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HomeMy WebLinkAbout3/24/2009MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION MARCH 24, 2009 CALL TO ORDER: Chairman Torng called the meeting to order at 7:02 p.m. in the South Coast Air Quality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, CA 91765. PLEDGE OF ALLEGIANCE: Vice Chairman Nelson led the Pledge of Allegiance. 1. ROLL CALL Present: Commissioners Kwang Ho Lee, Jack Shah, Vice Chairman Steve Nelson, Chairman Tony Torng. Absent: Commissioner Kathy Nolan was excused. Also present: Greg Gubman, Acting Community Development Director; Katherine Laufenburger, Senior Planner; and Stella Marquez, Senior Administrative Assistant. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None 3. APPROVAL OF AGENDA: C/Lee said he believed there was an outstanding legal issue with respect to the March 10, 2009, Planning Commission reorganization and asked that Item 4 be moved for discussion to immediately following Item 7. VC/Nelson suggested the item be discussed under Item 8. C/Lee said it was a public matter and he wanted the consent calendar item discussed immediately following Item 7.1 on tonight's agenda. 5. OLD BUSINESS: None 6. NEW BUSINESS: None 7. CONTINUED PUBLIC HEARING: 7.1 Conditional Use Permit No. 2008-06 and Development Review No. 2008-21 - Under the authority of Diamond Bar Municipal Code Sections 22.42.130, 22.48 and 22.58, Verizon Wireless has submitted a request to establish a freestanding wireless telecommunications facility at Chaparral Middle School. The proposed Project consists of the construction of two 50 -foot tall antennas disguised as flag poles; and construction of an unmanned, 184 square foot 10 -foot tall equipment shelter within an existing storage area located to the north of the school and west of the existing parking lot. MARCH 24, 2009 PAGE 2 PLANNING COMMISSION PROJECT ADDRESS: 1405 Spruce Tree Drive (Lot 98, Tract 30629, APN 8293-006-900) Diamond Bar, CA 91765 PROPERTY OWNER: Walnut Valley Unified School District 880 S. Lemon Avenue Walnut, CA 91789 APPLICANT: Verizon Wireless 15505 Sand Canyon Ave, Bldg D, 1St Floor Irvine, CA 92618 ACDD/Gubman stated that today staff received an email from a neighbor regarding this matter, and that copies have been provided to the Commissioners. There are four items that the writer raised with the overall opposition to the proposal. ACDD/Gubman reminded the Planning Commissioners that the first comment regarding potential health effects of radio frequency radiation cannot be considered by the Commission. The Federal Telecommunications Act of 1996, which is codified in Title 47 of the Code of Federal Regulations, explicitly prohibits the Planning Commission from making a decision on this matter on the basis of radio frequency emissions or any perceived health effects, and must not be discussed or considered by the Commission when making its ruling. In addition, the third comment makes reference to the health and safety of the students which falls under the same preemption underthe Federal Telecommunications Act and is likewise not to be discussed or weighed as part of the Commission's decision on this matter. SP/Laufenburger presented staff's report and recommended Planning Commission approval of Conditional Use Permit No. 2008-06 and Development Review No. 2008-21, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. C/Shah asked if the emergency generator was part of this project. SP/Laufenburger responded that generally, whenever a cell tower is installed an emergency generator is included for emergency backup in the event of lost power. C/Shah said he understood that permits for generators were not being granted by cities and suggested staff check on this matter. Chair/Torng asked if the school currently used the site for trash. SP/Laufenburger responded that currently there is a storage container at the site. The area is fenced and there is no public access. There is a trash bin outside of the gated enclosure. Chair/Torng asked SP/Laufenburger to point out the distance from the nearest home to the tower. He wanted to know if the closest school building MARCH 24, 2009 PAGE 3 PLANNING COMMISSION contained classrooms. SP/Laufenburger said there may be classrooms but the distance requirement is to the nearest residential property line, not to the nearest structure. Chair/Torng said a classroom was important to him because it was closer than the residence and if school kids are present he hoped it would exceed the required distance. ACDD/Gubman explained that the reason for the setback to the residence is to address aesthetic issues. The school building is on the property for which the applicant is requesting the use. There is no code requirement for any minimum distance within the property boundaries to any structures. He asked the Commission to keep in mind that the setback requirement is to address aesthetic/visual concerns by locating the antenna a specified distance from residential properties. VC/Nelson reported that his wife is the attendance clerk at Chaparral Middle School. He has not discussed this project with his wife and believes he can render an objective decision. However, if his colleagues or staff or audience members disagree, he would recuse himself from considering this project. ACDD/Gubman recommended that VC/Nelson recuse himself from consideration of this matter. VC/Nelson recused himself and left the dais. Chair/Torng opened the public hearing. Michelle Felton, Core Communications, Brea, representing Verizon Wireless thanked the Commission for considering the project and SP/Laufenburger for her diligent review of the project. She explained the project and asked for Commission approval. Ms. Felton responded to Chair/Torng that the site is currently used for storage and she assumed that it would be used primarily by the school maintenance crew. In addition to the area being secured the equipment will be enclosed in a shelter that will also be secured. Chin Hung, 22835 Ironbark, said the site shown on the screen is not the same site as was mailed to the residents. He wanted to know how strong the radiation. emission was because the pole sits on the ground on the surface of Ironbark Drive and probably within 50 feet of his residence. He wanted to know what kind of effect this project would have on his long-term health. Charles Maruka, 1416 Spruce Tree Drive, said the map location is not what was shown today. The map location is showing right off of Ironbark and the project is shown on Spruce Tree so what was published is not accurate and it would make MARCH 24, 2009 PAGE 4 PLANNING COMMISSION more sense to him that it would be placed in a location other than in front of someone's house. He was also concerned about studies relating to the transmission. He said he did not want to speak about something that was not legal to discuss but he was concerned about a transmission area that is so closely located to where hundreds and hundreds of kids would be on a daily basis. Is the school district making any money off of this project because it does not seem to be an appropriate site in the middle of a neighborhood, especially where there are kids? ACDD/Gubman referred to his earlier statement that the Federal Telecommunications Act explicitly states that "no state or local government" or instrumentalities thereof may regulate the placement, construction and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with the (Federal Communications) Commissions' regulations concerning such emissions." The FCC licenses the carriers and regulates the radio frequency band under which carriers may operate and have all authority on that matter. For that reason, Commissioners are completely pre-empted from considering any potential environmental and health effects related to radio frequency emissions. ACDD/Gubman said that with respect to purported inaccuracies in the notification, when notifications are sent they include a vicinity map that points to the property on which the proposal is being requested and not to the precise location on a property. The vicinity map was pointing to the Chaparral Middle School property as a location, not the specific siting and orientation of the cell site. The notice is accurate and in compliance. The notice also stated that the plans were available at City Hall and provided contact information to invite and encourage the public to contact the City or to visit City Hall to view the plans and obtain more detailed information about the facility, its location and its characteristics. The.school district would be leasing the facility to Verizon which is a business arrangement between the two parties, therefore, it is reasonable to presume that the school district would be entering into this agreement as a revenue generating enterprise. Ms. Felton stated that Verizon's installations are regulated by the FCC and maintains emission levels that are much lower than what is permitted. In addition, the school location was chosen so as not to affect the school proceedings and the property provides good aesthetics and setbacks from the street. These types of sites are often located at schools. SP/Laufenburger again confirmed to Chair/Torng that the distance from the flagpole to the home on Ironbark is 105.6 feet. Chair/Torng closed the public hearing. MARCH 24, 2009 PAGE 5 PLANNING COMMISSION C/Shah moved, C/Lee seconded, to approve Conditional Use Permit No. 2008-06 and Development Review No. 2008-21. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Shah, Lee, Shah, C/Torng NOES: COMMISSIONERS: None ABSTAIN: COMMISSIONERS: VC/Nelson ABSENT: COMMISSIONERS: Nolan VC/Nelson returned to the dais. 4. CONSENT CALENDAR: 4.1 Minutes of Regular Meeting of March 10, 2009. C/Lee disclosed publicly that one of the nominees called him one year ago after the Commission meeting to initiate a discussion that he and C/Lee should take the position of the Chair and Vice Chair. After the reorganization was held during the last meeting C/Lee felt uneasy so he took a look at the Code of Ethics and it describes that it is unlawful to have such discussions. So he felt the Commission should get a legal opinion. He felt he was induced to support someone and he would like to suggest that the minutes should be postponed until the Commission was able to get a legal opinion. Second, he requested the presence of legal counsel at the next meeting. Third, he believed the current Chair should resign until the Commission was provided with a legal opinion and during the interim the previous Chair, Steve Nelson, should conduct the meetings. He said the reason he brought this up is because he believes the decision could be wrong without him disclosing so the Commission should reconsider this matter with legal opinion. He also said he would like to get other Planning Commissioner's opinions too. C/Shah said he had no comment at this time. VC/.Nelson asked C/Lee to explain what he meant by "unlawfulness" and C/Lee responded "secrecy." All matters pertaining to the Commission should be fully reported. He was called by another Commissioner a year ago and was told things he believed may have entered the realm of Code of Ethics violation. He should have reported it to his colleagues at the time. Because it happened, and it has happened again on several occasions, he felt obliged to divulge the conversation during a public meeting. VC/Nelson said he did not know the Code of Ethics that well but his preference would be not to ignore C/Lee's concerns but to have the Commission do its work MARCH 24, 2009 PAGE 6 PLANNING COMMISSION moving forward without the kind of dysfunction. While he honored C/Lee's request to have the matter looked into by legal counsel, he did not see any benefit to having Chair/Torng to step down until there was a discussion and ruling. VC/Nelson said he believed that what the Commission did was completely above- board, completely ethical and was the Commissions' desire. The Commission has business to conduct and he would not want C/Lee's concern to stand in the way of that happening. C/Lee said he respected VC/Nelson's comments but that he did not feel comfortable and would like a legal opinion on the matter. C/Shah said that he was concerned that the discussion took place a year ago but was not brought up previously and it is being brought up now. He agreed with VC/Nelson that the Commission should continue with its business because it completed the process of selecting a chair and vice chair according to protocol and until such time as a legal opinion is rendered and different actions might be required the Commission should move forward with its business. C/Lee pointed out that these types of conversations occurred on several occasions and with each conversation he grew more concerned that he should bring this matter to light rather than risk a Code of Ethics violation. When it happened again after last month's reorganization he was determined to speak out about the matter. However, because he respects the comments of his colleagues about the matter of approving the minutes he will abide by their wishes. Chair/Torng asked for ACDD/Gubman's input. ACDD/Gubman said that it would be the Commission's choice whetherto approve or continue the decision regarding the minutes to the next meeting but approving the minutes is nothing more than affirming that the minutes provided in the agenda packet is a factual documentation of what occurred at the meeting on March 10. If the Commissioners concur that the minutes comprise a factual record of the last meeting that stands on its own merits, the Commission can approve the minutes accordingly. Certainly a request for a legal opinion can be made. He is not qualified to render an opinion so he would need to defer the matter to the City Attorney and he will take his guidance and report back to the Commission or invite the City Attorney to attend the next meeting to discuss the matter. Pending guidance from the City Attorney he would not be able to advise the Chair to step down or vote for or appoint a new Chair. There is no basis for him to suggest that there should be any reorganization of the Commission this evening. ACDD/Gubman stated that regarding the selection of the Chair and Vice Chair during the last meeting as he recalls, Commissioner Nolan made the motion for MARCH 24, 2009 PAGE 7 PLANNING COMMISSION Vice Chair and Commissioner Torng seconded the motion. Immediately after C/Nolan's nomination, there was no second to the nomination on the floor, and it was his perception that Chair/Torng seconded the motion in order to enable the Commission to call for the question on the motion. So he does not believe there was any improper conduct in Chair/Torng's desire to call for the question because all of the Commissioners had a choice to vote as they choose. Beyond that, if there was any impropriety the Commission would have to listen to the City Attorney's advice on that matter. VC/Nelson suggested that the City Attorney attend the April 14 meeting. He said he realizes that it involves an investment on the part of the City but he believed it would pay dividends in terms of this Commission not having any dysfunction in it. Chair/Torng deferred to ACDD/Gubman and VC/Nelson. If the attorney believes something illegal has occurred and he needs to step down, he will happily step down. In the meantime, he believed the Commission should approve the minutes based on the merit of the document. Action will be taken on other items that may need to change in the future. C/Shah moved, VC/Nelson seconded, to approve the Minutes of the Regular Meeting of March 24, 2009, meeting as corrected. C/Lee restated his position and said he would defer to the wishes of C/Shah and VC/Nelson and move forward. He asked that the entire matter be dropped and that the attorney not be summoned to the next meeting. Chair/Torng called for the vote to continue. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Shah, VC/Nelson, Lee, Chair/Torng NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nolan 8. PLANNING COMMISSIONER COMMENTS/INFORMATIONAL ITEMS: C/Shah said he served on the Traffic and Transportation Commission and others have served on other Commissions in various capacities here and in other cities. While he appreciates C/Lee's desire and passion the Commission needs to move forward to serve the community in the best manner possible. He further stated that the Commissioners should never ever forget why they are here. C/Shah stated that the Commissioners are not here for money; not here for glory, but here to serve the community and that's the reason the Commissioners volunteer their time. He thanked his fellow Commissioners MARCH 24, 2009 PAGE 8 PLANNING COMMISSION and thanked C/Lee for dropping the matter and hoped his colleagues could work together to serve the community. He applauded all of his colleagues for understanding their commitment and for moving forward. VC/Nelson commended C/Shah on his comments. He said that whether one is Vice Chairman or Chairman there are five opinions and five votes, all of which are equal and all make a very significant contribution to the dealings of this community. He thanked C/Lee for his cooperation and for his wishing to move forward. Chair/Torng said that to be a Commissioner and a volunteer is a learning process. He admitted this is the worst thing that has happened to him because he always treasured the friendship and opportunity to work with his colleagues. Perhaps he should speak more truthfully and last year he did not. Last year when he called C/Lee he believed that was the case but he has since changed because he believes that to be a Chair and Vice Chair that in addition to the experience there must be cooperation and negotiation and everyone must work together. He has begun to feel that way so this year he did not call and he did not invite people to vote a certain way because after his surgery last year he started to feel that everything was much lighter to him. To be a Chair is a very great experience for him and he treasures the opportunity. At the last meeting when he was elected with everyone voting for him he appreciated it. When Commissioner Nelson was nominated to serve as Vice Chairman he supported the nomination because everyone is judged on his merits. Everyone is capable of doing the job but in thinking about the responsibility and who would support him he believed that Commissioner Nelson was a good choice so he believed it should go for a vote and see how the Commissioners felt. No matter what, the most important ingredient is the friendship and the chance to work together. Maybe he should have called Commissioner Lee after the last meeting but he did not. He believed it should be fine for two Commissioners to talk with each other. He said he would try to discuss his feelings honestly and if C/Nolan had nominated C/Lee he would have seconded the motion as well. If someone is convinced that a colleague is worthy to serve as Vice Chair he will support the nomination. Also very important in addition to friendship is that the Commission's mission is to conduct its business. He hoped that all of his colleagues could work together to get the job done as needed and if there are any misunderstandings everyone can forgive those misunderstandings and move forward and work together happily. He welcomes everyone to give him pointers and he will do his best to correct his mistakes. 10. STAFF COMMENTS/INFORMATIONAL ITEMS: 10.1 Public Hearing dates for future projects. ACDD/Gubman said he would be at the Planners Institute in Anaheim tomorrow, Thursday and Friday and was glad that C/Nolan was able to attend and theywould report back to the Commission at its next meeting. MARCH 24, 2009 PAGE 9 PLANNING COMMISSION 11. SCHEDULE OF FUTURE EVENTS: As listed in tonight's agenda. ADJOURNMENT: With no further business before the Planning Commission, Chairman Torng adjourned the regular meeting at 8:05 p.m. The foregoing minutes are hereby approved this 28th day of April, 2009. Attest: Respectfully Submitted, Greg Gubman Acting Community Development Director ��Torng, Chairman