures or tree, it does not stand out in the visual setting. The proposed monopine (which has the appearance of a tree) is visually similar in height to trees located on the other side of the BART tracks. In addition, the elevated BART tracks are very prominent in the skyline in the vicinity of the project.
On January 6, 2025, the Appellant submitted a letter that contained additional information related to the aforementioned reasons for appeal, as well as new additional reasons for the appeal. San Leandro Zoning Code Section 5.20.112 provides that the reasons for appeal must be in the initial request for an appeal, and Section 5.20.116 limits the City Council’s consideration to those issues identified in the appeal, included as Attachment B. Accordingly, staff is not responding to the additional issues raised in the January 6, 2025 letter, and those issues may not be considered by the City Council
For these reasons, and because of the Findings of Fact stated above, staff recommends that the City Council reject the appeal and affirm the Planning Commission’s approval of the Conditional Use Permit, subject to the recommended Conditions of Approval.
The appellant’s initial November 20 appeal and the appellant’s attorney’s January 6, 2025 letter, as well as a response from the applicant, are included as Attachments B and F, respectively.
ENVIRONMENTAL REVIEW
This project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15303, New Construction or Conversion of Small Structures.
PUBLIC OUTREACH
A notice of public hearing was published for this project in the East Bay Times Daily Review newspaper, mailed to property owners within 500 feet of the subject property, and posted at the Project Site and City Hall on Friday, January 10, 2024.
RECOMMENDATION
Staff recommends that the City Council adopt the attached Resolution, which rejects the appeal and affirms the Planning Commission’s approval of the Conditional Use Permit to build an 80-foot high Wireless Telecommunications Facility at 440 Peralta Avenue (PLN23-0031), based on the recommended Findings of Fact and subject to the recommended Conditions of Approval.
ATTACHMENTS
A. Resolution No. 2025-XXX Rejecting the Appeal (PLN24-0040) and Approving PLN23-0031
Attachment A, Exhibit A: Project Statement
Attachment A, Exhibit B: Project Plans (with Manufacturer’s Specification Sheets)
B. Appeal Application and January 6 Letter
C. Planning Commission Staff Report, dated November 7, 2024
Attachment 1: Draft PC Resolution
Attachment 1, Exhibit A: Project Statement
Attachment 1, Exhibit B: Project Plans
Attachment 2: Vicinity Map
Attachment 3: Development Regulations
Attachment 4: Photo Simulations
Attachment 5: EME Report
Attachment 6: Five-Year Plan
Attachment 7: Alternative Sites Analysis
Attachment 8: Public Comments
D. Planning Commission Resolution No. 2024-010
E. Summary of Public Noticing
F. Applicant Response
PREPARED BY: Lourdes Juarez, Associate Planner, Community Development Department