Planning Commission

AGENDA Meeting Location: Sloat Room—Atrium Building Phone: 541‐682‐5481 99 W. 10th Avenue 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 whe elchair‐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 Planning Division at 541‐682‐5675. MONDAY, FEBRUARY 25, 2013 – REGULAR MEETING (11:30 a.m. to 1:30 p.m.) 11:30 a.m. I. PUBLIC COMMENT The Planning Commission reserves 10 minutes at the beginning of this meeting for public comment. The public may comm ent 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 rese rves the option to reduce the time allowed each speaker based on the number of people requesting to speak. 11:40 a.m. II. REMAND OF AT&T TELECOMMUNICATIONS TOWER CUP 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 C. Learning: How are we doing? Commissioners: Steven Baker; Jonathan Belcher; Rick Duncan; Randy Hledik, Chair; John Jaworski; Jeffery Mills; William Randall, Vice Chair PC AIS February 25, 2013 - Page 1 PC AIS February 25, 2013 - Page 2  AGENDA ITEM SUMMARY February 25, 2013 To: Eugene Planning Commission From: Steve, Ochs, Associate Planner Subject: LUBA Remand: AT&T Mobility Cell Tower – Oakway Golf Course (City File PDT 10-2 & CU 11-1, LUBA No. 2011-099) ____________________________________________________________________________________ ACTION REQUESTED To deliberate on the appeal issues sustained by the Oregon Land Use Board of Appeals (LUBA) on these applications (PDT 10-2 & CU 11-1) and remanded back to the Planning Commission for action. BRIEFING STATEMENT The application subject to this remand is a tentative Planned Unit Development (PUD) and Conditional Use Permit (CUP) approval for a new 75-foot telecommunications tower within a 25 x 35-foot area, located adjacent the existing maintenance building on a privately-owned golf course (Oakway Golf Course) which is zoned R-1/PD, Low Density Residential with the Planned Unit Development Overlay. The Hearings Official initially approved the applications with conditions, while denying the applicant’s variance request to allow for above ground ancillary facilities. On appeal, the approval was upheld by the Planning Commission with revised and additional conditions of approval. Northgreen Properties LLC, then appealed the Planning Commission’s final order to LUBA, asserting five assignments of error. After considering the parties’ briefs and oral arguments, LUBA issued an order that affirms parts of the Planning Commission’s decision, but remands the matter back to the Planning Commission on compliance with Metro Plan Policy E.4 and the ability to produce a noise study. These two issues are addressed in further detail below. On November 28, 2013 the applicant submitted a letter requesting that the City begin remand proceedings which starts a state mandated 90-day timeframe and thus requires the City to respond to the remand no later than February 26, 2013. While opponents have requested a public hearing on the remand issues, State law in this case does not require a public hearing for the remand. Due to the limited scope of the two appeal issues on remand, no public hearing was set, but the record was re- opened to allow written testimony and evidence on these two specific issues. Deliberations were initially set for February 11, 2013, but due to Planning Commissioner availability was postponed to February 25, 2013 and March 4, 2013. The applicant provided a 14-day extension to the 90 day timeframe to allow for this change which now requires the City to respond to the remand no later than March 12, 2013. Following notice to the applicant, appellants and other interested parties, the record was reopened for new testimony and evidence until January 11, 2013. Rebuttal testimony was allowed until January 18, 1 PC AIS February 25, 2013 - Page 3 2013 and the applicant was given until January 25, 2013 to submit final written argument. Staff received information from the applicant as well as significant amount of opposing testimony from the appellants and other surrounding neighbors during this timeframe. All of the testimony and new evidence has been provided to the Planning Commission for consideration, before making a decision on the remand. PLANNING COMMISSION’S REVIEW ROLE The Planning Commission’s role is limited to addressing the two issues LUBA remanded. The Planning Commission’s role can be divided into two general tasks: Task 1: Determine whether the proposal is consistent Metro Plan Policy E.4, as an applicable approval criterion. Task 2: Determine whether it is “possible” for the applicant to produce a noise study for the underground equipment, showing the facility will meet the City’s noise standards. The Planning Commission should consider all evidence and testimony directed to these two remand issues, within the context of the relevant PUD and CUP approval criteria. In this case, those include EC 9.8090(1) and EC 9.8320(1), concerning compliance with Metro Plan Policy E.4 (“Task 1”) and the noise standard for ancillary facilities at EC 9.5750(7)(f) (“Task 2”). There was evidence and testimony introduced during the remand process regarding the health implications of radio frequency (RF) emissions. The Planning Commission should not consider this evidence and testimony, as it is beyond the scope of the appeal issues that can be considered on remand. Additionally, federal law requires that if the facility complies with the Federal Communications Commission (FCC) regulations for RF emissions, the local government cannot consider this issue further. In this case, the record and decisions below confirm that the application requirements were met with regard to FCC compliance, and that issue was not remanded by LUBA. The Federal Telecommunications Act is mentioned in several instances in the applicant’s testimony. Section 332 of the Federal Telecom Act generally preserves local governments’ authority to apply their zoning regulations and building codes to the location, design and construction of cell towers and similar telecom facilities. However, it also imposes five limitations on local authority. Local government regulations: x May not unreasonably discriminate among providers of functionally equivalent services. x May not prohibit or “have the effective of prohibiting” provision of personal wireless services (which includes cell phone service). x May not regulate cell towers or related facilities based on radio frequency emissions; so long as a provider complies with FCC standards on RF, a local government may not deny a cell tower permit based on RFE concerns. x Must base any denial of a cell tower/facility permit on substantial evidence in a written record and make any denial decision in writing. x Must act on an application within a “reasonable time” (which the FCC has defined as 150 days for new siting requests and 90 days for collocations). 42 USC sec 337(c)(7)(B). 2 PC AIS February 25, 2013 - Page 4 Planning Commissioners should keep the restrictions noted above in mind; the second and third bullets are most relevant to the commission’s discussion of the remand issues in this case. REMAND ISSUES As the LUBA decision concluded that the City’s findings were inadequate, staff has provided a response below to assist the Planning Commission in responding to the remand. Task 1: Determine whether the proposal is consistent Metro Plan Policy E.4, as an applicable approval criterion. Metro Plan Policy E.4 provides that: “Public and private facilities shall be designed and located in a manner that preserves and enhances desirable features of local and neighborhood areas and promotes their sense of identity.” Background The Hearings Official and Planning Commission initially found that Policy E.4 was not applicable as an independent, mandatory approval criterion but rather, that it provides broad policy direction to the City as implemented by the PUD and CUP approval criteria. LUBA’s decision ultimately disagreed, finding that Policy E.4 constitutes an “applicable” Metro Plan policy that the City must separately address, because it “provides fairly specific and mandatory direction that public facilities such as the telecommunications tower ‘be designed and located’ to ‘preserve and enhance’ desirable features of the area.” LUBA also found there was insufficient evidence in the City’s citations to applicable PUD and CUP criteria, to show that the policy is fully implemented through the language of those provisions. They further concluded that the Planning Commission’s alternative findings were inadequate to explain how the proposal was otherwise consistent with Policy E.4, in the event that it might be interpreted to be applicable as an independent approval criterion. Testimony and Evidence Opponents – A significant amount of evidence and testimony was provided by the appellants and surrounding neighbors opposing the cell tower. Neighbors argue that as a standard, Policy E.4 is clearly not met (and cannot be met) because it is not possible to conclude that this cell tower enhances desirable features of the neighborhood and supports its sense of identity (see pages 15-63 and 195- 222 of the remand record). Applicant – The applicant argues that the Metro Plan requires Policy E.4 to be balanced with other policies and that it cannot be applied in a vacuum. They maintain that if the Metro Plan policy is applied in the way neighbors argue, it would require other “facilities” such as utility poles and streets to similarly enhance the neighborhood and promote its sense of identity which is not possible. To properly apply Policy E.4 in the context of this application and given LUBA’s direction, staff has provided several key questions to help guide the Planning Commission’s determination. In looking at the correlation between these plan and code provisions, staff presents a key question for the Planning Commission to address at the outset: 3 PC AIS February 25, 2013 - Page 5  Key Question #1 Does the Planning Commission agree that Metro Plan Policy E.4 applies to the proposed, privately-owned telecommunications tower as a “utilities and communication” use (which is allowed in the R-1 zone with PUD/CUP approval in this case), and also based on the reference in the Metro Plan definition to “communications” as a key urban service or facility? Finding #3 and Objective #1 in the Metro Plan’s Environmental Design Element, of which Policy E.4 is a part, appear to contemplate “facilities” that range from roads and public buildings, to parks and playgrounds, to schools, and hospitals. While “communication” is clearly included in the Metro Plan’s definition of “key urban services and facilities”, it is not absolutely clear that this policy was intended to apply to privately-owned telecommunications facilities (staff notes that LUBA’s decision incorrectly describes it as a “public facility”). In this case, based on LUBA’s clear direction and past local precedence, staff concludes that Policy E.4 should be considered as applicable to this proposed “communication facility” because it is included in the Metro Plan’s definition of “key urban services and facilities” (see Metro Plan Glossary, page V-3). If the commission agrees, we then suggest turning to the question of how the policy applies in this case, within what additional context if any, and what impact it may have on the outcome of the City’s prior approval of this request. Key Question #2 Does the Planning Commission agree that other text and policies in the Metro Plan should be used to provide context to how Policy E.4 is applied? As LUBA’s case history shows, the proper application of very general (and sometimes rather vague or ambiguous) Metro Plan policies to individual development applications can be a challenging task. It requires careful evaluation of whether and how a particular policy may be applicable, and what it may mean in the context of a particular neighborhood area, given the facts and evidence in a particular case such as this. It also requires that we look to the context provided within the local regulatory framework of the Metro Plan, refinement plans (in this case the Willakenzie Area Plan), and the Eugene Code regulations intended to implement those adopted land use plans. It’s important to remember that use of the Metro Plan requires a balancing of its various components on a case by case basis, and those provisions should not be looked at without also considering more specific context in the implementing provisions of applicable neighborhood refinement plans and the code. Given the circumstances, staff recommends that the Planning Commission avoid an overly broad or vague interpretation, and instead, provide a carefully balanced approach to the application of this general policy. With agreement about the Metro Plan context and thereby determining that the proposed telecommunications tower falls within the definition of a “key urban service and facility”, staff believes the next step is to evaluate the meaning and applicability of Policy E.4, as balanced with any other relevant portions of the Metro Plan. Here, for example, the applicant points out that Policy E.4 must also be balanced with the fundamental requirement established in Metro Plan Policy G.1 (Public Facilities and Services Element) to extend key urban services and facilities in an orderly and efficient manner. Policy G.1 and its implementing provisions in the land use code are a key aspect of 4 PC AIS February 25, 2013 - Page 6 the City’s growth management objectives and promoting compact urban development as described in the Metro Plan. While Policy E.4 is the policy subject to additional findings on remand, it should not be used in isolation or at the expense of proper balancing among other relevant adopted plan provisions and policies (i.e. Policy G.1), or more detailed code provisions for example, that direct the provision of adequate urban infrastructure. The policy could apply to a broad range of other types of “public and private facilities” so the commission is encouraged to keep potential precedent in mind. The applicant in this case points out that, taken in isolation without regard to context, the policy could be interpreted to require that streets, fires stations, commercial use, overhead utility lines, or even ball field lights must somehow preserve and enhance desirable features of local and neighborhood areas and promote their sense of identity (see starting on page 5 of the remand record). On the other hand, opponents point out that Policy E.4 is clearly designed to protect the aesthetic values of Eugene and must be applied as a mandatory standard; they assert that any reading of the policy short of that does not comport with LUBA’s direction. They further note that the cell tower is the subject of review under this policy, not other infrastructure or improvements that already exist in the area. They rely heavily on this policy to help illustrate why they believe the proposed cell tower represents a significant impact on their quality of life and should not be allowed (see starting page 17 of the remand record). Key Question #3 Does the Planning Commission agree that the Willakenzie Area Plan should also be used as context to help interpret the meaning and applicability of Metro Plan Policy E.4? Are there other factors beyond those listed in the refinement plan that should be considered for context? Staff believes the context provided by the adopted refinement plan can help to guide the Planning Commission’s determination in this case. As a refinement of the Metro Plan, the WAP is intended to provide direction for land use decisions in the Willakenzie area and to serve as a basis for evaluating private development proposals. Here, the “Neighborhood Design Element” of the WAP describes its concern with environmental character, identity, and visual qualities in the area. Staff finds this section of the WAP to provide the most directly related context for how to interpret Policy E.4 of the Metro Plan, beyond the findings and conditions (e.g. requirements for landscaping and perimeter trees) already applied to the proposal under the PUD/CUP criteria for compatibility and screening purposes. The stated purpose of the “Neighborhood Design Element” of the WAP is to: x Preserve the character of the existing neighborhood; x Improve the appearance of commercial and industrial development; x Establish and enhance identifiable features in the neighborhood. The element describes the particular importance of (and includes policies and proposed actions for): Entrance Corridors; Neighborhood Gateways; Commercial Area Design; Willamette Greenway; Natural Resource Protection; Historic Preservation; and Gillespie Butte Site Development Standards. These identifying features in the neighborhood refinement plan can help to define the proper application of the more general Policy E.4 in the Metro Plan. 5 PC AIS February 25, 2013 - Page 7 The element recommends landscaping along roads as a means to beautify right of way, incorporation of trees and undergrounding of utilities in areas considered neighborhood gateways and includes siting and landscaping requirements for commercial development. While several of the maps in this WAP element do show the area of the subject property, none of the text, specific policies or proposed actions, gives special importance to protecting the existing golf course or considering or evaluating the impacts of a proposed cell tower or other key urban facilities in this location. The applicant points to existing neighborhood features such as utility poles and ball field lights as part of the existing neighborhood character and notes that the use of the golf course will not be impacted by the tower. They also point to the additional landscaping required by the Planning Commission as a desirable feature (see page 6 of the remand record). The applicant also includes pictures of various infrastructure in the area (see starting on page 75 of the remand record), noting that these are part of the “features” and “identity” of the neighborhood that should be considered. Opponents also include pictures of surrounding properties (see page 57 of remand record) and argue that Policy E.4 does not limit consideration of desirable features to only those defined in the WAP. They point to the character of the area as being a quiet residential neighborhood surrounding the golf course, and the visual benefits of the existing open space as desirable features that need to be protected and enhanced. They argue the 75-foot tower would detract from the visual benefits of the existing open space and negatively impact their quality of life, in violation Policy E.4. This leads us to the next and perhaps most important question for the Planning Commission on remand: Key Question #4 Given the context of other Metro Plan and WAP provisions, additional code standards for telecommunications facilities, and other factors such as the character of the surrounding area, what does Policy E.4 require in this instance? In considering how Policy E.4 applies to the proposed cell tower in this case, the Planning Commission should determine whether (and to what extent) the location and design of the proposed facility would (or should be required to) “preserve and enhance” the “desirable features” of the neighborhood and “promote [its] sense of identity.” Depending on what context is relied upon, and how these factors are balanced, staff believes the Planning Commission could address this remand issue in several possible ways: Option 1 Conclude that the application is consistent with Policy E.4. The Planning Commission could find that, when balanced with other policy priorities (in context with the Metro Plan and WAP), the proposal is generally consistent with Policy E.4. This includes Metro Plan Policy G.1 and the need to provide “key urban services and facilities”. As a starting point, the commission could rely on the following factors: 6 PC AIS February 25, 2013 - Page 8  x The record does not demonstrate that the proposal would have any significant impact on the primary visual qualities and character-identifying aspects of the area as identified in the WAP. x While the golf course was not identified in the WAP as an area with particular concern for visual impact, the Planning Commission required additional screening (of around 100 trees) for 47 abutting properties the golf course. This required landscape treatment is similar to how the WAP recommends treating important areas in the WAP such “neighborhood gateway” and “entrance” corridors. x Cellular service would be enhanced as a key urban service in the area. x The PUD and CUP approval criteria, including standards for Telecommunications Facilities, ensure that negative effects of the proposal are minimized. The stated purpose of these standards is to ensure that visual disturbance from cell towers is minimized while recognizing the need of providers to build out their systems over time (as provided for in the Telecommunications Act). x A variety of existing private and public infrastructure facilities already make up a part of the surrounding neighborhood character. x Policy E.4 requires a reasonable interpretation in this context, such that it does not make it impossible for any proposed telecommunications facility in the R-1 zone to comply with the policy, or otherwise violate the Telecom Act. In other words, the Planning Commission could rely on the context within the framework of federal law and locally adopted plans and code provisions, to reasonably to conclude that the policy should be applied in a manner general enough to apply to all urban services and facilities and should not be read in such a way as to unreasonably prohibit the proposed telecommunications tower which is a key urban service and facility. In this way, the commission could either determine that the proposal has no effect on the characteristics identified in Policy E.4, or that the required landscaping will help to preserve and enhance desirable features the area consistent with Policy E.4. This approach would result in affirming the Planning Commission’s prior approval on remand, with additional findings of compliance concerning Policy E.4, under the PUD and CUP approval criteria at EC 9.8090(1) and EC 9.8320(1). Option 2 Conclude that the application is not consistent with Policy E.4. The Planning Commission could find that, when balanced with other policy priorities (in context with the Metro Plan and WAP), the proposal is not consistent with Policy E.4. As a starting point, the commission could rely on the following factors: x The primary visual qualities and character-identifying aspects of the area as identified in the WAP are only a starting point in defining how Policy E.4 should be applied. In this case, the quiet residential neighborhood character and existing golf course itself are desirable features of the area that need to be protected under the policy. x While the PUD and CUP approval criteria, including standards for Telecommunications Facilities, may require mitigation to ensure that negative effects of the proposal are minimized, the policy requires more. It should be read to require that the proposal will enhance desirable features of 7 PC AIS February 25, 2013 - Page 9  areas and promote the neighborhood’s sense of identity, which is not accomplished in this case. x While existing private and public infrastructure in the area already makes up a part of the surrounding neighborhood character, these features are not the subject of review and approval under Policy E.4, as part of the PUD and CUP applications. When balanced with other policy priorities, in context with the Metro Plan and WAP, the Planning Commission could find that the proposal does not implement the policy. If this conclusion is reached, Planning Commission could attempt to remedy the non-compliance with further conditions of approval, or deny the application. As we have discussed in the past, on this very case, care must be taken to ensure that any new or additional conditions are “feasible”. If the application is denied, alternative findings will need to be provided to explain why the policy is not met in this specific case. Under this option, the commission would need to ensure that the findings and conclusion do not lead to an interpretation of Policy E.4 that makes it impossible for any proposed telecommunications facility in the R-1 zone to comply with the policy, or otherwise violates the Federal Telecommunications Act. This approach could result in modifying and still affirming the Planning Commission’s prior decision, if the commission agrees that specific conditions of approval can be made to ensure that Policy E.4 is met. Otherwise, a determination that Policy E.4 is not met in this case would result in reversing the Planning Commission’s prior approval on remand, and denying the applications under the PUD and CUP approval criteria at EC 9.8090(1) and EC 9.8320(1). Any of these is outcomes is within the commission’s range of options, so long as the outcome is supported by findings demonstrating a well-reasoned interpretation of the Metro Plan policies and the factual record. Task 2: Determine whether it is “possible” for the applicant to produce a noise study for the underground equipment, showing the facility will meet the City’s noise standards. Here, the Planning Commission’s task is to consider the additional testimony and evidence provided as part of the remand proceedings in determining whether it is “possible” for the applicant to produce a noise study for the underground equipment, showing the facility will meet the City’s noise standards. Background The Hearings Official and Planning Commission denied a variance request by the applicant to locate the ancillary facilities above ground (which will require the facilities to be placed underground). A condition of approval was also imposed, requiring the applicant to produce a new study for the underground facilities that complied with the City noise standards. This noise study would be reviewed for compliance with noise standards at the time of Final PUD application, which occurs following a tentative PUD approval. LUBA found that in order for the City to postpone a determination of compliance with an applicable criterion to future proceedings (in this case the Final PUD process), the City must first determine based on evidence in the record, that compliance with the approval criterion is possible. LUBA noted that while it seemed like a common sense presumption that placing equipment underground is likely to reduce noise impacts, there was no evidence to support the City’s conclusion. LUBA noted that the 8 PC AIS February 25, 2013 - Page 10 remand will provide the opportunity for parties to submit evidence regarding the validity of the Hearings Official’s presumption that such a noise study would almost certainly resolve the issue. Therefore, the Planning Commission’s task in this case is not to analyze the noise study for compliance with applicable noise standards during this remand, but rather to determine that is “possible” for the applicant to demonstrate compliance during a future process. Based on the previous condition of approval in this application, compliance with the noise standard will be reviewed at the time of the Final PUD application process. Testimony and Evidence Applicant - In these remand proceedings, AT&T has provided two noise reports prepared by a Professional Engineer from SSA Acoustics, LLP that addresses the equipment sound levels and includes several noise mitigation measures that could be implemented on the site to comply with the noise standard (see pages 87 and 312 of the remand record). Additionally, the applicant addressed the opposing Arthur Noxon reports in its final rebuttal (see page 2 of the remand record). Northgreen Properties - Arthur Noxon, Acoustical Engineer, on behalf of Northgreen Apartments provided letters which address both of the applicant’s noise reports (see pages 20 and 63 of the remand record). His letters assert several problems with the applicant’s noise analysis and proposed noise mitigation. His letters conclude that there is no evidence in the record that it is possible that the sound standard can be met. Since AT&T has produced and submitted a noise study stamped by a licensed professional who addresses the noise standard, and also provides that additional mitigation could be implemented to further reduce noise levels and thereby ensure the applicable standard will be met, the Planning Commission can find that it is “possible” to produce such a study. While Mr. Noxon’s testimony asserts there are issues with the existing study provided, staff believes there is no reason to believe that the applicant would not be able to address these issues, if they are found to be valid. The noise study would be substantively reviewed for compliance with the noise standard during a future Final PUD process; conditions of approval could also be applied at that time to require any mitigation needed to ensure compliance. STAFF RECOMMENDATION Based on the available evidence to date, staff recommends that the Planning Commission deliberate and take action to adopt supplemental in the form of a revised final order. In regards to “Task 1”, staff recommends that Planning Commission follow one of the approaches suggested above, and provide staff direction on the findings that will be included in a final order. In regards to “Task 2”, staff recommends that the Planning Commission rely on the applicant’s noise study as evidence that it is “possible” for the applicant to produce such a study meeting the applicable standards. Based on the Planning Commission’s direction on the tasks above, staff will prepare a final order on the remand issues for consideration and final action. 9 PC AIS February 25, 2013 - Page 11 PUBLIC RECORD The entire record is available for review at the Eugene Planning Division offices and has been forwarded to the Planning Commission. Staff has also provided an index of all information that was entered into the record up until January 25, 2013. The entire record, including oversized exhibits, will also be made available for review at the Planning Commission meeting(s). 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 10 PC AIS February 25, 2013 - Page 12