Hearings Official Public Hearings

AGENDA Meeting Location: Phone: 541-682-5377 Harris Hall – Lane County Public Service Building www.eugene-or.gov/hearingsofficial 125 East 8th Avenue The Eugene Hearings Official welcomes your interest in these agenda items. Feel free to come and go as you please at any of the meetings. This meeting location is wheelchair-accessible. For the hearing impaired, FM assistive-listening devices are available or an interpreter can be provided with 48 hours notice. To arrange for these services, contact the Planning Division at (541)682-5481. WEDNESDAY, JULY 16, 2014 (5:00 p.m.) I. PUBLIC HEARING ON THREE APPEALS FILED AGAINST THE PLANNING DIRECTOR’S CONDITIONAL APPROVAL FOR AT& T WIRELESS AT REST HAVEN CEMETERY (SR 13-5) Assessors Map: 18-03-18-00 Tax Lot: 300 Decision: Site Review approval with conditions for a 120-foot "mono-pine" cell tower with an associated variance to allow above-ground ancillary facilities. Appellants: 1. Charles Wiper III, represented by Aaron Notebloom, Arnold Gallagher 2. Walter and Nancy Meyer 3. John Koenig and Deborah Toobert Lead City Staff: Becky Taylor, Associate Planner Telephone: (541) 682-5437 E-mail: becky.g.taylor@ci.eugene.or.us Public Hearing Format: 1. Staff introduction/presentation 2. Public testimony from applicant and others in support of application. 3. Comments or questions from interested persons who neither are proponents nor opponents of the proposal. 4. Testimony from appellants and others in opposition to application. 5. Staff response to testimony. 6. Questions from Hearings Official. 7. Rebuttal testimony from applicant. 8. Closing of public hearing. The Hearings Official will not make a decision at this hearing. The Eugene Code requires that a written decision must be made within 15 days of close of the public comment period. To be notified of the Hearings Official’s decision, fill out a request form at the public hearing or contact the lead City staff as noted above. The decision will also be posted at www.eugene-or.us/hearingsofficial.  AGENDA ITEM SUMMARY July 16, 2014 To: Fred Wilson, Eugene Hearings Official From: Becky Taylor, Associate Planner, Eugene Planning Division Subject: Appeal of Planning Director’s Decision: AT&T at Rest Haven Cemetery (SR 13-5) BACKGROUND INFORMATION On June 10, 2014, the Planning Director granted Site Review approval with nine conditions for the installation of a new telecommunications tower, designed to look like a fir tree (a “mono-pine”), with a variance to allow the associated ancillary equipment to be above ground, on the northwest portion of an existing 70-acre cemetery, known as Rest Haven Memorial Park. The area of request (the lease area to AT&T) is approximately 1,500 square feet (30 feet by 50 feet) of the existing 6,000 square foot soil retention area for the cemetery. The northern portion of the property, involved in this request, is zoned PL, Public Land. Telecommunication facilities require Site Review approval in the PL zone, per Eugene Code (EC) 9.5750(5). The Telecommunication Standards at EC 9.5750 apply to the subject request, in addition to the Site Review requirements at EC 9.8440. The City’s Telecommunication Standards are consistent with the Federal Telecommunications Act of 1996. The Act prohibits cities and states from discriminating among telecommunications providers and from erecting barriers to a provider’s entry into a local market. The Planning Director’s written decision granting Site Review approval is attached for reference, as it provides background information and findings regarding compliance with the applicable approval criteria (see Attachment A). Prior to the Planning Director’s decision being issued on June 10, 2014, two public comment periods were held, on February 24, 2014 and May 5, 2014. During the initial public comment period, numerous letters and emails in opposition to the proposed telecommunications tower were submitted. Staff determined that there was not sufficient evidence from the applicant to adequately address the neighborhood concerns; consequently, the applicant filed an extension to prepare responsive information. The second public comment period was provided for review and comment on the applicant’s supplemental application materials. During the second public comment period, staff also visited the site with the property owner. The key issue under review during this second public comment period was related to compatibility. Specifically, visual and noise impacts associated with the proposed tower and ancillary equipment. Based on comments from the neighbors, the applicant revised the design of the proposed facility so that it would blend in with the surrounding trees. The basis for determining compatibility was that the Page 1 HO Agenda - Page 1 tower was being designed to look like a tree within a stand of trees. To address that basic principle, the Planning Director’s decision imposed conditions to ensure that the mono-pine design would blend in with the surrounding trees (Condition of Approval #3) and would ensure that the surrounding trees remain as screening (i.e. Condition of Approval #1). The Planning Director’s decision established additional conditions to minimize off-site impacts (e.g. Conditions of Approval #4, 5, and 6, regarding noise). Based on evidence submitted by all parties, staff determined that the proposed design, coupled with the various conditions of approval, will ensure compliance with the applicable criteria. On June 11, 2014, notice of the decision was provided in accordance with Eugene Code (EC) 9.7220, which established an appeal deadline of June 23, 2014. APPEAL On June 23, 2014, three appeals were filed: by the property owner, Charles Wiper III (Wiper), represented by Aaron Notebloom of Arnold Gallagher PC; and by two property owners in the area, Walter Meyer (Meyer), at 3987 Brae Burn Drive, and John Koenig and Deborah Toobert (Koening/Toobert), at 3968 Brae Burn Drive. The Wiper appeal essentially challenges the conditions of approval imposed by the Planning Director, while the Meyer and Koenig/Toobert appeals (opponents) challenge the approval itself. The opponents request reversal of the approval primarily on compatibility issues; conversely, the owner challenges the conditions of approval that were intended to address the compatibility issues. As explained in the background information provided above, compatibility was the primary focus of the Planning Director’s decision. The cross-appeals, with the proponent of the telecommunications facility (the property owner, Mr. Wiper) indicating that the Planning Director’s decision went too far in conditioning the approval, coupled with the opponents suggesting that the Planning Director’s decision fell short of ensuring compatibility. The written appeal statements are attached for reference (see Attachments B, C, and D). Staff has prepared a summary response to the appeal issues in Attachment E. The public hearing for this appeal is scheduled for July 16, 2014. Public notice of the appeal hearing was mailed in accordance with applicable code requirements on June 24, 2014. The decision on this Site Review appeal is subject to the procedural requirements of Eugene Code (EC) Sections 9.7600 through 9.7635. The public hearing for this appeal will be conducted according to quasi-judicial hearing procedures described at EC 9.7065 through 9.7095. Pursuant to EC 9.7630, the Hearings Official shall affirm, reverse, or modify the Planning Director’s decision based on the applicable Site Review approval criteria at EC 9.8440 and the applicable code requirements that were in effect at the time the application was submitted, on August 8, 2013. Staff notes that public testimony on the appeals must be specific to the appeal issues identified by the appellants. No new issues may be considered. Another important clarification for the Hearings Official is that this appeal is the first evidentiary hearing on this matter. As such new evidence is allowed, provided such evidence is limited to the issues raised on appeal. Since the submittal of the appeal, staff has received no additional letters in response to the appeal notice. Any written testimony or other evidence submitted between the date of this memorandum and Page 2 HO Agenda - Page 2 the appeal hearing will be forwarded for consideration as part of the decision on this appeal. In addition to any public testimony or other evidence that may be forwarded or presented at the upcoming public hearing, please review the attached items from the application file. ATTACHMENTS Attachment A Planning Director’s Decision Attachment B Charles Wiper III / Aaron Notebloom Appeal Statement Attachment C Walter Meyer Appeal Statement Attachment D John Koenig and Deborah Toobert Appeal Statement Attachment E Summary of Appeal Issues and Staff Response The entire record of materials for the subject application, including the public hearing exhibits, is available for review at the Eugene Planning Division offices. FOR MORE INFORMATION Please contact Becky Taylor, Associate Planner, Eugene Planning Division, by phone at (541) 682-5437, or e-mail at becky.g.taylor@ci.eugene.or.us Page 3 HO Agenda - Page 3 HO Agenda - Page 4 HO Agenda - Page 5 HO Agenda - Page 6 HO Agenda - Page 7 HO Agenda - Page 8 HO Agenda - Page 9 HO Agenda - Page 10 HO Agenda - Page 11 HO Agenda - Page 12 HO Agenda - Page 13 HO Agenda - Page 14 HO Agenda - Page 15 HO Agenda - Page 16 HO Agenda - Page 17 HO Agenda - Page 18 HO Agenda - Page 19 HO Agenda - Page 20 HO Agenda - Page 21 HO Agenda - Page 22 HO Agenda - Page 23 HO Agenda - Page 24 HO Agenda - Page 25 HO Agenda - Page 26 HO Agenda - Page 27 HO Agenda - Page 28 HO Agenda - Page 29 HO Agenda - Page 30 HO Agenda - Page 31 HO Agenda - Page 32 HO Agenda - Page 33 D fD O O D C fD N rt v v 7 0 rh O N A d fD HO Agenda - Page 34  Attachment B Public Comment Index The City initially mailed public notice on February 14 2014 soliciting public comments until March 10 2014 In response to the numerous concerns identified by the public during this initial comment period on March 27 2014 the applicant filed an extension to prepare responsive information Following s supplemental materials on May 2 2014 the City mailed a second public notice receipt of the applicant on May 5 2014 soliciting comments until May 19 2014 An index testimony received during each public comment period is provided below The actual testimony is provided in the application file First Public Comment Period February 14 March 10 2014 All Opposed Allison Hassler email dated March 11 2014 Hanna Mitchell and Hannah Hibbard email dated March 10 2014 with attached Birds Harmed Frequency Radiation by Radio Michelle Pellitier email dated March 10 2014 John Pellitier email dated March 10 2014 Adalbert and Mildred Toepel letter dated March 10 2014 Susan Manske and Gary Apsel email dated March 10 2014 Jonathan and Stephanie Dignan email dated March 10 2014 David Steel email dated March 10 2014 Walter and Nancy Meyer email and attached letter dated March 7 2014 Cheryl Roffe email dated March 7 2014 Mike Miles and Patricia Harding letter dated March 5 2014 with attachments Barbara and Charlie Nugent letter dated March 7 2014 John Koenig and Deborah Toobert letter dated March 3 2014 Second Public Comment Period May 5 2014 May 19 2014 Favorable Testimony Robert Binz email dated May 17 2014 Robert Breeden letter dated May 19 2014 Opposing Testimony Sat Hari Khalsa email dated May 19 2014 Charles and Barbara Nugent email dated May 19 2014 letters dated May 18 2014 and May 16 2014 John Koenig two emails dated May 2 2014 and email dated April 28 2014 Adalbert and Mildred Toepel letter dated May 17 2014 Leslie Hunter email dated May 18 2014 Andrew and Naella Cissna email dated May 8 2014 Sarah Johnston email dated May 19 2014 Stephanie Thompson email dated May 19 2014 Donald and Martha Noonan email dated May 8 2014 Patricia and Charles Wagoner email dated May 13 and May 17 2014 requested mailing address HO Agenda - Page 35  Attachment B Public Comment Index Kim Wilson email dated May 18 2014 Jonathan Dignan emails dated April 29 2014 Robin Ingram email dated April 30 2014 Walter and Nancy Meyer email dated May 9 2014 with attached letter Dianne Moore email dated May 19 2014 Wanda Walker email dated May 19 2014 Troy Christie email dated May 19 2014 Tricia Mercer email dated May 19 2014 Stuart Roach email dated May 19 2014 Kimberly K Penn RN email dated May 18 2014 requested mailing address Tyler Wood email dated May 19 2014 requested mailing address Stephen Eiring email dated May 19 2014 Susan Manske email dated May 19 2014 Steven Ritter email dated May 19 2014 Jerry Joffe email and attached letter dated May 19 2014 Mike Miles o Email dated May 19 2014 1 4 6 p m with attachment o Email dated May 19 2014 5 2 4 p m o Letter dated May 19 2014 o Email dated May 18 2014 11 26 pm With attachments o Email dated May 18 2014 10 m with attachments 02 p o Email dated May 16 2014 o Email dated May 15 2014 16 p m o Email dated May 15 2014 12 55 p m o Email dated May 2 2014 HO Agenda - Page 36  h s A r sue 1 p z i y T a e I I I m 4 t x r p 59 0A g 3 4 tj t y O o 3 R i t s r fi 1 4 y d l 1M Y A p S Oi Y T J wz ASL vw R HO Agenda - Page 37  r0 r O O 3 Oq fD 3 D ar Z m N r m x z f fD s 70 r 3 O h c Q Z a a4 O N w rF N 0 N N O r N c r G c r r o O O 0 N c r0 HO Agenda - Page 38 x HO Agenda - Page 39 z rt C fll W 3 A S N O m 3 fD z o Q fD N 3 0 0 HO Agenda - Page 40 Attachment C: Meyer Appeal HO Agenda - Page 51 Attachment C: Meyer Appeal HO Agenda - Page 52 Attachment C: Meyer Appeal HO Agenda - Page 53 Attachment C: Meyer Appeal HO Agenda - Page 54 Attachment C: Meyer Appeal HO Agenda - Page 55 Attachment C: Meyer Appeal HO Agenda - Page 56 Attachment C: Meyer Appeal HO Agenda - Page 57 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 58 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 59 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 60 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 61 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 62 Attachment D: Koenig/Toobert Appeal HO Agenda - Page 63  Attachment E APPEAL ISSUES AND STAFF RESPONSE Three appeals were filed by the following individuals: the property owner (Wiper), an abutting property owner (Meyer), and the owners of property in the area (Koenig/Toobert). As listed below, Appeal Issues 1 through 4 are from the Wiper appeal; Appeal Issues 5 and 6 are from the Meyer appeal; and Appeal Issues 7 through 12 are from the Koenig/Toobert appeal. The common theme of the appeals is compatibility of the proposed telecommunication facilities with the surroundings, pursuant to Site Review approval criterion EC 9.8440(1); Appeal Issues 1, 2, 3, 5, 7, and 11 relate to compatibility and the Planning Director’s Condition of Approval #1. The other appeal issues are not based on the approval criteria, as discussed further below. 1. First Assignment of Error (Wiper Appeal): Cell Towers are an allowed use in both the PL and R- 1 zone and therefore, are per se reasonably compatible under EC 9.8440(1) when they meet all objective criteria. Accordingly, the Planning Director did not have authority to impose further screening conditions for a use that has already been determined by the City to be reasonably compatible and where there is no separate screening requirement outside those found in the telecommunication standards. Summary: The appellant (Wiper) cites Northgreen Property LLC v. City of Eugene, et al., 2012 WL 114369, which involved a cell tower on a golf course in the R-1 Low-Density Residential zone. The appellant summarizes that case as follows: because the City code allowed cell towers in the R-1 zone and because it met the objective criteria of the City code, the Hearings Official and LUBA determined that the proposed cell tower was reasonably compatible. The appellant asserts that there should be no screening requirement for the proposed cell tower to address compatibility, under Site Review approval criterion EC 9.8440(1); in regards to the screening required in the Northgreen case, the appellant notes that there was a separate screening requirement under the Planned Unit Development approval criterion at EC 9.8320(3). The appellant also notes that the telecommunication standards at EC 9.5750(7)(e) establish landscape screening as being 6 feet in height around the facility. The appellant ultimately challenges Condition of Approval #1, which requires a tree preservation area surrounding the proposed facility. The appellant also asserts that this condition is not necessary to ensure compliance with the South Hills Study, stating that tree preservation condition does not directly correlate to the policy that “development blend, rather than dominate, the natural characteristics of the south hills area.” Staff Response: Per EC 9.5750(5), the telecommunications tower use in the PL zone requires Site Review approval; it is not an outright permitted use. Site Review involves inherently subjective approval criteria that require reasonable compatibility with the surroundings. This discretionary review is required in addition to (i.e. above and beyond) the telecommunication standards that govern outright permitted uses (e.g. towers in C-4, I-1, I-2, and I-3 zones). There is no conflict between the requirement for reasonable compatibility and the telecommunication standard that requires a 6-foot perimeter landscape screen (as the appellant asserts). The appellant’s reading of the Northgreen case makes a similar assertion about the role of clear and objective standards versus the discretionary criteria of a land use Appeal Issues and Staff Response Page 1 HO Agenda - Page 64  Attachment E application. The appellant seems to confuse the terminology between two different approval processes and criteria for that of the PUD (which requires “adequate screening”) and Site Review (which requires “reasonable compatibility”). In effect, the arguments attempt to limit the scope of EC 9.8440(1) and the applicable policy of the South Hills Study, such that the City could never even consider the need for additional vegetative screening beyond what may be required by other basic standards. That reading would render the requirements under EC 9.8440(1) and the South Hills Study as largely meaningless, and would eliminate the primary intent behind requiring Site Review approval rather than permitting towers outright or only subject to the telecommunication standards. For reference, the Planning Director’s decision addresses the issue of reasonable compatibility under EC 9.8440(1), at pages 4-11. The related South Hills Study policy is addressed under EC 9.8440(6), on page 27 of the decision. In summary, the tower was found to be compatible, in large part because it was screened by existing trees. Condition of Approval #1 was imposed to ensure that the screening would be maintained for the duration of the proposed use. As such, the tower would blend in with the surroundings appropriately based on the approval criteria and the South Hills Study policy. If the existing trees were removed, the proposed tower would not be reasonably compatible and would dominate views in the area. In other words, the application would fail to comply with the approval criteria without the condition of approval. 2. Second Assignment of Error (Wiper Appeal): To the extent the Hearings Official determines that some level of tree preservation, removal and replacement is required to demonstrate compliance with the applicable approval criteria, the Planning Director erred because the exactions imposed by Condition of Approval #1 are unconstitutional. Summary: The appellant (Wiper) claims that Condition of Approval #1 is “in effect a conservation easement that prohibits future development (requiring certain tree removal) on over 1.5 acres of property notwithstanding that the proposed tower will only occupy .034 acres. The appellant acknowledges that the Planning Director’s concern is with the visual impact of the tower on the abutting homes to the west, but questions why the required preservation area includes “vast amounts of property” to the north, east, and south. The appellant notes that the Planning Director identified nine trees along the western boundary which act to screen the tower from neighboring properties, yet identified a preservation area that extends well beyond those trees without any justification. The appellant also states that the current trees could be replaced by some other permitted form of development that would also serve to effectively screen the adjacent residences, such as future residential development. The appellant notes that if the City is set on trees as a screen, then street trees could be planted along Densmore or, as similar to the condition imposed in Northgreen, offered to those adjacent residents who want screening to provide it on their property. Staff Response: The appellant’s references to Dolan and related case law (takings, constitutional findings, rough proportionality, nexus etc.) do not apply because Condition of Approval #1 is not taking land for public use. Nevertheless, the comparative exercise provided by the appellant is useful in evaluating the required tree preservation area relative to the tower impacts, as addressed in the Planning Director’s Appeal Issues and Staff Response Page 2 HO Agenda - Page 65  Attachment E on pages 6 and 7. As the findings demonstrate, the intent of Condition of Approval #1 was to ensure that the mono-pine would blend in reasonably well with the surroundings. The condition was established based on a thorough analysis of the available information and evidence provided to the Planning Director, as an appropriate means of regulating the proposed use in compliance with the approval criteria. With regard to the tree preservation area delineated in Attachment C of the Planning Director’s decision, the height of the tower (120 feet) was carefully considered. Instead of merely delineating a 120-foot radius around the proposed facilities as the potential area of impact that would need to be mitigated through vegetated screening, actual conditions were taken into account, as detailed below. To the west, the 62-foot distance identified from the west property line to the western boundary of the soil reclamation area coincides with the existing vegetation between those two features. As noted in the Planning Director’s decision, neighbors to the west indicated that they could already see into the soil reclamation area given the grade change (the neighbors are higher) and the gaps in the existing vegetation. To the north, the 131-foot distance identified from the north edge of the soil reclamation area coincides with the north boundary of the westerly property within view of the proposed facilities. (The eastern portion of the tax lot boundaries for the three properties on the west side of Densmore Road are shown on Attachment C of the Planning Director’s decision, for reference.) The east and south boundaries of the required tree preservation area are not dimensioned; instead, those boundaries vary to coincide with the existing trees surrounding the soil reclamation area. The east boundary of the tree preservation area roughly coincides with the existing paved roadway; similarly, the southern boundary coincides with the access from West 40 th Avenue, at the intersection with Densmore Road. Although the east and south boundaries face the cemetery, the existing trees along those margins of the soil reclamation area serve as a backdrop of views from the west, and were considered by the Planning Director to be a critical component in helping to ensure the tower would be reasonably compatible and blend in with the surroundings. 3. Third Assignment of Error (Wiper Appeal): The Planning Director erred by failing to determine whether existing on site vegetation satisfied the screening requirement in EC 9.5750(7)(e). To the extent the existing vegetation did not satisfy Condition of Approval #2, the Planning Director erred by impermissibly mandating that the vegetative screen abut the “entire exterior perimeter of the 8-foot concrete wall enclosure.” Summary: The appellant (Wiper) asserts that the applicant (AT&T) should be allowed to place some or all of the screening within the soil reclamation facility itself (on the inside of the concrete wall), directly around the telecommunication facilities. The appellant wants to reserve his ability to use the face of the wall for cemetery uses, such as utilizing the eastern facing wall of the soil reclamation facility as a memorial wall at some point in the future. Ultimately, the appellant wants Condition of Approval #2 to be removed, stating that the existing surrounding vegetation fulfils this screening standard. Appeal Issues and Staff Response Page 3 HO Agenda - Page 66  Attachment E Staff Response: The Planning Director did not fail to determine whether existing on site vegetation satisfied the screening requirement of EC 9.5750(7)(e), because the standard does not provide for that kind of consideration. The standard is as follows: EC 9.5750(7)(e) Buffering. In all zones, existing vegetation shall be preserved to the maximum extent possible. In the C-4, I-1, I-2 and I-3 zones, no buffering is required beyond that required by this land use code. In all other zones, landscaping shall be placed completely around the transmission tower and ancillary facilities located at ground level except as required to access the facility. Such landscaping shall consist of evergreen vegetation with a minimum planted height of 6 feet placed densely so as to form a screen. Landscaping shall be compatible with other nearby landscaping and shall be kept healthy and well maintained. Staff notes that the first sentence of the above standard emphasizes the need to establish preservation of existing vegetation. It does not, however, say that existing vegetation can be relied upon in lieu of new plantings. Instead, the above standard provides explicit instructions about this new landscaping – to be placed completely around the tower and ancillary facilities, and consist of 6-foot tall evergreen vegetation. The last sentence of the above standard only says that the new landscaping needs to be compatible with existing nearby landscaping. The word compatible implies that the two (existing and proposed vegetation) would coexist. No evidence has been provided to show that the required landscaping would be incompatible with the existing landscaping. The above standard has no associated Adjustment Review or Variance provision to enable the consideration of an alternative. Without a proposed means of compliance with this standard from the applicant, the Planning Director’s decision imposed a condition to address the standard, rather than denying the application for failure to comply (as only a few shrubs were proposed near the entrance of the walled soil reclamation area). The condition appeared to be reasonable because when staff visited the site, there appeared to be ample room between the existing vegetation and the area where the wall would be to plant the required vegetation. 4. Fourth Assignment of Error (Wiper Appeal): The Planning Director erred by failing to expressly allow the cell tower to be constructed up to the maximum allowable height of 128 feet to encourage collocation of other cellular providers. Summary: The appellant (Wiper) apparently wants the tower to be taller to enhance the service performance of additional service providers that could potentially collocate on the tower. The appeal cites the telecommunication purpose statements that encourage collocation of telecommunication facilities and minimize the number of transmission towers. To fulfill that purpose, the appellant asserts that the tower must be the maximum height allowable. The appellant states that the additional eight feet in height for a 128 foot tall tower would not violate any standards, as the tower is setback from the property line 128 feet (i.e. the standards require that the setback must be at least equal to the tower height). Appeal Issues and Staff Response Page 4 HO Agenda - Page 67  Attachment E Staff Response: Staff understands the appellant’s intent; however, the application materials and all of the evidence provided for the Planning Director’s review were based on the proposal for 120-foot tall tower. As discussed in the decision, the most compelling evidence provided by the applicant to demonstrate compatibility was the set of photo simulations of the 120-foot tower within the existing stand of trees. The photo simulations were carefully produced using balloon testing to verify the actual height of the tower (see April 25, 2014 letter from Tim Bradley Imaging for details). No such data was provided for a 128-foot tower, and there is no evidence that the proposed monopole design could accommodate the additional eight feet of height without affecting the branch design and other details that were the basis for the Planning Director’s approval. Staff also notes that the telecommunication standards at EC 9.5750(7)(c) specifically address the collocation requirement for the proposed tower. The standard requires new towers of 80 feet or more to be designed to accommodate collocation of a minimum of 2 additional providers, and in this case the applicant’s evidence shows that the standard will be met for the proposed 120-foot tower. There is no information in the applicant’s materials to suggest that the standard would not be met without the additional 8 feet in height for lack of adequate performance. Here, the appellant makes an unsupported assertion that performance would be better for future collocation with the additional height, but provides no other evidence that would be needed to show how it would meet other approval criteria. 5. Fifth Assignment of Error (Meyer Appeal): The basis for this appeal is that the proposed facility is not reasonably compatible with the adjacent property. Summary: The appellant (Meyer) states that the approval is premised on the condition that additional landscaping will be installed and maintained, but that an identical requirement was placed on the approval of the construction of the maintenance facility by Rest Haven has never been properly installed or maintained. Staff Response: As discussed above regarding Appeal Issue 2, the Planning Director’s basis for approval was finding that the tower designed to look like a tree would blend in with an existing stand of surrounding trees. The condition imposed was to ensure that stand would remain as screening. Enforcement and compliance with past requirements for the cemetery is not relevant to the present case. 6. Sixth Assignment of Error (Meyer Appeal): The applicant is required to document that alternative sites within a radius of 2,000 feet have been considered and have been determined to be technologically unfeasible or unavailable. Summary: The appellant (Meyer) asserts that this requirement should apply within the cemetery site, as he states that the area adjacent to the administration office is a more appropriate site and can be implemented with no impact on adjacent property. Appeal Issues and Staff Response Page 5 HO Agenda - Page 68  Attachment E Staff Response: The requirement being challenged is an application requirement for the construction of a transmission tower that requires Site Review approval at EC 9.5750(6)(c)2: Documentation that alternative sites within a radius of at least 2,000 feet have been considered and have been determined to be technologically unfeasible or unavailable. For site reviews, alternative sites zoned C-4, I-1, I-2, and I-3 must be considered. For conditional use permits, alternative sites zoned PL, C-2, C-3, C-4, I-1, I-2, I-3 and S-WS must be considered. The above standard does not include any basis for the Planning Director to select a preferred location on a given site. Here, the applicant provided the required documentation thereby meeting the standard. The applicant submitted an alternative sites analysis (see May 2, 2014 letter from Paul Slotemaker, Zoning Manager, Smartlink LLC). Page 3 of that letter also includes an “Onsite Alternative Site Analysis,” which discusses further the limitations within the cemetery property in response to testimony suggesting that the tower should be located elsewhere on the property. 7. Seventh Assignment of Error (Koenig/Toobert Appeal): The Planning Director failed to properly evaluate the application in regards to “surrounding properties” under approval criterion EC 9.8440(1), which are homes, not trees. Summary: The appellant (Koenig/Toobert) states that the location, bulk, and height of the tower is not reasonably compatible with the surrounding properties, which are homes, not trees – as trees are not properties. The appellant compares the height of the homes (30 to 35 feet) to the tower (120 feet). The appellant states that “this is essentially an industrial grade structure proposed to be plopped down in a residential neighborhood” and that it is “in no way compatible.” Staff Response: As discussed extensively in the decision and above with respect to Appeal Issues 1 and 2, the surrounding trees were appropriately considered as screening necessary to establish compatibility with the surrounding properties. The proposed facility is not considered to be an industrial use, but rather, as a utility or communication use that is subject to telecommunication standards and Site Review approval within the PL zone. 8. Eight Assignment of Error (Koenig/Toobert Appeal): The Planning Director failed to address the long term maintenance of the monopine. Summary: The appellant (Koenig/Toobert) states that, unlike the needles and branches of living trees, these artificial ones will age and fade in color and texture, possibly break off and generally deteriorate becoming even more of an eyesore to the neighborhood. Appeal Issues and Staff Response Page 6 HO Agenda - Page 69  Attachment E Staff Response: The Site Review approval would be implemented through an approved site plan showing the tower design elements with a performance agreement that would allow the City to enforce consistency with the plan and related conditions of approval. In the future, neighbors could complain to the City if the tower were deteriorating and the performance agreement would enable the City to proceed with enforcement for corrective actions. 9. Ninth Assignment of Error (Koenig/Toobert Appeal): The Planning Director erred in concluding that “the city could only review the proposed location for compliance with the applicable approval criteria and standards.” Summary: The appellant (Koenig/Toobert) states that “we can find nowhere in the Eugene City Code that requires the land use hearing officer to not recommend alternative locations for a proposed development within a given defined site.” Staff Response: The application requirements for telecommunication towers at EC 9.5750(6)(b)1 require “a description of the proposed tower location, design, and height.” Provided the applicant submits the necessary materials, the city is obligated to determine whether the applicant’s proposal meets the required criteria or not. As discussed previously, all the application materials and evidence considered by the Planning Director were based on the proposed location. No evidence was provided to show how an alternate location would meet the applicable approval criteria and standards. As discussed in Appeal Issue 6, alternate locations were considered by the applicant, but were determined to be infeasible. 10. Tenth Assignment of Error (Koenig/Toobert Appeal): The Planning Director erred in granting a variance to undergrounding the ancillary equipment. Summary: The appellant (Koenig/Toobert) objects to the Planning Director’s findings that undergrounding would require additional elevators and air conditioning that would increase noise levels because maintenance personnel would only employ this equipment once a month; further, they question why elevators would be necessary when stairs would work just as well. They state that air conditioning would be required regardless, and that the greater soil insulation would reduce the need for heating and cooling the equipment. The appellant also states that undergrounding would not unduly harm the root structures of the adjacent trees, noting that the cemetery has many large healthy trees in spite of grave excavations undertaken in the direct vicinity. Staff Response: While the appellant challenges the findings of the applicant’s consultant’s, no further evidence has been provided to support the assertions. The Planning Director relied on the most credible evidence on these technical matters, which were provided by the applicant. Appeal Issues and Staff Response Page 7 HO Agenda - Page 70  Attachment E 11. Eleventh Assignment of Error (Koenig/Toobert Appeal): The Planning Director’s Condition of Approval #1 for mitigating existing deficiencies in the existing tree buffer does not provide effective screening. Summary: The appellant (Koenig/Toobert) states that the condition “is laughable” because new trees are not going to provide screening for decades and, in the meantime, the residential neighborhood is going to be “stuck with a highly visible ugly tower.” The appellant also states that the existing trees are not that close together, so the tower will not blend in with the adjacent trees, “making the structure stand out like a sore thumb.” Staff Response: An explanation of the Planning Director’s rationale and the basis for Condition of Approval #1 is provided in detail above, with respect to Appeal Issues 1 and 2. 12. Twelfth Assignment of Error (Koenig/Toobert Appeal): The Planning Director’s decision says the City hired a third party consultant (Carl Bloom), but there is no evidence of his qualifications. Summary: In addition to credentials, the appellant challenges whether the City’s third-party consultant visited the site and whether he relied solely on the applicant’s data instead of taking his own measurements. Staff Response: This appeal issue is not based on an approval criterion or standard, but instead on a procedural requirement at EC 9.5750(11) Application Review and Fees, which states: The city manager shall retain one or more consultants to verify the accuracy of statements made in connection with an application for a building or land use permit for a telecommunications facility. Notwithstanding any other provision of this code, the city manager shall require the applicant to pay, as part of the application fees, an amount sufficient to recover all of the city’s costs in retaining the consultant(s). The standard does not establish criteria for the qualifications of the consultant, nor does it provide instruction on how the consultant verifies the accuracy of the statements. Nonetheless, the City has relied upon the services of Carl Bloom, Environalysis, LLC to review building permits and land use applications involving telecommunication facilities and ensure compliance with this requirement. The professional qualifications and findings of the City’s consultant in this case are included in the record. Appeal Issues and Staff Response Page 8 HO Agenda - Page 71