June 22, 2010
CALL TO ORDER
Chair Pam Marsh called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers,
John Rinaldi, Jr.
Bill Molnar, Community Development Director
Derek Severson, Associate Planner
Richard Appicello, City Attorney
April Lucas, Administrative Assistant
Eric Navickas, absent
Commissioner Marsh announced the vacancy on the Planning Commission and encouraged interested citizens to submit applications to the Mayor’s office.
Community Development Director Bill Molnar requested the commissioners inform staff if they have summer travel plans and stated there is a possibility the July Study Session will be canceled.
No one came forward to speak.
A. PLANNING ACTION: #2009-01244
SUBJECT PROPERTY: 1644 Ashland Street
APPLICANT: Goodman Networks, Inc. for AT&T Wireless, LLC
DESCRIPTION: A request for Site Review approval and a Conditional Use Permit to install rooftop wireless communications facilities on the existing Ashland Street Cinema building located at 1644 Ashland Street, and associated ground mounted equipment. The installation consists of 12 architecturally-integrated panel antennas. The application includes a request for an Administrative Variance from Site Design and Use Standards required landscape buffer. The subject property is located within the Detail Site Review Zone and the
Declaration of Ex Parte Contact
Commission Rinaldi stated he performed a site visit. Commissioner Mindlin stated she performed a drive by site visit. No ex parte contact was reported by any of the commissioners.
Associate Planner Derek Severson noted a significant amount of testimony was submitted into the record following the Commission’s last meeting and stated the primary concerns were focused on: health impacts, economic impacts, collocation, and the lease agreement. Mr. Severson explained the Telecommunications Act of 1996 prohibits the Commission from basing their decision on potential health effects or health concerns; and in terms of the economic impact issues, he stated the Commission must determine whether these impacts can be separated from the concerns about health impacts. Regarding collocation, Mr. Severson clarified the Municipal Code states, “Where possible, the use of existing WFC sites for new installations shall be encouraged. Collocation of new facilities on existing facilities shall be the preferred option.” He noted the Applicant’s have submitted additional information addressing the feasibility of collocation elsewhere and they are asserting the other potential locations would not meet their service objectives. Lastly in terms of the lease, Mr. Severson stated staff is recommending a condition be added that requires a revised lease be drafted that more clearly demonstrates that collocation is not precluded. Mr. Severson stated the Commission must determine whether they have adequate information to make a decision and whether the information provided adequately addresses he approval criteria to their satisfaction (while considering the limitations imposed by Federal regulations). Mr. Severson stated in staff’s view, the materials provided are sufficient for the Commission to make a finding for approval.
City Attorney Richard Appicello noted this is a quasi-judicial proceeding and the Commission’s decision must be based on the approval criteria and supported by information in the record. He noted they are prohibited from applying the radio frequency emission health concerns in their decision even though there was a lot of testimony submitted about this; and stated in his opinion, it will be difficult to separate the economic issues from the health concerns. Mr. Appicello provided a brief explanation of how the City Council has interpreted the livability standard in the conditional use criteria and stated it is not a “no adverse impact” criterion, but rather a comparison between what is being proposed and the target use of the zone.
Questions of Legal Counsel & Staff
The Commission asked questions on a number of elements; the following is a summary of the questions and answers that were given:
· What does the Comprehensive Plan envision for this area?
Mr. Severson answered permitted uses within the C1 district, developed to .35 FAR.
· In the Applicant’s pre-application report staff identified concerns regarding the building’s height and visual impacts, is this still a concern for staff?
Mr. Severson clarified at the pre-application stage the Applicant’s were proposing six false chimneys to house the cell antennas, and stated staff does not have these same concerns with the current proposal.
· How does this application impact parking?
Mr. Severson clarified the Applicant’s prepared an independent parking analysis and it was their determination that because the equipment will be placed at the rear of the building and will not take up any required parking, it will not affect parking on the site.
· Why is this application a conditional use rather than an outright permitted use?
Mr. Severson clarified there is a table in 18.62 that identifies which uses need conditional use permits and this is one of those uses. Commissioner Marsh noted she had a copy of the table and passed it around for the commissioners to look at.
· The codes states “collocation shall be encouraged”, does Legal have a definition for “encouraged”?
Mr. Appicello clarified this type of language is usually seen in comprehensive plan policies and is not typical for land use code. He added because of the language used, this standard is fairly week.
· How should the Commission handle the varying information contained in the multiple submissions from the Applicant?
Mr. Appicello stated the Commission must consider all of the information in the record and noted the earlier submissions may not have been complete which is why additional information was added by the Applicant.
· Does the criterion regarding material adverse impacts only apply to the property at hand or all of the surrounding properties?
Mr. Appicello stated he this criterion extends to the notice area as well.
· To what degree is the landscape screen critical?
Mr. Severson clarified the Applicant’s are requesting a variance to the landscape requirement and they assert by not providing the landscape buffer they are able to mimic the development pattern that is already in place, it allows them to preserve fire access, and the existing landscaping mitigates their request. Mr. Severson added the proposed ground structure would not be visible from the right of way, and noted the property located behind the structure is a commercial use.
Commissioner Dawkins stated he is struggling with this because based on what the City Attorney is saying, they have no room to vote anything but “Yes”. He voiced his frustrations with not being able to look at the economic impacts caused by perceived danger, and stated he agrees with these concerns. He stated he cannot vote ethically on this and then Commissioner Dawkins recused himself from the hearing.
Deliberations & Decision
Commissioner Marsh explained that what they do is largely prescribed by the
Mr. Severson clarified there is an approval criteria that states where possible, collocation should be considered; however the Applicant’s have provided a refinement to their earlier materials that details why collocation would not meet their objectives.
Commissioner Miller stated she is not convinced that collocation with the Holiday Inn Express is not an option and based on the Applicant’s submittals she does not think they have really looked at this. Commissioner Mindlin commented that initially the Applicant’s stated the cinema site was preferable, and as the noose tightened they changed their stance to this being the only location feasible. Commissioner Dotterrer stated initially he was uncomfortable as well with the changing input, but based on legal’s advice, they have to look at the totality of the Applicant’s materials and believes they have addressed the collocation adequately. Commissioner Marsh agreed. She stated the original submittal was weak, but it was added to over time, and in the end she was persuaded by the most recent information that came in. She noted she was particularly persuaded by the statement from AT&T representatives that the Ashland Cinema location will provide full access to the SOU campus both indoors and out, and she believes this access for the students is an important function.
Commissioner Blake stated the criterion language in 18.72.180.C.2 is so weak, it really ties the hands of the Planning Commission. Marsh stated the collocation language is largely for site and design issues, so it puts the emphasis on them to look at the site and design factors and ameliorate any adverse visual impacts.
Commissioner Mindlin stated like Dawkins, she also feels biased and can’t in good consciousness participate because of her beliefs about the environmental impacts. Commissioner Mindlin recused herself from the hearing and left the room.
Site Design & Use Standards/Landscaping Variance
Commissioner Blake stated he does not believe the current design mitigates the visual impacts and believes this will make the building more imposing than it needs to be and will block views of the mountains. Mr. Severson stated in looking at the plans he believes the parapets are for screening and the antennas appear to be located in the penthouse portion. He added he is not an engineer and cannot speak to whether there is an engineering function to the parapets. Marsh clarified without the additional parapets, there would just be a very tall Ashland Cinema sign to hide the antennas.
Commissioner Blake stated he is bothered by the Applicant’s request for a landscaping waiver. Commissioner Dotterrer stated he views this administrative variance as very minor and he is okay with this. He added there are a lot of other important issues here and believes they should allow the variance in this case. Marsh concurred and Rinaldi agreed as well.
Conditional Use Permit
Commissioner Marsh noted there has been legal guidance given on the interpretation of conditional use permits in terms of the targeted use and the impacts of the use being proposed.
Commissioner Miller expressed her concerns with the economic impact this proposal will have on the surrounding businesses. Rinaldi agreed and cited the testimony they received from numerous individuals who testified they would be forced to close their business due to the lack of patronage. He added customers also testified that they would no longer visit these businesses. He stated regardless of why people feel this way, he believes this meets the definition of economic impact. Marsh stated this is a very slippery slope and while it would be very unfortunate if people no longer visit this shopping center, she does not believe they should base their decision on how people feel rather than the criteria. Miller noted the criterion that states “other factors found to be relevant by the hearing authority for the review of the proposed use” and questioned why they cannot put economic impact into this as a factor. She stated people have testified that they are not going to frequent those businesses and does not know why they cannot consider this. Mr. Appicello clarified there is a list of types of impacts on livability and “other factors found to be relevant” would typically be similar impacts to the ones that are listed. He stated the standard does not ask if there is going to be an adverse impact, it asks whether the impact is greater than the target use of the zone. He added this means the Commission needs to compare the proposed use to everything else that is permitted in a C1 zone. Dotterrer agreed with Marsh about the issue of separating economic impacts from the environmental impacts. He stated the two are connected and believes they are getting away from the criteria that they are suppose to be looking at. He added if they have a problem with the criteria, the law should be rewritten. The City Attorney was asked for his advice regarding separating the environmental and health concerns as the reason behind the economic impact. Mr. Appicello commented that given the federal statute, he would not recommend attempting to separate the reason for the economic impact from the radio frequency concerns.
Commissioner Blake commented that they will likely see future requests like this down the road and recommended the City Council take another look at the impacts and possibly strengthen the approval criteria language.
Commissioner Dotterrer/Morris m/s to approve Planning Action #2009-01244, including the request for an administrative variance to the Site Design & Use Standards, and add the additional conditions proposed by staff. DISCUSSION: Commissioner Blake stated he does not think the two raised parapets mitigate the visual impacts and stated he would be in favor of a condition that eliminates those from the application. Blake offered this as a friendly amendment. Commissioners Dotterrer and Morris accepted the amendment with the clarification “so long as the removal does not compromise the screening or engineering of the structure.” Miller voiced her objections to the motion and stated she does not believe the collocation issue has been satisfactorily addressed. Marsh commented that we are a cell-centric culture and have become dependent on this technology for basic communication. She stated these issues are going to proliferate and as technology changes we are going to have to look at how we want these sited. Roll Call Vote: Commissioners Blake, Dotterrer, Morris, Rinaldi and Marsh, YES. Commissioner Miller, NO. Motion passed 5-1.
Commissioner Marsh noted the Findings for this action will come back at their next meeting and warned the commissioners about ex parte contact. It was noted that an appeal of this decision is very likely and Mr. Appicello clarified if appealed, there will not be a de novo hearing before the City Council. He added it will not be the same kind of hearing that happened before the Planning Commission and stated he can provide further details when the Findings come back to them.
Meeting adjourned at 8:33 p.m.
April Lucas, Administrative Assistant