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HomeMy WebLinkAbout11/20/2007 Minutes - Regular MeetingCITY OF DIAMOND BAR CITY COUNCIL STUDY SESSION NOVEMBER 20, 2007 STUDY SESSION: M/Tye called the Study Session to order at 5:03 p.m. in Room CC -8 of the South Coast Air Quality Management District/Government Center, 21865 Copley Dr., Diamond Bar, CA. Present: Council Members Chang, Everett, Herrera, MPT/Tanaka and Mayor Tye. Staff Present: James DeStefano, City Manager; David Doyle, Assistant City Manager; Bob Rose, Community Services Director; Linda Magnuson, Finance Director; Ryan McLean, Asst. to CM; Rick Yee, Senior Engineer; Ken Desforges, IS Director; Kimberly Molina, Associate Engineer and Tommye Cribbins, City Clerk. City Attorney Michael Jenkins arrived at 5:23 p.m. ► CITY COUNCIL GOALS AND OBJECTIVES UPDATE — DISCUSSION AND ACTION CM/DeStefano gave a brief report on the City Council's Goals and Objectives stating that C/Everett had requested that the Council should revisit the General Plan Mission Statement in relation to the Goals and Objectives and C/Herrera's request to discuss the economic development goal related to the pursuit of a dynamic center at the D.B. Golf Course. 1) Golf Course: C/Herrera stated that she wanted to continue the pursuit of creating a high quality and dynamic center; however, felt that any reference to develop the golf course be deleted". She further stated that she wanted to continue working with Supervisor Knabe to locate a regional library within the City but delete reference of "as part of the redevelopment of the golf course." C/Everett asked if there was anything going on with respect to the library and the golf course? C/Herrera said the City was not considering developing the golf course. She further stated that Supervisor Knabe has set aside $10 million for a regional library at Schubarum Park. She suggested that Supervisor Knabe combine the $10 million with the City's money and locate it somewhere within the City. C/Everett said "somewhere" was important to him and it could be other than the golf course so in his opinion, it makes sense to go with C/Herrera's suggestion. NOVEMBER 20, 2007 PAGE 2 CC STUDY SESSION C/Chang asked if C/Herrera was saying the golf course should never be considered as a location for a dynamic center. C/Herrera responded that the reality is that the Council does not control it. C/Chang agreed with C/Herrera to keep the dynamic center as a goal but did not agree with excluding the golf course as a potential location option. M/Tye said that for those who spoke against locating a center at the golf course had also indicated that the Council was getting rid of the golf course. In fact, the City is not getting rid of the golf course, what the City was going to do was relocate the golf course. Most individuals in opposition are actually opposed to development and not concerned about whether the golf course is relocated and otherwise utilized. He wanted the opportunity to someday create a center that people in other cities would want to visit. He did not disagree with striking the verbiage "at the D.B. Golf Course" as long as it was understood that the golf course was a tool that should not be thrown out of the mix based on comments during the election - season. C/Chang said he agreed with M/Tye that for the short and long term, all options should remain open including the golf course. MPT/Tanaka felt there were a large number of residents who did not favor any development. M/Tye said he agreed with C/Chang that there were many moving parts in this issue such as what is the City of Industry going to do and what will Caltrans do in reconfiguring the freeway? C/Everett said he did not disagree with what had been said and reminded the Council that the General Plan Vision Statement included: "promotion of viable commercial activity. The City will play a proactive role in business and economic development." He felt that the City must expand that palate as realistically and as aggressively as possible to fit the Vision Statement. He felt very comfortable with the proposed wording. MPT/Tanaka said that many believed it was time to slow progress and maintain. C/Chang said he believed that if the City did not pursue economic development someone may take over, property values will decrease and many individuals will move away from the City. D.B. NOVEMBER 20, 2007 PAGE 3 CC STUDY SESSION has a shortage of land and funding sources and the City has to be very creative. PUBLIC COMMENTS: Gil Yanow pointed out that the Vision Statement also refers to maintaining "country living". Ted Meyer said he realized that the way Transamerica developed the City everyone might have to make compromises. He did not want to be viewed as an obstructionist if he has a disagreement about how the City should proceed. He believed it was a little disingenuous to believe that the hullabaloo created by this issue and other issues did not have an affect on decisions being made tonight. He suggested that the Council be more open about discussing the City's growth and create an atmosphere for residents to be comfortable in speaking. Lu Zheng said he was not opposed to development but wanted to make sure that it was reasonable and would not be destructive to the City. He believed most residents chose D.B. for its "country living." He too believed there had not been enough discourse with the residents. D.B. is unique and should not be developed like other cities. Fran Perez said that people do not want the golf course developed. She felt that many people would move out of the City if there was more commercial development. John Warren wondered if according to the survey the majority of those responding wanted to build or keep the City like it is. Jim Anderson said he was concerned about the Pack of communication with the residents. RESPONSE TO PUBLIC COMMENT: M/Tye responded to Mr. Anderson that during his first year on the Council he made an effort to be in different places around D.B. to speak with residents; however, he may have spoken to a total of three residents. He would like to make sure that Mr. Anderson understood that the Council makes every effort to include the community in all dialogue. It is a two-way street and he would like to hear from Mr. Anderson or anyone else on how the Council might be any more available than it has been. Council has witnessed that all too often small groups listen to only what they want to hear and only consider their own very clear agenda. As he has spoken with different people he has learned that that kind of action does not foster a meaningful dialogue. C/Everett said he asked for reference to the Vision Statement because he needed to consider a balance of all six elements. NOVEMBER 20, 2007 PAGE 4 CC STUDY SESSION CM/DeStefano responding to Mr. Meyer's question explained the City Council's public meeting agenda and protocol. M/Tye recommended that Mr. Meyer be placed on the mailing list to receive City Council meeting agendas. M/Tye made it clear that regardless of what anyone believes the City never had control over the golf course. There was dialogue about the possibility of relocating the golf course with a state-of-the-art golf course which would allow for other uses of the current site. C/Herrera moved, C/Everett seconded to eliminate the phrase under bullet point #2 "at the D.B. Golf Course" and #3 "as part of the redevelopment of the golf course." Without objection, the motion was so ordered. 10WIFI PRESENTATION — Continued. ADJOURNMENT: With no further business to discuss, M/Tye adjourned the Study Session at 6:10 p.m. ;1 TOMMY CRIBBINS, City Clerk The foregoing minutes are hereby approved this 4.th day of beceinber 12007. Mayor 1 MINUTES OF THE CITY COUNCIL REGULAR MEETING OF THE CITY OF DIAMOND BAR NOVEMBER 20, 2007 CLOSED SESSION: None STUDY SESSION: ► City Council Goals and Objectives Update - Discussion and Action ► WiFi Presentation — continued. Public Comments: Study Session adjourned to the regular meeting at 5:10 p.m. CALL TO ORDER: MayorTye called the regular City Council meeting to order at 6:30 p.m. in The Government Center/SCAQMD Auditorium, 21865 Copley Dr., Diamond Bar, CA. CM/DeStefano reported that during tonight's Study Session Council received a written status report on the City Council Goals and Objectives and concluded with action to modify two goals within the Council's 27 goals outlined for this year: Bullet #2 — eliminate the phrase "at the D.B. Golf Course" and Bullet #3 eliminate the phrase "as part of the redevelopment of the golf course." By this action, the Council has taken development of the golf course off its goals and the City is no longer pursuing that goal. The second item, WiFi Presentation was continued to a future study session. PLEDGE OF ALLEGIANCE: INVOCATION: Church, gave the invocation. ROLL CALL: Pro Tem Tanaka and Mayor Tye. Fred Encinas led the Pledge of Allegiance. Monsignor James Loughnane, St. Denis Catholic Council Members Chang, Everett, Herrera, Mayor Staff Present: James DeStefano, City Manager; David Doyle, Assistant City Manager; Mike Jenkins, City Attorney; Bob Rose, Community Services Director; Linda Magnuson, Finance Director; Greg Gubman, Planning Manager; Ken Desforges, IS Director; Ryan McLean, Asst. to City Manager; Marsha Roa, Public Information Manager; Rick Yee, Senior Engineer; David Alvarez, Planning Technician; Ann Lungu, Associate Planner; Dennis Tarango, Building Official, and Tommye Cribbins, City Clerk. APPROVAL OF AGENDA: As Presented. NOVEMBER 20, 2007 PAGE 2 2 9 2 CITY COUNCIL SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS: 1.1 C/Herrera presented a City Tile to former Planning Commissioner Osman Wei. 1.2 M/Tye presented Certificates of Recognition to Los Angeles County Fire Stations 119, 120 and 121 honoring their participation during the recent firestorms. Chief Nieto introduced Captain Moore, Station 119; Captain Green, Station 120 and Captain Cleveland, Station 121. The Diamond Bar High School Leo's Club President Anantha Singarajah; Freddie Peng; Sergeant -of -Arms and Katherine Liu, Director of Activities presented to each of the Fire Stations oxygen masks used for animals. NEW BUSINESS OF THE MONTH: 1.3 M/Tye stated that Kmart, 249 S. Diamond Bar Blvd. was selected as Business of the Month for November 2007; however, due to circumstances, no one was able to attend. CITY MANAGER REPORTS AND RECOMMENDATIONS: CM/DeStefano announced that a major SCAQMD auditorium renovation could affect the live broadcast of the December 18, 2007 City Council meeting. PUBLIC COMMENTS: Daryl Bowler congratulated MPT/Tanaka and C/Herrera on the occasion of their re-election to the City Council. He asked the City to consider creating a Municipal Code that would not tread on first amendment rights but would prevent negative election signs from being posted throughout the City as had been done this during this election. He suggested that perhaps the City could require all campaign signs to display the organization of origination. RESPONSE TO PUBLIC COMMENTS: None Offered. 5. SCHEDULE OF FUTURE EVENTS: 5.1 Thanksgiving Holiday — City Offices closed Thursday, November 22 and Friday, November 23, 2007 in observance of the Thanksgiving Holiday; City offices reopen on Monday, November 26, 2007. 5.2 Planning Commission Meeting — November 27, 2007 — 7:00 p.m., AQMD/Government Center Auditorium, 21865 Copley Dr. 1 1 1 NOVEMBER 20, 2007 PAGE 3 CITY COUNCIL 5.3 City Council Meeting — December 4, 2007 — 6:30 p.m., SCAQMD/Government Center Auditorium, 21865 Copley Dr. 5.4 Walnut Valley Water District Town Hall Meeting "Statewide Drought and its Impact on Local Water Supplies" — December 5, 2007 — 7:00 p.m. in the AQMD/Government Center Auditorium, 21865 Copley Dr. 5.5 Winter Snow Fest — December 8, 2007 — 10:00 a.m. to 4:00 p.m., Pantera Park, 738 Pantera Dr. 5.6 Candy Cane Craft Fair— December 8, 2007 — 9:00 a.m. to 2:00 p.m., Diamond Bar Center, 1600 S. Grand Ave. 6. CONSENT CALENDAR: C/Chang moved, C/Everett seconded, to approve the Consent Calendar as presented. Motion carried by the following Roll Call: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 6.1 CITY COUNCIL MINUTES - Regular Meeting of November 6, 2007 — as submitted. 6.2 PLANNING COMMISSION MINUTES: 6.2.1 — Regular Meeting of October 9, 2007 — Received and filed. 6.2.2 — Regular Meeting of October 23, 2007 — Received and filed. 6.3 TRAFFIC AND TRANSPORTATION COMMISSION MINUTES — October 11, 2007 — Received and filed. 6.4 RATIFIED CHECK REGISTER — dated November 1, 2007 to November 14, 2007 totaling $951,292.83. 6.5 ADOPTED RESOLUTION NO. 2007-60: DESIGNATING THE COUNTY OF LOS ANGELES DEPARTMENT OF PUBLIC HEALTH (DPH), ENVIRONMENTAL HEALTH DIVISION, SOLID WASTE MANAGEMENT PROGRAM (SWMP), AS THE LOCAL ENFORCEMENT AGENCY (LEA) RESPONSIBLE FOR THE CITY'S SOLID WASTE MANAGEMENT PROGRAM. 6.6 ADOPTED RESOLUTION NO. 2007-61: APPROVING THE YOUTH EMPLOYMENT PLAN FOR AT -RISK YOUTH IN THE CITY OF DIAMOND BAR AS REQUIRED BY PROPOSITION A: SAFE PARKS ACT TO SECURE $233,975.50 IN FUNDING FROM THE REGIONAL PARK AND OPEN SPACE DISTRICT THROUGH THE 2018/2019 FY TO IMPLEMENT THIS PLAN. NOVEMBER 20, 2007 PAGE 4 CITY COUNCIL 6.7 SECOND READING OF ORDINANCE NO. 07(2007) AMENDING TITLE 15 OF DIAMOND BAR MUNICIPAL CODE ADOPTING BY REFERENCE THE "CALIFORNIA BUILDING CODE," 2007 EDITION, VOLUMES 1 AND 2, INCLUDING ALL APPENDICES THERETO APPENDIX CHAPTER 1 OF THE 2007 CALIFORNIA BUILDING CODE AS THE ADMINISTRATION CODE; THE "CALIFORNIA MECHANICAL CODE 2007 EDITION AND THE APPENDICES THERETO; THE "CALIFORNIA PLUMBING CODE" 2007 EDITION AND THE APPENDICES THERETO; THE "CALIFORNIA ELECTRICAL CODE," 2007 EDITION AND THE APPENDICES THERETO; THE "UNIFORM HOUSING CODE," 1997 EDITION AND THE APPENDICES THERETO, AND THE "UNIFORM SWIMMING POOL, SPA AND HOT TUB CODE," 2000 EDITION, TOGETHER WITH CERTAIN AMENDMENTS, ADDITIONS, DELETIONS AND EXCEPTIONS INCLUDING FEES AND PENALTIES. 6.8 APPROVED APPROPRIATION OF $30,000 FROM THE TRAFFIC IMPROVEMENT FUND TO THE CAPITAL IMPROVEMENT PROGRAM BUDGET AND APPROVED CONTRACT AMENDMENT WITH KATZ, OKITSU & ASSOCIATES (KOA) FOR LANDSCAPE DESIGN AND ENGINEERING SURVEY SERVICES RELATED TO THE DEVELOPMENT OF TRAFFIC CALMING MEASURES ALONG SUNSET CROSSING ROAD BETWEEN DIAMOND BAR BOULEVARD AND PROSPECTORS ROAD AND ON PROSPECTORS ROAD BETWEEN SUNSET CROSSING ROAD AND GOLDEN SPRINGS DRIVE IN THE AMOUNT OF $26,660 PLUS A CONTINGENCY OF $3,340. 7. PUBLIC HEARINGS: 7.1 APPEAL OF PLANNING COMMISSION DENIAL OF CONDITIONAL USE PERMIT 2007-09, DEVELOPMENT REVIEW 2007-22 AND VARIANCE 2007-05; A REQUEST TO INSTALL AND OPERATE A TELECOMMUNICATIONS FACILITY AT RONALD REAGAN PARK AT 2201 PEACEFUL HILLS ROAD — (APN: 8765-015-900). PM/Gubman gave the staff's report stating that the cell site proposed by Sprint -Nextel earlier this year consists of a 40 -ft. tall artificial tree to support panel antennas and construction of an unmanned 200 sq. ft. 12 ft. high equipment building designed to match the existing park structure. He displayed an aerial photo of the proposed project location. October 9, 2007 after three public hearings the Planning Commission denied Sprints request finding that the applicant failed to demonstrate that co -locating the facility with other cell sites operated by other wireless carriers would not be feasible given the fact that other wireless providers are apparently able to provide coverage in the area of the proposed site. The applicant filed an appeal that was received by the City on October 15, 2007. The appeal provides the 1 1 1 NOVEMBER 20, 2007 PAGE 5 CITY COUNCIL applicant's argument contending the findings to deny the request are in error citing testimony entered into the record during the three Planning Commission hearings. PM/Gubman continued that during public hearings, several issues were raised by members of the public including perceived health risks associated with radio frequency emissions that emanate from cellular antennas; reduction in useable park areas and potential affects on property values. Documented in staff's report and in the public hearing meeting minutes, concerns about radio frequencies radiation cannot be considered when making a land use decision on a wireless telecommunications facility. The FCC established safety thresholds for radio frequency emissions and because the FCC has that local authority, local agencies are pre-empted from considering that as a determination for approving a cell site. In response to the neighborhood concerns about reductions in useable parkland area, Sprint proposed to relocate the antenna from the flat area to the park a few feet into the slope area so that the site would not encroach into the useable area of the park; oral testimony was presented at the September Planning Commission meeting wherein the applicant offered to eliminate the access road from the existing parking lot to the equipment building; and, with respect to property values, the applicant presented a study that found cellular sites had no negative affects on property values. The applicant further contends that the question of a cell site's impact on property values is speculative and not appropriate to a land use decision. Staff's report contains several letters and petitions from neighboring residents opposed to the proposed cell site. In addition, two letters received after the preparation of the staff report were emailed to all City Council Members. Among the letters was a detailed letter from Valerie Geddes who supports the Planning Commission's denial and provides arguments to support the belief that the Planning Commission was not compelled to approve this project for the reasons outlined in the Planning Commission's Resolution. In response, CA/Jenkins has provided an analysis of the legal arguments presented in the article. In addition, staff forwarded to the City Council a response analysis from Sprint's attorney. Ed Gala, Sprint Nextel, a wireless consultant, said he has been involved with installation of approximately 500 cell sites over the past 10 years. The biggest issue with the Planning Commission was that the applicant failed to identify alternative locations for this facility. In fact, Sprint Nextel identified six different areas that the applicant considered for this site: 1) 21400 Pathfinder Rd. (D.B.H.S.) rejected by the RF Engineer due to distance and blockage by the intervening hills; 2) 23008 Pathfinder Rd. at the SR57 off ramp bell tower site — rejected because the site would not cover over the hill leading up to Ronald Regan Park; 3) 3333 Brea Canyon Rd. at Diamond Bar Blvd. NOVEMBER 20, 2007 PAGE 6 CITY COUNCIL — rejected because it was too close to another Sprint site and blocked by intervening hills; 4) Diamond Canyon Church — blocked by intervening hills. The applicant was then asked to consider the Verizon site 5) Brea Canyon Cutoff and Colima Rd. —the hills blocked coverage; and 6) the water tank site — did not provide the coverage. The goal for this search ring is to cover Pathfinder Rd. from Ronald Reagan Park down to the Brea Canyon Cutoff and the residential areas on either side of the canyon area. With regard to co -location; co -location is always Sprint's first option because of a willing landlord, reduced construction costs and City authorization of the site for use. If Sprint could have co -located it would have. However, all of the sites available did not provide coverage of Pathfinder Rd. down to the Brea Canyon Cutoff. Part of the argument during the hearings was that Verizon could provide coverage of Ronald Reagan Park. Sprint also covers the park, which is not the issue. The issue is Pathfinder Rd. down to the Brea Canyon Cutoff and the residential areas on either side. Verizon and Sprint both cover the park but not down the roadways. He referred the Council to www ceilsitereception.com, a clearinghouse for wireless coverage complaints. Yesterday, the first window he opened contained a message from a Verizon customer that indicated that the customer had no reception at the intersection of Pathfinder Rd. and Brea Canyon Cutoff. The second window he opened indicated another Verizon customer had no coverage at Diamond Canyon Community at Brea Canyon Cutoff and Diamond Canyon Rd. He asked that copies of the narratives be added to the public record along with other complaints about other coverage providers that indicate there are coverage constraints endemic to D.B., which makes coverage very difficult. Mr. Gala concluded that basically, the only site that would provide coverage on Pathfinder Rd. down to the Brea Canyon Cutoff is Ronald Reagan Park. In fact, the only area in the park that would provide the coverage is essentially the proposed site to the west toward the residences. Other areas of the park would not provide the coverage. Sprint Nextel chose the site furthest from the residences that would also provide coverage down the hill. Other areas in the park would not work. The City's wireless ordinance presents a number of criteria with regard to cell sites, which he felt Sprint Nextel had met. 1) Environmental integration, screening and size, 2) impacts to the park space (relocated the monoelm from flat usable area into the slope area), 3) driveway (Sprint was willing to forego the driveway). The driveway was proposed by the City's Parks Department; residential proximity — according to code this monoelm would be allowed to be placed 54 ft. away from the residences. Sprint Nextel's site is over 200 ft. from the nearest residence; 4) access and 5) location — the ordinance reads: "location of the proposed facility and the extent to which it conforms to the following order of preference co -located with an existing facility or located at a pre- F� 1 1 NOVEMBER 20, 2007 PAGE 7 CITY COUNCIL approved location (Ronald Reagan Park is a pre -approved location). In addition, the monoelm has been designed for co -location of one additional carrier. Mr. Gala concluded that it is the opinion of Sprint Nextel that this project is in conformance with all of the City's standards with regard to wireless installations. John Flynn, Attorney for Sprint Nextel, said he was present to support the appeal and asked the Council to reverse the Planning Commission's decision. He said he remembered a time when cell phones were almost a novelty and now 30% of 911 calls are now placed from cell phones. In times of disaster and public emergency cell phones play an important roll and these devices are essential to public need and safety. He understood that public pressure was being placed on the City Council but he did not believe, given the record and all of the work put into satisfying the concerns of the City Council, staff and Planning Commission with respect to this site that there was substantial evidence to support a denial. He also believed that a denial would violate the law. He asked the City Council to reconsider the Planning Commission's decision and grant the application. M/Tye opened the Public Hearing. Vijay Bhuta, 20793 E. Rim Ln., felt that the most important site was the water tower site and did not believe that the site would not work for the applicant. His community is very concerned that a cell site will reduce the property values and he and his neighbors do not want their children playing so close to this tower. He agreed with Sprint that this is an important issue but Sprint has not looked at the site (water tower) where they would probably get better coverage. Also, giving this beautiful site away for $18,000 (less than $1 per square foot) is not good for the City. The applicant says that Ronald Reagan Park is a pre -approved location when all parks in the City are pre -approved locations. Ronald Reagan Park is one of the smallest parks in the City and the City would be giving up valuable parkland. He asked the City Council to uphold the Planning Commission's denial. Mike Yang, 20878 Quail Run Dr., lives approximately 100 yards from the (Ronald Reagan) park. EMF is a valid concern even though the FCC disallows that argument. The park is a safe haven for him and he takes his daughter there everyday. If the City takes the park away from the residents it will be a great loss. He said he uses Verizon and has no problem with service on Pathfinder Rd. Grace Trudresser said she lives about 100 yards from the park driveway. She knows there are health risks involved that people are saying are inconclusive. However, she and her neighbors live in the area and whether it is a true health risk or not there is a perceived NOVEMBER 20, 2007 PAGE 8 CITY COUNCIL health risk and who knows down the road if it does prove to be a health risk. Most towers she has seen are in commercial areas and she does not understand why this site has to be in a neighborhood where she and her neighbors live. She would prefer not to see a commercial use for a local park. She asked the City Council to please say no to a federal mandate. She is not sure whether the site would lower property values. She has Verizon and does not get great coverage but it is manageable. CA/Jenkins reminded the City Council that as PM/Gubman reported, Federal law expressly forbids the City Council from taking into account the possible health effects of radio frequency emissions. And now we have had two speakers comment on the potential for health effects. CA/Jenkins said he wanted to make it very clear to the audience and to the City Council that under Federal law you may not take into consideration any evidence regarding the potential of health effects of radio frequency emissions from this cell site. The Council in fact, must completely disregard any comments that come from the audience on this subject and, would further note to the audience that to the extent that these comments are made they taint the record before the City Council because these comments can create the mis- impression that the City Council will take the health issue into account in making its decision. Accordingly, any mention of the potential health effects of this proposed antenna site are basically counterproductive. The issue is a non -issue before the City Council; it should be completely disregarded and the audience should be advised that it is not a consideration and that they should focus on other issues aside from the health issue. Eric Schubel, 20746 E. Rim Ln., about 300 ft. from the proposed site, said he was not an engineer and was not concerned about what the FCC said. Mr. Schubel's kids play in the park and the park is full of people at night and on the weekends. He felt the installation would be an eyesore and implored the Council to deny the appeal and not allow any cell towers in the park. Mitchell Liao, 20872 Quail Run Dr., said he felt anger about the potential of a cell site being located in a park where he frequently plays tennis. A 35 -ft. fake tree would be higher than other trees in the area_ He was also concerned about noise pollution. Individuals are naturally concerned about health risks and all of the individuals present this evening would not be here if they were not concerned about health risks. There is a definitive association between phone tower radiation and increased cancer prevalence and he felt that homeowners would agree that if he were interested in purchasing a home he would avoid areas close to cell towers. 1 1 1 NOVEMBER 20, 2007 PAGE 9 CITY COUNCIL Kristine Wagstaffe -Garcia said she owns two homes on Rim Ln., one at 20735 E. Rim Ln. and one at 20815 Rim Ln. She has been to three meetings and has seen all of these individuals in the neighborhood who have taken time to get off work early and come to voice their concerns to the Planning Commission and City Council. She walks in the neighborhood and her husband and children enjoy sports in the park. She has put her life's savings into this neighborhood and she believed that there was probably a million dollars of revenue the City was getting from the residents and wondered why the residents were not allowed to speak their minds and concerns. Yuh Yang, 20777 Missionary Ridge, said she was concerned about health issues because so many small children play in the park. Sprint promised the residents that there would be no safety hazard as a result of the installation and if it were proven that the installation presented a safety concern Sprint should have to compensate the residents. She was also concerned about property values and felt Sprint should state in writing that if the cell tower installation affected property values Sprint would be willing to compensate all residents within a certain radius. In order to ensure no decrease in property values every home should be appraised now and after the installation to eliminate speculation about property values. Caroline Kim, 20875 Quail Run Dr., asked how long the construction would take and how much of the park would be unavailable during construction and how much of the park would be unavailable during upgrade and maintenance. Valerie Geddes, 2211 S. Meadow Ln. said that although Ronald Reagan is a pre -approved site it was pre -approved prior to hearing from residents who unanimously oppose the tower. It is a commercial enterprise for the City. Sprint Nextel boasts that the tower will be placed on the slope at the park freeing up the usable pad of grass at the top. The woodsy slope at Ronald Reagan Park is a great place for kids to play. Since firefighters were mentioned by Sprint she noted that the National Institute for Firefighters opposes cell towers on top of their fire stations. In her opinion, if an area were being serviced by another provider a service gap would not be significant. The Telecommunications Act does not require one hundred percent coverage. Most citizens feel that coverage along Pathfinder is very good. Dead zones are allowed within the Telecommunications Act. The Planning Commission requested Sprint to co -locate or find a new location. In her opinion, Sprint did not demonstrate full good -faith efforts at following the request. Sprint's proposal is to move the tower 36 ft. within Ronald Reagan Park. Sprint claims co -location with Verizon is not possible, yet Sprint does not appear to have an understanding of the Verizon tower location. To her this basic lack of NOVEMBER 20, 2007 PAGE 10 CITY COUNCIL knowledge indicates that there was no serious attempt to co -locate. Sprint already has several existing facilities in D.B. A single denial of a permit site does not constitute a prohibition of wireless services. Furthermore, once an area is sufficiently serviced by a provider the right to deny applications becomes broader. Cities can prohibit towers in residential zones so long as there are technologically feasible areas where facilities can be installed. Again, Verizon has proven it has this ability. Should the residents be forced to accept an unnecessary tower at Ronald Reagan Park because of Sprint's technological inability to do the same? Sprint technology is admittedly very site-specific and very low range. Must the City have a tower at every corner if Sprint's technology is incompatible with other providers? Mr. Gala asked the Planning Commission staff to find a location for them. Sprint's request was denied, as it was not their responsibility. The information provided by Sprint Nextel was confusing and submitted in an untimely manner. Commissioners were still unsure where the service ring was located and it was concluded that a lot of information was not available. For example, Ms. Geddes still does not have a clear understanding of what percentage of dropped calls were actually on Pathfinder. The residents understand that cell phones are a part of this society, and believe that other less -intrusive solutions to cell coverage can be found without needlessly compromising the integrity of Ronald Reagan Park. Chin Chun Yow, 20872 Quail Run Dr. felt the slope was dangerous and would not support a cell tower. Sprint shows the covered area on the park and wondered if the actual coverage is correct? Sprint stated that everything is legal and they have followed the City's requirements. The residents know they have no recourse but the law does not give Sprint carte blanche to do whatever they want to do. There should be consideration of the public's view, public opinion and public welfare, property appreciation, public safety and other human rights over a higher authority. The City Council stands for all the people and the good of the City. Patrick Wang, 20799 E. Rim Ln., said that today Sprint is indicating that this site is essential to wireless service. He uses Verizon and receives all signals just fine. His reception is not perfect but it is okay and he did not understand why Sprint could not cover the area from another site by increasing the height of the tower. He checked the websites and learned that Sprint and Verizon use the same technology so there seems to be no reason Sprint could not send out their signal as well as Verizon. He felt other sites could be used to build the tower. NOVEMBER 20, 2007 PAGE 11 CITY COUNCIL Chung Chen, 20718 E. Rim Ln. stated that the park is very close to his home and every weekend he plays basketball in the park. The park should look impressive. He does not want an artificial structure to negatively affect the park. A cell site in the park is not acceptable — a park is a public recreation area. People of all ages utilize the park and that is why the City must take care of the park. M/Tye closed the Public Hearing. Mr. Gala responding to C/Herrera stated that neither the building nor the tower was proposed to be fenced. Construction usually takes between four and six weeks. The perimeter building areas would not be available to the public during construction for safety purposes. A trench will be dug from the building to the monoelm about 200 ft. along the back of the tennis courts, and that area would be off limits during construction. The tower would also be off limits. Construction requires a backhoe to dig the trenches and a crane to upright and install the monoelm. Typically, once the tower is up and running the facility requires very little maintenance, most of which takes place inside of the equipment room where technicians replace radios and check the facility on a monthly basis. The Parks Department wanted a driveway to the site. However, the technicians can park in the parking lot and walk to the site. MPT/Tanaka asked if Sprint Nextel was required to provide the coverage. Mr. Gala responded that Sprint Nextel's FCC license requires Sprint to the best of its ability to provide seamless coverage throughout the nation. MPT/Tanaka asked if Sprint could leave the gap if the consumer did not request coverage. Mr. Gala reiterated that according to the FCC license Sprint is required to provide seamless coverage to the best of its ability. MPT/Tanaka asked if Sprint investigated the use of the water towers above the hill in Rowland Heights that would cover the area. Mr. Gala responded that the site was considered and rejected because it is too tall. The ideal height for a wireless facility is somewhere between 55 and 65 ft. because frequencies are limited and reused constantly throughout the coverage area. Five miles away from Ronald Reagan Park there would be another facility with the same frequencies and consequently the signal has to fade before it gets there. At this stage in wireless all of the high sites are coming down. Originally, the technology used sites as high as 90 ft. to cover NOVEMBER 20, 2007 PAGE 12 CITY COUNCIL wide areas but as wireless popularity increased sites have dropped with in -fills of lower sites. The last areas to be covered are residential areas and that is what Sprint is attempting to do with this installation. C/Everett asked for clarification about the primary objective for this request. Is the objective to provide coverage for home, stationery locations or is it vehicles and what is the percentage distribution of the target market? Mr. Gala reiterated that the objective is to provide coverage for residences on either side of Pathfinder Rd. and along Pathfinder Rd. He was not aware of what the percentage breakdown would be. C/Everett asked if distribution between homes and mobile or portable was 50/50. Mr. Gala said the distribution was pretty much interchangeable at this point. C/Chang felt that D. B. presented many challenges for cellular service because of its topography. However, he did not believe that residents were demanding that every carrier should provide reception in all areas. He felt there might be a better location for the cell site than a small well -used park and favored a compromise. M/Tye asked if there was an opportunity for Sprint to place its antenna on the water tank at the ideal height in order to provide the coverage. Mr. Gala responded "No." The site was evaluated by the RF Engineer and rejected out -of -hand because it was not capable of covering the objective. According to the analysis, the only feasible location for a cell tower to provide coverage down Pathfinder Rd. is from Ronald Reagan Park. M/Tye asked whether a 55-65 ft. antenna on the water tower with a line -of -site to Ronald Reagan Park would not serve the purpose. Mr. Gala responded "correct." The reason is that it is too tall and would blast the signal out and the tower does not see Pathfinder Rd. It sees Ronald Reagan Park at the high point. The coverage objective is not the park it is Pathfinder Rd. from the park to Brea Canyon Cutoff, a canyon that is walled in on all sides. Ronald Reagan Park is higher — the installation will cover the residences on both sides of Pathfinder Rd. and shoot down to Brea Canyon Cutoff. The water tank does not "see" Pathfinder Rd. This is line -of -site technology. In order for the signal to be received the transmitter and receiving devices must have a line -of -site connection. 1 1 1 NOVEMBER 20, 2007 PAGE 13 CITY COUNCIL M/Tye asked if Sprint had looked at the commercial sites on the north side of Pathfinder west of Brea Canyon. Mr. Gala responded that the Verizon site that everyone has referred to is located in that area behind the shopping center. The hill with all of the residences screens the site from Pathfinder Rd. The commercial buildings are lower down and do not "see" Pathfinder Rd. C/Herrera asked CA/Jenkins to respond to the letter from Valerie Geddes. CA/Jenkins stated that this area of law is governed by the Telecommunications Act of 1996 a Federal law. Cities actions have to be consistent with the Telecommunications Act. Over the years since the Telecommunications Act was enacted by the United States Government courts have struggled with various interpretations of the Act and in particular with some of the issues that are at issue here in this application. There are a number of decisions from Circuit Courts of Appeal and that body is the layer of courts immediately below the U.S. Supreme Court. These courts have come to different conclusions on some of these issues and in some resects are in conflict with each other. California is located within the 9t Circuit and so D.B. is governed by decisions of the 91h Circuit Court of Appeals. When the 9th Circuit Court of Appeals has ruled on an issue of law then D.B. and other cities must adhere to it until and unless the United States Supreme Court says differently. Ms. Geddes in her written comments and in her oral comments tonight in many respects has relied upon cases from outside the 9th Circuit that have been superceded by a 9th Circuit case so her statement of the law on a number of significant issues presented tonight is basically mistaken. Those courts of appeal are irrelevant on those issues and those decisions are irrelevant. The relevant case is a case that was decided in 2005 by the 9th Circuit Court of Appeal entitled Metro PCS v. City and County of San Francisco. In that case the 9th Circuit held, for example, that when evaluating whether or not there is an effective prohibition of personal wireless services the City must look at the issue on a per -carrier basis. There has been some dispute in the courts as to whether or not there would be a "prohibition of service" if another carrier was able to provide service in the area. The 9th Circuit has definitively answered that question within the coverage of the 9th Circuit and the answer that the court gave was that it is irrelevant that other carriers can provide service. What is relevant is whether this carrier is experiencing a gap in service and if there is a significant gap in this carrier's coverage then that constitutes an effective prohibition and if there is a prohibition of service that violates the Telecommunications Act. The issue is not whether there is a neighborhood demand for Sprint; the issue is whether or not Sprint is experiencing a significant gap in coverage. The first question for NOVEMBER 20, 2007 PAGE 14 CITY COUNCIL Council is; is Sprint experiencing a significant gap in coverage and the evidence that is to be considered is the evidence that is being presented — the propagation maps, etc. showing whether or not Sprint has coverage in this particular area and if Sprint does not have coverage in this area the next question is where can they put up a cellular site and what amount of discretion does the Council have in determining where Sprint puts the site. The 9th Circuit has answered that question in the Metro PCS case by saying that it is up to Sprint to demonstrate that it is proposing the least intrusive site within the context of the City's overall land use and zoning objective. And that would be the least intrusive site that serves its purpose of providing coverage and filling the gap in coverage while at the same time endeavoring to satisfy the City's land use and zoning objective. It doesn't have to be the "best" site; it does not have to be the "most acceptable" site and it does not have to be the "only" site. The 91h Circuit has explained that it must be the least intrusive site in the context of the community values — namely the land use and zoning values that are at issue here when the Council makes land use decisions. The 9th Circuit has also indicated that in connection with another issue raised under the Telecommunications Act that namely the Telecommunications Act prohibits discrimination among providers of these sorts of services. The 9th Circuit has endeavored to explain what "discrimination" means. The 9th Circuit has said that there will be discrimination if the carrier at issue is treated differently than carriers that are similarly situated to this carrier. And that is a consideration that also must be given in evaluating this application and evaluating the location that is being proposed by Sprint. In short, those issues are the main issues as to which Ms. Geddes' written and oral testimony was legally incorrect. C/Herrera directing her statement to CM/DeStefano stated that she believed there were currently one or two cell towers at Peterson Park. C/Herrera asked if there were cell towers located in any other of the City's parks. CM/DeStefano responding to C/Herrera's question stated that there are no others at the present time; however, there are applications pending before the City for cell sites on the City's park property. C/Herrera asked if the City Council adopted a policy some years ago that the City would permit cell towers in the City's parks. CM/DeStefano felt that "permit" might be too strong a term. About 10 years ago when the City first drafted a Telecommunications Ordinance it crafted a map that identified potential sites and those sites included private property such as churches, public property such as water tanks and school property and City owned property. The reason for the City -owned property, which was principally the City's 1 1 1 NOVEMBER 20, 2007 PAGE 15 CITY COUNCIL parks, was in order to utilize that resource as a revenue -generating tool to help offset the costs and provide additional recreational resources to the community subject to all of the appropriate land use controls that the City has. MPT/Tanaka asked counsel if denial of this installation could be characterized as "discrimination" because there are no other cell sites in Ronald Reagan Park. CA/Jenkins responded that the discrimination issue is one that obviously has to be determined on a case-by-case basis. The Metro PCS case in fact only addressed the legal standard but actually remanded the case back to the trial courts for further evidence on the discrimination issue because it requires an evaluation of, in that case, how the City responded to and handled other applications from other providers. That case factually was somewhat similar because it involved an application for a cell site on city property and in this instance he believed the evidence could be developed in a number of different ways so he would be loathe to say here at this hearing that a denial would constitute discrimination. He noted that the City has a couple of sites already in other parks but he observed that those parks are different from Ronald Reagan Park. The City would have to evaluate the totality of the circumstances before coming to a conclusion on whether or not there would be a discrimination and violation of the Telecommunications Act. C/Everett asked CM/DeStefano if the cell sites in other parks were towers and supportive buildings. CM/DeStefano responded that at Peterson Park there is a soccer ball field that is utilized as a cell site. The site has been in existence for about 10 years and there is a chain link caged equipment structure consisting of about 100 sq. ft. C/Chang said he believed there were two important factors such as coverage gap and the least intrusive site to the community. Sprint provided information that the gap exists leaving the remaining issue as the "least intrusive" site. The residents feel the proposed site is intrusive. Therefore, how does the Council balance these issues? He would like to see Sprint succeed and at the same time wondered if there were any other locations that could serve the purpose and provide the residents with peace of mind. M/Tye commented to CA/Jenkins that the community feels the proposed site is intrusive and to understand the 9th Circuit correctly, it believes the site should be the least intrusive for the applicant. And is the measure "least intrusive" or "least expensive." There are providers that seem to be able to provide coverage in that area. NOVEMBER 20, 2007 PAGE 16 CITY COUNCIL There are co -locations that have been dismissed "out -of -hand." If there were multiple locations and if the businesses as one heads west on Pathfinder would serve as locations and the water tower would serve as a location, would that fill in some of the gaps or dead zones? He does not know, as one speaker said, whether the Telecommunications Act is designed to eliminate dead zones or require 100 percent coverage. Mr. Gala said that the only installation that would be more useful was if someone would allow the installation in his backyard and to quote him, nobody wants that. The people in the community feel the park is their back yard and M/Tye felt the Council had to consider the applicants objective in balance with the community wishes. He wanted to know how the Council would be able to accomplish what the business wanted to accomplish and protect the integrity of a neighborhood. M/Tye also wanted to know if CA/Jenkins agreed with Mr. Flynn that a denial would violate the law. CA/Jenkins said he would be reluctant to advise Council that a denial of this particular application tonight would necessarily violate the law. He advised the Council that it is obligated to support its decision with substantial evidence and said that the Council is obligated to evaluate the evidence on the basis of Federal law, a law which is controlling and sets up the task before the Council. Consider the evidence, consider where it leads and draw a conclusion that is based on substantial evidence and is in compliance with legal standards. With respect to M/Tye's question about the "least" intrusive alternative, he referred the Council back to the provisions of the Telecommunications Act which provides specifically that the regulation of the placement, construction and modification of personal wireless service facilities by any state or local government shall not prohibit or have the affect of prohibiting the provision of wireless services. That is the legal standard. Therefore, no action that the Council takes, and the City exercises its police power by way of approving Conditional Use Permits and other discretionary permits, under Federal law, no action on the City's part shall have the effect regarding the placement/construction of these facilities of prohibiting the provision of the service. What does it mean to "prohibit the provision of personal wireless services?" If there is a significant gap in coverage for a particular carrier, it constitutes a prohibition on the provision of the service. So, if the carrier meets the burden of demonstrating to the Council that there is a significant gap in its coverage then they have met their burden of demonstrating that there is a "prohibition." At that point, they are entitled to place their facilities at a site that will cover that gap. They are not entitled to any specific location or to their first location but they are obligated to come up with a location that the Council finds is least intrusive — and when he says "least intrusive" he means least intrusive with regard to the values that are established in 1 1 1 NOVEMBER 20, 2007 PAGE 17 CITY COUNCIL the City's master documents — basically, the City's General Plan and Zoning Ordinance. The Court adopted a standard "where the operator must show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve." So if the Council were to deny, it must deny based on certain values. Those values derive from the City's General Plan and Zoning Ordinance, the traditional land use type values that the City is accustomed to dealing with when it considers a land use application. Those values can be aesthetics, noise, traffic, etc. And since this application is operating in a park environment there may be certain values expressed about the use of park facilities. Those are the values that the Council is seeking to enforce. The applicant has to show the Council a site that is least intrusive as respects those values. The court notes a factually intensive determination and allows for a meaningful comparison of alternative sites before the sighting application process is needlessly repeated. It gives the provider an incentive to choose the least intrusive site in their first sighting application. Basically, Sprint has come to the City and said it has considered alternatives and the proposed site they believe is the least intrusive. The Council may find that there is a preferred site that is least intrusive. Certainly, the Council can engage in a dialogue where Sprint would be obligated to demonstrate to the Council why another site is unacceptable or does not meet their coverage requirements and certainly that is something that the Planning Commission did when it continued this item over the course of several months in order to get additional information from Sprint regarding alternative sites. CA/Jenkins responded to M/Tye's question about how the Council balances the City's desire to satisfy the community and at the same time fulfill the requirements of the law that this is undoubtedly both a classic issue and one of the most difficult issues that any elected official must from time to time, face because there are going to be times when the community is advocating for an outcome that is contrary to law or is contrary to the Constitution. He was not suggesting that any action the Council might take tonight is or would be necessarily a violation of law, he was simply saying, hypothetically speaking, this happens from time to time and it happens with respect to sensitive type uses where the courts in particular have held that the uses are protected by various provisions of the Constitution which typically arise in cases, for example, involving free speech rights, very unpopular types of activities such as adult activities where the community has very strong opinions, etc. and the City Council is faced with receiving advise from its lawyer who says the courts have told you that you must adhere to a certain standard and if you do not, you will be violating someone's constitutional rights and you will be subjecting the City to a lawsuit that you will lose and you will end up not only having to allow the use but paying Mr. Flynn's attorney's fees after he has successfully sued the City. That is a very difficult NOVEMBER 20, 2007 PAGE 18 CITY COUNCIL problem for City Council because its members are elected officials who want to please their constituents. City Council Members do not go home at night feeling good about making their City Attorney happy. But there are times when a City Council is being urged to take an action where CA/Jenkins steps in to say it cannot do so. And, if you do take a certain action the City will be in hot water and face very significant monetary liability and end of up having Cityfunds to payfor it instead of using City funds to provide more parks and more public services. He reiterated that he was not telling the City Council that a denial of this application in particular will lead to liability and he wanted the record to be very clear on that point. He was telling the City Council that the law as it has been enunciated by the 91h Circuit requires that the City Council adhere to the standards that he has described and support any decision it makes with substantial evidence. C/Chang asked if the Council was obligated to make a decision tonight. CA/Jenkins responded that if the Council found reasons to continue the item for more information, etc. it would not be obligated to decide the issue tonight. C/Chang wanted the applicant and staff to pursue other possible sites. C/Everett said he appreciated Counsel's objective of keeping the Council on point and on task legally. He was troubled by the applicant's statement that there were no alternatives and that there was only one site. Was he correct in assuming that the Council should have alternatives from the applicant and staff's engineers to consider? CA/Jenkins stated that ordinarily, the City does not have engineers who are qualified to consider these types of installations and the City does not generally proactively engage in this type of activity. That is not to say that the City could not do more at the Council's direction. Sprint has told the Council tonight that it has evaluated what it believes to be all of the viable alternative sites in the vicinity that would provide them with coverage and Sprint has represented to the Council that none will achieve the coverage objective. C/Everett asked if he heard CA/Jenkins correctly that the Council should be provided an opportunity to evaluate alternatives. He said he was very troubled because one of the City's greatest resources is park space. The City is so short of park space and this project of 200 sq. ft. as well as the hillside is taking up very valuable land resources. J 1 NOVEMBER 20, 2007 PAGE 19 CITY COUNCIL CM/DeStefano said that unless the City's legal counsel believes it is important and directs staff to conduct a study to provide appropriate sites he was not inclined that the City should use its resources for such a purpose regardless of whether the City is reimbursed for its resources and staff by the applicant. It would not surprise him that alternative sites were not explored by the applicant. Other locations may be superior to this location. The City does not have that information. The applicant has apparently looked at sites that were referenced by the general public or maybe by staff but staff does not know what other sites are available. A water tank site was referenced and eliminated out -of -hand. Staff does not know why it was eliminated and what alternatives could be made onsite to make it more feasible. A speaker referenced a different water tank site that was dismissed out -of -hand as a result of line of site issues. That comes into some level of conflict with other carriers that have looked at water tank properties in the City and indeed have devices on water tanks so he was puzzled by the response absent some form of scientific evidence from the applicant regarding the appropriateness of any of the other seemingly alternative sites. Carriers provide micro - sites throughout communities that experience variations in terrain and significant changes in configurations of roadways. For example, in Brea there are micro -sites along Carbon Canyon Rd. that provide service and may be an alternative to one large site at Ronald Reagan Park. He does not know the answers but suggested that it is the applicant's responsibility to find alternative sites hearing the lack of the support from the community and the commentary absent a decision by the City Council that the applicant should seek out more and more opportunities to effectively cover the area and to do so in a way that is the least intrusive to the City of D.B. C/Everett said he was seeking technical advocacy groups to assist the City. Without options and alternatives he could not support the business opportunity, which he was interested in. CA/Jenkins said he did not believe that options and alternatives was an appropriate issue. The answer is not for the City Council to deny the application and then tell people who have Sprint to go to Verizon or some other carrier. Sprint is entitled to have coverage. C/Everett said he learned this evening that there is a new market for home use and how would that play into the legal pressures and presence. Is that a new market and should the Council look at it differently? CA/Jenkins responded "No" he would not characterize it in that manner. He does not believe it makes a difference whether Sprint is servicing people in vehicles or people in their homes. The issue is does Sprint have a gap in coverage in a particular geographical area NOVEMBER 20, 2007 PAGE 20 CITY COUNCIL and it's really irrelevant whether that area consists of roadways, commercial or residential. Mr. Flynn said it seemed to him that Sprint had made the record on the lack of lesser intrusive alternatives for filling this particular gap. It was not just a matter of whether there might be a better place in the neighborhood or in the vicinity to put a cell site, it is also a matter of whether it is the least intrusive means for satisfying this particular gap and Sprint believes it has made that record. Sprint does not believe that any more evidence is necessary. However, it seems clear that Council Members have doubts and if those doubts are sufficient to warrant a denial then Sprint could work with staff on choosing an independent RF Engineer to provide a report on whether in fact this gap exists and that this is the least intrusive means by which to fill the gap. Contrary to CM/DeStefano's observation, micro -sites will not work to fill this gap and if the Council needs to hear additional evidence about why they will not work Sprint will provide that additional evidence. Mr. Flynn asked Council to understand his frustration because there were several hearings before the Planning Commission and there had been a great deal of evidence already provided by Mr. Gala and Sprint and believed Sprint had satisfied its obligations factually and under the law. As he said, Sprint would be willing to work with staff to engage an independent engineer at a reasonable cost for preparing a report to give the Council greater peace of mind on this site. Sprint does not pick a site and put its feet in concrete because it is stubborn or perverse. It is not a good idea to upset potential customers about the location of a cell site. Sprint sometimes reluctantly make decisions about locations for cell sites because it is the only place it will work and so it is in this situation. M/Tye said he was having trouble with the term "significant gap" and whether it is a reasonable expectation for carriers to get to 100 % coverage. CA/Jenkins said that by "significant gap" there does not have to be 100% coverage. The map shows good and marginal coverage areas that will never be improved. In this case, there is a large white area that Sprint is attempting to cover with this site that very well might be considered "significant" within the meaning of case law. M/Tye asked CM/DeStefano if the City had determined what the value of this installation would be to the City. CM/DeStefano responded that the Council was making a land use decision as opposed to a financial decision and was not clear on the relevance of M/Tye's question. The City Council approved a lease 1 1 1 NOVEMBER 20, 2007 PAGE 21 CITY COUNCIL agreement subject to the approval of a Conditional Use Permit in May 2007 at the rate of $2000 per month. M/Tye expressed his belief that public input was important. He did not want to invite legal action but believed that people had a right to speak their feelings because that is how change happens. He found it personally irritating that the City was being dictated to on how the City will handle these types of issues. M/Tye said he wanted to understand why the commercial buildings on Pathfinder would not work in conjunction with the water tower and the fact was that Sprint was unable to provide that information because these locations were "dismissed out -of -hand" which tells M/Tye that Sprint would not even consider those alternative locations. M/Tye wants those alternatives to be considered instead of Sprint proposing a park for a commercial enterprise. There is one cell location in the City of D.B. that he opposed when he served on the Planning Commission because he felt it was intrusive to the neighborhood and he would challenge anyone to find that site today. This, on the other hand, as evidenced by the photos, sticks out like a sore thumb. M/Tye asked CSD/Rose if he could provide a ratio of park space to the number of residents of the City. CSD/Rose responded that the national standard for developed park space is two acres per 1000 residents, which means that D.B. should have approximately 120 developed acres and the City has approximately 63 developed acres. M/Tye was not willing to dedicate any square feet in a park in D.B_ to a cell site. He does not mean to say that the cell sites that are in parks in D.B. are inappropriate. The cell site that abuts a freeway is not going to make more noise than the freeway and it is not obtrusive inside the park because it is up against the freeway as is the utility box. This location does not mirror that at all. If at the time the property was developed there were homes where Ronald Reagan Park is now this discussion would not be taking place. In his opinion, Ronald Reagan Park is not the right location for this product. C/Everett said he would view it differently but may reach the same conclusion. He felt that Sprint had done a reasonable job of adapting the architecture. However, the key to him is that parks in D.B. are very precious and in short supply. In fact, based on the testimony, the pictures and his own observations, Ronald Reagan Park is probably the most used and significant and important small park in the City and he too did not feel fair or just in letting any of that land use go to commercial taking away from park use. He reiterated his desire to have alternatives presented to the Council and he did not see any NOVEMBER 20, 2007 PAGE 22 alternatives presented. CITY COUNCIL M/Tye believed it was not incumbent upon the City to provide those alternatives and that it was incumbent upon the applicant to do so. MPT/Tanaka also felt that park space should not be reduced. Sprint presented its best location for its cell site. Perhaps Sprint can present a less than best alternative that would adequately cover some of the gap in service. C/Herrera moved, C/Chang seconded to continue the Public Hearing to February 5, 2008, direct the applicant to work with staff to engage at the applicant's expense an expert to look at the issues to see if there are viable alternatives to offer, and bring a report of the findings back to Council for consideration. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 7.2 NEGATIVE DECLARATION NO. 2007-03, ZONE CHANGE NO. 2006-01 AND PLANNED DEVELOPMENT OVERLAY DISTRICT, TENTATIVE TRACT MAP NO. 64881, CONDITIONAL USE PERMIT NO. 2006-10, AND DEVELOPMENT REVIEW NO. 2006-11 —A NINE UNIT RESIDENTIAL CONDOMINIUM PROJECT AT 23671 GOLDEN SPRINGS DRIVE (DIAMOND JIM'S DAIRY LOCATION) PM/Gubman presented staff's report stating that on September 11, 2007, the Planning Commission had concluded the noticed public hearing on Tentative Tract Map. No. 64881 along with the Negative Declaration and all requested entitlements and was recommending approval of the project to Council. Approval of the project will allow the property owners Joe Kwok and GSDB Investment Group, LLC to subdivide 0.62 acres into a nine unit, detached, residential condominium complex. The project site is located at 23671 Golden Spgs. Dr. and is currently developed with a mini -mart drive-thru known as Diamond Jim's Dairy. PM/Gubman recommended that following the applicant's presentation the City Council open the Public Hearing, receive testimony, close the Public Hearing and Approve for First Reading by Title Only, Waiving Full Reading of (1) Ordinance No. 08(2007), Zone Change No. 2006-01 and Planned Overlay District; (2) Adopt Resolution No. 2007-62 Approving Tentative Tract Map No. 64881 and Adopt Negative Declaration No. 2007-03; and, (3) Adopt Resolution No. 2007-63 Approving Conditional Use Permit No. 2007-10 and Development NOVEMBER 20, 2007 PAGE 23 CITY COUNCIL Review No. 2006-11. Joe Kwok, GSDB Investment Group, LLC, applicant, explained the proposed project and asked for approval of his project which he indicated would bring the land use into conformity with the City's General Plan. M/Tye opened the Public Hearing. Ruth Van Korlaar wanted to know how far down the property would go because her property is considerably lower than the dairy and three stories would look into her back yard. Mr. Kwok responded to Mrs. Van Korlaar by showing a plan of the proposed project, which showed the lines between the garage area and the neighbor's property. With no further testimony being offered, M/Tye closed the Public Hearing. C/Herrera moved, C/Chang seconded, to approve for first reading by title only, waiving full reading of Ordinance No. 08(2007), Zone Change No. 2006-01 and Planned Overlay District. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None C/Herrera moved, C/Chang seconded, to Adopt Resolution No. 2007- 62 approving Tentative Tract Map No. 64881 and Adopting Negative Declaration No. 2007-03. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None C/Herrera moved, C/Chang seconded, to Adopt Resolution No. 2007- 63 approving Conditional Use Permit No. 2007-10 and Development Review No. 2006-11. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None NOVEMBER 20, 2007 PAGE 24 CITY COUNCIL 7.3 (a) ORDINANCE 09(2007): AN ORDINANCE AMENDING THE DIAMOND BAR MUNICIPAL CODE BY REPEALING TITLE 5 IN ITS ENTIRETY AND REPLACING IT WITH A NEW TITLE 5 ESTABLISHING A BUSINESS LICENSING PROGRAM FOR THE CITY OF DIAMOND BAR. (b) ADOPT RESOLUTION NO. 2007-64: RESCINDING THE BUSINESS REGISTRATION FEE AND ESTABLISHING FEES FOR BUSINESS LICENSING AND BUSINESS LICENSE RENEWAL AND AMENDING THE EXISTING FEE SCHEDULE TO INCLUDE BUSINESS LICENSE FEES. CM/DeStefano reported that adoption of this ordinance would approve a Business Licensing Program eliminating the current Business Registration Program by name utilizing a $10 fee for business licenses that do not require an investigation, removing the investigation process currently provided by LA County at much higher rates, allowing the City of D.B. to provide that service at a rate of $300 per each person investigated. C/Chang felt that this would be good for the City but was concerned about the $10 Business License fee for most of the businesses because it costs the City $53.50 to register and license the businesses. He believed the City should charge the full cost because the uncovered amount would have to be borne by all of the residents as a City subsidy of $60,000 to $65,000. Other cities charge based on the dollar amount of business conducted. D.B. is a business - friendly City and those who do business in town should pay their fair share. C/Everett said that he did not necessarily agree with the original $10 fee and $10 renewal because it would not pay for the cost of administering the program but he believed the program was of value to the City. In this case he was willing to go along with a $10 registration and $10 renewal for a program that is already in place. The second piece is a very good value to the businesses. In that case he supports the $300 cost for background checks. However, he was concerned about the $22 renewal charge. He wanted more responsibility from the business owner and staff to make sure that the business was in compliance at renewal and proposed a charge of $101 for the renewal. MPT/Tanaka agreed with the ordinance as presented by staff. This is not a revenue -generating program and renewals do not require additional background checks. if changes occur in staffing or ownership for the business necessitating an additional background check, the appropriate cost would apply. 1 1 1 NOVEMBER 20, 2007 PAGE 25 CITY COUNCIL C/Herrera felt the renewal cost should be $50. She felt it should be higher than $22 and $50 is still a lot less than what business owners pay Los Angeles County. Other than that she supported the balance of the ordinance as proposed. C/Chang reiterated his concern that all businesses should take responsibility for their licensing. Government should not support individual enterprise but rather be effective in its governance. The City should not have to subsidize this program. M/Tye invited C/Chang to relocate to D.B. C/Chang said it was always his desire to locate in D.B. However, D.B. does not have an industrial area. He would be happy to move to D.B. anytime. M/Tye emphasized that this is a benefit to people who would otherwise have to drive to Los Angeles County to obtain a business license and would have to pay much more for the license. The problem he has is with the business registration fee, the same problem he had when it was first initiated. He said he could not support raising the fee for the home-based business owner. He conceded that if this Council was not willing to repeal the business registration fee it should be kept at $10. M/Tye opened the Public Hearing. Wanda Tanaka asked for clarification of the fee proposal. CM/DeStefano responded that all business in D.B. would be required to pay a $10 fee for business licensing. A select number of businesses (approximately 150 to 200) would be required to have a more comprehensive investigation in order to receive a business license. Most all of those businesses also require a public hearing approval of a Conditional Use Permit. The more comprehensive businesses requiring investigation of the operator would be charged a $300 per -person investigation fee in addition to the $10 per year. With no further testimony being offered, M/Tye closed the Public Hearing. C/Everett explained why he felt very strongly that the renewal fee for businesses requiring background checks should be $101. C/Herrera moved, C/Everett seconded, to approve First Reading by Title Only, Waiving Full Reading of Ordinance 09(2007): An Ordinance Amending the Diamond Bar Municipal Code by repealing Title 5 in its entirety and replacing it with a new Title 5 establishing a NOVEMBER 20, 2007 PAGE 26 CITY COUNCIL Business Licensing Program. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chang, Everett, Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None C/Everett moved to. Adopt Resolution No. 2007-64: Rescinding the Business Registration Fee and Establishing Fees for Business License and Business License Renewal and Amending the Existing Fee Schedule to include Business Licensing Fees with the amendment that the Business License Renewal Fee be changed to $101. Motion died for lack of a second. MPT/Tanaka moved, C/Herrera seconded, to Adopt Resolution No. 2007-64 with the fee schedule as presented by staff. Adoption of Resolution No. 2007-64 failed by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, MPT/Tanaka NOES: COUNCIL MEMBERS: Chang, Everett, M/Tye ABSENT: COUNCIL MEMBERS: None Discussion ensued. C/Everett moved, C/Herrera seconded, to Adopt Resolution No. 2007- 64: Rescinding the Business Registration Fee and Establishing Fees for Business License and Business License Renewal and Amending the Existing Fee Schedule to include Business Licensing Fees with the amendment that the Business License Renewal Fee be changed from $22 to $53.50 where background checks are required. With the following vote, adoption of Resolution No. 2007-64 failed by the following Roll Call vote: AYES: COUNCIL MEMBERS: Everett, Herrera NOES: COUNCIL MEMBERS: Chang, MPT/Tanaka, M/Tye ABSENT: COUNCIL MEMBERS: None Further discussion ensued. CA/Jenkins clarified that staff's study concluded that its cost on a renewal of a business license that initially required a background check was $22; the initial license was $300 per person being investigated. With respect to that very narrow category of businesses when applicants came to the City for their renewal, staff said the cost was $22. Council Member Everett said that if staff concluded a NOVEMBER 20, 2007 PAGE 27 CITY COUNCIL business registration fee for full recovery would be $53.50 for just looking at a simple piece of paper for an initial registration, how could looking at a piece of paper for a renewal be any less than $53.50. So his contention was that the $22 was basically artificially low and he was basically saying that a principled way of fixing the problem was to make the renewal fee for just those businesses that require background checks, the equivalent of what originally said was a full cost recovery for registration. That is how he argued conceptually that the $53.50 renewal fee was not a revenue-producing fee but in fact prevents a subsidy. C/Everett agreed that a total of $53.50 was an honest and thoughtful number that staff put together and he understood and related to and when asked earlier was the best formula for cost -recovery wherever possible excluding the basic business registration. CA/Jenkins outlined the alternatives open to the Council: 1) Find a compromise or 2) hold it over to the next meeting. C/Herrera moved, MPT/Tanaka seconded, to adopt Resolution 2007- 64: Charging businesses that require an investigation $300 with a renewal fee of $22 and all other business a $10 fee for business licenses and $10 for renewal of the business licenses. With the following Roll Call vote, motion carried: AYES: COUNCIL MEMBERS: Herrera, MPT/Tanaka, M/Tye NOES: COUNCIL MEMBERS: Chang, Everett, ABSENT: COUNCIL MEMBERS: None 8. COUNCIL CONSIDERATION: None 9. COUNCIL SUBCOMMITTEE REPORTS/COUNCIL MEMBER COMMENTS: C/Chang wished everyone a very happy and peaceful Thanksgiving. Enjoy your families and appreciate all that you have including your family, your friends, yourjob and what you own. What a great fortune that we all live in D. B. C/Everett agreed with C/Chang and added that the finest celebration he has attended was the Veterans' Day Recognition. This is the season for various celebrations and it was a privilege to be a part of the Senior's Indian New Year's Celebration Friday. Get ready for the Walnut Valley Water District Town Hall meeting on December 5, Happy Thanksgiving. C/Herrera was thankful the election was over and congratulated MPT/Tanaka on his re-election. She wished everyone a Happy Thanksgiving. NOVEMBER 20, 2007 PAGE 28 CITY COUNCIL MPT/Tanaka said the Veterans Day Recognition was an outstanding program. He congratulated Chaparral Middle School Band and the United States Marine Corp Color Guard. It was an honor to see three soldiers return from active duty and two receive their banners with their families. He attended the D.B. Little League Baseball Board Meeting with CSD/Rose. He attended the Indian New Year' celebration hosted by the Sunshine Seniors; the third annual Sunday at the Center Art Show and Sale and the Mayors Summit in Madison, Mississippi. He thanked the D.B.H.S. Leo's Club for helping at the City's and Quail Summit Elementary School's Haunted House as well as chaperoning the D.B. 4 -Youth Middle School dance and Fall Fun Festival. He congratulated C/Herrera upon her re-election and thanked everyone who supported him during the campaign. M/Tye congratulated MPT/Tanaka and C/Herrera on their re -elections. November 7 was one of the most moving presentations to Veterans that he had ever seen and the first opportunity D.B. had to present banners to returning veterans. On November 14 it was a delight to have Time -Warner Cable in conjunction with C -Span bring the Campaign 2008 bus to D.R.H.S. He was very encouraged by the excitement and knowledge of the issues of the 11 students chosen from the Junior State of America Club. He wished everyone a happy and safe Thanksgiving. ADJOURNMENT: With no further business to conduct, M/Tye adjourned the regular City Council meeting at 11:02 p.m. in memory of Sudershan (Sue) Verma. TOMMY CRIBBINS, CITY CLERK The foregoing minutes are hereby approved this lkth day of i3ecewu)er , 2007.