Agendas and Minutes

City Council (View All)

Regular Meeting

Minutes
Tuesday, October 05, 2010

MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL

October 5, 2010

Council Chambers

1175 E. Main Street

 

CALL TO ORDER

Mayor Stromberg called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers.

 

ROLL CALL

Councilor Voisin, Navickas, Jackson, Silbiger and Chapman were present. Councilor Lemhouse arrived late.

 

MAYOR’S ANNOUNCEMENTS

Mayor Stromberg announced the passing of past City Councilor Steve Hauck, noted the extraordinary service he provided to the community and held a moment of silence in his honor.

 

Mayor Stromberg went on to announce  vacancies on the Housing Commission, Planning Commission, Public Arts Commission, Tree Commission and the annual appointment process for the Citizen Budget Committee.  The deadline for applications for the Citizen Budget Committee was November 5, 2010. 

 

Consent Agenda item “3. Will the Council Confirm the Mayor’s committee member selection for the Ashland Stormwater Advisory Committee (SWAC) and the Ashland Wastewater Advisory Committee (WWAC) for each of the respective Master Plan updates?” was moved to the October 19, 2010 Council meeting.

 

SPECIAL PRESENTATIONS & AWARDS

Mayor's Proclamation titles of October 1 - 16 as Mayors United Helping Feed Our Communities, October 4 - 10 as Welcome SOU Students Week, October 7 - 10 as Ashland Elk's Building Centennial Weekend, October as Community Planning Month, October 3 – 9 as Mental Illness Awareness Week and October 1 – 8 as Oregon Days of Culture titles were read aloud.

 

PUBLIC HEARINGS

1.     Does the City Council wish to affirm, reverse, modify or remand back to the Planning Commission the decision to approve a wireless communication facility installation on the Ashland Street Cinema building at 1644 Ashland Street?

Special legal counsel for City of Ashland Chris Crean was introduced.

 

CALL TO ORDER

Mayor Stromberg called the Public Hearing to order at 7:10 p.m. and proceeded to explain the conduct of the hearing. Mr. Crean read the following four issues identified in the appeal:

1.          Failure to meet Conditional Use Permit Criteria pertaining to adverse material effects on livability within the impact area when compared to the target use;

2.          Failure to provide collocation study and meet design standards criteria for collocation and to comply with the general provisions of the Municipal Code and Land Use Ordinance;

3.          Failure to Provide a Lease with Application; and

4.          Failure to meet criteria for Administrative Variance.

 

Councilor Chapman/Voisin m/s to extend Public Hearing until 9:30 p.m. Voice Vote: all AYES. Motion passed.

 

ABSTENTIONS, CONFLICTS, EX PARTE CONTACTS

Councilor Chapman stated that he had read news articles and emails from citizens.  He had discussions with citizens in regards to the appeal process, but not the content of the appeal.  He viewed a small part of the Planning Commission’s video regarding the final decision, announced a site visit and declared no bias or conflict of interest.

 

Councilor Silbiger declared a potential conflict of interest in that he lives within 1,000 feet of the proposed application and was in the second group of mail notifications.  He is familiar with the proposed site and surroundings and has general familiarity with impacts to traffic and general knowledge of previous cell tower applications.  He did not believe this biased him and was confident he could make a fair decision.  In terms of ex parte contact, he received emails and general media information, nothing applicable to the appeal.  He had also done general site visits on a regular basis. 

 

Councilor Jackson had minimal exposure to newspapers articles.  She did not attend any meetings relating to the cell tower, had frequented the area when attending the movie theater but did not make a specific site visit.  She declared no conflict of interest and could serve in the proceeding without bias. 

 

Councilor Navickas noted interactions with citizens regarding the appeal and was consistently clear this was a judicial decision and he remained impartial and did not express bias.  He had no conflicts of interest, did make a site visit, was familiar with site, used adjacent businesses regularly and could make an unbiased decision.

 

Councilor Voisin ignored newspaper articles regarding the subject and emails received.  She did not do a site visit and had no conversations with citizens on the matter.  She was without bias and could make an unbiased judgment.

 

Mayor Stromberg explained he had ignored the subject, refused to speak to anyone about the appeal, and had no ex parte, bias or conflict of interest to declare.

 

STAFF REPORT

Community Development Director Bill Molnar explained the request was a Land Use application to install a rooftop wireless communication facility (WCF) at the Ashland Cinema site.  It involved 12 architecturally integrated panel antennas into a new front façade element.  The Planning Commission approved the application with a 5-1 vote after two Planning Commissioners stepped down and could not participate in an impartial manner.  This was the first appeal filed to the Council on record.  He reiterated no new evidence could be presented, the public notice sent identified the four issues raised on the appeal and speakers qualified to speak were limited to address those issues only.  He introduced Associate Planner Derek Severson who provided an overview of the application previously presented and in the record that included:

 

Telecommunications Act of 1996

  • No discrimination among providers.
  • No passing laws or taking actions that prohibit or have the effect of prohibiting wireless service.
  • No regulating of wireless based on environmental concerns about radio frequency emissions if the facility will operate within FCC standards.
  • Must act on siting requests in a reasonable period of time.
  • Mist issue zoning denials in writing, supported by substantial evidence and findings contained in the a written record.

 

Mr. Severson confirmed State Law considered a reasonable period as 120-days with another 120-day requirement under Federal Law for wireless facility starting the day the application was complete.  The deadline was October 29, 2010 and the City had received two 30-day extensions from the applicant during the application process.

 

Ashland’s Ordinance

  • Regulates the placement, appearance and visual impacts of WCF’s while providing residents the ability to utilize wireless services.
  • Indentifies preferred designs:
    1. collocation,
    2. pre-existng structures,
    3. alternative structures,
    4. mono-pole.

·         Lattice towers are prohibited.

·         Mitigate visual impacts through architectural integration; placement in the area of site with least visual impact while allowing functionality; non-reflective finish & color.

·         Setback from residential zones at least twice the height of the installation.

·         Limits exterior lighting and signage.

·         Requires landscape buffer for primary and accessory equipment located on the ground & visible from a residential use or public right-of-way.  Drought resistant plantings, security fence or wall at least six feet high, ten-foot landscape buffer, canopy trees.

Maps and Photos

  • Photos of Existing Installations in Ashland and contrasts
  • Vicinity Map
  • Zoning in the Vicinity Map
  • Site Plan Map
  • Proposed Installation Photos
  • Elevations – Front & Side
  • Elevations – Side & Rear
  • Administrative Variance Photo
  • Proposed Accessory Building Photos
  • Aerial Vicinity Map

 

Mr. Severson confirmed the new accessory shed behind the building would not interfere with the loading dock. There must be a 12-foot clearance access and a 16-foot clear width for fire access consistent with City alley standards.

 

Grounds for Appeal

  • Failure to meet Conditional Use Permit Criteria pertaining to adverse material effects on livability within the impact area when compared to the target use;
  • Failure to provide collocation study and meet design standards criteria for collocation and to comply with the general provisions of the municipal Code and Land Use Ordinance;
  • Failure to Provide a Lease with Application; and
  • Failure to meet criteria for Administrative Variance to the landscape buffer for the ground mounted WCF equipment structure.

 

Mr. Severson clarified only two applications had gone through the approval process as wireless communications facilities (WCFs) and the narrow definition in terms of the presentation represented that fact.  Mr. Crean provided further clarification and read the definition of Wireless Communication Facilities in the code under 18.72.020(H) as “The site, structures, equipment and appurtenances used to transmit, receive, distribute, provide or offer wireless telecommunications services.  This includes, but is not limited to antennas, poles, towers, cables, wires, conduits, ducts, pedestals, vaults, buildings, electronics and switching equipment.”

 

Councilor Lemhouse arrived at 7:42 p.m.

 

ABSTENTIONS, CONFLICTS, EX PARTE CONTACTS Cont’d.

Councilor Lemhouse declared no ex parte contacts, no biases or conflicts of interest, any site visits were related to attending the movie theater.  

 

Council and staff discussed the appropriate method for biased challenges.  Staff explained the procedure restricted individuals to testifying only on written testimony already submitted into the record and limited the people who could be involved. Mr. Crean added in regards to written versus oral in the cause of judicial context was a distinction without a difference.  Once it was made in oral testimony, the biased challenge became part of the record. If the decision was appealed, the biased challenge could be raised on appeal.

  

Mr. Severson confirmed the height at the peak of the tower on the building would be 40 feet.  

 

PUBLIC TESTIMONY

 

Appellant – Chris Hearn/515 East Main Street/Represented Rod Newton and noted dissatisfaction on behalf of Mr. Newton and other citizens regarding how the Planning Commission hearing was conducted.  There was uncertainty on the interpretation of parts of the Ashland Municipal Code (AMC) provisions that caused some individuals to question the purpose and meaning of the code.  He provided the following presentation:

  • AMC 18.108.110. Appeal to Council (E) states:  “The Council may affirm, reverse, modify or remand the decision and may approve or deny the requests, or grant approval with conditions.  The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action.”
  • Council May Modify Planning Commission Interpretation:  “The Council has the authority to modify any interpretation of the Ashland Land Use Ordinance made by the Planning Commission.”

AMC 18.108.160(B)

·         LUBA Defers to Council’s Interpretation of City’s Land Use Provisions:  “This Board (LUBA) is required to defer to a local government’s interpretation of its own ordinances, unless that interpretation is contrary to the express words, policy or context of the local enactment.  Clark v. Jackson County, 313 Or 508, 514-15, 836 P2d 710 (1992).

·         Council Interpretation Rules Unless “Clearly Wrong”:  This means we (LUBA) must defer to a local government’s interpretation of its own enactments, unless that interpretation is ‘clearly wrong’.” Goose Hollow Foothills League v. City of Portland, 117 Or App 211, 217, 843 P2d 992 (1992); West v. Clackamas County, 116 Or App 89,93,840 P2d 1354 (1992).”

·         Issues for Appeal:

o        No adequate feasibility study as required by AMC 18.72.180.B.6.

o        Feasibility of collocation not adequately addressed.

o        No signed lease agreement as required by AMC 18.72.180.B.7.

o        Approval renders nonconforming (off-street parking inadequate and far).

o        Livability standards under AMC 18.104.050.C.

 

Mr. Hearn explained Mr. Newton and others believed there was not an adequate feasibility study regarding collocations submitted with the application.  A feasibility study and signed lease agreement were required at the time of submitting the application.  The feasibility study should also address other sites where a WCF could pair with existing WCFs.

 

In this case, the WCF within the search range that AT&T was proposing was at the Holiday Inn Express Hotel. The appellant did not believe the collocation study was submitted or adequate collocation efforts were made by the applicant.  Feasibility was not addressed nor was a signed lease agreement with the property owner submitted.  This applied to the failure to meet conditional use permit criteria pertaining to adverse material affects on livability within the impact area when compared to the target zone.  It was non-conforming to the target use of the zone in both floor area ratio and in the number of off street parking spaces.

 

The information submitted by the applicant, in connection with their March 17, 2010 letter, included a parking study that the shopping center is required under the code formulas for parking spaces to provide.  It indicated 440 spaces when it only has 338 spaces.  Floor area ratios also did not meet code requirements of the target use of the zone. 

 

Mr. Crean noted the appeal filed July 28, 2010 Exhibit A, incorporated Sub-Exhibit 7, from Sub-Exhibits 1-9, by reference and was not listed among the first 4 highlighted issues.  The code stated appeal issues have to be clear and distinct in the appeal and questioned whether this section should be considered clear and distinct.  Mr. Hearn responded the appellant raised  all specific issues reflected in attached Sub-Exhibits 1-9 as additional grounds for the appeal and incorporated the sub-exhibits as if fully set for verbatim.  The Planning Commission Findings show it incorporates by reference a number of documents in the Planning Commission Findings as well.  Mr. Crean clarified Council will have to determine if the reference was clear, distinct and sufficient to meet the criteria in the code and make that decision during deliberation.

 

Mr. Hearn continued his presentation with the following:

  • Feasible Location:  “We (LUBA) agree with petitioners that ‘feasible location,’…does not mean ‘ideal location.’  ‘Feasible’ is defined as ‘capable of being done, executed or effected:  possible of realization.’  Webster’s Third New International Dictionary 831 (1981).”  Simmons v. Marion County, 22 Or. LUBA 759 (1992).
  • Difficult Does Not Mean “Infeasible:”  “In interpreting a county ordinance provision requiring that ‘no feasible alternative site in the area exists,’ we have stated a county cannot deem alternative sites ‘infeasible’ simply because it would be difficult for the applicant to make use of those sites.  Weist v. Jackson County, 18 Or LUBA 627, 632 (1990).” Simmons v. Marion County 22 Or LUBA 759 (1992)
  • Reasonable Solutions for Identified Problems:  “Additionally, we (LUBA) have frequently stated that a site or project is ‘feasible’ if there are reasonable solutions available for the identified problems. Southwood Homeowners Assoc. v. City of Philomath, 21 Or LUBA 260, 272 (1991); Bartels v. City of Portland, 20 Or LUBA 303, 310 (1990); Meyer v. Portland, 7 Or LUBA 184, 196 (1983), aff’d 67 Or App 274, rev den 297 Or 82 (1984).” Simmons v. Marion County, 22 Or, LUBA 759 (1992).
  • Evidence Submitted by Applicant must be Adequate to meet all Approval Criteria:  “Simply stated, a permit applicant may submit a complete application, in the sense it includes all of the information that relevant land use regulations require a permit applicant to submit, but that information and other evidence that is submitted during the evidentiary phase of a land use permit review may nevertheless be inadequate to demonstrate that all relevant approval criteria are met.”  Caster v. City of Silverton, 54, Or.  LUBA 441 452 (2007).
  • Collocation AMC 18.72.180:  Applicant failed to meet its burden of proof under AMC 18.72.180.  Applicant neither submitted an adequate collocation feasibility study, nor provided adequate evidence to meet its burden of proof to demonstrate that collocation with existing facilities at Holiday Inn Express or SOU was “not feasible”.
  • AMC 18.72.180 Development Standards for WCFs:  “B. Submittals – In addition to the submittals required in section 18.72.060, the following items shall be provided as part of the application for a wireless communication facility.”  “6. A collocation feasibility study that adequately indicates collocation efforts were made and states the reasons collocation can or cannot occur.”

 

Mr. Hearn stated that the feasibility studies were submitted in four parts by the applicant through various letters whenever staff required more information. Letters from February, May and June of 2010 stated different and conflicting information that included that the Holiday Inn site was the only existing wireless collocation site.  AT&T stated a longer coaxial cable may be needed but did not explain why that was a problem or why it was a problem that the site was a few feet lower in elevation.  The letters were in the guise of a feasibility study, had generalities and did not meet the standard of what the Planning Commission should have expected from a feasibility study.

 

  • AMC 1.04.04:  “The provisions of this code and all proceedings under them are to be construed with a view to effect their objects and to promote justice.”
  • AMC 18.72.180(C)(2):  “a.  Where possible, the use of existing WCF sites for new installations shall be encouraged.  Collocation of new facilities on existing facilities shall be the preferred option.

‘b. If (a) above is not feasible, WCF shall be attached to pre-existing structures, when feasible.”

 

Mr. Hearn determined that whether it was feasible to collocate required adequate data and an explanation as to why it was not feasible.  The four letters submitted by the applicant was expected to constitute a feasibility study but did not meet the ordinance provision that addressed it.  He stated that staff had concerns and repeatedly requested more information.

 

He went to state the issues for appeal were based on:

  1. Failure to meet conditional use permit criteria targeted the parking floor area ratio issue.
  2. Failure to provide the collocation study and meet the standards of the ordinance – the feasibility study was not provided and the criteria for the collocation was not met nor was there demonstration that it was to feasible to collocate with existing facilities. 
  3. Failure to provide a lease.
  4. Administrative Variance

 

The main issue being the collocation criteria was not met.

 

Applicant

Richard Busch/22525 SE 64th Place, Issaquah, WA/Represented AT&T and agreed with the Planning Commissions decision and staff’s recommendation that AT&T’s application met all the criteria of the code for the proposed site.  He addressed the substantial evidence standard and explained it was evidence a reasonable person would use to make a decision.  It was the Council’s duty to review the record and see if there was substantial evidence in the record supporting the approval.  If there was evidence in the record supporting the entire application criterion then Council needed to approve the application.  He stated that Council needed to review all other evidence submitted to balance the applicant’s substantial evidence with the contrary substantial evidence. There are two baskets of substantial evidence and the Council needed to approve the decision.

 

Mr. Busch explained that the only time Council could review the record and overturn or modify the decision was if one of the following applied:

1.       The applicant failed to provide substantial evidence in support.

2.       The opponent’s substantial evidence negates the applicant’s evidence.

 

He went on to address each of the four issues:

 

1.   Failure to meet Conditional Use Permit Criteria pertaining to adverse material effects on livability within the impact area when compared to the target use.

Mr. Busch was surprised when he read the comments submitted prior to the hearing and saw the element of non-conforming use because it was not in the appeal documents.  The opponent was trying to attach non-conforming use to the livability standard.  In the code, the livability standard did not include non-conforming use.  It addressed parking, traffic, and nothing regarding non-conforming use.  The applicant looked at the impact the proposed application would have on the site.  Having AT&T come out once a month to adjust the equipment behind the building would not have a significant impact on parking or traffic.  The livability standard would not affect the proposed use.

 

2.  Failure to provide collocation study and meet design standards criteria for collocation and to comply with the general provisions of the Municipal Code and Land Use Ordinance.

There are two different issues regarding collocation.  The first is if it was mandatory, discretionary or optional that the applicant collocates if feasible.  Code language indicated it was optional as opposed to mandatory, encouraged instead of required.  Collocation analysis was not required, even if an analysis was conducted and found deficient.  Failure to provide a collocation study was not sufficient to overturn the Planning Commission’s decision.  

 

The second was if collocation analysis only involved other sites that were wireless communication facilities.  They do not include AM/FM, Police, Fire or TV broadcasting stations. The only site in the vicinity with an existing WCF was the Holiday Inn.  AT&T submitted four batches of documents dealing with the collocation analysis for the Holiday Inn. There was substantial evidence in the record presented by AT&T on the collocation analysis that a reasonable person could make a decision based on it.  The purpose of a collocation analysis was to identify existing potential sites and analyze whether they would work or not.  Mr. Busch agreed there was conflicting information in the record on whether the coverage would meet AT&T’s objectives.  The last statement submitted by Mr. Seymour was that it would not provide the coverage objectives they had with Mt. Baldy, call hand off service and indoor coverage by the Southern Oregon University campus.  The site was not feasible for ground equipment.  The Holiday Inn indicated that the equipment could be installed in a crawl space above the driveway in front of the hotel.  AT&T immediately said that this would not work because of concerns regarding worker safety, access and guest safety.  The day the record closed, information was submitted that it might be installed elsewhere in the form of third hand testimony from Mr. Wilkinson who had talked to Mr. Warren the owner of the Holiday Inn.  Mr. Wilkinson was not authorized and had no legal authority to speak on behalf of the Holiday Inn.  Additionally the information Mr. Wilkinson provided was not credible. 

 

If the Council found both sets of information submitted were reasonable under the substantial evidence review on appeal standard, they would have no choice but to approve the application. 

 

3.  Failure to Provide a Lease with the Application.

The lease was filed in the record prior to the time of the hearing.  Mr. Busch noted there was not a law or ordinance that stated the failure to submit a lease at the time of the application invalidated the application and made it void.  The comment about the copy of the lease not being provided at the time of the application was void and contrary to established law in the state of Oregon and the City of Ashland.

 

4.  Failure to meet criteria for Administrative Variance. 

The aerial photo above the back of the cinema showed it was screened by trees and the commercial property.  The west side housed a trailer park zoned for commercial and the east side had residential offset, which did not feed into alley. 

 

Mr. Busch noted miss-statements of fact in the appellant’s brief including a statement that Mr. Warren denied ever requiring that AT&T put the equipment in the attic.  Statements in the appellant’s brief indicate Mr. Warren changed his mind, inferred he actually suggested the attic and then changed his mind.  The second miss-statement was that cellular communication facilities existed on the Southern Oregon University (SOU) Campus.  This statement was not in the record and SOU did not provide a collocation opportunity as defined in the code.

 

Mr. Busch responded to an inquiry on whether the area was defined as a dead zone where access was not available.  He was unaware if there were code criteria that set a minimum size for a dead zone or whether it existed in the code.  He clarified AT&T was aware of their strengths and weaknesses in their network and intended to improve the quality of service.

 

Councilor Navickas read from Ashland Municipal Code (AMC) 18.72.180 A. Purpose and Intent and B. Submittals and thought B. implied the need to show feasibility and questioned Mr. Busch’s interpretation of the code.  Mr. Busch disagreed with the definition of feasibility made by the appellant.  He sited the definition under the Oregon court of appeals as opposed to Land Use Board of Appeals (LUBA) in the case of Gold v. Deschutes County, citation 216 Oregon appellant 150, from 2007.  The standard was whether it was reasonably certain to be successful, not if it were possible.  It was not a mandatory standard and feasibility fell under the reasonably certain standard and when applied to the Holiday Inn offering a crawl space above the driveway to house the equipment was not feasible.  If Council intended to make it a mandatory standard, preferred and encourage would not have been put in the code.

 

Mr. Crean asked for clarification regarding AT&T coverage objectives.  Mr. Busch explained AT&T wanted to off load the traffic from the Mt. Baldy site to provide indoor coverage on the university campus and provide call hand off with the hotel site.  Additionally the purpose of the site would provide coverage where it does not exist presently.

 

Mr. Busch clarified if Council found an error of law or the Planning Commission misapplied the law, they could reverse or modify the decision.  The issue was whether collocation was mandatory or optional.  If Council found it mandatory where the Planning Commission found it discretionary, that would require an interpretation of the law.

 

Those in support of the Appeal

Joyce Fong/759 Leonard Street/Mrs. Fong’s husband read from a statement that this was not a case of pro-business or pro-government faction versus an anti-business or anti-government faction.  People were concerned about the City’s ability to apply the laws equally to Ashland residents and multinational corporations.  The statement supported co-locating new cell towers at the existing Holiday Inn site.  It was their opinion this was an out-of-the-ordinary case where the Planning Commission’s decision was wrong.  There was not substantial evidence to support the findings and the Planning Commission committed errors in law.  This error was a by-product of the following: AT&T kept changing its story about collocation feasibility and the Planning Commission defined feasibility incorrectly; the Planning Commission received questionable legal advice regarding enforcement of the City’s collocation ordinance; and confusion and misrepresentation generated by health concerns that are prohibited by federal law from being considered in cell tower siting.  The statement encouraged Council to listen to their constituents and reverse the Commission’s decision.

 

Colin Swales/143 8th Street/Spoke in regards to his bias challenge noting that several people who spoke in favor of the cell towers experienced poor cell phone coverage.  He thought Council members deliberating should declare whether they had experienced the same in that neighborhood and if they had a contract with AT&T for cell phone use.

 

Mr. Swales went on to state that both the appellant and applicant mentioned non-conforming use concerning the site.  Nothing was addressed at the Planning Commission level about the required parking for the penthouse on the roof and the accessory structure in the back.  The code required parking for any kind of development.  The area had a 22% deficit in parking and the cell tower would add more use and was a contradiction of non-conforming use.  In regard to the conditional use permit (CUP), during the Planning Commission hearing, City Attorney Richard Appicello informed the Commission that the CUP standard was a comparative standard and must be compared with all the permit uses in the zone and went on to site uses that were actually incorrect.  He felt that the Findings of the Planning Commission were based on false information provided by the City Attorney.

 

Vitaly Geyman/1172 North Main/Provided his background as an electrical engineer and supported overturning the Planning Commission’s decision.  Verizon currently had an installation at the Holiday Inn and shared installations with AT&T at other locations.  He addressed the four reasons AT&T gave on why the Holiday Inn site was not feasible.  The problem regarding the topography and installing a longer run coaxial cable could be accommodated and were not technical problems.  As for the dangerous access to the required location for ground equipment, the space was only suggested by the owner of the Holiday Inn and not required. On February 12, 2010 AT&T stated the Holiday Inn was a reasonable location and on May 19, 2010, it could work.  Finally, AT&T determined the Holiday Inn site would not meet the goal of in building coverage at SOU while Verizon currently provided the same coverage to SOU from the installation at Holiday Inn.  AT&T did not provide any documentation substantiating that claim.  As an Engineer, he saw no substantial evidence to support AT&T claim that collocation was not feasible.

 

Deborah Gordon/276 Orange Street/Requested that the videos from this hearing and from the Planning Commission hearings are admitted into the record.  She suggested the City was exercising discriminatory enforcement of AMC 18.108.110.3.  She stated that legal counsel had advised Council to allow AT&T to present oral arguments and to accept its written argument into the record though it had failed to comply with AMC 18.108.110.3 Section C. No physical evidence was submitted to demonstrate why three separate letters to AT&T representatives and employees, mailed by the City, constituted inadequate notice or any basis for allowing oral or written argument.  The goal was to achieve an equitable result and ensure the parties’ due process rights were insured.  The City Council was not provided with legal rationale that supported discriminatory enforcement to ensure an applicant’s due process was protected while not also applying the same standards to the appellant.  Legal Council’s memo reinforced City staffs use of AMC 18.108.110.3 Section D. as a basis to insist that Council ignore legally enclosed and referenced issues for this appeal submitted by the appellant.  No arguments about “substantive interest in the proceedings” or “fundamental unfairness” were made to encourage the acceptance of all the clear and distinct issues for this appeal by the appellant. She encouraged Council to deny the Planning Action.  

 

Lauren Taylor/170 Ridge Road/Requested that Council reverse the Planning Commission’s decision, as it was not based on substantial evidence and to deny AT&T’s application for a conditional use permit.  She felt AT&T had treated this application with arrogance, flouted city ordinances and assumed their application would be approved whether they met the local requirements or not.   AT&T did not have a collocation feasibility study attached to their application and in the actual application, admitted collocation would be feasible at the Holiday Inn Express.  They had since submitted letters why that location was no longer ideal but did not submit substantial evidence that it was not feasible.  AT&T failed to include a signed lease in the application that showed collocation would not be precluded. When a lease was produced it explicitly precluded collocation.  She expressed concern regarding AT&T’s assumption they did not have to comply with the laws and strongly urged Council to reverse the decision.

 

Will Wilkinson/2940 Old Highway 99 South/Stated that the Planning Commission’s decision was based on faulty, not substantial, evidence.  In the letter of May 19, 2010, AT&T’s only reason for rejecting collocation was that Holiday Inn required AT&T place their equipment in an accessible closet located above the drive through area. Because of the proposed dangerous location for the equipment cabinets, AT&T rejected the Holiday Inn as a potential location for this site.  Mr. Wilkinson confirmed he spoke with Mr. Warren, the owner of Holiday Inn who disputed AT&T’s claim.  Mr. Warren never required them to locate their equipment in that location, it was a discussion point to him and he was willing to offer AT&T the same equipment location that Verizon uses.  This was one example of the unsubstantiated claim that AT&T made, that the City Attorney and the Planning Commission used as evidence to base their recommendations on.  If AT&T did not want to collocate, they should prove that collocation was not feasible. Simply require AT&T to submit a detailed study on collocation with reasonable evidence. Council is empowered to interpret this law and the intent of this law is clear, there was no substantive evidence to require Council to pass a conditional use permit. 

 

Skip Andrew/103 Manzanita/Explained Council had the occasion to clarify, interpret and apply this ordinance regarding wireless communications.  He thought the Planning Commission misunderstood, misinterpreted and misapplied Ashland’s collocation law.  The Commission attempted to reduce the collocation requirements to a preference and concluded the ordinance did not include mandatory terms.  AT&T’s interpretation was that it was optional.  He agreed with AT&T’s interpretation and read from the ordinance noting seven different instances of the word “shall.” 

 

James Haim/152 Orange Avenue/Spoke regarding livability and explained that within the C-1 Zoning District wireless facilities were not permitted and required a CUP. The approval criterion for the CUP is that the use was in conformance with all the standards within the zoning district.  The Planning Commission made an error of law in its failure to comply with all ordinance requirements and to address parking requirements.  There appeared to be no evidence in the record of applying parking requirements for this project after the AT&T study determined the shopping center did not meet the required number of parking spaces.  The AMC chapter on street parking stated that all districts, except those specifically exempted whenever any building is erected, or the use is changed, that off-street parking is provided. WCFs would fall under public utilities or unspecified uses and noted the parking requirements for each.  Failure to address the parking demand was not exempted from 18.72.180.  He concluded that the project should be denied for inadequacies in the record.

 

Aaron Brian/307 North Main/Addressed points Mr. Busch discussed in his opening statement on the concept of substantial evidence and evidence provided by AT&T.  The owner was not going to require AT&T to install equipment in the crawl space, which would make this issue not part of the substantial evidence. He stated that the first two times AT&T submitted information was that collocation would work from a radio frequency perspective and the last submission provided a series of reasons why collocation would not work.  The predicted coverage from the Holiday Inn site may be less than coverage at the cinema site, it did not mean it was not feasible or that it would not work or was reasonably certain to be successful.  AT&T did not have the right to get whatever location they wanted to meet their specific needs.  If AT&T installed the cell tower on top of the cinema, will other cell companies have the same opportunity?

 

Applicant Rebuttal

Mr. Busch stated that the information Mr. Geyman provided was new, not part of the written record and therefore needed to be ignored.   He confirmed that Verizon had coverage on the SOU campus from the Holiday Inn and that this had nothing to do with AT&T’s application. Mr. Wilkinson’s testimony regarding his discussion with the owner of the Holiday Inn should be ignored as well. Mr. Brian’s testimony regarding availability of space at the Holiday Inn needed to be ignored as well because it was not in the record.  Mr. Busch clarified that SOU was not a collocation site and the only collocation standard available, deals with other existing WCF sites.

 

Mr. Busch explained there was nothing in the record concerning a significant coverage gap; it was not code criteria but a standard under the Telecommunications Act.  The code criteria under discussion did not include a significant gap component.

 

Appellant Rebuttal

Mr. Hearn explained the code required a feasibility study and that the three brief letters AT&T submitted did not constitute a study and was inadequate.  He noted the Findings of the Planning Commission indicate that they struggled with legal interpretations.

 

HEARING CLOSED – Closed at 9:21 p.m.

 

STAFF COMMENTS

Mr. Severson explained the original submittal lacked a signed lease demonstrating that collocation was not precluded. The collocation feasibility study was limited in that collocation was feasible but there were issues with topography and ability to run coax.

 

Parking was a non-conforming issue and non-conforming issues were not grounds for appeal.  Mr. Hearn had suggested a review of parking in terms of the target use and impact to the target use.  There was a determination made by the Planning Commission that the parking impacts from the proposed use were no greater than what would occur if the development were full retail standard.

 

Mr. Crean explained in Quasi Judicial decisions, Council reviews a request or application for permit and decides if compliance standards were met.  For an appeal in Planning Commission decisions Council can determine whether there was substantial evidence to support the Planning Commissions findings or if there was an error of law.  Additionally, state and federal law apply to this case.  Section 332 C7 of the Telecommunications Act state local government cannot act to prohibit personal wireless services.  The courts have interpreted this as applying unless there was a significant gap in coverage.  In this situation, a gap in coverage was not the issue. 

 

COUNCIL DELIBERATION

Council agreed the relevant issue of appeal was the collocation.  Staff suggested Council also discuss the issue of submittal requirements for a complete application.  Council had the right to decide what was needed in the final application and what could be modified during the course of the application.  Council discussed whether the non-conforming parking issue was clear and distinct and agreed it was not articulated clearly. 

 

Council went on to determine whether collation was mandatory or optional in the code.  Councilor Chapman thought the sentence in 18.72.180 B-6:  “Where possible the use of existing WCF sites for new installations shall be encouraged,” was a preamble and collocation was mandatory.  Other comments indicated the code was not clear enough to be mandatory and was optional. 

 

Councilor Navickas motioned to reverse the Planning Commission’s decision with regard to the fulfillment of the application requirement.  Councilor Navickas withdrew the motion.      

 

Councilor Lemhouse/Jackson m/s to affirm the decision of the Planning Commission, reject the appeal and direct staff to prepare findings for adoption by Council.  DISCUSSION:  Councilor Lemhouse stated the ordinance was not written to make it a mandatory requirement and it was the responsibility of Council to uphold the ordinance.  The code would be clear if it was meant to be mandatory.  The feasibility study was not a quality effort and since it was not required, quality took less importance.  Councilor Navickas thought the ordinance in its entirety stated collocation of new facilities on existing facilities was the preferred option and created a dichotomist key from that point. The intent required a feasibility study and to look at collocation. Councilor Jackson interpreted the same language to support the Planning Commission’s decision.  Collocation was ideal.  There was enough evidence in the record that the Planning Commission processed to make the decision that there were options and it was not mandatory.  If the code meant to preclude anything else, it would have stated that.  Councilor Silbiger noted the Planning Commission found the evidence from AT&T included a collocation feasibility study indicating an effort was made and the collocation could not occur.  The focus was whether that ruling was faulty.  Once that determination was made, Council could then argue if it was required.  What AT&T submitted as a feasibility study met number 6 of Submittals.  He was not convinced or had enough evidence to overturn the Planning Commission’s decision. 

 

Councilor Voisin thought the Planning Commission committed an error of law by interpreting the ordinance regarding the feasibility study.  Council is responsible for the interpretation of the ordinance not the Planning Commission.  Councilor Chapman would not support the motion because it was too early to make a decision.  He did not think the Planning Commission made an error in law. Time permitting, he preferred to interpret the piece of code on preferred designs and remand it back to the Planning Commission and let them go through the process.  Councilor Voisin clarified she did not think the Planning Commission addressed 18.72.180 B-6 regarding collocation efforts and reasons why collocation could not occur.  Councilor Jackson responded Planning Commission decisions require interpretation and she expected the Commission to read, interpret and apply the code.  Roll Call Vote: Councilor Lemhouse, Silbiger and Jackson, YES; Councilor Voisin, Chapman and Navickas, NO.  Mayor Stromberg broke the tie with a NO vote.  Motion failed 3-4.

 

Councilor Navickas/Voisin m/s to reverse decision of Planning Commission.  DISCUSSION: Councilor Navickas explained the application was not substantial enough and mandatory collocation standards exist within the code.  Councilor Chapman reiterated Council was not ready to make a decision.  Councilor Silbiger agreed with Councilor Chapman and added the criteria from the appeal had not been discussed.  Councilor Voisin questioned why Council was ready to affirm the Planning Commission’s decision and not to reverse it.  Councilor Navickas thought Council had exhausted the discussion.  Councilor Chapman offered to make a motion that collocation was a preference then address other issues.  Roll Call Vote:  Councilor Voisin, and Navickas, YES; Councilor Lemhouse, Silbiger, Chapman and Jackson, NO.  Motion failed 4-2.

 

Councilor Lemhouse/Jackson m/s to continue matter until October 19, 2010 meeting at 7 p.m.  Voice Vote: all AYES.

 

PUBLIC FORUM

 

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

The minutes of the Regular Meeting of September 21, 2010 were approved as presented.

 

CONSENT AGENDA

1.   Will Council, acting as the Local Contract Review Board, authorize a Competitive Sealed Proposal (Request for Proposal) be used as the sourcing method to procure Parking Enforcement and Administrative Services?

2.   Will Council, acting as the Local Contract Review Board, authorize a Competitive Sealed Proposal (Request for Proposal) be used as the sourcing method to procure Workers’ Compensation Third Party Administrative Services?

3.   Will the Council Confirm the Mayor’s committee member selection for the Ashland Stormwater Advisory Committee (SWAC) and the Ashland Wastewater Advisory Committee (WWAC) for each of the respective Master Plan updates?

4.   Will Council approve a $12,020 amendment to the existing contract with KAS & Associates, Inc. for design and construction engineering services for the Jefferson Avenue project?

 

Consent agenda item #3 was moved to the October 19, 2010 Council meeting.

 

Councilor Jackson/Silbiger m/s to approve Consent Agenda items #1, #2 and #4. Voice Vote: all AYES.

 

UNFINISHED BUSINESS (None)     

 

NEW AND MISCELLANEOUS BUSINESS (None)

 

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.      Will Council approve Second Reading of an ordinance titled, "An Ordinance Relating to Noise and Heat Pumps or Mechanical Devices and Amending AMC 9.08.170, 9.08.175, and 15.04.185"?

Item delayed due to time constraints.

     

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

 

ADJOURNMENT

Meeting was adjourned at 10:27 p.m.

 

Barbara Christensen, City Recorder
John Stromberg, Mayor

                      

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