Loading...
HomeMy WebLinkAbout2010-1005 Documents Submitted i( fvK ~1/RrS ~ ~~ C;~ PO'YS18GB CoN PL.l0\ 1:)Svl:::~ I (v-UNCAL ~~ ~ ~1 0 . ve~ If- I1tGy ~ evsR-- E..'f,r8GLe:N~ ~ CL~ f~~ ~)SNFT-t- IN f\~ 0 F- f1-s~ N~ ~u NI8C,~~ ~ -to ~~ \?- ~,( \~~ 6f.:;~ Pt+of\f~ C:oN~ hi (11-\ fF1 ~/' - lolb!{v . f++- fA- JodI,O/2\ft Jovce Fong's Statement . AddrUJ; 7 s?:J L fforlMtb Sj, ~'~ID~V Ashland City Council Meeting. October 5. 2010 fJ.+- " ., I'm Joyce Fong. This is my husband Jim Fong. Because of other responsibilities Jim was unable to join me in originally submitting a letter, so he's not a person of standing. But he stands with me tonight in solidarity & helped me prepare this statement. Because I'm not feeling well, I would ask that he be allowed to read on my behalf, my prepared statement for the record. I imagine ifI was in your shoes, after reading through all the material, I'd be saying to myself -let's boil it down, what are the essential points and what's the basis I should use for making a decision. I have read the staff report and the appellant's material and both seem reasonable. They both supposedly look at the same set offacts, yet they arrive at totally different conclusions and recommendations. How does one explain the difference? This is not simply a case of a pro-business or pro-government faction versus an anti-business or anti-government faction. I have spoken with hundreds of Ashland citizens in the past week and have been surprised at people's awareness and interest in this issue. People are concerned about the City's ability to apply the laws equally to Ashland residents and multinational corporations. My husband has a degree and background in land use and environmental planning. and a career that includes leadership positions in state and local government. He's also a member of the City's Economic Development -Technical Advisory Committee, and is pro-business and pro-job creation. And, like many of the other citizens I've spoken with - he supports co-locating new cell towers at the existing Holiday Inn site. We know that there must be a strong bond of trust between the City Council, the Planning Commission and its Staff We have the deepest appreciation for the dedicated work that you all do on behalf of our wonderful city. It is therefore with great care and the utmost respect that we raise the concern and strong possibility that this may be one of those out-of-the- ordinary cases where staff and the Planning Commission simply got it wrong. While it is understandable that staff would create a well written report that defends the prior decision of the Planning Commission, it is also undeniable that the report overlooks key facts that are part ofthe record, and that the interpretation of the facts that they have selected to focus upon is therefore incomplete. When one carefully examines all the facts, it is clear that that there was not substantial evidence to support the findings by the Planning Commission, and that there were errors in law committed by the Commission. We do not believe this error was done intentionally or with malice. Rather, it was a by-product of three things: . First, AT&T kept changing its story about collocation feasibility - the Planning Commission defined feasibility incorrectly, and then based their decision on the applicant's feasibility assertions and not facts. . Second, the Planning Commission was given questionable legal advice about the enforcement of the City's co-location ordinance. . Third, there was confusion and misrepresentation generated by the issue of health concerns, which we know are prohibited in federal law from being considered in cell tower siting. This and the confusion over collocation enforcement generated an unreasonable fear of a reprisal lawsuit from AT&T. Added together, these circumstances created a "perfect storm" that resulted in a flawed Planning Commission decision. As City Council, you have the power and responsibility to correct this error and appropriately interpret the laws our City has written. The decision you make tonight is important and it will create precedent for how our city chooses to govern and enforce, or not enforce, the laws we write. So, please - examine the facts, weigh the risks, listen to your constituents, and then make the reasonable, responsible and right decision to reverse the Commission's decision and appropriately enforce our laws. Thank you Oct. 5, 2010 J{( nus Htum /0/6/ID Pff , '-., , James Haim 152 Orange Ave Ashland, OR 97520, Good evening. I ask that you please enter this into the formal Record P A 2009- 01244 as my testimony or Offer of Proof . The City Council has the authority to interpret AMC 18.108.I10.3D to allow the incorporation of the nine sub-exhibits provided as part of the formal Appeal this Planning Action. I ask that this interpretation be made during theseproceedings in the same way that City Council will have had to interpret that AMC 18.108.11 O.3C allows the Council to accept and incorporate into the record the written argument from AT&T, though it was submitted two days after the deadline. The Planning Commission made an error of law in its failure to "comply with all ordinance requirements. " The issue I will address has to do with parking requirements: There appears to be no evidence in the record of applying parking requirements for this project after the AT&T study determined that the shopping center already does not meet the required number of parking spaces. According to the Applicant's own submitted calculations, the current uses on the site require 440 parking spaces - yet only 341 are provided. [see letter from Goodman Networks 3/17/10 http://ashland.or.us/FilesI2010-05- 11_PC_PackeC Web.pdf Pages 33-36.] The application includes the construction of a ground mounted, 12 x 26 foot accessory equipment structure and the construction of a radio frequency- transparent penthouse element and a two-tiered parapet wall system. Within the C1 zoning district, wireless facilities are not permitted outright, thus therequestfor a Conditional Use. The approval criteriafor the Conditional Use Permit (CUP) (AMe 18.104.050) require that the use be in . conformance with all standards within the zoning district. ' The AMC 18.92.010 Off Street Parking Chapter states that, "In all districts, except those specifically exempted, whenever any building is erected, enlarged, or the use is changed, off-street parking shall be provided as set forth in this chapter." Wireless Communication Facilities are not specifically listed but they could either fall under 2. Public utilities (gas, water, telephone, etc.), not including business offices. One space per two employees on the largest shift, plus one space per company vehicle; a minimum of two spaces is required. Or, E. Unspecified Uses. Where automobile parking requirements for any use are not specifically defined in this section, such requirements shall be determined by the Staff Advisor based upon the most comparable use specified in this section, and other available data. The construction of the project will require parking and AT&T will generate periodic maintenance vehicle parking demand. The location of the accessory equipment structure was changed after it was determined that the two parking spaces it would impact could not be eliminated. Failure to address the parking demand is not specifically exemptedfrom 18.72.180. I believe this project should be denied for inadequacies in the record. Thank you for listening to my comments. Respectfully, ,-- ~ J ". / M1"J4- ... UwAA TaLflur ID/5fto fff My name is Lauren Taylor. I live at 170 Ridge Rd in Ashland and I am deeply concerned about the precedent that will be set if you fail to uphold Ashland local ordinances--enacted to regulate the placement, appearance and impact of wireless communication facilities within the City of Ashland--as they apply to AT&T, a multinational corporation that has flouted City ordinances and demonstrated contempt for the interests of hundreds of Ashland citizens who will be'impacted by its proposed placement of a wireless communication facility. This is a precarious time in our country when gigantic multinational corporations, accountable only to international shareholders who have no allegiance to the interests of flesh and blood citizens, have achieved unprecedented power relative to governmental bodies and institutions at every level. Nothing could be more important at this crucial time than enacting and upholding laws which afford the City government the ability to regulate development and preserve the quality of life in our community to the extent permissible under federal law. Following enactment of the 1996 Telecommunications Act, that included an AT&T-sponsored provision preventing municipalities from considering environmental or health concerns when siting and regulating wireless facilities, the Ashland City Council enacted Municipal Code provisions that established criteria for regulating the placement, appearance, and impact of wireless communication facilities within the City of Ashland ~were consistent with the new law. This ordinance laying out the requirements for submission of an application for a Conditional Use Permit and provides that, where feasible, new wireless facilities should be co-located with existing facilities. Clearly stated in AMC 18.72.180.B is a requirement that an applicant submit with the application: 1) a co-location feasibility study, that adequately indicates co-location efforts were made and states the reasons co-location can or cannot occur," [AMC 18.72.180.B.6]. and; 2) a signed lease for the proposed site showing that the lease agreement does not preclude co-location. [AMC 18. 72.180.B. 7] From the start, with its incomplete CUP application, AT&T has flouted local law and shown contempt for the City of Ashland and its citizens by disregarding the most basic requirements for submitting a CUP application and expecting to be granted a permit despite its failure to comply with statutory requirements. The applicants ignored the submittal requirements that they provide a "collocation feasibility study that adequately indicates ,. collocation efforts were made and states the reasons collocation can or cannot occur," [AMC 18.72.180.B.6]. In fact, they admitted in their application that co-location at the Holiday Inn Express was feasible and their subsequent claims were specious and unsubstantiated, demonstration AT&Ts failure to make a good faith effort to co- locate with an existing facility. Additionally, AT&T ignored the application requirement that they submit a co-location feasibility study with the application, and when they did finally produce a lease agreement, that lease contained language explicitly precluding co- location of additional wireless facilities! I can't imagine a more brazen demonstration of this multi-billion dollar corporation's contempt for the authority and autonomy of local governments than their complete disregard of local ordinances and failure to comply with even the most basic requirements for the submission of supporting documentation with the application. With all the resources it has at its disposal, AT&T did not even submit a complete application with the requisite supporting documents. (AMC 18.72.180.B.) Because of its substantial resources enable it to burden local governments with frivolous lawsuits, AT&T appears to have been confident from the start that it did not have to abide by local ordinances in submitting its CUP application. The applicants ignored the submittal requirements that they provide a "collocation feasibility study that adequately indicates collocation efforts were made and states the reasons collocation can or cannot occur," [AMC 18.72.180.B.6] and never made any good faith effort to co-locate with an existing facility. Further, AT&T ignored the requirement that they submit a signed lease agreement showing that the lease does not preclude co-location, and their description of the lease agreement did not indicate the the lease would allow for co- location. Further, when they finally submitted a lease agreement for the proposed location, the lease agreement contained language explicitly precluding co-location of additional wireless facilities! In summary, the application was incomplete and there was not substantial evidence to support the Commissions findings: · No co-location feasibility studY-h There was NO evidence on which to base a finding that collocation was not feasible --- In fact, the application admitted that co-location at the Holiday Inn location would be feasble AMC 18.72.180.8.6 Subsequent submissions by AT&T contained contradictory, specious, and .:J unsubstantiated assertions about the feasibility of co-location. It is clear from AT&T's failure to ever complete a feasibility study and their specious claims about the suitability of Holiday Inn location that AT&T had no intention of complying with Ashland's ordinance indicating new wireless facilities should be co-located with existing facilities where feasible. · No lease showing that co-Iocationg is not precluded:- The Commission itself found that AMC 18.72.180.8.7 required the applicants to provide "A copy of the lease agreement for the proposed site showing that the agreement does not preclude co-location." The AT&T did NOT submit a signed lease with their application. Their description of the lease did not indicate that the lease would allow for co-location. And, when the signed lease was finally produced by AT&T, the lease it had negotiated with the landlord explicitly precluded co-location! AT&T's arrogant disregard of Ashland's Municipal Code 'provision establishing the requirements for submission of a CUP application, like its failure to make any good faith co-location efforts demonstrate a total lack of regard for the rights and interests of the City of Ashland to enact and enforce laws regulating the placement, appearance and impact of wireless communication facilities within the City of Ashland. For the above reasons, it is clear that there was not substantial evidence to support the findings of Planning Commission which was based on erroneous interpretations of law and misrepresentations by AT&T. In fact, there was NO evidence on which to base a finding that collocation was not feasible or that AT&T had made a good faith effort to co-locate the facility. I respectfully ask you to overturn the Planning Commission's decision granting AT&T's CUP application. Thank you, Lauren Taylor, J.D. 170 Ridge Rd Ashland, OR 97520 (541) 444-2146 .' ~~~ \015(( () prt I would like to ask that the videos from this hearing and all the Planning Commission Hearings be admitted into the record of Planning Action 2009- 01244. I will speak to an unanticipated procedural error that occurred after the deadline for submissions of written arguments for this Hearing. It is not listed as an appeal item, because it could not have been anticipated and raised prior to the deadline. The City is exercising discriminatory enforcement of AMC 18.108.110.3. City Counsel is advising the Council to allow AT&T to present oral arguments and to accept its written argument into the record, though it failed to comply with AMC 18.108.110.3 Section C. Section C states that "A party shall not be permitted oral argument if written arguments . have not been timely submitted. Written arguments shall be submitted no less than ten (10) days prior to the Council consideration of the appeal." No physical evidence was submitted to demonstrate why three separate letters to AT&T representatives and employees mailed by the City in a timely way constitutes inadequate notice or. any basis for allowing them oral or written argument into this Hearing. City Council's legal Counsel Ms. Beery and Mr. Crean suggest that the Council overlook this violation of municipal code because AT&T has "substantial interest in the proceedings" and that it would result in "fundamental unfairness" to enforce the law. They offered case law to suggest that the City forego compliance with the ordinance when "technical violations" happen in which the substantive rights of the other parties are not prejudiced. They suggest that the goal is to achieve an "equitable result" and ensure that "the parties' due process rights" are ensured. The City Council was not provided with legal rationale that supports discriminatoryehforcement of our Municipal Code to ensure that an Applicant's due process rights are protected while not also applying the same standard to an Appellant. However, Counsel's memo reinforced city staffs use of that same Municipal Code, section 0 as a basis to insist that the City Council ignore legallyenCiosed and , referenced issues for this appeal. No arguments about "substantive interest in the proceedings," nor "fundamental unfairness" were made . by Beery and Crean or city staff to encourage the acceptance of all clear and distinct issues for this appeal by the Appellant The City Council does not appear to have been given guidance on how the substantiverights of AT&T could be prejudiced by foregoing compliance with the ordinance after alleged technical violations in how the Appellant listed its issues.. If Council chooses to interpret the AMC 18.108.11 0.3D with as much flexibility as it appears to have interpreted AMC 18.108.110.3C, it would need to re-notice the Hearing. I presume thatthe Council will need to have made a specific decision at the start of this Hearing on whether or not to allow AT&T's written and oral arguments. (Included for reference: AMC 18.108.110.3 Sections C & D C. Oral argument on the appeal shall be permitted before the Council. Oral argument shall be limited to ten (10) minutes for the applicant, ten (10) for the appellant, if different, and three (3) minutes for any other Party who participated below. A party shall not be permitted oral an:!ument if written arquments have not been timely submitted. Written arquments shall be submitted no less than ten (10) days prior to the Council consideration of the appeal. Written and oral arguments on the appeal shall be limited to those issues clearly and distinctly set forth in the Notice of Appeal; similarly, oral argument shall be confihed to the substance of the written argument.:.... D. Upon review, and except when limited reopening of the record is allowed, the City Council shall not re-examine issues of fact and shall limit its review to determining whether there is substantial evidence to support the findings of the Planning Commission, or to determining if errors in law were committed by the Commission. Review shall in any . ,. event be limited to those issues clearlv and distinctlv set forth in the notice of aooeaL No issue may be raised on appeal to the Council that was not raised before the Planning Commission with sufficient specificity to enable the Commission and the parties to respond. ) lappreciate your attention to my testimony and hope that you deny this Planning Action. Respectfully submitted, Deborah Gordon, 5 October 2010 276 Orange Avenue Ashland OR 97520 Appeal Checklist ~~ . ~ lol5/Jo ~1feJ. o City Council's first decision: Is the co-location law just a consideration, or is it an approval criterion under AMC 18.72.180C.2? It is your right and responsibility to determine the meaning of your own laws. The intent of the law seems obvious enough. It's important to note that this would not "prohibit or have the effect of prohibiting the provision" of personal wireless service facilities under the federal Telecommunications Act of 1996. If you agree that the intent of the Ashland law is to co-locate unless proven unfeasible, then: o Next SteIJ: Is to determine whether there is substantial evidence in the whole record to support the Planning Commission's decision, andlor determine whether the Planning Commission made an error of law. . In their first submission, AT&T said the Holiday Inn is a "reasonable location according to the search map." They added that it would be less efficient, but they didn't say it would not be feasible. . In their second submission, AT&T said, "The co-location on the Holiday Inn Express could work-purely from an RF perspective." Again, they did not say that the Holiday Inn site was not feasible. . In their third and last submission AT&T claimed that the "predicted" coverage from the Holiday Inn site would be less than the "predicted" coverage from the Cinema site. AT&T also claimed that the Holiday Inn could not "off-load" as much traffic as the Cinema site. Based on these unsubstantiated claims, AT&T now concluded that co-location at the Holiday Inn was not feasible. These claims do not support the conclusion that co-location is not feasible. They merely suggest that the Cinema site might have coverage advantages over the Holiday Inn site. AT&T's business preference cannot be allowed to trump City law requiring co-location which must be proven unfeasible. And, concerning their two arguments against the co-location site: o Testimony from engineer Vitaly Geyman, backed by verifiable evidence, disputes their claim about inadequate signal strength. Note that in submission two AT&T themselves stated this was not a problem, which is a clear contradiction. o AT&T referred to dangerous access to service equipment. The owner of the Holiday Inn site has offered AT&T the same access as Verizon. It works fine for them. AT&T has contradicted themselves on the co~location issue and have not provided substantial evidence, in fact none whatsoever, to warrant approval of their application based on the requirement of the law, namely, to prove that co-location is not feasible. Cl The Council can reverse the decision of the Plannina Commission and remain well within the reauirements of the Telecommunications Act of 1996. The Act does not require that the City grant the CUP. In fact, the 1996 Act has only a few limitations on what the City Council can and cannot do when considering an application to install wireless facilities. The City cannot base its decision on health effects from radio frequency emissions. The City cannot unreasonable discriminate among providers. The City cannot prohibit or have the effect of prohibiting the provision of wireless services. And, the City's decision to deny the application must be in writing and supported by substantial evidence in the written record. None of those limitations prevent the City from denying AT&T's application based on Ashland's collocation law or other appeal issues. o Move to reverse the decision of the Plannina Commission and SUIJIJort the written aIJIJeal, and direct staff to IJreIJare findinas for adoIJtion bv Council. Findinas: The council finds that there was not substantial evidence to support the Planning Commissions decision to approve AT&T's CUP. Regarding AMC 18.72.180C.2 there was not substantial evidence on which to base a decision that collocation is not feasible. No co-location study was submitted. The reasons for not co-locating were contradictory and unsubstantiated.