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, OCTOBER 3, 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 FINAL ACTION Deliberations and final 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 PC AIS October 3, 2011 - Page 1 PC AIS October 3, 2011 - Page 2  AGENDA ITEM SUMMARY October 3, 2011 To: Eugene Planning Commission From: Steve Ochs, Associate Planner, Eugene Planning Division Subject: Deliberations and Final Action on Appeal of Hearings Official Decision: AT&T Mobility Cell Tower – Oakway Golf Course (PDT 10-2 & CU 11-1) ACTION REQUESTED To finish appeal deliberations, and take final action to affirm, reverse, or modify the Eugene Hearings Official’s PUD and CUP approval for a new telecommunications tower facility at the Oakway Golf Course. BRIEFING STATEMENT In previous deliberations, the Planning Commission found that the Hearings Official correctly interpreted several key issues, including the application of the noise standard and denial of the variance. The Planning Commission’s earlier deliberations on Monday, September 26, 2011 provided additional guidance in resolving compliance with the noise standard and the condition of approval regarding visual impact. The Planning Commission found that the Hearings Official did not err by establishing the condition of approval to require a new noise study for undergrounded ancillary equipment, and modified a condition to ensure the location of the tower will not change when the equipment is undergrounded. The Planning Commission also indicated concern with the Hearings Official’s condition of approval addressing “adequate screening” (see Condition of Approval #2) for the proposed cell tower. The Commission discussed modifications to the screening condition to provide more clarity and certainty in its implementation, and to provide specificity as to which properties in the vicinity of the tower would be subject to additional screening requirements stated in the condition. Staff has included findings under each of the related the appeal issues in the attached, draft final order, to reflect the Commission’s deliberations summarized above. While the Planning Commission did not conclude its discussion with a final determination on the “adequate screening” issue, modifications have been made to the screening condition since the previous draft Final Order to ensure that the process of notifying property owners by a certified letter is required at the appropriate time. Additionally, staff proposes additional revisions for the Planning Commission to consider in more specifically identifying the properties that would be subject to the additional screening requirements of Condition of Approval #2. Planning Commission discussions included possibly defining the “vicinity of the tower” as 500 feet from the tower for properties adjoining the golf course, or by setting a radius based on a point on Spyglass Drive (which is located approximately 1,500 feet from the tower) that corresponded to properties that would have a view of the tower. 1 PC AIS October 3, 2011 - Page 3 To aid the Planning Commission in determining which specific properties should be addressed in the screening condition of approval, staff has provided 3 different maps, reflecting three options for identifying the properties which would be subject to the additional screening requirements under each scenario. The first map (Option 1) identifies ten properties adjoining the golf course which would be addressed by the condition of approval if a 500 foot radius from the tower is established. This radius does not appear to provide screening for properties straight to the south of the tower that the Planning Commission found may need screening. The second map (Option 2) identifies eighty-eight properties adjoining the golf course within a 1,500 foot radius from the tower (the approximate distance from tower to Spyglass Drive). This radius appears to encompass properties that are oriented away from the proposed tower. With the proposed language in the condition, this would result in the applicant being required to plant trees on or next to properties that do not face the tower. Staff has also taken the liberty to provide the Planning Commission a third map (Option 3), which identifies forty-seven properties adjoining the golf course within a 1,500 radius of the tower and are oriented with potential views of the proposed tower. The condition of approval has been modified so that whichever option the Planning Commission selects, the corresponding map and list of affected tax lots will be referred to in the condition of approval as an attachment. For purposes of further discussion, this possible modification to the approval condition is incorporated into the attached, draft final order. While the Planning Commission did discuss the adequate screening issue there was no further discussion about whether the condition of approval is appropriate as intended in this instance, to resolve concerns about visual impact from the proposed tower under several other applicable approval criteria at EC 9.8320(12), (13) and EC 9.8090(2). The Hearings Official largely relied on compliance with the screening requirements, undergrounding of ancillary facilities and noise standard, in determining that these additional criteria relating to compatibility and minimal off-site impacts and compatibility would also be met. If the Planning Commission decides this was appropriate, the Hearings Official’s decision should be affirmed on these issues, based on the modified conditions of approval regarding adequate screening, underground ancillary facilities, and noise. If the Commission determines decided this was not appropriate, it could be considered as a basis for further modification or denial. NEXT STEPS Staff recommends that the Planning Commission conclude its deliberations and make a final determination on the screening condition discussed above, followed by a discussion on assignments of error eleven, twelve and thirteen regarding off-site impacts, compatibility, and livability, and then review the remaining findings under each appeal issue in the draft final order attached. Due to local and statutory time limitations, the Planning Commission will need to make a final determination on these applications at this meeting, or with additional meetings by October 7, 2011. 2 PC AIS October 3, 2011 - Page 4 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 has been provided to the Planning Commission under separate cover. The record of materials will also be made available for review at the Planning Commission deliberation meetings on this matter. A draft final order is attached for reference, to help facilitate further deliberation and final action by the Planning Commission in this matter. 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 3 PC AIS October 3, 2011 - Page 5 PC AIS October 3, 2011 - Page 6  DRAFT FINAL ORDER, FINDINGS, AND CONCLUSIONS OF THE EUGENE PLANNING COMMISSION: AT&T MOBILITY CELL TOWER – OAKWAY GOLF COURSE (PDT 10-2 & CU 11-1) I. INTRODUCTION The Eugene Hearings Official held a public hearing for the subject Planned Unit Development and Conditional Use Permit applications on June 15, 2011. The Hearings Official issued a decision approving the concurrent land use applications on August 2, 2011. On August 15, 2011, two appeals of the Hearings Official’s approval 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. The New Cingular Wireless appeal is comprised of 2 assignments of error as reflected in the written statement submitted by Richard Busch. The Northgreen Property appeal consists of 13 assignments of error as reflected in the written statement submitted by Micheal Reeder. The appellants’ assignments of error are further addressed below. The appeals assert that the Hearings Official erred in his findings and decision with respect to applicable Eugene Code (EC) approval criteria at EC 9.8320 and EC 9.8090. On August 19, 2011, in accordance with EC 9.7655(1), the City mailed written notice of the appeal hearing to the applicant, the appellant, the Cal Young Neighborhood Association, all persons who submitted written comments in regard to the original applications, and all persons who requested notice. The written notice included the required elements set forth in EC 9.7655(2). The Planning Commission held a public hearing on the appeals, on August 31, 2011. At the public hearing, Richard Busch provided oral testimony on behalf of the applicant, New Cingular Wireless which is also is one of the appellants in this case. Area residents including Mike Lynch, Shelli Shaufler, Dwight Purdy, Craig Mckern, Jenny Soyke, Sheri Greatwood, Erica Apollo, Bonnie Baker and Dorothy Porter spoke in opposition to the application and in support of the appeal. Micheal Reeder and Sara Bennett provided oral testimony on behalf of the appellant, Northgreen Property LLC, and Bill Kloos spoke on behalf of the Oakway Neighbors group. Bob Proctor spoke in opposition to the application on behalf of the Cal Young Neighborhood Association. Richard Kang, an area resident spoke as a neutral party. The applicant’s counsel Richard Busch followed with rebuttal testimony. Written testimony was also provided by the parties and other individuals at the hearing which is included in the record and considered by the Planning Commission in its final decision, unless specifically excluded below. The Planning Commission closed the public hearing and the record on August 31, 2011. The Planning Commission deliberated on the appeal issues at its meetings on September 6, 19, and 26, 2011 and reached its final decision on October 3, 2011. The appeal is based on the record and limited to the assignments of error contained in the appeal statement submitted. As described below, the Planning Commission affirms the Hearings Official’s decision to approve the subject applications, with additional findings and modifications to approval conditions in some instances. Those additional findings and modifications are detailed below with respect to each related assignment of error. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 1 PC AIS October 3, 2011 - Page 7 II. RECORD BEFORE THE PLANNING COMMISSION The record before the Planning Commission consists of the Eugene Planning Commission Agenda Item Summaries and related attachments for Appeal of Hearings Official Decision: AT & T Mobility Cell Tower – Oakway Golf Course (PDT 10-2 & CU 11-1) dated August 31, 2011, September 19 and 26, 2011; the written and oral testimony presented by appellants, applicant, and other parties to the Planning Commission; the decision of the Eugene Hearings Official dated August 2, 1011; and all record materials (including written and oral testimony, City staff reports and application materials) presented to and not rejected by the Hearings Official. The entire City Planning & Development Department file was physically before, and subject to limited exceptions specifically stated in Section III of this Order, not rejected by, the Planning Commission prior to its final decision. 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 does not consider the following items as part of the Planning Commission’s decision on this appeal: 1. Two pictures submitted by Bonnie Baker in the August 31, 2011 public hearing. 2. A September 21, 2010 letter relating to a public records request, submitted by Northgreen Property as part of its appeal. 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. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW After consideration of the applicable law and all argument and evidence in the record, the Planning Commission finds that the subject applications meet all applicable PUD and CUP approval criteria from EC 9.8320 and EC 9.8090, with additional findings and modified conditions of approval described below. In the event of any conflict between the Hearings Official’s decision and this Final Order, this Final Order shall prevail. As noted above, the New Cingular appeal is comprised of 2 assignments of error and the Northgreen Property appeal consists of 13 assignments of error. To differentiate the appeals, the findings refer to the numbered appeal issues below under the heading of “New Cingular” or “Northgreen Property”. Each assignment of error is set forth below, followed by the Planning Commission's findings of fact and conclusions of law as to each one. New Cingular 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 Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 2 PC AIS October 3, 2011 - Page 8 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 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 his decision. He found that, based on testimony provided, 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). New Cingular did not provide the Planning Commission with additional argument to support its variance request. For the reasons explained in the Hearings Official’s decision, the Planning Commission finds that the Hearings Official correctly 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 underground. The Hearings Official’s 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. The Planning Commission finds that remanding the decision back to the Hearings Official is inappropriate in this case. 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. In this case, a remand would potentially allow substantial changes to the application which are more appropriately addressed through a new application. The Planning Commission also denies the appellant’s request to reopen the record and submit new evidence as part of these proceedings. Consistent with the August 17, 2011, decision of the Oregon Court of Appeals in Willamette Oaks v. City of Eugene, the Planning Commission may not accept new evidence pertaining to this issue. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 3 PC AIS October 3, 2011 - Page 9 As discussed below, the Planning Commission affirms the Hearings Official’s decision to deny the applicant’s variance request and modifies the condition of approval to require a new noise study for underground ancillary facilities. New Cingular’s first assignment of error is denied. New Cingular Second Assignment of Error and Northgreen Property First Assignment of Error: Appeal Fees New Cingular and Northgreen Property assert that the City’s appeal fees are not in compliance with applicable laws. Based on the August 17, 2011, decision of the Oregon Court of Appeals in Willamette Oaks v. City of Eugene, the Planning Commission may not accept new evidence pertaining to this issue. 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 specifically rejects the September 21, 2010 letter relating to a public records request proffered by Northgreen Property as part of its appeal on this issue. EC 9.7655(3) also 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. Based on the findings above, and in the absence of a specific criterion or related findings that would serve as a basis for error, Planning Commission denies New Cingular’s second assignment of error and Northgreen Property’s first assignment of error. Northgreen Property Second Assignment of Error Telecom Siting Standard for Noise – EC 9.5750(7)(f) – Error in Interpreting Standard The Hearings Official completed a detailed analysis of this issue on pages 35-38 of his decision. The Hearings Official concluded that without more robust evidentiary detail or detailed requirements in Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 4 PC AIS October 3, 2011 - Page 10 the code that clarify how the applicant was to address EC 9.5750(7)(f), the code does not prohibit new sound when ambient noise levels already exceed 45dBA, but rather limits new devices to adding no more than 45dBA. The appellant asserts that the 45dBa noise limit at EC 9.5750(7)(f) applies not only to noise emanating from telecommunications equipment measured at the receiving property line, but to all noise measurable at the property line. This issue was previously raised in testimony and the Hearings Official found that the interpretation provided by the appellant would incorrectly require the applicant to reduce existing noise levels from other sources not related to the application and not within the applicant’s control. The Planning Commission finds that the Hearings Official was correct in his application of 45dBa standard, specific to the noise-generating telecommunications equipment proposed in the application(s). The Planning Commission also finds that the standard does not necessarily preclude noise-generating telecommunications equipment when ambient noise may already exceed 45dBa. As explained in the September 14, 2011 memorandum from Associate Planner Steve Ochs to the Eugene Planning Commission, this determination is supported by the plain text of EC 9.5750(7)(f). Further, this is supported by the context provided by EC 9.5750(6)(b)5, which requires the applicant to submit “*d+ocumentation that the ancillary facilities will not produce sound levels in excess of those standards specified in subsection (7) of this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to those standards.” (emphasis added). Furthermore, the Planning Commission concludes that the Hearings Official did not err by establishing the condition of approval to require a new noise study for undergrounded ancillary equipment, so long as the condition is modified as necessary to ensure that other elements of the proposal (specifically, the location of the tower) will remain consistent with the applicable approval criteria. The modified condition of approval is provided under Northgreen Property’s third assignment of error, below. The Planning Commission therefore denies Northgreen Property’s second assignment of error. Northgreen Property Third Assignment of Error Telecom Siting Standard for Noise – EC 9.5750(7)(f) – Improper use of Conditioning The Hearings Official completed a detailed analysis of this issue on pages 35-38 and 40-41 of his decision. Based on the evidence provided, he found that the applicant did not comply with the noise standard at EC 9.5750(7)(f). 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 and, therefore satisfy EC 9.5750(7)(f), but there was nothing in the record to support this seemingly obvious conclusion. As a result, he correctly imposed 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 site plan that does not include a variance to the undergrounding requirements of EC 9.5750(8). 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. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 5 PC AIS October 3, 2011 - Page 11 The appellant asserts that the Hearings Official should have denied the application, 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. The Planning Commission finds that Hearings Official did not err in deferring a determination of compliance with the applicable noise standard with this condition of approval, because a Type II final PUD application will be required at a later time with public notice and opportunity for hearing. Like the PUD, a CUP approval also requires the applicant to demonstrate consistency with the noise standard at EC 9.5750(7)(f). As noted above, there is no evidence in the record to demonstrate that the noise standard at EC 9.5750(7)(f) has been met. Unlike the PUD process, the CUP process is not a two-stage approval process, so independently there would be no later opportunity to which the Planning Commission could defer the determination for purposes of approving the CUP. As such, and because these are concurrent applications, the Planning Commission adds a condition of approval below (see Condition #10) to clarify that the effectiveness of CUP approval is contingent upon final PUD approval. Through that Type II final PUD application process, the noise standard (and compliance with other conditions of approval) will be addressed with public notice and opportunity for hearing, consistent local code and statutory requirements. The Planning Commission finds that the Hearings Official correctly denied the applicant’s variance, thereby requiring the ancillary equipment underground, because it did not meet the 45dBa noise standard and thus failed to meet the requirement to “obviate” the need for compliance. Based on the available information in the record, the Planning Commission also concludes that the applicant failed to demonstrate that undergrounding the ancillary equipment would not be possible based on available technology. While the applicant’s statement about possible relocation as a result of undergrounding the ancillary equipment is not entirely clear, it appears to be in made in reference to the equipment location, not the tower. To address the concern about tower relocation, the Planning Commission modifies the approval condition below to clarify that relocation of the proposed tower is not allowed as a result of the requirement to install underground ancillary facilities. Condition of Approval #1 (as modified): The applicant shall submit a new site plan with the ancillary equipment for the tower placed underground. The tower shall remain in exactly the same location as initially proposed in the tentative PUD and CUP applications. Condition of Approval #6 (as modified): For review as part of the final PUD approval process, the applicant shall provide a revised noise study demonstrating compliance with EC 9.5750(7)(f). The noise study shall be for a proposal that does not include a variance pursuant to EC 9.5750(9)(c). Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 6 PC AIS October 3, 2011 - Page 12 Condition of Approval #10 (added): The CUP approval shall only be effective upon final PUD approval, with a determination of compliance with approval conditions as part of the required Type II review process for final PUD approval. With these additional findings and modifications, the Planning Commission concludes that the Hearings Official did not err by requiring a new noise study for undergrounded ancillary equipment and therefore denies Northgreen Property’s third assignment of error. Northgreen Property Fourth Assignment of Error Telecom Siting Standards for Variance to Undergrounding – EC 9.5750(9)(c) – Erroneous Interpretation The Hearings Official provides a detailed analysis of this issue on pages 40-41 of his decision. He determined that a variance to allow facilities above ground could be granted if an applicant demonstrated that the sound emanating from its ancillary facilities, as measured at the property line would be 45dBa or less with above ground facilities. However, the Hearings Official found that the applicant 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 would only be appropriate if an applicant’s proposal eliminates all noise from the facility. Whether, or not, the Hearings Official was correct in his interpretation is irrelevant as the Planning Commission agrees with the Hearings Official that the applicant failed to demonstrate that its proposed above ground facilities would produce less than 45dBa at the property line as required by EC 9.5750(7)(f). As the Planning Commission has determined that the applicant’s evidence was insufficient to demonstrate that the 45dBa standard was met, it is unnecessary necessary for the Planning Commission to make any further interpretation of the term “obviate” as used in the text of EC 9.5750(9)(c) because, under any reasonable interpretation, the applicant failed to meet its burden of proof. While there is no need to make a formal interpretation, the Planning Commission concludes that the Hearings Official made a permissible reading of subsection (9)(c) in this instance. As the noise standard was not met and the variance was correctly denied, the Planning Commission will not further speculate as to whether or how the applicant may have met the requirement to “obviate” the need for compliance for above ground facilities. Planning Commission concurs with the Hearings Official’s footnote that a request for variance approval would also need to address other factors under the variance criteria such as stealth design, proposed landscaping, configuration or presence of mature trees. The Planning Commission therefore denies Northgreen Property’s fourth assignment of error. Northgreen Property Fifth Assignment of Error PUD Standards for Screening EC 9.8320(3) – Naked Top Third of Monopole is not “Adequate Screening” Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 7 PC AIS October 3, 2011 - Page 13 The Hearings Official completed a detailed analysis of this issue on pages 12-15 of the Hearings Official decision. The appellant asserts that the entire monopole needs to be screened to some degree to support a finding of “adequate screening”. As to the interpretation of the term “adequate screening,” after evaluating the available evidence and meaning of relevant terms, the Hearings Official found that a condition of approval was needed to ensure the requirement would be 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 completely screened from all angles, with the condition, the Hearings Official found that the pole would be “adequately screened.” The Planning Commission concludes that while the Hearings Official erred with respect to the condition of approval to ensure adequate screening under assignment of error six, the Hearings Official did not err in his interpretation what is meant by “adequate screening” as provided at EC 9.8320(3). The Planning Commission therefore denies Northgreen Property’s fifth assignment of error. Northgreen Property Sixth Assignment of Error PUD Standards for Screening – EC 9.8320(3) – Requirement for New Landscape Plan The Hearings Official completed a detailed analysis of this issue on pages 12-15 of his decision, finding that a condition of approval was required to ensure adequate screening. He found that “it is appropriate for the applicant to have the landscape architect work with those owners as well to determine how to best screen (or mask) the base of the tower. The recommendation in the staff report for the applicant to plant up to two trees on the property lines of the adjoining homes correctly places the burden of screening on the applicant, but does not ensure effective screening. What is needed is individual attention to each property owner and the unique visual challenges from each home and yard.” 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. The Hearings Official provided the following under Condition of Approval #2: The applicant shall engage a local (mid-Willamette Valley) landscape architect (no other professional will be acceptable) to develop a comprehensive screening plan for the proposed tower to be incorporated into the final tree preservation/landscape plan (Sheet L- 1). The landscape architect must consider views of the tower from the homes and yards that adjoin the subject property in the vicinity of the tower, including the Northgreen Apartments. The landscape architect shall work directly with the landowners of the adjoining properties to design screening that meets those owners’ needs. The screening may be located on the subject property, the property of the adjoining owners (with their consent), or both. The final tree preservation/landscape plan (Sheet L-1) shall show the location and species of existing trees and new screening vegetation to be planted on the development site and adjoining properties and shall list the following requirements: Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 8 PC AIS October 3, 2011 - Page 14  • New trees to be planted on the development site shall be a minimum caliper of 2” for deciduous trees and a minimum height of 6-feet for coniferous or evergreen trees at time of planting. • The proposed trees shall be planted a minimum of ten feet from structures and must be located outside any easements. • The plantings must be inspected and approved prior to the City granting final approval of the building permit. • Watering and general maintenance of replacement trees, new vegetation, and other screening on the subject property shall be conducted by the owner or lessee of the subject property in a manner that ensures establishment and long-term survival. Maintenance of any screening located on the adjoining properties shall be the responsibility of the owners of those properties. • The cost of the landscape architect and initial implementation of the screening plan shall be the responsibility of the applicant. The Planning Commission agrees with the Hearings Official’s findings on several points, including the determination that it is reasonable to impose a condition of approval to ensure adequate screening, and that a landscape architect is the appropriate design professional to determine how best to provide the screening, but finds that the Hearings Official erred in providing this specific condition for three reasons. First, as drafted by the Hearings Official, it may be an unreasonable condition for the applicant to achieve. The condition does not address what screening will be provided if a landowner refuses to meet with the applicant or if there is no agreement reached as to the best screening option for the homeowner. Second, reference to adjoining properties “in the vicinity of the tower” is not sufficiently specific to determine what locations must be evaluated for adequate screening. Third, the process for ensuring that the screening is implemented is not specified. To ensure that the condition is one the applicant can implement, a “fall back” screening requirement will be added, to ensure that if no agreement is made with the landowner, adequate screening is still provided. Additionally, specific properties are identified for screening. Finally, the final PUD process is an appropriate time to ensure the condition is met. 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 a condition. As modified, Condition of Approval #2 shall read as follows: The applicant shall engage a local (mid-Willamette Valley) landscape architect (no other professional will be acceptable) to develop a comprehensive screening plan for the proposed tower to be incorporated into the final tree preservation/landscape plan (Sheet L- 1). The screening plan must include a narrative demonstrating that the landscape architect considered views of the tower from the homes and yards of properties shown and listed on Attachment A. The landscape architect shall work directly with the land owners of these properties and shall design screening that addresses the concerns expressed by the landowners. The screening may be located on the application site, or on another property (with the consent of the land owner), or both. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 9 PC AIS October 3, 2011 - Page 15  To demonstrate compliance with this condition, the applicant shall mail a certified letter describing this requirement and requesting an opportunity to work with the identified land owners to provide adequate screening from the proposed telecommunications tower, and noting that the land owner has 30 days from receipt of the letter to respond. If a land owner does not respond to the applicant in writing within 30 days, the applicant will not be required to provide any additional trees to address 9.8320(3) as it pertains to that property. The letter shall also note that, in the event of documented failure to reach agreement on the provision of adequate screening (including the number, species and location of new plantings) after contact with a land owner, the applicant will only be required to provide the following: 1) If the subject property is the Northgreen Apartments property, a minimum of 8 evergreen or deciduous trees on the Oakway Golf Course planted within 20 feet of the adjoining Northgreen Apartments property line. 2) A minimum of 2 evergreen or deciduous trees on the Oakway Golf Course planted within 20 feet of each adjoining property line for all other properties shown and listed on Attachment A. The final tree preservation/landscape plan (Sheet L-1) shall be certified by the landscape architect as meeting these requirements and show the location and species of existing trees and new screening vegetation to be planted on the development site and adjoining properties (in accordance with land owner responses) and contain the following notes: • New trees to be planted on the development site shall be a minimum caliper of 2” for deciduous trees and a minimum height of 6-feet for coniferous or evergreen trees at time of planting. • The proposed trees shall be planted a minimum of ten feet from structures and must be located outside any easements. • The plantings must be inspected and approved prior to the City granting final approval of the building permit. • Watering and general maintenance of replacement trees, new vegetation, and other screening on the subject property shall be conducted by the owner or lessee of the subject property in a manner that ensures establishment and long-term survival. Maintenance of any screening located on the adjoining properties shall be the responsibility of the owners of those properties. • The cost of the landscape architect and initial implementation of the screening plan shall be the responsibility of the applicant. Compliance with this condition of approval shall be demonstrated as part of the final PUD approval process. With these additional findings and imposition of the modified condition of approval, the Planning Commission denies the appellant’s sixth PUD assignment of error. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 10 PC AIS October 3, 2011 - Page 16  Northgreen Property Seventh Assignment of Error Neighborhood Applicant Meeting – EC 9.7007(2) Applicant Meeting Required for PUD Application The Hearings Official addresses this issue on pages 4 and 5 of his decision. 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 application after the 180 day timeframe following the initial neighborhood/applicant meeting. The Hearings Official correctly 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, there is no substantive error raised with regard to any of the applicable CUP or PUD approval criteria under this assignment of error. The Planning Commission therefore denies Northgreen Property’s seventh assignment of error. Northgreen Property Eighth Assignment of Error Metro Plan Policies The Hearings Official addresses this issue on pages 5-10 of his decision. 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 elaborate the appellant’s 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 Planning Commission concludes that Metro Plan Policy E.4 is not an independent, mandatory approval criterion in this instance. The Hearings Official correctly found this policy to provide broad direction and, as applied to a PUD and CUP, the policy is implemented by numerous criteria, including EC 9.8320(3), (4), (8), (12), (13) and EC 9.8090 (2) and (3). The Hearings Official correctly explains the proper use of this and other Metro Plan policies in his decision, also specifically noting that several of the other policies which are relevant are implemented by other specific approval criteria for the applications. To the extent the policy is relevant or could be interpreted as part of the approval criteria in this instance, the Planning Commission has considered it and finds that the intent of the policy is met based on the Hearings Official’s decision and the additional findings and modified conditions of approval included elsewhere in this Final Order. The Planning Commission therefore denies Northgreen Property’s eighth assignment of error. Northgreen Property Ninth Assignment of Error Health and Safety – EC 9.8320(6) The Hearings Official completed a detailed analysis of this issue on pages 20-21 of his decision. He found that the proposal will not be a significant risk to public health and safety, as compliance with FCC emission requirements were met. The appellant asserts that the Hearings Official erred by not considering the health and safety effects of excessive noise. While the Hearings Official did not Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 11 PC AIS October 3, 2011 - Page 17 more 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. With the additional findings and modified conditions of approval addressing noise impacts and requirements for undergrounding ancillary equipment above, and to the extent that noise impacts may also be relevant under EC 9.8320(6), the Planning Commission concludes that the PUD approval criterion is met. The Planning Commission therefore denies Northgreen Property’s ninth assignment of error. Northgreen Property Tenth Assignment of Error Alternative Site Analysis – EC 9.5750(6)(c)(2) The Hearings Official evaluated this issue on pages 29-31 of his decision. The appellant asserts that the decision “did not adequately discuss the applicant’s lack of substantial evidence in the record concerning the ability of the applicant to meet this criterion” and asserts that the required alternative site analysis was deficient. The Hearings Official correctly 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 correctly 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. The Planning Commission therefore denies Northgreen Property’s tenth assignment of error. Northgreen Property Eleventh Assignment of Error Minimal Off-Site Impacts – EC 9.8320(12) The Hearings Official completed a detailed analysis of this issue on pages 42 - 43 of his decision. The appellant asserts that this criterion was not met, particularly with respect to noise and aesthetic impacts. The Hearings Official provides findings that address traffic, noise, stormwater, environmental quality, RF emissions and aesthetic impacts. The Hearings Official incorporated his findings under 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. With additional findings and modified conditions of approval noted above, including the revised requirements to ensure adequate screening to address visual impact, the Planning Commission concludes that the PUD approval criterion at EC 9.8320(12) is also met. The Planning Commission therefore denies Northgreen Property’s eleventh assignment of error. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 12 PC AIS October 3, 2011 - Page 18  Northgreen Property Twelfth Assignment of Error Compatibility and Harmony with the Adjacent and Nearby Uses – EC 9.8320(13) The Hearings Official addresses this issue on pages 43-44 of his decision. He notes 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 incorporates the findings and conclusions from EC 9.8320(3) in determining that the approval criterion was met. In its appeal statement and as part of Mr. Reeder’s August 31, 2011 memo to the Planning Commission, the appellant asserts that the Hearings Official erred in concluding that, because the application met many of the objective standards for telecommunications facilities, this criterion was met. The appellant also notes 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 fails to adequately screen the top portion of the tower. The Planning Commission notes that the limitations set out by measurable standards, such as height, setbacks and noise, combined with the additional findings and modified conditions of approval to address screening requirements at EC 9.8320(3), and undergrounding of the ancillary equipment with respect to EC 9.5750(7)(f) and (8), the PUD approval criterion at EC 9.8320(13) will also be met. The Planning Commission therefore denies Northgreen Property’s twelfth assignment of error. Northgreen Property Thirteenth Assignment of Error Livability – EC 9.8090(2) The Hearings Official addresses this issue on pages 45-46 of his decision. He notes that EC 9.8090(2)(a) ensures buildings are appropriately sized for their use. He correctly finds that the structure in this case is a cell tower, not a “building” as that term is defined in EC 9.0500 and used in subsection (a), and therefore this subsection is not applicable, contrary to the appellant’s assertions. The appellant asserts that even though the tower is not a building as that term is defined, the ancillary facilities may be since they store and shelter equipment. Under subsection (b), the Hearings Official also provides findings that address noise, glare and radio frequency emissions. As to the appellant’s further assertion that the Hearings Official erred by not imposing increased setbacks to mitigate impacts on surrounding residential uses, the Planning Commission disagrees and finds that the proposed facility provides ample setbacks, well beyond the minimum requirements (being 102’ 6” from the nearest property line). With the additional findings, as well as modified and new conditions of approval above, including the requirements for additional screening, placing the ancillary equipment underground and a new condition (Condition #10) that the CUP approval shall only be effective upon final PUD approval, the Planning Commission concludes that the CUP criterion at EC 9.8090(2) is also met. The Planning Commission therefore denies Northgreen Property’s thirteenth assignment of error. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 13 PC AIS October 3, 2011 - Page 19 IV. CONCLUSION The Eugene Planning Commission has reviewed the record and the appellants’ assignments of error, and has voted to modify and affirm the decision of the Hearings Official to conditionally approve the tentative PUD and CUP requests for AT&T Mobility – Oakway Golf Course (PDT 10-2 and CU 11-1). Additional findings and modified conditions of approval are provided in Section III of this Final Order; the modified conditions of approval are also included below for reference. All other conditions imposed by the Hearings Official remain applicable as set out in the Hearings Official’s decision. Condition of Approval #1 (as modified): The applicant shall submit a new site plan with the ancillary equipment for the tower placed underground. The tower shall remain in exactly the same location as initially proposed in the tentative PUD and CUP applications. Condition of Approval #2 (as modified): The applicant shall engage a local (mid-Willamette Valley) landscape architect (no other professional will be acceptable) to develop a comprehensive screening plan for the proposed tower to be incorporated into the final tree preservation/landscape plan (Sheet L- 1). The landscape architect must consider views of the tower from the homes and yards of properties shown and listed on Attachment A. The landscape architect shall work directly with the landowners of these adjoining properties to design screening that meets those owners’ needs. The screening may be located on the subject property, the property of the adjoining owners (with their consent), or both. The applicant shall mail a certified letter describing this requirement and requesting an opportunity to work with the identified adjoining owners to provide adequate screening for the proposed telecommunications tower, and note that the property owner has 30 days from receipt of the letter to respond. If the property owners do not respond to the applicant in writing within 30 days, the applicant will not be required to provide additional trees along that lot boundary. The letter shall also note that, in the event of documented failure to reach agreement on the provision of adequate screening (including the number, species and location of new plantings) after contact with adjoining owners, the applicant will only be required to provide the following: 1) If the subject property is the Northgreen Apartments property, a minimum of 8 evergreen or deciduous trees on the Oakway Golf Course planted within 20 feet of the adjoining Northgreen Apartments property line. 2) A minimum of 2 evergreen or deciduous trees on the Oakway Golf Course planted within 20 feet of each adjoining property line for all other properties shown and listed on Attachment A. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 14 PC AIS October 3, 2011 - Page 20  The final tree preservation/landscape plan (Sheet L-1) shall be certified by the landscape architect as meeting these requirements and show the location and species of existing trees and new screening vegetation to be planted on the development site and adjoining properties (in accordance with property owner responses) and contain the following notes: • New trees to be planted on the development site shall be a minimum caliper of 2” for deciduous trees and a minimum height of 6-feet for coniferous or evergreen trees at time of planting. • The proposed trees shall be planted a minimum of ten feet from structures and must be located outside any easements. • The plantings must be inspected and approved prior to the City granting final approval of the building permit. • Watering and general maintenance of replacement trees, new vegetation, and other screening on the subject property shall be conducted by the owner or lessee of the subject property in a manner that ensures establishment and long-term survival. Maintenance of any screening located on the adjoining properties shall be the responsibility of the owners of those properties. • The cost of the landscape architect and initial implementation of the screening plan shall be the responsibility of the applicant. Compliance with this condition of approval shall be demonstrated prior final PUD approval. Condition of Approval #6 (modified) For review as part of the final PUD approval process, the applicant shall provide a revised noise study demonstrating compliance with EC 9.5750(7)(f). The noise study shall be for a proposal that does not include a variance pursuant to EC 9.5750(9)(c). Condition of Approval #10 (new): The CUP approval shall only be effective upon final PUD approval, with a determination of compliance with approval conditions as part of the required Type II review process for final PUD approval. Accordingly, conditional approval is hereby affirmed. The foregoing findings and conclusions are adopted as the Final Order of the Eugene Planning Commission for AT&T Mobility – Oakway Golf Course (PDT 10-2 and CU 11-1) this 26th day of September, 2011. ______________________________ Jeffrey Mills, Chair Eugene Planning Commission Attachment A: Attachment options for landowners affected by modified screening Condition of Approval #2. Draft Final Order – AT&T Mobility (PDT 10-2 & CU 11-1) October 3, 2011 Page 15 PC AIS October 3, 2011 - Page 21 PC AIS October 3, 2011 - Page 22 PC AIS October 3, 2011 - Page 23 PC AIS October 3, 2011 - Page 24 PC AIS October 3, 2011 - Page 25 PC AIS October 3, 2011 - Page 26 PC AIS October 3, 2011 - Page 27 PC AIS October 3, 2011 - Page 28 PC AIS October 3, 2011 - Page 29 PC AIS October 3, 2011 - Page 30 PC AIS October 3, 2011 - Page 31 PC AIS October 3, 2011 - Page 32 PC AIS October 3, 2011 - Page 33