HomeMy WebLinkAbout06/02/2015 Minutes - Regular MeetingMINUTES OF THE CITY COUNCIL
JUNE 2, 2015
CALL TO ORDER: Mayor Tye called the Regular City Council meeting to
order at 6:32 p.m. in the South Coast Air Quality Management District/Government
Center Auditorium, 21865 Copley Drive, Diamond Bar, CA.
PLEDGE OF ALLEGIANCE: Boy Scout Troop 730 led the Pledge of Allegiance.
INVOCATION: Associate Pastor Sung Kim, Gateway Friends Church
gave the invocation.
ROLL CALL: Council Members Herrera, Lin, Tanaka, Mayor Pro
Tem Lyons and Mayor Tye.
Staff Present: James DeStefano, City Manager; David DeBerry,
City Attorney; Ken Desforges, IS Director; David Liu, Public Works Director; Bob Rose,
Community Services Director; Dianna Honeywell, Finance Director; Greg Gubman,
Community Development Director; Amy Haug, Human Resources Manager; Kimberly
Young, Senior Civil Engineer; Anthony Santos, Senior Management Analyst; Marsha
Road, Public Information Manager; Josue Espino, Associate Planner; Cecilia Arellano,
Public Information Coordinator, and Tommye Cribbins, City Clerk.
APPROVAL OF AGENDA: M/Tye requested that Agenda Item 8.1 be heard
following Consent Calendar Items. With consensus of Council it was approved.
1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
1.1 M/Tye and City Council Members presented Certificates of Recognition to
the Diamond Bar High School Badminton Team members upon the
occasion of winning their fourth consecutive championship.
1.2 M/Tye and City Council Members recognized "Report for Reward"
recipients David Matsukiyo and Matthew Chen.
BUSINESS OF THE MONTH:
1.2 M/Tye and City Council presented a City Tile to Kaiser Permanente
Diamond Bar Medical Offices, 1336 Bridgegate Drive as Business of the
Month for June 2015.
Dr. Bigley, Area Medical Doctor, spoke about the services and expansion
of the Diamond Bar facility. Dr. Bigley introduced Maggie Pearce,
Executive Director, Kaiser Permanente Baldwin Park Medical Center;
Victor Chang, Physician in Charge of the Diamond Bar Office Building;
and, Reyna Del Haro, Public Affairs Director.
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CM/DeStefano reported that the City Council has an opportunity to weigh in on a
variety of policy issues and other matters within the City Organization/
JUNE 2, 2015
PAGE 2 CITY COUNCIL
Government and that City Council Members individually serve on
subcommittees, two of which met prior to tonight's meeting. The first was the
Audit subcommittee comprised of M/Tye and MPT/Lyons. FD/Honeywell
presented the new fiscal Investment Policy that is before Council for adoption
tonight.
Another subcommittee also comprised of M/Tye and MPT/Lyons is the Public
Safety Committee that meets periodically to review public safety matters
including Sheriff's Department, Fire Department, Animal Control, etc. Tonight the
committee met with the Sheriff's Department and looked at current crime
statistics, activities of the Neighborhood Watch Program and a variety of items
that the Sheriff's Department brought before it.
3. PUBLIC COMMENTS:
Susan Pantages, 1104 Bramford Court, a resident of Diamond Bar for 29 years,
said that she and her neighbors have come tonight to urge the City Council to
become more aggressive in its investigation and prosecution of birthing houses
within the City and specifically, one such house on their street for over two years.
She has reported unusual occurrences to CDD/Gubman who has worked with
them in documenting and reporting such activity as well as, securing a search
warrant. She spoke about what she considered to be illegal activities and
warned residents about 15 -passenger white Mercedes Sprinter vans showing up
in their neighborhoods and stated that residents should be actively watching and
reporting suspicious activities as these vehicles may be linked to transporting
pregnant women to airports, doctor appointments and shopping. She has
reported these activities to the local office of Homeland Security and they
encouraged her to post the phone number for the tip line to report birthing
houses. She asked the City Council to post the Homeland Security phone
number of 1-866-347-2423 in the Diamond Bar Newsletter and on City Digital
Signs and properties and in addition to post laws against this type of business
practice with enforceable consequences. Further, she and her neighbors
encouraged the Diamond Bar City Council to review current laws and ordinances
and if weak, propose and draft new enforceable ordinances.
Brian Worthington, reported that a month ago the City committed to expanding
the Neighborhood Watch Program throughout Diamond Bar and since last month
four new Neighborhood Watch Programs have started. He recognized Michael
Ramirez, Deputy Aaron Schiller and Captain Scroggins for their assistance in
expanding the program. Also, it appears that five additional programs will begin
in the next month.
Mr. Worthington stated that Nancy Kim is attempting to stop the cell phone tower
at Maple Hill Park and that he and several hundred residents support that as
well.
With respect to the 2400 acres of Tres Hermanos that are up for sale with 700
JUNE 2, 2015 PAGE 3 CITY COUNCIL
acres sitting on the Diamond Bar side he met with C/Herrera who supports
having a managed system and residents want to participate in a conversation
about Tres Hermanos in an attempt to making it a good thing for all as opposed
to unplanned scrawl.
Pui-Ching Ho, Library Manager, spoke about upcoming events at the Diamond
Bar Library. On Friday, June 5 at 11:00 a.m. the library will offer a baby sign
language class; on Thursday, June 11 children are invited to help the library kick
off its summer reading program with a fun musical afternoon with Clint Perry and
the Boohoo Crew; on Thursday, June 9 teens can make a clock out of a CD; and,
a songwriting workshop on Tuesday, June 16 at 2:00 p.m.
RESPONSE TO PUBLIC COMMENTS:
CM/DeStefano applauded Mrs. Pantages who has been very active working
closely with the Community Development Department and its Director
CDD/Gubman and Code Enforcement staff in watching the activities within her
neighborhood and noticing that there were activities that seemed out of character
and suspicious. She and her neighbors have reported those activities as she
described and the City has investigated those activities as she indicated. The
City needs to gain more information with cases such as this and do everything
possible to aid residents — likewise, residents need to do everything they can to
aid the City. The City will take phone calls, receive messages, emails, etc. and a
variety of techniques that can be used if there is suspicious activity and in
particular, a pattern of activity where suspicious mini vans are showing up at the
same time of day, night or when activity is taking place that seems to be unusual.
The issue of birthing homes is one that is not unique to Diamond Bar — they
happen all across the country. In fact, it may have first started in New York City.
Diamond Bar has had its share of alleged birthing homes over the last few years
and the City has aggressively gone after those when reported and when the City
was able to come up with enough information and evidence to either push the
entrepreneur with such a business out of the City or prosecute the case. The
City has had success in these endeavors but not always and it boils down to
having enough evidence to gain an effective prosecution of the crime of having a
boarding house in a residential neighborhood which is really the issue. Most of
these homes where they do occur have multiple occupants for short periods of
time which is a boarding house and which is not permitted in Diamond Bar's
single family neighborhoods. Anything the City and enforcement can gain from
the residents to aid in such activities the City has undertaken would be beneficial
in causing these folks to move elsewhere and/or be prosecuted. At the present
time there are only two houses of the 17 or 18,000 in Diamond Bar that the City
suspects may be engaged in activity akin to a birthing home and in one case the
City is working with the HOA and in the other case working with active
neighboring homeowners to gain sufficient information to have a successful
prosecution. If anyone sees activities or suspects anything that may be
improper, please contact the Sheriff's Department or City Hall at 909-839-7030
(Community Development Department).
JUNE 2, 2015 PAGE 4 CITY COUNCIL
A comment was made by the second speaker regarding Neighborhood Watch.
There are dozens of active Neighborhood Watch Programs within the City. It is
locally a program that was created by the predecessors on the City Council and
has been actively supported by every City Council Member the City has ever
had. The City has been very successful with a variety of Neighborhood Watch
Programs, some of which are small and some of which are large. Last night
there was a meeting with a neighborhood creating a new Neighborhood Watch
Program of about 35-40 area residents. This venue provides an opportunity for
residents to speak with Sheriff's Deputies including Deputy Scheller who
attended last night's meeting and to talk about crime, crime prevention and what
residents can do. Diamond Bar has an extraordinarily low crime rate which is
great for those that live, work and recreate here. Though infrequent, the crimes
that do occur are very serious to those who are directly affected as well as, to
neighbors either in the business community or the residential community.
Diamond Bar is very, very proud of its record and is often cited as one of the
safest cities in southern California, in all of California and in the nation. Crime
rates ebb and flow and with the recent adoption of Proposition 47 is not going to
be helpful throughout California and is not going to be helpful when the types of
crimes that were previously felonies are now misdemeanors and criminals who
would previously go to jail for the offenses of property crimes, which is typically in
Diamond Bar, are now getting away with citations or a slap on the hand.
However, Diamond Bar has an active and aggressive Sheriff's Department
including Deputy Scheller, Lieutenant Takias, Captain Scroggin and the 9,000
men and women in uniform behind those gentlemen.
With respect to the comment about vacant land between Diamond Bar and Chino
Hills about one-third of the total acreage resides within the City of Diamond Bar
and the balance lies within the boundary of Chino Hills. The property is owned
by the Redevelopment Agency of the City of Industry. That property will be put
up for sale sometime later this calendar year and the process will likely move into
the next calendar year and will most probably be sold to development interests.
Diamond Bar and Chino Hills have been looking at that acreage for many, many
years. In fact, about 18-20 years ago the Tres Hermanos Conservation Authority
was created between the two cities and many members of the City Council have
sat on that Authority since its inception. That Authority meets as needed but on a
regular basis to take a look at the activities on that property, the potential for
development in the future and all that encompasses the future use of that
acreage. The acreage is very, very restricted. There are only a few hundred
dwelling units permissible in Diamond Bar and the same is true on the Chino Hills
side. However, that will likely not continue to be the case because there will be
development interest late this year into next year at which time there will be an
abundance of processes that will include significant public input, environmental
reviews, etc. that will take place in the future. It is far too early to tell what will
happen with the proposed sale of the property.
M/Tye asked CM/DeStefano to comment on Mrs. Pantages point about enacting
more aggressive enforcement and what that might look like.
JUNE 2, 2015 PAGE 5 CITY COUNCIL
M
CM/DeStefano said that the City believes it already has all of the tools
necessary. There are a significant number of layers of legislation, regulation and
law that involves what a family is. Staff believes it has sufficient regulations to
protect neighborhoods dealing with these types of activities because again, they
are fundamentally "boarding houses." As previously stated, the real issue for the
City is gathering sufficient evidence to support a successful prosecution wherein
lies the difficulty.
CA/DeBerry said that the City's Ordinances are fine. They already prohibit the
birthing type of uses as well as, other boarding house types of uses. As
explained by CM/DeStefano the real rub is getting the evidence to bring to Court
that a crime was committed and whether it is a misdemeanor or felony, the City's
burden is to show that the crime was committed beyond a reasonable doubt.
Even in situations where a subpoena is requested or an inspection warrant to
enter the premises is requested the City still has to have probable cause, some
evidence to show to the Court to issue a warrant.
M/Tye asked that Mrs. Pantages recommendation be implemented and that the
number for Homeland Security be made available on the City's website.
SCHEDULE OF FUTURE EVENTS:
5.1 Pop -Up City Hall — June 4, 2015 — 9:00 a.m. to 1:00 p.m., Diamond Hills
Plaza (Next to HMart), 2825 S. Diamond Bar Boulevard; free hands -only
CPR training will be offered by LA County Firefighters.
5.2 Planning Commission Meeting — June 9, 2015 — 7:00 p.m., Windmill
Community Room, 21810 Copley Drive (canceled).
5.3 Traffic and Transportation Commission Meeting — June 11, 2015 - 7:00
p.m., Windmill Community Room, 21810 Copley Drive.
5.4 City Council Meeting — June 16, 2015 — 6:30 p.m., SCAQMD/Government
Center Auditorium, 21865 Copley Drive.
6. CONSENT CALENDAR: MPT/Lyons moved, C/Herrera seconded to approve
the Consent Calendar as presented with MPT/Lyons abstaining from Item 6.1
and with the exception of Item 6.14 withdrawn for separate consideration by
M/Tye. Motion carried by the following Roll Call vote:
AYES: Herrera, Lin, Tanaka, MPT/Lyons, M/Tye
None
None
COUNCIL MEMBERS:
NOES:
COUNCIL MEMBERS:
ABSENT:
COUNCIL MEMBERS:
JUNE 2, 2015 PAGE 6 CITY COUNCIL
6.1 APPROVED CITY COUNCIL MINUTES:
6.1.1 STUDY SESSION MINUTES of May 19,2015— as presented
6.1.2 REGULAR MEETING MINUTES of May 19,2015—as presented
6.2 RECEIVED AND FILED TRAFFIC AND TRANSPORTATION
COMMISSION MINUTES —Regular Meeting of April 9, 2015.
6.3 RECEIVED AND FILED PLANNING COMMISSION MINUTES — Regular
Meeting of April 14, 2015.
6.4 RATIFIED CHECK REGISTER — Dated May 14, 2015 through May 27,
2015 totaling $1,494,739.50.
6.5 APPROVED TREASURER'S STATEMENT — Month of April 2015.
6.6 APPROVED THE FIRST AMENDMENT TO THE CONSULTANT
SERVICES AGREEMENT WITH ECS IMAGING, INC., EXTENDING THE
CONTRACT TERM THROUGH JUNE 30, 2016 WITH NO CHANGE IN
THE APPROVED NOT -TO -EXCEED AMOUNT OF $87,000.
6.7 APPROVED THE FIRST AMENDMENT TO THE CONSULTANT
SERVICES AGREEMENT WITH SYTECH SOLUTIONS, INC.,
EXTENDING THE CONTRACT TERM THROUGH JUNE 30, 2016 AT A
COST OF $40,000 FOR A TOTAL NOT -TO -EXCEED AMOUNT OF
$140,000.
6.8 APPROVED AMENDMENT NO. 4 TO THE CONTRACT WITH
VALLEYCREST LANDSCAPE MAINTENANCE TO EXTEND THE TERM
OF THE CONTRACT FROM JULY 1, 2015 THROUGH JUNE 30, 2016
TO PROVIDE LANDSCAPE MAINTENANCE SERVICES AT NINE (9)
CITY PARKS, THE GROUNDS OF THE DIAMOND BAR CENTER, THE
FOOTBALL FIELD AND SLOPE AT LORBEER MIDDLE SCHOOL, AND
THE MESA TRAIL/TRAILHEAD AT SYCAMORE CANYON PARK, IN
THE AMOUNT OF $368,995 EACH FISCAL YEAR, AND AS -NEEDED
WORK IN THE AMOUNT OF $25,000 EACH FISCAL YEAR FOR A
TOTAL AUTHORIZATION NOT TO EXCEED $393,995 ANNUALLY.
6.9 APPROVED ADJOURNING THE JUNE 16, 2015 CITY COUNCIL
MEETING TO JULY 21, 2015.
6.10 (a) ADOPTED RESOLUTION NO. 2015-23: REQUESTING THE
BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES TO
CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE HELD ON
NOVEMBER 3, 2015 WITH THE SCHOOL ELECTIONS TO BE HELD ON
THAT DATE PURSUANT TO SECTION 10403 OF THE ELECTIONS
CODE.
JUNE 2, 2015 PAGE 7 CITY COUNCIL
(b) ADOPTED RESOLUTION NO. 2015-24: REQUESTING THE
BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES TO
CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE HELD ON
NOVEMBER 3, 2015 WITH THE SCHOOL ELECTIONS TO BE HELD ON
THAT DATE PURSUANT TO SECTION 10403 OF THE ELECTIONS
CODE.
(c) ADOPTED RESOLUTION NO. 2015-25: ADOPTING
REGULATIONS FOR CANDIDATES FOR ELECTIVE OFFICE
PERTAINING TO CANDIDATES STATEMENTS SUBMITTED TO THE
VOTERS AT AN ELECTION TO BE HELD ON TUESDAY, NOVEMBER
3, 2015.
6.11 APPROVED SUPPLEMENTAL APPROPRIATIONS OF $559,591 INTO
THE FY 2014-15 BUILDING FEES REVENUE ACCOUNTS AND,
$233,547 INTO THE FY 2014-15 BUILDING AND SAFETY CONTRACT
SERVICES EXPENDITURE ACCOUNT, TO FUND THE PAYMENT OF
RKA CONSULTING SERVICES INVOICES.
6.12 APPROVED PROFESSIONAL SERVICES AGREEMENT WITH DAVID
EVANS AND ASSOCIATES, INC. (DEA) TO PROVIDE LANDSCAPE
PLAN CHECKING SERVICES FOR THREE FISCAL YEARS (2015-16
THROUGH 2017-18) WITH AN OPTION FOR TWO (2) ONE-YEAR
EXTENSIONS.
6.13 AUTHORIZED THE CITY MANAGER TO ENTER INTO A THREE-YEAR
AGREEMENT WITH THE LOS ANGELES GATEWAY REGION
INTEGRATED REGIONAL WATER MANAGEMENT JOINT POWERS
AUTHORITY TO SHARE THE COSTS FOR THE INSTALLATION OF
MONITORING EQUIPMENT AND MONITORING PURSUANT TO THE
HARBOR TOXIC POLLUTANTS TOTAL MAXIMUM DAILY LOADS
(TMDL) FOR A TOTAL AMOUNT NOT -TO -EXCEED $30,000 FOR THE
TERM OF THE.AGREEMENT.
ITEMS WITHDRAWN FROM CONSENT CALENDAR:
6.14 ADOPTED RESOLUTION NO. 2015-26: ADOPTING THE STATEMENT
OF INVESTMENT.
M/Tye asked that staff provide a report for the benefit of the community.
FD/Honeywell stated that earlier this evening the Audit Subcommittee met
to review the proposed Fiscal Year 2015-16 Investment Policy. The
current investment policy has been unchanged for several years and the
investment market as well as, California Government Code that regulates
local agencies in this arena has changed over time and the policy before
the City Council tonight reflects these changes. The objective of the City
JUNE 2, 2015
PAGE 8 CITY COUNCIL
continues to be safety, liquidity and yield in that order. Formerly, the City's
investment policy was drafted using a National Government Finance
Officers Association model. The updated policy was drafted using the
provisions outlined in the California Municipal Treasurers Association
Certification Program and the CMTA solely focuses on "best practices and
treasury management" in the State of California for California treasurers
which lends itself more closely to the City's investment requirements and
goals.
M/Tye thanked FD/Honeywell and said he wanted folks to understand the
City is implementing a better policy and as a result, certain things will not
be permitted even though they are permitted by law.
M/Tye moved, C/Lin seconded, to Adopt Resolution No. 2015-26:
Adopting the Statement of Investment. Motion carried by the following
Roll Call vote:
AYES: COUNCIL MEMBERS: Herrera, Lin, Tanaka, MPT/Lyons,
M/Tye
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
8. COUNCIL CONSIDERATION:
8.1 APPOINTMENT TO WILDLIFE CORRIDOR CONSERVATION
AUTHORITY ADVISORY COMMITTEE
M/Tye asked Jennifer Fraga, to introduced herself and speak about her
experience. She stated that presently is attending Azusa Pacific
University (APU) and has worked at The National Wildlife Refuge and Don
Edwards San Francisco Bay National Wildlife Refuge.
C/Herrera moved, C/Tanaka seconded, to approve appointment of
Jennifer Fraga to the Wildlife Corridor Conservation Authority Advisory
Committee. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Herrera, Lin, Tanaka, MPT/Lyons,
M/Tye
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
JUNE 2, 2015 PAGE 9 CITY COUNCIL
7.1 ADOPT RESOLUTION NO. 2015-27: DENYING THE APPEAL AND
AFFIRMING THE PLANNING COMMISSION'S DECISION TO DENY
CONDITIONAL USE PERMIT NO. PL 2014-518, A REQUEST TO
ALLOW THE INSTALLATION OF A NEW WIRELESS
TELECOMMUNICATIONS FACILITY CONSISTING OF 12 PANEL
ANTENNAS, THREE (3) REMOTE RADIO UNITS, AND A 24 -INCH
DIAMETER MICROWAVE DISH ANTENNA ON A 65 -FOOT HIGH
ARTIFICIAL TREE (MONOPINE) AND ASSOCIATED ABOVE -GROUND
EQUIPMENT CABINETS WITHIN A 220 SQUARE FOOT ENCLOSURE
AT A PUBLIC PARK (MAPLE HILL PARK), LOCATED AT 1355 MAPLE
HILL ROAD (APN: 8293-030-900).
CM/DeStefano stated that on tonight's agenda is a Resolution which
states that it would deny an appeal confirming the Planning Commission
decision to deny Conditional Use Permit No. PL 2014-518, a request to
allow the installation of a new wireless telecommunications facility
proposed within Maple Hill Park located at 1355 Maple Hill Road
consisting of 12 panel antennas, three (3) remote radio units, and a 24 -
inch diameter microwave dish antenna on a 65 -foot high artificial tree
(Monopine) and associated above -ground equipment cabinets within a
220 square foot enclosure. Prior to opening the Public Hearing staff will
provide a report on the details of the application and respond to any
questions from Council, and receive feedback from the City Attorney, as
needed. Once staff has concluded its conversation with the City Council
there would be an opportunity for the applicants to present their project
after which the City Council would open the Public Hearing and take public
testimony on the matter, close the Public Hearing and take action.
CDD/Gubman provided staff's report stating that the matter before the
Council this evening is an appeal of the Planning Commission's Denial of
a Conditional Use Permit application to establish a wireless
telecommunications facility at Maple Hill Park. The applicant and
appellant is T -Mobile. He provided the City Council with a brief overview
of the proposal, a summary of the review process culminating in the March
10, 2015 Planning Commission Hearing and a discussion of staffs
recommendation that the City Council Deny the Appeal and affirm the
Planning Commission's decision to deny T -Mobile's request.
This project is a request to establish a new co -locatable 65 foot high
wireless telecommunications tower in the form of an artificial tree
(Monopine). Monopole is the generic term for a cell tower when it is
disguised as a certain variety of tree. On the monopine structure the
antenna facility would consist of 12 vertical panel antennas, three (3)
modules known as remote radio units, and a 24 -inch diameter microwave
dish antenna. In addition, a 220 square foot equipment enclosure is
JUNE 2, 2015 PAGE 10 CITY COUNCIL
proposed which would be architecturally designed to match the other
structures and in particular the restroom building in the park which would
consist of split -face block walls and wood lattice cover. The antenna array
and all of the associated equipment is for the purpose of receiving and
transmitting telecommunications data for cell phones and other wireless
communications that are provided by the carrier T -Mobile.
CDD/Gubman provided an aerial photograph of Maple Hill Park located on
the southwesterly side of Maple Hill Drive directly across the street from
Maple Hill Elementary School and within a single family neighborhood
zoned Single Family Designation RLM. He then displayed an
enlargement of the proposed cell site 220 square foot facilities enclosure
that would reside just to the south of the far right tennis court and the
yellow dashed circle which outlined the location for the proposed
Monopine. CDD/Gubman showed a photo looking toward the parking lot
in the picnic area in front of the tennis courts which showed the ground
location for the proposed Monopine structure and a view from the north
looking southwest into the park with an arrow pointing to the proposed
Monopine (a photo simulation of the proposed structure).
CDD/Gubman stated that the design for this facility was developed
through a collaborative process between staff and T -Mobile's project
consultant. Staff has a good working relationship with T -Mobile and over
the years, the City has processed several applications in the City for them
including locations on privately owned land as well as, public property.
The Planning and Community Services staff worked with the applicant to
come up with the aesthetically preferred placement for the proposed
improvements within the locational constraints such as setbacks within the
park property. Staff then recommended that the Planning Commission
approve the final design.
The Planning Commission held its Public Hearing on March 10, 2015 and
listened to several neighbors speak who voiced their objections to the
proposal. Several speakers described how they use the park and how
they appreciate its intimate and natural setting and why they feel the
proposed structures would be unattractive from the prospective of a park
user and, that the park which is already developed with several amenities
would become overcrowded if additional structures were to be added to it.
The Commission considered all of the facts and testimony entered into the
public record and concluded that the Findings required to approve a
Conditional Use Permit could not be made and therefore denied the
application.
As discussed in the Planning Commission Resolution which is included in
staff's report packet attachments, Findings 3 and 5 outline the factual
basis upon which the Commission reached its conclusion to deny the
JUNE 2, 2015 PAGE 11 CITY COUNCIL
request. In a nutshell, the Commission determined that the proposed
wireless facility would have a negative effect on the public's enjoyment of
the parks aesthetic attributes; and, that the proposed structures would
overcrowd the portion of the park used for picnics, gatherings and passive
enjoyment. In making its findings the Commission also contrasted Maple
Hill Park to other City parks where wireless facilities have previously been
approved and why those other locations are appropriate for wireless
telecommunications facilities as opposed to Maple Hill Park. Specifically,
there are three other parks in the City including Peterson Park with nine
usable acres which has wireless communications facilities mounted to
sports field lighting. It is a larger park and the park is already developed
with structures that are utilitarian in their visual character and the
determination was that installing antennas on those structures was an
appropriate co -location; Pantera Park which is about 15.5 acres, has
lighted sports fields and similarly, wireless communications are mounted
on the sports field lighting; and, the Diamond Bar Center consists of about
16 developed acres and there are two artificial trees located at the
northern -most end of the parking lot beyond the limits of public
congregation. In the three other locations there were clear distinctions
drawn between the character and programming of those parks and those
facts were used to contrast against Maple Hill Park and why this park
being the smallest park in the City for which a wireless communications
site was proposed would not be an appropriate selection.
Following the Commission's action the City Manager rescinded the City's
prior authorization for T -Mobile to proceed with the Maple Hill Park
application. This decision was in response to hearing the customers
(Diamond Bar residents who use the park) voice their objections to further
development at that park.
CDD/Gubman said he was before the City Council this evening
recommending that the Council uphold the Planning Commission's
decision to deny this Conditional Use Permit application.
CDD/Gubman responded to some of the statements submitted in writing
by the appellant and responded to statements included in the applicant's
legal counsel's letter that was entered into the record yesterday that
suggests that staff's reversal of its recommendation in support of the
Planning Commission's decision was somehow arbitrary, capricious or
otherwise inappropriate for which he took issue. When staff worked with
T -Mobile on this project staff's recommendation was based on all of the
information made available to staff. Staff took into consideration the
opportunities and constraints and made a good effort to come up with the
best design for a cell site at Maple Hill Park; however, as City staff, they
are not residents of this particular neighborhood, staff does not use the
park and staff does not have the firsthand understanding of how the
residents/customers enjoy this park which is part of the public hearing
JUNE 2, 2015 PAGE 12 CITY COUNCIL
process. Staff conducts its analysis and moves forward with a
recommendation, but a public hearing must be held so that the
transparent deliberation can occur and the public has to be given the
opportunity to provide information to help the Planning Commission reach
its decision. So, after hearing all of the testimony and evidence entered
into the record which staff heard as well, the Planning Commission made
its decision and staff is here to convey the Planning Commission's
recommendation to the City Council and to support that recommendation.
CDD/Gubman addressed another remark in T -Mobile's legal counsel's
letter that Maple Hill Park is the only available site to close the coverage
gap in this service area which is actually not accurate. In the appellant's
formal appeal that was submitted it acknowledges that Maple Hill
Elementary School and locations within the Public Rights -of -Way are other
alternatives to locating a telecommunications facility to close that
coverage gap. The appeal that was submitted noted that Maple Hill
Elementary School is not an option for them because the property owner
did not give authorization for T -Mobile to apply to place a cell site on their
site. As far as the Public Right -of -Way option, the appellant articulated
reasons why they find that not to be a feasible option for them to pursue.
Finally, there are statements in the appeal and in the subsequent
correspondence that Maple Hill Park has been pre -approved or is a
"preferred" site for a wireless telecommunications facility and that is
incorrect. In fact, the City's Municipal Code identifies zoning districts
where certain land uses may be allowed provided that a Conditional Use
Permit is granted. So for wireless communications facilities that includes
commercial, industrial and office zoning districts and also references what
is called a Wireless Facilities and Opportunities Map was adopted circa
1998 and what is basically an inventory of schools, parks and other public
facilities and churches within the City that are located in residential zoning
districts but are not residentially used properties. There was no
preference or pre -approval for any of these sites — these properties were
merely added to the inventory of land within which conditional use permits
could be applied for, but the decision to approve a conditional use permit
on these "opportunity" sites as with any other zoned property in the City, is
a decision that is subject to the Conditional Use Permit Findings.
CDD/Gubman concluded by reiterating that after holding the Public
Hearing and considering all testimony including information contained in
the oral and written record, staff recommends that the City Council Deny
the Appeal and affirm the Planning Commission's decision to Deny the
Installation of a new wireless telecommunications facility at Maple Hill
Park, based on the Findings set forth in the Resolution (attachment 1 in
the Council packet).
JUNE 2, 2015 PAGE 13 CITY COUNCIL
C/Herrera thanked and complimented staff on the very thorough report
(320 pages) that they provided for Council.
C/Tanaka thanked staff for providing the City Council with a thorough
report and the Planning Commission for their work in making sure
everyone was heard through the transparent Public Hearing.
C/Lin asked CDD/Gubman the date of the appeal.
CDD/Gubman responded that the appeal was submitted on April 3, 2015.
The Public Hearing was held on March 10 and the conclusion of that
meeting the Commission continued the matter to March 24 so that staff
could prepare a denial resolution for their adoption on March 24 so the
appeal period started on March 24.
M/Tye asked the applicant to provide a presentation to the Council.
Martin Fineman introduced David Wilkerson, Engineer with T -Mobile who
will describe the need for this project, Len Jensen from Cortel, the
organization that worked with City staff to design the submission the
applicant felt was the ideal design for this project at the ideal location. Mr.
Jensen will also describe T -Mobile's investigation of other potential
locations and why they simply will not work. Mr. Fineman said he would
speak again briefly after Mr. Jensen and then Jennifer Navarro Yhap,
Development Manager with T -Mobile will speak. In addition to the
presentations, the applicant and representatives are happy to answer any
questions the City Council may have.
Mr. Fineman stated that T -Mobile submitted an appeal letter on April 3,
2015 which was intended to be complete and supplemented by numerous
exhibits to complete the story. Yesterday T -Mobile submitted a letter that
was meant to address the staff report which came out late on Friday
afternoon. He wanted to be sure the Council had received those
submissions.
Mr. Fineman said that one important piece of context is that the
conversation is about facilities that are necessary in order to provide
mobile communications including mobile phones and smart phones which
make calls, accesses the internet and for sending and receiving text
messages. Mobile phones and smart phones have become ubiquitous
throughout society and are essential today. He said he expected that if he
were to ask for a show of hands as to who has a cell phone and who has
a smart phone, every hand in this chamber would go up. Mobile phones
are essential in order to keep in touch with family, friends, business
associates, to make emergency calls to police, fire, ambulance services,
to access the internet and to send text messages and much more. Days
of the landline are basically behind us. Not only are mobile phone
JUNE 2, 2015 PAGE 14 CITY COUNCIL
ubiquitous but for many, many people they are the only link they have to
family, friends, emergency services, etc. Everyone wants and needs a
mobile phone but the truth of the matter is that they work only if the
facilities are allowed in order to enable them to work— if the infrastructure
is provided and the equipment is provided in order to make them work.
What this appeal has to do with is, as the Council has heard, the area
surrounding Maple Hill Park here in the City of Diamond Bar. What the
Council has seen in the materials submitted and what Mr. Wilkerson will
discuss in a moment, there is a significant gap in wireless service
coverage throughout the neighborhood surrounding the park. Mr.
Wilkerson is an engineer and he will describe that gap in service to the
City Council. This is a very significant gap by any measure — by size of
the gap, by the number of people who live there, travel through and visit
the area. In fact, in terms of the number, it is roughly four percent of the
entire population of the City of Diamond Bar. T -Mobile and Corte] set out
to find an appropriate site to place this equipment necessary in order to fill
that gap and to solve this problem. Mr. Jensen will tell the Council about
the various locations that were considered and why it was ultimately
determined for good and obvious reasons that none of them would work.
Mr. Fineman said this appeal is different from other zoning and permit
appeals the Council hears on a regular basis for a number of reasons.
One important reason is due to the City's Municipal Code and what it
provides specifically with respect to the sighting of wireless
telecommunication facilities, quite different than the zoning rules that
pertain to other kinds of projects. The Municipal Code addresses
specifically and separately the issue of land use controls for wireless
telecommunication facilities under Section 22.42.130 of the Diamond Bar
Municipal Code. To be even more precise, Section G43 addresses this
matter of wireless telecommunication facilities in areas such as the Maple
Hill area. Wireless telecommunication facilities under the law in this City
may only be located in a residentially zoned district on church property, a
school, a water tank or a public property or other similar facilities.
Furthermore, the Code itself references the City's Telecommunications
Facilities and Opportunities Map. The site under discussion in Maple Hill
Park is one of those very few spots that are specifically identified as
allowable for and as a preferred location, for placing these facilities. His
point is that this is different than other land use and zoning decisions that
the Council makes. Here the Code dictates exactly where a wireless
telecommunications facility may go and in this area under discussion to
address this serious need by a large number of residents of this City, the
park is the only location that is available and more than that, it is identified
specifically as a preferred opportunity location. So the decision is different
from other decisions the Council makes for an additional reason other
than the City's law, but because of federal law of which there are a
number that pertain exactly to what cities, counties and states can do in
terms of zoning decisions for wireless telecommunication facilities. So
JUNE 2, 2015 PAGE 15 CITY COUNCIL
unlike a decision that this body may make about where a Walmart, car
dealership or gas station might go, there are specific federal laws that
dictate when a city must approve an application for a wireless
telecommunication facility and that is not addressed whatsoever in any of
the submissions from City staff. These statutes include Section 253, 332
and 1455 of The Telecommunications Act. Federal law quite simply
forbids a city from denying a permit for wireless telecommunication
facilities under a number of circumstances. For example, a city cannot
discriminate among carriers so a city cannot say that Verizon is allowed to
have wireless facilities on their parks but T -Mobile is not. Cities cannot do
that. It is unreasonable discrimination between carriers which is exactly
what would happen here should the Planning Commission's decision be
upheld. A city cannot deny a permit because of concerns over radio
frequency emissions and the record is replete with the fact that that was
the main subject of the testimony at the Planning Commission. That is
something that federal law very plainly says a city may not utilize as a
factor in making such a decision. A city cannot deny a permit based on
conclusions unless they are supported by substantial evidence contained
in a written record which addresses matters like statements about
aesthetics or property value unless there is specific substantial evidence
that would support it. Where there are the photo simulations that were
shown by staff with pictures of what this facility would look like there was
an arrow pointing to where this tree would be amongst a stand of trees.
He respectfully submitted like the game "Where's Waldo" if that arrow was
not there he suspects that no one would even be able to tell where the
(Monopine) was, one more tree amongst a stand of trees in a park full of
trees.
A significant gap exists in the area surrounding and including this (Maple
Hill) park and this is not only the best way to address it but it is the only
way to address it. If the City's Code is combined with the federal law, the
federal law says that a wireless carrier is entitled to a permit if a significant
gap exists while City Code says that the only location that would
potentially be available to T -Mobile is the park, the permit should be
granted.
James Wilkerson, T -Mobile Engineer, provided details about the
significant gap in coverage. Summarizing why this site is needed, Mr.
Wilkerson said that the Maple Hill Park site is needed because T -Mobile
has a significant gap in coverage due to an inability to provide the reliable
wireless coverage in buildings and in vehicles that customers expect and
need. In the map example show there is a significant gap in the magenta
colored polygon. People in that area may not be able to reliably sustain
calls or data communications while in their homes and in some areas not
even reliably sustain calls while in their vehicles. This is a very significant
gap in coverage. It is significant in size covering approximately .35 square
miles of the City, bound by Birdseye Drive to the north, Mountain Laurel
JUNE 2, 2015 PAGE 16 CITY COUNCIL
Way on the south, Ironbark Drive on the east and Blenbury Drive on the
west. The gap is significant in population with approximately 2,130 people
who reside within the gap with many more visiting the area or driving
through it. The area of the gap includes homes, schools and a park as
well as, heavily traveled roads. There is need to provide good emergency
911 service within this gap. The proposed Maple Hill Park site solves the
gap in coverage. There were approximately 3,420 Emergency 911 calls
made in Diamond Bar on T -Mobile's network over the past year — 285 per
month or 10 calls a day. It is T -Mobile's intent to have sufficient facilities
throughout the communities to ensure distressed callers wireless phones
have adequate signal available to make an emergency call, stay
connected with 911 operator and be found by emergency personnel. In
conclusion, he said he would applaud the Council's approval.
M/Tye reiterated the applicant's claim that this gap affects 4 percent of the
City's population and that there are 2138 people in this area that the
speaker outlined and asked if that was correct.
Mr. Wilkerson responded "that is correct."
M/Tye then asked how the applicant came up with that number of 2138
people.
Mr. Wilkerson responded that it is census block data.
M/Tye asked Mr. Wilkerson to explain "census block data."
Mr. Wilkerson responded that census block data is a basic rollup of the
residential area and individuals within that bounded geographical area.
M/Tye asked if Mr. Wilkerson was talking about 2138 residences or 2138
people.
Mr. Wilkerson responded that he was talking "people."
M/Tye asked how many of the 2138 people were T -Mobile subscribers.
Mr. Wilkerson said he did not have that data available.
Mr. Fineman said the issue of whether a city council ought to take into
account the number of residences versus the number of those residents
that are subscribers to one particular carrier has been authoritatively
addressed by the Courts and the answer is that it is the total number of
residents not whatever portion it may be that happen to be subscribers to
any one particular carrier. This issue was addressed by the federal court
in the Huntington Beach case, by the gth Circuit in the Metro -PCS v. City of
JUNE 2, 2015 PAGE 17 CITY COUNCIL
San Francisco case. While it is a perceptive question it is one that the
courts indicated how city council's need to go about making that decision.
M/Tye said he understood what Mr. Fineman was saying. One of the
questions he had as he reviewed Mr. Fineman's letter refers to a
"significant gap and it is up to the Courts and up to the attorneys to figure
out how that will be decided but M/Tye said he did not know how the
applicant could determine there is a significant gap if you cannot tell the
Council how many in that area that was shown on the map are T -Mobile
subscribers.
Mr. Fineman reiterated that that question has come up before and Courts
have said that the matter needs to take into account the total population
because someone who is a Verizon customer yesterday becomes a T -
Mobile customer tomorrow. That happens frequently.
Mr. Fineman said that with respect to CDD/Gubman's presentation, a
feasible alternative is one that is zoneable, constructible/buildable,
technologically feasible and leasable and if it lacks any of those
characteristics it is not an available alternative. For example, if the school
district simply says it will not lease to a carrier is not an alternative.
Len Jenson, Corte[, described the initial cooperation with City staff in
coming up with a solution to the gap in coverage and the best possible
design location for a proposed wireless facility. Cortel worked closely with
AP/Espino in order to design a T -Mobile site appropriate for the area.
Pursuant to the Diamond Bar Ordinance, City parks are among the few
preferred locations for wireless facilities and Maple Hill Park is located
within that small area that would remedy T -Mobile's significant gap in
service. In October, Bryce Novak of Cortel and AP/Espino attended a
site -walk at the park where various options and location were discussed.
The original faux Eucalyptus tree design was considered but rejected by
City staff because it would not allow for the future co -location of additional
wireless carriers, co -location being the ability of other wireless carriers to
share space for their antennas and equipment on the same tower which
the City's Code requires (co -location where possible). City staff chose the
taller Monopine option in order to accommodate future co -location.
Following the site walk AP/Espino discussed the matter with
CDD/Gubman and a Monopine design was selected as the preferred type
of faux tree for the park. Also, per AP/Espino the proposed location of the
Monopine and equipment enclosure near the tennis court was the favored
location of both CDD/Gubman and CSD/Rose. Based on this cooperative
effort with the City of Diamond Bar, staff's recommendation to the
Planning Commission was to approve T -Mobile's proposed Monopine
design. Alternative sites, other sites that were looked at and carefully
considered before being rejected for various reasons upon which he will
elaborate, were severely limited in this part of the City by the Planning
JUNE 2, 2015 PAGE 18 CITY COUNCIL
Code which has been discussed. Several alternative sites were reviewed
carefully by T -Mobile before Maple Hill Park was selected. These sites
include Site #1 which is Maple Hill Elementary School. In the past T -
Mobile proposed a flagpole at the school and was asked by the district to
withdraw their zoning application based on community opposition. The
Walnut Valley School District confirmed that they are still not interested in
a wireless facility on their campus. Site #2 was Chaparral Middle School.
Walnut Valley School District stated that it was not willing to allow a site on
the campus. In addition, even if the school district would allow access (a
facility) the location would not remedy the significant gap in coverage and,
after being evaluated as a potential site by T -Mobile RF engineers, was
rejected as a solution. Site #3 was the WWWD water reservoir. T -Mobile
RF engineers also evaluated this location and rejected the site because it
is located too far west of the significant gap in service and as a result
would not remedy the hole in coverage. Site #4 is the possibility of a
microcell. In order to achieve the same coverage of the proposed
Monopine multiple microcells would need to be installed on existing light
poles in the right-of-way. However, the 25 foot existing poles are too short
to propagate a signal over homes and trees and are not structurally
capable of supporting wireless equipment. So the solution here would
require the installation of new poles at nearly twice the height and
diameter which would be more obtrusive than the single Monopine at the
park (Maple Hill) and in addition, these facilities would be very close to
homes and much less likely, he believed, to be approved by the Planning
Commission. Site #5 — major thoroughfares surrounding Maple Hills
Subdivision were considered but not feasible due to distance away from
the coverage objective as well as, the topography in the higher elevation
at Maple Hill. T -Mobile currently maintains facilities at South Diamond Bar
Boulevard and Grand Avenue but due to topography and distance they
cannot provide service to the gap area. For all of these reasons Maple Hill
Park is the only technologically feasible and available site to remedy T -
Mobile's gap in service.
M/Tye said that the applicant has described a "significant gap" and have
laid out why four of the five ideas proposed by staff will not work. What if
there was no park at this location.
Mr. Jensen said there would continue to live with a gap in coverage.
M/Tye said so T -Mobile would continue to live with what they refer to as a
"significant gap".
Mr. Jensen responded "correct."
C/Lin said he was curious about how long T -Mobile had been servicing
this area and why they waited so long to determine there is a gap.
JUNE 2, 2015 PAGE 19 CITY COUNCIL
Mr. Jensen responded that gaps have existed in residential areas where
traditionally, these cell towers are not zoned except for in public parks,
public facilities, churches, etc.
C/Lin said if this gap has existed for 20 plus years and there has been no
issue about the gap in coverage why all of a sudden does T -Mobile want
to fill this gap.
Mr. Wilkerson responded that there has been exponential grown that is
taking place in the wireless sector and it is T -Mobile's desire to make
services available to the subscribers in these areas where service is
currently deficient for T -Mobile. T -Mobile is looking to level the playing
field and have the opportunity to provide service to the 2000 plus people
living in the gap area.
C/Lin said that if T -Mobile is trying to be competitive are there other towers
on which T -Mobile can co -locate?
Mr. Wilkerson said he was sure that discussions have taken place to co -
locate where possible. Other carriers operate on different frequencies and
in respect to coverage this service gap also has elevated terrain all around
it. To the north it is a 35 foot increase in elevation; to the west it is 80 feet.
To the east it is 30 feet. So again, other carriers operate on a different
spectrum of frequency so they require fewer sites than T -Mobile and T -
Mobile is looking to leverage that with Maple Hill Park and may need one
or two additional sites in these underserved areas.
MPT/Lyons asked if T -Mobile had been tracking the number of complaints
it had received from that area.
Mr. Wilkerson said that residents have phones on the provider that
provides service to them so the numbers would be higher providing T -
Mobile had service in a community. So if he does not have service in a
community and he needs it for work, business or emergencies he will pick
a provider that can provide service in vicinity.
MPT/Lyons said so Mr. Wilkerson is saying T -Mobile does not have any
subscribers in that area and this installation would allow T -Mobile to get
subscribers.
Mr. Wilkerson said it would allow T -Mobile to increase the number of
subscribers. He does not have a total amount but the opportunity that the
site would provide would level the playing field allowing T -Mobile to have a
substantially larger customer base in that area.
MPT/Lyons said she understood his earlier point about it not only being
residents but also visitors into the area that would want the service and
JUNE 2, 2015 PAGE 20 CITY COUNCIL
surely some of the visitors would have complained if they were unable to
get service and MPT/Lyons asked again if T -Mobile was tracking the
complaints about dropped service.
Mr. Wilkerson said that T -Mobile does track the number of dropped calls
but in terms of volume he does not have the number.
M/Tye said so T -Mobile has no record of complaints from this area, is that
correct.
Mr. Wilkerson said that over the last 90 days he has had about 10
complaints of no coverage.
M/Tye said he is a T -Mobile subscriber and knows areas or parking
structures where there may be a gap in service and tells people he will call
them back. If he takes his phone and tries to call his wife from the AQMD
Auditorium he gets a message that says there is no cellular network
available. He lives with that and understands that it is part of the
technology. He asked Mr. Wilkerson if there was no park in this area what
would T -Mobile do.
Mr. Wilkerson said T -Mobile would continually be in pursuit of identifying a
facility that would give T -Mobile the opportunity to provide coverage to that
area. By having a phone and being able to inform someone that "I'll call
you back because I'm now entering into a no -coverage zone" is an area
where a carrier like T -Mobile is looking to excel and make sure it does
provide service because usually having ubiquitous coverage anywhere
and everywhere one goes for personal reasons or emergency, T -Mobile
does not like for its customers to not have service where they live, work
and play and so it is his desire as part of the engineering team to
understand those needs and make sure T -Mobile is doing everything
possible to give residents and business owners coverage they deserve.
M/Tye said he understood and appreciated what Mr. Wilkerson was
saying, especially as a subscriber. What he is saying is that, and that is
why he asked about the park specifically, if he understands what Mr.
Wilkerson is telling him about these 2138 people, it will provide coverage.
But a block or two or five over there will be another significant gap and he
does not know that Diamond Bar can solve all of the problems that T -
Mobile has by saying it is okay to put a cell tower in a park. He
respectfully disagreed with Mr. Fineman when Mr. Fineman made the
statement that these are "necessary" for communication because and
M/Tye would disagree with that entire premise because he believes they
are a "convenience." When he passes on Diamond Bar Boulevard or
Golden Springs he knows it is a possibility he will have a dropped call. He
knows when he takes Grand Avenue from Diamond Bar to Chino Hills he
will be without coverage as well. That is an inconvenience. In his lifetime
JUNE 2, 2015 PAGE 21 CITY COUNCIL
an inconvenience used to be when one could not find a payphone. A
serious inconvenience was when you could not find a payphone with a
telephone book. So, this is a convenience today and the City needs to
accommodate that as much as possible but he does not see it as essential
at all.
Mr. Fineman responded to M/Tye's question and comments with the
greatest respect for this and every city council. The federal government
has made that decision already. There is federal law Section 332 of The
Telecommunications Act that plainly says a city council, county or state
must grant — may not deny a permit where there is a significant gap and
this (Maple Hill Park) is the least intrusive alternative to meet that
objective. A city council simply may not say we think pretty good cell
coverage is good enough for our town or so long as Verizon has good
coverage we do not care if AT&T does not. With all respect, the law could
not be clearer, that is not a decision that cities are allowed to make. The
federal government has decided and the FCC requires carriers to provide
ubiquitous coverage which is not a decision the City is allowed to make.
The federal government has already enacted statutes that say cities
cannot do that — Section 253 and 332. He offered that comment as
context that to say that this is a convenience or we could all do without cell
phones is a decision the federal government has already made.
C/Lin said that if the federal government has said this is not the City's
business why does T -Mobile come before this City Council.
Mr. Fineman responded that cities can ask for permits but what the federal
statutes do is say there are certain circumstances where cities must grant
the permits and cities cannot discriminate. Some cities do not require
permits but a City can require permits but there are circumstances
dictated by federal law where a city must grant the permits.
Mr. Fineman talked about issues raised during the Planning Commissions
deliberation. With respect to aesthetics, this location and design was
designed according to the requirements of the City's Code and with strong
input from and collaboration with City staff which their report indicated.
This included the support structure for the antennas as a faux pine tree
which would blend into the many other trees in the park; the equipment
cabinet was designed in a color, material and texture that would coincide
with the nearby restroom facility; and, the photo simulations show that it is
difficult to spot where the tree is amongst the many other trees. In his
opinion there was some misinformation about the use of a pine tree as
opposed to some other kind of a tree. T -Mobile originally proposed a
Eucalyptus tree because there are many such trees in that park. Staff
requested that T -Mobile switch that design to a pine tree in order to allow
co -location with other providers. As the Council knows, the decision it
makes does not have to simply be to grant or deny the appeal, the Council
JUNE 2, 2015 PAGE 22 CITY COUNCIL
can grant the approval with conditions. If the Council would prefer it to be
a Eucalyptus T -Mobile would prefer that or any other tree and be very
happy to accommodate that condition. He was at the park earlier this
evening and there are many, many pines, Eucalyptus, Maples and other
kinds of trees. He said he also believed that the staff report and Planning
Commission used some inappropriate language when it faults the
proposal for not being "invisible" since it repeats language that "this would
be visible. The standard of course is not that it would be invisible and of
course that would be an impossible standard to meet.
M/Tye asked if Mr. Fineman believed that if "invisible" could not be the
standard if he would agree that a better word would be "intrusive".
Mr. Fineman agreed that "intrusive" would be a better word.
Mr. Fineman said a claim has been made that this project will reduce the
recreational use of the park and that is also not true. If the addition of one
tree among many, many trees in this beautiful tree -laden park and the
addition of an equipment cabinet in an inaccessible part of the park
(behind the tennis courts in a drainage area which is not accessible)
reduces the recreational use of the park there is no logic to this assertion.
Again, if these locations were picked by staff and if the. Council would
prefer the tree be moved all the way into the hillside area that is filled with
scrub brush T -Mobile would be happy to do so. Comments were made by
staff about the supposed lack of proportion to the size of the park and
quite frankly, he understood that argument as a little bit defensive. Other
carriers have been allowed to place their facilities in other City parks such
as Peterson, Pantera, and Diamond Bar Center so the notion that adding
a tree and structure in this unobtrusive area would be out of proportion to
the size of the park is also not logical. The tree is the size of a tree and
the equipment cabinet is 220 square feet (10x22) and would be placed in
an inaccessible spot. The park is four developed acres and a total of 5.43
acres overall and the idea of adding one tree and a tiny structure in an
area people do not use is somehow out of proportion to a 5.43 acre park
is, he thinks, not correct. There was an assertion that other locations were
not investigated and Council has heard from Mr. Jensen that other
locations were carefully investigated and ruled out. The way the process
works is that it is not enough for a City to say well maybe this spot and
maybe that spot. If a city is going to deny a permit it has to be on the
basis of okay we won't give you this but we will give you this other location
and T -Mobile has not heard any other location that the City would grant.
T -Mobile respectfully asks and urges the City Council to grant the appeal,
to reverse the decision of the Planning Commission and to grant the
permit with or without the conditions.
Jennifer Navarro Yhep, Development Manager, T -Mobile, thanked M/Tye,
Council Members, staff and residents for hearing the T -Mobile appeal to
JUNE 2, 2015 PAGE 23 CITY COUNCIL
have a telecommunications facility approved at the Maple Hill Park. T -
Mobile's desire is to provide excellent service to the residents, visitors,
businesses and emergency responders of Diamond Bar. As stated, the
proposed facility is necessary to allow T -Mobile to accomplish this desire.
As her colleagues mentioned, this location (Maple Hill Park) is the only
viable location from which to provide coverage to T -Mobile customers. T -
Mobile has worked long and hard with City staff to design and locate the
ideal site which will comply with the zoning rules and safety regulations
and will minimize impacts on park users to the greatest degree possible.
It was the result of that consultation and collaboration with the'City to
relocate within the park where it is less visible, creates a design that
blends, provides for landscaping to maintain the beauty of the park and to
secure the grounds for the safety of the residents including children. T -
Mobile believes this design is the least intrusive means to remedy the
significant gap in T -Mobile's coverage. In summary, the park (Maple Hill)
is the only feasible location and T -Mobile ended up within the park with
this design rather than T -Mobile's original proposal at staff's urging. T -
Mobile respectfully asks the Council Members and the Mayor to
reconsider the Planning Commission's decision to approve the T -Mobile
facility since this will be a great improvement to the telecommunications
services, to the community and T -Mobile customers. If the Council
believes that there are remaining issues, please approve the facility
subject to the Conditions such as changing from a faux pine back to Elm
or Eucalyptus or that additional landscaping be provided. T -Mobile is
willing to work along with the Council to secure the T -Mobile facility.
Thank you so very much.
M/Tye thanked the speaker.
CA/DeBerry addressed comments made by Mr. Fineman orally and
written and attempted to focus the conversation on those items that are
relevant. Initially there was a comment made that not approving this CUP
would result in the City discriminating against carriers. He is not aware of
any evidence in the record that the City has granted any other carrier a
cell site in this park or that T -Mobile has been denied a cell site in some
park where other cell providers are located so he does not see any basis
for a discrimination claim. Mr. Fineman seemed to try,and attribute the
public comments regarding health effects from radio frequency to the
Planning Commission. There is nothing in the Planning Commission
Resolution that denied the cell tower on this basis nor were there any
comments from the Planning Commissioners that he saw in the minutes
that denied the project on this basis. The reality is that the Planning
Commission really has no authority to prevent the public from exercising
their First Amendment rights. Just because health effects are not relevant
to the decision does not mean that the public cannot come up and
comment on the matter and the Planning Commission has no authority to
JUNE 2, 2015 PAGE 24 CITY COUNCIL
tell the public they cannot make those comments. What this body cannot
do though is consider the health effects when determining whether or not
to issue this Conditional Use Permit. He agreed with Mr. Fineman's
contention about the number of T -Mobile subscribers in the area not really
being relevant. There were different decisions in different circuits as to
what was meant by a "significant" gap in coverage. Some circuits, not the
9th Circuit which governs California, determined that if there were multiple
users i.e. four users, four cell phone providers did have coverage and one
did not that did not constitute a significant gap, but he agrees with Mr.
Fineman's conclusions that at least the law in the 9th Circuit is that if a
particular cell phone provider has a gap in coverage that in and of itself
would be a "significant" gap. Whether or not they can meet that criteria is
a different question altogether, but governing bodies do not look at
multiple users. The reason for this is that one of the purposes of The
Telecommunications Act was to further competition. So the purpose is to
give people in the area multiple opportunities to pick from their
subscribers. The fact that a certain cell provider may not have many
subscribers in an area could well be because there is a gap in coverage.
So it becomes circular and it becomes a catch 22 for the cell provider.
The definition of a "significant" gap is whether or not the facility will fill in a
significant gap in the ability of remote users to access the national
telephone network. There are not any bright line tests. He wishes there
were and probably the cell phone providers wish there were bright line
tests as well. MPT/Lyons brought up the issue of call failure rates which is
one of the factors. The number of people impacted by the gap is another
factor and T -Mobile addressed that issue.
CA/DeBerry stated that with respect to a couple of issues in Mr. Fineman's
letter, the first is the City Code requirement that the applicant have the
property owner's consent to seek the Conditional Use Permit. This is
criteria #1 in the Municipal Code and as was noted in staff's report, the
City Manager gave his consent initially but later withdrew that consent
which is apparently what happened to T -Mobile with respect to the school
district's site. T -Mobile appears to argue that the City Manager did not
have any authority to withdraw that consent prior to the permitting process
being finished but he is not aware of any legal basis for that conclusion.
There is nothing in the Code that says a property owner cannot withdraw
their consent at any point in time. The consent itself was not
unconditional. It did not say that the City Manager would not withdraw his
consent. Certainly it would appear or certainly logic dictates that if the City
Manager has the authority to give consent that he has the authority to
withdraw that consent. Obviously, the City Council has the ability to
override the City Manager's decision and give that consent if it so desires.
But as of this moment, T -Mobile has not met the first requirement in the
Code and that is, it does not have the property owner's consent to place a
cell tower there.
JUNE 2, 2015 PAGE 25 CITY COUNCIL
The second relates to Finding #3 which is in the Planning Commission
report for the CUP and that is whether the design, location, size and
operating characteristics of the proposed cell tower are compatible with
the existing use of the property. Maple Hill Park was Quit Claimed by the
County of Los Angeles to the City of Diamond Bar. There is a deed
restriction which says that the park can only be used for park purposes.
That does not necessarily mean that the City cannot make an incidental
use or allow a private commercial operator to be on the park property, but
it typically either has to further the public park use or it has to be so limited
that it will not interfere with the public's use of the park. The proposed cell
site is clearly not a public park use so in order to not violate the deed
restriction the Council would have to make a finding that it is incidental to
the park use and does not interfere with the public's use of the park.
Mr. Fineman drew the conclusion that the City was required, apparently, to
allow them to have a cell tower on this particular piece of property. By
analogy that would essentially mean that T -Mobile has the authority to
condemn public park property for its own commercial use. CA/DeBerry
does not believe that is what federal law says. The federal law does not
require the City to consent to the use of its public park for a private
commercial cell tower. In fact, with the deed restriction, the City would
have to indicate that perhaps one way of showing that this was to further
the park purpose was if the City entered into a license agreement and
used those revenues for park maintenance which might be a particular
Finding the Council could make. As noted by T -Mobile, even if the CUP is
approved they still need a license agreement from the City Council and he
is not aware of any law which would interfere with the City Council's
legislative discretion whether or not to approve a contract. So without the
City's permission to even have the cell tower the Conditional Use Permit in
and of itself would be of no value.
CA/DeBerry further stated that having said all of the above, the City
Council certainly has the authority to uphold T -Mobile's appeal on the
basis of what T -Mobile has said in its written and oral correspondence.
Another option as noted in staff's report and as stated by T -Mobile is to
condition the approval on a different location or maybe a different look to
the cell tower. These are all things the City Council can consider. The
tower could be moved to a remote location if so desired. Before the City
Council opens the public hearing he would ask the public to come to the
City Council with comments based on things that are relevant to the City
Council's decision and things that are not relevant to the City Council's
decision at this point are the effect on property values and whether or not
the radio frequencies have detrimental health effects which are not proper
considerations for the City Council.
JUNE 2, 2015 PAGE 26 CITY COUNCIL
C/Herrera asked for clarification about things she heard Mr. Fineman say
several times. One was that the City must approve this application under
certain circumstances and his statement kind of implied that T -Mobile has
condemnation powers over the City to where this CUP must be approved.
CA/DeBerry said that in response to C/Herrera, he believed that if this
application were for a private property owner and the private property
owner had given consent that could potentially be true. But again, without
the consent of the property owner the Conditional Use Permit is of no
value and the Code requires that we have the consent of the property
owner. So if the private property owner had withdrawn their consent for
the CUP the City would site that as a reason to deny the CUP whether it
was a different property owner or the City is a property owner. What Mr.
Fineman said is that once there is a significant gap in coverage typically
the City would have to grant a conditional use permit if the cell tower was
the least intrusive means of providing or filling that gap in coverage.
CA/DeBerry said that there is not much evidence in the record at this point
that would be in opposition to T -Mobile's contention that there is a
significant gap. If that is an area where the City Council would like further
exploration that can be done but at this point the weight of the evidence in
the record is that there is a significant gap in coverage.
C/Herrera said that Mr. Fineman indicated that the City must provide an
alternative location if the Council denies this location.
CA/DeBerry said that he believes that is a little bit of a different issue.
Maybe the City has to look back at its Zoning Code and determine
whether or not it should make other sites available if there is a finding that
there is a significant gap. But what the City is required to do is to provide
opportunities for cell site locations. So for instance, if this was in a
commercial zone and there was a gap in that commercial property but the
City Code allowed a cell tower to locate anywhere on all of those
commercial properties but the property owners just did not want a cell
tower that's not the City's fault because it has provided those
opportunities. In this case, there are other properties where the cell tower
could locate but those property owners do not want the cell tower either.
But it does not necessarily mandate then because property owners do not
want a cell tower on their property that the City then has to come up with
different opportunities. This is a bigger umbrella issue and maybe a little
bit outside what is before this City Council.
M/Tye opened the Public Hearing. He asked that speakers be brief and
concise in their comments and if they believe their comments have been
spoken by previous speakers they may feel free to withdraw their requests
to repeat comments. He asked the first speaker to come forward and the
next speaker to be ready.
JUNE 2, 2015 PAGE 27 CITY COUNCIL
Bernie Siu, 22319 Birdseye Drive, asked for show of hands from those
who oppose construction of the cell tower at Maple Hill Park. He said that
as residents of Diamond Bar, he and others sincerely urge the City
Council to support the Planning staff and Commissioner's
recommendation by denying T -Mobile's appeal of their Conditional Use
Permit No. PL2014-518. The Diamond Bar community would like to thank
the Planning Commissioners and staff for the openness in taking the
community's voice of concern into consideration and acting diligently
resulting in a denial recommendation to this ill-conceived cell tower
proposal and sincerely hope the City Council will do the same for the
community. Topic 1: He and his fellow presenters will present to the City
Council that the community has united in opposition to the proposed cell
tower at Maple Hill Park. Topic 2: They will show how incompatible this
cell tower will be amongst the surrounding landscape without the help of
computer graphics. Topic 3: They will show how intrusive this project will
be to the ongoing activities in the park from its inception. Topic 4: Parallel
to staffs recommendation he and his colleagues will make an additional
usage comparison between Maple Hill and neighboring parks. With the
proposed location of the tower there are serious safety concerns that were
not addressed by the applicant which he and his colleagues will address.
In Topic 7 they will address the alternative site analysis effort done by the
applicant. At the conclusion of this presentation they will provide closing
remarks on all of the facts presented this evening.
Nancy Kim, a Diamond Bar resident, said she would speak on Section 2,
Petitions against T -Mobile at Maple Hill Park. To show that the
community has come together on this matter the residents hereby submit
to the City Council 491 signatures to date urging the Diamond Bar City
Council not to approve T -Mobile's appeal for the cell tower at Maple Hill
Park.. These signatures are from Diamond Bar residents as well as,
parents of children who attend Maple Hill Elementary School and/or play
in various sports activities at the park. Out of the 491 signatures 405 are
from Diamond Bar while 86 are from neighboring communities such as
Phillips Ranch, Chino Hills, Rowland Heights, Chino, Walnut and Pomona.
The data shows a diversity of visitors that come and join in activities in the
park. We are urging the City Council to apply its utmost consideration to
their voices of concern when making this very important decision. All of
the 241 signatures are attached to the following 23 pages as attachment
2-1. The number One message along with signatures of Attachment 2-1
is to please support the residents of Diamond Bar by rejecting T -Mobile's
appeal to put a cell tower in Maple Hill Park. Maple Hill Park is a very
small and intimate residential park. Number two, this is a public park that
our tax dollars support and no one asked their permission. Number three,
the Monopine tree is 65 feet and is taller than the one at the Diamond Bar
Center which is about 45 feet and if the 65 foot Monopine is installed,
more antennas could be added to it to make it taller. Number 4, it would
be an eyesore to the community. Number five, a cell tower would infringe
JUNE 2, 2015 PAGE 28 CITY COUNCIL
upon the use of the park where dogs run around on the field, kids practice
their AYSO, people play tennis and basketball, birthday parties are held at
the picnic tables and where kids are always running around on the hills as
well. Number six, we need to protect our neighborhood from the interests
of private companies. Number seven, it is 300 feet from an elementary
school and is 78 feet from residences. She said she would not speak
about number seven. In conclusion, she sincerely asked that the City
Council please support the residents near Maple Hill Park and the parents
of the students who attend Maple Hill Elementary School and reject T -
Mobile's appeal.
Susann Siu, 22319 Birdseye Drive, said she would speak about the
incompatibility of the Monopine with the landscape of the park. In support
of the Planning Commission's Findings No. 3 the proposed Monopine will
not blend into the surroundings or be adequately screened because the
natural trees surrounding it are all the deciduous variety rather than pine
trees and they are not quite 65 feet tall to hide the proposed Monopine. In
addition, the Monopine will not be aesthetically pleasing in this park. To
verify the height of the proposed Monopine her group tied a couple of
helium balloons to a string totaling 65 feet and allowed them to rise on a
calm day shown in Figure 3.1. Note that it stands out amongst the
surrounding deciduous trees. Also note that the Diamond Bar Wireless
Communication Ordinance Section 22-42-103-G2C allows two additional
omni -directional whip antennas up to 15 feet in height or an additional dish
of 39 inches in diameter without the approval of the City Council. Figure
3.2 shows the height of the cell tower with an additional 15 feet to a total
of 80 feet. The whip antennas and 39 -inch diameter dish will be extremely
difficult to camouflage and they will stick out like a sore thumb. On
February 22, 2012 the Middle Class Tax Relief and Job Creation Act of
2012 became law. Briefly, the Tax Act provides that the state or local
government may not deny and shall approve the cell company to increase
the existing height of their antenna array an additional 20 feet. Therefore,
between the current Diamond Bar Wireless Telecommunication Ordinance
and the 2012 Tax Act, the proposed 65 foot cell tower has now grown to
100 feet and there is nothing the Council can do about it once this appeal
is approved. It is safe to say that #1 T -Mobile is aware of these codes but
chose not to discuss them in their application; #2, since this is a co -
location site T -Mobile will certainly exercise their accommodations for their
financial gain rather than filling their signal gap as her group will show later
in the presentation, and #3, this is a constant eyesore reminder to all
Diamond Bar residents who signed the petition on the decision made by
the City Council tonight.
Roger You said this project will interfere with the public's use of the
property as supported by the Planning Commission Finding #3 and #4.
Maple Hill Park is a small park but it has the highest use. There are three
tennis courts, playgrounds and basketball courts which are used daily.
JUNE 2, 2015 PAGE 29 CITY COUNCIL
The picnic table area is used for celebrations and birthday parties most
weekends and the park is used for exercise classes every morning. The
park also has soccer fields for soccer games, parties and tryouts all year.
The soccer field uses every foot of available space. City sponsored
activities include flag football, T -ball and volleyball. Other activities include
baseball, football, softball, etc. It is a truly popular and busy park. The
proposed cell tower is less than 10 feet from the tennis court in the picnic
table area so the tower and equipment room cannot be hidden out of
sight. Due to the heavy use of the park throughout the year residents are
also concerned about proposed construction of the cell tower and
equipment room. There is no way to avoid fencing around the
construction site due to its proximity to ongoing activities. The
construction will interrupt instruction classes.
Vinnie Carranza, 1463 Maple Hill Road, spoke on behalf of himself, Scott
Wolfe, homeowner and Blair Barnes about Ronald Reagan Park versus
Maple Hill Park. In support of the Planning Commission Finding #4 the
proposed cell tower will be too intrusive to the ongoing activities in the
park. Several years back a cell company proposed to Diamond Bar City
Council to place a cell phone tower at Ronald Reagan Park which was
ultimately denied based on the cell tower's intrusion to the activities and
the high level of participants in the park. The City Council further
suggested that Ronald Reagan Park should be removed from
consideration for any future cell tower sites. In comparison, both parks
have three tennis courts, a basketball court, kid's playgrounds and picnic
tables for parties. In contrast, Maple Hill Park hosts soccer games almost
year 'round as well as flag football, T -ball, baseball and softball whereby
many children play at the park after school. The most significant
difference between the two parks is that Ronald Reagan Park has six
developed acres while Maple Hill Park has only four developed acres.
Maple Hill has two-thirds the amount of space to accommodate many
more activities and participants. If the Diamond Bar City Council supports
its citizens' wishes at Ronald Reagan Park why would they not do the
same for Maple Hill Park? All the residents are asking for is that the same
standard be applied to Maple Hill Park.
Junko Takeya, Birdseye Drive very close to Maple Hill Park said she was
present to address the sixth issue which is safety concerns. In support of
the Planning Commission Finding #5 with respect to personal and
property safety, the community would like to point out the following crucial
oversight by the applicant. On 6.1 falling decorative fronds, it is obvious
that when T -Mobile selects their preferred site location their focus is on
hiding the towers instead of safety concerns. There have been incidents
where decorative fronds from the faux palm trees or needle branches from
the faux Monopines have fallen off during and or after high winds or minor
earthquakes. These decorative branches are made of metal and can
cause a lot of damage to property and or to people below. Referring to
JUNE 2, 2015 PAGE 30 CITY COUNCIL
Figure 6.1-1 she said that imagine a metal tree branch falling from as high
as a six to ten story building. Please note that the proposed cell tower is
located in the midst of picnic tables, the tennis courts and playground area
where children play right under the proposed site. Figure 6.1-2 shows the
picnic area being used by children and its relative location to the proposed
cell site. Cell tower related accidents are not rare and there have also
been incidents where ongoing maintenance/welding have caused fire and
with the dry brush on the hillside so close a fire could quickly spread to
surrounding homes and across the street to the school causing
evacuations, loss of property and life. There are page links to articles on
this issue. On issue 6.2 proposed cell tower within 25 feet from a
landslide zone — according to the seismic hazard/landslide zone map
published by California Watch Organization, the southern end of Maple
Hill Park is located next to a landslide zone less than 25 feet from the
proposed T -Mobile cell site. Figure 6.2-1 — in fact, a partial landslide
behind the playground can be seen. The City Council should consider
whether the standard footing as proposed to put a 65 to 100 foot
Monopine at the base of a landslide zone within a public park and in close
proximity to an elementary school presents a safety hazard. As presented
earlier, this is not the least intrusive site in Diamond Bar and this
presentation informs the City Council on the public record that the
proposed placement of the cell tower in close proximity to a landslide zone
is not a safe location and may jeopardize public safety which is why it is of
the utmost importance for T -Mobile to perform an alternative site analysis
to address their coverage gaps, co -location opportunities and safety
concerns, preferably one that is not in a landslide zone or one that half of
the antennas eclipsed by the hillside. Regarding T -Mobiles assertion that
the tree is hidden amongst all of the other trees she does not enjoy parks
from 300 feet away and when she is in the picnic area where this cell
tower is proposed she will absolutely be able to see the base of this tree
and the building which they propose to tuck away behind the tennis courts
which is not an inaccessible part of the park. In addition, the water tower
option T -Mobile says does not work for them, the coverage area is only
about '/Z to less than a mile away. Based on the elevation of the water
tower she does not understand why it would not work for the specific area
proposed. If''Y2 mile is too far or a mile is too far it means T -Mobile would
need to place cell towers every mile to cover the area they wish to cover.
She is also disturbed by the fact that the question to what is the alternative
if the park did not exist has not yet been answered. Two of the houses on
Gide Court that overlook the park look directly at the antenna from their
back yards. With respect to the gap issues, how T -Mobile determined
there is a gap issue if they cannot record complaints is a question they
have not answered.
Angela Cinader, parent of WVUSD student, said that T -Mobile's lawyer is
correct in that Section 3.32 of the Telecommunications Act does say that
the City must grant access if there is a "significant" gap. So that becomes
JUNE 2, 2015 PAGE 31 CITY COUNCIL
the critical question: Do we actually have a significant gap? We do not
believe so and here is why. Section 7 of the handout states that T -
Mobile's Conditional Use Permit application states that there is a coverage
gap which generally extends within the surrounding residential
neighborhood of the Park between Birdseye Drive to the north and
Diamond Bar Boulevard to the south. Service to T -Mobile customers is
affected by this coverage gap which is why T -Mobile is proposing to install
a cell site within this area. She showed the map provided with the T -
Mobile application with the gap areas colored gray. She said that there is
a much bigger real gap in white which lies within The Country on the east
side of Diamond Bar Boulevard. She referred the Council to T -Mobile's
coverage map (Figure 7.3). T -Mobile has made significant statements
and claims on their website and claim they can show the actual cell
coverage quality from actual T -Mobile customers. On the map the Maple
Hill area is shown covered in Magenta which means there is no gap
according to what they are telling their customers. The white area in The
Country shows an actual gap. The coverage map shows that T -Mobile
has 4GLTE coverage which is a contradiction from what T -Mobile claims
in their CUP (application). The only area showing weak signal strength is
in The Country which is 1.5 miles away from their proposed location.
There is a water tower in the white area which is on the list of Diamond
Bar's approved sites should T -Mobile wish to consider it as an alternative
site. When Figure 7.2 and 7.3 are superimposed there is indoor coverage
in the middle of the grey patch. In short, pink is what they are telling their
customers and green and yellow is what the application indicates. Figure
7.4 is a detailed description of T -Mobile's signal coverage between 1301
to 1389 Maple Hill Road and it states that this area has connectivity inside
most homes for voice and top data speeds. AT&T's official coverage map
(Figure 7.5) shows full 4GLTE coverage over the entire Maple Hill
Diamond Bar area. This coverage was confirmed by various AT&T
customers in the March meeting which was confirmed by many speakers
who attended the Planning Commission's Public Hearing. The reason she
brings this up is that AT&T and T -Mobile are supposed to be different.
Figure 7.6 shows AT&T sites which are in red along with the T -Mobile
sites. The stars and numbers are all T -Mobile sites and there are red
AT&T sites in nearly the same locations. This is the spreadsheet that
shows locations not currently in the City and given that the surrounding
area around the blue dot which is where T -Mobile wants to put the new
cell tower and AT&T has all of the exact same locations and given the fact
that AT&T and T -Mobile both use GSM technology their coverage should
be comparable. She believes that if one company has a gap the other
company should have a gap and if the other company has great coverage
both companies should have great coverage. In her mind the coverage
should be comparable. The burden of proof that a significant gap actually
exists is actually on the carrier and that the burden of proof in this instance
has not been met. T -Mobile is presenting official coverage maps to the
public while presenting contradictory coverage map to the City Council. T-
JUNE 2, 2015 PAGE 32 CITY COUNCIL
Mobile also did not provide an explanation why there is disparity in the
coverage claims between their pink map and green maps.
Robert Coventry, 22241 Croll Court, has lived right above Maple Hill Park
for 16 years. The alternative site planning as stated in the Conditional
Use Permit such as mounting antennas to a building utility pole are not
viable in that no existing building or support structure can reasonably
accommodate the proposed telecommunications antenna facility due to
the lack of height required to provide adequate wireless coverage in the
neighborhood. No alternative site analysis was submitted with the
Conditional Use Permit. Upon review of the Conditional Use Permit its
stated coverage objective is actually at the intersection of Cedardale Drive
and Tolani Court. Geographically, the stated intersection is actually on the
opposite side of the hill as shown in Figure 8.2. Maple Hill Park is a poor
location because there is a high ridgeline between Maple Hill Park and the
intersection of Cedardale Drive and Tolani Court which is approximately
6/10ths of a mile away. There is no line of site between the two locations
and the hill will block the transmission toward their stated coverage
objective which would be an ineffective use of the proposed tower and
why it is of the utmost importance for T -Mobile to perform an alternative
site analysis to accommodate their coverage gap. An obvious location
would certainly be to attach cell panels onto the water reservoir toward the
end of Eldertree Lane which directly overlooks without obstruction the
Cedardale intersection and is away from schools, parks and residential
areas. In addition, the water tower location is identified as a potential site
in the City of Diamond Bar's Telecommunications Facilities and
Opportunities Map (Figure 8.3). During the Planning Commission Hearing
of this Conditional Use Permit commissioners expressed concerns that
there was no evidence before the Commission that alternative sites were
investigated and considered. In the appeal document T -Mobile has not
come forward with an in depth alternative site analysis or recommendation
to satisfy the commissioners' concerns. A few sentences stating that the
water reservoir is too far to the west are bogus and inconsistent with their
own stated objective. A sample of an appropriate alternative site plan
analysis by T -Mobile for the City of Pasadena is attached containing
multiple pages and multiple facts on why the location was not feasible with
photos of each proposed site and their locations compared to their original
site consistent with the rationale for the preferred sites pictures of
alternative sites and anticipated coverage for each site. He does not
understand why the residents and City Council of Diamond Bar were not
afforded the same site analysis and the same in depth research. T -Mobile
representatives did not even attempt to perform the same as they did in
the City of Pasadena. One can only draw the conclusion that T -Mobile's
intention is not clearly proposed with applications poorly prepared and
discrepancies and contradictions. There was no genuine attempt to
address the Planning Commission's and staff's concerns in their appeal.
We are at your City Council meeting to support the Planning Commission
JUNE 2, 2015 PAGE 33 CITY COUNCIL
and staff to reject T -Mobile's appeal.
Denis Paul has lived with his wife Sally at 1429 Blenbury Drive since
1979. He said that what everyone has witnessed tonight by Mr. Fineman
and his colleagues is an outstanding legal defense. It is so outstanding it
has a name and that name is the "last resort" defense. This defense
states that if you have the facts, pound them with the facts. If you have
the law, pound them with the law. If you do not have the facts and you do
not have the law, just pound the table. He is intrigued and feels sorry for
the City staff members who work diligently as civil servants who had to
take what was described as a "collaborative" association and be
besmirched tonight and unjustly accused. They are the providers of
information and assistance, they are not the deciders. No one expects
them to make a decision. We have heard that ten different ways. He has
the utmost respect for the Planning Commission because of their open-
mindedness and diligent questions which was also accused unjustly of
saying somehow of unjustly being influenced by the mere comments
regarding health residents made at the meeting. Nowhere in the report or
denial did that matter appear. The City is not immune to these attacks
either. T -Mobile accused the City of not having enough viable sites, they
spoke about the Municipal Code, the federal law in an attempt to throw out
something that might stick. He asked the City Council not to be fooled. T -
Mobile made a mistake by underestimating the political will of an informed
neighborhood. Over the past three months this neighborhood has come
together and united in one sole purpose with some impressive
presentations. He thanked T -Mobile for bringing his neighbors together.
There is no way a 65 foot elephant can be disguised or up to 100 feet. It
will interfere with the public use of one of the smallest parks in the City.
The Reagan Park comparison seems obvious to him. M/Tye was quoted
in that response but M/Tye's job is not to represent the cell phone
companies which he has done. Proximity, safety, landslides are all
concerns that have not been explored. C/Lin asked why now is T -Mobile
suddenly concerned with a coverage gap after all of these years? He had
the same question. In their first application T -Mobile said they had 25
complaints which was debunked and now it is down to 10 complaints and
"we don't know." Diamond Bar deserves at least what Pasadena has
deserved. He is not opposed to cell phones and cell phone towers.
Sometimes they are great revenue -generating devices for a City and/or for
private enterprise. Some locations are good for cell phone towers where
they do not interfere with public use but this is not the time and this is not
the place. Deny this appeal. Don't just say "no" say "cell no."
Joe Ruzicka, 22311 Birdseye Drive said he was going to take M/Tye's
advice and not testify in this particular case because his concerns have
been so adequately addressed by most of tonight's speakers. The subject
this evening are cell phones which are a very unique innovation today
serving many useful purposes as brought out by several speakers and by
JUNE 2, 2015 PAGE 34 CITY COUNCIL
the applicant. However, this technology currently requires the use of
transmission towers to send signals that cell phones can receive. He
congratulated the City Council for having approved several of these sites
throughout the City in appropriate areas and the key here is "appropriate"
areas. The site designated for this particular site at Maple Hill Park is not
an appropriate area as justified in staffs report and by the testimony of
several witnesses this evening and accordingly, he believed the appeal
should be denied.
Teruni Evans, 516 EI Encino Drive, said that if T -Mobile is making the
argument that this cell tower is needed for an E-911 they are incorrect. All
wireless companies consistently state that E-911 calls are justification for
granting a cell antenna placement claiming public safety endangerment.
This argument is specious because FCC ruling requires any carrier to
connect an E-911 call from any cell phone even an unsubscribed cell
phone. Verizon, AT&T, T -Mobile, Sprint, Metro -PC all operate in the City
of Diamond Bar and any of those carriers or any of the many other
wireless carriers operating in the City should connect a subscribed or non -
subscribed wireless call to E-911 so there is not always a need for a new
cell antenna to be built in order to be able to connect to E-911. When an
individual calls 911 from a landline a dispatcher will know the exact
address and phone number. When an individual calls outdoor from a
wireless phone the 911 dispatcher will have only an estimate of the
location. For those calling with a cell phone from inside a building often
times the only information provided on their location is the coordinates of
the nearest wireless cell tower. Now that the truth is known about E-911
everyone can stop talking about this as a "safety" issue and this matter
needs to be taken off of the table for consideration of a T -Mobile cell
tower.
Valerie Geddes Kernohan said that on March 24, 2015 Los Angeles
County Board of Supervisors stopped the construction of cell towers at fire
stations. Logic follows and the right thing to do is to also stop the
construction of cell towers especially where children play, go to school and
live.
Alan Greenblat said he and his family have lived at 1411 Maple Hill Road
for about 30 years. He kept hearing "significant' gap and at one point it
was "very significant' gap and did not hear a percentage. What is the
definition of a significant gap which T -Mobile is trying to lay at the feet of
the federal government and to him, four percent does not constitute
"significant."
Steven Hernandez said he has been a resident of Diamond Bar for 22
years and is a retired truck driver. In retirement he has been doing temp
work and has worked for a cell phone contractor driving their two or three
ton booms. He drives to a cell tower location and drives the big 30 foot
JUNE 2, 2015 PAGE 35 CITY COUNCIL
trucks into the areas to work on the cell towers on a frequent basis.
Usually, the truck has to get close enough to the tower so that the boom
does not tip over. What he sees in the photographs is at the Maple Hill
Park location the only way to get close enough to the proposed tower
would be to drive onto the courts and said he hoped the City Council
would think about that during their deliberation.
Sheana Heng said the City Council has been threatened with a lawsuit if
the City does not do what T -Mobile wants and she asked the City Council
to beware of such tactics. This is our community and the City Council's
decision will affect the livelihood of residents for the next 25 years. It is
very important to her and her fellow residents who live near this proposed
cell tower that the City Council make the right decision. T -Mobile and
telecom companies often come into a community and demand to put in a
giant structure that is six or seven times the height of homes in the area.
Aesthetically, it does not fit in the community. The federal government
gives local leaders all of the power. The first thing the FCC did was to
preserve local zoning authority. Section 704(a) for the 1996 Telecom Act
states Item 7 is preservation of local zoning authority a) except as
provided in this paragraph, nothing in this act shall limit or affect the
authority of a state or local government or instrument thereof over
decisions regarding the placement, construction and modification of
personal service facilities. This means cities decide where and how high
cell towers should be and how they should appear. Use your power to
help the residents. The biggest problem is that the City Council may
believe it is approving a 65 foot structure but what they do not say is that
right after it is approved they can make it 25 feet taller in any direction and
using any color without additional approval. In 2014 the Middle Class Tax
Relief and Job Creation Act of 2012 became law. Section 604(a) of the
Tax Act provides that a state or local government may not deny and shall
approve any request for co -location, removal or replacement of
transmission equipment on an existing wireless tower or base station.
Significant gap means no reception dead spots. If residents have this
problem they have no choice but to grant the approval. However, T -
Mobile has not proven there is a significant gap and since there is no
significant gap issue they claim the need for more capacity. Significant
gap and capacity is not the same thing. If T -Mobile has a significant gap,
by law the City has to grant the fix; however, if they have a capacity issue
the City does not need to grant the approval. Capacity allows the ability
for T -Mobile to have more cell phone numbers to sell. Their own website
states they do not have any dead spots. Tonight, one of the staff
members already proved that T -Mobile does not have a significant gap.
The City can withdraw renting parkland to place a cell tower. Once the
City withdraws renting the residents will not have this cell tower. In fact,
the City does not have to rent the space. No rent equals no cell tower. If
the City does not lease the land to T -Mobile this problem will go away and
she will guarantee that there will not be a future lawsuit by T -Mobile. T-
JUNE 2, 2015 PAGE 36 CITY COUNCIL
Mobile cannot sue the City if the City does not want to lease them the land
to house this tree which clearly residents do not want. Please listen to the
residents and the community's wish to not lease the land to T -Mobile.
Mrs. Hagit Kupferman said that the tower does not belong in a residential
area because it is ugly and out -of -character to the neighborhood. In
previous meetings people who live around the park and have T -Mobile
stated that they have good reception. She personally knows that when
friends who have T -Mobile visit her home they do not complain that they
have no reception. She has AT&T and in parts of Diamond Bar she has
reception and in other parts there is no reception. The gap is a big
question. Her husband says that from an engineering aspect the question
of reception does not make sense at this location since the tower will blast
a large portion of its energy into the hill so it will be a very poor design. T -
Mobile stated they have complaints from people who pass through the
area and if this is approved there will be a direct impact to the value of the
homes and the neighborhoods and especially those who paid extra for
their property. T -Mobile International is a holding company for various
mobile communication subsidiaries outside of Germany and they are not a
US Company. They are attempting to put a big tree in our backyard and
she hopes the City Council will not approve it and will have all of the
answers to the gap and why this tower needs to be in a park that is used
on a daily basis by a lot of kids and a lot of families if the Council is
thinking about supporting this. She has been a resident of Diamond Bar
for 40 years and would not like to see this cell tower approved. She raised
her three children who visited the park on a daily basis. She has five
grandkids that do not live in Diamond Bar but when they visit her they
enjoy the park and hopes they can continue to do so.
Abigail Tata said she was concerned about kids who play at the park and
students who visit the park who love to climb trees. There will be nothing
to prohibit the kids from trying to climb the Monopine. T -Mobile was
present when this concern was stated during the Planning Commission
public hearing and they have not responded to how they might be willing
to address this safety issue. Another safety concern that was stated
during the meeting was how the workers would be protected when they
visit the site to maintain the tower. These are issues that were not
addressed tonight and she is very opposed to this project and her
daughter would say the same.
Frances Wall said she has been a resident of Diamond Bar for 35 years
and she loves her community and is very, very opposed to this tower
being put in which she believes is a bad idea. She did not like much of
what T -Mobile had to say tonight.
M/Tye closed the Public Hearing.
JUNE 2, 2015 PAGE 37 CITY COUNCIL
CA/DeBerry suggested that M/Tye leave the Public Hearing open if there
are questions for the applicant or wish to have the applicant respond
within a limited timeframe.
M/Tye reopened the Public Hearing for City Council questions.
M/Tye said he was not looking to turning this into a debate and having
over an hour's worth of comments from residents rebutted. M/Tye said he
believed the applicant was given a fair amount of time to make their
presentation.
CA/DeBerry said that was the discretion of the Mayor and City Council.
M/Tye again asked if the City Council Members had any more questions
for the applicant.
C/Lin asked the definition of "significant gap".
Mr. Fineman responded that the definition is whether the facility would fill
an existing significant gap in the ability of remote users to access the
national telephone networks. He said he knows that it is a definition that is
kind of circular because it uses its own term within the definition. Some of
the factors as to whether or not there is a significant gap are called failure
rates and the number of people that are impacted by the alleged gap.
M/Tye closed the Public Hearing.
C/Lin commended M/Tye on his handling of tonight's meeting. His record
for a Public Hearing is 4:00 a.m. and this meeting has not yet gone to
10:00 p.m. A lot of Public Hearings on zoning or Conditional Use Permit
issues typically center on NIMBY sentiment; however, tonight he senses
that is not the case. Three issues have been raised in his mind about this
application have to do with what the federal law permits or prohibits cities
to do with respect to 1) aesthetics and property value. From the Planning
Commission meeting minutes that has never been an issue for
consideration of denial. 2) The concern over radio frequencies and as the
City Council knows, that was not an issue. 3) The third issue was no
discrimination of any carrier so based on CA/DeBerry's comment
apparently there had never been an application from any other carrier to
erect a tower on this site and at the present time there is no other carrier
that has a facility on this site so that clarifies his doubt on that issue. In his
mind this issue centers on very simple debate: What is the right of the
property owner? If the school district denied a request to have a tower
erected within their property they certainly exercised their right as a
property owner. The City of Diamond Bar, as the owner of this park would
certainly have the prerogative in exercising their right as a property owner
in this instance. He was glad that CA/DeBerry reminded the City Council
JUNE 2, 2015 PAGE 38 CITY COUNCIL
that this park was acquired from the County of Los Angeles via a Quit
Claim Deed process and was specifically stated to be used for park
purposes. So anything other than park purpose would not be in line with
the deed restriction. As a property owner he does not believe the site
(Maple Hill Park) should be used for any other purpose than for
recreational and park usage and that the Council's decision should be
based on this fact.
MPT/Lyons said that Maple Hill Park is a small park and it is very highly
used. She visited the site this morning to see what was taking place and
found three groups of people using the park, people playing tennis on the
tennis courts, people walking around the park for what she assumed was
exercise and there were families using the swing sets and playground
equipment. This was on a weekday morning, not a weekend and not after
school and work time and it was being highly used. Diamond Bar is very
short of park space which is a well known fact throughout the community.
She thinks the primary purpose of Maple Hill Park is to be a park and
taking up space for cell phone tower trees or structure for the equipment
reduces the usable park space which is similar to what C/Lin said.
C/Herrera said the Council has heard a lot of testimony and reviewed a lot
of information. She has read every single page of the 320 page report
City staff prepared and listened to all of the comments. She believed it
comes down to the fact that the City is the property owner of Maple Hill
Park which was originally intended to be used as a park. T -Mobile does
not have the City's consent at this time to locate a cell site at Maple Hill
Park.
C/Tanaka said he too read all of the written testimony presented to the
City Council Members and he has written communication from residents
and has heard the oral reports this evening. Having reviewed all of the
information and knowing what a great little park Maple Hill Park is for the
residents and having personally used the park many times he would like to
see the area preserved as a neighborhood park for that specific use only.
He also listened to and has considered all of the testimony presented by
T -Mobile and is ready to make his decision.
M/Tye asked CSD/Rose to reiterate the City's current park space and how
much park space the City should have so that the Council can understand
whether there is a surplus or deficit of park space.
CSD/Rose responded that the standard the City has used over the years
is two -acres of developed parkland per 1000 residents. The City has
approximately 55,000 plus residents so two -acres per 1000 would be
about 110 acres of developed parkland and the City has just over 68 acres
of developed parkland in Diamond Bar.
JUNE 2, 2015 PAGE 39 CITY COUNCIL
M/Tye said he took exception to some of the things in the letter dated
June 1 that was provided by the applicant that "this is the ideal design to
meet the need" followed by the sentence that "T -Mobile is entitled as a
matter of Federal Law to approval of this application" which he would say
is yet to be determined. He does not believe it is the only available option
and he agrees with the sentence "The City Council has the final authority
to determine whether a Conditional Use Permit and a lease should be
issued for the proposed wireless telecommunications facility." It was 26
years ago in April that Diamond Bar became a City and if one has been
here long enough everyone remembers why Diamond Bar became a City.
Residents were tired of the County carving up what space there was
available to develop. Residents wanted to have a say in how their
community looked and for 26 years that has been done and he believes
the City should keep doing that. Having said that he will agree with
MPT/Lyons that the primary purpose for Maple Hill Park is a public park
and he believes that it is within the City Council's discretion that it is not
necessary for a problem that has not been described that the City needs
to fix by putting up a cell tower and he did not think it was incumbent upon
this Council to give up park space when there is such a deficit in this
particular instance to a commercial venture that in his opinion is not
appropriate.
CA/DeBerry said that because there was additional evidence presented
and the comments from the City Council are not completely in line with the
Planning Commission, if it is the will of the City Council to deny the appeal
he would ask that the City Council direct staff to prepare a Resolution
consistent with the City Council's Findings and bring it back to the next
regular meeting.
C/Herrera moved, C/Tanaka seconded to direct staff to bring back a
Resolution consistent with the City Council's Findings for the next regular
meeting denying the Appeal. Motion carried by the following Roll Call
vote:
AYES: COUNCIL MEMBERS: Herrera, Lin, Tanaka,
MPT/Lyons, M/Tye
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
8. COUNCIL CONSIDERATION (Continued):
8.2 APPROVE ADJUSTMENT OF CITY COUNCIL APPOINTMENTS
M/Tye asked for approval for the adjustment of City Council appointments
and thanked everyone for their input on giving up assignments in order to
have C/Lin represent the Council on different committees as follows:
JUNE 2, 2015 PAGE 40 CITY COUNCIL
C/Lin Delegate - Contract Cities Association
C/Lin Alternate — Joint Powers Insurance Authority
C/Lin Alternate — League of California Cities LA County Division
C/Lin Delegate — Southern California Association of Governments
C/Lin Alternate — Wildlife Corridor Conservation Authority (WCCA)
C/Herrera moved approval of the aforementioned City Council
appointment. MPT/Lyons seconded the motion. Motion carried by the
following Roll Call vote:
AYES: COUNCIL MEMBERS: Herrera, Lin, Tanaka,
MPT/Lyons, M/Tye
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
9. COUNCIL SUBCOMMITTEE REPORTS AND MEETING ATTENDANCE
REPORTS/COUNCIL MEMBER COMMENTS:
C/Herrera reported she attended a Foothill Transit meeting and announced that
the budget was approved and that within the budget is a Transit Center Plan for
the Mt. SAC Campus which when built will provide several additional bus lines
and services for students attending Mt. SAC. The Class Pass program at Mt.
SAC has been tremendously successful. She attended the San Gabriel Valley
COG Board meeting. Elections were held and she announced the following
results: President is Gene Murabito from Glendora; 1st VP Tim Spohn, City of
Industry; 2nd VP Kevin Stapleton, Covina; 3rd VP Cynthia Sternquist, Temple
City. She is grateful that the members of the LA County Fire Rescue Team has
returned safely from Nepal and that they were there to provide much needed aid
and rescue efforts.
C/Tanaka thanked Troop 730 for Presentation of the Colors this evening and
residents who voiced their opinions regarding the cell phone tower issue. He
thanked staff for presenting such a thorough report that made the decision much
easier this evening. On May 20 he attended the WVWD barbecue celebrating
Water Awareness Month where there was a display of art by local students who
participated in an art contest. On May 24 he attended Diamond Ranch High
School's instrumental music department's presentation of "An Evening of Dance"
at the historic Fox Theater in Pomona. On May 26 DB4-Youth held their regular
monthly meeting to recap their 6th 7th and 8th grade dance, sign up for 4th of July
Blast and Relay for Life. That Wednesday he attended Quail Summit Elementary
School's art ceremony and addressed the promoting 5th graders about gratitude.
That evening he attended a Neighborhood Watch Meeting as he did last evening.
The first was on Thunder Trail near Marc Ct and the second on Castle Rock
Road across the street from the school. He reminded everyone that on
Saturday, June 6 is the 10th annual Diamond Bar Relay for Life at Lorbeer Middle
School track. Opening ceremonies begin at 3:00 p.m. and ended at 9:00 p.m.
JUNE 2, 2015 PAGE 41 CITY COUNCIL
C/Lin said he had nothing interesting to report but wanted to thank staff for a very
good report providing good information to help the City Council make an
informed decision which he believes is a fair decision.
MPT/Lyons said that earlier tonight she and M/Tye met with Captain Scroggins
and his team to talk about public safety in Diamond Bar. Diamond Bar is blessed
to have such a good public safety team and good stats. Crime is very low. She
congratulated Diamond Bar High School musical director Steve Acciani (Mr. A)
who was honored last week by the Recording Academy and Grammy Foundation
as a 2015 Music Educator Finalist. There were 7000 music teachers nominated
for the award with 10 finalists. It is great to see the community involvement from
residents when they get behind an issue and research it and come forward with
their passion about the issue. He thought it was interesting that Denis Paul said
it had given him an opportunity to really meet a lot of his neighbors and get to
know them which will also help with a Neighborhood Watch idea, the birthing
houses, etc. It is Council's privilege to have residents exercise their right of free
speech during public comments and public hearings.
M/Tye asked everyone to call City Hall, the Sheriff or Homeland Security at 1-
866-347-2423 if they see something that does not seem right. He said he looked
forward to seeing the Homeland Security number on the City's website. Earlier
today he attended Lorbeer Middle School's graduation/promotion. Principal
Krystana Walks -Harper has a great deal to be proud of with over 300 kids that
were promoted. It was fun to be there and remember what it was like when he
was in the eighth grade back in the last century.
ADJOURNMENT: With no further business to conduct, M/Tye adjourned the
City Council Meeting at 10:06 p.m.
TOMMYE QRIBBTNS, CITY CLERK
The foregoing minutes are hereby approved this 16thday of June 2015.
STEV TYE, MAYO -R-