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Agendas and Minutes

Planning Commission (View All)

Planning Commission Special Mtg

Agenda
Tuesday, June 26, 2018

ASHLAND PLANNING COMMISSION
SPECIAL MEETING
MINUTES  
June 26, 2018
 
CALL TO ORDER
Chair Roger Pearce called the meeting to order at 7:03 p.m. in the Civic Center Council Chambers, 1175 East Main Street.
 
Commissioners Present:   Staff Present:
Troy Brown, Jr.
Michael Dawkins
Melanie Mindlin
Haywood Norton
Roger Pearce
  Bill Molnar, Community Development Director
Maria Harris, Planning Manager
Derek Severson, Senior Planner
Dana Smith, Executive Assistant
     
Absent Members:   Council Liaison:
Lynn Thompson
 
  Dennis Slattery   
ANNOUNCEMENTS -  None
 
AD-HOC COMMITTEE UPDATES - None  
 
PUBLIC FORUM - None  
 
TYPE III PUBLIC HEARINGS

A.PLANNING ACTION:  PA-L-2018-00003

DESCRIPTION:  Ordinances amending Chapters 18.3.10, 18.4.3.080, 18.4.4, 18.5.1, 18.5.3.060, 18.5.5.020, 18.5.7 and 18.6.1 of the Ashland Land Use Ordinance to amend the development standards for Wildfire Lands, amend the official Physical and Environmental Constraints Map to expand the boundary of Ashland’s designated Wildfire Lands to include all properties within the City Limits, and amend Chapter 9.04 of the Ashland Municipal Code to establish a Prohibited Flammable Plants List.
 
Staff Report
Senior Planner Brandon Goldman provided the following background on the amendments:
Wildfire Ordinance Amendments
  •  Ashland Fire & Rescue requested the City Council expand the boundary of Ashland’s designated Wildfire Lands to incorporate the entire City (April 15th, 2014). 
  • Ashland Fire & Rescue identified a number of potential changes to the municipal code, to be considered:
    • Clarify the submittal requirements for a Fuel Prevention and Control Plan
    • Update the requirements for general fuel management areas (fuel breaks around structures).
    • Prohibiting new planting of highly flammable plants within proximity of structures. 
    • Ordinance and Map amendments are a legislative Land Use action requiring the approval of an ordinance, with public hearings before the Planning Commission and City Council.
Fire Department Division Chief-Forestry Division Chris Chambers explained over the past few years Ashland had experienced several fires that were outside the wildfire protection zones.  The ordinance would protect life and property, firefighter safety, watershed, and quality of life in the face of climate change with increasing wildfires.  Ignitions were occurring all over the city.  Highly flammable vegetation continued being introduced throughout the city around existing and new structures.  Fire through the air was a primary concern for the Fire Department as well.  Wind from high intensity wildfires like the Siskiyou fire, carried embers and caused fires.  He provided examples.
 
Mr. Goldman explained the Wildfire Lands Ordinance Amendments would:
  1. Expand the Wildfire Lands Overlay to include the entire city.
  2. Proposed update to the Development Standards for Wildfire Lands relating to new construction and additions.
  3. Proposed Municipal Code change to define specific highly flammable plants as a nuisance to not be newly planted within 30 feet of structures.
  4. Proposed Resolution with a Prohibited Flammable Plants list.
Expanding the wildfire zone citywide was supported by a 2014 Wildfire Hazard Zone Evaluation Report.  It mapped wildfire fuels and found that all areas within the city were at or above the threshold for a wildfire hazard zone designation.
 
The Fire Prevention and Control Plans were subject to planning actions like partitions, subdivisions and new commercial development. They would require Site Design Review.  They were not required for new single family dwellings, accessory residential units, or additions.
 
The applicant would submit a Fire Prevention and Control Plan addressing the wildfire mitigation standards on both existing and proposed landscaping.  The plan would duplicate primary elements of their landscape plan. They would also provide a schedule to implement the plan.  Larger projects for commercial, multifamily and subdivisions would have a management plan that included:
  • New Landscaping
  • Tree removals
  • Areas to be thinned
  • Schedule for thinning and removal
  • Ongoing Maintenance
The General Fuel Management Area applied to all new buildings, additions, and decks increasing lot coverage by 200 sq.ft. or greater, and new buildings if the footprint was larger than 200 square feet.  It would not apply to internal remodels, second story additions, or small additions less than 200 square feet. 
 
Requirements for general fuel modification areas included:
  • Remove all dead or dying vegetation on the property.
  • Removal of Prohibited Flammable Plants from within 5’ of a new structure or addition.
  • No new planting of plants listed on the new Prohibited Flammable Plant List within 30’ of a structure.
  • No combustible materials within 5 feet of a new structure or addition, including mulch.
  • New fences connecting to a structure must be non-combustible within 5 feet of where they attach.
  • Existing Flammable trees (evergreen pine, fir) which are to be retained:
  • Provide a 10-foot clearance to canopy from new building or additions
  • Must be maintained to remove understory growth and clearance from ground (8’)
  • Allowance for an exception if pruning the tree to this extent will compromise its health.
  • Existing fire resistant trees (deciduous oak, maple) to be retained:
    •  Pruned to not touch a structure
    •  provide a 10’ clearance from a chimney.
  • Roof Material (new or 50% re-roof) to be fire resistant (Class B).
Through the review by the Planning Commission, Tree Commission, and Wildfire Mitigation Commission,
The initial draft of the ordinance presented in 2015-16 was changed to have a clear distinction between highly flammable plants, and plants that were more fire resistant.  This acknowledged that fire resistant trees and shrubs could be closer to buildings without substantially increasing risk.
 
The Tree Removal section was amended and would:
  • Allow removal of trees less than 18” in diameter without a separate tree removal permit in hillside lands if proposed as part of an approved Fire Prevention and Control Plan, or to implement a comprehensive general fuel modification strategy.
  • Require Tree removal permits for larger properties subject to partitions or subdivisions 
A resolution adopting the Prohibited Flammable Plant List would apply citywide:
  • Prohibit new plantings of listed flammable plants within 30’ of buildings and decks.
  • Existing listed flammable plants are to be removed if within 5’ of a new building, addition, or deck.
The Tree Commission and Wildfire Mitigation Commission reviewed a draft earlier this year.  Each Commission recommended approving the draft ordinance and recognize the amendments made during meetings with various commissions and the working group.  Additional suggestions made by both Commissions were incorporated into the draft.  The draft would go before City Council July 17, 2018 for First Reading and August 7, 2018 for Second Reading.
 
Division Chief Chambers commented on the disproportionate impact developing new structures without considering existing housing stock.  The existing homes, businesses and buildings made up the bulk of fire danger in Ashland.  It was one of the reasons the initial proposal was withdrawn and revised then brought back at this time.  Existing stock would continue to be addressed through the Firewise Communities Program.  Staff was applying for a grant through FEMA for $3,000,000.  They had also ranked structures in the city that had a high fire rating. 
 
In the future, they planned to consider the appendix W that would look at the construction of the buildings.  Lessons from recent fires showed the area zero to 5 feet away from a house was critical to prevent houses from igniting during a wildfire.  Eaves and venting of houses were also important but currently not addressed.  The proposed amendments would meet the current understanding of wildfire ignitions and community preparation.
 
Questions of Staff
Commissioner Mindlin appreciated the work done.  She addressed the possible waiver based on fire resistant materials on the building and wanted to know why windows were not considered.  Mr. Goldman explained if there was a flammable plant below a window, the heat would likely break the window and penetrate the house.  The exceptions process was an opportunity to review each property case by case to grant that exception.  A property could have bark mulch if there was fire resistant siding.
 
Public Testimony
Kerry KenCairn/Ashland/Was concerned about homes with 3-foot setbacks and wood fences in the historic district.  She wanted to ensure there was enough exception language that spoke to historically complicated and odd neighborhoods that did not force metal fencing or the removal of established landscaping.  She hoped they would honor the historic pattern.
 
Mr. Goldman explained they were concerned with a fence running on a property line at 3-feet from one building and 3-feet from the other.  Fencing was an opportunity for privacy screening between the two properties.  They crafted the ordinance to specify the fence within 5-feet of where it connected to the building.  The fence running parallel between the properties could be wood.  Wood fencing could act like a fuse during a wildfire.  A 3-foot metal gate connecting to a home could be enough to prevent a fire spreading to the house.
 
Chair Pearce noted Section 9.04.022 used the term general fuel management area and Section 18.3.10.100(B) referenced a general fuel modification area.  Mr. Goldman clarified both should be general fuel modification area and would make the change.
 
Commissioners Mindlin/Brown m/s to approve and make a recommendation in favor of the ordinance to the City Council.  Roll Call Vote:  Commissioners Pearce, Dawkins, Brown, Mindlin, and Norton, YES. 
Motion passed 5-0.
 
Councilor Slattery left the meeting at 7:30 p.m.
 
TYPE II PUBLIC HEARINGS

A.PLANNING ACTION:  PA- 2017-01486

SUBJECT PROPERTY:  1250 Ashland Street

OWNER/APPLICANT:  Southern Oregon University/Smartlink LLC for Verizon Wireless

DESCRIPTION:   The Planning Commission will consider an appeal of the Staff Advisor’s approval of a request for a Site Design Review Permit to install wireless communication facilities (antennas and associated equipment) on the roof of the Science Building at 1250 Ashland Street on the Southern Oregon University Campus. The application also includes a request for a Conditional Use Permit because with the installation of panels proposed to screen the wireless communication facility installation, the building height will exceed 40 feet.    COMPREHENSIVE PLAN DESIGNATION: Southern Oregon University District; ZONING: SO; ASSESSOR’S MAP:  39 1E 15BB; TAX LOT #: 100
Chair Pearce explained this was an appeal of staff’s decision to approve the installation of wireless communication facilities at Southern Oregon University (SOU) by Mr. and Mrs. Uhtoff.  He read aloud the public hearing procedures for land use hearings.
 
Ex Parte Contact
Commissioner Dawkins declared no ex parte contact.  He spent his college career in the same building and had read the article in the Ashland Daily Tidings.  The article would not influence his decision.  Commissioner Brown had no exparte contact and a site visit.  Commissioner Mindlin had no ex parte but was familiar with the building.  She was contacted by Rod Newton and declined via email to talk to him.  Instead, she referred him to the packet online.  Commissioner Norton had no ex parte and a site visit.  He had read the article in the Ashland Daily Tidings.  Chair Pearce declared no ex parte contact and drove by the site.
 
Staff Report
Senior Planner Derek Severson explained the appeal was of an administrative approval for two requests:
  • Site Design Review Permit to install Wireless Communication Facilities (antennas and associated equipment) on the roof of the Science Building at 1250 Ashland Street on the Southern Oregon University Campus.
  • Conditional Use Permit because with the installation of panels proposed to screen the wireless communication facility installation, the building height will exceed 40 feet. 
Staff initially approved the application subject to a number of conditions, and subsequent to the Notice of Decision.  Kathy Uhtoff filed an appeal request.  The Planning Commission heard Type I appeals.  This was a de novo hearing. 
 
The building had partial screening walls around the roof to screen mechanical equipment.  The applicants proposed to extend the panels around the building fully screening the antenna installations.
 
The City regulated the placement, appearance and visual impacts of WCF’s while providing residents the ability to utilize wireless services.  It identified the following preferred designs:
  1. Collocation on Existing WCF Site is the preferred option.
  2. Attached to Existing Structure if #1 not feasible.
  3. Alternative Structure is #1 & #2 not feasible.  Design features to conceal, camouflage or mitigate.
  4. Free-standing Support Structure if #1, #2 & #3 not feasible.  Lattice towers are prohibited as free-standing support structures.
Other regulations included:
  • Independent Third Party Review required.
  • Placement in the area of the site with least visual impact while allowing functionality.
  • Setback from residential zones at least twice the height of the installation.
  • Mitigate visual impacts through architectural integration.
  • Non-reflective finish & color; blend with color & design of existing.
  • Limits exterior lighting and signage to only what is required by federal or state law.
  • Additional visual mitigation may be required to camouflage through design, facades, colors, materials, masking and shielding techniques.
The City had two approved sites.  The Holiday Inn Express & Suites on Clover Lane and the Ashland Springs Hotel downtown.  Both had architecturally integrated wireless facilities into the architecture of the buildings.
 
There were two appeal issues:
  1. The deadly and serious consequences of 5G. Potential hazards of fifth generation (5G) wireless facilities to human health and the environment. 
  2. Violation of Oregon’s statewide planning goals.  Ms. Uhtoff notes that Goal 1 of Oregon’s statewide planning goals in OAR 660-015-0000(1) calls for citizen involvement, and suggests that neither the city nor the applicants fully disclosed to all affected citizens their intention to install a 5-G cell tower as the notices mailed only went to property owners within 200 feet of the subject property while cell tower radiation and frequencies from the new tower will extend well beyond 200 feet. 
Mr. Severson addressed appeal issue #1 and explained the proposal was for a 4G installation and not 5G.  City code did not distinguish between 4G and 5G. Federal law precluded the City from considering the health impacts:
  • 47 U.S. Code § 332(c)(7)(B) - Mobile services (ii) - A …local government … shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
  • (iv) -  No … local government …may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communication] Commission’s regulations concerning such emissions.
For appeal Issue #2, he explained the following:
  • Statewide Planning Goals are not approval criteria.
  • Ashland’s regulations are based in state requirements and acknowledged as implementing state law.
  • State law requires a 100-foot noticing area for administrative actions.
  • Ashland’s regulations require a 200-foot noticing area (from the site).  Notice was appropriately provided here (see exhibits) for the application, the decision and the appeal.
  • Ashland’s regulations also require a 300-foot noticing area (from the wireless facility) for a neighborhood hearing conducted by the applicants.
Staff recommended the Planning Commission deny the appeal and uphold the original approval with the conditions recommended in the staff report.
 
Questions of Staff
Commissioner Mindlin asked if the students at the university were notified.  Mr. Severson did not have any information on whether they were informed or not.
 
Chair Pearce noted City Attorney Dave Lohman want the Commission reminded of the Telecommunications Act of 1996.  In 47 USC 332(c)(7)(B), Congress decided to preempt any local decisions and zoning authority.  A local entity could not regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities were approved by the FCC and complied.  The Commission was constrained by federal law to make a decision based on health issues.
 
Applicant’s Presentation  
Mike Connors/Hathaway Larsen Law Firm/Represented the applicant. The proposed site would provide coverage and capacity.  The coverage component would cover dead spots in service. The facility would supplement coverage.  The other aspect was capacity and related to bandwidth.  There was an increasing number of people using wireless equipment.  The types of uses had increased and subsequently decreased bandwidth.
 
The location was chosen based on building height.  The facility would cover the university and surrounding areas.  He clarified it was a rooftop facility and not a cell tower.  The applicant would extend and complete the remainder of the existing screening wall making it architecturally consistent with the existing screening. The primary benefit was visual.  Both the antenna and the equipment would be concealed.  They would also help screen some of the mechanical equipment there already.  The second benefit of the screening wall was noise reduction.  Noise standards required the applicant to demonstrate that noise levels affecting residential properties would not exceed 45 A-weighted decibels (dBA).  The noise study concluded with the screening wall, the noise level would be 21-23 dBA.
 
There was a colocation option for the second preferred option.  A report provided in the application explained the reasons and needs for using the SOU location.  The report evaluated three alternatives that met the first option preference and explained why they were not feasible.  The alternatives did not provide the intended coverage and were located too close in proximity of existing facilities and would create interference.  The City had their own expert, Mr. Johnson, evaluate the applicant’s report and he had concurred with their conclusions.
 
Mr. Connors understood the health concern issues.  It was prohibited by federal law. The purpose behind the law was the federal government determined there was a need to standardize radio frequency (RF) emissions.  Experts determined the national standards.  As a carrier, Verizon was required to demonstrate compliance with FCC standards.  It was a complicated issue with deep science.  It made it difficult for local decision makers who may not have that expertise to make a determination.  It was a reason federal law prohibited local jurisdictions from making decisions based on health or emission effects. 
 
The second issue raised had to do with the statewide planning goals.  Oregon law stated if a local jurisdiction had a Comprehensive Plan and Land Use Ordinance, compliance with that was presumed to be compliance with the statewide planning goals.  The applicant complied with noticing requirements and procedures.  There was not a basis for the Commission to determine the application violated statewide planning goals.  The applicant complied with the criteria.
 
He asked the Commission to approve the application and adopt the staff report as Findings.
 
Questions of the Applicant
Commissioner Mindlin asked if the students at the university were notified.  Mr. Connors did not think the students were notified.  Notice requirements applied to property owners.
 
Appellant’s Presentation  
Kathy Uhtoff/Ashland/Lived in the area in a multi-generational household.  She was concerned with the effects of the cell tower and the noticing process.
 
Alan Rathsam/Ashland/ Was a retired mechanical engineer and shared his credentials.  The Telecommunications Act of 1996 was antiquated and based on 580 micro watts per square centimeter of radiated power which was felt on a level of being cooked.  It was obsolete.  Current reports from scientists all over the world showed there were health effects far below those levels.  One report noted there was blood brain penetration in a matter of seconds when someone held a phone next to their head.  Another report stated scientists found measurable brain changes in fifty seconds of holding a phone next to your head.  Scientists were demanding a halt to the introduction of 5G.  Currently, 4G was limited to 6 gigahertz.  The 5G cell would start at 30 gigahertz and could go to 300.  It would most likely serve 28-98 gigahertz.
 
Ms. Uhthoff did not believe the need had been substantiated.  The City hired Mr. Johnson, a New York engineer, to do a study and he was coming to the conclusion the cell tower was not needed.  At that point, Verizon heard of the upcoming report and had their expert submit another report.  From that report, Mr. Rathsam had submitted a graph into the record showing the need was not now.  It might be in the future.  Based on that, she did not think the Commission should approve the application.
 
Public Testimony
Amy Munro/Ashland/She had recently read of other cities not permitting 5G installations.  She was a conventionally trained doctor and initially skeptical.  There were thousands of studies on the issue.  On the whole they were split with 55% showing a negative effect from the electromagnetic field (EMF) and electromagnetic radiation (EMR).  Lack of definitive proof that something was harmful did not mean it was safe.  She spoke to the electromagnetic spectrum.  Approximately 130 years before there was only sunlight and cosmic radiation.  Now it was full of manmade EMF and EMR.  The precautionary principle should be used in this circumstance.
 
Jasper Rose/Ashland/Lived a block away from the college and proposed cell tower.  She cared about the quality of life for herself and two younger brothers, family, and neighbors.  Through commented dissonance it was easy to think the harmful effects were not there but they existed.  She was scared for her future.  People were surrounding themselves with wireless technology.  They were either aware or not aware like the SOU students who did not know the cell towers were being installed.  Everyone had been so driven to keep advancing technology that they forget to question safety.  As a community, we should stand together and say no.
 
Vicki Simpson/Ashland/Needed to speak for the children and young people.  There were classrooms at SOU for young children.  She knew from a few hours of research there were all sorts of danger and red flags against concentrated cell phone power in one area.  There were increased levels of medical issues for children.  She listed several.  Other concerns were bees, birds, animals, and foliage removal around cell towers.  There were money concerns for the City.  She doubted insurance companies would insure any wireless operation.  She suggested the City use qualified engineers to map out the ambient radiation levels before the towers are installed and on a yearly basis after installation.
 
Scott Ploss/Ashland/Worked with people who had radiation poisoning.  All of his standard training as an electrician stated it did not exist.   He had worked with people who could find wires in a wall because they were that sensitive.  The need had not been demonstrated.  In California, cell towers were banned on fire stations.  He questioned using SOU as a location.  Science had advanced since the federal communication guidelines that came out in 1996.  There were many new studies from the federal government.  The law had not changed and they were not supposed to address health issues but there might be other ways to address the issue.  Approximately 10% of the nation had EMF sensitivities. The law needed to be changed.  Some laws were wrong in history.
 
Alan Rathsam/Ashland/Verizon’s case for immediate need of the SOU cell tower had not been presented directly, comprehensively, and adequately to the Ashland Planning Department.  The case for immediate need was implied but not specifically addressed in a letter by Andrew Thatcher to Planning Manager Maria Harris.  The letter presented Verizon’s immediate need in a simple plot of a forward data volume.  An FTD trend line fitted versus time with a reference line showing present data volume capacity.  He used the graph submitted into the record earlier.  It was taken from Figure 1 of Mr. Thatcher’s letter.   It did not show the basis of cell tower coverage growth that determined the slope of the trend line. The key was to justify immediate need.  The simple plot was not sufficient to establish immediate need.
Finally, Mr. Thatcher’s only contribution was the cell tower measurements at SOU.  Other information in his letter was merely a review of analysis done by Verizon.  Mr. Johnson, the City’s cell tower consultant accepted findings in the letter without questioning the lack of details.
 
Kelly Marcotulli/Ashland/Protested the cell tower on the grounds that not only was it unnecessary, the City would lose money because the bee population of Ashland will decline.  She submitted a document into the record that spoke to colony collapse due to electromagnetic radiation from cell phones and relay towers.  Ashland was a designated Bee City.  The cell tower jeopardized bees and everything people held dear here.  Once the cell tower was installed, others could collocate.  Then the next 5G installation comes along and people fry along with the bees.  Bees were an important species and critical pollinators.  They pollinated crops that fed 90% of the world.  Where was the feasibility study showing the need for the tower?  It threatened everyone’s way of life. 
 
Denise Allen/Ashland/Had over 200 signatures gathered in a short time of people wanting to stop the SOU cell tower.  She had no doubt the signatures would reach the thousands.  People in Ashland were very informed. There were many concerned citizens.  She hoped the Commission would make a safe decision for everyone.
 
Darwin Thusius/Ashland/Read excerpts of the letter to the Editor in the Ashland Daily Tidings that strongly opposed the tower.  He went to the websites of two of the studies referenced in the letter and found no evidence of what the letter claimed.  The conclusion in the studies was ambiguous.  Everything was uncertain including the effects of radiation on lab rats versus humans.  Current data showed the present safety limit was acceptable.  He was not taking a stance either way but wanted to know the actual truth.
 
Ivy Ross/Ashland/Was part of Oregon for Safer Technology.  Her group viewed this as a 5 to 10-year project.  They were planning on challenging the entire City code if needed.  They were not concerned with aesthetics.  They were going to the next level of consciousness on the subject.  Cities around the world were doing this research.  They planned on educating the community and challenging the federal law of 1996, the FCC, and the telecom industry.  They would also make sure SOU students and families understood what was happening with this facility.  They questioned the $18,000 for such a large important issue. 
 
Commissioner Mindlin asked if Ms. Ross had information on the notification of students.  Ms. Ross had no knowledge if SOU had notified their students. 
 
Paul Sheldon/Ashland/Lived approximately 800 feet outside of the notification zone.  He spoke of having the moral courage to act.  The moral courage to say, I don’t know why yet but I know this is wrong.  He stated his house will be subject to electromagnetic trespass from this tower.  The law was not there to prohibit trespass in one’s brain with electromagnetic waves.  The Commission would have to answer to their grandchildren on the decision made tonight. The McCarthy hearings were within the law.  Would the Commission have spoken up during that time?  Or when smoking was allowed in rooms in the 1950, or with the current housing of immigrant children?  He urged the Commission to say no.
 
Gary Hrraz/Ashland/All visual aspects of the study were shown except for the view from the neighborhood above the location.  He provided day care for his grandchildren and an elderly woman.  His concern went beyond money and what the federal law thought.  More studies were needed.  They were in direct line of the site.  Noise was also an issue at 45 decibels.  There were already issues with noise never addressed.  There was nothing to block the radiation that will come from the tower to their neighborhood.     
 
Chris Lucas/Ashland/Worked at SOU.  University students were not notified in an official capacity but were talking about the facility.  There was a real need for greater capacity around SOU.  He taught media production with classes in advanced technology and citizen journalism.  Students used their cell phones for reporting. The uses of this technology were important for the students’ development and moving into world as media journalists, and story tellers.  They needed to rely on SOU’s ability to keep facilities up to date.  When it got crowded on campus, people lost coverage.  Students wanted more capacity.  He had done the research and he was not worried.  There was a good argument for building capacity for the city and SOU as an instructional tool.
 
Tara Shea Aananda/Ashland/Expressed respect for the Commission.  This was an opportunity to get involved in something that could possibly go down in history.  To make a huge difference not only socially but in human consciousness.  The 5G technology was an attack on physiology and consciousness.  This kind of technology affected the ability to dream, meditate, and connect to each other and whatever created us.  She invited them to upstage William Shakespeare and box the federal government.  We do not have to roll over just because of the Telecom act of 1996. 
 
Jim Fong/Ashland/Shared his background and credentials.  He had previously worked with Rod Newton from the Hidden Springs Wellness Center regarding a cell tower going on top of a nearby cinema.  They worked closely with staff to amend the current city ordinance.  His wife was electromagnetic sensitive.  He was very aware of the federal ban on considering health concerns.  The planning process executed by the City was fundamentally flawed.  The assessment and need for colocation options and stated needs and demands for the facility were unsubstantiated.  They all knew the third party evaluation process would result in efforts by telecommunication companies to throw it back as their validation.  In this case, it appeared the third party evaluation lacked sufficient expertise and knowledge.  
 
Miriam Sundheim/Ashland/The FCC regulation that did not allow decisions made based on health issues was 22 years old and maybe could now be challenged.  She was concerned because they did not really know what the added electromagnetic issues might mean.  She suggested taking more time to consider whether or not to take this risk.  She supported using the precautionary principle.
 
Rebuttal by Applicant
Mr. Connors addressed testimony about need.  There were no approval criteria that related to need.  However, there was evidence from their expert on need who had explained the particulars regarding colocation.  This was reviewed by the City expert.  He took issue at comments made that the City’s expert did not do their job.  During the initial study he pushed back and wanted more supportive evidence to substantiate some of the statements Verizon had provided.  Additionally, his client would not be doing this unless there was a need. 
 
Apparently, the notice was not sent to the students because it was specific to property owners.  He emailed the consultant and her understanding was that SOU provided a general notice to the students.
 
With the screening wall, the noise would be half the maximum allowed. 
 
Lastly, was testimony on health concerns.  He reiterated this was not 5G, it was 4G.  LTE was an acronym for 4G.  Most of the testimony did not relate to the approval criteria.  The Commission had to apply the facts of the law and were not policy makers.  They were constrained in their role.  There were venues for someone wanting to challenge the law.
 
Commissioner Dawkins asked if there were plans to go from 4G to 5G.  Mr. Connors responded there was no plan to do that.  He could not say never, 5G was very early in the process.  It would be a long evolution and possibly take many years.
 
Commissioner Norton wanted to know if Verizon had panels on either of the two existing sites.  Mr. Connor did not think Verizon had panels at either of the sites.  They looked at them both for colocation purposes.  The conclusion was they did not satisfy or cover the intended coverage area and were too close to existing facilities and that would create interference.  Mr. Connors did not know where Verizon was currently getting service.  The information was in the expert’s report. 
 
Questions of Staff
Commissioner Norton asked if the two existing facilities had site design permits and the process for modifying facilities.Mr. Severson explained there were eight providers at the Ashland Springs Hotel facility.If they wanted to modify that, they would have to check with the City.Altering the exterior of the building would require a new process.Replacing an older system with a new system in the same place would not require the applicant to go through a planning process.
 
Deliberations & Decision
Chair Pearce noted the Commission was severely constrained.  Most of the testimony spoke to health concerns and the Commission was not the venue to make challenges.  Congress was the appropriate entity.   Commissioner Dawkins spoke to the cell tower facility at the cinema eight years before.  He had sympathized with testimony against the facility.  He could not vote for it or abstain so he had walked out.  Commissioner Mindlin had done the same and both were reprimanded by the mayor.  The Commission governed by being quasi-judicial.  They had to uphold same standards as judges.  He noted comments made on the McCarthy hearings about moral responsibility.  The criteria stated they could not deny the application based on health issues per federal law.  It was a symbolic gesture but not a legal one.  It went against why the Commission was there and their responsibility here.  
 
Commissioner Mindlin spoke to cognitive dissonance and being constrained by federal law. The reason she kept asking about the students was that she found it disturbing there was not a single student present for or against the facility.  The students may want more coverage.  School was out but some students lived in town.  She thought if the students were aware they would have had the opportunity to go to their administration and oppose the application. That would be within the legal parameters of what was possible.  She did not think sufficient public process was followed in this case. 
 
Commissioner Brown wondered where was the speakers regarding the wildfire ordinance.  He acknowledged public concern regarding the cell facility.  However, the Planning Commission had a job that was relatively simple.  When an applicant came in with an application, there are required criteria.  The Commission played a role in that process.  The Commission had no control over the cell facility at SOU.  They did have 100% control over the wildfire issue.  But no one was talking to that topic.  They were speaking to things the Commission had no control over and reprimanding the Commission.  He found it interesting.
 
Commissioner Norton was not concerned with the roof and screening.  He focused on the significant service gap.  Both letters from Mr. Thatcher and Mr. Johnson agreed there was a gap. Tonight, he received the graph, but wished it had gone back to Mr. Thatcher and Mr. Johnson for a response.  Commissioner Brown noted the existing coverage maps in the packet.  Commissioner Norton thought the graph contradicted the information in the packet.  Chair Pearce added there were two hired radio frequency experts and both agreed there was a coverage gap.  There was substantial material that showed the criteria was met.  Commissioner Norton noted there was not enough time to review the graph but hoped next time, this kind of information was submitted earlier in the process.  Commissioner Dawkins agreed it came late but this was a de novo hearing and the next step was LUBA.
 
Chair Pearce thought staff’s presentation covered the Goal 1 issue.  The City complied with the ordinance for noticing.   
 
Commissioners Brown/Dawkins m/s to deny the appeal and approve the application with conditions in the staff report.  Roll Call Vote: Commissioners Norton, Pearce, Brown, and Dawkins, YES. Commissioner Mindlin NO.
Motion passed 4-1.
 
ADJOURNMENT
Meeting adjourned at 9:30 p.m.
 
Submitted by,
Dana Smith, Executive Assistant
 
 
 

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