Planning Commission

AGENDA EUGENE PLANNING COMMISSION McNutt Room, City Hall Phone: 541‐682‐5481 777 Peal Street www.eugene‐or.gov/pc Eugene, OR 97401 The Eugene Planning Commission 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 prior to the meeting. Spanish‐language interpretation will also be provided with 48 hours notice. To arrange for these services, contact the receptionist at 541‐682‐5481. Telecommu nications devices for deaf assistance are available at 541‐682‐5119. MONDAY, SEPTEMBER 19, 2011 – REGULAR MEETING (11:30 a.m. to 1:30 p.m.) 11:30 a.m. I. PUBLIC COMMENT The Planning Commission reserves 10 min utes at the beginning of this meeting for public comment. The public may comment on any matter, except for items scheduled for public hearing or public hearing items for which the record has already closed. Generally, the time limit for public comment is three minutes; however, the Planning Commission reserves the option to reduce the time allowed each speaker bas ed on the number of people requesting to speak. 11:40 a.m. II. AT&T MOBILITY DELIBERATIONS AND POSSIBLE FINAL ACTION Deliberations and possible action on appeal of the Hearings Official’s conditional approval of concurrent tentative PUD and CUP applications by AT&T for installation of a new wireless telecommunications tower at the Oakway Golf Course Staff: Steve Ochs, 541‐682‐5453 1:15 p.m. III. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission Commissioners: Heidi Beierle; Jonathan Belcher; Rick Duncan; Randy Hledik, Vice Chair; Jeffery Mills, Chair; William Randall; Lisa Warnes  AGENDA ITEM SUMMARY September 19, 2011 To: Eugene Planning Commission From: Steve Ochs, Associate Planner, Eugene Planning Division Subject: Deliberations on Appeal of Hearings Official Decision: AT&T Mobility Cell Tower – Oakway Golf Course (PDT 10‐2 & CU 11‐1) ACTION REQUESTED To deliberate on an appeal of the Eugene Hearings Official’s decision to approve a Planned Unit Development and Conditional Use Permit for installation of a new wireless telecommunications tower facility on a privately owned golf course and to take action to affirm, reverse, or modify the Hearings Official’s decision. BRIEFING STATEMENT The applications subject to this appeal include concurrent Planned Unit Development (PUD) and Conditional Use Permit (CUP) approvals to construct a 75‐foot cell tower on a lease area on Oakway Golf Course. The applicant also requested approval of a variance from a code standard that requires ancillary facilities to be placed underground. The Hearings Official denied that variance request and imposed a condition of approval that requires the applicant to comply with the undergrounding standard. The property is located at 2000 Cal Young Road. The proposed cell tower would be located on the north side of the golf course, just north of existing buildings on the site. The subject property is zoned R‐1/PD and is developed with an existing private golf course and related buildings and parking. The Eugene Hearings Official held a public hearing for the subject applications on June 15, 2011. The Hearings Official issued a decision approving the concurrent applications on August 2, 2011. On August 15, 2011, two appeals were filed. One appeal was filed by Richard Busch, Attorney for the applicant (now named New Cingular Wireless PCS, LLC). The other appeal was filed by Micheal Reeder, Attorney for Northgreen Property, LLC. On August 31, 2011, the Eugene Planning Commission held a public hearing on the appeal. After the close of the public hearing on August 31, 2011 and again in discussion on September 6, 2011, the Planning Commission provided a list of questions to staff to address concerning the appeals. The questions and staff responses are included in an attached memorandum. The Eugene Code (EC) requires that the Planning Commission’s decision on this appeal be made within 15 days of the close of the record following the public hearing. New Cingular and Northgreen Apartments have extended that deadline, along with the statutory 120‐day statutory time limit, to allow for a decision prior to October 7, 2011. The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal 1 PC AIS 09-19-2011 - Page 1 decisions (see EC 9.7680), and more specifically, consistent with the applicable approval criteria for tentative Planned Unit Development and Conditional Use Permits (see EC 9.8320 and EC 9.8090). PLANNING COMMISSION’S REVIEW ROLE Planning Commission’s review should be focused entirely on the question of whether or not the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable criteria. In addition, the Planning Commission’s review is limited to those assignments of error raised in the appellants’ appeal statements. Based on those appeal statements, the only questions at issue in this appeal are set out and addressed below. The Planning Commission may modify the Hearings Official’s decision with supplemental findings; or in the event that the Planning Commission finds the Hearings Official erred in approving the request and chooses to remand or reverse the decision, the Planning Commission is required to provide specific findings of fact as to why the decision was in error. The Planning Commission cannot reverse the decision without such findings. ADDITIONAL APPEAL TESTIMONY The following testimony and information was received after the appeals were submitted, prior to and during the August 31, 2011 public hearing: 1) Letter from Bill Kloos on behalf of Melissa Brotz and the Oakway Neighbors, submitted on August 29, 2011. 2) Letter from Paul Conte submitted on August 31, 2011 3) Memorandum from Emily Jerome submitted August 31, 2011 4) Letter from Micheal Reeder on behalf of Northgreen Apartments submitted at the August 31, 2011 hearing 5) List of authorities cited by AT&T submitted by Richard Busch on behalf of AT&T at the August 31, 2011 hearing EVIDENTIARY ISSUES EC 9.7655(2) limits the nature of evidence that the Planning Commission can consider on appeal as follows: “The record from the proceeding of the Hearings Official or Historic Review Board shall be forwarded to the appeal review authority. No new evidence pertaining to the appeal issues shall be accepted.” Pursuant to this section, the Planning Commission cannot accept any new evidence, and there is no process for an exception to this rule. In accordance with EC 9.7655(2), the Planning Commission cannot accept the new evidence noted below and therefore should reject the following items from the record as part of the Planning Commission’s final decision on this appeal: 1. Two pictures submitted by Bonnie Baker in the public hearing As noted above, the Planning Commission’s decision on this appeal is otherwise based upon consideration of all other relevant evidence and argument within the record to date. 2 PC AIS 09-19-2011 - Page 2 SUGGESSTED DELIBERATION PROCESS While it is typical for the Planning Commission to address the assignments of error in the order they were submitted, staff would recommend the Planning Commission address the following key issues first. Based on the comments and questions raised by the Commission, staff believes that resolution of these issues up front will provide a much clearer path for the Commission to work through the individual appeal issues: 1. Noise Standard: Determine whether the Planning Commission concurs with the Hearing’s Official (and staff’s) application of 45 dBa standard. 2. Variance: Determine whether the Hearings Official erred in denying the variance. 3. Compliance with Noise Standard: If the Planning Commission concurs with the Hearings Official denial of the variance, determine whether the Hearings Official appropriately conditioned compliance with the noise standard. 4. Condition regarding visual impact: Depending on the response to #2 and #3 above, determine whether the Hearings Official’s appropriately conditioned the application regarding visual screening of the tower. APPEAL ISSUES AND STAFF RESPONSE The New Cingular Wireless appeal is comprised of 2 assignments of error and the Northgreen Apartments appeal consists of 13 assignments of error. Responses to each of the assignments of error are provided below, as a basis for deliberations and preparation of a final order. To differentiate the appeals, below, staff refers to the appeal issues under the heading of “New Cingular” or “Northgreen Apartments.” When referring to the “the decision” below, staff is referring to the Hearings Official’s written decision approving the applications (PDT 10‐2 and CU 11‐1), dated August 2, 2011. New Cingular’s First Assignment of Error: Requirement that the new noise study not include a variance. New Cingular requests that the Planning Commission either accept new evidence into the record or remand the Hearings Official decision so that the Hearings Official may do so. Specifically, New Cingular wishes to submit a new noise study and/or variance request to address the noise standard at EC 9.5750(7)(f), as there is no evidence in the existing record that addresses whether burying the ancillary equipment the application will result in compliance with the noise standard. This appeal issue relates to the standards at EC 9.5750(8) and (7)(f), and to the variance criterion at EC 9.5750(9)(c). Those sections provide: (8) Standards for Ancillary Facilities. All ancillary facilities shall comply with the standards of subsections (7)(e) and (7)(f) of this section. In addition, all ancillary facilities within an R‐1, PL, C‐1, GO, and PRO zone must be located underground to the maximum extent technology allows, unless a variance is obtained pursuant to the provisions of subsection (9) of this section. This 3 PC AIS 09-19-2011 - Page 3  restriction does not apply within other zones. (7)(f) Noise Reduction. In R‐1, R‐2, R‐3, R‐4, C‐1, and GO and in all other zones when the adjacent property is zoned for residential use or occupied by a dwelling, hospital, school, library, or nursing home, noise generating equipment shall be sound‐buffered by means of baffling, barriers, or other suitable means to reduce sound level measured at the property line to 45dBa. (9)(c) The city may grant a variance to the setback and undergrounding requirements of subsections (7)(d) or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. The Hearings Official completed a detailed analysis of this issue at pages 40 and 41 of the decision (pages 80 and 81 of the record). The Hearings Official’s decision found that, based on testimony provided, the New Cingular did not meet the variance criteria at EC 9.5750(9) because it did not demonstrate that its proposal to locate the ancillary facilities above‐ground would comply with the noise reduction standard at (7)(f). Therefore, the Hearings Official denied New Cingular’s request to place the ancillary facilities above ground and conditioned the approval (see Condition 1 of the decision) on a new noise study with the equipment being undergrounded. The condition also requires the applicant to submit new site plans and necessary narrative that would meet applicable criteria for a revised design placing the ancillary equipment underground. In regards to the request that the Planning Commission remand the matter to the Hearings Official, staff recommend that the Planning Commission find that such remand is inappropriate in this case. Generally, a remand may be an option when the Planning Commission determines that the Hearings Official erred in a specific way and instructs the Hearings Official to revise his decision based on specific instruction from the Planning Commission. For example, the Planning Commission could determine that the Hearings Official failed to address a specific applicable criterion in his decision and remand with instruction that the Hearings Official address that criterion. In this case, however, New Cingular is simply requesting an opportunity to supplement its application after which the Hearings Official would need to hold a new hearing and prepare a new decision. While the code is not clear as to the appropriate use of the remand option, these circumstances to not appear to be appropriate. In this case, a remand would allow substantial changes to the application which are more appropriately addressed through a new application. It is also worth noting that EC 9.7680 requires that, to remand a decision back to the Hearings Official, the applicant must provide an additional extension of time and pay “an additional fee.” Presumably, New Cingular would provide the required extension of time. However, the City has not yet established a fee for remand and, therefore, could not require the payment of a fee in these circumstances. 4 PC AIS 09-19-2011 - Page 4  New Cingular’s Second Assignment of Error and Northgreen Property First Assignment of Error: Appeal Fees New Cingular and Northgreen Property, LLC assert that the City’s appeal fees are not in compliance with applicable laws. Based on the August 17, 2011, decision of the Court of Appeals in Willamette Oaks v. City of Eugene, the Planning Commission and may not accept new evidence pertaining to this issue. At the appeal Hearing on August 31, 2011, Micheal Reeder on behalf of Northgreen properties LLC, noted that based on the recent Court of Appeals decision, Northgreen Property LLC, was dropping this appeal item. As there is additional testimony from Bill Kloos on behalf of the Oakway Neighbors in the record regarding appeal fees and New Cingular’s assignment of error is still before the Planning Commission on appeal, the City Attorney’s Office in an August 31, 2011 memorandum, recommended that the Planning Commission offer the following findings regarding New Cingular’s second assignment of error. EC 9.7655(3) requires that appeal statements specify how the Hearings Official: (1) failed to properly evaluate the application; or (2) made a decision that was not consistent with the applicable criteria. The appellants do not specify how the imposition of the allegedly unreasonable appeal fee is the result of the Hearings Official’s failure to properly evaluate the application or the Hearings Official’s decision’s inconsistency with an applicable criterion. The Planning Commission’s review is limited to whether the Hearings Official: (1) failed to properly evaluate the application; or (2) made a decision that was not consistent with the applicable criteria. While the appellant may be raising an important issue, it is not one that the Planning Commission can substantively address. The Hearings Official’s decision did not determine or impose the appeal fee and it would have been beyond the scope of the Hearings Official’s authority to do so. Even if the appellant is correct in the assertion that the City’s appeal fee structure dictated appeal fees that, in this case, are too high, that determination would not result in a change to the Hearings Official’s decision and it does not call the Planning Commission’s jurisdiction into question. Whether the City’s appeal structure, as applied in this case, is inconsistent with state law is an independent question that is beyond the scope of the Planning Commission’s authority. The Planning Commission lacks the authority to allow any deviation from the City’s adopted fee structure. EC 9.7655(2) also limits the nature of evidence that the Planning Commission can consider on appeal, as follows: “The record from the proceeding of the Hearings Official or Historic Review Board shall be forwarded to the appeal review authority. No new evidence pertaining to the appeal issues shall be accepted.” Pursuant to this section, the Planning Commission should reject the September 21, 2010 letter relating to a public records request proffered by Northgreen Properties. In the absence of a specific criterion or related findings that would serve as a basis for error, Planning Commission should affirm the Hearings Official’s decision with respect to New 5 PC AIS 09-19-2011 - Page 5 Cingular Appeal Issue 2 and Northgreen Property Appeal Issue 1, based on the findings above. Northgreen Property Second Assignment of Error Telecom Siting Standard for Noise – EC 9.5750(7)(f) – Error in Interpreting Standard The Hearings Official addresses this issue on pages 35‐38 of the decision (pages 75‐78 of the record). The appellant asserts that the 45dBA noise limit applies not only to telecom noise measured at the receiving property line, but to all noise. This issue was previously raised in testimony and the Hearings Official noted that the interpretation provided by the appellant would require the applicant to reduce existing noise levels from other sources not related to the application and not within the applicant’s control. The Hearings Official concluded that without more robust evidentiary detail, and detailed requirements in the code for how the applicant was to address this, the intent of the code was not to prohibit new sound when 45dBA was already exceeded by ambient noise levels, but rather to limit new devices to less than 45dBA. Northgreen Property Third Assignment of Error Telecom Siting Standard for Noise – EC 9.5750(7)(f) – Improper use of Conditioning The Hearings Official addresses this issue on pages 35‐38 and 40‐41 of the decision (pages 75‐ 78 and 80‐81 of the record). The Hearings Official found that the applicant did not comply with this standard. The Hearings Official noted that he had two choices in responding to this issue. He could deny the entire application, or he could deny the variance request thereby requiring the equipment to be placed underground. He went on to note that placing the equipment underground would almost certainly resolve the noise issue, but there was nothing in the record to support this seemingly obvious conclusion. As a result, he found it appropriate to impose a condition (see Condition 6 of the decision) requiring a new noise study to confirm compliance with EC 9.5750(7)(f), based on a proposal that does not include a variance to undergrounding requirements pursuant to EC 9.5750(9)(c). The Hearings Official also included a related condition (see Condition 1 of the decision) requiring the applicant to submit a new site plan and any necessary narrative for placing the equipment underground. The appellant asserts that the Hearings Official should have denied the application and required a new proposal, also noting that conditioning is only proper if the record has evidence showing that the standard can be met with the condition. The appellant further asserts that the undergrounding is too big of a change to accomplish by a condition, amending the application so substantially that it results in a different use than what was originally applied for. As noted in the legal memorandum from Emily Jerome, dated August 31, 2011, the condition is defensible for the tentative PUD because a final PUD will be required at a later time. This provides an opportunity for further review. Like the PUD, a CUP approval also requires the applicant to demonstrate consistency with the noise standard at EC 9.5750(7)(c). As noted above, there is no evidence in the record to demonstrate that the noise standard at EC 6 PC AIS 09-19-2011 - Page 6 9.5750(7)(c) has been met. Unlike the PUD process, the CUP process is not a multi‐stage process, so technically, there is no later opportunity to which the Planning Commission can defer the determination for purposes of approving the CUP. If the Planning Commission chooses to affirm the Hearings Official decision, steps could be taken to diminish the risk of remand with regard to the CUP approval. Staff previously recommended that the Planning Commission’s final order be clear that the effectiveness of its CUP approval is contingent upon final PUD approval. Through that final PUD process, the noise standard will be addressed with public notice and opportunity for hearing consistent with statutory requirements. While there is some uncertainty with respect to impacts from resulting design changes, the final PUD process allows review of conditioned changes from the tentative PUD. Northgreen Property Fourth Assignment of Error Telecom Siting Standards for Variance to Undergrounding – EC 9.5750(9)(c) – Erroneous Interpretation The Hearings Official addresses this issue on pages 40‐41 of the decision (pages 80‐81 of the record). The Hearings Official determined that a variance to allow facilities above ground could be granted if an applicant demonstrates that the sound level at the property line (from the ancillary facilities) would be 45 dBa or less with above ground facilities. However, the Hearings Official found that New Cingular Wireless failed to make this demonstration. The appellant asserts that the Hearings Official misinterpreted what the code requires to “obviate” the need for undergrounding. The appellant goes on to assert that a variance is only appropriate if it eliminates all sound from the facility. Whether, or not, the Hearings Official was correct in his interpretation is irrelevant if the Planning Commission agrees that New Cingular failed to demonstrate that it’s proposed above ground facilities would produce fewer than 45 dBa as measured from the property line. Only if the Planning Commission determines that New Cingular’s evidence was sufficient to demonstrate the above ground facilities noise level would meet the 45 dBa noise standard at the property line, and that the Hearings Official erred in finding otherwise, is it necessary for the Planning Commission to make a formal interpretation of the “obviate” text of EC 9.5750(9)(c). If the Planning Commission determines that the Hearings Official was correct in finding that New Cingular’s demonstration was insufficient, even to meet the Hearings Official’s more permissive interpretation of EC 9.5750(9)(c), the Planning Commission may find that it is not required to make an interpretation of the “obviate” text of EC 9.5750(9)(c) because, under any reasonable interpretation, the applicant failed to meet its burden of proof. That said, staff has provided further discussion of the term “obviate” in the attached memo (see question #8), in the event the Planning Commission finds it necessary to make an interpretation of this term. Northgreen Property Fifth Assignment of Error PUD Standards for Screening EC 9.8320(3) – Naked Top Third of Monopole is not “Adequate Screening” 7 PC AIS 09-19-2011 - Page 7 The Hearings Official addresses this issue extensively on pages 12‐15 of the decision (pages 52‐ 55 of the record). The appellant asserts that the entire monopole needs to be screened to some degree to support a finding of “adequate screening”. In an August 31, 2011 letter to the Planning Commission, Micheal Reeder, on behalf of Northgreen Properties notes that the condition is “fraught with all sorts of ambiguities and uncertainties, it does not address the real issue‐the top of the mono‐pole…..cannot be screened at all.” Ultimately, after closely evaluating the available evidence and meaning of relevant terms, the Hearings Official found that a condition of approval was needed to ensure the requirement for adequate screening has been met (see Condition 2 of the decision). This condition requires the applicant to engage a landscape architect to develop a comprehensive screening plan and work directly with adjoining property owners to design screening that meets their needs. The Hearings Official notes that the pole will be visible against and contrast with the sky, but that a landscape architect could assist with how to try to achieve screening or masking of the upper portion of the tower. So while the top of the pole may not be screened from all angles, with the condition, the Hearings Official found that the pole would be “adequately screened”. Northgreen Property Sixth Assignment of Error PUD Standards for Screening – EC 9.8320(3) – Requirement for New Landscape Plan The Hearings Official addresses this issue on pages 12‐15 of the decision (pages 52‐55 of the record). The appellant asserts the application should be denied instead of the Hearings Official “repairing” the application through a condition, and because the condition does not state the final plan will be subject to future review in the final PUD process. As noted above, Condition 2 requires the applicant to engage a landscape architect to develop a comprehensive screening plan and work directly with adjoining property owners to design screening that meets their needs. It also requires the final site plans to include the changes. The Hearings Official’s condition for a landscape plan will be subject to review as part of the final PUD (even if it isn’t explicitly stated in the condition) as final PUD criterion requires compliance with tentative PUD conditions. Final plans which would be required to show the screening plan are approved as part of the Type II, final PUD process in this case. A public process with notice, opportunity for comment and appeal is therefore properly required to ensure review of the screening plan for compliance with the condition. If the Planning Commission finds that the Hearings Official erred in this regard, one remedy would be to modify the Hearings Official condition to specify that the landscape plan be subject to future review in the final PUD process. Northgreen Property Seventh Assignment of Error Neighborhood Applicant Meeting – EC 9.7007(2) Applicant Meeting Required for PUD Application 8 PC AIS 09-19-2011 - Page 8 The Hearings Official addresses this issue on pages 4 and 5 of the decision (pages 44‐45 of the record). The appellant asserts the Hearings Official failed to look at the plain language that required such a meeting. The applicant submitted the initial application within the required 180 day timeframe but later added a concurrent CUP after of the 180 day timeframe following the neighborhood/applicant meeting. The Hearings Official found that the intent of the meeting is to share information and the proposal did not change from the time of the meeting to submittal of the CUP application. In addition, staff notes there appears to be no substantive error raised with regard to any of the applicable CUP or PUD approval criteria. Northgreen Property Eighth Assignment of Error Metro Plan Policies The Hearings Official addresses this issue on pages 5‐10 of the decision (pages 45‐50 of the record). The appellant asserts that the Hearings Official erred in concluding that Metro Plan policies are not independent review standards on which to judge an application. Micheal Reeder’s August 31, 2011 letter and testimony provided at the public hearing further elaborates the appellants position that the Hearings Official erred by concluding that Environmental Design Element Policy E.4 of the Metro Plan was not an independent criterion for approval of the application. The Hearings Official noted that this policy provides broad policy direction and thoroughly explains the proper use of the Metro Plan and policies, also specifically noting that several of the policies which are relevant are implemented by other specific approval criteria for the applications. Northgreen Property Ninth Assignment of Error Health and Safety – EC 9.8320(6) The Hearings Official addresses this issue on pages 20‐21 of the decision (pages 60‐61 of the record). The appellant asserts that the Hearings Official erred by not considering the health and safety effects of excessive noise. The appellant notes that while the Hearings Official addressed health risks by addressing Radio Frequency (RF) emissions, no mention is made of the health concerns posed by noise. The Hearings Official found that the proposal will not be a significant risk to public health and safety, as compliance with FCC emission requirements were met. While the Hearings official did not specifically address noise as a health and safety issue under the discretionary PUD approval criteria as the appellant suggests is needed, the decision thoroughly addresses the issue of noise impacts in context with other more specific governing standards and approval criteria for telecommunication facilities, including federal standards. As the Hearings Official already provided a condition of approval ensuring compliance with the telecommunications standards at EC 9.5750(7)(f) which set a noise threshold of 45dBA, if the 9 PC AIS 09-19-2011 - Page 9 Planning Commission feels that noise should have been further addressed as a public health and safety concern under EC 9.8320(6), additional findings could be made to address the issue. Staff suggests that the findings, condition and conclusions set forth at EC 9.8320(11)(k) could also be incorporated under this criterion to show compliance. Northgreen Property Tenth Assignment of Error Alternative Sites Analysis – EC 9.5750 The Hearings Official addresses this issue on pages 29‐31 of the decision (pages 69‐71 of the record). The appellant asserts that the decision did not adequately discuss the applicant’s lack of substantial evidence regarding this analysis. The Hearings Official notes that the standard at EC 9.5750(7) does not address how many alternative sites should be analyzed or provide further guidance. The Hearings Official addresses this issue and discusses an Oregon Court of Appeals case in relation to this issue. The Hearings Official concluded that while the evidence provided in regards to this analysis was “minimal” there is no requirement that the applicant selects an alternative site and as such, in this case the basic requirement had been met. Northgreen Property Eleventh Assignment of Error Minimal Off‐Site Impacts – EC 9.8320(12) The Hearings Official addresses this issue on pages 42‐43 of the decision (pages 82‐83 of the record). The appellant asserts that this criterion was not met, especially in regards to noise impacts. The Hearings Official provides findings that address traffic, noise, stormwater, environmental quality, RF emissions and aesthetic impacts. The Hearings Official incorporated EC 9.5750(7)(f) by reference in regards to noise. The Hearings Official’s approach was to require undergrounding of the ancillary facilities and a new noise study. If the Planning Commission determines that the Hearings Official erred with regard to EC 9.8320(12), additional findings conditions could be made to address those concerns upon further deliberation. Northgreen Property Twelfth Assignment of Error Compatibility and Harmony with the Adjacent and Nearby Uses The Hearings Official addresses this issue on pages 43‐44 of the decision (pages 83‐84 of the record) in relation to EC 9.8320(13). The appellant asserts that the Hearings Official wrongly concluded this criterion was met because it met many of the measurable standards. Micheal Reeder’s August 31, 2011 letter and testimony provided at the public hearing noted that the condition of approval provided by the Hearings Official (which requires a landscape architect to work with neighbors to develop a screening plan) is fraught with ambiguity and uncertainty and does not address that the top of the 75‐foot tower cannot be screened. 10 PC AIS 09-19-2011 - Page 10 Additional testimony provided also asserts the by incorporating other standards by reference the Hearings Official does not sufficiently address how compliance with those standards make the tower compatible and harmonious. The Hearings Official noted that compatibility is a very subjective standard and what one person believes is compatible another person might believe is very incompatible. Further, he notes that City Council has already determined that telecommunications towers are permissible under the applicable R‐1 zoning and therefore in close proximity to residences. What is essentially left for the Hearings Official to decide is the impact of the tower at this location, in context with the applicable approval criteria, not towers in general. The Hearings Official then incorporated the findings and conclusions from EC 9.8320(3) which address screening from surrounding properties, in determining that the approval criterion was met. Northgreen Property Thirteenth Assignment of Error Livability – EC 9.8090(2) The Hearings Official addresses this issue on pages 45‐46 of the decision (pages 85‐86 of the record). The appellant asserts that the Hearings Official erred in concluding that a portion of the criterion did not apply to the proposal. The Hearings Official notes that subsection (a) ensures buildings are appropriately sized for their use. The use in this case is a cell tower, not a building, and subsection (a) is not applicable. While the appellant asserts that the equipment may be buildings, the use is a cell tower which is not a building. Under subsection (b), the Hearings Official also provides findings that address noise, glare and radio frequency emissions. The Hearings Official incorporated EC 9.5750(7)(f) by reference in regards to noise, and part of the Hearings Official’s approach was to require undergrounding of the ancillary facilities. As discussed above, undergrounding the ancillary facilities could alter the current application so substantially that a new application is needed, and the feasibility of the related approval condition may not be based on adequate evidence in the record. ATTACHMENTS The entire record of materials for the subject applications, including the Hearings Official’s decision is available for review at the Eugene Planning Division offices, and will be provided to the Planning Commission under separate cover. The record of materials will also be made available for review at the Planning Commission public hearing, and any follow‐up deliberation meetings on this matter. For convenience, the following relevant item is attached for reference: 1. Memorandum from City staff dated September 12, 2011 FOR MORE INFORMATION: Please contact Steve Ochs, Eugene Planning Division, by phone at (541) 682‐5453, or by e‐mail at steve.p.ochs@ci.eugene.or.us 11 PC AIS 09-19-2011 - Page 11 PC AIS 09-19-2011 - Page 12  Planning & Development Planning City of Eugene th 99 West 10 Avenue Eugene, Oregon 97401 (541) 682-5377 (541) 682-5572 FAX MEMORANDUM www.eugene-or.gov/planning Date: September 14, 2011 To: Eugene Planning Commission From: Steve Ochs, Associate Planner Subject: Appeal of Hearings Official Decision: AT &T Cell Tower – Oakway Golf Course (PDT 10-2 & CU 11-1) ________________________________________________________________________________ BACKGROUND: This memorandum is a response to questions posed by the Planning Commission following the public hearing on the appeal on these applications and subsequent deliberation on September 6, 2011. Following are the numbered questions and the staff response. STAFF RESPONSE TO PLANNING COMMISSION QUESTIONS: Following the public hearing and at subsequent deliberations on September 6, 2011, the Planning Commission asked for staff to respond to questions regarding the application. The questions are listed below with a staff reponse for each. 1. How does staff interpret the noise standard? Staff’s reading and application of this standard is that it requires noise-generating equipment to be sound-buffered, to reduce its sound level measured at the property line to 45 dBA. This is consistent with the Hearings Official’s reading and application of the standard, which staff believes is based on a proper and plain reading of its text (see staff seport at page 449 of the record, and the Hearing’s Official’s decision on page 75 of the record). The standard is clear in that it makes no reference to pre-existing noise sources or other ambient noise. The Hearings Official made the following findings in response to the opponents alternative interpretation, which would include additional noise sources beyond those proposed in this application or under the applicant’s control: “The effect of Mr. Kloos’s interpretation would be to require the applicant to reduce existing sound levels from sources not related to the application and not within the applicant’s control to meet this standard. The hearing official has heard of regulatory requirements similar to this, but not without more robust and detailed requirements for how to contact other owners AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 13 (PDT 10-2 & CU 11-1) Page 1  and obtain access to their property; what “fixes” are required; liability for those “fixes”; and other issues associated with one person performing mitigation work on another’s property. Here, without such detail, the hearing official cannot conclude that the City Council intended this criterion to prohibit new sound-creating uses where sound already exceeds 45 dBA.” While interpreting that the 45 dBA applied only to sound levels generated from the proposed telecommunications equipment, the Hearings Official also found that that applicant did not comply with this noise standard and provided a condition of approval (see page 78 of the record) to ensure the noise standard would be met. The condition requires a new noise study with the ancillary facilities undergrounded. 2. How is the ambient noise standard applied for on-site and off-site sources? The standard is very brief. How is the noise standard typically applied? There is no “ambient noise standard” to apply in this instance. As noted above, the standard does not include any reference to ambient noise. Staff and the Hearings Official concur that the noise standard only applies to the noise-generating equipment proposed as part of the application for placement of telecommunication facilities. This is consistent with regular practice in applying the standard, which is reflected in the record as it relates to the example of Masters Towers LLC, SR 01- 33 (see beginning on page 142 of the record). In that decision, the findings in regards to the noise standard (at page 158 of the record) note that the ancillary facilities would not produce sound levels in excess of the standard, and therefore, no additional buffering was required. There is no indication that other sound sources were measured to demonstrate compliance with the noise standard. 3. Could one interpretation be that the standard is intended to measure all noise generated from the property instead of from the specific equipment? In staff’s opinion, the language clearly limits the scope to nosie generated by equipment proposed as part of telecommunications facility. There is no reference to existing noise on the property. 4. What is the legislative background in regards to the noise standard? Legislative history is only relevant if the Planning Commission finds that ambiguity in the plain language of the standard, and its code language context, create the need to look further to properly interpret and apply it. If the Planning Commission agrees with staff and the Hearings Official’s reading of the standard that it relates specifically to reducing sound from the proposed noise- generating equipment, there is no need to further rely on legislative history. The only relevant legislative background in the record appears to be Ordinance 20078 and related findings which adopted the telecommunications standards (see beginning at page 407 of the record). As noted in the findings at the time of adoption, the intent of the standards was to reduce the operational, visual, and potential nuisance impacts of telecommunications facilities on the surrounding neighborhood. AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 14 (PDT 10-2 & CU 11-1) Page 2  5. How best to address the varying professional opinions on the noise standard? One aspect of the Planning Commission’s role in this appeal is to determine whether the Hearings Official erred in his evaluation of competing evidence under the applicable standard. The Hearings Official addresses the varying professional opinions on the noise standard beginning on page 36 of the decision (see beginning at page 76 of the record). He discusses four main differences of opinion between the engineers in relation to ambient noise conditions, actual site conditions, different octaves and enclosures. He concludes that the entirety of the evidence does not demonstrate that the tower equipment would comply with the noise standard. He also notes that, while the raw numbers seemed to support the applicant, upon further analysis provided by opponents that the applicant did not directly respond to, he could not conclude that the applicant’s evidence demonstrated compliance. The Hearings Official concludes that here, “where the applicant’s engineers do not explain their assumptions and calculations after another qualified person has raised questions about them, the hearing official cannot conclude that those reports demonstrate compliance”. 6. Does the City have mapping of ambient noise levels? Staff is not aware of any City mapping of ambient noise levels, and none is included in the record for this application. The only noise information in the record is from the applicant and appellant. 7. How did City Council decide on the 45 dba threshold? The 45 dba threshold was implemented by Ordinance 20078 (see beginning at page 407 of the record) in 1997 as part of the City’s effort to comply with federal telecommunications law by creating local zoning regulations for the siting of telecommunication facilities. As noted above, only in limited circumstances is legislative history relevant to consider. Even in the event that legislative history could be considered in this instance, the relevant materials in the record appear to be inconclusive at best, in answering this question. If the Planning Commission agrees with staff and the Hearings Official’s reading of the standard, there is no need to further review or rely on the legislative history. 8. Are there other noise standards applicable to the application, such as the State OAR and City Noise Regulations? The State and other City Noise regulations are not approval criterion in the context of this application. These standards can be enforced independent of this application, so it is in the applicant’s best interest to ensure the development proposal, as approved would meet all other noise standards. The Hearings Official addresses the state noise standard on page 37 of the decision (page 77 of the record) but does not conclude if the state noise standard is, or isn’t met. Appellant raises the state noise standards in a memorandum from Arthur Noxon dated July 6, 2011 (at page 243 of the record). Applicant provides updated acoustical report beginning on page 253 of the record. 9. What does “obviate” mean. [Please discuss legislative history and how it has been implemented in practice.] AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 15 (PDT 10-2 & CU 11-1) Page 3 There are several differing interpretations reflected in the record of what the term “obviate” means, in regards to the applicable standards. As discussed above, the Hearings Official interpreted it to mean that the 45 dba standard needed to be met, and found that the evidence did not support a conclusion that the standard had been met in this instance. The appellant argues that it means to completely eliminate the noise. A third possible interpretation would be to first determine the level of noise that would come from undergrounded facilities. If above ground facilities generated no more noise than undergrounding, the noise could be considered “obviated”. However, there is no evidence in the record to show how much noise an underground facility would create. As noted above, only in limited circumstances is the legislative history relevant or permissible to consider. Even in the event that legislative history could be considered in this instance, again, the relevant materials in the record appear to be inconclusive at best, in answering this question. If the Planning Commission agrees with staff and the Hearings Official’s reading and application of the term, there is no need to further rely on legislative history. 10. Are alternative designs required when applying for a variance? Do you have to prove ahead of time that the code requirements could still be reasonably achieved without one? Are you required to demonstrate the challenge or obstacle that a variance would eliminate? No. The relevant variance criteria are unique to telecommunications facilities under the Eugene Code, and differ from the “typical” variance criteria which generally require an applicant to demonstrate the existence of extraordinary circumstances or physical hardships outside their control. The standards for telecommunication facilities in R-1 require that the ancillary equipment must be located underground to the maximum extent technology allows, unless a variance is obtained. A variance may be granted upon finding that the design, landscaping and configuration of the site obviate the need for compliance. No alternative designs are required when applying for such a variance, and there is no requirement to prove that compliance with code requirements could still reasonably be achieved without the variance. 11. If a variance is denied, is it typical to deny an entire application or condition an application? Is there a threshold of change that determines whether an application is denied or conditioned when a variance is denied? If it is determined that an application fails to meet one or more standards, it can be denied for lack of compliance, or it may be conditioned to remedy the non-compliance. Such a determination depends on the facts and evidence specific to a given application. There is no quantified threshold of change in this instance, to determine exactly when an application must be denied or conditioned when a related variance request is also denied. The Hearings Official addresses this “choice” on page 38 of his decision (at page 78 of the record), in denying the variance and conditioning the approval on a new noise study for underground equipment. 12. What reason was given for asking for the variance? The applicant notes that if the equipment is in a vault or underground shelter, there is little ability to maintain serviceability of the equipment. The applicant also asserts that undergrounding does not offer flexibility in changing out equipment. If the structure was underground, in the PUD writtend AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 16 (PDT 10-2 & CU 11-1) Page 4 statement, the applicant asserts it would need to move the tower further north due to proximity of the adjacent building (at page 933 of the record). 13. What are the PUD and CUP process differences? The applicant has submitted for concurrent approval of a PUD and a CUP. Both the PUD and CUP process are Type III application processes, with the Hearings Official as the initial decision-maker. The PUD requires completion of a Type II Final PUD application process following the tentative PUD, while the CUP has no such “follow-up” process. This primary difference in the process, one having a follow-up application process with public notice and opportunity for hearing, while the other doesn’t, is important as it relates to determining compliance with the conditions of approval (two in particular, related to a new noise study and additional landscape screening). The Hearings Official provided for conditions relating to noise and landscaping that require further review. The conditions of approval are defensible for the tentative PUD, because a Type II application for Final PUD will be required at a later time. The deferral of compliance with the conditions of approval to a later stage is defensible because the application process will require public notice and opportunity for a hearing, in compliance with statutory requriements. However, the CUP criteria also require compliance with the applicable telecommunications standards, and there is no later opportunity to which the Planning Commission can defer a discretionary determination of compliance with approval conditions for purposes of approving the CUP. Therefore, in the event that Planning Commission decides to conditionally approve the concurrent applications, staff recommends that the Hearings Official’s decision be modified to be clear that effectiveness of the CUP approval is contingent upon Final PUD approval. 14. What new evidence has been introduced that needs to be rejected? Two pictures by Bonnie Baker submitted in the appeal hearing on August 31, 2011 were not previously in the record and should be rejected. 15. What are the concerns and applicability of the Federal Telecommunications act? The telecommunications requirements adopted in the Eugene Code at EC 9.5750, were crafted to ensure that they are consistent with the requirements of 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 City’s policies and ordinance ensure that all providers in similar situations are treated in a similar fashion. The City worked to design the ordinance so that no barriers to market entry were created, consistent with federal requirements under the Act. As such, proper application of the City’s telecommunication standards must also be in compliance with the federal requirements. Significant public testimony was received noting concern about the health risks posed by the radio emissions from the cell transmission tower. City requirements regarding radio frequency (RF) emissions from the project were written to be consistent with the requirements of the Federal Telecommunications Act of 1996, which expressly prohibits any local or state municipality from making a decision based upon RF emissions. The City Attorney will also provide additional legal advice on this issue as needed. AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 17 (PDT 10-2 & CU 11-1) Page 5  16. What happens if Planning Commission makes a decision in conflict with Federal law? The City Attorney will provide further guidance, as needed, to ensure that the Planning Commission’s decision on this appeal does not conflict with Federal law. In the event of conflict, it is possible that court action could be taken and the decision could possibly be reversed or remanded. 17. What precedence is there for screening tall things such as water towers? The Hearings Official discusses adequate screening starting at page 10 of his decision (at page 50 of the record). The Hearings Official found that the term “adequate screening” is discretionary and did not agree with opponents that the term required making the object invisible. In the decision, the Hearings Official refers to Sunburst II Homeowners Association v. City of West Linn, 17 Or LUBA 401 (1989) in which LUBA upheld a city determination that the 25-foot trees would adequately buffer a 110-foot tall water tower. The Hearings Official points out that LUBA determined the term “adequate buffer” gave the city discretion, and did not require the city to ensure that views of the water tower would be eliminated. The Hearings Official further noted as applied in the past, the term “adequate screening” in the Eugene Code is similarly discretionary. Staff initially also refered to Goodpasture Island PUD for context in this case, and while the Hearings Official did not believe the term “adequate screening” refers to making objects invisible, he did not believe that the screening required for the three-story apartment buildings at issue in PDT 09-1 was a good comparison to the cell tower at issue here. In PDT 09-1, the surrounding development was entirely other multi-story residential apartment and retirement home buildings. Here, the proposed use is not similar in height, type, or use as the surrounding single-family residences or apartment buildings. Other than these two examples, there does not appear to be other precedence in the record for screening tall things such as water towers. The Hearings Official noted that the mid-section of the pole would probably be well screened by existing and proposed vegetation from most viewing points. The top of the tower -- the area above the bushy crowns and tops of coniferous trees -- is the portion of the tower that couldn’t be screened with anything close to the pole, as this area that must be kept clear in order for the antenna array to work. Aesthetically speaking, the pole will be visible against and contrast with the sky, especially as seen from below. Here, he noted, a landscape architect could assist with how to try to achieve screening (or masking) of the upper portion of the tower. The Hearings Official determined that a landscape architect is the appropriate professional to design adequate screening and required a condition of approval that a local landscape architect work directly with the adjoining properties to design screening that meets the owner’s needs (see discussion at pages 14 and 15 of his decision; pages 54 and 55 of the record). 18. Can the stealth design be conditioned? Conditioning approval upon a stealth design can only be done if there is enough information in the record to ensure it is feasible and could meet all other requirements. In this case, conditioning a AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 18 (PDT 10-2 & CU 11-1) Page 6 stealth design, without the benefit of having evidence of what the final design would look like and if it is feasible in the proposed location, would not be recommended. Staff discussed the feasibility of stealth design with the applicant and stealth design was also raised as an issue in the initial public hearing. The applicant noted early on in the process that a stealth design would limit co-location and coverage needs. After the hearing, the applicant provided a statement from their Radio Frequency Manager which discusses the possibilities and limitations of stealth design (at page 265 of the record). The statement noted that AT&T would not meet its coverage objectives within the 75-foot maximum height unless a “monopine” was approved with with a tapered crown that would not look natural and may have antennas visible. The statement did note that AT&T was willing to install a 75-foot monopine with a 5-foot tapered crown if the design and look was acceptable to the City. As site plans of this stealth design were never submitted for evaluation, the Hearings Official did not condition this option. 19. How are radio frequency emissions from the cell tower regulated? The Hearings Official addresses this issue on page 60 of the record, noting the following: “Significant public testimony was received noting concern about the health risks posed by the radio emissions from the cell transmission tower. City requirements regarding radio frequency (RF) emissions from the project were written to be consistent with the requirements of the Federal Telecommunications Act of 1996, which expressly prohibits any local or state municipality from making a decision based upon RF emissions. The FCC regulates such emissions. For reference, 47 USC § 332(c)(7)(B)(iv) states: No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s regulations concerning such emissions. The telecommunications standards at EC 9.5750(6)(b)(3) require documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards as set forth by the Federal Communications Commission (FCC). The City retains a consultant, Environalysis, LLC to review proposals for FCC compliance. The consultant confirmed that the emissions from this proposal do not exceed FCC standards. Because of the limited scope of a local government’s ability to consider health risk, the hearing official makes no judgment on any of the health risk materials that were provided as public comment.” AT&T Cell Tower – Oakway Golf Course PC AIS 09-19-2011 - Page 19 (PDT 10-2 & CU 11-1) Page 7