DATE: January 23, 2024
TO: Board of Supervisors
SUBMITTED BY: Steven E. White, Director
Department of Public Works and Planning
SUBJECT: Appeal Planning Commission’s denial of Unclassified Conditional Use Permit No. 3770 and Initial Study No. 8431 (Applicant/Appellant: Leesa Gendel, SAC Wireless)
RECOMMENDED ACTION(S):
TITLE
1. Consider Appeal of Planning Commission’s denial of Unclassified Conditional Use Permit No. 3770 proposing to allow an unmanned freestanding 100-foot-tall monopole co-locatable wireless telecommunications facility on a 3.8-acre parcel within the AE-5 (Exclusive Agricultural, five-acre minimum parcel size) Zone District.
2. If the Appeal is granted and the Planning Commission’s denial of Unclassified Conditional Use Permit No. 3770 is overturned:
a. Adopt the Mitigated Negative Declaration prepared for Initial Study No. 8431 and approve the proposal subject to the proposed Mitigation Measures and Conditions of Approval; and
b. Make the required Findings specified in Fresno County Zoning Ordinance, Section 873(f) for approval of Unclassified Conditional Use Permit No. 3770; and
c. Adopt Resolution approving Unclassified Conditional Use Permit No. 3770, with Conditions of Approval and Project Notes.
The subject parcel is located on the northwest corner of Boren Lane and Elwood Rd., approximately 1.70 miles north of Squaw Valley (APN: 160-420-08s) (1830 Elwood Rd.) (Sup. Dist. 5).
REPORT
This item comes before your Board on appeal of the Planning Commission’s denial of the subject application (4 to 3, two Commissioners absent) at its October 12, 2023 hearing. Staff notes that the Zoning Ordinance requires your Board determine, independent from the Planning Commission, whether the Unclassified Conditional Use Permit Application (CUP) should be approved, approved with stated conditions, or disapproved. A copy of the Planning Commission’s action is included in Attachment A. The Planning Commission Staff Report is included as Attachment B. This item pertains to a location in District 5.
ALTERNATIVE ACTION(S):
If your Board is unable to make the required findings for granting CUP No. 3770 and uphold the Planning Commission’s denial, it would be appropriate to make a motion to deny the appeal, citing in its motion how the required findings cannot be made, and deny CUP No. 3770.
FISCAL IMPACT:
There is no Net County Cost associated with the recommended action. Pursuant to the County’s Master Schedule of Fees, the Applicant/Owner/Appellant has paid $15,070 in land use processing fees to the County for the processing of subject land use applications and $508 to appeal the Commission’s decision.
DISCUSSION:
At the October 12, 2023 Planning Commission hearing, the Applicant’s representative provided testimony in support of the project stating the need to provide enhanced telecommunications services to the surrounding area. Three members of the public provided testimony in opposition of the application due to health and safety concerns and stated that the tower height and location will not sufficiently serve the population.
Pursuant to Zoning Ordinance Section 837(F), to approve a CUP, the following Findings must be made:
1. That the site of the proposed use is adequate in size and shape to accommodate said use and all yards, spaces, walls and fences, parking, loading, landscaping, and other features required by this Division, to adjust said use with land and uses in the neighborhood.
2. That the site for the proposed use relates to streets and highways adequate in width and pavement type to carry the quantity and kind of traffic generated by the proposed use.
3. That the proposed use will have no adverse effect on abutting property and surrounding neighborhood or the permitted use thereof.
4. That the proposed development is consistent with the General Plan.
5. That the conditions stated in the resolution are deemed necessary to protect the public health, safety, and general welfare.
After receiving staff’s presentation and considering public testimony in support of and opposition to the subject application, the Planning Commission made a motion to approve, but the approval motion did not pass based on a vote of 3 to 4. A subsequent alternative motion to deny the project was made on a vote of 4 to 3 based on it not being appropriate for the neighborhood. On October 27, 2023 an appeal was filed by the Applicant of the Planning Commission’s denial. The appeal stated the CUP complies with the Planning Code and is does not pose health or safety issues to the community. A copy of the appeal is included as Attachment C.
If your Board is able to make the required Findings for granting CUP No. 3770, it would be appropriate to make a motion to adopt the proposed resolution on file with the Clerk which adopts Mitigated Negative Declaration (Attachment D) prepared for the project based on Initial Study No. 8431, and uphold the appeal, stating the basis for making the required Findings and approving CUP No. 3770 subject to the mitigation measures, conditions of approval, and project notes, included as Attachment D.
Staff recommends that if your Board approves the request, the following indemnification condition also be included in your motion:
The Applicant shall enter into an agreement indemnifying the County for all legal costs associated with its approval of IS No. 8431 and CUP No. 3770 and provide security in an amount determined by the County for any such legal costs incurred. The agreement and payment of security shall be due unless the litigation period has expired, in which case the requirements for the indemnification agreement and security shall be considered null and void.
If your Board is unable to make the required Findings for granting approval of CUP No. 3770, it would be appropriate to make a motion stating the reasons the Findings cannot be made and deny the appeal, thereby upholding the Commission’s decision and denying the Conditional Use Permit.
ATTACHMENTS INCLUDED AND/OR ON FILE:
Attachments A - E
On file with Clerk - Resolution
Additional Information
CAO ANALYST:
Salvador Espino