HomeMy WebLinkAbout2010-1019 Council PACKET
CITY OF
ASHLAND
AGENDA FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
October 19, 2010
Council Chambers
1175 E. Main Street
Note: Items on the Agenda not considered due to time constraints are automatically continued to
the next regularly scheduled Council meeting IAMC 2.04.030.E.]
7:00 p.m. Regular Meeting
I. CALL TO ORDER
II. PLEDGE OF ALLEGIANCE
III. ROLL CALL
IV. MAYOR'S ANNOUNCEMENTS
V. SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?
[5 minutes]
1. Study Session of October 4. 2010
2. Regular Meeting of October 5, 2010
VI. SPECIAL PRESENTATIONS & AWARDS
1. Mayor's Proclamation of October 24 as United Nations Day
VII. CONSENT AGENDA [5 minutes]
1. Does Council wish to confirm the Mayor's appointment of Thomas Beam to the
Conservation Commission with a term to expire April 30, 2012?
2. Will Council accept a Connect Oregon III construction grant to cover the City required
5% match for the Airport Improvement Project-Runway (AlP) Rehabilitation and
Precision Approach Path Indicator (PAPI) light installation for the amount of $92,900?
3. Will Council approve an Airport ground lease with Brim Aviation for the storage of
aviation related equipment?
4. Does Council wish to enter into an Intergovernmental Agreement to participate in the
Southern Oregon High-Tech Crimes Task Force in order to regionalize investigations
related to high-tech internet crimes?
5. Does Council have any questions regarding the results of sale of Full Faith & Credit
bonds per resolution 2010-11 to refinance the Department of Environmental Quality
loan originally used to help pay the costs of the Wastewater Treatment Plant project?
COUNCIL 1\.1EETINGS ARE BROADCAST LJVE ON CHANNEL 9
VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASHLAND.OR.US
VIII. PUBLIC HEARINGS (Persons wishing to speak are to submit a "speaker request form"
prior to the commencement of the public hearing. All hearings must conclude by 9:00
p.m., be continued to a subsequent meeting, or be extended to 9:30 p.m. by a two-thirds
vote of council {AMC ~2.04.050})
None.
IX. PUBLIC FORUM Business from the audience not included on the agenda. (Total time
allowed for Public Forum is 15 minutes. The Mayor will set time limits to enable all
people wishing to speak to complete their testimony.) [15 minutes maximum]
X. UNFINISHED BUSINESS
1. Does the City Council wish to affirrn, 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? [1 hour] Please note: The public hearing on this item is closed, no further
public testimony will be allowed. No additional materials will be provided for this
packet. Please use the packet materials from the October 5,2010 meeting. A
complete copy of the record is on-line http://ashland.or.us/Page.asp?NavID=12984
and a hard-copy of the packet is available in the Community Development
Department (51 Winburn Way).
XI. NEW AND MISCELLANEOUS BUSINESS
1. Will Council authorize the solicitation of a proposal for soil and groundwater
rnonitoring on City owned property at 1097 'B' Street? [10 Minutes]
XII. ORDINANCES. RESOLUTIONS AND CONTRACTS
1. Will Council approve Second Reading of ordinance titled, "An Ordinance Relating to
Noise and Heat Pumps of Mechanical Devices and Amending AMC 9.08.170,
9.08.175, and 15.04.185"? [5 Minutes]
2. Will Council approve First Reading of an ordinance titled, "An Ordinance Relating to
Public Contracting and Amending AMC 2.50.080, 2.50.090, 2.50.100, 2.50.120, and
2.50.130" and move the ordinance on the Second Reading? [15 Minutes]
3. Will Council approve First Reading of an ordinance titled, "An Ordinance creating a
new Chapter 13 relating to the Advanced Financing of Public Improvements" and
move the ordinance on to Second Reading? [15 Minutes]
XIII. OTHER BUSINESS FROM COUNCIL MEMBERSIREPORTS FROM COUNCIL
LIAISONS
XIV. ADJOURNMENT
In compliance wilh the Americans with Disabilities Act, if you need special assistance to participate in this meeting,
please contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-2900). Notification
72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the
meeting (28 CFR 35.102-35.104 ADA Title I).
COUNCIL MEETINGS f\RE BROADCAST LIVE ON CHANNEL 9
VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASIILAND.OR.L!S
CITY COUNCIL STUDY SESSfON
October 4.2010
Page lof3
MINUTES FOR CITY COUNCIL STUDY SESSION
Monday, October 4, 2010
Siskiyou Room, 51 Wiuburn Way
Mayor Stromberg called the meeting to order at 5:33 p.m. in the Siskiyou Room.
Councilor Silbiger, Voisin, Navickas, Jackson, Chapman and Lemhouse were present.
1. Look Ahead Review
City Administrator Martha Bennett reviewed the items on the Council Look Ahead.
2. Does the Council have questions for the consultant team of Kittelson and Associates, Inc.
regarding the implementation of the Transportation System Plan update?
Engineering Service Manager Jim Olson introduced Principal Engineer Marc Butorac from Kittelson and
Associates who provided an overview of the Ashland TSP Update that included:
. Team Organization Chart
. Project Background - Previous Transportation System Plans for City of Ashland
. Oregon TSP History Perspective Chart of 1 ",2nd and 3'd Generation TSPs
. Backcasting and Benchmarking Framework
. What does Ashland want to be in 3034?
o This is an opportunity to define and set a course for what Ashland wants to be in the
future
o The TSP Update opens the door for Innovation, Leadership and Paradigm shifts
. Examples of Innovation, Leadership, Paradigm Shifts
o No Net New Lane Miles
o Establish a Bicycle Share Program
o Construct a Funicular
. Project Backgrouud and Scope
o Purpose of Current Update
. Scope - 11 Tasks
. Draft Project Schedule
o 18 months to Draft TSP
o Additional Public Process at adoption hearings in January 2012
. Draft Public Workshop Schedule/Agendas
. Public Website - ashlandtsp.com
o Features
. Goals, Objectives and Evaluation Criteria
. Goal #1 - Create a "greeu" template for other communities in the state and nation to follow
. Goal #2 - Make safety a priority for all modes of travel
. Goal #3 - Maiutaiu small-town character, support economic prosperity and accommodate
future growth
. Goal #4 - Create system-wide balance for serving and facilitating pedestrian, bicycle, rail,
air, transit and vehicular traffic in terms of mobility and access within and through the City
of Ashland.
Mr. Butorac confirmed that paratransit, dial-a-ride services and other components would be part of the
TSP. He explained that No New Net Lane Miles removed a lane or designated it as mixed use whenever
a new lane was built.
CITY COUNCIL STUDY SESSION
October 4. 2010
Page 20f3
. Where do you want the City of Ashland to be in 2034?
Council and staff made the following suggestions: .
o Being resource conscious rather than pushing the envelope
o Provide alternative transportation that connects throughout the valley
o Have measurable, attainable goals
o Safer roads
o Free frequent shuttle service
o , Establish no new lane miles
o Create a bike share program
o Institute no cars allowed policy at SOU for freshman students
o Improve public transportation
o Truck delivery service at a centralized location for purchases made outside of the city
o Multi modal for the aging population
o Provide alternative transit to people's homes
o Create high-density nodes
o Have train service and move freight off the road and onto the tracks
o Commuter Rail Service throughout the valley
o Incorporate transportation systems for commuter rail passengers to get around the town
once they arrive
o Restore passenger service
o Develop standards and alternative capacity that satisfies ODOT and still moves triple
trailers
. Challenges Ahead
o Myths and Biases
o Alternative and Creative Funding Vehicles
o Political Will
3. Will the Council add code language to the Ashland Muuicipal Code (AMC), creating an
Advanced Financing of Public Improvement sectiou?
Public Works Director Mike Faught provided a presentation on Advanced Financing of Public
Improvements that included:
. Background
. Why
o
.
Most new private developments require the upgrade of public facilities
o Sometimes a developer has to put in larger facilities than are required as a condition
o Future property owners get the full benefit of the new facility without paying their
proportionate share of the costs
Croman Mill District land Use Overlays
What is Advanced Financing of Public Improvements
o A financial mechanism to reimburse publicly or privately funded public improvement
projects that have direct benefit to other property owners
How does an Advanced Financing District Work?
o Advanced Financing is similar to the formation of a Local Improvement District (LID) in
that is distributes the cost of public improvement projects based on benefited use
How Does an Advanced Finance District Compare to au LID - the difference between the
. two financing options
o LID assessment is due immediately
o Advance Financing method is due when the benefited property owner hooks into the
public improvement
.
.
.
CITY COUNCIL STUDY SESSION
October 4. 2010
Page 3 of3
Staff noted the City would collect the money and distribute it to the investor. A general community
benefit would require a specific portion of distribution that was quantifiable like having a park at the
Croman Mill site.
. Examples to Potential Developer Related Advanced Financing District
. Process
o Development application
o IdentifY Public Improvements
o Public Improvements Proposal
o Public Hearing
o Council Action for Approval: Resolution, Construction
o Council Action for Denial: No further action
Staff provided examples of Advanced Financing Districts, benefits to the developer and that there was no
legal remonstrance for citizens opposing a district, the City Council would represent them.
. Example - Tables
Staff explained the proposed ordinance had investors receiving interest that increased 7% annually and
clarified percentage rates needed reevaluation. An Advanced Financing District was a useful tool that
allowed the private sector to build infrastructure. The district would expire after 10 years with two-year
extensions.
Meeting adjourned at 7:00 p.m.
Respectfully submitted,
Dana Smith
Assistant to the City Recorder
ASHLAND CITY COUNCIL MEETING
October 5. 2010
Page I of 12
MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
October 5, 2010
Council Chambers
1175 E. Maiu 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 Ashlaud
Stormwater Advisory Committee (SW AC) and the Ashland Wastewater Advisory Committee (WW AC) 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 I - 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 I - 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 Plauniug 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:
I. 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 ChapmanNoisin 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
ASHLAND CITY COUNCIL MEETING
October 5.2010
Page 2 of 12
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 fayade 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,
20 I 0 and the City had received two 3D-day extensions from the applicant during the application process.
Asblaud's Ordinance
,
. Regulates the placement, appearance and visual impacts ofWCF's while providing residents the ability to
utilize wireless services.
. Indentifies preferred designs:
I. collocation,
ASHLAND CITY COUNCIL MEETING
October 5. 2010
Page 3 of I 2
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 l2-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(11) as
"The site, structures, equipment and appurtenances used to transmit, receive, distribute, provide or offer
wireless telecommunications services. This includes, but is uot 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 testif'ying 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
ASHLAND CITY COUNCIL MEETING
October 5.2010
Page 4 of 12
without a difference. Once it was made in oral testimony, the biased challenge became part of the record. Ifthe
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/51 5 East Maiu StreetlRepresented 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); Westv. Clackamas
County, 116 Or App 89,93,840 P2d 1354 (i992)."
. Issues for Appeal:
o No adequate feasibility study as required by AMC 18. n.180.B.6.
o Feasibility of collocation not adequately addressed.
o No signed lease agreement as required by AMC 18.n.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 ofthe 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, 20 I 0 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
ASHLAND CITY COUNCIL MEETING
October 5. 2010
Page 5 of 12
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' ifthere are reasonable solutions available for the identified problems. Southwood
Homeowners Assoc. v. City of Philo math, 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 Applicaut 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 approvat criteria are met." Caster v. City ofSilverton, 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 proofto demonstrate that collocation with existing facilities at Holiday Inn Express or SOU was
"not feasible".
. AMC 18.72.180 Development Standards for WCFs: "8. 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 ofa 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 ofthis code and all proceedings under them are to be construed with a view
to effect their objects and to promote justice." .
. AMC I8.72.I80(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
ASHLAND CITY COUNCIL MEETING
October 5, 20 I 0
Puge 6 of 12
information.
He went to state the issues for appeal were based on:
I. 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 64'h Place, Issaquah, WAJRepresented AT&T and agreed with the Planning
Commissions decision and staffs 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. Ifthere 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:
I. 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 pertaiuiug 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 aud Laud 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
pot include AMlFM, 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 anal)'2:e whether they would work or not. Mr. Busch agreed there was conflicting information in the record on
ASHLAND CITY COUNCIL MEETING
October 5. 20 I 0
Page 7 of 12
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 ofthe 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 ofthe 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 Iutent 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 ofthe site would provide coverage where it does not exist presently.
Mr. Busch clarified if Council found an error ofIaw 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.
ASHLAND CITY COUNCIL MEETING
October 5.2010
Page 8 of 12
Those in support of the Appeal
Joyce Foug/759 Leouard StreetlMrs. 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 ofthe 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/I43 81h 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 tlmt were actually incorrect. He felt that the Findings of the Planning
Commission were based on false information provided by the City Attorney.
Vitaly Geyman/ll72 North MainlProvided 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 jOngineer, he saw no substantial evidence to support AT&T claim. that collocation was not feasible.
Deborah Gordonl276 Orauge 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/l70 Ridge RoadlRequested that Council reverse the Planning Commission's decision, as it was not
ASHLAND CITY COUNCIL MEETING
October 5. 2010
Page 9 of 12
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 bui 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 ManzanitalExpIained Council had the occasion to clarity, 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/I52 Orauge Avenue/Spoke regarding livability and eXplained that within the C-l 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 oflaw 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 requirement~ 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 evjdence. 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
ASHLAND CITY COUNCIL MEETING
October 5. 2010
Page 100fl2
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.
Appellaut 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 9:21p.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 ofthe 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 iustallations 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 m1s 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
ASHLAND CITY COUNCIL MEETING
October 5. 20 I 0
Page I I of I 2
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 ofhiw 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 NavickasNoisin mls 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 notto 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 mls to continue matter uutil 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, 20 I 0 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 (SW AC) and the Ashland Wastewater Advisory Committee (WW AC) 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 A venue project?
ASHLAND CITY COUNCIL MEETING
October 5.2010
Page 12 of 12
Consent agenda item #3 was moved to the October 19,2010 Council meeting.
Councilor Jackson/Silbiger mls to approve Consent Agenda items #1, #2 aud #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 I5.04.185"?
Item delayed due to time constraints.
OTHER BUSINESS FROM COUNCIL MEMBERSIREPORTS FROM COUNCIL LIAISONS
ADJOURNMENT
Meeting was adjourned at 10:27 p.m.
Barbara Christensen, City Recorder
John Stromberg, Mayor
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Appointment to Conservation Commission
October 19, 2010 Primary Staff Contact: Barbara Christensen
City Recorder E-Mail: christebralashland.oLus
Mayor's Office Secondary Contact: Mayor Stromberg
Martha Benne Estimated Time: Consent
Question:
Does the City Council wish to confirm the Mayor's appointment of Thomas Beam to the Conservation
Commission with a term to expire April 30, 2012?
Staff Recommendation:
None
Background:
This is confirmation by the City Council on the Mayor's appointment to the Conservation Commission
on application received.
Related City Policies:
Ashland Municipal Code (AMC) Chapter 2.17.020
Council Options:
Approve or disapprove Mayor appointment of Thomas Beam to the Conservation Commission.
Potential Motions:
Motion to approve appointment of Thomas Beam to the Conservation Commission with a term to
expire April 30, 2012.
Attachments:
Application received
Pagc I of I
JIIJ.lII
raa"1
CITY OF
ASHLAND
. APPLICATION FOR APPOINTMENT TO lIDIT:@IT:'ii''\l'''''''W
CITY COMMISSION/COMMItTEE , .w. w I.k:J ~
PI . h fi II' . db' th C' R d AUG 1 3 2010
ease type or pnnt answers to t e 0 owmg questIons an su mlt to e .ty eco~ er at frt
City Hall, 20 E Main Street, or email christelXalashland.or.us. If you have any questio,& y.
please feel free to contact the City Recorder at 488-5307. Attacb additional sbeets if ----- . --.......
necessary.
Name~6W1D.5, W i"!:)prl. w--.-.
Requesting to serve on: C() V'\ S e -( uJ t' C'I tI\ (Commission/Committee)
Address 3..S-8' PD-.5+- Vi'\a. IV' ,-:..t /~O() !./be,1--1 :5f .
",,-5~1f: emV' /" YPC. PhM'~= 5"~~r3 .
. ~::i1,~":~~= == '~*c..l \ ,(.~
1. Education Back.l!round /' I .,--. _1 I ("l J ;:) L I
What schools have you attended? Cd.JJ/Vtn. 11'7 1-V1~ "1l.1e or ~;""J f"e:.r" lo.1.I'd
What degrees do you hold? A. 0.') (:-')'''(I(,..{'7 ~ 'LcIle:J=_)
J<e.~+C' UV'r,,-VI +- r/D+~ I tHe. v,c.Devne:>V\ L u..SSQ.U
. at add!tional trainin ~~education hav ou had ~bat would ap~ly to this position? C~PI..(""I~
covnm/JYI;t; fuv- ~~y,/u~~~yl:..Y\J 1Ilf'~,J ~ b.}c.J1L~
tI~ated~e~~ 'e&o../ iOV'\l;..l appo~+UY1tlVCJt:!pf'e)efl..cj,Ovl.
What prior work experience have you had that would help you if you were appointed to
this position? ~ .L HL ~ J 1J
X~~Ir:~'t~.i;, ~~~~~; :fl~ "I ~
wel~~~ 0i"~ .+:7OD~ ~V\o~. .
Do you feel it would be advantageous for you to have further traint'\:: this field, such
as attending conferences or seminars? Why? -::c ~,,}~ ':P ~ 1-Pt:lo.Y'I n
VVV"..-e. .:: l,nU\- CoVt&:>Y'.r1 +.~'V\ ~V\~ '^~ d=_Co..V\.
w-t.ev ~"C.. live.> or ov., c-d-i2er\~. _..
. ..."
3. Interests
Why are you applying for this position?
~
4. A vaiJabiIitv
Are ~ou available to attend special m~etings, i? additi9D-.,to the regularly sc~eduled
meetmgs? DoYOUP~fer,daYOreVemngmeetl~ :t>.~~Y' ::: ~~ 10;; .,
:I a............ J.,u d~ ./.-, ~e ~_bl.e.. ~ __b~ __l:l~ ~
5. Additional Information
How long have you lived in this community? ~ r.s
Please use the space below to summarize any additiona~ualifications you have for this
position J )
Empll.'\'Y"~ (".Je:.,"\e.. .J.o K'lrl /('<7"... ptr'crl.p
ih I &.,iYJp"'-c:... e.... pV'(\UI~'~ W\c:: l..~/+~
~o::>~.pE'.(' t,'de_ aV\ t../Irn I..lJc~('Ic'5 c....v\..! ,
/,Ve~ "V'\"CY)I{'" ~(.JJI/1A 6Je.....f) r. v-y-! h.JV1'f.~
~~i~~ t"A.- -/nu,'J dl'fH-~V\f ut'~(JJl T
bo j,l'Uc- r,r"W\'S p,,-, ..o.J,o/ro.. ('c...Y\ ~ -c" /' )pel R d.
L(~,^ -li~ if\+e.f'E' ~~) rJt -I-tte eVltjlfe.
~ Ov-... ~ ~ ,'b toe. t. LilCJ2 ci..
<( / /"~12.Z>1()
Date
~- ~R-
Signature
~A'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Acceptance of an Oregon III Construction Grant for the current Airport
Improvement Project
October 19, 2010 Primary Staff Contact:
Public Works E-Mail:
Administration Secondary Contact:
Martha Benne Estimated Time:
James H. Olson
olsonj@ashland.or.us
Scott A. Fleury
Consent
Question:
Will the Council accept a Connect Oregon III construction grant to cover the City required 5% match
for the Airport Improvement Project-Runway (AlP) Rehabilitation and Precision Approach Path
Indicator (PAPI) light installation for the amount of$92,900.00?
Staff Recommendation:
Staff recommends that Council accept a Connect Oregon III construction grant to cover the City
required 5% match for the Airport Improvement Project-Runway Rehabilitation and Precision
Approach Path Indicator (P API) light installation for the amount of $92,900.00.
Background:
On September 7,2010 Council approved and accepted a Federal Aviation Administration (FAA) grant
in the amount of$I,581,949 to fund the current Runway Rehabilitation and PAPI project at the
Ashland Municipal Airport. The grant is a standard AlP grant and funds 95% of the construction costs
with the remaining 5% to be provided by the City as a match. The City was successful in acquiring a
grant from the Connect Oregon III-Rural Airport Fund Program. The grant is limited to $92,900 or 5%
of the total project cost, whichever is less. The project cost includes construction, and engineering
costs.
Knife River Materials has been awarded a contract for the work; however, due to the nature of the
work, construction will not commence until early spring of2011.
Historv
In 2009 the FAA approved the City's submittal ofa project to reconstruct runway 12/30 and to install
PAPI lights at Ashland Municipal Airport. The design phase of this project was funded from a non-
primary entitlement grant that was allocated to the airport in the amount of $199,000. The grant has a
5% match requirement that the City will provide as a soft match derived from staff time and expenses
incurred in the development of the project. This $199,000 grant was for engineering design services
only.
The consulting firm of Reid Middleton, Inc. was selected through a formal "Request for Proposal"
(RFP) process and a contract in the amount of$195,399.00 was approved by the Council on June 16,
2009. The final design was completed by Reid Middleton in June of201O.
,
Once the engineering was completed the City of Ashland advertised the project for public bid. On June
10, 20 lOa Request for Quote for construction services for the Airport Improvement Proj ect was
Page I 00
r~'
CITY OF
ASHLAND
advertised statewide, in both local newspapers, and on the City website and bid documents were sent to
prospective bidders, plan centers and builder's exchanges throughout the state. A non-mandatory pre-
bid meeting was held on June] 7,2010 to provide bidders an opportunity to view the site and ask
project specific questions.
On July], 20]0 the City of Ashland received bids from Knife River Materials and from Johnny Cat
Inc. The bids where opened publicly and read aloud. Knife River Materials was the low responsive
bidder, with a bid amount of$I,285,969.00. A letter of recommendation of award was sent to the FAA
along with all required bid information for a final review.
The FAA presented the City of Ashland a grant offer in the amount of$I,581,949.00 for the
construction and construction administration contracts. This grant offer was accepted by the City
Council at the September 5, 2010 meeting. The FAA grant is a discretionary spending grant and
requires a 5% match by the City of Ashland.
The City of Ashland consequently applied for a Connect III grant to cover the required 5% matching
funds for the project. As part of the Connect III process the legislature specifically set aside 5 million
dollars for rural airport allocations. This grant money allocation was meant to assist smaller
Municipalities cover the required FAA 5% match. The City of Ashland was presented with a grant
offer from the Oregon Department of Transportation for $92,900. This is the maximum amount of
money the City can receive to cover the 5% matching funds.
Proiect Need
The Ashland Municipal Airport was developed at its present site in 1970. Over the ensuing years it has
been expanded, maintained and reconstructed through grants from the FAA and the Oregon
Department of Aviations (ODA).
Over the past several years, runway 12/30 has developed numerous longitudinal and transverse cracks,
some of which can be 2 to 3 inches in width. Numerous surface treatments for crack control have been
applied including flexible crack seals, pavement inlays and slurry seals, but none have proven to be
100% effective. The most recent studies have indicated that a full pavement reconstruction is needed at
this time.
In addition to the runway reconstruction, it was also recommended that the existing Visual Slope
Indicator Lights (V ASI) located at each end of the runway be replaced with current technology. The
old V ASI systems are no longer supported by suppliers, are outdated and their function has been
replaced with PAPI. Under the proposed construction project, replacement of the V ASI system is
included with the runway rehabilitation.
Budget Summary
The FAA discretionary grant will allow the City of Ashland to fund the construction of the AIP project
and the construction engineering. Shown below in table 1 is the financial breakdown for the runway
rehabilitation project.
The FAA discretionary grant requires the City to contribute 5% matching funds towards the project
and with the addition of the Connect Oregon III grant offer the City of Ashland will cover all project
costs without needing to contribute any money out of its own coffers.
Page 20f3
~.l'
CITY OF
ASHLAND
Table 1.
FAA AlP Discretionary Grant
5% City Match - Connect III monies
$
$
Budget Totals $
1,581,949.00
92,900.00
1,674,849.00
Related City Policies:
The Council has authority to enter into agreements and to accept grants offered by other governmental
agencIes.
Council Options:
. Council may approve the attached Connect Oregon III Grant Agreement to cover the required
5% match for the Airport Improvement Proj ect, in the amount of $92,900
. Council may reject the Grant Agreement
Potential Motions:
. Move to approve the Connect Oregon III Grant Agreement in the amount of $92,900
. Move to reject the Grant Agreement
Attachments:
Connect Oregon III Rural Airport Grant Agreement
Page) of 3
~.l'
Misc. Contracts and Agreements
No. 27017
GRANT AGREEMENT
ConnectOregon III
MULTIMODAL TRANSPORTATION FUND PROGRAM 2010
RURAL AIRPORT FUND
Construction, Runway Overlay,
Precision Approach Path Indicator (PAPI) Installation
THIS GRANT PROGRAM AGREEMENT, hereinafter referred to as "Agreement" is
made and entered into by and between the STATE OF OREGON, acting by and through
its Department of Transportation, hereinafter referred to as "ODOT," and the City of
Ashland, acting by and through elected officials, hereinafter referred to as "Recipient,"
hereinafter individually referred to as the "Party" and collectively referred to as the
"Parties."
RECITALS
1. By the authority granted in Oregon Revised Statute (ORS) 190.110, 366.572, and
366.576, state agencies may enter into agreements with counties, cities, and units of
local government for the performance of any or all functions and activities that a
party to the agreement, its officers, or agents have the authority to perform.
2. By the authority granted in ConnectOregon Partnership - Program Adrninistration
Agreement No. 26593, between the Oregon Department of Aviation and ODOT,
incorporated herein and by this reference made a part hereof, ODOT may enter into
this Agreement for the performance of work on Projects.
3. Pursuant to ORS 367.080 through 367.086, there is established the Multimodal
Transportation Fund, separate and distinct from the General Fund, allowing for the
issuance of lottery bonds for the purpose of financing grants and loans to fund
Transportation Projects to public bodies and private entities that involve air, marine,
rail or public transit. The Multimodal Transportation Fund Program is focused on
improving the connections between air, rail, ma~ine and transit modes of
transportation to reduce transportation costs to businesses, remove key bottlenecks,
and increase connectivity.
4. Pursuant to Enrolled House Bill 2001, Sections 9 and 10, The Oregon State
Legislature authorized the Oregon Transportation Commission to allocate five
'percent of the net proceeds from the $100,000,000 lottery bond sale for the
biennium beginning July 1, 2009. Five percent of the net proceeds of the
$100,000,000 sale of lottery bonds are allocated to Rural Airports in Section 10(1) of
Chapter 865, OL 2009.
RecipientlODOT
Agreement No. 27017
5. The receipt and use of Multimodal Transportation Funds and the execution of this
Agreement by Recipient are subject to conditions imposed by ORS 367.080 through
367.086 and Oregon Administrative Rule (OAR) Chapter 731 Division 35.
6. The Oregon Transportation Commission approved the projects to be funded under
the Multimodal Transportation Fund Program at its August 2010 meeting. The OTC
has set specific conditions on all approved projects and the inability to meet these
OTC conditions may result in a loss of project funding. Final approval for the Project
is subject to meeting all the OTC conditions as stated below.
7. Safety is of paramount concern to ODOr. ODOT encourages Recipients of
ConnectOregon grant funds to have safety as a high priority for all phases of work.
DEFINITIONS
1. The Multimodal Transportation Fund Program also known as "ConnectOregon" as
set forth in ORS 367.060 and OAR Ch. 731, Div. 35, is a legislatively authorized
lottery-bond-based initiative to invest in air, rail, public transit, and marine
transportation projects in Oregon.
2. Recipient, as defined in OAR 731-035-0020(19), rneans an Applicant that enters into
Agreement with ODOT to receive funds from the Multimodal Transportation Fund.
3. ConnectOregon Oversight Committee is to be composed of (A) ConnectOregon
Program Manager, (B) Oregon Department of Aviation Administrator (ODA), (C)
ODOT Chief of Staff, (D) ODOT Freight Mobility representative, (E) ODOT Region
representative, (F) ODOT Rail Division Administrator and (G) a non-agency
representative, appointed by ODOrs ConnectOregon Program Manager to address
the ConnectOregon Program and Project specific issues.
NOW THEREFORE, the premises being general as stated in the foregoing Recitals, it is
agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, ODOT and Recipient agree that Recipient shall overlay
Runway 12/30; install PAPI; replace existing visual approach Indicator System with
new Precision Approach Path Indicator System at the Ashland Municipal Airport,
hereinafter referred to as "Project." The location of the Project is approximately as
described in the application, which is attached hereto by reference and made a part
hereof. The anticipated date of completion for this Project is July 31,2011.
2
Recipient/ODOT
Agreement No. 27017
2. The Project cost is estimated at $1,858,000, which is subject to change. The
ConnectOregon III grant funds are limited to $92,900 or five (5) percent of the total
federal grant eligible Project costs, whichever is less. Eligible costs for this Project
will be reimbursed at five (5) percent until the $92,900 limit is reached. ODOT will
reimburse Recipient for five (5) percent of the invoiced federal grant Project costs,
which are approved and reimbursed by the Federal Aviation Administration (FAA),
at FAA's proportional share, for grants received on or after July 1, 2009 and before
July 1, 2011. If the Project is not completed in accordance with, or consistent with,
the Application No. 201 0-RA-061, and documents provided by the Recipient to
ODOT prior to the execution of the Agreement, incorporated by reference into this
Agreement, and this Agreement, as they each may be amended, Recipient shall pay
back all of the ConnectOregon III grant funds to ODOT. Any funds disbursed but not
used for the approved Project must be returned to ODOT.
3. The term of this Agreement is effective on the date all required signatures are
obtained and shall terminate five (5) years from the date of execution unless
extended by a fully executed amendment. This Agreement will expire and grant
funds will be terminated and redistributed by the Oregon Transportation Commission
if this Project Agreement is not executed within one-hundred-eighty (180) days of the
Oregon Transportation Commission's grant award date.
RECIPIENT OBLIGATIONS
1. Recipient shall perforrn the work described in Terms of Agreement, Paragraph
number 1 above.
2. Recipient shall comply with all requirements of ORS 367.080 through ORS 367.086
and Oregon Administrative Rule (OAR) Chapter 731, Division 35.
3. Recipient shall submit to ODOrs Project Liaison for review and approval, monthly
invoices for approved eligible costs. Recipient shall also submit monthly progress
reports by the first Wednesday of each month.
a. The invoice must adhere to generally accepted accounting principals and will
identify the Project, Agreement number, the Project start and end date, the
invoice number or the account number or both, and will itemize all expenses as
well as provide a detailed breakdown of funds expended to date and dollars
remaining.
b. The monthly progress report will be prepared using the, ConnectOregon Rural
Airports Monthiy Progress Report (Form 734-2816) attached hereto by reference
and made a part of this Agreement, and will be submitted to the ODOT Project
Liaison and the ODOT ConnectOregon Program Manager, the first Wednesday
3
RecipienUODOT
Agreement No. 27017
of each month. The fiIIable form can be downloaded on-line at the following
address:
http://www.oreqon.qov/ODOT/HWY/LGS/online.shtml
c. Key Milestones for this Project are:
i. Project start date:
ii. Project completion date:
April 30, 2011
July 31, 2011
d. If the Recipient anticipates the Project key milestones will be delayed by more
than ninety (90) days from the key milestones shown above, Recipient shall
submit a Request for Change Order (Form 734-2819) to the ODOT's Project
Liaison as soon as Recipient becomes aware of any possible delay. The Request
for Change Order must be submitted prior to the milestone completion date
shown in paragraph 2cii above. The fiIIable form can be downloaded on-line at
the following address: http://www.oreQon,Qov/ODOTlHWY/LGS/online.shtml.
Any changes to the Project delivery schedule must be approved by the
ConnectOregon Oversight Committee prior to execution of an amendment to this
Agreement. The ConnectOregon Oversight Committee may choose to request
review by the Oregon Transportation Commission. A Request for Change Order
may be rejected at the discretion of the Oversight Committee.
e. Recipient understands that no changes to the Project scope will be allowed.
f. Recipient's obligation to maintain and operate the Project will survive termination
of this Agreement.
4. Recipient shall comply with all federal, state, and local laws, regulations, executive
orders and ordinances applicable to the work under this Agreement, including,
without limitation, the applicable provisions of ORS 279A, 279B and 279C, as
applicable, incorporated herein by reference and made a part hereof. Without
limiting the generality of the foregoing, Recipient expressly agrees to comply with (i)
Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504 of the Rehabilitation
Act of 1973; (iii) the Arnericans with Disabilities Act of 1990 and ORS 659A.142; (Iv)
all regulations and administrative rules established pursuant to the foregoing laws;
and (v) all other applicable requirements of federal and state civil rights and
rehabilitation statutes, rules and regulations.
5. Recipient shall, to the extent permitted by the Oregon Constitution and the Oregon
Tort Claims Act, indemnify, defend, save, and hold harmless the State of Oregon,
Oregon Transportation Commission and its members, Oregon Department of
Transportation, its officers and employees from any and all claims, suits, or action of
4
RecipientJODOT
Agreement No. 27017
any nature arising out of activities of Recipient, its consultant, its contractor, its
officers, subcontractors, agents, or employees under this Agreement. If Recipient is
a local public agency, then Recipient's total liability shall not exceed the tort claims
limits providing in the Oregon Tort Claims Act, ORS 30.260 and 30.300 for "local
public bodies."
6. Notwithstanding the foregoing defense obligations in the paragraph above, neither
Recipient nor any attorney engaged by Recipient shall defend any claim in the name
of the State of Oregon or any agency of the State of Oregon, nor purport to act as
legal representative of the State of Oregon or any of its agencies, without the prior
written consent of the Oregon Attorney General. The State of Oregon may, at
anytime at its election assume its own defense and settlement in the event that it
determines that Recipient is pro~ibited from defending the State of Oregon, or that
Recipient is not adequately defending the State of Oregon's interests, or that an
important governmental principle is at issue or that it is in the best interests of the
State of Oregon to do so. The State of Oregon reserves all rights to pursue any
claims it may have against Recipient if the State of Oregon elects to assume its own
defense.
7. Recipient acknowledges and agrees that ODOT, the Oregon Secretary of State's
Office, the federal government, and their duly authorized representatives shall have
access to the books, documents, papers, and records of Recipient which are directly
pertinent to this Agreement for the purpose of making audit, examination, excerpts,
and transcripts for a period of six (6) years after final payment. Copies of applicable
records will be made available upon request. Payment for costs of copies is
reimbursable by the requesting Party.
8. If Recipient enters into a construction contract for performance of work on the
Project, then Recipient will require its Contractor to provide the following:
a. Contractor shall indemnify, defend and hold harmless ODOT from and
against all claims, suits, actions, losses, damages, liabilities, costs and
expenses of any nature whatsoever resulting from, arising out of, or relating
to the activities of Contractor or its officers, employees, subcontractors, or
agents under the resulting contract.
b. Contractor and recipient shall name ODOT as a third party beneficiary of the
resulting contract.
c. Commercial General Liability. Contractor shall obtain, at Contractor's
expense, and keep in effect during the ierm of the resulting contract,
Commercial General Liability Insurance covering bodily injury, and property
damage in a form and with coverages that are satisfactory to ODOT. This
5
RecipienUODOT
Agreement No. 27017
insurance will include personal and advertising injury liability, products and
completed operations. Coverage may be written in combination with
Automobile Liability Insurance (with separate limits). Coverage will be written
on an occurrence basis. If written in conjunction with Automobile Liability the
combined single limit per occurrence will not be less than $ 1,000,000 for
each job site or location. Each annual aggregate limit will not be less than
$2,000,000.
d. Automobile Liability. Contractor shall obtain, at Contractor's expense, and
keep in effect during the term of the resulting contract, Commercial Business
Automobile Liability Insurance covering all owned, non-owned, or hired
vehicles. This coverage may be written in combination with the Commercial
General Liability Insurance (with separate limits). Combined single limit per
occurrence will not be less than $1,000,000.
e. Additional Insured. The liability insurance coverage, except Professional
Liability, Errors and Omissions, or Workers' Compensation, if included,
required for performance of the contract will include ODOT and its divisions,
officers and employees as Additional Insured but only with respect to
Contractor's activities to be performed under the resulting contract. Coverage
will be primary and non-contributory with any other insurance and self-
insurance.
f. Notice of Cancellation or Change. There will be no cancellation, material
change, potential exhaustion of aggregate limits or non-renewal of insurance
coverage(s) without thirty (30) days written notice from Contractor's or its
insurer(s) to ODOr. Any failure to comply with the reporting provisions of this
clause will constitute a material breach of contract and will be grounds for
immediate termination of the resulting contract.
9. Recipient, and its Contractors, shall work as independent contractors and shall be
exclusively responsible for all costs and expenses related to its employment of
individuals to perform the wo~k under this Agreement including, but not limited to,
retirement contributions, workers' compensation, unemployment taxes, and state
and federal income tax with holdings.
10.AII employers, including Recipient, that employ subject workers in the State of
Oregon shall comply with ORS 656.017 and provide the required Workers'
Compensation coverage unless such employers are exempt under ORS 656.126.
Recipient shall ensure that each of its subcontractors complies with these
requirements.
6
RecipientlODOT
Agreement No. 27017
11. Recipient shall, upon execution of this Agreement and as a condition to this
Agreement, complete and file with the appropriate County Clerk, Exhibit A,
"Acknowledgment of ODOT Assistance" or the filing of a memorandum of this
Agreement, including Acknowledgment of ODOT Assistance. Recipient shall provide
confirmation of this filing by forwarding to ODOT's GonnectOregon Program
Manager a notarized copy of the recorded Exhibit A. By means of said
acknowledgment of Recipient's financial obligations, the continued use of said
property for public purposes, and the maintenance of the facility or service at a level
consistent with normal depreciation or demand or both is recognized and attached to
the property as conditions. Any interest in said property by ODOT is proportional to
the state participation in Project. While in default of conditions of this Agreement,
Recipient will be ineligible to receive state funds from any ODOT-administered
program for any project on a street, road or property. The Acknowledgment of ODOT
Assistance shall remain in place for the useful life of the Project. The useful life of
the Project is defined as twenty (20) years, Reimbursement to Recipient will not be
made until a copy of the recorded Exhibit A has been forwarded to the ODOT
Project Liaison.
12. Recipient and ODOT's Project Liaison shall, upon completion of all on-site work for
the Project, perform an on-site review. Once review is completed, the ODOT Project
Liaison shall recommend acceptance of the Project by signing the GonnectOregon
Rural Airport "Recommendation of Acceptance" (Form 734-2817), which will be
signed by the ODOT Project Liaison and Recipient and is hereby incorporated by
reference. The full text of the above referenced exhibit may be reviewed and
downloaded at the following web address:
http://www.oreqon.qov/ODOT/HWY/LGS/online.shtml
13. Recipient shall, at its own expense, maintain and operate the Project upon
completion and throughout the useful life of the Project at a minimum level that is
consistent with normal depreciation or service demand or both. ODOT and Recipient
agree that the useful life of this Project is defined as twenty (20) years, Recipient
has, by submitting its application for this GonnectOregon III grant, represented and
certified to sufficient funds and to its ability to operate and maintain the Project.
ODOT may conduct periodic inspections following the execution of this Agreement
to verify that Project is being properly maintained and continues to serve the
purpose for which GonnectOregon III grant funds were provided.
14. Maintenance responsibilities and potential ODOT inspections of the Project shall
survive any termination of this Agreement.
15. Recipient certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreement on behalf of Recipient,
7
RecipientlODOT
Agreement No. 27017
under the direction or approval of its governing body, commission, board, officers,
members, or representatives, and to iegally bind Recipient and shall provide ODOT
proof of such authority upon request.
16. Recipient's Project Manager is Scott A. Fleury, 20 East Main St, Ashland, OR,
97520; 541-552-2416; fleurys@ashland.or.us, or assigned designee upon
individual's absence. ODOrs Project Liaison and ODOrs ConnectOregon Program
Manager shall be notified in writing of any contact information changes during the
term of this Agreement.
OOOT OBLIGATIONS
1. Based upon the ConnectOregon III Rural Airport Program grant fund allocation
allowed, ODOT agrees to pay Recipient $92,900, or five (5) percent of the total
eligible Project costs, whichever is less. Eligible costs for this Project will be
reimbursed at five (5) percent until the $92,900 limit is reached.
2. ODOT shall, upon receipt of a monthly invoice and updated monthly progress report
on the Project schedule, review for approval and make payment to Recipient for
approved eligible costs.
3. This Agreement is contingent upon issuance and sale of lottery bonds sufficient to
fund this Project. The Agreement is effective and work may begin upon execution of
this Agreement, but ODOrs obligation to make Project payments is contingent upon
the issuance and sale of lottery bonds by the State Treasurer.
4. ODOT shall monitor the Project for compliance and notify Recipient in writing if it
appears Recipient is failing to comply with Multimodal Transportation Fund Program
requirements as specified in ORS Chapter 367; OAR Chapter 731, Division 35, the
terms of this Agreement, Recipient's application and documents provided by the
Recipient to ODOT prior to the execution of the Agreement.
5. ODOT may impose sanctions against Recipient for failing to comply with the
requirements governing the Mullimodal Transportation Fund Program. Before
imposing sanctions, ODOT will send a notice to cure to Recipient if Recipient fails to
comply with Program requirements. 'ODOT will allow fifteen (15) days from the date
the notice to cure is sent for Recipient to respond and correct the deficiencies noted.
The following circumstances may warrant sanctions:
a. Work on the approved Project has not been substantially initiated within six (6)
months of the effective date of this Agreement or if continuous progress on the
Project has not been maintained for six (6) months;
8
Recipient/ODOT
Agreement No, 27017
b. State of Oregon statutory requirements have not been met;
c. There is a significant deviation from the terms and conditions of this Agreement
or representations of Recipient's application and documents provided by the
Recipient to ODOT prior to the execution of the Agreement;
d. Significant corrective actions have been found to be necessary to protect the
integrity of the funds for the approved Project, and those corrective actions are
not, or will not, be made within a reasonable time;
e. Key Milestones shown in the Project schedule are delayed by more than ninety
(90) days;
f. Failure to submit monthly progress reports as required in Recipient Obligations,
Paragraph number 2.
6. One or more of the following sanctions may be imposed if the circumstances listed
above are not remedied within the time specified in the notice to cure:
a. Revocation of an existing award;
b. Withholding of unexpended funds;
c. The return of unexpended funds or repayment of expended funds;
d. The barring of Recipient from applying for future assistance; or
e. Other remedies that may be incorporated into this Agreement.
7. The remedies set forth in this Agreement are cumulative, are not exclusive, and are
in addition to any other rights and remedies provided by law or under this
Agreement.
8. ODOrs Project Liaison and Recipient shall, upon completion of all on-site work for
Project, perform an on-site review. Once review is completed, the ODOT Project
Liaison shall recommend acceptance of the Project by signing the ConnectOregon
Recommendation of Acceptance (Form 734-2817), which will be signed by the
ODOT Project Liaison and Recipient. Upon receipt of signatures by the Parties the
ODOT Project Liaison shall forward the original signed copy to the ODOT
ConnectOregon Program Manager.
9
RecipientlODOT
Agreement No. 27017
9. ODOT's ConnectOregon III Project Liaison is Randi Kobernik, Local Government
Section, 355 Capitol St. NE, Salem, OR 97301-3871, 503.986.3734,
randi.kobernik@odot.state.or.us, or assigned designee upon individual's absence.
10.0DOT's ConnectOregon III Program Manager is Carol Olsen, Local Government
Section, 355 Capitol St. NE, Salem, OR 97301-3871, 503.986.3327,
caro/.a.olsen@odot.state.or.us, or assigned designee upon individual's absence.
GENERAL PROVISIONS
1. This Agreement may be terminated effective upon delivery of written notice to
Recipient, or at such later date as may be established by ODOT under any of the
following conditions:
a. If Recipient fails to perform any of the provisions of this Agreement, or so fails
to pursue the work as to endanger performance of this Agreement' in
accordance with its terms, and within ten (10) days or such longer period as
ODOT may authorize, after receipt of written notice from ODOT, fails to
correct such failures.
b. The Legislature fails to approve, reduces, eliminates or otherwise interferes
with appropriations of state expenditure limitation to the extent that legal
authority is insufficient to enable ODOT, in its reasonable discretion, to
continue making payments under this Agreement.
c. ODOT, the Department of Justice, or a court of competent jurisdiction
determines that state law, rules, regulations, or guidelines are modified,
changed, or interpreted in such a way that the activities described in Terms of
Agreement, Paragraph number one (1) are no longer allowable or no longer
eligible for funding proposed by this Agreement.
2. ODOT may impose one or more of the sanctions described under ODOT
Obligations, Paragraph number six (6), without prior notice and without opportunity
to cure, in the event ODOT determines:
a. Statements, information, or representations in the ConnectOregon III
application and documents provided by the Recipient to ODOT prior to the
execution of the Agreement for this Project were false, misleading, fraudulent
or misrepresentations; or
b. There has been a change in circumstances so that information provided in the
application and documents provided by the Recipient to ODOT prior to the
execution of the Agreement, and relied upon in making the grant or loan, or
10
RecipientlODOT
Agreement No. 27017
representations concerning considerations in the selection .of this Project for
ConnectOregon III, pursuant to OAR 731-035-0060, are no longer true or
accurate.
3. Recipient may terminate this Agreement effective upon delivery of written notice to
ODOT under any of the following conditions:
a. ODOT fails to make payments due under this Agreement, or
b. ODOT fails to perform any of the provisions of this Agreement, or so fails to
pursue the work as to endanger performance of this Agreement in
accordance with its terms, and within ten (10) days or such longer period as
Recipient may authorize, after receipt of written notice from Recipient, fails to
correct such failure.
4. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
5. ODOT and Recipient are the only Parties to this Agreement and, as such, are the
only Parties entitled to enforce its terms. Nothing in this Agreement gives or shall be
construed to give or provide any benefit, direct, indirect or otherwise to third persons
unless such third persons are expressly identified by name and specifically
described as intended to be beneficiaries of its terms.
6. ODOT and Recipient hereto agree that if any term or provision of this Agreement is
declared by a court of competent jurisdiction to be invalid, unenforceable, illegal or in
conflict with any law, the yalidity of the remaining terms and provisions will not be
affected, and the rights and obligations of the Parties shall be construed and
enforced as if the Agreement did not contain the particular term or provision held to
be invalid.
7a.The laws of the State of Oregon (without giving effect to its conflicts of law principles
govern all matters arising out of or relating to this Agreement, including, without
limitation, its validity, interpretation, construction, performance, and enforcement.
b.Any Party bringing a legal action or proceeding against any other party arising out of
or relating to this Agreement shall bring the legal action or proceeding in the Circuit
Court of the State of Oregon for Marion County. Each party hereby consents to the
exclusive jurisdiction of such court, waives any objection to venue, and waives any
claim that such forum is an inconvenient forum.
-
c. Notwithstanding subsection (b), if a claim must be brought in a federal forum, then it
must be brought and adjudicated solely and exclusively within the United States
11
Recipient/ODOT
Agreement No. 27017
District Court for the District of Oregon. This section applies to a claim br<Jught
against the State of Oregon only to the extent Congress has appropriately abrogated
the State of Oregon's sovereign immunity and is not consent by the State of Oregon
to be sued in federal court. This section is also not a waiver by the State of Oregon
of any form of immunity, including but not limited to sovereign immunity and
immunity based on the Eleventh Amendment to the Constitution of the United
States.
8. This Agreement may be executed in several counterparts (facsimile or otherwise) all
of which when taken together shall constitute one agreement binding on all Parties,
notwithstanding that all Parties are not signatories to the same counterpart. Each
copy of this Agreement so executed shall constitute an original.
9. This Agreement, Project application and documents provided by the Recipient to
ODOT prior to the execution of the Agreement, and attached exhibit constitute the
entire agreement between the Parties on the subject matter hereof. In the event of a
conflict, the body of this Agreement and the attached Exhibit A will control over the
Project application and documents provided by the Recipient to ODOr. There are no
understandings, agreements, or representations, oral or written, not specified herein
regarding this Agreement. No waiver, consent, modification or change of terms of
this Agreement shall bind either party unless in writing and signed by both Parties
and all necessary approvals have been obtained. Such waiver, consent, modification
or change, if made, shall be effective only in the specific instance and for the specific
purpose given. The failure of either Party to enforce any provision of this Agreement
shall not constitute a waiver by that Party of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that each Party
has read this Agreement, understands it, and agrees to be bound by its terms and
conditions.
The Oregon Transportation Commission on December 28, 2008, approved Delegation
Order No.2, which authorizes the Director to approve and execute agreements for day-
to-day operations. Day-to-day operations include those activities required to implement
the biennial budget approved by the Legislature, including activities to execute a project
in the Statewide Transportation Improvement Program.
12
RecipienUODOT
Agreement No. 27017
The Oregon Transportation Commission at its August 2010 meeting approved the
ConnectOregon III project application list and delegated authority to the Director of the
Oregon Department of Transportation to enter into project agreements.
CITY OF ASHLAND, acting by and STATE OF OREGON, by and through
through its elected officials its Department of Transportation
By
By
Director
Date
Date
By
APPROVAL RECOMMENDED
Date
APPROVED AS TO LEGAL
SUFFICIENCY
By
Local Government Section Manager
By
Recipient Counsel
Date
APPROVED AS TO LEGAL SUFFICIENCY
Date
Recipient Contact:
Scott A. Fleury
City of Ashland
20 East Main St
Ashland, OR 97520
541-552-2416
fieurys@ashland.or.us
By
Assistant Attorney General
Date
ODOT Contact:
Randi Kobernik,
Local Government Section
355 Capitol SI. NE
Salem, OR 97301-3871
Phone:503.986.3734
randi.kobemik@odot.state.or.us
13
RecipientlODOT
Agreement No. 27017
EXHIBIT A
Agreement Number: 27017
Application Number: 2010-RA-061
Project Name: Construction, Runway Overlay,
Precision Approach Path Indicator (PAPI) Installation
After recording, return to:
ACKNOWLEDGMENT OF STATE ASSISTANCE
The property and assets under the jurisdiction of City of Ashland, were improved with
assistance from the State of Oregon, Department of Transportation under an agreement
executed between City of Ashland, and the Oregon Department of Transportation
(ODOT) dated . Such assistance was provided to City of Ashland, in
reimbursement of costs associated with the Construction, Runway Overlay, Precision
Approach Path Indicator (PAPI) Installation. The use and disposition of said property is
subject to the terms of the above noted Agreement, copies of which may be obtained
from the Director of ODOT.
By:
Title:
State of Oregon)
County of
SUBSCRIBED and SWORN to before me this
day of
,20_
NOTARY PUBLIC FOR OREGON
My commission expires:
14
CITY OF
ASHLAND
Council Communication
Approval of an Airport Ground Lease with Brim Aviation
Meeting Date: October 19, 2010 Primary Staff Contact: James H. Olson
Department: Public Works E-Mail: olsonj@ashland.or.us
Secondary Dept.: Administration Secondary Contact: Scott A. Fleury
Approval: Martha Benne Estimated Time: Consent
Question:
Will the Council approve an Airport ground lease with Brim Aviation for the storage of aviation
related equipment?
Staff Recommendation:
Staff recommends that Council approve an Airport ground lease for the storage of aviation related
equipment.
Background:
Brim Aviation is an operator at the Ashland Municipal Airport who conducts aviation related
operations that include search and rescue, fire fighting, law enforcement training, construction,
surveying, and airborne law enforcement. In order to successfully operate his aviation related business
on site, Brim Aviation needs to have support vehicles and equipment ready to use in close proximity to
his existing hangar. The Airport Commission and staff have recommended that Brim Aviation store his
equipment north of his existing hangar in an undeveloped portion of the Airport until such time that
more parking area, taxiways and hangars are developed per the approved Airport Master Plan Layout.
Brim Aviation has been using the Airport property north of his existing hangar for approximately two
years for support vehicle parking. The Airport Commission and staff are now requesting authorization
to formalize an agreement for Brim Aviation's continued use of the Airport property for additional
parking. While there is no existing lease, Brim Aviation has paid the City equivalent ground lease
payments for the fiscal year 09/10. To that end, the attached lease agreement was created by the Legal
Department and approved by the Airport Commission. Brim Aviation has agreed to the terms and
signed the lease. The proposed two-year lease includes Council approved fees, a 30-day termination
clause, and a recital regarding back lease payments. Staff is now requesting authorization for the City
Administrator to sign the lease with Brim Aviation.
Related City Policies:
The Council has authority to enter into lease agreements with individuals for the use of City property.
Council Options:
. Council may approve the attached Airport Ground Lease Agreement with Brim Aviation
. Council may reject the Ground Lease Agreement
. Council may modify the proposed Ground Lease Agreement
Page I of2
~.t. 1
CITY OF
ASHLAND
Potential Motions:
. Move to authorize the City Administrator to sign the Ground Lease Agreement with Brim
Aviation
. Move to reject the Ground Lease Agreement
. Move to modify the proposed lease
Attachments:
Brim Aviation Ground Lease AgTeement
Page20f2
~;.,
ASHLAND MUNICIPAL AIRPORT
GROUND LEASE AGREEMENT FOR
STORAGE FACILITY
THIS AGREEMENT is entered into between the CITY OF ASHLAND, OREGON, by and through the
City Council, hereinafter referred to as City, and Burl J. Brim, Jr., hereinafter referred to as Lessee.
RECITALS
A. City owns and operates an airport known as the Ashland Municipal Airport (the "airport").
B. Lessee currently leases a parcel of land at the airport ("Parcel A") more fully described in
Exhibit A, for the purpose of running his business, Brim Aviation.
C. Lessee received land use approval of Planning Application #2007-00578 on May 8, 2007, to
construct a hangar on an adjacent parcel of land ("Parcel B").
D. City subsequently granted a one (1) year extension on May 6, 2008, when it approved
Planning Action #2008-00595.
E. City subsequently granted an additional eighteen (18) month extension on April 28, 2009,
when it approved Planning Action #2009-00446.
F. Lessee desires to lease additional property ("Parcel C") adjacent to Parcel A to temporarily
stage and store supplies and vehicles used in his aviation business.
G. City desires to lease Parcel C to the Lessee under the circumstances set forth in this
Agreement.
H. Prior to the signing of this Agreement, Lessee paid $1146.00 for the lease of Parcel C for the
prior year ending on June 30, 2010.
In consideration of the matters described above, and of the mutual benefits and obligations set forth
in this Agreement, the parties agree as follows:
1. Recitals Incorporated.' The recitals are hereby incorporated into this Agreement by this
reference.
2. Description of Leased Property. City agrees to lease to Lessee a part of the Airport identified as
Parcel C on ExhibitA ("Property"), Property has an area of approximately 6,000 square feel. The
lessee will use Parcel C to temporarily stage and store supplies and vehicles ("storage").
3. Lease Fees.
3.1. Rental Rate Lessee agrees to pay to City an annual rental of $0.193 per square foot,
per year for the use of Parcel C, Lessee agrees to pay to City, for the use of the
Property, a rental rate of $1.158.00, payable on execution of the lease. It is agreed that
the rental rate here specified shall be subject to re-examination and readjustment
pursuant to 3.2, provided that any readjustment of the present rate, or amended rate,
shall be reasonable.
3.2. Periodic rent increase The rental fee is subject to adjustment on July 1s1 of each year at
the option of the City and the difference between the annual rental rate under section
3.1, and the increased rate is due and payable September 1 sl following the rent
increase.
3.3. Past due fees. Lease fees will become past due ten days past the due date and the City
will charge interest of 1.5% per month on past due lease fees.
3.4. Security Deposit Lessee shall pay a deposit in the amount of one year's rent to secure
Page 1 of 9 -GROUND LEASE FOR STORAGE
Lessee's compliance with all terms of this agreement. The deposit shall be a debt from
City to Lessee, refundable within 30 days after expiration of the lease term or other
termination not caused by Lessee's default. City may commingle the deposit with its
funds. Lessee shall not be entitled to interest on the deposit. City shall have the right to
offset against the deposit any sums owing from Lessee to City and not paid when due,
any damages caused by Lessee's default, the cost of curing any default by Lessee
should City elect to do so, and the cost of performing any repair or cleanup that is
Lessee's responsibility under this agreement. Offset against the deposit shall not be an
exclusive remedy in any of the above cases, but may be invoked by City, at its option, in
addition to any other remedy provided by law or this agreement for Lessee's
nonperformance. City shall give notice to Lessee each time an offset is claimed against
the deposit, and, unless the agreement is terminated, Lessee shall within 10 days after
such notice deposit with City a sum equal to the amount of the offset so that the total
deposit amount, net of offset, shall remain constant throughout the agreement term.
3.5. Improvement Fee Lessee shall be required to pay a non-refundable improvement fee
of $140.00 at the time of executing this Agreement. The fee shall be used by City to
make improvements at the airport.
4. Term. The term of this lease shall be for a maximum of two (2) years, commencing on July 1,
2010, and ending on June 30,2012. Either party may terminale this lease at any time upon 30
days prior written notice to the other party. If Lessee is not in default Lessee shall have the first
right of refusal to lease the premises from the City at the rates and terms then in effect as
established hy the City. In no event shall delay in obtaining permits from any city, state or federal
agencies be deemed as automatically requiring an extension of the term of this Agreement. Nor
shall such delay be interpreted as requiring the City to approve an extension of this Agreement.
5. Construction. Lessee shall have the right to construct storage improvements and structures in
conformance with all approved plans and permits. Lessee shall have the right to erect, maintain,
and alter structures upon the leased property provided such structures conform to the applicable
requirements of all federal, state, and local laws. All plans for such structures or improvements
shall be reviewed and approved in writing by the City prior to construction.
6. Lessee Covenants. Lessee agrees to:
6.1. Use Parcel C for short-term temporary storage and staging of supplies, equipment, and
vehicles.
6.2. Discontinue use of Parcel C upon notification by city staff if development of the airport
requires Parcel C to be developed pursuant to the Airport Master Plan.
6.3. Obtain a Specialized Aviation Service Operator (SASO) lease agreement in accordance
with Section 9 to allow Lessee to operate a business that engages in airport related
commercial activities on Parcel C.
7. Title to Improvements. At the conclusion of this lease, any improvements to Parcel C and any
areas used to access Parcel C, including changes to the surface, shall be left or removed at the
sole discretion of the airport. If Lessee is notified by the city staff that Lessee must remove all
improvements, the improvements must be removed prior to Lessee vacating the premises.
8. Use of Premises. Except as provided in this paragraph, the premises shall be used only for the
storage of aircraft and machinery and equipment that is necessary for the operation of Brim
Aviation. No commercial activities includina but not limited to aircraft mechanical or maintenance
Page 2 of 9 -GROUND LEASE FOR STORAGE
work or repair or service are to be conducted on the premises unless otherwise permitted under
section 9.3 The preceding sentence does not apply, however, to work, maintenance, repair or
service on aircraft owned by the Lessee. Other items of personal property may be stored
temporarily when such storage in no way interferes with the normal storage area of the aircraft in
the hangar, and does not otherwise violate this rental agreement.
9.1 Flammables and exolosives prohibited Lessee shall not store any flammable or explosive
liquids or solids within the premises without a permit. For the purpose of this rental agreement,
"flammable or explosive liquids or solids" shall not apply to fuel or other flammables contained
within any airplane placed in the hangar. Fueling of the aircraft while in the hangar is strictly
prohibited.
9.2 Pets and animals prohibited Lessee shall not, without the City's written consent keep any pets
or animals on the premises. If allowed, Lessee agrees to be liable for damage to the premises
or other persons caused by the pet or animal.
9.3 When commercial activities oermitted. Lessee may conduct airport related commercial
'activities upon obtaining a business license, as specified in the "Minimum Standards for
Commercial Aeronautical Activities, Ashland, Oregon", and entering into a Specialized Aviation
Service Operator (SASO) lease agreement, which allows the Lessee to operate as a
Specialized Aviation Service Operator in accordance with current adopted standards.
9. Maintenance. Lessee shall keep and maintain the premises and all improvements in good and
substantial repair and condition, including the exterior condition. Lessee shall make all necessary
major repairs and alterations and shall maintain the premises and all improvements in compliance
with all applicable building and zoning laws and all other laws, ordinances, orders and
requirements of all authorities having or claiming jurisdiction. Lessee shall provide proper
containers for trash and garbage and shall keep the premises free and clear of weeds, rubbish,
debris, and litter at all times. City shall have the right to conduct reasonable inspections and
investigations of the property and the operations conducted on the premises at any time, and from
time to time with reasonable advance notice, and Lessee shall cooperate fully with City during
such inspections and investigations.
10. Rights Reserved to the City. The City reserves the following rights:
11.1 Improve landin9 area The right to develop or improve the landing area of the airport without
interference or hindrance of the Lessee.
11.2 Maintain airport The right, but not the obligation, to maintain and keep in repair the landing
area of the Airport, together with the right to direct and control all activities of Lessee.
11.3 Protect airport. The right to take any action considered necessary to protect the aerial
approaches of the airport against obstruction, together with the right to prevent Lessee from
erecting, or permitting to be erected, any building or other structure on the Airport which, in the
opinion of the City, would limit the usefulness of the Airport and constitute a hazard to aircraft.
11.4 Tempora'Y closures The right to temporarily close or to restrict the use of the Airport or any of
the facilities for maintenance, improvement, or for the safety of the public. Lessee is not
entitled to any compensation or damages for such temporary closures.
11. Compliance with laws. Lessee shall comply with:
12,1The current adopted, or any future, "Minimum Standards for Commercial Aeronautical
Activities, Ashland, Oregon" (Minimum Standards) are part of this lease agreement. If this
lease and the Minimum Standards conflict in the requirements for the Lessee, the Minimum
Standards take precedence.
Page 3 of 9 -GROUND LEASE FOR STORAGE
12.2A1I federal, state, county, and city laws, orders and ordinances, and rules and regulations
apply, including but not limited to all rules and regulations of the Oregon Department of
Aviation and the Federal Aviation Administration.
.1 Local Laws. The terms, restrictions and requirements of approvals are set forth in the
applicable City Ordinances, including the Ashland Land Use Ordinance, applicable
State statutes and regulations, the preliminary and final approvals, and this Agreement.
All local development approvals and permits identified by local law or this Agreement
shall be obtained at the sole cost of the Lessee. The failure of Ihis Agreement to
address a particular permit, condition, term or restriction shall not relieve Lessee of the
duty to comply with any laws governing' permitting requirements, conditions, terms or
restrictions. Any matter or action to be taken pursuant to the requirements of the
ordinances of the City of Ashland shall not be otherwise amended, modified or waived
unless such modification, amendment or waiver is expressly provided for in this
Agreement with specific reference to the provisions so modified waived or amended.
.2State and Federa/ Laws. The following sworn statement shall be submitted prior to
commencement of Physical construction:
Sworn Statement, Verification of Federal, State, and Local Permit Compliance.
Prior to any land clearing, alteration, or physical construction (other than survey work
or environmental testing) on the property, the Lessee shall execute a sworn
statement under penalty of perjury and false swearing, that the Lessee has obtained
all required Federal, State, and local authorizations, permits and approvals for
Phase One, including any proposed use, or alteration of the site, including also any
off-site improvements. Lessee shall be solely responsible for obtaining all
approvals, permits, licenses, insurance, and authorizalions from the responsible
Federal, State and local authorities, or other entities, necessary to use the property
in the manner contemplated, including all authorizations necessary to perform land
clearing, construction and improvement of property in the location and manner
contemplated. This provision includes, but is not limited to, when applicable, a
permit or statement from the Federal Aviation Administration that the activities
contemplated comply with all federal regulations. Further, it is expressly agreed and
understood that the City of Ashland has no duty, responsibility or liability for
requesting, obtaining, ensuring, or verifying Lessee's compliance with the applicable
state and federal agency permit or approval requirements. Any permit or
authorization granted by the City, including any exemption, exception, permit,
approval or variance pursuant to the Ashland Land Use Ordinance shall not in any
way be interpreted as a waiver, modification, or grant of any state or federal agency
permits or authorizations or permission to violate any stale or federal law or
regulation. Lessee shall be held strictly liable, and shall hold the City of Ashland, its
officers and employees harmless for administrative, civil and criminal penalties for
any violation of Federal and State statutes, regulations, or rules implementing such
laws. Nothing herein shall be interpreted as restricting or limiting the City from
bringing an enforcement action under the Ashland Municipal Code.
12. Lessee compliance with environmental laws. As used in this paragraph, the term "hazardous
material" means any hazardous or toxic substance, material, or waste, including, but not limited to,
'those substances, materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 C.FR. S 172.101) or by the United States Environmental
Protection Agency as hazardous substances (40 C.F.R. Part 302) and any amendments, ORS
Page 4 of 9 -GROUND LEASE FOR STORAGE
466.567,466.205,466.640 and 468.790 and regulations of the Oregon State Department of
Environmental Quality, petroleum products and their derivatives, and such other substances,
materials and wastes as become regulated or subject to cleanup authority under any
environmental laws. Environmental laws means any federal, state, or local statutes, regulations, or
ordinances or any judicial or other governmental orders pertaining to the protection of health,
safety, or the environment.
13.1 Lessee's compliance with laws and permits. Lessee shall cause the premises and all
operations conducted on the premises (including operations by any subtenants) to comply with
all environmental laws.
13.2 Limitation on uses of hazardous materials. Lessee shall not use or allow any agents,
contractors or subtenants to use the premises to generate, manufacture, refine, transport,
treat, store, handle, recycle, release or dispose of any hazardous materials, other than as
reasonably necessary for the operation of Lessee's activities as contemplated under this lease.
13.2.1 Disposal and contamination clean-up. Lessee shall be responsible for disposing of all
hazardous materials in compliance with environmental laws, and Lessee shall be
responsible for any environmental clean-up of the premises that is necessary due to
Lessee's activities.
13. Utilities. Lessee shall promptly pay any charges for electricity, water and sewer, and all other
charges for utilities which may be furnished to the premises at Lessee's order or consent.
14. Liens, Taxes. Lessee shall pay all sums of money that become due for any labor, services,
materials, supplies, utilities, furnishings, machinery or equipment which have been furnished or
ordered by Lessee which may be secured by lien against the premises. Lessee shall pay all real
and personal property taxes assessed against the premises, such payments to be made no later
than November 15 of the year in which the taxes become due and payable, and will submit a copy
of the receipt for the taxes to the City's Director of Finance.
15. Insurance. Lessee shall obtain and maintain continuously in effect at all times during the term of
this lease, at Lessee's sole expense, the following insurance:
16.1 Comprehensive insurance. Owner's, landlord and tenant or premises insurance protecting City
and its officers, agents and employees against any and all liabilities that may allegedly in any
way relate to the operation by Lessee, this insurance to be in the minimum amount of
$1,000,000, combined single limit coverage. Such limit shall automatically increase in the
event of any change in the provisions of ORS 30.270, or in the event these limits are found to
be not totally applicable to a city.
.1 All policies shall include the City, its officers, commissions, elected officials,
employees and agents as additional insureds with respect to general liability and
aviation liability on a primary and non-contributory basis.
.2A certificate evidencing such insurance coverage shall be filed with the City prior to
the effective date of this lease, and such certificate shall provide that such insurance
coverage may not be canceled or reduced or changed in any way adverse to the City
without at least 30 days prior written notice to the City. The policy shall be continuous
until canceled as stated above. If such insurance coverage is canceled or changed,
Lessee shall, not later than 15 days prior to the termination or change in the insurance
coverage, file with the City a certificate showing that the required insurance has been
reinstated or provided through another insurance company or companies. Cancellation
or termination of the policy shall terminate the lease.
Page 5 of 9 -GROUND LEASE FOR STORAGE
In the event Lessee shall fail to furnish the City with the certificate of insurance required,
City rnay secure the required insurance or selfinsure at the sole cost and expense of
Lessee, and Lessee agrees to reimburse City promptly for the cost, plus ten percent of
the cost for City administration.
.2Proper1;y Insurance, Lessee shall bear the expense of any insurance insuring the personal
property of Lessee on the premises against such risks, but Lessee shall not be required to
insure his personal property.
16. Indemnification; Waiver of Subrogation. Lessee will defend, indemnify and save City, its
officers, employees and agents harmless from any and all losses, claims, actions, costs,
expenses, judgments, subrogations, or other damages resulting from injury to any person
(including injury resulting in death,) or damage (including loss or destruction) to property, of
whatsoever nature arising out of or incident to this lease or the activities that take place on leased
property. Lessee waives the right of subrogation regarding the insurance policy listed in Section
16. Lessee will not be held responSible for damages caused by negligence of City.
17. Non-appropriations; No Agency. The City and Lessee are entering into this Agreement
voluntarily in the spirit of cooperation and coordination to facilitate Lessee's desire to develop
Parcel B by constructing a hangar. However, nothing in this Agreement makes the City
responsible for the contracts or commitments of Lessee regarding construction of the hangar.
Lessee is not subject to public contracting rules and regulations and nothing herein makes Owner
subject to such public agency requirements. No City funds are provided by this agreement for
City construction of public infrastructure in this project.
All City obligations pursuant to this Agreement which require the expenditure of funds
are contingent upon future appropriations by the City as part of the local budget process. Nothing
in this Agreement implies an obligation on the City to appropriate any such monies. City
acknowledges that following the required review and approval of Final Plan and Site Reviews,
approval of final civil plans (construction plan approval) and associated construction permits, and
the determination for issuing building permits for the construction of a hangar on the Property is
not an obligation that would require the expenditure of funds; therefore, construction of the hangar
is not contingent upon future appropriations by the City.
18.Damage or Destruction of Premises.
19.1 If the premises or any improvements are damaged or destroyed by fire or other casualty,
Lessee shall:
.1 Promptly repair, rebuild or restore the property damaged or destroyed to substantially
the same condition consistent with the applicable building codes; and
.1Apply for any net proceeds of insurance resulting from claims for such losses, as well
as any additional money of Lessee necessary.
If the damage or destruction which occurs is such that the cost of repair, rebuilding or
restoration of the property damaged or destroyed exceeds 50% of the fair market value of the
improvements, Lessee shall have the option within 60 days from the date of damage or
destruction, to notify City in writing whether or not Lessee elects to repair, rebuild, or restore in
accordance with paragraph 15.1 or to terminate this lease. Upon giving such notice to
terminate, this lease shall terminate on the date specified in the notice and City shall be
entitled to the net proceeds of insurance.
.2Lessee shall be responsible for damage or destruction to the premises or any improvements
resulting from Lessee's operations, or anything done or permitted by Lessee under this lease.
Page 6 of 9 -GROUND LEASE FOR STORAGE
19. Events of Default. The following shall be events of default:
19.1.Default in Rent: Failure of Lessee to pay any rent or other charge within ten days after it is
due.
19.2.Default in Other Covenants: Failure of Lessee to comply with any covenant, term or
condition, or to fulfill any obligation of the lease (other than the payment of rent or other
charges) within 30 days after written notice by City specifying the nature of the default. If the
default is such that it cannot be completely remedied within the 30-day period, this provision
shall be complied with if Lessee begins correction of the default within the 3D-day period and
proceeds in good faith to effect the remedy as soon as practicable.
19.3.lnsolvencv: Insolvency of Lessee and assignment by Lessee for the benefit of creditors;
the filing by Lessee of a voluntary petition in bankruptcy; an adjudication that Lessee is
bankrupt or the appointment of a receiver of the properties of Lessee; the filing of an
involuntary petition of bankruptcy and failure of the Lessee to secure a dismissal of the
petition within 30 days after filing; attachment of or the levying of execution on the leasehold
interest and failure of the Lessee to secure discharge of the attachment or release of the levy
of execution within ten days.
20. Remedies on Default. In the event of a default, the City at its option may terminate the lease by
notice in writing by certified or registered mail to Lessee. The notice may be given before or within
thirty days after the running of the grace period for default and may be included in a notice of
failure of compliance. If the property is abandoned by Lessee in connection with a default,
termination shall be automatic and without notice.
2D.1.DamaQes. In the event of termination of default, City shall be entitled to recover
immediately the following amounts as damages:
20. 1 . 1 . The reasonable cost of re-entry and reletting including the cost of any clean
up, refurbishing, removal of Lessee's property and fixtures, or any other expense
occasioned by Lessee's failure to quit the premises upon termination and to leave the
premises in the required condition, any remodeling costs, attorney fees, court costs,
broker commissions and advertising cost.
20. 1.2. The loss of reasonable lease fee value from the date of default until a new
tenant has been or, with the exercise of reasonable efforts could have been secured.
20.2.Re-entry After Termination, If the lease is terminated for any reason, Lessee's liability to
City for damages shall survive such termination, and the rights and obligations of the parties
shall be as follows:
20.2 . 1. Lessee shall vacate the premises immediately, and within thirty (30) days
remove any property of Lessee including any fixtures which Lessee is required to
remove at the end of the lease term, perform any cleanup, alterations or other work
required to leave th~ property in the condition required at the end of the term. City may
re-enter, take possession of the premises and remove any persons or property by legal
action or by self-help with the use of reasonable force and without liability for damages.
20.3.Re-letting, Following re-entry or abandonment, City may re-Iet the premises and to that
end the City may: -
20.3.1. Make any suitable alterations or refurbish the premises, or both, or change the
character or use of the premises, but City shall not be required to re-Iet for any use or
purpose (other than that specified in the lease) which City may reasonably consider
injurious to the premises, or to any tenant which City may reasonably consider
objectionable.
20.3.2. Re-Iet all or part of the premises, alone or in conjunction with other properties,
for a term longer or shorter than th~ term of this lease, upon any reasonable terms and
Page 7 of 9 -GROUND LEASE FOR STORAGE
conditions, including the granting of some lease fee-free occupancy or other lease fee
concession.
21.Assignment of Interest or Rights. Neither Lessee or any assignee or other successor of Lessee
shall sublease, assign, transfer or encumber any of Lessee's rights in and to this lease or any
interest, nor license or permit the use of the rights granted except as provided in this paragraph.
Lessee shall not assign all or any part of its rights and interests under this lease to any successor
through merger, consolidation, or voluntary sale or transfer of substantially all of its assets, without
prior written approval of the City. Written approval of the City shall not be unreasonably withheld.
21.1.Ri9ht of first refusal. City shall have the following described right of first refusal with
respect to the interest of Lessee under this lease after the expiration of the lease term and all
extensions authorized under this lease:
21.1. 1. Lessee shall not sell, sublease, assign or transfer to anyone other than City,
unless Lessee shall have first communicated to City, by written notice, a written offer to
sell, sublease, assign or transfer this lease or any interest, which offer shall specify, in
commercially reasonable detail, the price, terms and conditions upon which Lessee is
willing to sell, sublease, assign or transfer this lease or any interest.
21. 1 . 2 . City shall have a period of 30 days, following the notice, within which to accept
the offer by giving Lessee written notice of acceptance. If the offer is accepted, the
parties shall be obligated to close the sale, sublease, assignment or transfer in
accordance with the terms of Lessee's offer. Closing shall occur within 60 days following
acceptance or within such longer closing period as may be specified in the offer.
21. 1.3 .If City does not accept the offer, Lessee may sell, sublease, assign or transfer
the lease or any interest to any other party, provided that such a sale must be
consummated within 60 days following the earlier of the expiration of the 30 day
acceptance period specified in paragraph 22.1.2 for the offer or the date of any written
rejection of the offer by City, and for and upon the same price, terms and conditions as
those specified in the offer,
21. 1 . 4 . City's rights under this paragraph shall apply to any subsequent or
contemporaneous offer made to Lessee or Lessee's successor or successors in
interest.
21.1.5. For the purposes of this subparagraph, a devise under a will by the Lessee
shall not be considered a sale, sublease, assignment or transfer.
22. Nonwaiver. Waiver by either party of strict performance of any provision of this lease shall not be
a waiver of or prejudice ihe party's right to require strict performance of the same provision in the
future or of any other provision.
23. Consent of City. Whenever consent, approval or direction by the City is required, all such
consent, approval or direction shall be received in writing from the City Administrator.
24. Hangar Construction Requirements. The Hangar Construction Requirements are incorporated
into this Agreement and shall apply to any construction that takes place on the leased property.
25. Notices. All notices required under this lease shall be deemed to be properly served if sent by
certified or registered mail to the last address previously furnished by the parties. Until changed by
the parties by notice in writing, notices shall be sent to:
CITY: LESSEE:
City of Ashland Brim Aviation
Page 8 of 9 -GROUND LEASE FOR STORAGE
Attn: City Administrator
2Q E, Main Street
Ashl<:ind, OR 97520
:Attn; Burl Brim
.,---- .-
PlO, Bo<,. 30Q9
Astilaiid OR 97520
.. . ,....-.,',...-
INTENDING 'TO BE BOUND, thi'l P<.lrtje13 have executed thisAgreemeiifas6f tM c:I<itEl writfenb,elow:
::?~ ~,< 15,~'()
ORDER
pursuantto ORS 271.360 the g6Iierhihgp9<:!yhElrebY<.lpproves'and,:autllorizes the ternisc,of thillJEl<.l13e
a13 13eHorth above. ' ,
CITY:
-
Mayor/Mayor's' Designee, City qfMhlllnd,
Date
Page,9of9 ~RbuNo LEASE,FORSTORAGE
I
.1
l
:
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Inter Governmental Agreement for Participation in the Southern Oregon
Hi~h- Tech Crimes Task Force
October 19, 2010 Primary Staff Contact:
Police Department E-Mail:
None Secondary Contact:
Martha Benne Estimated Time:
Terry Holderness
holdernet@ashland.or.us
None
Consent
Question: .
Does the Council wish to enter into an Intergovernmental Agreement to participate in the Southern
Oregon High-Tech Crimes Task Force in order to regionalize investigations related to high-tech and
internet crimes?
Staff Recommendation:
Staff recommends that the Council authorize the Police Chief to enter into an Intergovernmental
Agreement (IGA) to participate in the Southern Oregon High-Tech Crimes Task Force (SOHTTF) in
order to regionalize investigations related to high-tech and internet crimes
Background:
The Police Department presently handles all high-tech and internet related crimes occurring in the City
of Ashland. Internet and high-tech crimes frequently cross jurisdictiomil boundaries. When the
department finds links to additional crimes happening in another jurisdiction an evaluation of the case
is made to determine whether the case is turned over to another jurisdiction, it is investigated jointly or
we remain the primary investigating agency. All forensics related to these type of investigations are
done by the Southern Oregon High-Tech Crimes Task Force. Due to staffing and funding issues
SOHTTF has a back log of evidence that needs to be processed and is unable to do actual
investigations related to high-tech crime. SOHTTF has entered into an agreement with the FBI to
regionalize these types of investigations for agencies that are interested in participating. The FBI, the
City of Central Point and the City of Medford have each agreed to assign one full time investigator and
the City of Grants Pass has agreed to assign one investigator working 60% of their time to the
SOHTTF. Any agency that agrees to participate by assigning one investigator to work with SOHTTF
on high-tech crime investigations for at least 60% of the investigators time will receive the following
benefits:
. Most high-tech or internet related crimes occurring with participation jurisdiction will be
directly investigated by the SOHTTF. This should substantially reduce problems caused when
investigating cases that cross jurisdictional lines.
. The FBI will supply a vehicle and gas card used by the investigator assigned to the SOHTTF.
. The FBI will pay up to $17,000 a year in overtime for the investigator assigned to SOHTTF.
. The overtime hours worked by the investigator and funded by the FBI can be included in
calculating the investigators 60% of hours worked. This will allow the investigator to still
work an average of 20 hours a week on other cases for the participating agency.
Page I of2
'...
r.."
CITY OF
ASHLAND
. Forensic evidence related to cases originating in a participating agency will receive priority
processing by SOHTTF.
In May of this year the Council approved the Police Department entering into an agreement with the
FBI that allows them to reimburse the City of Ashland for expenses related to our participation in the
SOHTTF. That agreement with the FBI was very similar to our existing IGA with the DEA for
regionalizing major narcotics investigations. This IGA covers the organization and operation of the
SOHTTF and is the final step in the process of allowing Ashland to participate as a member.
The investigator assigned to the SOHTTF will work 20 hours each week on general Ashland cases and
20 hours each week at the SOHTTF. Every other week the investigator will work an additional 10
hours of overtime funded by the FBI at SOHTTF. The Police Department will assign the investigator
to the unit in December of this year or January of2011.
Related City Policies:
None.
Council Options:
Approve of entering into an IGA with the FBI to participate in the SOHTTF to regionalize high -tech
and internet crime investigations.
Direct the Police Chief not to enter into an IGA with the FBI and SOHTTF to regionalize high-tech
and internet crime investigations.
Potential Motions:
Move approval of the IGA with the FBI to participate in the SOHTTF program.
Attachments:
Cyber Crime Task Force Memorandum of Understanding
Page20f2
r.t. ,
CYBER CRIME TASK FORCE
MEMORANDUM OF UNDERSTANDING
A. PARTIES. This Memorandum of Understanding (MOU) is entered into by the following "Participating Agencies":
1. Federal Bureau of Investigation (FBI) 2.
(allthoriLed pllrs~nt to 21l use 533, 534; 211 C.F.R. ~ O.IIS)
~ ~
~ ~
B. PURPOSE. This MOU delineates the responsibilities and commitments of the
Participating Agencies in the Iprint
city/division] Cyber Crime Task Force (CCTF). The MOU also outlines the mission and
procedures for the CCTF, which are described in greater detail in the Standard Operating
Procedures (SOP) utilized by the CCTF.
C. MISSION. The mission of the CCTF is to investigate and apprehend high technology
criminals and to protect our communities by preventing high technology crime and
national security threats involving computers and computer networks. The CCTF is
established on the premise that the capabilities of law enforcement agencies to investigate
computer and high technology related crimes are enhanced in a task force setting involving
the sharing of resources and expertise. The CCTF will utilize its specialized resources to
investigate, and to prevent when possible, criminal cases and national security threats
when: (I) Computers and high technologies are the target of a crime; (2) Computers and
high technologies are the principal instrumentality of a crime; or, (3) Computers and high
technologies are misused to facilitate violations of other criminal laws or threats to the
national security and a specialized understanding of technology is required for
investigation or prosecution.
D. INVESTIGATIVE EXCLUSIVITY. Matters designated to be handled by the CCTF will
not knowingly be subject to separate and/or independent outside law enforcement efforts
by any of the participating or referring agencies. Each Participating Agency shall make
proper internal notification regarding the CCTF's existence and areas of investigation.
E. PROSECUTIONS. A determination will be made for each CCTF investigation on
whether the matter should be submitted for filing in federal or state court. This
determination shall be based on the evidence obtained and a consideration of which
method of prosecution will result in the greatest benefit to the overall objectives of the
CCTF and the community.
F. DOCUMENTS AND AUTHORITIES INCORPORATED BY REFERENCE. The
Participating Agencies agree to abide by the separate document titled "Cyber Crime Task
Force Standard Operating Procedures." The CCTF SOP, as updated from time to time, is
fully incorporated by reference into this MOU.
Official Law Enforcement Use Only
Standard Cyber Crime Task Force MOU (March 2006)
This document contains neither recommendations nor conclusions afthe FBI. This document is the property of the
FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.
G. ADMINISTRATIVE RESPONSIBILITIES
I. Shared Responsibilities: All participants of the CCTF acknowledge that this is a
joint operation with all Participating Agencies acting for a common goal. Accordingly,
the mission and objectives of the CCTF will be a shared responsibility of the
Participating Agencies.
2. Lead Agencv: The FBI is the lead agency for the CCTF and agrees to overall
management responsibilities for the task force, including but not limited to record
keeping and daily responsibility for personnel work assignments and investigative
matters. .
3. FBI Program Manager: The daily operational control, management, supervision of,
and responsibility for operations of the CCTF, shall be vested in an FBI Program
Manager. The FBI Program Manager shall be a sworn law enforcement officer (an FBI
Special Agent or Supervisory Special Agent) assigned by his/her respective FBI Field
Office to the CCTF. The term of office of the FBI Program Manager generally shall be
a minimum of one (I) year, full-time, to commence upon appointment.
4. Participating Agencv Team Leader: Day-to-day operational matters may be
assigned by the FBI Program Manager to a Team Manager. The Team Manager shall be
from a Participating Agency other than the FBI and shall be selected by the FBI in
consultation with all CCTF Participating Agencies. The Team Manager shall be a
full-time employee assigned to the CCTF. The term of office of the Team Manager
generally shall be a minimum of one (I) year, full-time, to commence upon appointment.
H. PERSONNEL
I. Membership: The CCTF shall consist of a combined body of investigators and
support personnel from the Participating Agencies.
2. No Emplovment bv the CCTF: The CCTF does not directly or indirectly employ
any personnel assigned to it. The CCTF is established for the coordination of applicable
investigations and does not establish employer-employee relationships with the personnel
assigned to the CCTF from the Participating Agencies.
3. Responsibilitv for Conduct: Personnel assigned to the CCTF may not engage in any
activity which, either in appearance or in fact, conflicts with their duties at the CCTF or
reasonably impeaches the independence of their work for the CCTF. In addition to the
requirements set forth in this MOU and the accompanying SOP, each Participating
Agency shall ensure that their employee participants remain subject to and adhere to the
standards of conduct, personnel rules, regulations, laws, and policies applicable to those
of their respective agency.
4. Assignment to the CCTF: Personnel selections for the CCTF are at the discretion of
the FBI and each respective Participating Agency. Personnel will be selected based on
the needs of the CCTF and the Participating Agencies. As a general matter. all
personnel shall work in a full-time capacitv at the CCTF (and at a minimum not less than
Omcial Law Enforcement Use Only
Standard Cyber Crime Task Force MOU (March 2006)
This document contains neither recommendations nor conclusions of the FBI. This document is the property afthe
FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.
3 davs a week) and make a minimum two-vear work commitment to the CCTF due to the
specialized nature of the work and applicable training.
I. INFORMATION MANAGEMENT
I. Records and Reports: All CCTF investigative records will be maintained at the
CCTF location or the local FBI Field Office. Investigative documents will be stored on
the FBI's electronic databases in order to enhance national information sharing among
task forces and other investigators. Classified information shall not be placed in a
non-Federal Participating Agency's files or maintained outside of an accredited CCTF
location unless approved in advance and in writing by an FBI Security Officer.
2. Non-Disclosure Agreement. CCTF information only may be disseminated on a
need-to-know basis and as expressly permitted. No CCTF information may be
disseminated outside of the CCTF without the express permission of the FBI and in
accordance with the applicable laws and internal regulations, procedures, or agreements
between the FBI and other agencies that would permit such agencies, including CCTF
participants' employing agencies, to receive FBI information directly.
3. Media: No member of the CCTF will unilaterally discuss or otherwise reveal
information relating to CCTF investigations, or other FBI related investigations known to
them, to any media representatives. All releases of information to the media on CCTF
matters will be mutually agreed upon and coordinated jointly under the supervision of the
FBI Program Manager or Team Manager.
J. LIABILITY. The FBI makes no representation that the United States will provide legal
representation or indemnification to any law enforcement officer or employee assigned to
the CCTF. Legal representation and indemnification by the United States is determined
by the Department of Justice (DOJ) on a case-by-case basis pursuant to legal standards and
DOJ policy.
K. SALARIES AND FUNDING
1. Salary and Compensation: Salaries, benefits, taxes, and withholdings of CCTF
members will be paid by their respective agencies.
2. Overtime: Overtime may be compensated to CCTF members by their respective agencies in
accordance with their applicable overtime provisions or by the FBI in accordance with a separate Cost
Reimbursement Agreement.
3. Funding: This MOU is not an obligation or commitment of funds, nor a basis for
transfer of funds; this MOU is instead a basic statement of the understanding between the parties of
the tasks and methods required for a successful CCTF. Unless otherwise agreed in writing, each party
shall bear its own costs in relation to this MOU. Expenditures by each party will be subject to its
budgetary processes and to the availability of funds and resources pursuant to applicable laws, regulations,
and policies. The parties expressly acknowledge that the above language in no way implies that Congress
will appropriate funds for such expenditures.
L. DURATION AND MODIFICATION OF THE MOU. The term of this MOU shall be for
the duration of the CCTF's operations, contingent upon approval of necessary funding, but
Official Law Enforcemenl Use Only
Standard Cyber Crime Task Force MOU (March 2006)
This document contains neither recommendations nor conclusions of the FBI. This document is the property of the
FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.
-3-
may be terminated at any time upon the written mutual consent of the agencies involved.
A Participating Agency retains the right to terminate its participation by giving 30 days
written notice of its intent to terminate. Should a Participating Agency terminate its
participation, it must return any equipment to the supplying entity. Similarly, as soon as
practicable consistent with ongoing investigations, remaining agencies will return to a
withdrawing agency any unexpended equipment the withdrawing agency may have
supplied during its CCTF participation. Any modification of this MOU will be effected
with the written mutual consent of the involved parties. This MOU may be signed in
counterparts.
M. NO THIRD PARTY RIGHTS. This MOU is not intended, and should not be construed,
to create any right or benefit, substantive or procedural, enforceable at law or otherwise by
any third party (other than a Participating Agency of this CCTF entering into a similar
MOU with the FBI) against the parties hereto, the United States, or the officers,
employees, agents, or other associated personnel thereof.
N. EFFECTIVE DATE AND ADDITIONAL PARTIES. As among the original parties, this
MOU shall become effective when signed and dated by the FBI and the duly authorized
representative of at least one other agency. The parties anticipate that the FBI will enter
into similar MOUs with other Participating Agencies.
SO AGREED on behalf of the entities/organizations below:
Print Name:
Title (SAC or ASAC):
Organizationffitle: FBI
Date:
Print Name:
Title: Contracting Officer
Organization: FBI
Date:
Print Name:
Title:
Organization:
Date:
Print Name:
Title:
Organization:
Date:
Print Name:
Title:
Organization:
Date:
Print Name:
Title:
Organization:
Date:
Official Law Enforcement Use Only
Standard Cyber Crime Task Force MOU (March 2006)
This document contains neither recummendatiom nur conclusions of/he FBI. This document is the property a/the
FBI and is loaned to your agenc..y; il and its contents are not to be distributed ollt~iide your agency. .
-4-
CITY OF
ASHLAND
Council Communication
Report on Full Faith & Credit Bond Sale Refinancing the Department of
Environmental Quality Loan on the Wastewater Treatment Plant
Meeting Date: October 19, 2010 Primary Staff Contact: Lee Tuneberg
Department: Administrative Services E-Mail: tuneberl@ashland.or.us
Secondary Dept.: None Secondary Contact: None
Approval: Martha Benne Estimated Time: Consent
Question:
Does Council have any questions regarding the results of sale of Full Faith & Credit bonds per
resolution 2010-11 to refinance the Department of Environmental Quality loan originally used to help
pay the costs of the Wastewater Treatment Plant proj ect?
Staff Recommendation:
None. This is a report on the results of the bond sale.
Background:
Th~ City was successful on October 13,2010, in refinancing the Department of Environmental Quality
loan used to help pay for upgrad'es to the Wastewater Treatment Plant and funded, at least in part, by
80% of the Food & Beverage Tax proceeds. The par amount of the issue was $15.44 million,
refunding $16.53 million in existing principal.
The refinancing was authorized by Council via Resolution 2010-11, passed in April, 2010. Staff
pursued an increased rating from Standard & Poor's Rating Agency and received an A+. This is a
good rating for our size, especially in this economy, even though it is equivalent to the City's
underlying rating from years ago, before times got more difficult in the municipal bond market. The
issue did qualify for an S&P rating of AAA since insurance was included in the bid.
The City used the competitive bid process, rather than a negotiated sale, and the market was very good
to us. There were 10 bidders with True Interest Costs for the sale ranging from 2.417925% to
2.713464%. Any of the bids would have yielded savings over the DEQ loan rate of3.43% with an
additional DEQ 0.5% loan fee charge for a total of 3.93%.
The lowest bid of2.4l7925% came from BOAC, Incorporated, of Dallas, Texas, a subsidiary of the
Bank of Oklahoma. This rate will generate approximately $1.34 million in Net Present Value savings
on the total debt and will have an annual reduction of debt service in the $106,000 to $124,990 range.
Depending on the annual changes in total F&B Tax proceeds, this reduction will help the debt service
amount to be fully covered, or nearly covered, by the tax proceeds allocated to the Wastewater Fund.
This should be a discussion item during each budget process until debt retirement in FY 2022.
The bond sale will close on October 25th, 2010. This refinancing with Full Faith & Credit bonds
releases the requirement of holding $875,000 in restricted fund balance for the debt but, in reality, the
Page 1 of2
~~,
CITY OF
ASHLAND
City will still need to have that amount on hand above operational needs to ensure adequate cash flows
for paying this obligation and others of the fund.
Related City Policies:
None
Council Options:
Council may ask questions, request more information or provide direction to staff if desired.
Potential Motions:
No action is required of Council, this is only an update.
Attachments:
Savings Table
Page 2 of2
~~,
Oct 13,2010 2;50 pm Prepared by DBC Finance (Finance 6.015 Ashland:SRF.SRFF,2010FFCF) Page I
SAVINGS
SRF Loan with DEQ
2010 FFe Refunding Obligations F
Present Value
Prior Refunding Annual to 10/25/2010
Date Debt Service Debt Service Savings Savings @ 2.3137516%
10/25/2010 ,274,952,88 ,274,952,88 ,274,952,88 '
11/01/2010 848,349,73 848,349,73 848,024,53
05/01/2011 923,608.53 1,390,888.33 -467,279,80 -461,758,70
06/30/2011 106,117.05
11/01/2011 848,189,78 250,950.00 597,239,78 583,433.55
05/01/2012 918,700.32 1,390,950,00 -472,249,68 ,456,056,80
06/30/2012 124,990,10
11/01/2012 847,353.23 239,550.00 607,803.23 580,249,61
05/01/2013 912,198.31 1,399,550.00 -487,351.69 ,459,937.61
06/30/2013 120,451.54
11/01/2013 847,853,20 222,150,00 625,703,20 583,753.39
05/01/2014 906,195.52 1,407,150.00 ,500,954,48 ,462,023.32
06/30/2014 124,748,72
11/01/2014 847,676,80 204,375,00 643,301.80 586,522,92
05/01/2015 899,985,81 1,419,375,00 ,519,389,19 -468,131.35
06/30/2015 123,912.61
11/01/2015 847,492.74 186,150,00 661,342,74 589,258,69
05/01/2016 894,022.26 1,436.150,00 ,542,127,74 -477,513.47
06/30/2016 119,215.00
11/01/2016 846,872.88 167,400,00 679,472.88 591,644.35
05/01/2017 886.913,19 1,447,400,00 ,560,486,81 -482,456,97
06/30/2017 118,986,07
11/01/2017 847,107,82 141,800,00 705,307,82 600,173,03
05/01/2018 880,034,32 1,466,800,00 ,586,765.68 -493,590,82
06130/2018 118,542,14
11/01/2018 846,904.20 115,300,00 731,604,20 608,391.52
05/01/2019 872,919,62 1,485,300,00 ,612,38038 ,503,422,73
06130/2019 119,223.82
11/01/2019 846,694.42 87,900,00 758,794.42 616,652,18
05/0 I /2020 865,747,22 1,502,900,00 ,637,152,78 ,511,875,47
06/30/2020 121,641.64
11/0 I /2020 846,324.42 59,600,00 786,724,42 624,809,98
05/0 I /2021 857,941.42 1,524,600.00 ,666,658,58 ,523.399,61
06/30/2021 120,065,84
11/01/2021 846,252,13 30,300,00 815,952.13 633,284,99
05/01/2022 850,057,29 1,545,300,00 ,695,242.71 ,533,427,68
06/30/2022 120,709.42
20,560,442.28
19,121,838.33
1,438,603,95
1,438,603.95
1,337,651.34
SavinlZS Summary
PV of savings from cash flow
Less: Prior funds on hand
Plus: Refunding funds on hand
1,337,651.34
,274,953,00
276,895.64
Net PY Savings
1,339,593,98
,
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept:
Approval:
Appeal of AT&T WCF Approval (PA #2009-01244)
October 5,2010 Primary Staff Contact: Bill Molnar
Community Development E-Mail: bill(aJ,ashland.oLus
N/ A Secondary Contact: Derek Severson
Martha Bennet Estimated Time: 2 Y, hours
Question:
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?
Staff Recommendation:
Staff recommends that the Council affirm the Planning Commission's decision to approve the
proposed wireless communication facility installation.
\
Background:
The Application & Decision
At its July 13, 2010 meeting, the Planning Commission approved a request for Site Review,
Conditional Use Permit, and Administrative Variance to the Site Design & Use Standards to allow the
installation of rooftop wireless communication facilities on the existing Ashland Street Cinema
building located at 1644 Ashland Street. The proposed wireless communication facilities take the form
of 12 roof-top antennas which are to be architecturally integrated into the fa~ade on the building, and
an accessory equipment shelter at the rear of the building. Complete details of the application are
included in the application materials, staff report and supplementary memoranda found in the record
which is availabie in its entirety on-line at: hltD://www.ashland.oLus/1644ashland.
Underlying the Commission's consideration of the application was the Federal Telecommunications
Act of 1996 which explicitly preempts cities from using the health or environmental impacts of
electronic emissions as a criterion in the siting of wireless facilities as long as those facilities will be
installed and maintained according to Federal Communications Commission regulations. Ashland's
ordinances were specifically crafted in response to the Telecommunications Act to establish standards
that regulate the placement, appearance and impact of wireless communication facilities, while
providing residents with the ability to access and adequately utilize the services that these facilities
support. A significant point of the Commission's discussion centered upon an issue raised by
opponents who noted that there are a number of neighboring businesses focused on holistic wellness in
the vicinity, and that, because many of their clientele have concerns over such an installation, the
proposal could have significant negative economic impacts on these surrounding businesses. In
reaching a decision, the Planning Commission ultimately determined that the economic impacts could
not be considered separately from the under! ying concerns over health and environmental impacts and
thus could not be a basis for denial under the Federal Telecommunications Act or Ashland's approval
standards for wireless communication facilities.
Page 1 of14
r.l'
CITY OF
ASHLAND
The Appeal
An appeal request was timely received on July 28, 2010 from Christian E. Hearn, attorney for the
appellant Roderick 1. Newton. The grounds identified in the appeal were:
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. lull '(The requested
Administrative Variance is a variance to the requirement for a landscape buffer for
the ground mounted WCF equipment structure.)
The Appeal on the Record will be limited to the four grounds for appeal which have been clearly and
distinctly identified in the appeal request.
NOTE: The appellant has also proposed to incorporate several other unspecified additional issues
detailed in 28 pages of the nine sub-exhibits provided. This is not a sufficiently "clear and distinct
identification" of the grounds for which the decision should be reversed or modified based on
identified applicable criteria or procedural irregularity as required in the code, and as such additional
issues from the sub-exhibits have not been included as identified grounds for appeal. Consideration of
the appeal should be limited to those four items which have been clearly and distinctly identified.
Considering the Grounds for 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;
The appeal notice asserts that the applicants failed to meet their burden of proof in addressing the
Conditional Use Permit criteria, and that the decision was not based on substantive evidence within the
record. The appeal specifically indicates the application failed to meet the Conditional Use Permit
criteria pertaining to adverse material effects on livability within the impact area when compared to the
development of the subject lot with the target use of the zone. These criteria were addressed beginning
on page 20 of30 in the findings for the decision, where the Planning Commission found that:
Under the Ashland Municipal Code a Wireless Communications Facility is a conditional use;
the existing development of the Ashland Shopping Center, some of which was accomplished
before current regulations is primarily developed with permitted uses (e.g. the existing theater
is a permitted use. AMC 18.32.020 D.). Only the addition of the WCF is currently before the
Commission. This criterion [AMC 18.104 C] requires the proposed conditional use to have no
greater adverse material effect on the livability of the impact area than [as compared to]
development of the subject property with the target use of the zone. The impact area is
considered to be the adjacent properties and the notice area. [See description under III above].
The target use of the zone is commercial. Specifically, in C-I target use is defined in AMC
18.104.020.8.4 as:
Page 2 of 14
~~,
CITY OF
ASHLAND
B. "Target Use" - The basic permitted use in the zone,. as defined below.
***
4. C-L The general retail commercial uses listed in 18.32.020 B., developed at an
intensity of .35 gross floor to area ratio, complying with all ordinance requirements.
AMC 18.32.020 B. provides:
18.32.020 Permitted Uses
The following uses and their accessory uses are permitted outright:
***
B. Stores, shops and offices supplying commodities or performing services, such as
a department store, antique shop, artists supply store, and including a regional shopping
center or element of such center, such as a major department store.
Note: Impacts of other permitted uses such as nightclubs and bars, AMC 18.32.020 K.,
mortuaries and crematoriums, AMC 18.32.020 F. are not used for the comparison. The
livability criterion is simply a comparison of the impacts of the proposed use (wireless
communications facility) relative to the impacts of the target use (retail commercial sales and
services).
The Commission, consistent with prior City Council decisions, expressly finds and determines
that this criterion is not a "no adverse impact" standard. That is, contrary to assertions by
opponents, the standard is not a standard requiring the reduction, minimization or mitigation of
all adverse impacts on adjacent properties. Compare, the above target use comparison standard
of "no greater adverse material effect on the livability of the impact area" to the standard for an
administrative variance, i.e. "Approval of the variance will not substantially negatively impact
adjacent properties." The Commission expressly rejects assertions of a no adverse impact
standard. The target use of the zone will [and does] have adverse impacts on livability to
properties in the impact area, including architectural compatibility, noise, odor, light, glare,
obstruction of views, dust, traffic, and other impacts typically associated with commercial use;
the conditional use, which is also commercial and consists of a WCF installation [12
architecturally-integrated panel antennas] may have no greater adverse material effect than the
target use.
Accordingly, AMC 18.l04.C. is a comparison standard. The proposed use is the addition of
12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a
penthouse element over the entry. The penthouse element raises the height ofthe roof peak at
its highest point by approximately ten feet while complying with the forty-foot height
requirements of the C-l Zoning District. A small enclosure in the rear of the theater on the
alley will house WCF equipment. Placement of architecturally integrated wireless
communications facilities on the existing building and construction of an associated ground
mounted accessory equipment structure at the rear of the building will have little or no adverse
Page 3 of 14
r.l'
CITY OF
ASHLAND
material effect on factors oflivability as discussed below. Accordingly, the Commission finds
and determines that the proposed conditional use will have no greater adverse material effect
on the livability of the impact area than would development to the target commercial use of the
zone. This criterion is met. Factors of livability are enumerated and compliance with the
criterion is analyzed below:
1. Scale, Bulk, and Coverage.
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ashland Street Cinema structure in a penthouse element over the entry. The penthouse element
raises the height of the roof peak at its highest point by approximately ten feet while complying
with the forty-foot height requirements of the C-1. A small enclosure in the rear ofthe theater
on the alley will house WCF equipment. The proposed architectural element is in compliance
with setbacks and the maximum height permitted in the C-I Zone. In terms of the target use,
the proposed height, bulk, scale and coverage of the improvement is no greater than would be
allowed for the target commercial retail use of the zone. Any obstruction of views is the same
whether or not antennas are contained within the architectural feature. The proposal, as
modified by Condition 13, is appropriate for the target use and is architecturally compatible
with the bulk, scale, coverage and general commercial development patterns generally found in
the target use. The findings of compliance under General Provision J.b. and J.d. above are
incorporated herein by this reference. Opponents argue the project (which increases the height
of the existing building) is not similar in bulk and scale and must be denied. However, the
criterion is not "the project must be similar in bulk and scale" the criterion involves a
comparison of the bulk and scale of the proposed use in relation with the target use of the zone.
The target use, also commercial, allows buildings 40 feet in height in accordance with the same
setbacks as proposed here. Accordingly the proposed use and' the target use have equal
impacts on the impact area. The Planning Commission finds and determines that this criterion
is met; the proposed use will have no greater adverse material effect on the livability of the
impact area than the development of the subject property with the target use of the zone.
2. Generation of Traffic and Effects on Surrounding Streets
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ash/and Street Cinema structure in a penthouse element over the entry. A small enclosure in
the rear of the theater on the alley will house WCF equipment. The WCF use does not require
daily traffic trips by employees or customers and therefore will have negligible traffic impact
on the surrounding transportation system as compared to the target commercial retail use of
the zone. The Planning Commission finds that wireless communications facilities and their
associated accessory equipment will have essentially no traffic impact, including no associated
parking demand, and no parking spaces are lost with the proposed installation. A condition
has been added to require that adequate fire apparatus access be maintained in a manner
consistent with city alley standards, and with condition 10, the Commission finds that the
proposed installation will have no associated traffic impacts to surrounding streets. The
Planning Commission finds and determines that this criterion is met; the proposed use will
have no greater adverse material effect on the livability of the impact area than the
development of the subject property with the target use of the zone.
3. Architectural compatibility with the impact area.
Page 4 of 14
~~,
CITY OF
ASHLAND
The findings set forth under Bulk, Scale, and Coverage above are incorporated herein by this
reference as they relate to architectural compatibility. The Planning Commission finds and
determines that this criterion is met; the proposed use will have no greater adverse material
effect on the livability of the impact area than the development of the subject property with the
target use of the zone.
4. Air quality, including the generation of dust, odors, or other environmental pollution.
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in
the rear of the theater on the alley will house WCF equipment. The proposed use will have
virtually no generation of dust, odors or impact on air quality but certainly will have less
environmental impact than the target commercial retail use of the zone (e.g. compare proposed
use with impacts from parking lot traffic, air quality and odors from delivery vehicles,
customer vehicles and employee traffic typically generated in commercial retail uses). The
Planning Commission finds and determines that this criterion is met; the proposed use will
have no greater adverse material effect on the livability of the impact area than the
development of the subject property with the target use of the zone.
Finally, to the extent radio frequency emissions are considered by numerous opponents as
"other envirorunental pollution" to be considered in the impact on livability comparison to the
impacts from the target use of the zone, the Planning Commission expressly rejects
consideration ofRF emissions as part of this decision. The Planning Commission finds that the
Telecommunications Act of 1996 expressly preempts local government regulation of the
placement, construction, and modification of personal wireless service facilities on the basis of
alleged environmental effects of radio frequency emissions. The City may only ensure that
such facilities comply with the FCC's regulations concerning such emissions [47 U.s.c.
9332(c)(7)(B)(iv)]. Accordingly, the Commission has imposed a condition that the applicants
demonstrate compliance with FCC regulations at the time a building permit application is
submitted, as required in AMC 18.72.180.C.La. The Planning Commission will not, as urged
by some opponents, knowingly disregard limitations on local government authority contained
in the Telecommunications Act of 1996.
5. Generation of noise, light, and glare.
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in
the rear of the theater on the alley will house WCF equipment. The proposed use is
architecturally compatible with the existing building and condition 5 requires that the
proposed penthouse element and accessory equipment structure be painted and textured in a
non-reflective finish .and color. The proposed use will have virtually no generation of noise,
light or glare and certainly will have less than the target commercial retail use of the zone (e.g.
compare proposed use with impacts from parking lot lights, headlights and noise from delivery
vehicles, customer vehicles and employee traffic typically generated in commercial retail uses).
The Planning Commission finds and determines that this criterion is met; the proposed use will
have no greater adverse material effect on the livability of the impact area than the
development of the subject property with the target use of the zone.
Page 5 ofl4
.r~'
CITY OF
ASHLAND
6. The development of adjacent properties as envisioned in the Comprehensive Plan.
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in
the rear of the theater on the alley will house WCF equipment. The proposed use will have
virtually no impact on the commercial development of adjacent properties as envisioned in the
Comprehensive Plan. The proposed use does not physically preclude or obstruct future
development of permitted uses in the C-I zoning district which fully implement the
comprehensive plan. See list ofpermilted uses in AMC 18.32.020. The proposed use would
appear to have much less impact on development of adjacent properties (less access and traffic
generation conflicts), than development of the target use. (e.g. compare proposed use with
impacts typically generated in commercial retail uses). To the extent opponents allege the
impacts of the proposed use adversely impact the existing holistic wellness uses in the impact
area, the findings under 7 below (other factors) are incorporated herein by this reference. The
Commission finds this conditional use will have no greater adverse affect on the livability of
the impact area in terms of development of the adjacent properties than would .cull development
of the site to its target commercial use.
7. Other factors found to be relevant by the Hearing Authority for review of the
proposed use.
The proposed use is the addition of 12 architecturally integrated panel antennas into the
Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in
the rear of the theater on the alley will house WCF equipment. Opponents urge adverse
economic impact to adjacent properties as a factor under this approval criterion. The argument
is that the proposed WCF use will have greater adverse material effect on the livability
(economic losses to existing businesses in the impact area) when compared to the development
of the subject lot with the target C~ I use of the zone. An example of this kind of adverse
economic impact would be a conditional use which competed with impact area uses to a greater
extent than target C-I uses would compete with impact area uses. However, as noted earlier,
the standard is not - no adverse impact (~conomic or otherwise) on adjacent properties.
The Commission recognizes that there is a specific cluster of existing land uses in place in the
impact area which relate to holistic wellness. The Commission further finds that a significant, .
if not overwhelming, amount of the testimony provided by patrons, owners and employees of
these businesses expressed opposition to the proposed conditional use based on perceived
health impacts and environmental effects of radio frequency (RF) emissions from wireless
communications facilities. The patrons, owners and employees also expressed opposition to
the proposed use because the natural consequence of the health and environmental concerns
expressed over RF emissions is a loss of patronage of the holistic wellness businesses. The
Commission considered the arguments by Opponents and finds and determines that the concern
over economic impacts on the adjacent businesses is, in fact, inseparable from the concerns
expressed over the health and environmental effects of Radio Frequency emissions. Stated
another way, the adverse economic impact argument does not exist separate and apart from the
prohibited consideration of impacts of RF emissions. As such, the argument cannot be
considered due to the limitations imposed under the Federal Telecommunications Act of 1996~
(discussed above) and the Commission is compelled to decline to consider the economic
impact argument under this criterion.
Page 6 of 14
~~,
CITY OF
ASHLAND
In sum, the Planning Commission expressly finds and determines that the proposed WCF use
will not have any greater adverse material effect on the livability of the impact area than the
development ofthe property with the target commercial use of the zone. Based on the detailed
findings set forth herein, the detailed findings of the Applicant, the findings and responses in
the Staff reports specifically incorporated herein by this reference, as well as by competent
substantial evidence in the whole record, the Planning Commission finds and determines that
this criterion is met, or can be met with the imposition of conditions.
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;
The appeal notice argues that the applicants did not submit the required collocation study with their
application, that subsequent materials provided failed to meet the burden of proof and that the
Commission's findings to the contrary were not based on substantial evidence within the record. In
addition, the appellants request that the Council exercise its authority to interpret the Ashland
Municipal Code and do so to determine that the collocation standards in AMC 18.n.180.C are
mandatory requirements.
Beginning on page 13 of 30 in the findings for the decision, the Planning Commission found:
The WCF Design Standards found in AMC 18.n.180c.2 delineate preferred designs, noting
that the collocation of new facilities on existing facilities is the preferred option and when
collocation is not feasible, that the WCF shall be attached and architecturally integrated into
pre-existing structures when feasible. Alternative designs are the next preferred option, and
within the C- I zoning district, installations utilizing freestanding support structures are
expressly prohibited. To date, all WCF installations within the City of Ashland have been
collocated and/or architecturally integrated into existing buildings.
The Planning Commission finds and determines that the design standards in AMC
18. n.180c.2. are not written in absolute mandatory terms as has been suggested by opponents.
(e.g. comments by Aaron Brian: "If collocation is feasible, collocation is required.").. Contrast
this statement with the actual language of the Code which indicates that "[w]here possible, use
of existing WCF sites for new installations shall be encouraged. Collocation of new facilities
on existing facilities shall be the preferred option." As was noted by staff, these regulations
were written in the context of and following the adoption of Section 704 of the
Telecommunications Act of I 996. The Telecommunications Act mandates that the local
regulation of personal wireless service facilities "shall not prohibit or have the effect of
prohibiting the provision" of such services. 47 U.S.C. 332 (c)(7} Given this context, it appears
that the above referenced City of Ashland code provisions were not written in terms of rigorous
mandatory approval criterion but rather were drafted to include wording more akin to
aspirational comprehensive planning standards. The use of the word "encourage" in this
section of the design standards also indicates a weak directive and is more akin to a required
consideration. Similarly, language referring to the "preferred option" is not mandatory or
compelling. Finally, the words in the following paragraph, 2.(b), "[i]f(a) above is not feasible,"
do not operate to revise the language of paragraph (a) to be any more rigorous a standard. The
City Council as the legislative body could have written the above referenced design standards to
Page 7 of 14
~.i'
CITY OF
ASHLAND
reflect a more rigorous collocation requirement, such as the following:
The use of existing WCF sites for new installations shall be required. except where it
can be demonstrated with substantial competent evidence that such collocation will
prohibit or have the effect of prohibiting telecommunications service, in which case
WCF facilities shall then be permitted to be attached to pre-existing structures in the
service area.
The Planning Commission will not re-write the code through an interpretation to create such a
rigorous standard where none has been created by the legislative body. The Planning
Commission expressly rejects the proffered "only when collocation is impossible"
interpretation of the design standard.
The applicants were required as part of the submittal requirements to provide a "collocation
feasibility study that adequately indicates collocation efforts were made and states the reasons
collocation can or cannot occur," [AMC 18.72.180.8.6]. This submittal requirement is not an
approval criterion but an application requirement to assist the Commission in ascertaining
whether the required consideration of collocation has been undertaken. This initial submittal
by the applicant discussed possible collocation and drew considerable criticism. Staff,
members of the Commission, and members of the opposition pointed to the original submittal
as evidence that collocation was in fact feasible. The original staff report noted:
The application notes that the nearest AT&T wireless facility is in place on the Ashland
Springs Hotel in downtown Ashland, roughly 2.2 miles from the subject property. The
materials provided note that to serve the subject area, the antenna system would need to
be less than a mile from the center of the applicants identified search ring, and the
Cinema location is approximately one-half mile from the center of that ring. The
applicants note as well that the Holiday Inn Express location was considered, and the
applicants indicate that while collocation might be possible at this facility given its
similar proximity to the center of their search ring, they believe that topography and the
length of the needed coaxial cable runs at the Holiday Inn Express are such that the
projected signal strength from the Cinema site would be stronger resulting in a larger
service area and more coverage. (emphasis added)
Planning Commission members specifically requested more information on collocation at the
Holiday Inn Facility during the May 11, 2010 hearing. The May 19, 2010 submittal by the
applicant analyzed alternative sites and also identified significant impediments to use of the
Holiday Inn site, but included a statement that "The co location on the Holiday Inn Express
could work-purely from an RF perspective." The June 15,2010 submittal by the Applicant
provided even more detailed information regarding the feasibility of collocation at the Holiday
Inn site, including specifically the adequacy of Radio Frequency limitations on service. The
Planning Commission considers all the evidence in the record for and against an application
not just the initial submittal by the applicant The June 15, 2010 submittal by the applicant
includes the following:
B. Radio signal limitations - see attached letter from AT&T RF manager Ken Seymour
(EXHIBIT B) showing comparison between the proposed Cinema site and the Holiday
Page 8 of 14
~.l'
CITY OF
ASHLAND
Inn site. This RF evaluation specifically states that the Holiday Inn site is deficient
because it does not meet a required coverage goal of providing building coverage to
properties at SOU campus. In addition the Holiday Inn site would not have a direct line
of site to AT &Ts existing site at Hotel Ashland (MD 18) and would not offload calls as
required, and further the effective height of the Cinema site is 13 feet + more providing
higher signal coverage. Thus the Holiday Inn site is not feasible from a signal
perspective.
The Planning Commission finds and determines that preferred option of collocation of the
WCF faciiity has been adequately considered by the applicant and that such collocation has
been found not to be feasible for this provider at the Holiday Inn site. Similarly, the
Commission finds and determines that the possibility of collocation on facilities owned by
Southern Oregon University and used to broadcast Jefferson Public Radio has been adequately
explored and ruled out by the applicants. The application materials note that collocation on
existing wireless communication facilities on the University campus would be outside of their
search ring, would not provide adequate signal coverage, and could severely interfere with the
signal from the AT&T facilities on the Ashland Springs Hotel site. The application also notes
that the transmission tower near the north Ashland interchange is nearly four miles north,
outside of the search area, and not a viable collocation candidate site due to its distance from
the search ring.
The Commission further finds that, to facilitate future compliance with the above standard,
AMC 18. n.180.B. 7 [submittal requirements] required the applicants to provide "A copy of the
lease agreement for the proposed site showing that the agreement does not preclude
collocation." The Commission finds that in review of the lease provided, item #8b on page 6
indicates:
Landlord will not grant, after the date of this Agreement, a lease, license or any other
right to any third party for the use of the Property, if such use may in any way adversely
affect or interfere with the Communication Facility, the operations of Tenant or the
rights of Tenant under this Agreement. Landlord will notifY tenant in writing prior to
granting any third party the right to install and operate communications equipment on
the Property.
The Planning Commission finds that this language is overly broad and could be applied in a
manner that would preclude collocation. Accordingly, a condition has been attached to this
conditional use approval to require that a revised lease, amendment to the lease, or other
similar signed/executed legal instrument which modifies #8b to more narrowly define
conflicting uses in terms of signal interference and clearly demonstrate that collocation is not
precluded by the lease agreement.
Based on all the evidence provided by AT&T, including specifically the June 15, 2010
submission, weighed against all other evidence in the whole record, the Planning Commission
finds and determines that preferred option of collocation of the WCF facility has been
adequately considered by the applicant and that such collocation has been found not to be
feasible for this provider at the Holiday Inn site as well as at other sites referred to in the record
given the service needs of the applicant. Specifically, in addition to impediments such as
Page 9 of 14
r~'
CITY OF
ASHLAND
topographic differences length of the needed coaxial cable runs, safe space and access for on-
site placement of the equipment cabinet, the record reflects that the Holiday Inn Express site
and other sites fail to meet a number of AT&T service objectives such as providing in-building
coverage to the Southern Oregon University campus and a direct line-of-sight to their Mt.
8aldy/MDI8 facility, and as such, the Holiday Inn Site and other sites could not provide
contiguous coverage and adequately off load calls. The Planning Commission finds and
determines that compliance with this development standard is feasible and is met with the
imposition of Condition 1 and 9 below.
These findings indicate that the decision was based on the submittals of the applicant, including
specifically those provided with the June 15,2010 submittal and competent substantial evidence in the
who'le record, and detail the reasoning which lead to the decision.
Ground #2 also included a reference to standards in AMC 18.04.04 based on reasons explained in sub-
exhibit #1, page 1; AMC 18.04.04 does not exist in the Land Use Ordinance and is not addressed in the
sub-exhibit, which speaks to general provisions in the Municipal Code (AMC 1.04.040) and the Land
Use Ordinance (AMC 18.04.020). The Commission responded to the issue of relying on general
provisions as approval criteria in their findings (page 8 of 30) as follows:
The Planning Commission finds and determines that the recitations in AMC 18.72.l80.A.
[Purpose and Intent] are not approval criteria or design standards for siting Wireless
Communication Facilities. Similarly, the general land use code purpose statements found in
AMC 18.04.020 (e.g. "". promote public health, safety and general welfare") are not approval
criterion for this application. Purpose statements rarely, if ever, represent approval criteria -
generally a specific incorporation is required. Similarly, the application requirements listed in
AMC 18.72.180.8. [Submittals] are not performance standards or approval criteria for siting of
a Wireless Communications Facility.
3) Failure to Provide a Lease with Application; and
The applicants did not initially provide a lease, however a lease was provided while the record
remained open and was reviewed by the Planning Commission in reaching their decision. In reviewing
the lease documents provided, the Planning Commission found (beginning on page 15 of the decision),
"that, to facilitate future compliance with the above standard, AMC 18.72.180.8.7 [submittal
requirements] required the applicants to provide "A copy of the lease agreement for the proposed site
showing that the agreement does not preclude collocation." The Commission finds that in review of
the lease provided, item #8b on page 6 indicates:
Landlord will not grant, after the date of this Agreement, a lease, license or any other right to
any third party for the use of the Property, if such use may in any way adversely affect or
interfere with the Communication Facility, the operations of Tenant or the rights of Tenant
under this Agreement. Landlord will notifY tenant in writing prior to granting any third party
the right to install and operate communications equipment on the Property.
The Planning Commission finds that this language is overly broad and could be applied in a manner
that would preclude collocation. Accordingly, a condition [see Condition #9 of the decision] has been
attached to this conditional use approval to require that a revised lease, amendment to the lease, or
Page 10 of 14
r~'
CITY OF
ASHLAND
other similar signed/executed legal instrument which modifies #8b to more narrowly define conflicting
uses in terms of signal interference and clearly demonstrate that collocation is not precluded by the
lease agreement."
The lease itself was not relegated to a mere condition of approval as suggested by the appellants. A
lease was provided by the applicants, reviewed by the Planning Commission in reaching their decision,
and a condition requiring that one item in the provided lease be modified to address applicable
standards (as provided in AMC 18.112.085 which empowers the Planning Commission, when acting as
the hearing authority, to "impose conditions of approval on any planning action to modify that
planning action to comply with the criteria of approval or to comply with other applicable City
ordinances. ")
4) Failure to meet criteria for Administrative Variance.
The appellant suggests that the findings provided on pages 27-28 of the decision were not based upon
substantial evidence \Xithin the record. The Planning Commission's findings were as follows:
The Planning Commission finds and determines that the above referenced approval criterion
for an Administrative Variance to Site Design and Use Standards, specifically for landscaping
required in AMC 18.72.180C.3. are met in that the proposed use causes demonstrable difficulty
in meeting the requirement, the variance will not substantially negatively impact adjacent
properties, the variance is consistent with the purposes of the Chapter and the variance is the
minimum variance necessary to alleviate the demonstrable difficulty. The above finding is
based on the detailed findings set forth herein, the detailed findings and responses in the Staff
reports and those findings and responses in support provided by the Applicant, specifically
incorporated herein by this reference, as well as by competent substantial evidence in the whole
record.
The Planning Commission finds and determines that there is demonstrable difficulty in meeting
the Site Design and Use Standards landscaping requirements due to the unique and unusual
aspect of the proposed use of the site. The proposed use requires ground mounted WCF
equipment to support the WCF use which under AMC 18.72.180 C.3 above must be
landscaped. The Commission finds that there is demonstrable difficulty in placement of such
required ground mounted WCF facilities and landscaping on a site [without] adequate area for
additional landscape buffering. The proposed use on the south side of the Ashland Street
Cinema building off of a driveway that functions as an alley service corridor rather than as a
primary circulation route for shopping center users is the area most suited for the essential
ground placement of the equipment There are similar structures already in place along this
corridor, no parking spaces are lost with the proposed placement, and the location is better
situated to mitigate any visual impacts to residents of the adjacent nonconforming Pines Trailer
Park. (see below). The Commission further finds that the placement off of this alley precludes
landscape buffering for the proposed accessory equipment structure because the required ten-
foot width landscaping buffer would extend into the required clear width of the alley, impeding
vehicular circulation, fire access and service corridor access for loading, unloading.. The
Commission finds and determines that there is demonstrable difficulty in meeting the
landscaping requirement due to the proposed use. This criterion is met.
Page 11 of 14
r~'
CITY OF
ASHLAND
The Commission finds and determines that approval of the variance will not substantially
negatively impact adjacent properties. The findings in the paragraph above, as well as General
Provisions I b, are incorporated herein by this reference. The proposed structure mimics
similar storage structures already in place on the south side of the building while maintaining
the functionality of alley access, and that approval of the requested Administrative Variance
would not substantially negatively impact adjacent properties due to the existing substantial
landscaping in the form of large mature trees and shrubs located on the sloped area
immediately south of the alley, which already effectively buffer views of the backside of the
Ashland Street Cinema building. The Commission further finds that the view from the public
right-of-way appears to be entirely screened by the existing buildings and landscaping in place
to the south of the alley, and while the proposed accessory structure would potentially be
visible from the residential units in the adjacent Pines Trailer Court, the spatial buffer provided,
fencing in place between the properties, and design, color, materials and placement to match
the existing storage structures all effectively mitigate visual impacts and amount to
architectural integration of the accessory equipment structure into the existing building in a
manner in keeping with the purpose and intent of the standards. This criterion is met
The purposes of the Site Design and Use Chapter include reducing adverse effects on
surrounding property owners and the general public, creation of a safe and comfortable
business environment, energy conservation, enhancement of the environment for walking,
cycling, and mass transit use, and ensuring high quality development throughout the City. [See
AMC 18.72.010]. This criterion is met based on the specific findings of compliance with
conditional use criteria set forth above, as well as the design standards and general standards
set forth above and incorporated herein by this reference.
Finally, the requested variance is the minimum necessary to alleviate the hardship. The
landscaping is unnecessary in this location and the applicant has requested no more relief than
is necessary to effectuate construction of the proposed use. The above finding is based on the
detailed findings set forth herein, the detailed findings and responses in the Staff reports and
those findings and responses in support provided by the Applicant, specifically incorporated
herein by this reference, as well as by competent substantial evidence in the whole record.
These findings indicate that the decision was based on the submittals of the applicant, materials
provided by staff, and competent substantial evidence in the whole record, and detail the reasoning
resulting in the decision.
The Procedural Handling of an "Appeal on the Record"
Prior to 2008, appeals were processed through a de novo action, meaning that when considering an
appeal the Council could conduct a new hearing and review new information that was not previously
included in the record on which the Planning Commission based their decision. The current appeal is
the first under new procedures adopted by the Council in 2008 which require that appeals to Council
be handled as "An Appeal on the Record." An "Appeal on the Record" is an appeal of a land use
Page 12 of 14
r~'
CITY OF
ASHLAND
decision where the City Council must consider the same facts and information ("the record") that the
Planning Commission saw. The City Council may not consider new facts or information.
Once the Planning Commission makes a decision on a land use matter, a person ("the appellant") can
appeal that decision to the City Council. The appellant must identify, in writing, specific areas where
they think the Planning Commission made a mistake. The mistake has to be an error in interpretation
of a fact, an interpretation of a rule or regulation, or in procedure. The City Council reviews only those
specific issues raised as "errors."
In considering "An Appeal on the Record" the Council must decide: I) Whether there is substantial
evidence to support the decision of the Planning Commission; and 2) If the Planning Commission
committed an error. In the course of the appeal, 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 is to be limited to those issues clearly and distinctly set forth in the notice of appeal, and 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.
At the City Council meeting, the only people who will be allowed to talk directly to the Council will be
the City staff, the applicant, people who have filed the written appeal, and participants who provided
ora] or written testimony during the original Planning Commission hearing and who submit written
arguments at least ten days in advance of the City Council meeting. (The appellant will be allowed ten
minutes and the applicant will be allowed ten minutes.) Participants who have filed written arguments
will be allowed three minutes to summarize their argument for the City CounciL No one can introduce
new information or facts.
Ultimately, the Council may:
. . Affirm the decision ofthe Planning Commission and reject the appeal or
. Reverse the decision of the Planning Commission and support the written appeal or
. Modify the decision ofthe Planning Commission or
. Send the decision back to the Planning Commission with instructions for further proceedings.
Subsequent actions by the Planning Commission are to be the final decision of the City, subject
'to appeal by the Council pursuant to ]8.]08.070.B.5. However, the Council should be aware
that under the "]20-Day Rule" a final decision of the City is required no later than October 29,
20]0.
Related City Policies:
Not applicable.
Council Options:
L Affirm the decision of the Planning Commission and reject the appeal.
2. Reverse the decision of the Planning Commission and support the written appeal.
3. Modify the decision of the Planning Commission.
Page 13 of 14
~~,
CITY OF
ASHLAND
4. Send the decision back to the Planning Commission with instructions for further proceedings.
Subsequent actions by the Planning Commission will be the final decision of the City.
Potential Motions:
I. Move to affirm the decision of the Planning Commission, reject the appeal and direct staff to
prepare findings for adoption by CounciL
2. Move to reverse the decision of the Planning Commission and support the written appeal, and
direct staff to prepare findings for adoption by CounciL
3. Move to modify the decision of the Planning Commission and direct staff to prepare findings
for adoption by CounciL
4. Move to send the decision back to the Planning Commission with the following instructions for
further proceedings, with the understanding that subsequent actions by the Planning
Commission will be the final decision of the City (include specific instructions relating to
further proceedings).
Attachments:
Procedural memorandum from the city's outside counsel Chris Crean
Adopted findings for the July 13, 2010 decision of the Planning Commission
Notice of Appeal submitted by Roderick J. Newton
Argument Submittals from appellant Newton
Argument Submittals from applicant's counsel
The full record of Planning Action #2009-01244 is available on-line at:
http;/ /www.ashland.or.us/l644ashland .)
Page 14 of 14
r.l 1
~~&~~j ~H~;~~d LLP
MEMORANDUM
TO: Honorable Mayor and City Council of Ashland
FROM: Pamela J. Beery & Christopher D. Crean
Beery Elsner & Hammond, LLP
Special Legal Counsel
SUBJECT: Appeal from Planning Action 2009-01244;
Procedures for AppealHearing before the Ashland City Council
DATE: September 29,2010
******Collfidelltial Attomey-Cliellt Privileged COllllllll1licatioll ******
Backeround
On July 13, 2010, the City of Ashland Planning Commission approved an application from
AT&T Wireless, LLC, to site a telecommunication facility. Notice of the decision was mailed
on July 16, 2010. On July 28, 201 0, the decision was appealed by Rodney Newton. Pursuant to
AshlandMunicipal Code section 18.108.110, an appeal from the Planning Commission is heard
by the Ashland City CounciL
You requested a memorandum that identifies the procedural issues the Council is likely to face at
the hearing. Below is a description of these issues and a recommendation for resolving each.
These are only the issues we think reasonably likely to arise and others may occur at the hearing.
We will be available at the hearing to address those as they arise.
The hearing is governed by the applicable provisions of the Ashland City Charter, the City
Council Rules adopted under Article vm, section 3, of the Charter, the Ashland Municipal Code
("AMC") chapter 18, related state statutes, and judicial decisions that prescribe the conduct of a
quasi-judicial hearing before a local government. The procedures and recommendations
described below are based on these laws.
Record and Testimonv
Record
In reviewing the Planning Commission's decision, AMC 18.108.110.3 requires the Council to
limit its review to the evidentiary record that was before the Commission when it made the
decision. The Council may reopen the record only upon request and only if the City
t 503.226.7191
f 503.226.2348
e Info@gov-low.com
1750 SW Harbar Way Suite 380
Portland OR 97201-5106
www.gov-Icw.com
n"'YT
ll.LJ.J...J..
September 29,2010
Page 2
Administrator finds that the Planning Commission committed procedural error that prejudiced a
substantial right of the requesting party, that the Commission committed factual error with
respect to an approval criterion, or that new evidence is available that was not available during
the development of the record before the Commission. AMC 18.108.110.A.3.
Because the Council hearing is on the record, the Council may not accept new evidence into the
record. This includes written materials, displays, models, etc. In the event someone submits
new evidence, it must be retained by the City Recorder as a public record but may not be placed
in the record for the application and may not be considered or relied upon by the Council when
making a decision on the appeal.
Under AMC 18.108.1l0.C, written arguments must be submitted to the City not less than ten
(10) days prior to the hearing. In this case, that date was Monday, September 27, 2010.1
However, for reasons that are not entirely clear, the applicant's representative did not receive a
copy of the appeal notice until Friday, September 24, 2010, that day before the deadline. As a
result, the applicant was not able to submit written argument until Wednesday, September 29,
2010.
Because the applicant's written argument was not submitted 10 days prior to the Council
hearing, the City may reject the applicant's written argument as untimely filed and exclude it
from the record under AMC 18.1 08.11 O.C. However, in light of the applicant's substantial
interest in the proceedings and the fact that the applicant did not receive notice of the appeal until
very late, we believe it would result in fundamental unfairness to exclude the written argument.
Oregon courts have reasoned that when the failure to comply with a city ordinance is a mere
technical violation in which the substantive rights of the other parties are not prejudiced, the City
may forego strict compliance with the ordinance in order to achieve an equitable result and
ensure the parties' due process rights. 2
Accordingly, we recommend including in the record before the City Council the written
argument dated September 29, 2010, that was submitted 011 behalf of the applicant.
Testimonv
A person who participated in the proceedings before the Planning Commission may testify
before the City Council, but only if the person submitted written arguments to the City more than
ten (10) days before the hearing. AMC 18.108.1l0.C. The written arguments and testimony at
the hearing may address only the issues identified in the Notice of Appeal.
I The Appeal Notice listed Saturday, September 25, 2010 as the deadline. Under ORS 174.120, when a deadline
falls on a Saturday, Sunday or boliday, the deadline is extended to the following business day.
2 Fasano 1'. Washington COl/nty Camm. 264 Or 574 (1973).
Legal Memorandum Re Appeal Hearing Procedures (P A 2009-0 t244)
TIT"" TT
.1.J .J...J ..L ..L
September 29, 201 0
Page 3
Pursuant to AMC 18.108.110.C, the applicant and appellant EACH may testify for a total often
minutes. Other parties are limited to three (3) minutes. However, the Mayor, under the authority
granted to the presiding officer in the Charter and Council Rules, may extend these limits. See
Charter Art. VIII, Section 7; Council Rules, Section 2.04.040. A decision to extend the time
limits for testimony should be based on such things as the complexity of the issue, the size of the
record or the Council's need to understand the issue. If the Mayor elects to extend the time
liillits, the applicant and appellant should be allowed substantially equal time. The applicant and
appellant each may divide the time available to it between opening argument and rebuttal. New
issues may not be raised in rebuttal. If the applicant or appellant raises a new issue in rebuttal,
the other must be allowed to respond to that issue, In all cases, the applicant and appellant each
must be allowed a reasonable opportunity to present its case.
In this case, because of the number of issues raised in the appeal and the complexity of the
issues, we believe a 20-minute limit for the applicant and appellant may be appropriate. Because
of the number of persons who submitted written argument, we do not recommend extending the
period for other parties to testify beyond the 3 minutes required under the code. As noted above,
the applicant and appellant each may divide its time between opening argument and rebuttal but
may not exceed the total time-limit
Ex Parte Communication
A City Councilor must disclose on the record the substance of any communication the Councilor
received outside the public hearing regarding the subject of the appeal. ORS 227.180(3). A City
Councilor is not required to recuse himself or herself because of ex parte communication
provided the communication is disclosed on the record. Similarly, the City's decision is not
invalid due to ex parle communication provided the communications are placed on the record
and the parties have an opportunity to respond. Opp 11. City of Portland, 38 Or LUBA 251, aff'd
171 Or App 417, 16 P3d 520 (2000). Communication with staff is not considered an ex parte
communication. ORS 227.180(4).
Here, we recognize that most, if not all, of the City Councilors have received ex parte
communications regarding the application. Under the circumstances, that is probably inevitable.
All that is required is that each Councilor and the Mayor make a good faith effort to recall the
. substance of the communication and disclose it on the record. Email received by a Councilor
should be forwarded to the City Recorder and retained in the City's public records, but may not
be included the record of this appeal.
ill!!
Local elected officials acting in a quasi-judicial proceeding are not expected to be free from bias
but they are expected to: (1) put aside whatever bias they may have when deciding individual
Legal Memorandum Re Appeal Hearing Procedures (PA 2009.0l244)
,
nT"TT
.ll.L.I...L ...L
September 29, 2010
Page 4
permit applications and (2) review the facts and evidence in the record and attempt to interpret
and apply the law to the facts as they find them so that the ultimate decision is a reflection of
their view of the facts and law rather than the product of any positive or negative bias. Wal-Mart
Stores, IiIC. v. City of Central Point, 49 Or LUBA 697 (2005). General expressions of opinion
does not indicate bias, but if a Councilor has prejudged the application to the extent that the
Councilor cannot make an impartial decision based on the evidence in the record and the
applicable criteria, the Councilor may not participate in the decision. Woodard v. Cot/age
Grove, 54 Or LUBA 176 (2007).
We are not aware of any concerns regarding bias in this case. However, it bears repeating that a
Councilor must be able make a decision based solely on the evidence in the record and the
applicable criteria in the development code. If the Councilor is unable to do this, the Councilor
must recuse himself or herself from participating in the decision. .
Substantial Evidence and Burden of Proof
Substantial Evidence
The City Council may affirm, reverse, modify, or remand the Planning Commission decision.
AMC 18.108.110B. The Council may not reweigh the evidence but is limited to detennining
whether there is substantial evidence in the whole record to support the Planning Commission's
decision. The Council also must determine whether the Planning Commission made an error of
. law. AMC 18.108.lIO.D.
Substantial evidence is evidence a reasonable person would rely upon to reach a conclusion,
notwithstanding that different reasonable people could draw different conclusions from the
evidence.3 It is important to note that substantial evidence in favor of one finding may be
undercut by contrary evidence.4 For this reason, the findings that support the Council's decision
should discuss not only the evidence that supports the decision, but also the contrary evidence
and why the City rejected it.
For example, the first issue described in the appeal is whether there was substantial evidence in
the record for the Planning Commission to detennine that the applicant met the criteria regarding
adverse material effect on livability. If, upon review, the Council concludes that there is
substantial evidence in the record to uphold the Commission's decision regarding compliance
with the criterion, the Council findings should discuss that evidence and why it is more
persuasive than the contrary evidence.
;
J Adler 1'. Cily of Porlland, 25 Or LUBA 546 (1993).
4 Wal-Marl Slares, Inc. 1'. City of Bend, 52 Or LUBA 261 (2006).
Legal Memorandum Re Appeal Hearing Procedures (P A 2009-01244)
DT'" TT
ll.LI ..L ..L
September 29,2010
Page 5
With respect to a determination of legal error, the Council must detennine whether the Planning
Commission properly interpreted the relevant criteria and applied them to the facts. As the
governing body of the local government that adopted the code, the courts and LUBA will defer
to a code interpretation made by the Council, provided the interpretation is not "clearly wrong."s
Burden of Proof
The applicant has the burden of proof throughout the entire local process to demonstrate by
substantial evidence that the application meets the applicable criteria. However, once the
Planning Commission issues a decision approving the application, the applicant has effectively
made a prima facie showing that the application meets the approval criteria and the appellant
carries the burden on appeal to persuade the Council that the Planning Commission was wrong.
As noted, the Council's task is to determine whether there is substantial evidence supporting the
Commission's decision and whether the Commission made legal error.
Form of Decision
The Council's decision must be reduced to writing and include specific findings and conclusions.
AMC l8.108.11O.E. The findings should specifically address the issues raised in the appeal and
discuss the evidence that supports the Council's decision. The final decision and findings should
be adopted in a single order and a copy provided to all parties.
, Siporen v. City of Medford, 231 Or App 585, 220 P3d 427 (2009), rev allowed, 348 Or 13 (2010); Westem Land &
Cottle, Inc. v. Umati/la County, 230 Or App 202, 209-10, 214 P3d 68 (2009); ORS 197.829. .
Legal Memorandum Re Appeal Hearing Procedures (pA 2009-01244)
nT" TT
.u.L.I ..L..L
BEFORE THE PLANNING COMMISSION
CITY OF ASHLAND, JACKSON COUNTY, OREGON
July 13,2010
IN THE MATTER OF A REQUEST FOR A CONDITIONAL USE )
PERMIT AND SITE REVIEW APPROVAL TO INSTALL )
ROOFfOP WIRELESS COMMUNICATION FACILITIES (WCF) )
ON THE EXISTING ASHLAND STREET CINEMA BUILDING ) FINDINGS OF FACT
LOCATED AT 1644 ASHLAND STREET, JACKSON COUNTY ) CONCLUSIONS OF LAW
OREGON AND ASSOCIATED GROUND-MOUNTED WCF ) AND ORDER
ACCESSORY EQUIPMENT; THE WCF INST ALLA TION CONSISTS)
OF 12 ARCHITECTURALLY INTEGRATED PANEL ANTENNAS. )
THIS PLANNING ACTION ALSO INCLUDES A REQUEST FOR )
AN ADMINISTRATIVE VARIANCE TO THE SITE DESIGN AND)
USE STANDARDS' REQUIRED LANDSCAPE BUFFER FOR THE )
GROUND-MOUNTED WCF EQUIPMENT. IPA #2009-01244] )
APPLICANTS: Goodman Networks, Inc. for AT&T Wireless, LLC )
I. NATURE OF PROCEEDINGS
This matter comes before the Planning Commission for the City of Ashland for a Type II
Conditional Use Hearing. The Planning Action includes associated applications for a
Conditional Use Permit and Site Review approval to install rooftop wireless communications
facilities on the existing Ashland Street Cinema building located at 1644 Ashland Street,
Ashland, Oregon and to construct an associated ground-mounted accessory equipment structure.
The WCF installation consists of 12 architecturally-integrated panel antennas. The Planning
Action includes a request for an Administrative Variance from the Site Design and Use
Standards' required landscape buffer for the ground-mounted accessory equipment structure.
A pre-application conference was held on May 13,2009. Pursuant to AMC 18.72.1808.10 the
applicant conducted public meetings to discuss the application with neighbors in July and
September 2009. The application was filcd by the applicant with the Planning Department on
September 22, 2009. The original application was deemed incomplete on October 13,2009.
Additional information was submitted by the applicant in March 2010. The Application was
deemed complete on April 18, 2010. Notification of the public hearing before the Planning
Commission on May II, 20 I 0, was mailed pursuant to Chapter 18, Ashland Land Use Ordinance
to area property owners and affected public agencies. Notice of the May 11, 2010, hearing was
also published in the Ashland Daily Tidings.
On May II, 2010, the Planning Commission conducted a public hearing and received into the
record oral and written testimony and evidence, including the staff report and file. During the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page I of30
hearing an opponent requested that the record be held open for seven days to submit additional
written testimony, argument and evidence. At that time, the applicant's representative indicated
that they did not wish to request an additional seven days for the submittal of final writtcn
argument. The record was left open until 4:30 pm on May 19,2010. Delibemtions for the action
were continued to the next regular meeting of the Commission on June 8,2010. Additional
materials were submitted by the applicants and opponents during the time the record was open.
On May 26th, the applicants filed a written request asking that the Planning Commission reopen
the record for the presentation of additional evidence and written arguments in response to
additional evidence presented after the close of the public hearing pursuaht to ORS 197.763(6)(c)
and 197.763(7). While this request was made to specifically reopen the record for seven days
. from May 26, 2010 to June 1,2010 because the ORS authority to reopen the record lies with the
Planning Commission and because tbe reopening of tbe record allows new submittals from any
person in response to new evidence since the close ofthe May 11,2010 hearing, the request was
considered at the June 8th meeting of the Planning Commission. Two members of the public
who had previously submittcd written comments also made similar written requests for the
record to be reopened pursuant to ORS I 97.763(6)(c) and 197.763(7). At the June 8th meeting,
the Planning Commission announced that while the hearing remained closed, the record would
be re-opened for seven days to allow for written submittals responding to new evidence
submitted since the May 11th hearing was closed, and deliberations on the application were
continued until a special meeting to be held on June 22, 2010. At this time, the Commission
also admitted approximately twenty e-mails and written submittals that had been received
between the close of the record and its re-opening. Additional materials were then submitted by
the applicant and by opponents during the period the record was re-opened. Argutnents
regarding whether the record should have been re-opened arc addressed below under preliminary
matters.
On June 22, 2010, the PlaJming Commission considered the whole record, including the
testimony, argument and evidence submitted by the opponents and the applicants while the
record was reopened, as well as the staff report, memoranda and advice from staff and counseL
Early in the deliberations two Planning Commissioners recused themselves for personal bias and
prejudgment. The Commissioners indicated that they could not make the decision on the
application based on the applicable law as applied to the facts in the record, citing specifically
the environmental and health issues concerning radio frequency emissions. The Commissioners
left the hearing room after their recusaL Thc remaining Planning Commissioners deliberated and
approved the application for Conditional Use Permit, Site Review Approval and Administrative
Variance to install a rooftop wireless communications facility and an associated ground-mounted
equipment structure subject to conditions pertaining to the appropriate development of the site. On
July 13, 2010, thc Planning Commission approvcd and the Commission chair signed .the
Findings of Fact, Conclusions of Law, and Order.
Based upon the evidence in the record, the Planning Commission makes the following findings
of fact and conclusions oflaw:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 2 of 30
II. PRELIMINARY MATTERS
At the May II, 20 I 0 Planning Commission meeting, the opponents of P A #2009-01244 asked
that the record remain open for seven days for the submittal of additional written comments. A
large volume of additional written testimony was received from opponents. The applicant also
submitted two pages of materials on May 19,2010. On May 19,2010 at 4:30p.m., the record
was closed. On May 26, 20 I 0 the applicants filed a written request asking that the Planning
Commission reopen the record for the presentation of additional evidence in response to
additional evidence presented after the close of the public hearing. The request, contrary to the
earlier statement of the A TT representative at the hearing, also reserved the right to submit final
written argument after the close of the record. (Argument was never submitted but the request
did serve to extend the 120- day clock by seven days by operation of statute). On June 8, 2010,
Colin Swales sent an email to Planning Staff including, among other things, a specific request:
..J would like to formally request per ORS 197.763 (6)(C) that the public themselves are
also given the full "opportunity to respond to new evidence submitted during the period
the record was left open."
Also on June 8, 2010 an email from Art Bullock requested an extension of time to rebut the
evidence submitted by the applicant re alternative sites during the period the record was open.
ORS 197.763(6)(c) and ORS 197.763(7) provide:
c) If the hearlngs authority leaves the record open for additional written
evidence, arguments or testimony, the record shall be left open for at least
seven days. Any participant may file a written request with the local
government for an opportunity to respond to new evidence submitted during
the period the record was left open. If such a request is filed, the hearings
authority shall reopen the record pursuant to subsection (7) of this section.
(emphasis added)
7) When a local governing body, planning commISSIOn, hearings body or
hearings officer reopens a record to admit new evidence, arguments or
testimony, any person may raise new issues which relate to the new evidence,
arguments, testimony or criteria for decision-making which apply to the
matter at issue.
City staff did not act on the request, believing that the Planning Commission should properly be
the body to consider the matter. On June 8, 2010 the Commission considered the mandatory
language of the statute "the hearings authority shall reopen the record" and determined that the
requests from participants to reopen the record to respond to evidence submitted after the hearing
closed on May II, 20 I 0 should be granted.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 3 ono
The Planning Commission reopened the record until 4:30 p.m. on June 16,2010 and continued
deliberations to June 22,2010. Pursuant to ORS 197.763(7) any person could raise new issues
relating to the evidence submitted during the period of time the record was open after the hearing
closed on May 11,2010. The Applicants submitted additional materials on June 15,2010 and
Opponents also submitted a large volume of materials, Approximately twenty items from
opponents (e-mails and written submittals) were entered into the record by the Planning
Commission on June 8,2010 despite the fact they were received subsequent to the close of the
record and prior to its reopening. Included in these materials are requests to reject re-opening the
record by opponents Bullock and Swales.
The Commission expressly finds and determines that the request by the Applicant to re-open the
record was not untimely as it came before deliberations on the matter by the Planning
Commission. The statut~ contemplates that a participant like the applicant in this case, might
find evidence submitted while the record is open to be sufficiently "new" to request an
opportunity to respond. There is no requirement that the evidence sought to be addressed be an
entirely new idea or faet, only new in the sense that it had not been previously in the record.
Given the volume of material submitted by opponents, the request from the applicants should not
have been unexpected. There is no requirement that the "new" evidence be identified with
"sufficient specificity" as was suggested by opponent Swales. Finally, the fact that opponents
Bullock and Swales both requested the opportunity to submit additional evidence on behalf of
opponents to respond to applicants after hearing submissions leveled the playing field. The
reopening submission by applicant better identified the evidence it sought to respond to than did
the submissions by opponents. However, the statue lacks any real limitation on the submissions
(Le. only that they "relate" to the new evidence), accordingly, the Commission finds and
determines that it was not error to follow the mandatory language of the statute and re-open the
record, nor was it error to accept into the record all the materials submitted by the applicant and
opponents during the period the record was open. The Planning Commission believes that a full
and fair opportunity to present evidence to the hearing body, for and against the application, is
consistent with due process. Artificially truncating the record at a point that one side, or the
other, feels is advantageous to their position is not consistent with due process.
III. FINDINGS OF FACT
I) The Nature of Proceedings set forth above is true and correct and are incorporated
herein by this reference.
2) . The subject of Planning Action 2009-01244 is real property located within the City
of Ashland ("City"), and described in the County Tax Assessor's maps as Tax lot #6800 of
Map 39 IE 15 AB) (the "Subject Property"). The street address of the Property is 1644
Ashland Street, Ashland, Oregon, 97520.
3) The subject property is located on the south side of Ashland Street, between Walker
Avenue and Lit Way, and is eommonly known as the Ashland Shopping Center. The property is
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 4 of 30
irregularly shaped, with an area of approximately 5.91 acres, and fronts on both Ashland Street
and Siskiyou Boulevard. The property is visually depicted in the record as follows:
5150 LfTWAVW ReD
----
C"""'llI'*-
1".'1.010._
r..",,"__
--
---
Ii
J~~A'il~
01 t J:~.
4) The property is zoned Commercial (C-l) and is developed as a retail center and contains
tour large buildings and the associated parking and paving for circulation, with a variety of
established businesses including a movie theater, restaurants, personaVsocial services, and retail
uses.
5) Properties to the north, south and west fall within the C-l commercial district. East of the
subject propcrty is an R-I-7.5 single family residential zoning district. Immediately to the west
of the subject property is the Pines Trailer Court, which, despite its commercial zoning, has long
been established as a residential use. The subject property is located within the Detail Site
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 5 000
Review Zone and the Ashland Boulevard Corridor, and the existing building is also subject to
Additional Standards for Large Scale Projects.
6) Because it is largely developed, the property is generally devoid of natural features with the
exception of some parking lot landscaping and established trees at the perimeter of the site. The
property slopes downward to the north with a slope of five to six percent, with an approximate
e1cvation loss of 42 feet over the approximately 750 feet between Siskiyou Boulevard to Ashland
Street.
IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA
I) The Planning Commission finds and determines that the relevant approval criteria are
found in or referenced in ALUa Section 18.32 C-I Commercial Zoning District, Section 18.72
Site Design and Use Standards (including variance), and Section 18.104, Conditional Use
Permits. The Planning Commission further finds that in addition to the basic Site Review
standards, the subject property is located within the Detail Site Review Zone and the Ashland
Boulevard Corridor, and the existing building i~ subject to Additional Standards tor Large Scale
Projects, although the building itself was constructcd prior to the current standards being put into
place.
2) The Planning Commission fmds that it hils received all information necessary to make a
decision based on the Staff Report, public hearing testimony, the exhibits and evidcnce received, as
well as the record as a whole.
3) The Planning Commission findings specifically incorporate herein the findings in
support of the application submitted by the Applicant in the Planning Filc, including the
applicant's written responses and supplemental information, said documents made a part hereof
by this reference. The Planning Commission findings also incorporate the Staff Report and all
staff memoranda and addenda, said documents made a part hereof by this reference. (In the
event of conflict between the Planning Commission findings and other findings, including the
.applicant's findings, the Planning Commission findings control).
4) The Planning Commission finds and determines based on the whole record, that Planning
Action [2009-01244], a proposal for a Conditional Use Permit and Site Review approval to install
a rooftop wireless communications facility consisting of 12 architecturally-integrated panel
antennas on the existing Ashiand Street Cinema building located at 1644 Ashland Street, and to
construct an associated ground-mounted accessory equipment structure at the rear of the building
meets all applicable criteria for Site Review approval as described in Chapter 18.72 and all .
applicable criteria for Conditional Use Permit approval as described in Chapter 18.104. Further the
Commission finds and determines based on the whole record, that the criteria for the requested
Administrative Variance to the Site Design and Use Standards described in AMC 18.72.090 are
fully met. The proposal complies with Development Standards for Wireless Communications
Facilities described in AMC 18.72.180. These finding are supported by the detailed fmdings set
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 6 000
forth herein, as well as all incorporated findings and documents and by competent substantial
evidence in the whole record.
5) AMC .1832' lists the permitted uses, special permitted uses and conditional uses in the
Commercial zone. AMC 1831.030.J. specifically lists as a conditional use "Wireless
Communication Facilities not permitted outright and authorized pursuant to Section 18.72.180".
The Planning Commission finds and determines that within the Commercial (C-I) zoning
district, wireless communication facilities (WCF) to be installed on an existing structure are
subject to a Conditional Use Permit approval and to the design standards found in AMC
18.72.180.C
6) The criteria for a Conditional Use Permit are described in Chapter 18.104.050 as follows:
A conditional use permit shall be granted if the approval authority finds that the proposed
use conforms, or can be made to conform through the imposition of conditions, with the
following approval criteria.
A. That the use would be in conformance with all standards within the zoning
district in which the use is proposed to be located, and in conformance with
relevant Comprehensive plan policies that are not implemented by any City,.
State, or Federal law or program.
B. That adequate capacity of City facilities for water, sewer, paved access to and
through the development, electricity, urban storm drainage, and adcquate
transportation can and will be provided to the subject property.
C. That the conditional use will have no greater adverse material effect on the
livability of the impact area when compared to the development of the
subject lot with the target use of the zone. When evaluating the effcct of the
proposed use on the impact area,. the following factors of livability of the
impact area shall be considered in relation to the target use of the zone:
1. Similarity in scale, bulk, and coverage.
2. Generation of traffic and effects on surrounding strcets. Increascs in
pedestrian, bicycle, and mass transit use are considered beneficial
regardless of capacity of facilities.
3. Architectural compatibility with the impact area.
4. Air quality, including the generation of dust, odors, or other
environmental pollutants. .
5. Generation of noise, light, and glare.
6. The development of adjacent properties as envisioned hi the
Comprehensive Plan.
7. Other factors found to be relevant by the Hearing Authority for
review of the proposed use.
7) AMC 18.104 A. [Conformance with Zoning]:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 7 of 30
A. That the use. would be in conformance with all standards within the
zoning district in which the use is proposed to be located, and in
conformance with relevant Comprehensive plan policies that are not
implemented by any City, State, or Federal law or program.
This criterion requires compliance with the standards of thc applicable Zoning District and
Comprehensivc Plan. The proposed use is a Wireless Communications Facility which is listed in
AMC 18.31.030.1. as a conditional use: "Wireless Communication Facilities not permitted
. outright and authorized pursuant to Section 18,72.180." The property has an Ashland
Comprehensivc Plan dcsignation of Commcrcial implemented with the C.l Zoning District.
The Commission finds and determines that all applicable commercial comprehensive plan
policies are implemented in the C-l zoning district in the Ashland Land Use Ordinance. The
zoning district codified at AMC 18.32 sets forth the permitted, special permitted and conditional
uses in C-l. A WCF is a conditional use in C-I, except in the Freeway overlay where it is
permitted with only a site review. [AMC 18.72.180.0], Accordingly, compliance with the
standards of the C-I Zoning District requires compliance with C-l General Regulations, as
applicable, [AMC 18.32.040] as well as with. the specific Wireless Communication Facility
standards in AMC 18.72.180C. The Planning Commission finds and determines that the
recitations in AMC 18.72.180.A, [Purpose and Intent] are not approval criteria or design
standards for siting Wireless Communication Facilities. Similarly, the general land use code
purpose statements tound in AMC 18.04.020 (e.g. "". promote public health, safety and general
welfare") are not approval criterion for this application. Purpose statements rarely, if ever,
represent approval criteria - generally a specific incorporation is required. Similarly, the
application requirements listed in AMC 18.72.180.B. [Submittals] are not performance standards
or approval criteria for siting of a Wireless Communications Facility. Finally, the Table in AMC
18.72.180.0. sets forth only the applicable approval procedures by Zone and reflects that the
Conditional Use Procedure (and applicable approval criteria) are to be used for the present
application in the C.l. The design standards for Wireless Communications Facilities are set
forth in 18.72.180.C (Design Standards):
18.72.180 Develooment Standards for Wireless Communication Facilities
C. Design Standards - All wireless communication facilities shall be locatcd,
'designed, constructed, treated and maintaincd in accordancc with the following
standards:
1. Gcncral Provisions
. a. All facilities shall bc installed and maintaincd in compliancc with the
requiremcnts of the Building Code. At the time of building permit
application, written statements from the Federal Aviation
Administration (FAA), the Acronautics Scction of the Oregon
Department of Transportation, and the Fedcral Communication
Commission that the proposed wireless communication facility
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 8 000
complies with regulations administered by that agency, or that the
facility is exempt from regulation.
b. All associated transmittal equipment must be housed in a building,
above or below ground level, which must be designed and landscaped
to achieve minimal visual impact with the surrounding environment.
c. Wireless communication facilities shall be exempted from height
limitations imposed in each zoning district.
d. WCF shall be installed at the minimum height and mass necessary for
. its intended use. A submittal verifying the proposed height and mass
shall be prepared by a licensed engineer.
e. Signage for wireless communication facilitics shall consist of a
maximum of two non-illuminated signs, with a maximum of two
square feet each stating the name of the facility operator and a contact
phone number.
f. Applicant is required to remove all equipmcnt and structures from
the site and return the sitc to its original condition, or condition as
approved by the Staff Advisor, if the facility is abandoned for a period
greater than six months. Removal and restoration must occur within
90 days of the cnd of thc six month pcriod.
2. Preferred Desie:ns
a. Where possible, the use of cxisting WCF sites for new installations
shall be encouraged. Collocation of new facilitics on cxisting facilities
shall be the preferred option.
b. If (a) above is not feasible, WCF shall be attached to pre-existing
structures, when feasible.
c. If (a) or (b) above are not feasible, alternative structures shall be used
with design features that conceal, camouflage or mitigate the visual
impacts created by the proposed WCF.
d. If (a), (b), or (c) listed above are not feasible, a monopole design shall
be used with the attached antennas positioned in a vcrtical manner to
lessens the visual impact compared to the antennas in a platform
design. Platform designs shall be used only if it is shown that the use
of an alternate attached antenna design is not feasible.
e. . Lattice towers are prohibited as frcestanding wircless communication
support structures.
3. Landscanine:. Thc following standards apply to all WCF with any primary or
accessory equipment located on the ground and visible from a residcntial use
or the public right-of-way
a. Vegetation and materials shall be selected and sited to produce a
drought resistant landscaped area.
FINDINGS OF FACf, CONCLUSIONS OF LAW AND ORDER
Page 9 of 30
b. The perimeter of the WCF shall be enclosed with a security fence or
wall. Such barriers shall be landscaped in a manner that provides a
natural sight obscuring screen around the barrier to a minimum
height of six feet.
c. The outer perimeter of the WCF shall have a 10 foot landscaped
buffer zone.
d. The landscapcd arca shall bc irrigatcd and maintained to providc for
proper growth and health of the vegetation.
e. One tree shall be required per 20 feet of the landscape buffer zone to
provide a continuous canopy around the perimeter of the WCF. Each
trce shall havc a caliper of 2 inches, measured at breast height, at the
time of planting.
. 4. Visual Impacts
a. Antennas, if attached to a pre-existing or alternative structure shall be
integrated into the existing building architecturally and, to the
greatest extent possible, shall not exceed the height of the pre-existing
or alternative structure.
b. Wireless communication facilities shall be located in the area of
minimal visual impact within the site which will allow the facility to
function consistent with its purpose.
c. Antennas, if attached to a pre-existing or alternative structure shall
have a non-rcflective finish and color that blends with the color and
design of the structure to which it is attached.
d. WCF, in any zone, must be set back from any residential zone a
distance equal to twice its overall height. The setback requirement
may bc rcduced if, as dctcrmined by the Hearing Authority, it can be
demonstrated through findings of fact that increased mitigation of
visual impact can be achieved within of the setback area.
Underground accessory equipment is not subject to the setback
rcquircmcnt.
e. Exterior lighting for a WCF is permitted only when required by a
fcderal or state authority.
f. All wireless communication support structures must have a non-
rcflective finish and color that will mitigatc visual impact, unless
. otherwise rcquired by other government agencies.
g. Should it be deemed necessary by the Hearing Authority for thc
mitigation of visual impact of the WCF, additional design measures
may bc rcquircd. Thesc may include, but arc not limitcd to: additional
camouflage materilils and designs, facades, specific colors and
materials, masking, shielding techniques.
5. Collocation standards
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 10 of 30
a. Each addition of an antenna to an existing WCF requires a building
permit, unless the additional antenna increases the height of the
facility more than ten feet.
b. Addition of antennas to an existing WCF that incrcascs the ovcrall
height of the facility more than ten feet is subject to a site review."
AMC 18.104, thc conditional use criteria, begins with the following text:
A conditional use permit shall be granted if the approval authority finds that the
proposed use conforms. or can be made to conform throul!h the imposition of
conditions, with the following approval critcria (emphasis added).
The Commission finds and determines that the conditional use chapter permits the imposition of
a condition to achieve compliance, This is especially pertinent to development standards such as
the majority of those specified in AMC 18,72.180 C. An analysis of compliance with
development standards follows:
General Provision: 1. a. All facilities shall be installed and maintained in compliance with
thc rcquircmcnts of the Building Codc. At the time of building permit application, written
statemeuts from the Federal Aviation Administration (FAA), the Aeronautics Section of the
Oregon Department of Transportation, and the Federal Communication Commission that
the proposed wireless communication facility complies with regulations administered by
that agcncy, or that thc facility is exempt from regulation.
The Planning Commission finds and determines that compliance with this development standard
is feasible and is met with the imposition of Conditions 1,2,3,10, and II below.
General Provision: 1. b. All associated transmittal equipment must be housed in a
building, above or below ground level, which must be designed and landscaped to achicve
minimal visual impact with the surrounding environment.
The Planning Commission finds and determines that thc proposed placement of the accessory
equipment structure on the south side of the building off of a driveway that functions as an alley
service corridor rather than as a primary circulation route for shopping center users is the area of
minimal visual impact on the site, The Commission finds that the proposed structure mimics
similar storagc structures already in placc on the south side of the building while maintaining the
functionality of alley access. The design, color and material of the structure effectively mitigatc
any visiml impacts of the proposal. Additionally, no parking spaces are lost with the proposed
placement, and the location is better situated to mitigate any visual impacts to residents of the
cxisting nonconforming residentialllse - the Pines Trailer Court. The Commission further finds
that the placement off of this alley does not allow placement of the required landscape buffering
for the proposed accessory equipment shuctllre because the required ten-foot width landscaping
buffer would
FINDINGS OF FACT, CONCLUSIONS O~ LA W AND ORDER
Page II ofJO
extend into the required clear width of the alley, impeding vehicular circulation, fire access and
service corridor access for loading, unloading, etc. and an Administrative Variance from the Site
Design and Use Standards requirement for landscape buffering is therefore requircd. [See
findings approving landscaping variance below incorporated herein by this reference.] The
Planning Commission finds and determines that compliance with this development standard is
feasible and is met with the imposition of Condition I below.
General Provision: 1. e. Wireless communication facilities shall be exempted from
height limitations imposed in each zoning district.
While the Code clearly exempts communication facilities from height limitations ofthe zonc, the
applicant's proposed installation of 12 architecturally-integrated panel antennas will comply with
the forty-foot limitation of 18.32.040 8.
General Provision: 1. d. WCF shall be installed at the minimum height and mass
necessary for its intended use, A submittal verifying the proposed height and mass shall be
prepared by a licensed engineer.
The Planning Commission finds and determines that with the imposition of Condition 13, the
proposed WCF is at the minimum height and mass necessary for the intended use. The record
reflects the need for the height proposed (see findings and evidence regarding non-feasibility of
collocation incorporated herein by this reference.) In terms of visual impacts, wireless facilities
are explicitly ex:empted from the height regulations within the zoning district, however to the
extent possible they are not to exceed the height of the pre-existing structure and are to be of the
minimum height and mass needed to serve their purpose.
The Commission further finds that the proposed wireless communications facility is to be
installed on an existing structure and is to be architecturally integrated into that structure with the
addition of a penthouse element over the entry. The penthouse element on the Cinema, raises the
height ofthe roof peak at its highest point by approximately ten feet while complying with the
forty-foot height requirements of the district. The Commission finds that the proposed
penthouse addition falls within the height limitations of the ordinance, is the minimum height
necessary for the intended use, provides some enhancement to the building's sense of entry and
orientation to Ashland Street, and is architecturally compatible with the existing structure and
others -within the shopping center; which was constructed prior to current standards, in terms of
bulk, scale and coverage. However, the Commission finds that the proposed two-tiered parapet
wall system on the fayade tends to run counter to the design standards, emphasizing the
building's mass at the expense of the human scale sought by the standards while serving no
discernible purpose, and as such, a condition has been added to require that the two tiers of
parapet walls be removed from the final design unless it can be demonstrated that they serve
some structural purpose or provide necessary screening ofthe antennas. The Planning
Commission finds and determines that compliance with this development stimdard is feasible and
is met with the imposition of Condition 13 below.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 12000
General Provision: 1. e. Signage for wireless communicatioIi facilities shall consist of a
maximum of two non-illuminated signs, with a maximum of two square feet each stating
the name of the facility operator and a contact phone number.
The Planning Commission fmds and determines that compliance with this developmcnt standard
is feasible and is met with the imposition of Condition 8 below.
General Provision: 1. f. Applicant is required to remove' all equipment and strnctures
from the site and return the site to its original condition, or condition as approved by the
Staff Advisor, if the facility is abandoned for a period greater than six months. Removal
and restoration must occur within 90 days of the end of the six month period.
The Planning Commission finds and determines that compliance with this development standard
is feasible and is met with the imposition of Conditions 14 below.
Preferred Designs: 2. a-e:
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
preferrcd option.
b. If (a) above is not fcasible, WCF shall be attached to pre-existing structures,
when feasible.
c. If(a) or (b) above are not feasible, alternative structures shall be used with
design features that conceal, camouflage or mitigate the visual impacts
created by the proposed WCF.
d. If (a), (b), or (c) listed above arc not feasible, a monopole design shall be used
with the attached antennas positioned in a vertical manner to lessens the
visual impact compared to the antennas in a platform design. Platform
designs shall be used only if it is shown that the use of an alternate attached
antenna design is not feasible.
c. Lattice towers are prohibited as freestanding wireless communication
support structures.
The WCF Design Standards found in AMC 18.72.180C.2 delineate preferred designs, noting that
the collocation of new nicilities on existing facilities is the preferred option and when collocation
is not feasible, that the WCF shall be attachcd and architecturally integrated into pre-existing
structures when feasible. Alternative designs are the next preferred option, and within the C-I
zoning district, installations utilizing freestanding support structures are expressly prohibited. To
date, all WCF installations within the City of Ashland have been collocated and/or
architecturally integrated into existing buildings.
The Planning Commission finds and determines that the design standards in AMC 18.72.180C.2.
are not written in absolute mandatory terms as has been suggested by opponents. (e,g, comments
by Aaron Brian: "If collocation is feasible, collocation is required."). Contrast this statement
with the actual language ofthe Code which indicates thaV'[w]here possible, use of existing WCF
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page \3 of 30
sites for new installations shall be encouraged. Collocation of new facilities on existing facilities
shall be the preferred option," As was noted by stan: these regulations were written in the
contcxt of and following the adoption of Section 704 of the Telecommunications Act of 1996.
The Telecommunications Act mandates that the local regulation of personal wireless service
facilities "shall not prohibit or have the effect of prohibiting the provision" of such services. 47
U,S.C. 332 (c)(7). Given this context, it appears that the above referenced City of Ashland code
provisions were not written in terms of rigorous mandatory approval criterion but rather were
drafted to include wording more akin to aspirational comprehensive planning' standards. The
use of the word "encourage" in this section of the design standards also indicates a weak
directive and is more akin to a required consideration. Similarly, language referring to the
"preferred option" is not mandatory or compelling. Finally, the words in the following
paragraph, 2.(b), "[i]f (a) above is not feasible," do not operate to revise the language of
paragraph (a) to'be any more rigorous a standard. The City Council as the legislative body could
have written the above referenced design standards to reflect a more rigorous collocation
requirement, such as the following:
The use of existing WCF sites for new installations shall be required, except where it can
be demonstrated with substantial competent evidence that such collocation will prohibit
or have the effect of prohibiting telecommunications service, in which case WCF
facilities shall then be permitted to be attached to pre-existing structures in the service
area,
The Planning Commission will not re-writethe code through an interpreiation to create such a
rigorous standard where none has been created by the legislative body. The. Planning
Commission expressly rejects the proffered "only when collocation is impossible" interpretation
of the design standard.
The applicants were required as part of the submittal requirements to provide a "collocation
feaslhllity study that adequately Indicates collocation efforts were made and states the reasons
collocation can or cannot occur," [AMC l8,72.180.B.6]. This submittal requirement is not an
approval criterion. but an application requirement to assist the Commission in ascertaining
whether the required consideration of collocation has been undertaken. This initial submictal by
the applicant discussed possible collocation and drew considerable criticism. Staff, members of
the Commission, and members of the opposition pointed to the original submittal as evidence
that collocation was in fact feasible. The original staff report noted:
The application notes that the nearest AT&T wireless facility is in place on the Ashland
Springs Hotel in downtown Ashland, roughly 2.2 miles from the subject property. The
materials provided note that to serve the subject area, the antenna system would need to
be less than a mile from the center of the applicants identified search ring, and the
Cinema location is approximately one-half mile from the center of that ring. The
applicants note as well that the Holiday Inn. Express location was considered, and the
applicants indicate that while collocation might be possible at this facility given its
similar proximity to the center of their search ring, they believe that topography and the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 14 oDO
length of the needed coaxial cable runs at the Holiday Inn Express are such that the
projected signal strength from the Cinema site would be stronger resulting in a larger
service area and more coverage. (emphasis added)
Planning Commission members specifically requested more information on collocation at the
Holiday Inn' Facility during the May 11,2010 hearing. The May 19,2010 submittal by the
applicant analyzed alternative sites and also identified significant impediments to use of the
Holiday Inn site, but included a statement that "The co location on the Holiday Inn Express
could work-purely from an RF perspective," The June 15, 2010 submittal by the Applicant
provided even more detailed information regarding the feasibility of collocation at the Holiday
Inn site, including specifically the adequacy of Radio Frequency limitations on service. The
Planning Commission considers all the evidence in the record for and against an application not
just the initial submittal by the applicant. The June 15,2010 submittal by the applicant includes
the following:
B. Radio signal limitations - see attached letter from AT&T RF manager Ken Scymour
(EXHIBIT B) showing comparison between the proposed Cinema site and Che Holiday
Inn site. This RF evaluation specifically states that the Holiday Inn site is deficient
because it does not meet a required coverage goal of providing building coverage to
properties at SOU campus. In addition the Holiday Inn site would'not have a direct line
of site to AT&Ts existing site at Hotel Ashland (MD 18) and would not offload calls as
required, and further the effective height of the Cinema site is 13 feet + more providing
higher signal coverage, Thus the Holiday Inn site is not feasible from a signal
perspective.
The Planning Commission finds and determines that preferred option of collocation of the WCF
facility has been adequately considered by the applicant and that such collocation has been found
not to be feasible for this provider at the Holiday Inn site. Similarly, the Commission finds and
determines that the possibility of collocation on facilities owned by Southern Oregon University
and used to broadcast Jefferson Public Radio has been adequately explored and ruled out by the
applicants. The application materials note that collocation on existing wireless communication
facilities on the University campus would be outside of their search ring, would not provide
adequate signal coverage, and could severely interfere with the signal from the AT&T facilities
on the Ashland Springs Hotel site. The application also notes that the transmission tower near
the north Ashland interchange is nearly four miles north, outside of the search area, and not a
viable collocation candidate site due to its distance from the search ring.
The Commission further finds that, to facilitBte future compliance with the above standard, AMC
18.72.180.B.7 [submittal requirements] required the applicants to provide "A copy of the lease
agreement for the proposed site showing that the agreement does not preclude collocation." The
Commission finds that in review of the lease provided, item #8b on page 6 indicates:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 15 of 30
Landlord will not grant, after the date of this Agreement, a lease, license or any other
right to any third party for the use of the Property, if such use may in any way adversely
affect or interfere with the Communication Facility, the operations of Tenant or the rights
of Tenant under this Agreement. Landlord will notifY tenant in writing prior to granting
any third party the right to install and operate communications equipment on the
Property.
The Planning Commission finds that this language is overly broad and could be applied in a
manner that would preclude collocation. Accordingly, a condition has been attached to this
conditional use approval to require that a revised lease, amendment to the lease, or other similar
signed/executed legal instrument which modifies #8b to more narrowly defme conflicting uses in
terms of signal interference anl clearly demonstrate that collocation is not precluded by the lease
agreement.
Based on all the evidence provided by AT&T, including specifically the June 15, 2010
submission, weighed against all other evidence in the whole record, the Planning Commission
finds and determines that preferred option of collocation of the WCF facility has been adequately
considered by thc applicant and that such collocation has been found not to be feasible for this
provider at the Holiday Inn site as well as at other sites referred to in the record given the service
needs of the applicant. Specifically, in addition to impediments such as topographic differences
length of the needed coaxial cable runs, safe space and access for on-site placement of the
equipment cabinet, the record reflects that the Holiday Inn Express site and other sites fail to
meet a number of AT&T service objectives such as providing in-building coverage to the
Southern Oregon University campus and a direct line-of-sight to their Mt. Baldy/MD18 facility,
and as such, the Holiday Inn Site and other sites could not provide contiguous coverage and
adequately off load calls. The Planning Commission finds and determines that compliance with
this development standard is feasible and is met with the imposition of Condition I and 9 below.
Landscaping: 3. a-e:
The following standards apply to all WCF with any primary or accessory
equipment located on the ground and visible from a residential use or the public
right-of-way
a. Vegetation and materials shall be selected and sited to produce a drought
resistant landscaped area.
b. The perimeter of the WCF shall be enclosed with a security fence or wall.
Such barriers shall be landscaped in a manner that provides a natural sight
obscuring screen around the barrier to a minimum height of six feet.
c. The outer perimeter of the WCF shall have a 10 foot landscaped buffer zone.
d. 'The landscaped area shall be irrigated and maintained to provide for proper
growth and health of the vegetation.
e. One tree shall be required' per 20 feet of the landscape buffer zone to provide
a continuous canopy around the perimeter of the WCF. Each tree shall have
a caliper of 2 inches, measured at breast height, at the time of planting.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 160130
The findings of compliance under General Provision 1.b. above, together with the findings of
compliance with C-l General Regulations and the administrative variance below are
incorporated herein by this reference, The Planning Commission finds and determines that
compliance with this development standard is feasible or excused and is met with the imposition
of Condition I below.
Visual Impacts 4. a-g.
a. Antennas, if attached to a pre-existing or alternative structure shall be
integrated into the existing building architecturally and, to the
greatest extent possible, shall not exceed the height of the pre-existing
or alternative structure.
b. Wireless communieation facilities shall be loeated in the area of
minimal visual Impact within the site which will allow the faeility to
funetion eonsistent with its purpose.
c. Antennas, if attached to a pre-existing or alternative structure shall
have a non-reflcctivc finish and color that blends with thc color and
design of thc strncture to which it is attachcd.
d. WCF, in any zone, must be set back from any residential zone a
distance equal to twice its ovcrall height. The setback requirement
may be rednced if, as determined by thc Hearing Authority, it can be
demonstrated through findings of fact that increased mitigation of
visual impact can be achieved within of the setback area.
Underground accessory equipment is not subject to the setback
requirement.
e. Exterior lighting for a WCF is permitted only when required by a
federal or state authority.
f, All wireless communieation support struetures must have a non-
reflective finish and eolor that will mitigate visual impact, unless
otherwise required by other government agencies.
g. Should it be deemed neeessary by the Hearing Authority for the
mitigation of visualimpaet of the WCF, additional design measures
may be required. These may include, but are not limited to: additional
eamouflage materials and designs, faeades, specifie colors and
materials, masking, shielding techniques.
The Commission finds that the proposed wireless communications facility installation effcctively
mitigates the visual and aesthetic impacts of the installation Chrough architectural integration into
an existing .structUre, a preferred design, and provides significantly more separation between the
facility and the nearest residential district or residential use than is required by ordinance, The
findings of compliance under General Provision I. b. and l.d. above and the findings of
compliance with C-l General Regulations below are incorporated herein by this reference. As
an additional design measure, [4,g], the Commission further finds that the impacts of the
proposed development can be further mitigated by correcting a noncompliance. As part of the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 17 000
land use approval to construct the theater in 1996, a screened trash and recycling. enclosure was
required but not installed, resulting in the placement of unscreened trash receptaeles in the
parking area on the west side of the building. Thc Commission finds that this is counter to the
requirement to Site Design and Use Standards, and a condition [No 12] has been added to require
that previously required screened trash enclosure he installed and utilized as part of the current
application. The Planning Commission finds and determines that compliance with this
development standard is feasible and is met with the imposition of Conditions I, 5,12 and 13
below.
Collocation standards 5. a-b.
a. Each addition of an antenna to an existing WCF requires a building
permit, unless the additional antenna increases the height of the
facility more than ten feet.
b. Addition of antennas to an existing WCF that increases the overall
height of the facility more than ten feet is snbject to a site review."
The Planning Commission finds and determines that compliance with this development standard
is feasible and is met with the imposition of Conditions 1,6, and 7 below,
Finally, in terms of the approval criterion for compliance with AMC 18.104 A. [Conformance
with Zoning], the following general regulations from C-I District apply:
18.32.040 General Regulations
A. Area, Width, Yard Requirements. There shall be no lot area, width, coverage,
front yard, side yard, or rear yard, except as required under the Off-Street Parking
and Solar Access Chapters; where required or increased for conditional uses; where
required by the Site Review Chapter or where abutting a residential district, where
such setback shall be maintained at ten feet per story for rear yards and ten feet for
side yards.
B. Maximum Building Height. No structure shall be greater than 40 feet in height.
The proposal involves the installation of a wireless communications facility on an existing
building within an established shopping center. The Commission finds that while there are no
standardized setback or yard requirements in the C-I zoning district, wireless communications
facilities must be setback from any residential zone a distance equal to twice their overall height.
[AMC 18.180.C.4.] The Commission finds that in this instance, the proposed 40-foot high
wireless communication facility installation is located approximately ISO-feet from the Pines
Trailer Court, the nearest residential use despite its commercial zoning, and approximately 250-
feet from the nearest residential zoning district, thus complying with the required setback from
residential zones. AMC 18.180.C.4 is therefore met. The Commission further finds that no
additional parking spaces are required for the installation of wireless communications facilities,
and further that with the placement ofthe wireless communications facilities on the rooftop and
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 18 of 30
the accessory equipment structure to the south side of the building, no parking spaces are lost
with the proposal. The Planning Commission finds and determines that compliance with this
approval standard is feasible and is met with the imposition of Conditions set forth below.
8) AMC 18.104 B. [Adequate Public Facilities}:
B. That adequate capacity of City facilities for water, sewer, paved access to and
through the development, electricity, urban storm drainage, and adequate
transportation can and will be provided to the subject property.
This criterion requires a finding that adequate facilities can and will be provided to the subject
property subject to the development application, Conditions can be imposed to achieve
compliance, [Le, "proposed use conforms, or can be made to conform through the imposition of
conditions."] Adequate public facilities (water, sewer, electricity, storm drainage, transportation,
including paved access) have sufficient capacity and are available in the adjacent lights-of-way
or on-site to serve the project. The Commission finds specifically that no additional water,
sewer or storm drainage facilities are necessary to serve the proposed wireless communications
facility installation. The Commission finds that paved access is in place to serve the existing
cinema building, transportation facilities are adequate and that electrical services are available
and can and will be provided by the applicants to serve the proposed wireless communications
facility, The Planning Commission finds and determines that compliance with this approval
critelion is feasible and is met with the imposition of Conditions set forth below.
9) AMC 18.104 C [No Greater Adverse Effect on Livability]:
C. That the conditional use will have no greater adverse material cffect
on the livability of the impact area when compared to the
development of the subject lot with the target use of the zone. When
evaluating the effect of the proposed nse on the impact area, the
following factors of livability of the impact area shall be considered in
relation to the target use of the zone:
1. Similarity in scale, bulk, and coverage.
2. Generation of traffic and effects on surrounding streets.
Increases in pedestrian, bicycle, and mass transit use are
considered beneficial regardless of capacity of facilities.
3. Architectural compatibility with the impact area.
4. Air quality, including the generation of dust, odors, or other
environmental pollutants.
5. Generation of noise, light, and glare.
6. The development of adjacent properties as envisioned in the
Comprehcnsive Plan,
7. Other factors found to be relevant by the Hearing Authority
FINDINGS OF FACf, CONCLUSIONS OF LAW AND ORDER
Page 19 of30
for review of the proposed use.
Under the Ashland Municipal Code a Wireless Communications Facility is a conditional use; the
existing development of the Ashland Shopping Center, some of which was accomplished before
current regulations is primarily developed with permitted uses (e.g. the existing theater is a
permitted use. AMC 18.32.020 D,). Only the addition of the WCF is currently before the
Commission. This criterion [AMC 18.104 C] requires the proposed conditional use to have no
greater adverse material effect on the livability of the impact area than [as compared. to]
development of the subject property with the target use of the zone, The impact area is
considered.to be the adjacent properties and the notice area. [See description under III above].
The target use of the zone is commercial. Specifically, in C-I target use is defined in AMC
18.! 04,020.B.4 as:
B. "Target Use" - The basic permitted use in the zone, as defined below.
. . .
4, C-!. The general retail commercial uses listed in 18.32.020 B., developed at an
intensity of .35 gross floor to area ratio, complying with all ordinance requirements.
AMC 18.32.020 B. provides:
18.32.020 Permitted Uses
The following uses and their accessory uses are permitted outright:
...
B. Stores, shops and offices supplying commodities or performing services, such as a
department store, antique shop, artists supply store, and including a regional shopping
center or element of such center, such as a major department store.
Note: Impacts of other permitted uses such as nightclubs and bars, AMC 18.32.020 K.,
mortuaries and crematoriums, AMC 18.32.020 F. are nor used for the comparison. The
livability criterion is simply a comparison of the impact s of the proposed use (wireless
communications facility) relativc to the impacts of the target use (retail commercial sales and
services).
The Commission, consistent with prior City Council decisions, expressly finds and determines
that this criterion is not a "no adverse impact" standard. That is, contrary to assertions by'
opponents, the standard is not a standard requiring the reduction, minimization or mitigation of
all'adverse impacts on adjacent properties. Compare, the above target use comparison standard
of "no greater adverse material effect on the livability of the impact area" to the standard for an
administrative variance, i.e. "Approval of the variance will not SUbstantially negatively impact
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 20 of 30
adjacent properties." The Commission expressly rejects assertions of a no adverse impact
standard. The target use of the zone will [and 'does] have adverse impacts on livability to
properties in the impact area, including architectural compatibility, noise, odor, light, glare,
obstruction of views, dust, traffic, and other impacts typically associated with commercial use;
the conditional use, which is also commercial and consists ofa WCF installation [12
architecturally-integrated panel antennas] may have no greater adverse material effect than the.
target use.
Accordingly, AMC 18.1 04.C. is a comparison standard. The proposed use is the addition of 12
architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse
element over the entry. The penthouse element raises the height of the roof peak at its highest
point by approximately ten feet while complying with the forty-foot height requirements ofthc
C-I Zoning District. A small enclosure in the rear of the theater on the alley will house WCF
equipment. Placement of architecturally integrated wireless communications facilities on the
existing building and construction of an associated ground mounted accessory equipment
structure at the rear of the building will have little or no adverse material effect on factors of
livability as discussed below. Accordingly, the Commission finds and determines that the
proposed conditional use will have no greater adverse material effect on the livability of the
impact area than would development to the target commercial use of the zone. This criterion is
met. Factors of livability are enumerated and compliance with the criterion is analyzed below:
1. Scale, Bulk, and Coverage.
The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse element over the entry, The penthouse element raises the
height of the roof peak at its highest point by approximately ten feet while complying with the
forty-foot height requirements of the C-\. A small enclosure in the rear of the theater on the
alley will housc WCF equipment. The proposed architectural element is in compliancc with
setbacks and the maximum height permitted in the C-l Zone. In terms of the target use, the
proposed height, bulk, scale and coverage of the improvement is no greater than would be
allowed for the target conimercial retail use of the zone, Any obstruction of views is the same
whether or not antennas are contained within the architectural feature. The proposal, as modified
by Condition 13, is appropriate for the target use and is architecturally compatible with the bulk,
scale, coverage and general commercial development patterns generally found in the target use.
The findings of compliance under General Provision I.b. and I.d. above are incorporated herein
by this reference. Opponents argue the project (which increases the height of the existing
building) is not similar in bulk and scale and must be denied. However, the criterion is not "the
project must be similar in bulk and scale" the criterion involves a comparison of the bulk and
scale of the proposed use in relation with the target use of thc zone. The target use, also
commercial, allows buildings 40 feet in height in accordance with the same setbacks as proposed
here, Accordingly the proposed use and the target use have equal impacts on the impact area.
The Planning Commission finds and determines that this criterion is met; the proposed use will
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 21 ofJO
have no greater adverse material effect on the livability of the impact area than the development
of the subject property with the target use of the zone.
2. Generation of Traffic and Effects on Surrounding Streets
. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse clement over the entry. A small enclosure in the rear of the
theater on the alley will house WCF equipment. The WCF use does not require daily traffic trips
by employees or customers and therefore will have negligible traffic impact on the surrounding
transportation system as compared to the target commercial retail use of the zone, The Planning
Commission finds that wireless communications facilities and their associated accessory equipment
will have essentially no traffic impact, including no associated parking demand, and no parking
spaces are lost. with the proposed installation. A condition has been added to require that adequate
fire apparatus access be maintained in a manner consistent with city alley standards, and with
condition 10, the Commission finds that the proposed installation will have no associated traffic
impacts to surrounding streets. The Planning Commission finds Ilnd determines that this criterion is
met; the proposed use will have no greater adverse material effect on the livability of the impact
area than the development of the subject property with the target use of the zone.
3. Architectural compatibility with the impact area.
The findings set forth under' Bulk, Scale, and Coverage above are incorporated herein by this
reference as they relate to architectirraJ compatibility. The Planning Commission finds and
determines that this criterion is met; the proposed use will have no greater adverse material effect on
the livability of the impact area than the development of the subject property with the target use of
the zone. .
4. Air quality, including the generation of dust, odors, or other environmental pollution.
The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the
theater on the alley will house WCF equipment. The proposed use will have virtually no generation
of dust, odors or impact on air quality but certainly will have less environmental impact than the
target commercial retail use of the zone (e.g. compare proposed use with impacts from parking lot
traffic, air quality and odors from delivery vehicles, customer vehicles and employee traffic
typically generated in commercial retail uses). The Planning Commission finds and determines that
this criterion is met; the proposed use will have no greater adverse material effect on the livability of
the impact area than the development of the subject property with the target use of the zone.
Finally, to the extent radio frequency emissions are considercd by numerous opponents as "other
environmental pollution" to be considered in the impacl on livability comparison to the impacts
from the target use of the zone, the Planning Commission expressly rejects consideration of RF
cmissions as part of this decision. The Planning Commission finds that the Telecommunications
Act of 1996 expressly preempts local government regulation of the placement, construction, and
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 22 of30
modification of personal wireless service facilities on the basis of alleged environmental effects
of radio frequency emissions. The City may only ensure that such facilities comply with the
FCC's regulations concerning such emissions [47 V.S.C. ~332(c)(7)(B)(iv)]. Accordingly, the
Commission has imposed a condition that the applicants demonstrate compliance with FCC
regulations at the time a building permit application is submitted, as required in AMC
l8.72,180.C.I.a. The Planning Commission will not, as urged by some opponents, knowingly
disregard limitations on local government authority contained in the Telecommunications Act of
1996.
5. Generation of noise, light, and glare.
The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the
theater on the alley will house WCF equipment. The proposed use is architecturally compatible
with the existing building and condition 5 requires that the proposed penthouse element and
accessory equipment structure be painted and textured in a non-reflective finish and color. The
proposed use will have virtually no generation of noise, light or glare and certainly will have less
than the target commercial retail use of the zone ,( e,g. compare proposed use with impacts from
parking lot lights, headlights and noise from delivery vehicles, customer vehicles and employee
traffic typically generated in commercial retail uses). The Planning Commission finds and
determines that this criterion is met; the proposed use will have no greater adverse material effect on
the livability of the impact area than the development of the subject property with the target use of
the zonc.
6. The development of adjacent properties as envisioned in the Comprehensive Plan.
The proposed usc is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of
the theater on the alley will house WCF equipment. The proposed use will have virtually no
impact on the commercial development of adjacent properties as envisioned in the
Comprchcnsive Plan. The proposed use does not physically preclude or obstruct future
development of permitted uses in the C-I zoning district which fully implement the
comprehensive plan. See list of permitted uses in AMC 18.32.020. The proposed use would
appear to have much less impact on development of adjacent properties (less access and traffic
generation conflicts), than dcvelopment of the target use. (e.g. compare proposed use with
impacts typically generated in commercial retail uses). To the extent opponents allege the
impacts of the proposed use adversely impact the existing Holistic wellness uses in the impact
area, the findings under 7 below (other factors) are incorporated herein by this reference.
The Commission finds this conditional usc will have no greater adverse affect on the livability of
the impact area in terms of development of the adjacent properties than would full development
of the site to its target commercial use.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 23 000
7. Other factors found to be relevant by the Hearing Authority for review of the
proposed use.
The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland
Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of
. the theater on the alley will house WCF equipment. Opponents urge adverse ecOnomic impact to
adjacent properties as a factor under this approval criterion. The argument is that the proposed
WCF use will have greater adverse material effect on the livability (economic losses to existing
businesses in the impact area) when compared to the development of the subject lot with the
target C-I use of the zone. An example of this kind of adverse economic impact would be a
conditional use which competed with impact area uses to a greater extent than target C-I uses
would compete with impact area uses. However, as noted earlier, the standard is not - no adversc
impact (economic or otherwise) on adjacent properties.
The Commission recognizes that there is a specific cluster of existing land uses in place in the
impact area which relate to holistic wellness. The Commission further finds that a significant, if
not overwhelming, amount of the testimony provided by patrons, owners and employees of these
businesses expressed opposition to the proposed conditional use based on perceived health
impacts and environmental effects of radio frequency (RF) emissions from wireless
communications facilities: The patrons, owners and employees also expressed opposition to thc
proposed use bccause the natural consequence of thc health and environmental' concerns
expressed over RF emissions is a loss of patronage of the holistic wellness businesses. . The
Commission considered the arguments by Opponents and finds and determines that the concern
over economic impacts on the adjacent businesses is, in fact, inseparablc from the concerns
expressed over the health and environmental effects of Radio Frequency emissions. Stated
another way, the adverse economic impact argument does not exist separate and apart from the
prohibited consideration of impacts of RF emissions. As such, the argument cannot be
considered due to thc limitations imposed under the Federal Telecommunications Act of 1996,
(discussed above) and the Commission is compelled to decline to consider the economic impact
argument under this criterion,
In sum, the Planning Commission expressly finds and determines that the proposed WCF use
will not have any greater adverse material effect on the livability of the impact area than the
development of the property with the target commercial use of the zone. Based on the detailed
findings set forth herein, the detailed findings of the Applicant, the findings and responses in the
Staff reports specifically incorporated herein by this reference, as well as by competent
substantial evidence in the whole record, the Planning Commission finds and determines that this
criterion is met, or can be met with the imposition of conditions.
10) Site Design Review: AMC 18.72.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 24 000
The installation of wireless communication facilities are also subject to all applicable Site
Design and Use Standards. [AMe 18.72.180 D]. The proposed use is only the addition of 12
architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse
element over the entry, together with a small enclosure in the rear of the theater on the alley
which will house WCF equipment. Accordingly, the applicable Site Design and Use Standards
are limiied to the proposed use and do not implicate or require re-examination of existing
Ashland Shopping Center development on the project site. The criteria for Site Review are
described in Chapter 18.72.070 as follows:
A. All applicable City ordinances have been met or will be met by the
proposed development.
B. All requirements of the Site Review Chapter have been met or will be
met.
C. The development complies with the Site Design Standards adopted by
the Planning Commission for implementation of this Chapter.
D. That adequate capacity of City facilities for water, sewer, paved
access to and through the development, electricity, urban storm
drainage, and adequate transportation can and will be provided to
and through the subject property. All improvements in the street
right-of-way shall comply with the Street Standards in Chapter 18.88,
Performance Standards Options.
A. All applicable City ordinances have been met or will be met by the proposed
development.
The Planning Commission finds and determines that this criterion is a general reference to all the
mandatory requirements for the application, including but not limited to Conditional Use
Approval Standards, Site Design Review, and compliance with Zoning. Detail Site Review
Zone, Ashland Boulevard Corridor, and Additional Standards for Large Scale Projects are not
implicated by the proposal and are therefore not applicable standards, Based on the detailed
findings set forth herein, the detailed findings and responses in the Staff reports and those
findings and responses in support provided by the Applicant, specifically incorporated herein by
this reference, as well as by competent substantial evidence in the whole record, the Planning
Commission finds and determines that this criterion is met, or can be met with the imposition of
conditions.
B. All requirements of the Site Review Chapter have been met or will be met.
The Planning Commission finds and determines that this criterion is a reference to applicable
specific site design review criteria contained in Chapter 18.72, (such as specific criteria for
wireless communication facilities in 18.72.180,C.) Accordingly, based on the detailed findings
set forth herein, the detailed findings and responses in the Staff reports and those findings and
responses in support provided by the Applicant, specifically incorporated herein by this
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 25 of 30
reference, as well as by competent substantial evidence in the whole record, the Planning
Commission finds and determines that this criterion is met, or can be met with the imposition of
conditions.
C. The development complies with the Site Design Standards adopted by the Planning
Commission for implementation of this Chapter.
I
Th~ Planning Commission finds and determines that this criterion is a reference to the separately
bound and adopted site design standards. To the extent these standards have been addressed in
findings above, those findings are specifically incorporated herein by this reference. Based on
the detailed findings set forth herein, the detailed findings and responses in the Statl'reports and
those findings and responses in support provided by the Applicant, specifically incorporated
herein by this reference, as well as by competent substantial evidence in the whole record, the
Planning Commission finds and determines that this criterion is met, or can be met with the
imposition of conditions.
D. That adequate capacity of City facilities for water, sewer, paved access to and
through the development, electricity, urban storm drainage, and adequate transportation
can and will be provided to and through the subject property. All improvements in the
street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance
Standards Options. .
Findings of compliance with the adequate public facilities standard in AMC 18.104 B. as set forth
above are specifically incorporated herein by this reference. Based on the detailed findings set
forth herein, the detailed findings and responses in the Staff reports and those findings and
responses in support provided by the Applicant, specifically incorporated herein by this
reference, as well as by competent substantial evidence in the whole record, the Planning
Commission tinds and determines that this criterion is met, or can be met with the imposition of
conditions.
II) The criteria for an Administrative Variance to the Site Design and Use Standards
are described in AMC 18.72.090 as follows:
A. There is a demonstrable difficulty in meeting the specific requirements of the
Site Design Standards due to R unique or unusual aspect of the proposed use
of a site; .
B. Approval of the variance will not substantially negatively impact adjacent
properties; .
C. Approval of the variance is consistent with the stated purpose of the Site
Design and Usc Chapter; and
D. The variance requested is the minimum variance which would alleviate the
difficulty.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 26 of 30
The Planning Commission finds and determines that tJ:e above referenced approval criterion for
an Administrative Variance to Site Design and Use Standards, specifically for landscaping
required in AMC l8.72.l80C.3. are met in that the proposcd usc causes dcmonstrable difficulty
in meeting the requirement, the variance will not substantially negatively impact adjacent
properties, the variance is consistent with the purposes of the Chapter and the variance is the
minimum variance necessary to alleviate the demonstrable difficulty. The above finding is based
on the dctailed findings set forth herein, the detailed findings and responses in the Staff reports
and those findings and responses in support provided by the Applicant, specifically incorporated
herein by this reference, as well as by competent substantial evidence in the whole record.
The Planning Commission finds and determines that there is demonstrable difficulty in meeting
the Site Design and Use Standards landscaping requirements due to the unique and unusual
aspect of the proposed use of the site. The proposed use requires ground mounted WCF
equipment to support the WCF use which under AMC 18.72.180 C.3 above must be landscaped.
The Commission finds that there is demonstrable difficulty in placement of such required ground
mounted WCF facilities and landscaping on a site adequate area for additional landscape
buffering. The proposed use on the south side of the Ashland Street Cinema building off of a
driveway that functions as an alley service corridor rather than as a primary circulation route for
shopping center users is the area most suited for the essential ground placement of the
equipment. There are similar structures already in place along this corridor, no parking spaces
are lost with the proposed placement, and the location is better situated to mitigate any visual
impacts to residents of the adjacent nonconforming Pines Trailer Park. (see below). The
Commission further finds that the placement off of this alley precludes landscape buffering for
the proposed accessory equipment structure because the required ten-foot width landscaping
buffer would extend into the required clear width of the alley, impeding vehicular circulation,
fire access and service corridor access for loading, unloading.. The Commission finds and
determines that there is demonstrable difficulty in meeting the landscaping requirement due to
the proposed use. This criterion is met.
The Commission finds and determines that approval of the variance will not substantially
negatively impact adjacent properties. The findings in the paragraph above, as well as General
Provisions 1 b, are incorporated herein by this reference. The proposed structure mimics similar
storage structures already in place on the south side of the building while maintaining the
functionality of alley access, and that approval of the requested Administrative Variance would
not substantially negatively impact adjacent properties due to the existing substantial landscaping
in the form of large mature trees and shrubs located on the sloped area immediately south of the
alley, which already effectively buffer views of the backside of the Ashland Street Cinema
building. Thc Commission further finds that the view from the public right-of-way appears to be
entirely screened by the existing buildings and landscaping in place to the south of the alley, and
while the proposed accessory structure would potentially be visible from the residential units in
the adjacent Pines Trailer Court, the spatial buffer provided, fencing in place between the
properties, and design, color, matcrials and placement to match the existing storage structures all
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 27 ofJO
effectively mitigate visual impacts and amount to architectural integration of the accessory
equipment structure into the existing building in a manner in keeping with the purpose and intent
of the standards. This criterion is met.
Thc purposes of the Site Design and Use Chapter include reducing adverse effects on
. surrounding property owners and the general public, creation of a safe and comfortable .business
environment, energy conservation, enhancement of the environment for walking, cycling, and
mass transit use, and ensuring high quality development throughout the City. [See AMC
18.72.010]. This criterion is met based on the specific findings of compliance with conditional
use criteria set forth above, as well as the design standards and general standards set forth abovc
and incorporated herein by this reference.
Finally, the requested variance is the minimum necessary to alleviate the hardship. The
landscaping is unnecessary in this location and the applicant has rcquested no more relief than is .
necessary to effectuate construction of the proposed Use. The above finding is based on the
detailed findings set forth herein, the detailed findings and responses in the Staff reports and
those findings and responses in support provided by the Applicant, specifically incorporated
herein by this reference, as well as by competent substantial evidence in the whole record.
V. ORDER
In sum, the Planning Commission concludes based on the whole record, that the proposal
represented in Planning Action #2009-01244 to install rooftop wireless communications facilities
consisting of 12 architecturally-integrated panel antennas on the existing Ashland Street Cinema
building located at 1644 Ashland. Street and to construct an associated ground-mounted
accessory equipment structure, and an Administrative Variance from the Site Design and Use
Standards' required landscape buffer for the ground-mounted accessory equipment structure is in
compliance with all applicable approval criteria and is supported by evidence contained within the
whole record.
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the
evidence in the whole record, the Planning Commission hereby APPROVES Planning Action
#2009-01244., subject to compliance with the conditions of approval, as set forth in the body of
this document, incorporated herein, and as set forth below. The following are the conditions
and they are attached to the approval:
1) That all proposals of the applicant be conditions of approval unless otherwise
modified here.
2) That all requirements of the Building Division, including but not limited to: that
final drawings prepared by an Oregon-licensed design professional shall be
necessary to complete the submission for permits; that permit drawings shall
address OSSC Chapter 16 wind, seismic and tributary loads, forms of attachment,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 28 ofJO
and any special inspections required; and that all necessary building permits be
obtained, and all permit fees and associated charges paid prior to installation.
3) Building permit submittals shall include written communications from the Federal
Aviation Administration, the Aeronautics section of the Oregon Department of
Transportation, and the Federal Communications Commission that the proposed
wireless communication facility complies with the regulations of their respective
agencies or is exempt from those regulations.
4) That prior to the issuancc of a building permit, the applicants shall obtain a
business license from the City of Ashland.
5) That prior to use of the proposed wireless communications facility (WCF), the
applicants shall paint and texture the proposcd pcnthousc clcmcnt and accessory
equipment structure in a non-reflective finish and color to match the existing
building.
6) That Building Permits be obtained for any future carricr that might consider use.
of the applicant's facilities as a mattcr of co-location.
7) That a Site Review and Conditional Use Permit be obtained for any future carrier
that might consider a different mounting location.
8) That no signage beyond that allowed for wireless communications facilities in
AMC 18.72.l80.C ("a maximum of two non-illuminated signs with a maximum of
two square feet each stating the name ofthefacUity operator and a contact phone
number') shall be permitted on the wireless communications facility. No
additional signage for the theater or other shopping center uses shall be permitted
on the rooftop wircless communications facility (WCF).
9) That prior to the issuance of a building permit, the applicants shall provide a copy
of a revised lease or similar executed/signed legal instrument which modifies item
#8b in the lease agreement to more narrowly define conflicting uses in terms of
signal interference and demonstrate that collocation is not precluded by the lease
agreement.
10) That the requirements of the Ashland Fire Department, including that the required
clear width for fire apparatus access be maintained for the driveway at the south
side of the building with the installation of thc accessory equipmcnt structure,
shall be satisfactorily addressed prior to the issuance of an occupancy permit or
approval of the final inspection.
11) That the building permit submittals shall include an electric service plan approved
by the City of Ashland's Elcctric Department.
12) That a screened trash and recycling enclosure shall be in place, in use and
inspected by the staff advisor in accordance with the Site Design and Use
Standards prior to the final inspection or use of the proposed wireless
communication facility. An opportunity to recycle site of equal or greater size
than the solid waste receptacle shall be included. in the trash enclosure in
accordance with l8.72.115.A.
13) That the proposed two-tiered lateral parapet wall elements of the fayade shall be
removed from the design unless the applicants can demonstrate that they serve a
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 29 of 30
specific structural or screening function which would be compromised by their
removal. The reduced mass and associated height of the dcsign elements shall be
verified by a licensed engineer consistent with AMC 18.72.l80.C.1.d.
14) That all equipment and structures shall be removed from the site and the site
returned to its original condition, or condition as approved by the Staff Advisor, if
the facility is abandoned for a period greater than six months. Removal and
restoration must occur within 90 days of the end ofthe six month period.
Ashland Planning Commission Approval
',fi~ 177~
Pamela Marsh
Planning Commission Chair
~
Dale
Signature authorized and approved by the Commission this 13th day of July, 2010
Date: 7/13/10
I '
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page 30 of30
1
2
3
4
5
6
7
8
" 9
10
11
12
13
14
15
16
17
18
19
20
21
RECEIVEO
j\ll 2 \\ lmU
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
July 28, 2010
IN THE MATTER OF A REQUEST FOR A )
CONDITION USE PERMIT AND SITE REVIEW)
APPROVAL TO INSTALL ROOFTOP ) Planning Action # 2009-01244
WIRELESS COMMUNICATION FACILITIES )
(WCF) ON THE EXISTING ASHLAND )
STREET CINEMA BUILDING LOCATED AT )
1644 ASHLAND STREET, JACKSON )
COUNTY, OREGON AND ASSOCIATED )
GROUP-MOUNTED WCF ACCESSORY )
EQUIPMENT; THE WCF INSTAllATION )
CONSISTS OF 12 ARCHITECTURALLY )
INTEGRATED PANEL ANTENNAS. THIS )
PLANNING ACTION ALSO INCLUDES A )
REQUEST FOR AN ADMINISTRATIVE )
VARIANCE TO THE SITE DESIGN AND USE)
STANDARDS' REQUIRED LANDSCAPE )
BUFFER FOR THE GROUP-MOUNTED )
WCF EQUIPMENT. [PA #2009-01244] )
)
APPLlCANT(S): Goodman Networks, Inc. )
for AT&T Wireless, LLC )
APPELLANT: Roderick J. Newton )
)
NOTICE OF APPEAL TO COUNCIL
. Pursuant to Ashland Municipal Code ("AMC") 18.108.110, Roderick J. Newton
("Appellant") hereby provides notice of his appealof Findings, Conclusions and
Orders issued by the City of Ashland's appointed Planning Commission on
June 13, 2010 in connection with the above-captioned Planning Action # 2009-
01244 ("Planning Commission's Decision"),
NOTICE OF APPEAL TO COUNCIL
Planning Action # 2009-01244
Page -1-
DAVIS, HEARN
SALAOOPP & BRIDGES
AProfesslonalCorporalron
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(641) 482-31' t FAX (541) 488-.11455
1 .
2
3
4 .
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Appellant respectfully requests a public hearing, and review and reversal
of the Planning Commission's Decision by the City of Ashland's elected
Council.
AMC 18.108.110 (Appeal to Council) Information
. Pursuant to the Ashland Municipal Code ("AMC"), Appellant
provides the following Information addressing the requirements of
AMC 18.108.110 (Appeal to Council).
. AMC 18.108.110.A: "Appeals ofType II decisions -shall be initiated by a
notice of appeal filed with the City Administrator. The standard Appeal
Fee shall be required as part of the notice. All the appeal requirements
of Section 18.108.110, including the appeal fee, must be fully met or the
appeal will be considered by the city as jurisdictionally defective and will
not be heard or considered."
Response: Appellant tenders the appropriate appeal fee with this
Notice of Appeal.
. AMC 18.108.11 0.A.1: "The appeal shall be filed prior to the effective
date of the decision of the Commission."
Response: Type II Planning Actions become effective "13 days
after the findings adopted by the Commission are signed by the
Chair of the Commission and mailed to the parties, . . .". AMC
18.108.070.8.3.a (emphasis added). The Planning Commission's
NOTICE OF APPEAL TO COUNCIL
PlamllngAclloll #2009-01244
Page .2-
DAVIS, HEARN
SALADOFF &. BRIDOES
A ProfesalonlllCorporalIoo
615 EAST MAIN STREET
ASHLAND, OREGON 97620
(641).ca2-3111 FAX(541) 488-4455
1
Decision was signed by the Chair on JI!'Y 13, 2010; and thereafter
2
mailed to the parties on Julv 16.2010. This Notice of Appeal Is
3
timely filed under AMC 18.108.070.B.3.a.
AMC 18.108.110.A.2: The Notice of Appeal shall include the appellant's
4
.
5
name, address, a reference to the decision sought to be reviewed, a
6
statement as to how the appellant qualifies as a party, the date of the
7
decision being appealed, and a clear and distinct identification of the
8
specific grounds for which the decision should be reversed or modified,
9
based on identified applicable criteria or procedural irregularity.
10
ReSDonse: Appellant: Roderick J. Newton
1196 Timberline Terrace
Ashland, Oregon 97520
Appellant's Attorney: Christian E. Hearn, OSB #911829
Davis, Hearn, Saladoff & Bridges, P.C.
515 East Main Street
Ashland, OR 97520
(541) 482-3111
chearn@davishearn.com
.
11
12
.
13
14
15
. Decision Appealed: "Findings of Fact, Conclusions of Law and
16
Order" issued by the City's Planning Commission on July 13, 2010,
17
as the Planning Commission's final decision in Planning Action
18
#2009-01244 ("Planning Commission's Decision'?
19
20
III III
21
NOTICE OF APPEAL TO COUNCIL
PlallII/llg Act/Oil # 2009-01244
Page -3-
DAVIS, HEARN
SALADOFF & BRlDOI!S
A Professional Corpor8l1al
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(6411<482-3111 FAX (541) <16a....455
.11
1
Appellant standing as a Party:
.
2
Appellant is co-owner of Hidden Springs Wellness Center
.
3
(1651 Siskiyou Blvd.), which is adjacent to the property
4
which is the subject of the Planning Commission's Decision.
5
Appellant is adversely affected and aggrieved by the
.
6
Decision.
7
Appellant appeared at the public hearing before City's
.
8
Planning Commission, and presented both written evidence
9
and oral testimony for the Record. AMC 1B.10B.110.4.E.
10
Date of Planning Commission's Decision:
.
.
Date Decision signed by Chair: July 13,2010;
Date Decision mailed to Parties by staff: July 16, 2010.
12
.
13
Clear and distinct identification of the specific grounds
.
14
for which the Decision should be reversed or modified
15
by City's Council, based on Identified applicable
16
criteria or procedural integrity:
17
See attached Exhibit "A" (with it's numbered Sub-Exhibits),
.
18
all of which are fully incorporated herein by reference.
19
AMC 18.108.110.A.4: Except upon the election to re-open the record as
20
set forth in subparagraph 4.8. below, the review of a decision of the
21
Planning Commission by the City Council shall be confined to the record
NOTICE OF APPEAL TO COUNCIL
Planntng Actio" # 2009-01244
Page -4-
DAVIS,HEARN
SALADOFF & BRIDGES
AProfessloolllCorpo1811on
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541) <182.3111 FAX(&41) 488...455
1
2
3
4
5
6
7
8
9
10
11 .
12
13
14
15
16
17
18
19
20
n
of the proceeding before the Planning Commission. The record shall
consist of the application and all materials submitted with it;
documentary evidence, exhibits and materials submitted during the
hearing or at other times when the record before the Planning
Commission was open; recorded testimony (including DVDs when
available); and the executed decision of the Planning Commission,
including the findings and conclusions. In addition, for purposes of City
Council review, the notice of appeal, and the written arguments
submitted by the parties to the appeal, and the oral arguments, if any,
shall become part of the record of the appeal proceeding
ReSDonse: Appellant designates the Record in its
entirety, including the application and all materials
submitted by Opponents during the Planning
Commission public hearing process; all recorded
testimony (including DVDs) from the Planning
Commission public hearing process; the executed
Decision of the Planning Commission, including the
Findings, Conclusions, and Order; this Notice of
Appeal with its attached Exhibit "A" and numbered
Sub.Exhibits attached to Exhibit "A ", any written
arguments submitted by Appellant and other
NOTICE OF APPEAL ro COUNCIL
Ptanning Action # 1009-01244 .
Page -5-
DAVIS, HEARN
SALADOFF & BRJOOES
A Prof8SSiOOBlColpOr8tlon
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)482-3111 FAX(5411~66
1
2
3
4
5
6
7 .
8
9
10
11
12
13
14
15
16
17
18
19
20
21 11/ III
opponents in advance of the public hearing on this
Appeal; and any oral arguments submitted by
Appellant and any other opponents who submit
evidence, argument, and/or testimony in connection
with this Appeal proceeding. Applicant does not
request the Record be reopened.
AMC 18.108.110.8: The Council may reopen the record and consider
new evidence on a limited basis, if such a request to reopen the record
is made to the City Administrator together with the filing of the notice of
appeal and the City Administrator determines prior to the City Council
appeal hearing that the requesting party has demonstrated:
. AMC 18.108.110.4.8.a: That the Planning Commission
committed a procedural error, through no fault of the requesting
party, that prejudiced the requesting party's substantial rights and
that reopening the record before the Council is the only means of
correcting the error.; or,
. AMC 18.108.110.4.8.b.: That a factual error occurred before the
Planning Commission through no fault of the requesting party
which is relevant to an approval criterion and material to the
decision; or,
NOTfCE OF APPEAL TO COUNCIL
Plmmtllg Action 112009-01144
Page -6-
DAVIS, HEARN
SALADOfF &. BRIDGES
A ProfllsslonaICotporallon
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(641)492-3111 FAX (641)0488-<1455
1
AMC 1B.10B.110.4.B.c.: That new evidence material to the
.
2
decision on appeal exists which was unavailable, through no fault
3
of the requesting party, when the record of the proceeding was
4
operi, and during the period when the requesting party could have
5
requested reconsideration. A requesting party may only qualify for
6
this exception if he or she demonstrates that the new evidence is
7
relevant to an approval criterion and material to the decision. This
8
exception shall be strictly construed by the Council in order to
9
ensure that only relevant evidence and testimony is submitted to
10
the hearing body.
11
Re-opening the record for purposes of this section means the
12
submission of additional written testimony and evidence, not oral
13
testimony or presentation of evidence before the City Council.
14
AMC 1B.10B.110.C: Oral argument on the appeal shall be
.
15
permitted before the Council. Oral argument shall be limited to
16
ten (10) minutes for the applicant, ten (10) for the appellant, if
17
different, and three (3) minutes for any other Party who
18
participated below. A party shall not be permitted oral argument if
19
written arguments have not been timely submitted. Written
20
arguments shall be submitted no less than ten (10) days prior to
21
the Council consideration of the appeal. Written and oral
NOTICE OF APPEAL TO COUNCIL
Planlllng ActlOll # 2009-01244
Page -7-
DAVIS. HEARN
SALADOFF & BRIDGES
A Protessional Corporation
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(541)0482-3111 FAX(50411~455
1
arguments on the appeal shall be limited to those issues clearly
2
and distinctly set forth in the Notice of Appeal; similarly, oral
3
argument shall be confined to the substance of the written
4
argument.
5
Response: Appellant requests a public hearing on this appeal
.
6
before City's Council in conformity with the above. Appellant
7
intends to submit written argument in support of the appeal no less
8
than ten (10) days before the public hearing before City's Council
9
on this Appeal.
10
AMC 1B.10B.110.E: The Council may affirm, reverse, modify or remand
.
11
the decision and may approve or deny the request, or grant approval
12
with conditions. The Council shall make findings and conclusions, and
13
make a decision based on the record before it as justification for its
14
action. The Council shall cause copies of a final order to be sent to all
15
parties participating in the appeal. Upon recommendation of the
16
Administrator, the Council may elect to summarily remand the matter to
17
the Planning Commission. If the City Council elects to remand a
18
decision to the Planning Commission, either summarily or otherwise, the
19
Planning Commission decision shall be the final decision of the City,
20
unless the Council calls the matter up pursuant to Section
21
18.108.070.8.5.
NOTICE OF APPEAL TO COUNCIL
Planning Act/on # 2009-01244
Page -8-
DAVIS, HEARN
SALADOFF & BRIOOES
A Profasslonal corporation
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(&41) 482-.3111 FAX (541)488-4455
1
ResIJonse: Appellant requests that City's Council reverse the
.
2
Decision on the grounds reflected in attached Exhibit "A ", or on
3
any other grounds which City's Council finds appropriate following
4
the public hearing on this appeal.
5
AMC 18.108.110.F: Appeals may only be filed by parties to the planning
.
6
action. "Parties" shall be defined as the following:
7
1. The applicant; 2. Persons who participated in the public hearing,
8
either orally or in writing. Failure to participate in the public hearing,
9
either orally or in writing, precludes the right of appeal to the Council;
10
3. Persons who were entitled to receive notice of the action but did not
11
receive notice due to error.
12
Response: Appellant qualifies as a "Party" entitled to appeal the
.
13
Decision based on AMC 18.108.110.F.2, above. Appellant
14
participated in the public hearing before City's Planning
15
Commission.
16
AMC 18.108.160.8: Appellant notes that: "The Council has the
.
17
authority to modify any interpretation of the Ashland Land Use
18
Ordinance made by the Planning Commission." AMC 18.108.160.8.
19
Appellant respectfully requests that City's Council review the
20
evidence, testimony, and arguments of Appellant and other
21
opponents offered in connection with this appeal, and exercise Its
NOTICE OF APPEAL TO COUNCIL
Planlllng Action # 2009-01244
Page -9-
DAVIS. HEARN
SALADOPF & BRIDGES
A Professional Corporation
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(641).0182-3111 FAX (541)488-4455
1
power to modify the Planning Commission's interpretation of the
2
relevant criteria and the evidence presented. AMC 18.108.160.8.
3
4
DATED: JUly:?-e2010-
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
NOTICE OF APPEAL TO COUNCIL
Planning Action # 2009-01244
Respectfully submitted,
DAVIS, HEARN, SALADOFF & BRIDGES, P.C.
(~\/C t~
,
CHRISTIAN E. HEARN, OSB #911829
chearn@davishearn.com
Attorneys for Appellant Roderick J. Newton
Page-IO-
DAVIS, HEARN
SALADOFF& BRlOOI!S
A Pl'ofesslonalCorporatkln
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(5411482-3111 FAX (541)480....0455
EXHIBIT "A" TO NOTICE OF APPEAL
PLANNING ACTION # 2009-01244
(Appellant: Roderick J. Newton; Applicant: AT&T Wireless, LLC)
APPELLANT'S IDENTIFICATION OF GROUNDS SUPPORTING
CITY COUNCIL'S REVERSAL OR MODIFICATION OF THE
PLANNING COMMISSION'S DECISION DATED JULY 13, 2010.
AMC 18.108. 110.A.2.
NOTE:
. ATTACHED SUB-EXHIBITS (FROM THE RECORD BEFORE THE
PLANNING COMMISSION) ARE INCORPORATED BY REFERENCE.
. APPELLANT WILL PROVIDE FURTHER LEGAL ARGUMENT IN
SUPPORT OF HIS APPEAL PRIOR TO THE PUBLIC HEARING
BEFORE COUNCIL.
. CONDITIONAL USE PERMIT CRITERIA. AMC 18.104.050.C. Applicant failed
to meet its burden of proof in addressing the Conditional Use Criteria for the
reasons set forth in attached Sub-Exhibits 9. The Planning Commission
Decision is not based on substantial evideIJce in light of the Record. More
specifically the Application failed to meet the conditional use criteria pertaining to
adverse material effects on livability within the impact area when compared to
the development of the subject lot with the target use of the zone. See: attached
Sub-Exhibits 1 through 9.
. COLLOCATION.
. AMC 18.72.180.8.6. Applicant was required to submit, inter alia, a
"Collocation Feasibility Study that adequately indicates collocation efforts
were made and states the reasons collocation cannot occur." AMC
18.72.180.8.6. Applicant did not submit such a study and to the extent
later submissions concerning collocation efforts were submitted by
Applicant, they were insufficient to meet applicant's burden of proof under
this criteria. See attached sub-exhibits. The Planning Commissions
determination that Applicant met its burden of proof in adequately
addressing this criteria was not based on substantial evidence and the
Council should reverse or modify the Decision. See attached Sub-Exhibits
1 through 9.
. AMC 18.04.04. Applicant failed to meet the standards imposed by AMC
18.04.04 for the reasons set forth in attached Sub-Exhibit 1 @ page 1.
Exllibit '~" to Notice of Appeal- Planning Action # 1009-01244
Page -1-
. AMC 18.72.180.C. The Planning Commission found that the criteria
reflected in AMC 18. 72.180.C were not mandatory criteria which Applicant
was required to meet. This finding was not supported by substantial
evidence in the Record. The Council, as City's elected policy-making
body, is empowered to interpret it's own AMC. Applellant respectfully
requests that Council do so in conformity with Sub-Exhibits 1 through 9,
attached and incorporated herein by reference. See, for example, Sub-
Exhibit 1 @ pages 1 - 7; See also Sub-Exhibit 2. Appellant also contends
that the findings at pages 15 and 16 of the Decision are not based on
substantial evidence in light of the Record. See: attached Sub-Exhibits.
The decision that approval would have no greater adverse affect on
livability was also not based on substantial evidence. See attached Sub-
Exhibits.
. FAILURE TO PROVIDE LEASE WITH APPLICATION. This is an approval
criteria, and it's relegation to a mere condition of approval was improper.
. FAILURE TO MEET CRITERIA REQUIRED FOR ADMINISTRATIVE
VARIANCE. AMC 18.72.090. The Findings of the Planning Commission
reflected at pages 27 and 28 of the decision were not based on substantial
evidence in the Record. See attached Sub-Exhibits 1 through 9.
. INCLUSION OF SPECIFIC ISSUES RAISED IN DETAIL IN ATTACHED SUB-
EXHIBITS 1 THROUGH 9 AS ADDITIONAL ISSUES FOR APPEAL. Attached
Sub-Exhibits 1 through 9 raise several additional issues in a clear and distinct
fashion. See attachments. Appellant raises all the specific issues reflected in
attached Sub-Exhibits 1 through 9 as additional grounds for this Appeal, and
hereby incorporates the Sub-Exhibits here as if fully set forth verbatim.
Exhibit "A" to Notice of Appeal- Planning Action # 2009-01244
Page -2-
Commissioners,
My name is Aaron Brian. I live at 307 North Main in Ashland. I am an
attorney and I submit this letter in opposition to the application submitted by
Goodman Networks, on behalf of AT&T, to install a wireless communication
facility on top of the Ashland Street Cinemas.
The reasons for my opposition are, essentially, twofold. First, collocation
is possible at the Holiday Inn Express --- where Verizon Wireless has antennas ---
and the Ashland Municipal code requires collocation where feasible. Second,
locating at the Ashland Street Cinema creates a series of problems at and around
the cinema building, including the negative impact on visual and aesthetic
qualities and the lack of sufficient space for future wireless facilities.
COLLOCATION
Before discussing the sections of the Ashland Municipal Code (AMe) that
apply specifically to wireless communication facilities, it is important to consider
two of the more general sections. First, section 1.04.04 of the Ashland Municipal
Code (AMe) states that:
"The provisions of this code and all proceedings under them are to
be construed with a view to effect their objects and to promote
justi ce."
Second, section 18.04.020, concerning land use, states that
"The purpose of this Title is to encourage the most appropriate and
efficient use of land; to accommodate orderly growth; to provide
adequate open space for light and air; to conserve and stabilize the
value of property; to protect and improve the aesthetic and visual
qualities ofthe living environment; to aid in securing safety from
fire and other dangers; to facilitate adequate provisions for.
maintaining sanitary conditions; to provide for adequate access to
and through property; and in general to promote the public health,
safety and the general welfare[.]"
Thus, according to the above sections, the code should be construed to give
effect to the stated objectives, which include: to encourage the most appropriate
and efficient use of land, to accommodate orderly growth, to conserve and
stabilize the value of property and to protect and improve the aesthetic and visual
qualities of the living environment.
Exhibit 1
page-'-of~
In addition to these general guidelines, the City of Ashland enacted specific
rules for determining the proper location to install wireless facilities. Section
18.72.180 of the Ashland Municipal Code sets forth the "Development Standards
for Wireless Communication Facilities." The purpose and intent of AMC
18.72.180 is:
"to establish standards that regulate the placement, appearance and
impact of wireless communication facilities, while providing
residents with the ability to access and adequately utilize the services
that these facilities support" AMC 18.72.180(A).
Thus, when the commission considers Goodman/AT&T's application,
it should construe AMC 18.72.180 to give effect to these objectives. And,
based on AMC 1.04.04, the commission shall factor the considerations and
guidelines of AMC 18.72.180 into its decision making process.
When the City enacted AMC 18.72.180, it included a subsection
specifically for selecting what location to install new wireless facilities. AMC
18.72. 180(C)(2) states, in relevant parts, that:
"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."
The code is straightforward: If collocation is feasible, collocation is
required. If collocation is not feasible, then the wireless facilities shall be attached
to pre-existing structures, if that is feasible. If that is not feasible, then the code
allows for alternative methods of installation.
The code is clear that collocation is the preferred and even required method
of installation. The commission should thoroughly consider those facts that show
collocation is feasible. In its application, Goodman/AT&T conceded that it was
feasible to collocate at the Holiday Inn Express, where Verizon has wireless
facilities. According to Goodman, The Holiday Inn Express is "located about a
half mile from the center of the search ring, a reasonable location according to the
search map. It is also possible to add false architectural elements to screen
installation at the Holiday Inn." (February 12,2010 letter from Goodman
Networks to Derek Severson, submitted as part of GoodmanJAT&T's application).
Moreover, Goodman admitted that, "AT&T believes collocation is the best
possible solution to deployment of systems needed to meet the growing demand
Exhibit I
Page2-.of~
for wireless services." (February 12,2010 letter from Goodman to Derek
Severson, submitted as part ofGoodmanlAT&T's application). Despite this
belief, Goodman! AT&T applied to install its wireless facilities at a new location.
When asked to provide a "collocation feasibility study," Goodman!AT&T wrote
back that although collocation was feasible, wireless facilities at the Holiday Inn
Express would not be as efficient as antennas at the Ashland Street Cinemas.
No explanation was given as to how much less efficient the Holiday Inn
Express site would be. Rather, Goodman stated that the Holiday Inn site would be
less efficient because the hotel was lower in elevation than the cinema and because
more coaxial cable would be needed at the hotel than at the cinema.
Goodman! AT&T did not provide any technical studies or relevant materials to
substantiate those claims. Those claims were, however, studied by Vitaly
Geyman, who spent 10 years designing base stations for cellular towers in
Australia. His response, which he has submitted to the commission, was as
follows:
"AT&T has given two reasons why the Ashland Cinema location is
their preferred site, lower elevation and the need for a longer run of
coaxial cable at the Holiday Inn Express location.
"To address their first reason, we measjlred the altitude difference to
be 16 feet. This is a relatively insignificant difference, particularly
given the surrounding topography and should not affect the
feasibility of this site in a substantial way.
"As for the longer run of coaxial cable, it appeared that the excessive
cable necessary would be minimal, and this is actually not a
technical impediment. There are a variety of signal amplifiers that
can be installed if required.
"In conclusion, based on my technical experience, and my review of
the location, the two reasons AT&T has given for the Holiday Inn
site not being feasible are not justifiable."
The evidence before the commission overwhelmingly supports the
conclusion that collocation at the Holiday Inn Express is feasible. In fact, there is
no evidence that collocation at the Holiday Inn Express is not feasible.
To encourage, even require, collocation does not violate the approval
criteria for conditional use permits. AMC 18.104.050 allows the commission to
take into account "[0 ]ther factors found to be relevant by the Hearing Authority
for review ofthe proposed use." There is no question that the code's own
guidelines regarding collocating are relevant to Goodman/AT&T's application.
Exhibit 1
Page~of~
The Telecommunications Act of 1996 was mentioned numerous times at
the May 11, 2010 public hearing. It is important to point out that that act
specifically reserved to local authorities the right to determine where and how to
locate wireless facilities:
"Except as provided in this paragraph, nothing in this chapter shall
limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification or personal wireless facilities."
The only limitation is that the environmental effects of radio frequency
emissions cannot be the basis for a decision if the proposed facility meets federal
emissions regulations. That is not the basis of my opposition. Rather, I am asking
that the commission follow the guidelines established by the Municipal Code.
And, as it relates to wireless facilities, the code prefers, even requires, collocation
where feasible. It would be remarkable if the commission did not give substantial
weight to that guideline.
To recap:
1. The Ashland Municipal Code prefers, even requires, collocation if
feasible;
2. AT&T believes collocation is the best solution to deploy wireless
facilities;
3. Collocation is feasible at the Holiday Inn Express, where Verizon has
installed a wireless facility;
4. The Holiday Inn Express and the Ashland Street Cinema are the same
distance from the center of AT&T's search ring; and
5. Signal amplifiers can alleviate the alleged inefficiencies of the Holiday
Inn Express site.
It should be remembered that AT&T is not entitled to the location of its
choice simply because if prefers one location over the other. The commission
must first consider and then approve the application. In considering the
application, the commission must consider AMC 18.72.180, which quite plainly
states that collocation is the preferred and even required method. The commission
must also consider the evidence presented that collocation is feasible at the
Holiday Inn. To grant AT&T's application despite the presence of an equally
reasonable site for collocation would render AMC 18.72.180 meaningless.
Moreover, to the extent Goodman/AT&T intend to appeal a denial of their
application, it is important to note that federal district courts place a heavy burden
on applicants who argue that denial is impermissible because there are no ,
Exhibit
. Page-4-of%
alternative sites. As the First Circuit Court of Appeals held in Southwestern Bell
Mobile Systems, Inc. v. Todd, 244 F 3d 51 (Mass. 2001):
"For a telecommunications provider to argue that a permit denial is
impermissible because there are no alternative sites, it must develop
a record demonstrating that it has made a full effort to evaluate the
other available alternatives and that the alternatives are not feasible
to serve its customers."
For example, an applicant in another case put evidence into the record
that it had examined 771 different parcels to assess where else they could
place their tower. Industrial Communications & Electronics, Inc. v. O'Rourke,
582 F Supp 2d 103 (D.Mass., 2008). Because one of those parcels had the
potential to serve the applicant's needs, the zoning authority's denial of the
application to install at a different site was upheld.
There is no evidence that Goodman/AT&T made a "full effort to
evaluate the other available alternatives(.]" The only evidence in the record is
that the Holiday Inn Express is a feasible site for collocation, but that AT&T
preferred to install new equipment at the Ashland Street Cinemas. There was
some testimony at the public hearing that AT&T could not find any willing
landlords and that the Ashland Street Cinema was "the only option."
(Testimony of Gary Spanovich, representative from Goodman). That
testimony is either unsupported or flatly contradicted by the materials in the
application. Those inconsistencies were pointed out to Mr. Spanovich at the
May 11, 2010 hearing but he was unable to explain them.
Based upon the federal case law cited above, the commission is well
within its authority and well within the limitations imposed by the
Telecommunications Act, to deny the application because collocation at the
Holiday Inn Express is feasible.
POTENTIAL PROBLEMS AT ASHLAND STREET CINEMAS
As a condition of its application, Goodman! AT&T was required to submit a
signed lease "showing that the lease agreement does not preclude collocation."
AMC 18.72.180, This requirement supports the code's overall preference to
collocation over other methods ofinstallation. It makes sense, then, that the lease
between Goodman/AT&T and the cinema building owner allow for other cellular
companies to collocate their facilities on the cinema in the future.
Exn:b~ 1 Z
Page of
Although the application was to be deemed void if a signed copy of the
lease was not provided, Goodman!AT&T did not submit a signed copy of the
lease_ Instead, Goodman stated that:
"AT&T's proposed placement of antennas on the existing Ashland.
Street Cinemas will allow for potential future collocation of
additional antennas, provided the minimum separation between
antennas is satisfied and a future collocation facility company could
come to an agreement with the Ashland Street Cinema for ground
space and space on the roof." (March 2,2010 letter from Goodman
to Derek Severson, submitted with the Goodman! AT&T
application).
However, this response does not answer the central question, which is
whether the lease precludes collocation. Instead, the response says, basically, if
later agreements can be reached and there is sufficient room, then collocation
might work. That is a far cry from what the code requires.
By refusing to provide the lease, or a straightforward answer as to future
collocation at the Ashland Street Cinema, Goodman placed the commission in the
position of having to rule based partly on guesswork:
1. Does the leasc allow for collocation?
2. Is there room on the roof for additional antennas, given the engineering
requirement for certain distance between each antenna?
3. Is there room on the ground for additional ground equipment? Recall
that AT&T has applied for a variance to install its own ground
equipment; is there room around the cinema for the ground equipment
necessary with any future collocation?
4. Will the roof support additional WCF? The theater operators have
testified to concerns over safety at the theater, including problems with
water leaks and damage to their equipment. Has an engineering study
been performed?
Without answers to these questions, the commission cannot know if future
collocation is permitted, or even possible, at the Ashland Street Cinemas. And,
given the amount of time that has elapsed during this application process, it is hard
to believe that Goodman! AT&T could not provide better information concerning
these valid and specific issues. The lack of information certainly raises this
question: Would the answers to these questions further encourage collocation at
the Holiday Inn Express site?
Exhib't 1
page~of.::r::.
Installing the facilities at the Ashland Street Cinemas will also impact the
livability and the visual and aesthetic qualities of the area. Several tenants of
neighboring buildings testified to the effect these towers will have. Dr. Deborah
Gordon and Suzanne Sky testified at the public hearing about the lost views of
Grizzly Peak caused by raising the rootline of the cinema. These losses will only
be further aggravated by any future collocation on the cinema.
I am opposed to the application because collocation is feasible at the
Holiday Inn Express and because there are substantial problems, known and
unknown, with construction of a new wireless facility at the Ashland Street
Cinemas.
Thank you for taking the time to consider my opposition.
Kind Regards,
Aaron Brian
Exhibit I
Page~of~
Vltaly Geyman (B.Eng. MBA)
1172 N.Main st.
Ashland, OR 97520
641-482-9166 office
May 17, 2010
Ashland Planning Commission
51 Winburn, Ashland, OR 97520
HECEIVED
MAY 1 '1. 2010
City of Ashland
Commissioners,
I worked for Telecom Australia for 10 years asa senior engineer. The last
four years I designed 400-500 base stations for cellular networks all
across Australia. I also conducted financial evaluation for the network.
I recently completed a site visit to both the Ashland Cinema and HOliday
Inn Express sites. What follows is my professional opinion of the relative
feasibility of each site. AT&T has given two reasons why the Ashland
Cinema location Is their preferred site, lower elevation and the need for a
longer run of coaxial cable at the Holiday Inn Express location.
To address their first reason, we measured the altitude difference to be 16
feet. This is a relatively Insignificant difference, particularly given the
surrounding topography and should not affect the feasibility of this site In
a substantial way.
As for the longer run of coaxial cable, It appeared that the excessive cable
necessary would be minimal, and this Is actually not a technical
Impediment. There are a variety of signal amplifiers that can be Installed If
required.
In conclusion, based onrny technical experience, and my review of the
location, the two reasons AT&T has given for the Holiday Inn site not
being feasible are not justifiable. Apparently Verlzon also came to the
same conclusion, based on the fact that they located their wireless
Installation there.
Vltaly Geyman (B.Eng. MBA)
541.482-9166 office
v:
Exhibit '2.-.
Page-Lof..L
. HECEIVED
May 19,2010
Cote Hartzell
892 Garaen Way
Ashland, Oregon 97520
MAY 1 9 2010
OIlV of A.h1ond
Community Ouvoloprrwnl
Ashland Planning Commission
20 East Main Street
Ashland, Oregon 97520
Deal' Planning Commissioners,
I would like to add to my existing comments l'egarding my opposition to AT&T's request
to place a microwave system atop the Ashland Street Cinema,
1) I believe that the Planning Commission should l'equlre AT&T to present
incontrovertible evidence that collocation at any other existing site is not possible.
As you noted in YOUI' last meeting on this application, the applicant was
presenting conflicting evidence;
If AT&T doesn't present additional information that sets the record stmight, then
I hope the Commission will reject the application on the basis that they did not
sufficiently meet the collocation clause in our codes,
If AT&T DOES offer evidence to resolve their conflicting statements, then the
Planning Commission faces another challenge. Given that AT&T itself confused .
the record with conflicting infOlmatlon, it is logical that the commission would
want some thu'd palty assessment of what is presented to resolve the conflict.
However, the record is closing so the Commission can't ask staff to hire out for an
independent assessment, Ashland M\1tticipal staff a1'e not micl'owave experts,
It is not uncommon for lay decision makers to defer to corporate information
because that information is highly technical. I ask that you not make that mistake,
The burden of demonstrating that standards are met is the a01)licant's. If they fail
to do that, 01' worse, confuse the decision makers with conflicting evidence, then
the public's ability to tmst the process or to respond to information on the record
is compromised.
If AT&T is required to study collocation, our law is meaningless if any study
concludes that It Is not "the BEST" location. We KNOW it may not be the best,
but we have the rule because it is our intent to use it when it is possible, It appears
that it is a discretionary decision as to what level of quality we will award in site
placement. If the commission determines that each applicant deserves 100%
placement quality evel'y time, then we should repeal the !'Ute. Since cOl'porations
are able to rent out space in their site, it will always be more profitable to
establish one's OWN site, It will always be optimal to place it at the exact GIS
Exhibit -:>
Page-Lof~
/
spot COl' the right connections. It will always be optimal to have the security of
your facility completely under your control and access.
2) It appeal's that city staff may be acting in an extra-cautiously in its role with this
application because it involves federal law that is unusually prescriptive. I
understand this, but advise Commissioners to recognize that the Commission's
role as citizen decision makers is different. Please consult with staff and ensure
that you understand the nature of the discretion that you have as a decision
making body.
3) Fl'Om January 2005 to December 2009 I worked in an office directly adjacent to
MI'. Rydbom's office. In wOl'king with him, I learned that he is responsive to the
needs of his tenants and that he cares about this community. I fully expect that he
has been surprised by the response of his business neighbol's to what he expected
to be a harmless fixture. I fully expect that, if given the opportunity, he will
terminate any lease he has signed with AT &1 in order to remain consistent with
his own business principles.
Mr. Rydbom has the Shopping Center on the market to sell. Anything that creates
a contl'Oversy in the papers or jeopardizes the health of the businesses in the
Shopping Center has the potential of lowering the value on the mal'ket. AB you
know, there is an abundance of commercial property on the market in Ashland
now, so lowering the desirability oflhe property in this market is not in Mr,
Rydbom's interest. I suspect that his motivation is high to resolve this matter in a
way that protects his financial and business interests.
4) It is my understanding that AT&T failed to pl'Ovide the Lease to access the
prOpel'ly in the timeframe that staff requested. While I trust that the City Attorney
will advise the Commissioners that it doesn't matter because it was part of the
pre-app report, I believe that it does mattel'. Members of the public have access to
the pre-app report and have a reason to expect that the recommendations of staff
will be adhered to. When a legal document that they expected to be able to review
in a timely way is not provided, they are disadvantaged in their right to review
and respond to projects, I know there was a guessing game on the Friday before
the hearing; citizens were trying to figure out who was leasing the property to
AT&T.
I appreciate your attention to this letter of opposition to the project. I suspect that this
project will come bacle to you for fUl'lher review if it is approved. In the meantime, I ask
that you initiate a revision of Ashland's laws regarding the cell/microwave equipment
placement. I am happy to offer several examples from other municipalities.
Thank you for your service on the Commission.
Respectfully submitted,
Cate Hartzell
~~
Exhibit
Page%..ofZ-
'.
~ GO~l~/~~~~~~~rks
February 12, 2010
Derek Severson
Associate Planner
City of Ashland
20 E. Main
Ashland, OR 97520
Re: PAn 2009-001244, 1644 Ashland Street (AT&T MD-01)
Additional Submittals- Collocation Study and lease Agreement
Dear Mr. Severson:
You have requested additional Information regarding efforts by AT&T to utilize eXisting
telecommunications facilities In the City of Ashland as an alternative to the installation of
antennas Inside the parapet wall of the Ashland Street Cinema. This Is a summary of those
efforts. '
AT&T believes that collocation is the best possible solution to deployment of systems needed to
'm.eet the growing demand for wireless services. Building new structures Is costly and the
marginal cost per customer Is typically greater when new structures must be built. Installing
antennas on existing structures reduces consumer cost of wireless service, and reduces the
visual Impact on the community being served:
The Ashland Street Cinema Is an ideal location for AT&T, It Is located near the center of the RF
Engineering search ring which identifies that area In Ashland where improved service delivery is
planned. It Is an existing structure, so this location represents one less tower that must be
built, and seen.
Certainly, we evaluated existing AT&T facilities in the vicinity. Attached Is the requested map
showing AT&T facilities within a 5 mile radius. The nearest AT&T site, Installed at the Ashland
Springs Hotel, Is 2.2 miles away, To serve the subject area, the antenna system needs to be less
than a mile from the center of the search ring. The Cinema Is a little over a half mile from the
center of the ring.
-
. Other carrier locations were evaluated as well, Including the Holiday Inn Express. The Holiday
Inn is located about a half mile from the center of the search ring, a reasonabl oc tlon
according to the search m'ap. It Is also possible to add false architectural e emen s 0 screen an
'Installation at the holiday Inn: However the elevation of the antennas would only b about 35
Exhibit
Page_ I
feet above the existing ground. While this is the same .elevation planned for the Cinema
antennas, differences In topographv place the planned Cinema antennas about 25% higher than
would be possible at the Holiday Inn, This slight increase In ground elevation wOUfci make the
projected signal coverage area of the Cinema installation larger and more efficient, potentially
serving more customers. Further, when evaluating iocatlons for radio equipment at the Holiday
Inn, we discovered that the length of the coax run from the radio to the antennas would be
much greater than the run designed for the Cinema. This additional length would result in an
additional loss of signal, adding to the inefficiency of a possible Holiday Inn installation.
Conciuslon:
AT&T believes that these collocation efforts are consistent with the requirements of AMC
18.72, and looks forward to approval of the proposed Conditional Use Permit, and the
opportunity to provide better service to the citizens of Ashland.
Sincerely,
Doug Henderson, AICP
Senior Site Acquisition and Zoning Specialist
Goodman Networks, Inc.
6400 international Parkway
Piano, TX 75093
817-729-7006
Exhibit
page-Z.. of.1L
c:
~
~
a
-"
c:
IV
:;:
~
+"
OJ
I.'!
bl
.,.,
c:
IV
:;:
<
~
C
IV
E
OJ
c:
iJ
1;;
~
-c
c:
IV
:;:
<
'I!
. ~ .
......
'~'i:.,
\.:
...~
-',
'.~:-''''''--
..
OJ
,~
'"
-c
OJ
'"
o
a.
e
a.
t;
'"
::J
'6
f!
OJ
'E
LO
IV
c:
~
i3
;to!
LO
ti
!o:
m
....
~
o
~
8
~
<1W
~\-.......
".'-.
l
~~
", . -.,},-
"'-
'"
.,.
,..
.,"
'.~''', ,':
-....,:
.. :.,~.
'8
.uj
Exhibit
Page30f
RECEIVED
April, Please could you print the attached photo of JPR's Central Hall and Include It alsQ,ln, 1 8
the Record for PA 2009-01244. MAT 2010
Planning Commissioners,
(cc Rod & Brooks Newton)
Please deny PA 2009-01244 (1644 Ashland Street) for the following reasons:
City of Ashland
Community Development
Our ALUa (18.72.180 Development Standards for Wireless Communication Facilities -
Submittals B(6) requires:
A collocation feasibility study that adequately Indicates collocation efforts were made and
states the reasons collocation can or cannot occur.
The applicant submits extremely limited evidence of "collocation efforts" which I find to be
totally Inadequate coIJslderlng the sensitivity of the sltuatlolJ. The alternative proposed
freeway site seems Ideal, But has AT&T even looked at co-locating with existing antennae on
the nearby SOU campus - where wireless facilities already exist?
Examples of possible collocation sites are with the screened antennae atop the RVN
building, the disc antennae atop the SOU Gymnasium or alongside the many JPR arrays atop
Central Hall.. All these locations seem to be near the current site proposal and the location at
Central Hall has a higher elevation and presumably would have better propagation and
coverage.
Such antennae are a Permitted Use In SO Zone rather than Conditional. (It should be noted
that even allowing such Conditional Use was only recently added to the C-l zones 18
months ago In the 2008 omnibus changes to our code by our short-lived prior Planning
Director. Perhpas this was a mistake.)
~-
As an example of the Inadequacy of the applicant's efforts to co-locate with existing facilities,
the following Is a copy of recent correspondence received from JPR's executive director:
from Ronald Kramer <rkra er e e.o >
to Colin Swales <collnswales(li)gmall.com>
cc wlll(li)hlddensDrlnoswellness.com
date Mon, May 10, 2010 at 12:37 PM
subject RE: ATT Co-locate with JPR?
Hi Colin,
,
No one has ever approached us about co-locating cell hone antennas on our Ashland towers
'(although we nave rented space for cellphone antennas on some of our.-owers outside of
Jackson County).
,
Because of the "zones" that cell antennas cover, I don't know whether a location on our
Central Hall roof would give ATT the coverage that they are apparently trying to get a bit
more to the NE (If they are trying to put something on the roof at the shopping center) but
we certainly have room for them on our roof and would happy to have the tenant. We also
have the 300 foot tower on the north side of town, at the freeway Interchange, which Is
Exhibit
Page-L-of
KSJK's AM tower. We have leased space out on It but would likely have room for another
user.
We're happy to talk with AT&. T If they have any Interest In our locations.
Good luck...
Ron
Impact
Our Comprehensive Plan states
. Chapter VII
Economic Element .
GOAL
To ensure that the local economy Increases In Its health, and diversifies In the number, type
and size of busllJesses consistent with the local social needs, public service capabilities, and
the retention of a high quality environment.
VII-5 The City shall encourage economic development of the local resources and enhance
employment opportunities for existing residents. The Oty's policy Is that economic
development shall always have as Its primary purpose the enhancement of the community's
economic health.
To meet these goals the Employment Opportunities Analysis (EOA) was recently undertaken
which shows the Increasing Importance of the Health services Industry In Ashland. (Recent
testimony before the Commission stated neighboring bu.slnesses would be negatively
threatened by the applicant's proposal):
Some extracts from the EOA:
Transit: Transit access Is most Important for businesses In Health Services, which has a high
density of jobs and consumer activity, and serves segments of the population without access
to an automobile.
The economic effects of this demographic change Include a slowing of the growth of the
labor force, an Increase In the demand for healthcare services,
Projections from the Bureau of Labor Statistics Indicate that U.S. employment growth will
continue to be strongest In professional and business services, healthcare and sodal
assistance, and other service Industries
The sectors that added the most employees were Construction, Health &. Social Assistance,
and Retail. Manufacturing lost the most employees.
The sectors with the greatest employment are: Public Administration (18%), Accommodation
and Food Services (17%), Health Care and Social Assistance (16%), and Retail Trade (14%).
These sectors accounted for 5,973 or 67% of Ashland's Jobs.
Exhibit
Page20f
Ashland's quality of life and access to health care make it an attractive place for elder care
facilities.
...the following are gr.owth Industries or are likely to be growth Industries In Ashland:
Accommodatlons and Food Services; Retail; Health and Social Assistance; Arts,
Entertainment, and Recreation; Information; and ProfessIonal, Scientific and Technical
Services.
When employment In Ashland Is compared with employment In Jackson County and Oregon,
the sectors with comparatively high concentration of employment In Ashland are: Health
Care and Social Assistance; Arts, Entertainment, and Recreation; and Accommodations and
Food Services.
The 2005 Business Retention and Expansion survey targeted firms Involved In the following
sectors: Accommodations and Food Services, Manufacturing, Retail Trade, and Health Care.
The sectors that will lead employment growth In Oregon for the ten-year period are
Professional and Business Services, Health Care & Sodal Assistance, leisure & Hospitality;
and Retail Trade, Together, these four sectors are expected to add 146,900 IJew jobs or
61 % of employment growth In Oregon.
Three of the sectors with the largest share of employment In Ashland are forecast to grow
the fastest In Region 8: Health Care & Social Assistance, leisure & Hospitality (IIJcluding
Accommodations and Food Services), and Retail Trade.
The aging populatIon In Ashland, both from aging of existing residents and In-migration of
retirees, may attract healthcare related firms that provide services to older people
PopulatlolJ growth, changing demographics, and tourism may drive more development of
small and specialty retail shops, as well as offices for business, professIonal, and health care
servIces. .
The economic effects of this demographic change Include a slowing of the growth of the
labor force, an Increase In the demand for healthcare services,..
Jackson County has added more than 8,250 jobs, with the most growth In
Construction, Health & Social Assistance, and Retail.
Our Comprehensive Plan also has goals and policies such as providing:
Specific development guidelines which will ensure that: .
2) Development along Siskiyou Boulevard and Ashland Street will not primarily be
automobile-oriented, but will also Include attractive landscaping and designs that encourage
pedestrian, bicycle, and mass transit forms of travel.
4) Retail, office, and traveler's accommodations and neighborhood shopping In residential
areas, at development Intensities that are appropriate to the area.
5) Commercial or employment zones where business and residential uses are mixed.
Exhibit
Page-3-of
(This compo plan policy Is reason enough to deny the requested administrative variance that
seeks to Ignore such required "attractive landscaping" and buffering)
Chapter XII
Urbanization
GOAL
It Is the City of Ashland's goal to maintain a compact urban form...
This Is usually referred to as Ashland's "Inflll" policy.
Yet this application ensures that the surrounding underdeveloped lot forever remain as a
single story strip-mail. A possible second story would effectively block wireless signal
propagation from the proposed antennae. This same limiting effect would also affect
. neighboring properties as well. Anybody that wanted to build to the allowed (and
encouraged) height and density In order to provide a viable transit-oriented development
would Immediately get opposition from cell-phone users who might worry about having their
cell phone reception negatively affected.
Therefore, such an antenna InstallatIon would not allow "development of adjacent properties
as envisioned In the Comprehensive Plan.".
Commissioner Dotterer also requested Staff to suggest to the PC some
"Othl;!r factors fou nd to be relevant"
If such suggestions are forthcoming, I would like to request that Public hearing be re-
opened to allow further oral testimony on the subject, and that the Record also remain
open for written testimony, so that the public has a full opportunity to address any such
"other factors" fully In writing.
Colin Swales
143 Eighth street, Ashland, Oregon.
ALUO: 18.104,050 Approval Criteria
"Impact Area" - That area which Is Immediately surrounding a use, and which may be
Impacted by it. All land whtch Is within the applicable notice area for a use Is Included In the
Impact area. In addition, any lot beyond the notice area, If the hearing authority finds that It
may be materially affected by the proposed use, Is also Included In the
impact area.
B. ''Target Use" - The basic permitted use In the zone, as defined below.
4. Col. The general retail commercial uses listed In 18.32.020 B., developed at an Intensity
of .35 gross floor to area ratio, complying with all ordinance requirements.
C. That the conditional use will have no greater adverse material effect on the livability of
the Impact area when compared to the development of the subject lot with the target use of
the zone. When evaluating the effect of the proposed use on the Impact area, the
folloWing factors of livability of the impact area shall be considered In relation to the target
use of the zone:
6. The development of adjacent properties as envisioned In the Comprehensive Plan.
7. other factors found to be relevant by the HearIng Authority for
review of the proposed use,
Exhibit s.
PageS- of1..eJ-
~~lti:'::'
Il~~.~~~~._,........ r7'N'._._.__.~~....u...n"'''''~''--M''i ~..y~~...ft." ..._l~.Ic..,_._~~.,.. ..... ..u~..,. ,. "'~''''_'''~''~.'''''~'. ......"....,~._.~,,~...~~_......~....~~............_
~ ....."',
RECEIVED
From:
To:
Date:
Subject:
Rod <rod@mlnd.nel>
<Iucasa@ashland.or.us>
6/151201011:06 AM
PA 2009-01244 Cell Tower app.
JUN 1 5 2010
Cill' of Ashland
Communl1y De\lolcpnlQTlt
Collocation Considerations:
Planning Commissioners,
Please consldar this additional evidence to support denial of PA 2009-01244 (1644 Ashland Street):
Verizon's conditional use permit at the Holiday Inn Express site would not have been granted If collocation
at that site were not feasible. The fact that Verlzon has Installed and Is operating a wtreless facility
demonstrates the feasibility of an Installation at that site, The only reasonable logical reason for AT&T not
collocating at that site would have to be based on location. Yet In their documents AT&T has admitted the
location was feasible, saying the Holiday Inn Express site Is "a reasonable location according to the
search map' and In their latest letter of May 19th they stated, "The co looatlon on the Holiday Inn Express
could work-purely from an RF perspective.'
AT&T's went on to state, however, that collocating at the Holiday Inn Express would not work because
eccess to Inet would be dangerous. First of all, AT&T did not mention this In their
p cation, or In their response to staff for co oca on feasibility studies. It Is curious that AT&T Is now
claiming this as a reason that collocation will not work, Secondly, and even more curious, this is the same
location that Verizon Is already using. How Is It that Verlzon can manage this "dangerous location' but
AT&T cannot? AT&T's newly stated reason that collocation will not work simply does not make sense.
In fact, alrof the reasons that AT&T Is giving now, after the fact, cannot be considered evidence that they
considered collocation seriously. It appears that they are retrospectively trying to justify their declslon to
not collocate. If they had explored collocation seriously, surely they would have Included those studies In
their application.
A prime example of this retr ctive ustlflcatlon Is their reason In their May 19th letter for not collocating
at the SOU site, "lengthy approval process or lease.' Ron Kramer, from SOU writes, 'No one has ever
approached us about co-locating cell phone antennas on our Ashland towers... We're happy to talk with
AT&T If they have any Interest In our locations.' AT&T doesn't give any documentation lhatthey talked
with anyone at SOU to determine that the lease negotiations would be lengthy, or even what their
definition of lengthy Is. Even If the approval process for the lease were lengthy, that cannot be considered
a valid reason to not collocate. Collocation in that case Is feasible, just nDt as convenient as AT&T would
like It to be. Whatever AT&T might submit on the last day the record Is open, without giving citizens a
chance to check the facts, must be held equally suspect.
It might be argued that legally, the applicant doesn't need to justify their reasons why collocation Is not
feasible, Just that they have explored the possibility of collocation. That Interpretation makes a mockery of
the Intent of the Ashland law. The Intent of the law Is vel"\( clear: Collocation Is the preferred method. I urge
you to uphold that Intention and deny AT&T's conditional use permit.
Thank you,
Rod Newton
1196 Timberline Terrace,
Ashland resident for 25 years
.'
Exhibit Co
Page-Lof. \
~=-'.:::..~,;,(..;".:,r::''', :""';;~;;'I'\.':;'..-=::''::~'::~:~ . .
. I.......... .. I ~.... II ........
.~.." .-. ..- -,~. '".....~. ~,
-. --',
. ~~_~__.__..'~U.'
~.~~~_~u
nECEIVED
,.\-
From;
To;
Date:
Subject:
Colin Swales <collnswales@gmall.com>
-April Lucas <Iucasa@ashland.or.us>
6/15/20106:16 AM
2009-01244 - Cell Phone Antennae
JUN 1 5 2010
City of Ashtand
Commullity Oeivelopmant
'For the Record PA 2009- 01244 '
'Reason to Deny - #1'
The approval of a conditional use permit (CUP) requires the condlUonal use
to be compared with the "arget use" for the particular zone
For the C-1 zone on the Ashland Shopping Center, the Target Use Is defined
thus:
'4. C-1. The general retail commercial uses listed In 16.32.020 B.,
developed at an Intensity of .36 gross floor to area ratio, complying with
all ordinance requirements.
,
Mr. Rydbom's Ashland Shopping Plaza Is already developed In excess of the
retail commercial Target Use at a gross floor to area ratio (FAR) of .36
(total of 93,084 sq. ft per applicant's submittal, on a 257,439 sq. fllot =
5.91 ac., per Jackson County records,)
The property also doesn't currently "comply with all ordinance requirements"
- especially as regards to required parking.
( see letter from Goodman Networks 3/17/10
http://ashland.or.us/Flles/201 0-05-11_PC_Packet_Web.pdf Pages 33-36. ]
According to the Applicant's own submitted calculations the current uses on
the site require 440 parking spaces - yet only 34.1 are provided. This is
over '22% less than' "what Is already" required, and no account Is taken of
where AT&T's maintenance staffs vehicles would park.
The Planning Commission should not permit further development of this site
until the subject property - or Its current uses - are brought Into
conformity.
'ReasDn to Deny- #2'
The applicant also asserts (without any evidence or proof) that some of
their late attempts at a few other possible co-location sites would not work
due to possible lengthy or complicated Lease negotiations. Yet previous
evidence submitted by such as an emsll from JPR's Executive Director would
suggest totally otherwise.
This cell antenna siting Idea first came to the City as a pre-app In early
May of 2009, and a formal Planning Application not received until late
September of that year. The applicant then took only a few days shy of the
nearly the 6 months maximum to provide required missing Information
(Lease 'stili
'not provided), and now they seek an extension to the 120 days time limit.
It seems somewhat disingenuous to only now Imply that lime Is of the
essence.
'Reason to Deny - #3'
The somewhat unique topography for the site Is Important when one considers
that the low rooftop antennas radiate with a horizontal component directly
Exhibit
Page-l- of
I1..\,VIIVI';"V 'VL~~ hU,",Q~.:.~VV(rv.~":.:""T - ,;r
. I IIVIIQ r\11~VIUIQ""
.- - -..-
, ~"H.. ~__ ~~~...
-. '"
.u~~~ .~, _,~...
. "'M'" '=J
at nearby buildings and passers-by, (see applicant's own submitted polar
diagrams. )
The FCC's own Information points to problems when humans are too long In the
same plane and In front of the closely-focused signal propagation, rather
than below It at a presumed "ground level" where It would be much more safe
being beneath this concentrated horizontal RF beam.
.http://www.fcc.gov/cgb/consumerfacts/rfexposure.html
"Human Exposure To Radio Frequency Fields: Guidelines For Cellular & PCS
Sites
Background'
"Primary antennas for transmitting wireless telephone service, Including
cellular and Personal Communications Service (PCS), are usually located
outdoors on towers, water tanks, and other elevated structures like rooftops
and sides of buildings. The combination of antenna towers and associated
electronic equipment Is referred to as a "cellular or PCScell site" or
"base station." Cellular or PCS cell site towers are typically 50-200 feet
high. Antennas are usually arranged In groups of three, with one antenna In
each group used to transmit signals to mobile units, and the other two
antennas used to receive signals from mobile units."
'At a cell site, the total radio frequency (RF) power that can be
transmitted from each transmitting antenna depends on the number of radio
channels (transmitters) that have been authorized by the Federal
Communications Commission (FCC) and the power of each transmitter. Although
the FCC permits an effective radiated power (ERP) of up to 500 watts per
channel (depending on the tower height), the majority of cellular or PCS
cell sites In urban and suburban areas operate at an ERP of 100 watts per.
channel or less.'
'An ERP of 100 watts corresponds to an actual radiated power of 5-10 walls,
depending on the type of antenna used. In urban areas, cell sites commonly
emit an ERP of 10 watta per channel or less. For PCS cell sites, even lower
ERPs are typical. As with all forms of electromagnetic energy, the power
density from a cellular or PCS transmitter rapidly decreases as distance
from the antenna increases."
'Consequently, normal ground-level exposure Is much less than the exposure
that might be encountered If one were very close to the antenna and In its
main transmitted beam. Measurements made near typical cellular and PCS cell
sites have shown that ground-level power densities are well below the
exposure limits recommended by RF/mlcrowave safety standarda used by the
FCC.'
"Guidelines"
"In 1996, the FCC adopted updated guidelines for evaluating human exposure
to RF fields from fixed transmittln.g antennas such as those used for
cellular and PCS cell sites, The FCC's guidelines are identical to those
recommended by the National Council on Radiation Protection and Measurements
(NCRP), a non-profit corporation chartered by Congress to develop .
Information and recommendations concernlIJg radiation protection. The FCC's
guidelines also resemble the 1992 guidelines recommended by the Institute of
Exhibit
PageL-of
~.l""'''"''''_~'!I.~~~_~\,IVQO - ~~~~'::'_~-'::!...""!':"l'.
I 11....IIQ,-"I~....llIIQQ
~_..~" . ~
. ~~~..._~.,,' .,,_..~..,.
...."" """ ~e ___.. u."~.~ _.~.... ._.~" .~ ".
~ Q~Q_':'.l
Electrical and Electronics Engineers (IEEE), a non-profit technical and
professional engineering society, and endorsed by the American National
Standards Institute (ANSI), a non-profit, privately-funded, membership
organization thBt coordinates development of voluntary national standards In
the United States.'
'In the case of cellular and PCS cell site transmitters, the FCC's RF
exposure guidelines recommend a maximum permissible exposure level to th.e
general public of approximately 580 mlcrowatls per square centimeter. This
limit is many times greater than RF levels typically found near the base of
cellular or PCS cell site towers or In the vicinity of other, lower-powered
cell site transmitters.'
'Calculations corresponding to a "worst-case' situation (all transmitters
operating simUltaneously and continuously at the maximum licensed power)
show that, In order to be exposed to RF levels near the FCC's guidelines, an
Individual wouid essentially have to remain In the main transmltllng beam
and within a few feet of the antenna for several minutes or longer. Thus,
the possibility that a member of the g.enEiral public could be exposed to RF
levels in excess of the FCC guidelines Is extremely remote.'
'When cellular and PCS antennas. are mounted on rooftops, RF emissions could
exceed higher than desirable guideline levels on the rooftop Itself, even
though rooftop antennas usually operate at lower power levels than
free-standing power antennas. Such levels might become an Issue for
maintenance or other personnel working on the rooftop. Exposures exceeding
the guidelines levels, however, are only likely to be encountered very close
to, and directly In front of, the antennas. In such cases, precautions such
as time limits can avoid exposure In excess of the guidelines. Individuals
living or working within the building are not at risk" [emphasis added]
The Applicant takes no precaution whatsoever to limit this exposure to those
In the direct path of the focused signal transmission on this sloping site.
According to their polar diagrams and roof plan, the antennae are not angled
to propagate parallel to the slope of the average ground plane, especially
along Sector C and Sector B that are pointed towards higher elevations to
the south (azimuths 252 degrees and 124 degrees respectively). This Is
directly tcward the pedestrian access roads to the shopping center.
That such potentially dangerous excessive exposure would be similarly deemed
"extremely remote" as perhaps a normal ground level exposure Is not
necessarily the case In the Applicant's suggested siting atop the local
cinema on this sloping site.
'Procedural concarns:'
Is 'ADDITIONAL 'evidence 'NEW 'Evidence?'
ORS '197.763 (6) (c) 'If the hearings authority leaves the record open
for additional
written evidence, arguments or testimony, the record shall be left open for
at least seven days. Any partlclpant may file a written request with the
local government for an opportunity to respond to new evidence
submltteddurlng the period the record was left open.lf such a request
Is flied,
Exhibit
P~ge~of.
11.\_.........:....v...'..=r:o:... ..............
....................,. -.'
,,~ _.~L~:
. ................"...............
M." UU______ ..0 .... ro.o _~ ._~,_
the hearings authority shall reopen the record pursuant to subsection",
I emphasis added] .
1. A large amount of "additional "evidence was submitted while the Record
was left open from May 11 . May 19, 2010.
2. Most of this additional evidence was not new but merely repeating similar
oral testimony received from opponents during the Public Hearing on May 11.
3. After close of Record, Applicant flied a request, citing ORS 197.763, to
re-open the Record to allow their"
"
""".presentatlon of additional evidence In response to the additional
evidence that was presented after the conclusion of the public hearing on
May 11"." '[emphasis added)'
,
. "This request did not comply with the strict requirements of ORS
concerning allowing an opportunity to respond to 'new 'evldence and
therefore the request should have been denied.' "(see ORS above)'
,
'4.' "Regardless', "according to Staffs advisory Memo to the PC:'
"".After consultation with the City Attorney, it appears that the Planning
Commission Is obligated under the ORS to honor the request to re-open the
record to admit evidence submitted since the hearing closed...". "Staffs
advice was erroneous because the Request was not only late and Improper, it
also did not specify the precise nature of any 'new 'evidence submitted, and
therefore was In direct contravention of 'Ashland's Planning Commission
Rules" 'concerning such a reconsideration request.'
"
'''...fallure to provide statements or evidence sufflclentto afford the
commission an opportunity to respond to the Issue precludes a
reconsideration request.....'
"tls the considered opinion of this .writer that ail evidence submitted
after the Commission's original May 19th deadline should not be Included In
the Record of this Planning Action and that the Planning Commission should
have promptly deliberated and reached their decision based on evidence
timely received into said Record prior to their May 19 deadline."
I respectfully ask that the Commissioners fully question Staff on this
matter so that similar mistakes ere not repeated In the future which only
serve to unnecessarily hamper the efficient workings of Ashland's Planning
process." '
.
submitted 6/15/10 6:15 a.m.
Colin Swales
._._"._._~~_.n_.
I ....!,jQ""T
Exhibi
Page of
Will Wilkinson
2940 Old Highway 99 South,
Ashland, OR 97520
RECEIVED
JUN 1 6 2010
June 15, 2010
Collocation Rebuttal:
City of Aohf..1L1
Ciommuc:;~y DeNI;toprnont
Planning Commissioners,
New evidence has arisen to strongly support denying PA 2009-01244.
In written submission from Goodman Networks dated May 19, they state: "The co
location on the Holiday Inn Express could work - purely from an RF perspective. a.
However, the Holiday Inn required A TT to place their cabinets in an inaccessible
closet located above the drive through area where guests are dropped off. The only
way to access the equipment would be by ladders above a driveway, which is an
extremely unusual and dangerous way for A TT's maintenance personnel and guests
to access the site. Because of the nronosed dan~erous location for the
equinment cabinets. AT&T rejected the Holfdav Inn as a potential location for
~? this site," (My highlighting) . .
So, according to AT&T's own statement (above), If the installation location were not
"dangerous" this site would work fine.
I spoke with John Warren, the owner of the Holiday Inn Express, on June 10. He
Informed me that in his brief conversations with the AT&T representatives who
scouted his facility he had recommended the described installation location as
t first preference, However, he told me that e as changed his mind an is now
. willing to have them install their equipment at ground level. A safe place.
This eliminates the one problem that AT&T has Identified with this site,
Please deny this application and request that AT&T reopen negotiations with John
Warren, owner of the collocation site at the Holiday Inn Express.
Thank you, ~
:UW",,",," 0 ~ L-=--
, C-
-
As stated above, Mr. Warren Is no longer asking that the AT&T installation be placed
in what Goodman Networks has called a "dangerous location," How on earth, then, if
this IS the primary reason this site was rejected - yet collocation is the legally
preferred option ~ could you permit a different location, especially when so many of
us in the community oppose it?
Exhibit~
Page-Lofl
CITY OF
ASHLAND
Memo
DATE:
TO:
FROM:
RE:
June 22nd, 2010
Ashland Planning Commission
Derek Severson, Associate Planner
1644 Ashland Street
PA #2009-01244
Backl!round
At the May II th Planning Commission meeting, public tcstimony was taken on the application and the
public hearing was closed.
At the Junc 8th Planning Commission meeting, the Planning Commission honored requests by the
applicants for Planning Action #2009-01244 as well as by two parties who had provided written
comment in opposition to the application to reopen the record for an additional seven days pursuant to
ORS 197.763(6)(c). The record was reopened until 4:30 p.m. on June 16th, 2010 for written submittals
from an~ person in response to additional evidence presented after the close of the public hearing on
May II t. In addition, approximately twenty additional items (e-mails and written submittals) had been
previously received subsequent to the close of the record, and the Commission voted tu admit these
items into the record with its re-opening. '
. th
The record closed at 4:30 p.m. on June 16 . All materials received have been posted on-line at:
www.ashland.or.us/J 644ashland
Issues Raised
The primary issues raised in the record within these submittals include:
,
Health Impacts - A significant number of the materials provided in the record raise concern
over the health impacts of wireless communication facility installation. Staff previously noted
in the record that the Telecommunications Act of 1996 expressly preempts local government
regulation of the placement, construction, and modification of personal wireless seryice facilities
on the basis of the environmental effects of radio frequency emissions to the extent that such
facilities comply with the FCC's regulations concerning such emissions [47 U.S.c.
~332( c )(7)(B)(iv)].
Economic Impacts - The issue has also been raised that there are a number of neighboring
business focused on holistic wellness, and that because many of their clientele have concerns
over such an installation the proposal could have a significant economic impact on these
surrounding businesses. 'In reaching a decision, the Planning Commission will need to consider
these impacts in light of the Conditional Use Permit approval criteria found in AMC
18.! 04.050.C, most notably:
v
PlANNING DEPARTMENT
51 WlnbumWay
Ash~nd. <Xegoo 97520
www.ashland.or.us
To: 541..88-5305
Fax: 541-552-2050
m: 800-735-2900
1I!P.1I
Exhi~!t ~
Page-!-ofL
6. The development of a4jacent properties as envisioned in the Comprehensive Plan.
7. Other factors found to be relevant by the Hearing Authority for review of the proposed
use.
Commissioners must also consider whether they believe these impacts can be viewed separately
from largcr concerns over the environmental/health impacts of the facility, which the City is
again preempted from considering in a decision.
Collocation - AMC 18.72.180.B_6 requires that applications include" A collocation feasibility
study that adequately indicates collocation efforts were made and states the reasons collocation
can or cannot occur." The Development Standards for Wireless Communication Facilities note
in 18.72.180.C.2.that, "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."
The applicants have provided additional information in the record addressing the feasibility of .
collocation onto existing facilities at the Holiday Inn Express on Clover Lane, and opponents
have submitted materials challenging this information. The Planning Commission must
ultimately detcrmine whether adequate information is included in the record that demonstrates
the burden of proof has been met with respect to the feasibility of collocation.
Lease Agreement - AMC 18.72.180.B.7 requires that applications include "A copy of the lcase
agreement for the proposed site showing that the agreement does not preclude collocation." A
lease was not provided with the applicatiDn, and staff had previously recommended a condition
of approval that this be provided with the building permit. This issue was raised in a number of
e-mails submitted, and the applicants subsequently provided a lease to demonstrate that the
requirement is met.
As previously noted in the record (see June 16 e-mail), in staffs review of the lease language, we
have noted that item #8b on page 6 indicates, "Landlord will not grant, after the date of this
Agreement, a lease, license or any other right to any third party for the use of the Property, if
such use may in any way adversely affect or interfere with the. Communication Facility, the
operations of Ten ant or the rights of Ten ant under this Agreement. Landlord will notify tenant in
wriring prior to granting any third party the right to install and operate communications
equipment on the Property." As indicated in the record, in staffs view the language in #8B is
overly broad and we have recommended that a revised condition be attached to provide a revised
lease prior to building permit which modifies #8b in the lease agreement to more clearly
demonstrate that collocation is not precluded and that the limits for conflicting uses be more
clearly defined in terms of operational interference.
Staff recognizes the difficulty inherent in this decision in terms of the nature of the issue and its
importance to those providing it, the volume of information provided, and the limitations on considering
a significant amount of the material due to federal regulations. Ultimately, the Commission must
determine first whether the information necessary to make a decision has been provided, and based on
review of that information in light of the applicable regulations determine whether the information is
adequate to make a finding that each of the applicable approval criteria has been addressed to the
Commission's satisfaction.
PLANNING DEPARTMENT
51 Wmbum Way
Aahland,Or'llon97520
WWN.ashland,or.us
T a: 541-488-5305
Fax: 541-552-2050
nY: 800-735-2900
~~., t.l
Exhibit~
Page.2...of2
1
CERTIFICATE OF FILING
2
I hereby certify that on July 28,2010, I caused the original Notice of Appeal to
Council (PA #2009-01244) with the City of Ashland via hand delivery to the city of
Ashland's Administrative Offices located at 20 East Main St., Ashland, Oregon.
DATED: JUIY~2010
3
4
5
DAVIS, HEARN, SALADOFF & BRIDGES, P.C.
~-Lt---\
6
7
8
CHRISTIAN E. HEARN, OSB #911829
Of Attorneys for Appellant Roderick J. Newton
9
CERTIFICATE OF SERVICE
10
I hereby certify that on July 28, 2010, I transmitted a true copy of the foregoing
Notice of Appeal with attached Exhibits via email transmission to Richard Appicello,
City Attorney, City of Ashland, aoolicelrailashland.or.us.
DATED: July~2010
11
12
13
DAVIS, HEARN, SALADOFF & BRIDGES, P.C.
14
uvL 1 ~~
CHRISTIAN E. HEARN, OSB #911829
Of Attorneys for Appellant Roderick J. Newton
15
16
17
c'
I
18
19
20
21
CERTIFICATE OF SERVICE AND FILING
Page -1-
DAVIS, HEARN
SALADOFF & BRIDGES
A Profelllfonsl Corporollon
615 EAST MAIN STREET
MiHlAND, OREGON 87m
(541) 482-3111 FAX (541)-488--4455
lil~n:tb.(Q)APi!L@<:.~..::Ewa:t:t~I.LN~~~hAl?e~aft~ C~unc)! 1 F.'1~nn.lI:!gA<:.~ClI'lf!~pb~:Q1~44, '.:.
From:
To:
Date:
Subject:
. Attachments:
chris hearn <christianedward.hearn@gmall.com>
<Iucasa@ashland.or.us>
9/26/201012:14 AM
Fwd: AT&T 1 Newton Appeal to Council 1 Planning Action # 2009-01244 '
Appellant's Summary of Arguments for Appeal to Council 09-22-2010.pdf
April:
I am forwarding the emall and attachment below, previously transmitted to
the indicated recipients.
This is forwarded in connection with Rod Newton's appeal to Council of the
Planning Commission's decision in the AT&T/Goodman Networks PA # 2009-01244.
Please let me know if you have questions or concerns (but kindly send any
reply to my offfice email address:chearn@davishearn.com -- which apparently
is experiencing some technical difficulties this weekend).
Thanks,
Chris
-------- Forwarded message --------- ,
From: chris hearn <chrlstianedward.hearn@gmail.com>
Date: Sat, Sep 25, 2010 at 9:48 PM
Subject: AT&T 1 Newton Appeal to Council 1 Planning Action # 2009-01244
To: Richard Appicello <appicelr@ashland.or.us>, Megan Thornton <
thorntm@ashland.or.us>
Cc; Barbara christensen <christeb@ashland.or.us>, Bill Molnar <
molnarb@ashland.or.us>, dcaldwell@davlshearn.com
Richard and Megan:
I thought this attachment went out already on my firm email server (
chearn@davishearn.com). I just noticed, however, that it looks like it
somehow got stuck in my Outlook "Outbox", and I can't get it to transmit out
of that place.
So, I'm sending this attachment again using my back-up Gmall account __
just in case my office server probiem remains unresolved and it never goes
out of my chearn@davishearn.com "Outbox".
Please let me know if you have questions or concerns. I hope Richard is
feeling better an is back In the office soon.
Regards,
Chris
u . _'e.~g.eJ;1
f.i~:~C :~:'1VE8
SEP 2 6 2010
C\';, !'-j' ri',hL\;;d
c.",;- ,~,.ll:\i l),.}",;JC{.::ll~;rf~
1
2
3
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, OREGON
4
5
IN THE MATTER OF A REQUEST FOR A )
CONDITION USE PERMIT AND SITE REVIEW)
APPROVAL TO INSTALL ROOFTOP )
WIRELESS COMMUNICATION FACILITIES )
(WCF) ON THE EXISTING ASHLAND )
STREET CINEMA BUILDING LOCATED AT )
1644 ASHLAND STREET, JACKSON )
COUNTY, OREGON AND ASSOCIATED )
GROUP-MOUNTED WCF ACCESSORY )
EQUIPMENT; THE WCF INSTALLATION )
CONSISTS OF 12 ARCHITECTURALLY )
INTEGRATED PANEL ANTENNAS. THIS )
PLANNING ACTION ALSO INCLUDES A )
REQUEST FOR AN ADMINISTRATIVE )
VARIANCE TO THE SITE DESIGN AND USE)
STANDARDS' REQUIRED LANDSCAPE )
BUFFER FOR THE GROUp.MOUNTED )
WCF EQUIPMENT. (PA#2009-01244] )
)
)
)
)
)
)
Planning Action # 2009-01244
APPELLANT'S SUMMARY
OF ARGUMENTS FOR
COUNCIL HEARING
(AMC 18.108.110.C)
HEARING DATE: 10/05/2010
18
SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
DAVIS, HEARN
SALADOFF & BRIDGES
A PrufBhIonal COl'ponlltlon
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541) 482.3111 FAX(641).B8~455
19 .
Appellant Roderick J. Newton ("Appellant") respectfully submits this
20 written "summary of arguments" - reflecting his primary arguments for
6
7
8
9
10
11
12
13
14
APPLlCANT(S): Goodman Networks, Inc.
for AT&T Wireless, LLC
15
APPELLANT:
Roderick J. Newton
21 Council's consideration on appeal. AMC 18.108.110.C.
16
17
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Pla."/"K Act/Oil # 1009-01114
Page -1-
11
12
13
14
15
16
17
18
19
20
21
,
1. BACKGROUND.
2
May 11, 2010 Staff Report, pg. 2:
.
3
4
The app1ication proposal inwlves a request for Site Reviewaml Conditional Use Pem1it
approval to lnatalI rooftop wireless oom.tnllllica1ion facilitit'$ on the exisliogABhland Street
Clnmna lnri1dlng located at 1644 ABbImxI Street. This installation OODBists of 12
arcltitootunilly-integmted panel1I1Ifennq~ and lIll8Oo.iated ground-mounttld equipment, which
will be architectumlly lnlcgrated through !he addition of a radio.frequem:y 1ransparent
penthouse element and I two-tiered parapet waIIsystm The application also inuludes 8.
request forllllAdmi!listratiV6 Varlanoe to the Site Desigo. and Use Standardsl mpDremCDt
for a 'len-foot IAllIlll'.epI1 buffer lU'OUlI.d the ground.m.ount\ld accessory equipment bulldillg.
The applicants propose to eonstrwrt the equiptnellt building lIS madditiononthe back of tile
existing building, andhaV6 derdgned itto IlIIItch similar attaDhed llllCeIlBOry structures on the
bld; of the building in placement, size, color lIlII1 maUlrlal.
5
6
7
8
9
10
. II. PI1Ii!!!t ImDllct
Thil BppHoation Indudes reqtJti3I3 for Site Review lllId Condl1lolllli Use Pemdt approval for
11m installation of roatmp wlreIllll9 oommunioation faoillf.i.etl, lllId fur 1m AdministratIve
Variance 10 11m Sitll Design and Ull6 S1andlmls. WlIhln the CmnmerclaI (C-!) zoDiDg
\
PbuJ~Arb PAII2IIIBlI1244
~ GiDhBi NIiIiMm
AdiI1d Pbiril~ IHIm-SllIIlF4m
fl92dll
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plan"lng Aella" # 2009-01244
Page -2-
DAVIS, HEARN
SALADOFF & BRIDGES
A Pn:lrelalonal Corporation
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541}482-3111 FAX (541) 48a-.i455
13
14
15
16
17
18
19
20
21
1
May 11, 2010 Staff Report, pg. 3:
.
2
district, wireless communication facilities ar~'i ~Q~ !P~~tw-{~~,:;p~~~gh~ :~*4 !fit?i8*~J9~~ :tq~
Conditional Use Permit and to the requiremen!~,of'J\:l\IlQ' j'~'7:?;J~.Q.;:i i! ': "", ,',
',j [i :;_ :ii ;: :;"_:; ii:, ,'; :jii:!.j 'i:i";~' ;:: 'i;', ::1 :: :: ;i ':i; :1,,::' ",J':; "ii;-:-:; F _::: :i ~::
The purpose of this section is to establish stand~ds't1iatr"gqIatethl;:placement;appeaj:<\rice ::
and impact of wireless communication facilities; Whileproviding'i'iiS)dtin.!s'wi.!h'theii!:lijity'tii i"
access and adequately utili?.e the services tIul!#>~~f~c~,liti,~;:~iiPP~'i,:i !~i*avs,~,c.f'tJie;;:
physical characteristics of wireless communkl!tjop.fa,Gili!i,,~. ;t,4~'jiripiiGI~ impij~e,d:bY!Ale$e ;!!
facilities affect not only the neighboring residcin.t$,:,but tJi~!,,"n:ili'J.iiriiiY ~s'''::'''h''je;l\n<!t!M'
standards which have been adopted are inteiid~d.;io 'eti~:-qre}t1Uit!.tho: ;v,isuaf:#n(r~e~th~iic ;i;
impacts of wireless communication facilities are :itii#~~t~~~; #1~::gt~at~sr~*t:~~tp.9~5_ib~_~; ;::
especially in or near residential areas. As such~ A~hlEm(:Pi(S~lUid'ard~"e~k~al~ize,,~ol1dc~to# .:.
of wireless communication facilities onto a1~~dy:' ~~t~~lfS~~~ ::~ifeJ~~~r!~a9Hip;e~,~i;qr;'t~e );
placement of new facilities on pre-existing bUijdings,;'1'liI?ij>feri'egoptioris'\U1g1ilrg61y;Iri ....
response to these standards those facilities alreadyinpl!\"e~ayef<icilsbd'6h''';:;)hii~biur,j,Jiy" ....
integrated installations on existing buildings !a~,*"lj ikiH~h~Gtiiib~~titi~:;;~Jacili~~s. :A. ...
number of wireless providers have architecturally int~gr"ti:<!,~quipm~!).t QIi, thefa~ade 6ftb\> '
Ashland Springs Hotel, and the Holiday Inn E*priiss!'''n.Q1py~~J;c';;';~J~qorPqr~!<js,,,,,:irejess .
facilities into one of its cupola. .: :: :'. . .. ,., _.' I;: - :::- i:: ::: ::: -;! ':: i; i: ";i..: ::: i! :::: :; ,
:: :j ;; :: ::-i;- ;,_::: iil);;;i :::'1:: i:i'!~: i:i:: ii :: ;i h1!';:::J ::: :i :: '; -::
Procedurally speaJdng, AMC 18.72.180.D reqriii'csitluitWl#leii.jcommumcaiiorifaciHiY
installations on existing structures within the,'d-ridiStfi6Fb~ ~ubject:t6 [Conditi.;i\ni Vs'; :..
Permit approval, and AMC I 8.108.050 recjlii';io~,tJ:u3,~::fuQ~ioC:!Qriditi<iiiii~'tosePemiit
applications not explicitly designated as Typi!i I aPB"ovalspespbjeGfito:'iiType IIj)ilblic
hearing. ';, ;:- ," i, ::: ,., i: .. :, ., ,i: .. ..:: ..,., '.": ..' . ...
3
4
5
6
7
8
9
10
11
12
A. Site Rel/lew Approval
. ~ :. : ~ . '
,;,'i
"!'
, ,
"'!""i .',
" ,,'
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plaall/llg Act/Oil # 2009-01244
Page -3-
DAVIS, HEARN
SALADOFF & BRIDGES
A pro!elllol'lllr Corporation
515 EAST MAIN STREET
ASHLAND, oo.eOON 97520
(541)482-3111 FAX (5411"88-4455
10
11
12
13
14
15
16
17
18
19
20
21
l' May 11, 2010, Staff Report, pg. 4:
2
3
WCF Dnlgn stIlldanfl
AsbIalId's Land Use ()rd1llillloem:ognizes that wirolllSJ COIlIIDUIIications :liwJlity_n~0T\9
bynatme have an lmpIQt lhat affeclllnotonlyneigbborlng properti~ butthelYll1lmnniVU8
whol~. tmd the slandm:ds ImllllllXll1lilig1lntm1ded to Beethatthtl visual andaeslbetic iIn}Mll:Ill
ore mitigated to the greatest llXIl:llt possible. The WCF Design S1andards fuund in AMC
18.72.180 delin"'I1ll8 {Il~ted designs, noting that the colWaition of now fiwiliUClII on
existing faeill1ies in tlnl pMeaed optionanc1 when colloadfonls notfilaslble, that the WCJ!
shaI1 be Atmnhed and ardIIrectumlly Integmted in10 pre.existing strIIctIm when feasible.
AItema1ive deaigus BIO tho IKlJd palte.u...d option, and within the C-t zonlng disttWt,
lnsta1la1ions ndll7.lng ~ 8Up]lQrt s1luc1ures ore exptll88!y prohlhlfed. To date, all
WCF insIalIaliODS wld1ln the City of ARI11R11d have been CDllocated lI1IdIor srohiteeturaIIy
integrated into existing buildiugs.
4
5
6
7
8
9
Tlw applicUion notlls that the neaIUt AT&T wireless :IiIclIity Is in place on tI).e Ashland
Springs Horel in downtow.n Ashland. rougldy 2.2 miles from the BUbject property. The
fnAtr.rillls provided IIOle thlrt to serve the subject area, tIm antenna system. vrould I1lllXl to be
less than a mile from the center of the 8Jl.PlicanhI idlllltified searoh riog, and the Cinema.
locafionis lIppl'OximareIy a-half mile from 1hc center oftbatrlng. The appliClllllsnoto as
~1ba1the~~~~I~goo~~~the~~~~~
while collocation might boposS10111 at this facl1ity given illl similar proximity to the center of
thelrsearchring, theybeHeve that topography and the length ofthe:needed coaxlalcablenms
1111be Holiday Inn Bxpnlss are such tbat the projected aigoal BIreDgtb. ftom the Cinema site
would be stronger resulting in a larger service area and more coverage.
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
PI"",,lng ActlOIl # 1009-01144
P"ge -4-
DAVIS, HEARN
SALADOPF & DRIDOES .
A Ptol'8.sloNlICorporatbn
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)412-3111 FAX(S41)4l18-4455
11
12
13
14
15
16
17
18
19
20
21
1. May 11, 2010, Staff Report, Pg. 7:
2
3
III. Proctduril. R8C1ulred Burden of Proo{
The ...ltctL. for lite review approvalue dnerl.bed In !Me 18.'12.070 88 !ollowl1:
A. All appIIeablB City ordiIrtlIrcw hawJ been met 01 will be 1IIet by Ole proposeJ
development.
B. All requirements of /he Site Review Chapter have been met or wi<< be met.
C. 71ze dsveWpment cvmpJilll with the SIte Dealgn Sttmtlarda adopted by thB City
. Councllfm 1mpl,1IW1Ilation of this C1ropter.
D. That adequate capacity of CIty faclliti8' for water, tlWer, pawd access to rwJ
through the development, elllctrlelty, urban lltorm draburge, and adequate
tronsportaI/on can and wm be prov/tJed to and tlrrmlgh the au1Jject property. AU
Improvementa in thl stnIIt rlgIHfway liholl comply with the Stfeet SlDndarda in
Chapter 18.88, PtlTjormtmcs Stant1ortJ.r Opti01l8.
4
5
6
7
8
9
10
The desJp dIIldanfa (or Wirmls Cemm1lDieatioll8 FaclIity inslllllltlollll aro de8erihed in
!Me 18. n.I80.C II toUm:
. 1. . f}eneral hoviJlons
a. All facUlties ahall be fflataffed and lMinJaifled in compliCllla with JJre
requiremen18 of tlrs lltJilding Code. At the time of building permit
. . .
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Pla/IIII11K Ae/loII # 2009-01214
Pogo -5-
DAVIS, HEAR.N
SALADOFF &: BRlDGBS
A Prnfosslonlll Corporation
515 EAST MAIN STREET
ASHLAND, OREGON 97020
(541)4&2-3111 FAX (541)"~455
1 .
2
2.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
May 10, 2010, Staff Report, pg. 8:
Prefmed Dealfl1lli
a. Where possible, the U8B of mating WCF rites for nllW inatal/aIions sholl be
.ncouraged Collocation o/new facilities on exi3tingfacilttiea 8hall be the
prefe",d option.
b. f(a) above ia not/Wible. WCF ,W be attached to pre-exlsltng altUchrru.
Whenftcwlb/B.
c. If (a) Or (b) abave are not I.asible, altBfllrdive 6Iruc1ur.slhall be u.redwlth
dulgn featurss tl/Qt aonced. camordfage t11' mi/tgQte the 'ViauaJ impacts
created by the proposed WCF.
d If (a). (b), or (c) liMed abow are not fearib/e. a monopole dsstgn sha/1 be
used with the attacJwd anJ61l1It18 posUlolled bI /I vertical mtllIIUIl to letlens
the 'Visual impact C01lf]Ja1ed to the fl1Ile1I1Ias In a plaJjorm design. Platform
desisns shall be used only ifiJ i8 ahown that the use of fl1l alt8l'7Ulte attached
antenna deaign is notfeoslb/e,
May 10, 2009, Staff Report, pg. 10:
The approval criteria tor n Conditional Use Petmitar~ :de'scrlbed' In :AM~ ,;1S",ui4.050 QS.
follows: 'i;: !::! : ..:: !:i:": ! I.::: ':i:! ::1 .:: !! i!!:, i
A. That the use would be in co1iforman~e. w~~h .a!h,taizdqrds :W.ir~tn/~ ~t:?nl'.'g.f1,tsrrl'{tln.
. which the ure is propm;ed 10 be'!~ocatei:t ;qnt{ t!'J, t;imform.an,cfJ:ivitfl_; re,l~vant
Comprehensive pfanpo/ic/es that are "r'i:Jt Imple!n.e1i!~q ~Ya~y qiiy, Sta.te.'o'r'Fef:!f!r~r
law or program. :;;: !!': _,1 !: !; jj 1.:j i _:, i i;i~:.:
That adequate capacity of City facilities fqr water,. sewer, paved access 10. and
through the development. elsctrli:i,y,; ur~q~ ',~;or?rl ~~~ai;,q.ge,~ <<iri '~ckqUdte.
transpor/allan can and wtll be proY/c/.e,/ !~:cMa;' /hr?~~!J t~~ :f'fbJ~.~~ p~op'er~-! ,Ii ._ : _. - .
C. Tha~ the conditional use wU(~a.~~/~q Qr~a,te.rj qiJyer~e r.n,~~efia( effrfit PJI,.th.e .
livabtltty afthe impact area -w,1J~il.~O'r'f,:,:r,~d tpl1li3 4~re:f?p.1J1e~t nl!t~~ ~:bJect
lot with the target use afthe z:on~;. f!11ien ,eVfl~l!a.I(ng, th~ eXTfpt ofl?/f~ ffo!?:o,se.,!
use an the impact area, Ihelallow{ngfa,c~qr:~:o.f,l~va,btlUy_oft"~ impact:'area
shallbeconsideredinrelati~~rf!~~~~dlirJi*se:of'heia~ei ,I!!; I.
Similarity In scale, bulk. on4 *qv~"a~~. _; _ i :: ' , :: ::; _! : .: .. ,.: J ; ., ;
Generation of t,-q.fIlc and ~.oe.ct~'.:'9n _~;r1rro,:!nd{rg $treets;, In~r.ea~~s I~ ;
pedestria,n. bicycle, and mas~ ~'1~t! t~~ ~;.e ~~rff.4f?fe4 ?~~ef~t41.r~~~rf!es~ .
ofcapaclfy offacllltle~', . I : . :. i ; :_: _ , i.. ;: i..'; : : i . 'i i -;i ;;
Architectural compatibility w~th the triJpq'!t qreil,_ :: ;.::.:; ::.: : .'1 .. i:
Air quality, including the generation; of dUst, :odo.rs,:qr:oth'er ~nv/roh,hit1ital. :
f::~~~:~:~~ afnolse, light, a~~gia)e~ ~ . ::i .: ::! i.:: i . : Ii; i :; ";; J'I : ;.:
The development of at{Jacent propei:tids as. envisioned in the:C6mprJhens/ye .
Plan. : : ; : ; _::( ; :: "j.: ..-:! :.~ :.: ':: <:.: -: ,! i:1: ; L ~ .
Otherfactorsfound to bo rel~"VPlJt by!h~ i!e~rlng Aut~hNtYjo'" r~v!~w:dflhe '
praposeduse. . .: I . .! . I ':!". .!.' ;!
B.
1.
2.
3.
4.
S.
6.
7.
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
PI.nn/ng Action # 2009-01144
Pogc-6-
DAVIS, HEARN
SALADOFP' & DRIDOES
A Prof8ulonal COrporation
615 EAST MAIN STREET
ASHLAND, OREGON 971520
(541) 482-3111 FAX(541).~455
1
2
'\
3
4
5
6
7
8
9
10
11
12
13
.
14
15
16
17
18
19
20
21
Following a public hearing process the Planning Commission
approved AT&T's application.
. Appellant filed this appeal to Council.
AMC 18.108.110.E, states, in relevant part:
"18.108.110. Appeal to Council
* *.
E. The Council may affirm, reverse,. modifY or remand the
decision and may approve or deny the request, or grant
approval wifh conditions. The Council shall make findings
and conclusions, and make a decision based on the record
before it as justification for its action. "
. This matter Is now scheduled for a public hearing before Council on
Appellant's appeal.
. AMC 18.108.11 O.C., requires Appellant to submit written
arguments in support of the appeal in advance of the public hearing
before Council. Said written arguments are respectfully submitted
. below.
COUNCIL HAS AUTHORITY TO MODIFY ANY PLANNING
COMMISSION INTERPRETATION OR APPLICATION OF
ASHLAND LAND USE ORDINANCE.
. Council authority to modify any Planning Commission
Interpretation of ALUO. First, Appellant notes that:
"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 interpretation of City's Land Use
Ordinance provisions. Second, Oregon's Land Use Board of
Appeals ("LUBA") clearly expresses its deference to a city council's
interpretation of its own land use ordinance criteria:
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Planlllllg ActlOIl # 1009-01144
Page -7-
DAVIS, HEARN
SALADOPF & BRIDGES
A Prorullllonlll Corporation
51!! EAST MAIN STREET
ASHlAND, OREGON 97620
(541) 482.3111 FAX (541) 488-4455
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21 .
"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). This means we 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)."
Simmons v. Marlon County, 25 Or. LUBA 647 (1992).
LUBA defines "feasible location" as, "capable of being done,
executed or effected: possible of realization." Third, LUBA
adopts the dictionary definition of the term "feasible", when that
term is used in Oregon's city and county land use codes:
"We agree with petitioners that 'feasible location,' as that
term is used in MCZO 136.040(e)(2), 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). 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).
Additlonaliy, we have frequently stated that a site or project is
'feasible' if there are reasonable solutions available for
identified problems. Southwood Homeowners Assoc. v. City
of Phl/omath, 21 Or LUBA 260, 272 (1991); Bartels v. City of
Port/and, 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).
A COUNCIL FINDING THAT AN APPLICANT FAILED TO CARRY ITS
EVIDENTIARY BURDEN TO PROVE THAT IT MET ALL CITY'S LAND
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plannllll! Aclloll # 1009-01244
Page -If-
DAVIS, HEARN
SALADOFF & BRIDOES
A ProfutslonlllCorpora(Jon
51& EAST MAIN STREET
ASHLAND, OREGON 97520
(541)"82-3111 FAX (541)488-4455
1 USE CRITERIA IS VERY DIFFICULT TO SUCCESSFULLY
CHALLENGE ON APPEAL.
2
3
An adequately explained finding by the Council that a permit
applicant failed to carry its burden of proof is very difficult to
successfully challenge on appeal to LUBA. LUBA explains that,
on appeal of a local government's land use decision to LUBA:
4
5
"An adequately explained finding that a permit applicant,
failed to carry his evidentiary burden is very difficult to
successfully challenge on evidentiary grounds. Jurgenson v.
Union County Court, 42 Or App 505,510, 600 P2d 1241
(1979); Chemeketa Industries Corp. v. City of Salem, 14 Or
LUBA 159, 163-164 (1985); Weyerhaeuser v. Lane County,
7 Or LUBA 42, 46 (1982). That is particularly the.case where,
as here, the [City's] approval criteria impose extremely
subjective legal standards. Larmer Warehouse Co. v. City of
Salem, 43 Or LUBA 53, 61 (2002)."
6
7
8
9
10
11
Caster v. CIty of SlIverton, 54 Or. LUBA 441 (2007).
12
"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." LUBA goes on to clarify the
Oregon rule, as stated in the Caster v. City of Silverton decision:
.
13
14
15
16
17
"The process established by ORS 227.178 is only indirectly
related to the remaining permit review process that ultimately
leads to a decision by the city regarding whether the permit
applicant and other parties have produced an evidentiary
record that enables the city to find that all applicable
. mandatory permit approval criteria are satisfied. 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
18
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Planning Act/on # 1009-01244
Page-9-
DAVIS,HEARN
SALADOFF &: BRJDOES
Af'I'ofesalof1lllCorponltlon
11111 EAST MAIN STREET
ASHLAND, OREGON 97620
(541)0482-3111 FAX(541)48B-4455
1
2
3
4
5
6
7
8
9
.
10
11
12
13
14
15
16
17
18
19
20
21
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 SlIverton, 54 Or. LUBA 441, 452 (2007).
. Request that the elected Council exercise Its Inherent power
to Interpret It's own ordinance provisions, and to modify any
prior interpretation reached by Council's appointed Planning
Commission. Appellant respectfully requests that Council review
the evidence, testimony, and arguments of Appellant and other
opponents' offered in connection with this appeal, and exercise its
power to modify the Planning Commission's interpretation of the
relevant criteria and the evidence presented. AMC 18.108.160.8.
COLLOCATION: 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".
18.72.180. Development Standards for Wireless Communication Facilities.
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 canuot occur.
(emphasis added.)
APPELLANT'S SUMMARY OF ARGUMENTS POR COUNCIL APPEAL
Plaan/llg Act/Oil # 2009-01144
Page -10-
DAVIS, HEARN
SALADOPF & BRIDGES
A ProrelllonalCorporallon
51$ EAST MAIN STREET
ASHLAND, OReGON 97620
(541)0482-3111 FAX (54t) 488-4455
1 COLLOCATION ARGUMENT FROM THE RECORD
(Submitted to the Planning Commission by Aaron Brlani
2
3
Before discussing the sections of the Ashland Municipal Code
(AMC) that apply specifically to wireless communication facilities, It
is Important to consider two of the more general sections. First,
section 1.04.04 of the Ashland Municipal Code (AMC) states that:
4
5
"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."
6
7
Second, section 18.04.020, concerning land use, slates that:
8
"The purpose of this Title is to encourage the most
appropriate and efficient use of land; to accommodate
orderly growth; to provide adequate open space for light
and air; to conserve and stabilize the value of property; to
protect and Improve the aesthetic and visual qualities of
the living environment; to aid in securing safety from fire
and other dangers; to facilitate adequate provisions for
maintaining sanitary conditions; to provide for adequate
access to and through property; and in general to
promote the public health, safety and the general
welfare[.]"
9
10
11
12
13
14
15
Thus, according to the above sections, the code should be
construed to give effect to the stated objectives, which include: to
encourage the most appropriate and efficient use of land, to
accommodate orderly growth, to conserve and stabilize the value of
property and to protect and improve the aesthetic and visual
qualities of the living environment.
16
17
18
In addition to these general guidelines, the City of Ashland enacted
specific rules for determining the proper location to install wireless
19
20
I In an effort to comply with City's new "on the record" land use review
procedure, quoted material is provided directly from the Planning Commission Record,
where practical.
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plan/ling Action # 1009-011#
Poge -11-
DAVIS,HEARN
SALADOPP &: BRIDOES
A ProfllaalonalCOrporadon
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(641)-482-3111 ~AX (641)488-4455
"
1
facilities. Section 18.72.180 of the Ashland Municipal Code sets
forth the "Development Standards for Wireless Communication
Facilities." The purpose and intent of AMC 18.72.180 is:
2
3
"to establish standards that regulate the placement,
appearance and Impact of wireless communication
facilities, while providing residents with the ability to
access and adequately utilize the services that these
facilities support." AMC 18.72.180(A).
4
5
6
Thus, when the commission considers Goodman/AT&T's
application, it should construe AMC 18.72.180 to give effect to
these objectives. And, basedonAMC 1.04.04, the commission
shall factor the considerations and guidelines of AMC
18.72.180 into its decision making process.
7
8
9
When the City enacted AMc 18.72.180, it included a subsection
specifically for selecting what location to install new wireless
facilities. AMC 18. 72.180(C)(2) states, In relevant parts, that:
10
11
12
"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."
The code is straightforward: If collocation is feasible, collocation is
required. If collocation is not feasible, then the wireless facilities
shall be attached to pre-existing structures, if that is feasible. If that
is not feasible, then the code allows for alternative methods of
Installation.
13
14
15
16
17
The code is clear that collocation is the preferred and even
18 required method of installation. The commission should thoroughly
consider those facts that show collocation is feasible. In its
19 application, Goodman/AT&T conceded that it was feasible to
. collocate at the Holiday Inn Express, where Verizon has wireless
20 facilities. According to Goodman, The Holiday Inn Express is
"located about a half mile from the center of the search ring, a
21 reasonable location according to the search map. It is also
possible to add false architectural elements to screen installation at
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
PI.llnlng AcllOIl. # 1009-012U Page -12-
DAVIS, HEARN
SALADOPF & DRIDOES
A Prol'eutorel COrporation
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(5411482-3111 FAX (54t) 488-4455
1
the Holiday Inn." (February 12,2010 letter from Goodman
Networks to Derek Severson, submitted as part of
Goodman/A T& T's application).
2
3
Moreover, Goodman admitted that, "AT&T believes collocation Is
the best possible solution to deployment of systems needed to
meet the growing demand for wireless services." (February 12,
2010 'etter from Goodman to Derek Severson, submitted as part of
Goodman/AT&T's application). Despite this belief, Goodman'AT&T
applied to install its wireless facilities at a new location. When
asked to provide a "collocation feasibility study," Goodman/AT&T
wrote back that although collocation was feasible, wireless facilities
at the Holiday Inn Express would not be as efficient as antennas at
the Ashland Street Cinemas.
4
5
6
7
8
9
No explanation was given as to how much less efficient the Holiday
Inn Express site would be. Rather, Goodman stated that the
Holiday Inn site would be less efficient because the hotel was lower
in elevation than the cinema and because more coaxial cable
would be needed at the hotel than at the cinema. Goodman/AT&T
did not provide any technical studies or relevant materials to
substantiate those claims. Those claims were, however, studied by
Vitaly Geyman, who spent 10 years designing base stations for
cellular towers In Australia. His response, which he has submitted
to the commission, was as follows:
10
11
12
13
14
15
"AT&T has given two reasons why the Ashland Cinema
location is their preferred site, lower elevation and the
need for a longer run of coaxial cable at the Holiday Inn
Express location.
"To address their first reason, we measured the altitude
difference to be 16 feet. This is a relatively insignificant
difference, particularly given the surrounding topography
and should not affect the feasibility of this site in a
substantial way.
"As for the longer run of coaxial cable, it appeared that
the excessive cable necessary would be minimal, and
this is actually not a technical impediment. There are a
variety of signal amplifiers that can be installed if
required.
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Planning Actloll # 1009-01214 Page -13-
DAVIS, HEARN
SALAD OFF & BRlDGE8
A Profel8lanal CorporaUOn
515 EAST MAIN STREET
ASHLAND, OREGON 97620
(5041)482-3111 FAX (541)488-4455
16
17
18
19
20
21
1
"In conclusion, based on my technical experience, and
my review of the location, the two reasons AT&T has
given for the Holiday Inn site not being feasible are not
justifiable."
[Letter to Planning Commission from Vita/y Geyman, B.
Eng.,MBA; See: Notice of Appeal, Ex. 2, pg. 1.J
2
3
4
5
The evidence before the commission overwhelmingly supports the
conclusion that collocation at the Holiday Inn Express is feasible.
In fact, there is no evidence that collocation at the Holiday Inn
Express is not feasible.
6
7
8
To encourage, even require, collocation does not violate the
approval criteria for conditional use permits. AMC 18.104.050
allows the commission to take into account "[o]ther factors found to
be relevant by the Hearing Authority for review of the proposed
use." There Is no question that the code's own guidelines
regarding collocating are relevant to Goodman/AT&T's application.
9
10
11
12
The Telecommunications Act of 1996 was mentioned numerous
times at the May 11, 2010 public hearing. It is importantto point
out that act specifically reserved to local authorities the right to
determine. where and how to locate wireless facilities:
13
14
"Except as provided in this paragraph, nothing in this
chapter shall limit or affect the authority of a State or
local government or instrumentality thereof over
decisions regarding the placement, construction, and
modification or personal wireless facilities."
15
16
17
The only limitation Is that the environmental effects of radio
frequency emissions cannot be the basis for a decision if the
proposed facility meets federal emissions regulations. That is not
the basis of my opposition. Rather, I am asking that the
commission follow the guidelines established by the Municipal
Code. And, as it relates to wireless facilities, the code prefers,
even requires, collocation where feasible. It would be remarkable if
the commission did not give substantial weight to that guideline.
18
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plallll/llg Act/Oil # 1009-011/4
Page -14-
DAVIS, HEARN
SAL^DOFF &BRIDOES
A. Profellllo1181Corpomtkm
151& EAST MAIN STREET
ASHLAND, OREGON 97520
(641)0482-3111 FAX(541)48a..4455
1
To recap:
2
1. The Ashland Municipal Code prefers, even requires, collocation
if feasible;
3
4
2. AT&T believes collocation is the best solution to deploy wireless
facilities;
5
3. Collocation is feasible at the Holiday Inn Express, where
Verizon has installed a wireless facility;
6
7
4. The Holiday Inn Express and the Ashland Street Cinema are the
same distance from the center of AT&T's search ring; and
8
5. Signal amplifiers can alleviate the alleged inefficiencies of the
Holiday Inn Express site.
9
10
It should be remembered that AT&T Is not entitled to the location of
its choice simply because if prefers one iocation over the other.
The commission must first consider and then approve the
application. In considering the application, the commission must
consider AMC 18.72.180, which quite plainly states that collocation
is the preferred and even required method. The commission must
also consider the evidence presented that collocation Is feasible at
the Holiday Inn. To grant AT&T's application despite the presence
of an equally reasonable site for collocation would render AMC
18.72.180 meaningless.
11
12
13
14
15
16
Moreover, to the extent Goodman/AT& T intend to appeal a denial
of their application, It Is Important to note that federal district courts
place a heavy burden on applicants who argue that denial is
impermissible because there are no alternative sites. As the First
Circuit Court of Appeals held In Southwestern Bell Mobile Systems,
Inc. v. Todd, 244 F 3d 51 (Mass. 2001):
17
18
19
"For a telecommunications provider to argue that a
permit denial is impermissible because there are no
alternative sites, it must develop a record demonstrating
that It has made a full effort to evaluate the other
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plolllllllg AellolI # 1009-01144
Poge -15-
DAVIS, HEARN
SALADOFP & DRIDOBS
AProre&lIlonalCorporatlon
515 EAST MAIN STREET
ASHLAND, OREGON 97520 .
(541}<482-3111 FAX (541)488-4455
1
available alternatives and that the alternatives are not
feasible to serve its customers."
2
3
For example, an applicant in another case put evidence into the
record that it had examined 771 different parcels to assess
where else they could place the.ir tower. Industrial
Communications & Electronics, Inc. v. O'Rourke, 582 F Supp
2d 103 (D. Mass., 2008). Because one of those parcels had the
potential to serve the applicant's needs,. the zoning authority's
denial of the application to install at a different site was upheld.
4
5
6
7
There is no evidence that Goodman/A T & T made a "full effort to
evaluate the other available alternatives[.]" The only evidence
in the record is that the Holiday Inn Express is a feasible site for
collocation, but that AT&T preferred to instali new equipment at
the Ashland Street Cinemas. There was some testimony at the
public hearing that AT&T could not find any willing landlords
and that the Ashland Street Cinema was "the only option."
(Testimony of Gary Spanovich, representative from Goodman).
That testimony is either unsupported or flatly contradicted by
the materials in the application. Those inconsistencies were
pointed out to Mr. Spanovlch at the May 11, 2010 hearing but
he was unable to explain them.
8
9
10
11
12
13
14
Based upon the federal case law cited above, the commission
Is well within its authority and weli within the limitations imposed
by the Telecommunications Act, to deny the application
because collocation at the Holiday Inn Express Is feasible.
15
16
POTENTIAL PROBLEMS AT ASHLAND STREET CINEMA
17
18
As a condition of Its application, Goodman/AT&T was required to
submit a signed lease "showing that the lease agreement does not
preclude collocation." AMC 18.72.180. This requirement supports
the code's overall preference to collocation over other methods of
installation. It makes sense, then, that the lease between
Goodman/A T& T and the cinema building owner allow for other
celiular companies to collocate their facilities on the cinema in the
future.
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Pla"ning ActlD" # J009.01J44
Page -16-
DAVIS. HEARN
SALADOFF & BRIDGES
A PraI'BntorvlllCorporBtlOn
515 EAST MAiN STREET
ASHlAND, OREGON 97520
(541)"82-3111 FAX (541) 4se..t455
1
Although the application was to be deemed void if a signed copy of
the lease was not provided, Goodman/AT&T did not submit a
signed copy of the lease. Instead, Goodman stated that:
2
3
"AT&T's proposed placement of antennas on the existing
Ashland Street Cinemas will allow for potential future
collocation of additional antennas, provided the minimum
separation between antennas is satisfied and a future
collocation facility company could come to an agreement
with the Ashland Street Cinema for ground space and
space on the roof." (March 2, 2010 letter from Goodman
to Derek Severson, submitted with the Goodman/AT&T
application).
4
5
6
7
8
However, this response does not answer the central question,
which is whether the lease precludes collocation. Instead, the
response says, basically, if later agreements can be reached. and
there is sufficient room, then collocation might work. That is a far
cry from what the code requires.
9
10
11
12
By refusing to provide the lease, or a straightforward answer as to
future collocation at the Ashland Street Cinema, Goodman placed
the commission in the position of having to rule based partly on
guesswork:
13
14
a. Does the lease allow for collocation?
15
b. Is there room on the roof for additional antennas, given the
engineering requirement for certain distance between each
antenna?
16
17
c. Is there room on the ground for additional ground equipment?
Recall that AT&T has applied for a variance to Install its own
ground equipment; is there room around the cinema for the
ground equipment necessary with any future collocation?
18
19
20
d. Will the roof support additional WCF? The theater operators
have testified to concerns over safety at the theater, including
problems with water leaks and damage to their equipment. Has
an engineering study been performed?
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plan II/ilK Act/on # 2009-012U
Page -17-
DAVIS, HeARN
SALADO" & BRIDGES
A Ptofel8fonalcorporadon
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)"82-3111 FAX(541)488-4.55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
.
16
17
18
19
20
21
Without answers to these questions, the commission cannot know
if future collocation is permitted, or even possible, at the Ashland
Street Cinemas. And, given the amount of time that has elapsed
during this application process, it is hard to believe that
Goodman/AT&T could not provide better information concerning
these valid and specific issues. The lack of information certainly
raises this question: Would the answers to these questions further
encourage collocation at the Holiday Inn Express site?
Installing the facilities at the Ashland Street Cinema will also impact
the livability and the visual and aesthetic qualities of the area.
Several tenants of neighboring buildings testified to the effect these
towers will have. Dr. Deborah Gordon and Suzanne Sky testified at
the public hearing about the lost views of Grizzly Peak caused by
raising the roofline of the cinema. These losses will only be further
aggravated by any future collocation on the cinema.
I am opposed to the application because collocation is feasible at
the Holiday Inn Express and because there are substantial
problems, known and unknown, with construction of a new wireless
facility at the 'Ashland Street Cinemas.' .
Thank you for taking the time to consider my opposition.
Kind Regards, Aaron Brian. See: Notice of Appeal, Ex. 1.
THE PROPOSED INSTALLATION AT ASHLAND STREET CINEMA
CONTRAVENES THE ASHLAND MUNICIPAL CODE.
. City policy expressed in ALUO. AMC 18.72.180 contains the
"Development Standards for Wireless Communication Facilities."
The purpose of AMC 18.72.180 is "to establish standards that
regulate the placement, appearance and impact of wireless
communication facilities[.]" AMC 18.72.180 is the City of Ashland's
explicit effort to establish a legal framework for determining how the
location and placement of wireless cellular facilities would be
determined. Central to that framework is AMC 18.72.180 C(2).
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Planning Actl.n # 2009-01214
Page -18-
DAVIS, HEARN
SALADOFF &: BRIDGES
A PrnfBIalDnafeorporatkm
515 EAST MAIN STREET
ASHLAND, Cfl.EGON 97520
(&41}482-3111 FAX (541)488-4455
1
City polley requiring collocation of wireless communication
facilities when "feasible". AMC 18.72.180 C(2) states, in no ,
uncertain terms, that "collocation of new facilities on existing
facilities shall be the preferred option." The City's preference, as
codified by city ordinance, Is collocation. There can be no question
or doubt about this. The remainder of AMC 18.72.180 C(2) is
written to enforce this preference. The code is written in a step-
ladder design. First, collocation "shall be encouraged." Second, If
collocation Is not feasible, the wireless cellular facility shall be
attached to a pre-existing structure. Third, if collocation and
attachment to a pre-existing structure are not feasible, alternative
structures shall be used. Finally, if none of the above options are
feasible, a monopole shall be used.
.2
3
4
5
6
7
8
City's "stair-step" approach to collocation. At each step, you
look to the more preferred option to see whether or not it is
feasible. If, but only if, the more preferred option Is not feasible, do
you move down to the less preferred option.
9
10
11
.
AT&T chose to skip a step. In this application, AT&T has jumped
the first step in AMC 18.72.180.C.2. Despite the fact that
collocatiOn at the Holiday Inn is admittedly feasible, AT&T wants to
build a new facility on top of the Ashland Street Cinema, where no
cellular facilities currently exist. See: Notice of Appeal, Ex. 4, pg. 1
(A T& T's Mr. Goodman refers to the Holiday Inn Express site as a
"reasonable location".
12
13
14
15
.
Collocation feasibility study requirement. AMC 18.72.180.8.6
expressly requires that the applicant submit a "collocation feasibility
study that adequately indicated collocation efforts were made and
states the reasons collo.cation can or cannot occur." AMC
18.72.180.8.6.
16
17
18
.
AT&T "collocation study" indicated Holiday Inn Express
collocation site feasible under LUBA's Simmons v. Marion
County, supra, definition. The Planning Division required, as part
of AT&T's application, a collocation feasibility study. On Feb 12,
2010, AT&T sent a letter stating that the Holiday Inn is located
about a half mile from the center of the search ring (which is closer
to the center than the Cinema) and is "a reasonable location
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plallll/llg Action # 1009-0/JU
Page -19-
DAVIS, HBARN
SALADOPF & BRIDGES
A ProfualllonalCorporation
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)482-3111 FAX (541) 488-4455
1
according to the search map." The letter went on to say the "slight
Increase in ground elevation" made the Holiday Inn Installation less
efficient and the additional length of coaxial cable required at the
Holiday Inn would add to the inefficiency. That was the extent of
AT&T's cursory "feasibility study".
2
3
4
.
Contrary testimony concerning AT& T's conclusions. Upon
review of AT&T's "feasibility study", Vitaly Geyman, a local
electrical engineer who Installed cell antennas across Australia
before he moved to Ashland, conducted site visits to both locations
(Holiday Inn Express and SOU) and submitted for the record his
opinion that the elevation and length of coaxial cable could easily
be dealt with and certainly would not render the sites 'not feasible".
See: Notice of Appeal, Ex. 2.
5
6
7
8
9
.
AT&T's Inconsistent and conflicting statements concerning
feasibility of collocation. In AT&T's next submission (May 19,
201 0) AT & T again stated, .The collocation on the Holiday Inn
Express could work - purely from an RF perspective." RF refers to
radio frequency and AT&T's agents were admitting the location
would work from a coverage or location perspective. However,
AT&T's May 19 submission provided a different reason why
collocation wasn't feasible: the Holiday Inn's owner would require
AT& T to place their cabinets in an "inaccessible closet".
10
11
12
13
14
.
Contrary evidence concerning collocation feasibility data
provided by AT&T. As reflected in the record before Council, Will
Wilkinson contacted the owner of the Holiday Inn Express,
Jonathan Warren. Warren denied that he ever required that
location, but merely suggested it, and further represented that he
would be happy for AT&T to put their cabinets In their preferred
location. See: Notice of Appeal, Ex. B.
15
16
17
18
.
Additional contrary evidence concerning collocation feasibility
data provided by AT&T. AT&T also provided cursory reasons
why collocating at other potential sites might be inconvenient. For
example, the SOU collocation site, according to AT&T, was said to
Involve a lengthy and complicated lease process. But when Ronald
Kramer, JPR's executive director at SOU which already hosts the
equipment of competing cell service providers, was contacted he
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plauing Action # 1009-01114
Page -10-
DAVIS, HEARN
SALADOFP & BRlDOES
A prore.sIonal ColporatlDn
315 EAST MAIN STREET
ASHLAND, OREGON 111620
(641)482-3111 FAX (541) 488...t455
1
stated that no one from AT&T had approached JPR about
collocating cell phone antennas, and further that JPR would be
happy to host AT&T's equipment. See: Notice of Appeal, Ex. 5, at
bottom of pg. 1 - top of pg. 2 (email from JPR's Ronald Kramer
submitted in Record). AT&T's purported concern that a lengthy
and complicated lease process renders collocating on the JPR
building "not feasible" would appear even more flimsy in light of the
statement by JPR's Ronald Kramer that, "we have rented space for
cellphone antennas on some of our towers outside of Jackson
County." Apparently those cell phone carriers found leasing space
from JPR "feasible". See: Notice of Appeal, Ex. 1 @ pg. 5.
2
3
4
5
6
7
AT& T's "flip-flop" on collocation facts and issues. Following
the above rebuttals, AT&T's third and final submission (June 15,
2010), simply reiterated the construction limitations concerning the
equipment space, despite the landlord's stated willingness to have
them put their equipment on the ground, which was apparently
"feasible" for AT&T's competitor, Verizon. AT&T went on to share
technical data concerning radio signal limitations - after already
affirming twice in previous written submissions to the Record that
collocation would work from both locational and RF perspectives.
.
8
9
10
11
12
.
AT&T's efforts to address the required collocation criteria
were haphazard, confusing, and untimely. AT&T's half-hearted
efforts to gradually provide City staff with a series of cursory and
often contradictory letters as their application proceeded deeper
and deeper into the process and as AT&T became further and
further committed to the Ashland Street Cinema site, financially and
otherwise, would appear to reflect either arrogant disregard or
outright mockery of the City's clear requirement that a "collocation
feasibility study" be provided at the time the wireless
communication facility siting application is first submitted. AMC
18.72.180.8.6.
13
14
15
16
17
18
.
Additional counter-testimony concerning AT&T collocation
assertions and conclusions. AT&T's suggested at one point that
the Holiday Inn Express site failed to meet one of its coverage
goals: in-building service on the SOU campus. As stated In the
Record, a number of Verizon customers. (Including four SOU
employees), indicate they currently enjoy clear cell coverage
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plannlllll Action # 1009-01144
Page -1/-
DAVIS, HEARN
SALADOFF &. BRIDOES
A ProroaabnalCofpotlltloll
515 EAST MAIN STREeT
ASHLAND, OREGON 87620
(&41).482-3111 FAX (541)488-4455
1
throughout the SOU campus from Verizon's antennae at the
Holiday Inn Express location. AT&T generalizes, In response, that
their equipment is different from Verizon's. However, the burden of
proof is on the Applicant to submit an "feasibility study" iri
conjunction with it's application - not to merely rely on a collage of
unsubstantiated statements which make their way into the record in
a piecemeal fashion as the hearing process progresses. The fact
is that AT&T utilizes a higher megahertz band which should. if
anything, resuit In better penetration than Verizon's lower frequency
band.
2
3
4
5
6
.
Testimony ofVltaly Geyman re: AT&T Collocation Feasibility
Study. See: Notice of Appeal, Ex. 2, and elsewhere in Record.
7
8
9
Vltaly Geyman (1172 N. Main St., Ashland)
Bachelor of Science, Electrical/Electronlc Engineering
(Major: Telecommunications) - Victoria University,
, ,
Australla:1990;
Masters In Business Administration (MBA), (Major: Technology
Marketing) - Monash University, Australia:1995;
Design Engineer and Product Development Manager, Cellular
Networks Telecom - Australia:1989-1999.
10
11
12
13
14
AT&T states in Record before Planning Commission:
"Holiday Inn is a reasonable location according to the
search map. However, the elevation of the Antennas
would only be about 35 feet above ground. While this
is the same planned for Cinema antennas, difference
in topography place the Cinema antennas about 25%
higher than would be possible in Holiday Inn." Letter in
Record from A T& T agent Goodman dated February
12,2010.
.
15
16
17
18
19
I have consulted on this point with Citerion Cellular a
company specializing in sales and installation of
cellular equipment for all carriers since 1990. They
assured me that this technical impediment can be
overcome by having a slightly higher gain antenna, still
20
21
APPELLANT~SUMMARYOFARGUMENTSFORCOUNcnAPPEAL
Plannillg Action # 2009-01244
Pogo -11-
DAVIS, HEARN
SALADOPF & BRIDGES
II PmfauIorel Corporation
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)0482-3111 FAX (541)488-.4455
1
2
3
4
5
6
7
8
9
10 .
11
12
13
14
15
16
17
18
19
20
21
maintaining the 1900MHz AT&T bandwidth
requirements.
. Goodman Networks [AT&T agent] also represents, "we
discovered that the length of the coax run from the
radio to the antenna would be much greater than the
run designed for the cinema".
. Criterion Cellular representative explained that longer
coax cable run simply requires a use of larger
diameter cable to compensate for the loss In signal,
and confirmed this solution is well within AT&T
technical capabilities.
Vitaly Geyman
The FEDERAL TELECOMMUNICATIONS ACT of 1996. (Collocation
vs. Preferred Location)
. Planning Commission may have believed a denial of AT&T's
application would violate the Federal Telecommunications Act
of 1996. The Federal Telecommunications Act of 1996 Is not
relevant to the Issues raised in this appeal. The 1996 Act vests the
City with authority to regulate cell facilities, subject four narrow
restrictions on City regulation of cellular service facilities.
. City governments may enforce reasonable local
regulations governing wireless communication facility
placement, construction, and modification. First, the
Federal Telecommunication Act of 1996 empowers city,
governments to enforce reasonable local regulations
governing wireless communication facility placement,
construction and modification, stating:
"Except as provided in this paragraph, nothing in
this chapter shall limit or affect the authority of a
State or local government or instrumentality
thereof over decisions regarding the placement,
construction, and modification of personal wireless
facilities."
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plnnnlng Action # 2009-01244
Pnge -23-
DAVIS, HEARN
SALADOFF It BRIDGES
A Pro1'8lBlonelCorporallon
6115 EAST MAIN STREET
ASHLAND, OREGON 97620
(541) 482-3111 FAX(541)488-4ol55
1
.
The 1996 Telecommunication Act's four restrictions
on local governments. The 1996 Act's four narrow
. restrictions on City power to regulate wireless
communication facility placement, construction, and
modification im:lude:
2
3
4
City cannot "unreasonably discriminate among
providers."
.
5
.
City cannot "prohibit or have the effect of
prohibiting the provision of wireless services."
City cannot base a decision to deny a wireless
communication facility application on the
"environmental effects of radio frequency
emissions."
6
.
7
8
9
Lastly, City's decision to deny a wireless
communication facility application must be in
writing and "supported by substantial evidence
contained In a written record." See: 47 U.S.C.A. 9
332(7).
10
11
12
.
No "unreasonable discrimination". A denial of A T& T's
application would not "unreasonably discriminate" among
wireless service providers. No evidence Is presented
alleging that the City granted a different wireless provider
the right to install antenna on the Ashland Street Cinema,
or any similar location. Unreasonable discrimination
means the City has permitted one provider to install but
later denies another provider the right to install a similar
structure in a similar location.
13
14
15
16
17
.
No "prohibition of wireless services". Second, a
denial of the application would not "prohibit or have the
effect of prohibiting the provision of wireless services."
AT&T currently has service in Ashland and desires to
install additional antennae only to Improve that service.
Even if there are "significant gaps" in AT&T's coverage
(which AT&T has not established), the question is
whether or not Installation on the 'Cinema is the least
Intrusive method to fill in those gaps. Given the City's
18
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plallnillg Acd';lI # 2009-01144
Pagc -14-
DAVIS, HEARN
SALADOFP &. BRIDGES
A Profe.a1onlll CorporaUon
513 EAST MAIN STREET
ASHlAND, OREGON 97620
(541)48203111 FAX(541).488-44S5
1
preference for collocation and the existence of a feasible
slte(s) for collocation, It seems clear that the Ashland
Street Cinema site is not the least Intrusive method to fill
in any gaps. Moreover, if AT&T is truly concerned about
coverage on the SOU campus, which It claimed In its
third "feasibility study", then AT & T could explore more
seriously the collocation options atop SOU's Central Hall.
2
3
4
5
.
This appeal is not based on "environmental effects"
arguments. While many opponents at the public hearing
before City's Planning Commission expressed concerns
over the environmental effects of radio frequency
emissions, it should be noted that such "environmental
concerns" are not advanced as a basis for this appeal to
Council. Appellant is not requesting Council deny
AT&T's application based on "environmental effects of
radio frequency emissions", and makes no arguments
along that line in connection with this appeal.
The "substantial evidence" standard. Finally,
concerning what constitutes the "substantial evidence"
necessary to support any land use decision made by a
local land use hearing authority - LUBA most recently
reiterated and explained the term In Meyer v. Douglas
County, LUBA No. 2010-004 (2010 WL 3044223)(July 2,
2010):
6
7
8
9
10
.
11
12
13
14
15
"Substantial evidence exists to support a finding
of fact when the record, viewed as a whole, would
permit a reasonable person to make that finding.
Dodd v. Hood River County, 317 Or 172, 179,855
P2d 608 (1993). Where the evidence In the record
Is conflicting, if a reasonable person could reach
the decision the county made in view of all the
evidence in the record, the choice between
conflicting evidence belongs to the county.
Mazeski v. Wasco County, 28 Or LUBA 178, 184
(1994), aff'd 133 Or App 258, 890 P2d 455 (1995)."
Meyer v. Douglas County, LUBA No. 2010-004,
2010 WL 3044223, (Decided: July 2,2010).
16
17
18
19
20
21
APPELLANT~8UMMARYOFARGUMENT8FORCOUNcnAPPEAL
Pla,mlllK Actloll # 1009-01114
. Pag. -15-
DAVIS, HEARN
IiALADOFF & BRIDGES
A Prol'alslonal Co1poraUon
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(541).(82-3111 FAX (54') 4as..4455
1
.
"Substantial evidence" further defined by courts.
Some courts have defined the "substantial evidence"
standard as, "Such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
See: MetroPCS, Inc., v. City and County of San
Francisco, 400 F 3d 715, 725 (9th Cir., 2005).
2
3
4
.
Substantial evidence re application denial based on
Applicant's failure to meet burden of proof
concerning collocation efforts. In this matter, the fact
that AT&T stated on the Record that collocation with
Verizon's existing wireless communication facilities on
the Holiday Inn Express property was "feasible" supports
a denial of their application to Install a new wireless
communication facility at a new location (Ashland Street
Cinema building). Further, statements provided in the
record from Holiday Inn Express ownership/management
express a willingness to accommodate AT&T's wireless
facilities on the Holiday Inn property. Lastly, AT&T
declined to submit an adequate "feasibility study" at the
time of first submitting Its application to the City. AMC
18.72.180.8.6. AT&T's subsequent piecemeal efforts to
rebut Its compliance deficiencies were conflicting and
unclear.
5
6
7
B
9
10
11
12
13
14 . The Telecommunications Act of 1996 does not protect a wireless
service providers business-backed wireless coverage goals or
15 preferred location sites.
16
.
"Optimum coverage" business plan goal Is not primary
consideration. First, City's collocation feasibility study
requirement does not focus location criteria on whether an
existing potential collocation site meets an applicant's "optimum
coverage" goals, and the wireless communications provider's
"optimum coverage" business plans are not protected by the
1996 Act.
17
18
19
20
City vested with power to regulate location of wireless
facilities. Second, the Federal Telecommunications Act of
1996 does not vest cell service providers with the absolute right
.
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plo""IIIg Aclloll # 1009-01144
Pog. -16-
DAVIS, HEARN
SALADOFF & BRIDOES
A Protalllllnal Corpclflltlon
516 EAST MAIN STREET
ASHlAND, tAEGON 97520
(541)4a~111 FAX (541) 488-4455
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
.
17
18
19
20
21
to install cellular facilities wherever they want. Rather, the 1996
Act reserves to the local zoning authority the right to determine
the right place and method of wireless communication facility
location. .
. Federal courts reject wireless server provider's claim that
local governments cannot regulate location, construction,
and modification of wireless facilities. Third, Federal courts
have consistently rejected claims filed by cellular service
provider-applicants stemming from a city's denial of
applications to install equipment on particular sites which
provide "better coverage" than other sites preferred by city.
See: e.g., Industrial Tower and Wireless, LLC v. Town of East
Kingston, NH, D.N.H., 2009, 2009 WL 2704579. Cities cannot
ban cellular equipment, but cities can implement and enforce
local ordinance provisions designed to regUlate cell service
equipment siting and location within the city, visual, impacts,
and similar reasonable restrictions.
Council vested with power to deny application not
supported by substantial evidence from AT&T meeting its
burden to prove that collocation feasibility study and other
land use ordinance criteria are met. Fourth, nothing in the
1996 Telecommunications Act prevents the City of Ashland
from denying AT&T's application on the grounds that
collocation is feasible, or that AT&T's "feasibility study" did not
adequately research, investigate, study and address collocation
opportunities In connection with filing and pursuing Its
application.
City's Planning Commission made Its decision against veiled
backdrop that denial of the application could expose the City to
litigation based on violation of the Telecommunications Act of
1996.
. Concern about City liability. It can be argued from a global
review of the Record that the Planning Commission made its
decision to approve AT&T's application in the shadow of a
misconception. The perception that denial of AT&T's
application could expose the City to liability or appeal based on
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Plannlllg Action # 1009-01244
Page -27-
DAVIS. HEARN
SALADOPF &nRIDOES
A PmTeulonal COrpaaUon
515 EAST MAIN STREET
ASHlAND. OREGON 97620
(641)482-3111 FAX (641)488-4455
1
violation of federal regulations preempting local ordinance
provisions.
2
.
Federal Court explanation of local government reg41ation
under Telecommunications Act of 1996.Below Is how on
federal court described the Telecommunications Act of 1996,
as it relates to installation of towers and antennas and a local
government's regulation concerning locating wireless
communication facilities:
3
4
5
6
"[The 1996 Act] is a deliberate compromise between
two competing aims - to facilitate nationally the growth
of wireless telephone service and maintain substantial
local control over siting of towers. Under the
compromise set out in the TeA, developers of
wireless networks are not entitled to locate
facilities wherever they wish to, nor are local
governments required to approve the 'best'" or
most economical siting proposals, so long as
permit denials are given in writing and are supported
by substantial evidence in the record."
7
8
9
10
11
12
13
A TC Realty'v. Town of Sutton, 2002 WL 467132 (D.N.H.,
2002). (emphasis added.)
14
.
AT&T bears "heavy burden" of proving all relevant City Land
Use Ordinance standards and criteria are met. Moreover,
ample support exists in published federal case law for denial by
local zoning authorities of applications to install wireless cellular
facilities in their communities when the wireless service provider
fails to meet Its burden of proof In meeting the criteria and
standards imposed by local land use ordinances. In these cases,
the courts regularly refer to the applicant's "heavy burden" of
proving that the local zoning authority exceeded any significant
rights provided by the Telecommunications Act of 1996. As shown
above, the limitations on the City's authority to regulate the location
of wireless communication facilities are few, and those limitations
that do exists are irrelevant to the issues presented by this appeal.
15
16
17
18
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Pla"nlng A.ctlo" # 2009-01144
Pago -28-
DAVIS, HEAkN
SALADOFF & BRIDOBS
A ProfeaalonelCorporlltlon
"15 EAST ~N STREET
ASHlAND, OREGON 97520
(541)<482-3111 FAX (541)<488-<4<455
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
1/1/ III/
.
AT&T continues to bear burden of proof in the event of appeal
to LU BA. Finally, if the City Council denies the application and
AT&T appeals to federal court, AT&T will have the burden of
establishing that the Council ruled improperly; the City does not
have to prove that it acted properly. MetroPCS, Inc. v. City of San
Francisco, 259 F Supp 2d 1004 (N.D. Cal., 2003), Affirmed in Part,
Reversed in Part and Remanded by MetroPCS, Inc., v. City and
County of San Francisco, 400 F 3d 715, 725 (9th Cir., 2005).
.
Federal case law addressing local government right to
regulate wireless communIcation facility location. Two other
federal court decisions are instructive.
.
Case # 1. In Southwestern Bell Mobile Systems, Inc. v.
Todd, 244 F 3d 51 (Mass. 2001), the First Circuit Court of
Appeals held:
"For a telecommunications provider to argue that a
permit denial is impermissible because there are
no alternative sites, it must develop a record
demonstrating that it has made a full effort to
evaluate the other available alternatiyes and that
the alternatives are not feasible to serve its
customers."
.
Case # 2. In Industrial CommunIcations & ElectronIcs, .
Inc. v. O'Rourke, 582 F Supp 2d 103 (D.Mass., 2008),
the court ruled that, because one of the 771 different
sites that the wireless service provider-applicant
examined had the potential to serve the applicant's
needs, the local zoning authority's denial of the
application to install wireless facilities at a different site
was upheld.
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Pla"nlng Action # 1.009-01114
Pago -19-
DAVIS, HEARN
SALADOFF & BRIDGES
AProfessfonalCorporatlon
515 EAST MAIN STREET
ASHlAND, OREQOO 1mi20
(541) 482-3111 FAX (541)488-4456
1
APPLICANT FAILED TO SUBMIT A COpy OF THE LEASE
AGREEMENT, AS REQUIRED UNDER CITY'S CRITERION
IMPOSED BY AMC 18.72.180.8.7.
18.72.180. Development Standards for Wireless Communication Facilities.
2
3
.
4
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.
5
6
7. A copy of the lease agreement for the proposed site showing that
the agreement does not preclude collocation.
.-OJ
7
.
Copy of lease agreement to be submitted with application.
AMC 18.72.1808(7) requires the applicant to submit a "copy of the
lease agreement for the proposed site showing that the agreement
does not preclude collocation." AT&T, responded to the first
request regarding the lease by claiming that:
8
9
10
11
"AT&T's proposed placement of antennas on the existing
Ashland Street Cinemas will allow for potential future
collocation of additional antennas, provided the minimum
separation between antennas is satisfied and a future
collocation facility company could come to an. agreement
with the Ashland Street Cinema for ground space and
space on the roof,"
12
13
14
15
March 2, 2010 letter from Applicant's Mr. Goodman to City's
Derek Severson, submitted with the Goodman/A T& T
application.
16
.
Submission of lease agreement safeguards an Important
public polley promoting collocation of wireless facilities.
Again, the guiding principle for determining location and placement
of cellular facilities is the City's preference for collocation. Thus,
when considering whether to approve AT&T's application to install
on the Ashland Street Cinema it is important to ensure that location
will support future collocation. Otherwise, the next provider that
wants to install antennas in the area near the Ashland Street
Cinema will have to Install a new facility on a different structure,
frustrating the City's codified preference for collocation.
17
18
19
20
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
Ptallnlng Actlan # 2009-012#
Page -30-
DJ. VIS, HBARN
SALADOFP & BRlDOES
A Prot'eesJonal Corporatlon
515 EAST MAIN STREET
ASHLAND, OREGON 117520
(641)482-3111 FAX(S4t)<4S8-44S5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15 .
16
17
18
19
20
21
. Ultimately, a "redacted" copy of lease provided to City, with
many terms concealed. Eventually AT&T submitted a "redacted"
copy of the lease, with some of the terms and conditions concealed
from the City, The lease did not satisfy the Planning Commission.
In fact, Section 8b of the Lease erected obstacles to collocation, by
expressly precluding the landlord from leasing the roof space to
any other provider if the new provider's use may "in any way
adversely affect or interfere with the Communication Facility, the
operations of Tena'nt or the rights of Tenant under the Agreement."
The Planning Commission attached a condition to its approval of
AT&T's application, requiring AT&T submit a "revised lease,
amendment to the lease, or other similar signed/executed legal
instrument which modifies #8b to more narrowly define conflicting
uses In terms of signal interference and clearly demonstrate that
collocation is not precluded by the lease."
. It Is expressly required by AMC 18.72.180.8.7, that AT&T provide
the required document before their installation activities proceed. It
is also imperative that AT&T provide a document that meets the
specified criteria, not merely provide a summary or clarification of
the current lease. AT&T and the landlord must strike a new and/or
additional signed agreement that meets the above requirements,
and relegating that requirement to a condition of approval is
insufficient under the circumstances.
AT&T's APPLICATION RENDERS A NONCONFORMING USE EVEN
MORE NONCONFORMING. See: Notice of Appeal, Ex. 7.
The approval of a conditional use permit (CUP) requires the
conditional use be compared with the "target use" of the relevant
zone (In this case: "C-1 ").
. AT&T's application proposes constructlonlinstallation of new
wireless communication facilities, including antennae and related
equipment on the roof of the Ashland Street Cinema structure; and
the construction of a new accessory building on the ground to
house equipment.
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
pra"nrng Act/a" # 1009-01144
Page -31-
DAVIS, HEARN
SALADOFF & BRIDGES
A Profuslonsl Corporallon
515 EAST MAt4 STREET
ASHlAND, OOEGON 97620
(541)482-3111 FAX(Mt)..ae....455
1
.
Per AT&T submittals, the Ashland Shopping Center parcel, where
the new construction would occur, Is already nonconforming with
the requirements of the C-1 zone, in at least two respects.
2
3
.
Parcel already exceeds maximum floor area ration (FAR)
limitations. The subject parcel according to evidence In the
Record, currently reflects a .36 FAR - exceeding the
maximum FAR for the C-1 zone of .35. The proposed new
Improvements reflected In AT&T's application will render the
Ashland Shopping Center parcel "more nonconforming" In
terms of C-1 FAR limitations than prior to approval of the
application. See: Notice of Appeal, Ex. 7, pg. 1.
4
5
6
7
8
.
Parcel already falls to meet City off.street parking
requirements. AMC 18.92. According to Applicant's own
submissions (See table provided by AT&T agent) the current
uses on the property r~qulre a total of 440 parking spaces
under the current C-1 zoning requirements'- but the parcel
only has 341 off-street parking spaces. It is nonconforming
In that parking spaces existing are 22% "less than" minimum
required to meet code requirements. While the A T& T
wireless facilities reflected in the AT&T application may not
attract patrons, AT&T's own submissions Indicate
maintenance staff patronage, and it is presumed that these
maintenance personnel will park vehicles on the parcel,
Increasing the use of the already nonconforming parcel and
rendering it more nonconforming to the target uses for the
zone.
9
10
11
12
13
14
15
16
.
Incorporation by reference of additional written arguments for
appeal set for In Appellant's Notice of Appeal, Exhibit 7.
17
.
Applicant hereby incorporates herein by reference the written
arguments previously submitted by Appellant in Appellant's
Notice of Appeal, and marked as Sub-Exhibit 7 to the Notice
of Appeal, as though fully set forth herein verbatim. See:
Notice of Appeal, Ex. 7.
18
19
20
21
.
The facts, citations, and written arguments previously
submitted as Sub-Exhibit 7 to Appellant's Notice of Appeal
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL
PI.lllllllg Actloll # 2009-01244
Page -32-
DAVIS,HEAllN
SALADOFP &nRIOOES
A Prorenronal Corpolatlan
515 EAST MAIN STREET
ASHLAND, OREGON 97520
(541)482-3111 FAX (541) 488-4455
1
need not be repeated verbatim herein, and are therefore
merely incorporated here by reference as though fully set
forth.
2
3
.
THE APPLICATION SHOULD BE DENIED, AND THE DECISION OF
THE PLANNING COMMISSION REVERSED, BASED ON ITS HAVING
A GREATER ADVERSE MATERIAL EFFECT ON "LIVEABILITY" OF
THE TARGET AREA, COMPARED TO THE TARGET USE OF THE
ZONE. AMC 18.104.050.C.
4
5
6
7
.
Incorporation by reference of additional written arguments for
appeal set for in Appellant's Notice of Appeal, Exhibit 5.
8
.
Applicant hereby incorporates herein by reference the written
arguments previously submitted by Appellant in Appellant's
Notice of Appeal, and marked as Sub-Exhibit 5 to the Notice
of Appeal, as though fully set forth herein verbatim. See:
Notice of Appeal, Ex. 5.
9
10
11
.
The facts, citations, and written arguments previously
submitted as Sub-Exhibit 5 to Appellant's Notice of Appeal
need not be repeated verbatim herein, and are therefore
merely Incorporated here by reference as though fully set
forth.
12
13
14
15
DATED: September 25,2010.
16
Respectfully submitted,
DAVIS, HEARN, SALADOFF & BRIDGES, P.c.
17
18
G:-
19
20
CHRISTIAN E. HEARN, ass #911829
cheamlaldavlshearn.com
Attorneys for Appellant Roderick J. Newton
21
APPELLANT'S SUMMARY OF ARGUMENTS FOR COUNCIL APPEAL.
Pia/wing Action # 1009-01144
Page -33-
DAVIS, HEARN
SALADOFP & BRlDOES
A ProfeaslonalCOrparatlan
515 EAST MAIN STREET
ASHlAND, OREGON 97520
(5041)482-3111 FAX (541) 4a84<455
1
CERTIFICATE OF SUBMISSION I SERVICE
2
3
I hereby certify that I submitted the foregoing Appellant's Summary of
Arguments for Council Appeal to the City'of Ashland, by transmitting
same via email transmission as a PDF file attachment on September 25,
2010, addressed to the following persons:
4
5
1. Richard Appicello, City Attorney: appicelr(CQashland.or.us
6
2. Megan Thornton, Assistant City Attorney: thorntm(CQashland.or.us
7
WIth courtesy caples sImultaneously transmitted vIa emall to:
8
3. Bill Molnar, Community Development Director:
9 bmolnar(CQashland.or.us
10 4. Barbara Christensen, City Recorder: christeb(CQashland.or.us
11 Dated: September 25, 2010.
12 Davis, Hearn, Saladoff & Bridges, P.C.
13
14
a-.~
15
16
Christian E. Hearn, aSB # 911829
Attorneys for Appellant
Roderick J. Nllwton
17
18
19
20
21
APPELLANT~SUMMARYOFARGUMENTSFORCOUNcnAPPEAL
Pla'IIllllg Actloll # 1009.01141
Page -14-
DAVIS, HEARN
SALADOFP &; DRIDOES
APrcfesslonalC0tp0f8tlon
615 EAST MAIN STREET
ASHLAND, OREGON 9752()
(541)482-3111 FAX (541) 4S8-4455
~_'':a~
B
"-,",> ......"
BUSCH LAWFI RMPLLC
"'_'" uu.\O.A<"'l~~"
September 29, 2010
Bill Molnar
Community Development Director
City of Ashland
20 East Main Street
Ashland, OR 97520
Re: Planning File Number 2009-01244
Dear Mr. Molnar:
I have been retained by the applicant ("AT&T") to represent it in the appeal of the City
of Ashland Planning Commission's ("Commission") approval of AT&T's application in
this proceeding.
I am writing to request permission from the City Council to file the following comments
in the record of the appeal of this matter, and to present oral argument on behalf of
AT&T at the appeal hearing.
I. Request for Permission to File Comments and Present Argument at Appeal
Hearing. On or about September 15,2010, the City of Ashland ("City") mailed the
notice of the hearing on this appeal to the parties of record. AT&T's representative at the
hearing, Konrad Hyle, did not receive any copy of the notice until either Thursday,
September 23,2010 or Friday, September 24,2010. (Please see the attached Declaration
of Konrad Hyle.) I have confirmed" that none of the other copies of the notice of hearing
were received by AT&T or its contractor before Monday, September 27, 2010.
Under the timeline for this appeal hearing, AT&T was to have filed written comments
with the City before 4:30 p.m. on Saturday, September 25, 2010. AT&T did not have
adequate time before the Saturday September 25 deadline to review the materials,
conduct research and prepare written comments to be filed with the City.
AT&T hereby requests that the City allow AT&T to file these comments in the record for
this appeal and to present argument at the appeal hearing in order to avoid a manifest
injustice and to provide the applicant with due process of law during this appeal process.
Thank you for your consideration of our request.
22525 SE 64th Place. Suite 288
Issaquah. WA 98027
I 425.458.3940
j 206.219.6717
www.Wirel~ssCounsel.com
September 29,2010
Page 2
2. The City Council's Role is to confirm whether there is Substantial Evidence in the
Record to Support the Planning Commission's Approval.
Under the City's appeal procedures, the City Council's role is to confirm whether there is
substantial evidence in the record to support the Planning Commission's findings.
(AMC 18.108.110 D.) "Substantial evidence" is evidence that a permits a reasonable
person to make the finding.. Tye v. McFetridge, 342 Or. 61; 149 P.3d IIII (2006).
The City Council's role is not to determine whether there is substantial evidence, or any
evidence for that matter, to support the appellant's claim. Garcia v. Boise Cascade
Corp., 309 Or. 292; 787 P.2d 884 (1990).
Therefore, even if the City Council finds that there is substantial evidence both in support
and against the Planning Commission's approval, the City Council must approve the
Planning Commission's approval because there is substantial evidence in support of the
approval.
3. The City may not consider any evidence about the environmental effects of radio
frequency emissions.
Under the Telecommunications Act of 1996:
No State or local government or instrumentality thereof may
regi1late 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 Commission's regulations concerning 'such
emiSSions.
42 u.S.C Section 332(c)(7)(B)(iv).
AT&T has demonstrated that the proposed facility complies with the Federal
Communications Commission's regulations for radio frequency emissions. Therefore, it
is unlawful for the City to consider any testimony that was offered concerning health
impacts, livability, or other environmental effects that are based directly or indirectly
upon radio frequency emissions.
September 29, 20 I 0
Page 3
If you have any questions, please don't hesitate to contact me.
Very truly yours,
~h../ f7t.,.~
Richard J. Busch
BEFORE THE CITY OF ASHLAND CITY COUNCIL
APPLICATION OF GOODMAN
NETWORKS, INC. FOR
AT&T WIRELESS, LLC
PLANNING DEPARTMENT
FILE NUMBER:
2009-01244
DECLARATION OF KONRAD HYLE
Technology Associates International Corporation, Inc.
Land Use Consultant to AT&T Wireless
1 The following comments are provided in support of the applicant's ("AT&T) request to file written
2 comments in the appeal of this matter to the City of Ashland City Council ("Council") , which is
3 scheduled for October 5,2010.
4 1. My name is Konrad Hyle. I am currently employed by Technology Associates International
5 Corporation, Inc. as a land use planning consultant.
6 2. I personally represented AT&T at the hearing before the City of Ashland Planning
7 Commission's ("Commission") hearing when the Commission approved AT&T's application. I was the
8 addressee on one of the three notices that the City of Ashland ("City") mailed to A T& T concerning the
9 Council's October 5,2010 hearing on the appeal ("Notice").
10 3. I received my copy of the Notice via U.S. Mail on either Thursday, September 23,2010, or
11 Friday, September 24, 2010, at my office, which is my address of record in this proceeding.
12 4. Our U.S. Mail is delivered daily, Monday through Friday, to the mailbox for our office. We
13 retrieve our U.S. Mail every day on the same day it is delivered, or on the following business day if the
14 mail is delivered after business hours. On both Thursday, September 23,2010 and Friday, September
15 24, 2010, we retrieved our U.S. Mail on the date it was delivered to our mailbox.
16 5. I was personally handed the Notice on the same day it was delivered to our office by the U.S.
17 Postal Service. I cannot recall whether the delivery date was Thursday, September 23,2010 or Friday,
18 September 24,2010, but I am certain it was delivered to me on one of those two days.
Declaration of Konrad Hyle
2009-01244
Page 1
6
7
8
9
10
11
12
13
14
15
16
1
2
3
4
5
6. I notified AT&T's counsel, Richard Busch, that we received the Notice around 4:30 p.m. on
Friday, September 24, 2010. I provided a copy of the Notice to AT&T's counsel on Monday, September
27, 2010.
7. I understand as reported to me by AT&T's counsel, Richard Busch, that at least two other
copies of the Notice were mailed to AT&T's representatives, one addressed generally to AT&T (with no
individual's name as the addressee) at its offices in Tualatin, Oregon, and one to Breah Pike-Salas at
Goodman Networks in Portland, Oregon. I did not receive a copy of either of the Notices from these
two mailings. 1 do not know who would have received the Notice that was mailed to AT&T's offices in
Tualatin, Oregon. Ms. Pike-Salas is the manager of all of AT&T's new site deployment projects in
Oregon, Washington and northern Idaho, and does not have direct responsibility to represent AT&T in
this appeal proceeding.
I certify under penalty of perjury under the laws of the state of Oregon that the foregoing is true
and correct.
::2p9:~~'O_O
Declaration of Konrad Hyle
2009-01244
Page 2
CITY Of
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Stormwater and Wastewater Plan Updates
Advisory Committee Member Selection
October 5, 2010 Primary Staff Contact:
Public Works E-Mail:
N/ A Secondary Contact:
Martha Bennet Estimated Time:
Michael R. Faught
faughtm@ashland.or.us
Pieter Smeenk
Consent
Question:
Does the Council have questions about the Mayor's committee member selection for the Ashland
Stormwater Advisory Committee (SW AC) and the Ashland Wastewater Advisory Committee
(WW AC) for each of the respective Master Plan updates?
Staff Recommendation:
The Mayor and staff recommend that the Council approve the Mayor's committee member selection
for the Ashland Stormwater Advisory Committee and the Ashland Wastewater Advisory Committee
for each of the respective Master Plan updates.
Background:
Storm water Master Plan
Kennedy Jenks consultants, the firm chosen to complete the Stormwater Master Plan update
commenced this project several years ago, however, the scope of study for the plan was expanded on
March 2, 2010 to include preparation of a comprehensive financial and operational program and
organization of a public engagement program.
As a function of this expanded scope it was recommended that a Stormwater Advisory Committee be
formed to provide review and direction, including level of service goals. It is important that the
committee provide a balance of technical knowledge as provided by City staff, as well as a broader
based, non-technical viewpoint to be provided by citizens and council members. To that end, it is
proposed that the SW AC be comprised of four City staff members and three citizens, including one
council member.
The nine member SW AC committee members include the following organizations and/or citizens:
. Public Works, Engineering Division
. Public Works, Street Division (2) .
. Water Conservation Analyst, Conservation Division
. Parks Department
. Community Development
. Chamber of Commerce - Meiwen Richards
. At-Large Member - Melanie Mindlin
. At Large and Council Member - Kate Jackson
Only those who are not City staff require appointment by the Mayor.
Page I of2
r~'
CITY OF
ASHLAND
Wastewater Master Plan
The Consultant selected to complete the Wastewater Master Plan update, Keller and Associates, is also
prepared to schedule the first kick-off meeting of the WW AC in order to begin the master planning
process. To that end, City staff formed an advisory committee comprised of the following
organizations and/or citizens:
1. Ashland Public Works Director
2. Engineering Technician
3. Ashland Public Works Superintendent
4. Ashland Wastewater/Reuse Supervisor
5. Ashland Wastewater Collections
6. Ashland Wastewater Treatment Plant Supervisor
7. Ashland Water Quality Conservation Analyst
8. Parks Department
9. Medford Regional Water Reclamation Facility Superintendent, Dennis Baker
10. Chamber of Commerce - Meiwen Richards
II. Environmental, Leslie Adams
12. At Large Member, JeffHeglie
13. At Large and Council Member, Kate Jackson
Council Options:
(I) The Council could decide to approve the Mayor's Stormwater and Wastewater Advisory
Committee Appointments.
(2) The Council could decide to modify ( ) the Mayor's Stormwater and Wastewater
Committee Appointments.
Potential Motions:
(I) Move to approve the Mayor's Stormwater and Wastewater Advisory Committee Appointments.
(2) Move to modify ( ) the Mayor's Stormwater and Wastewater Advisory Committee
Appointments.
Attachments:
None
Page 2 of2
r~'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approva]:
Approval of Amendment No.1 to the Engineering Services Contract for the
Jefferson Avenue Improvement Project
October 5,2010 Primary Staff Contact:
Public Works E-Mai]:
Finance Secondary Contact:
Martha Benne Estimated Time:
Question:
Will the Council approve a $]2,020 amendment to the existing contract with KAS & Associates, Inc.
for design and construction engineering services for the Jefferson Avenue project?
James Olson
olsoni(alashland.or. us
Karl Johnson
Consent
Staff Recommendation:
Staff recommends approval ofa $]2,020 amendment to the existing contract with KAS & Associates,
Inc. for design and construction engineering services for the Jefferson Avenue Improvement project.
Background:
The Department of State Lands (DSL) permit that was approved on June 16,20]0 and the subsequent
"in water" work period extension granted on September 7'h, added additional work elements not
anticipated in the original contract with KAS & Associates. KAS has requested compensation for
these additional duties. The $] 2,020 amendment will increase the total contract amount from $28,425
to $40,445, a 42 percent increase.
Additional work required as a result of the DSL permit and "in water" work time expansion includes:
. Increased erosion control requirements
. Expanded wet land mitigation efforts
. Increased efforts to control water run offthrough the stream construction area
· Additiona] surveying to define wetland and mitigation areas
. Permit tracking and monitoring
. Structure redesign
The contract with KAS also includes three additional professional consultants who, together with the
City engineering staff, constitute the design team for the project. The sub consultants and their
respective additional c'ost allocations include: .
. Polaris Land Surveying $ 1,920.00
. Northwest Bio]ogica] $ 2,900.00
. Laurie Sager and Associates $ 2,500.00
. KAS & Associates, Inc. (prime) $ 4,700.00
TOTAL $12,020.00
The project approved under the OCEDD agreement is for the extension of Jefferson Avenue. Currently
Jefferson Avenue exists as two "dead end" sections of street connecting to Washington Street.
Connecting the two existing sections requires a 606 foot long extension which would necessitate
crossing Knoll Creek. The proposed crossing will be accomplished by constructing a large multi-plate
Page I of2
r~'
CITY OF
ASHLAND
arch structure with an improved native bottom. The proposed improvements will also include concrete
curbs and gutters, sidewalks, an asphalt street surface, water and sewer mains, a storm drain system
with filtration treatment and electrical and related dry utilities including street lights. An extensive
landscaping element is also included as mitig\ltion for wetlands removal (described below).
A small intermittent creek, locally known as Knoll Creek bisects the Brammo property in a north/south
direction. The creek only flows during times of heavy rain or with irrigation overflows. The
intermittent flow has created a wetland area which will be impacted by the construction and must be
mitigated. The removal of wetland growth and any other work within the stream corridor must be
completed in accordance with DSL Permit No. 43449-RF. The permit requires that this work be
completed within the "in water" work period (June IS to Sept IS). Due to ongoing changes in the City
public contracting laws, Staff was unable to bid this project until mid August, nearly halfway through
our specified work period. Staff requested an extension to the "in water" work period which was
approved by DSL on September 7,2010.
On September 7th the Council also awarded a contract to Taylor Site Development Inc. to construct the
Jefferson Avenue Improvement project. Taylor, with a bid of$514,789.00, was the low of five bids
received. A pre-bid conference, which is required prior to construction start-up, was held on
September ISth and the actual construction commenced on Thursday September 16th. The project is
scheduled for completion on May 31, 2011.
On February 7,2007 special public works funding in the amount of $900,000 was authorized through
the Oregon Economic and Community Development Department (OECDD) to construct the extension
of Jefferson Avenue thereby providing services and access to the proposed Brammo Motorsport
facility. The fund is a $SOO,OOO loan and a $400,000 grant and is detailed under Contract No. B06003.
Under this agreement the City is listed as the borrower, but economic development is dependent upon
the construction of the Brammo Motorsport facility owned by Craig Bramscher.
Related City Policies:
The Council acts as the Local Contract Review Board (LCRB) under authority granted by ORS 279A,
279B and 279C as well as under AMC 2.S0. The Council approves contract amendments in excess of
2S percent of the original contract. .
Council Options:
· Council may approve a $12,020 amendment to the existing KAS contract for design and
construction services for the Jefferson Ave. Improvement project
. Council may decline to approve the contract amendment
Potential Motions:
· Move to approve a $12,020 amendment to the existing KAS contract for design and
construction services for the Jefferson Ave. Improvement project
· Move to deny a $12,020 amendment to the existing KAS contract for design and construction
services for the Jefferson Ave. Improvement project
Attachments:
. Contract Amendment No. I
Page 20f2
~.l'
ENGINEERING SERVICES CONTRACT
AMENDMENT NO.1
Engineering services contract made on the date specified below in Recital A between
the City and Engineer as follows:
Recitals:
A. The following information applies to this contract:
CITY: CITY OF ASHLAND ENGINEER: KAS & Associates, Inc.
City Hall 327 SE 'J' Street, Suite B
20 E. Main St. Address: Grants Pass, OR 97526
Ashland, Oregon 97520
(541) 488-5347 FAX: (541) 488-6006 T ele: 541/479-5801 Fax: 541/479-5987
Date ofthi~ agreement: Oct. 5, 2010 B: RFP Date: N/A
Proposal Date: November 17,2009
f[2.3 City Contracting Officer: Michael R. Faught, Director of Public Works
f[2.4. Project: Jefferson Avenue
f[6.1. Engineer's Representative: Gary Van Dyke, PE
f[8.3. Maximum Contract Amount: $28,425.00
B. AMENDMENT NO.1
1. Modification to "Services to be provided"
Add services per attached proposal and cost estimate dated September 16, 2010
and made a part of this amendment.
2. Modification to "Compensation"
A. Add cost of extra work = $12,020.00
B. Adjusted total contract amount = $40,445.00
CONSULTANT
CITY
BY
BY
Finance Director
Fed. 10 #
REVEIWED AS TO CONTENT
BY
City Department Head
Date:
Coding:
(for City use only)
G:\pub-wrks\eng\OS.10 Jefferson S( Extension\A_Admin\Eng Vendor1\Contract Documenls\05-10 Contract Amend Eng 9 15 1
10.doc
~@d
Medford, OR 97501
304 S. Hoffy Slreet
Tel: (541) 772-5607
Fax: (541) 616-7389
kas@kasincxom
Granls Pass, OR 97526
237 S.E. 'J' Streel. Suile B
Tel: (541) 479.5801
Fax: (541) 479.5967
kas@kasinc.com
~ v"U~'I..rf.,~,. en;,;.
ENGINEERING
SeRVICES
r:nSlIlJ./Cltl"'iJ. N"-~,,.t,~
DESIGN CHANGE NOTICE
AITN:
James.!'!. Olson
Engincering Scrvices Manager
City of Ashland
Ashland P.O. 09330, 1lI18/09
. Project No.:
Design Change No.:
Date:
A09'01
One
Original (April 28, 2010)
Revised
S~ptembcr 15, 2010
Issued by:. Gary Van Dyke, P.E..
Descripti~n of Change Change (if scope rcquil'ed for. the addition of environmental services
and DSL pcrmit coordination
Reason for Change
Environmcntal serviccs were not originally included in design.scope
Action Required Survey services, landscape architecture, civil engineering and resource
inventory mitigation related to impacts within Knoll Creek and Oregon Division,ofState,Lands permits
for same.
Fee Adjustment
Add thdollowing fees: Polaris Surveying'- $1,920, N.W. Biological (ScottEnglish)" $2,900
Laurie Sager & Associates - $2500, KAS& Associates -$4;700
Total $12,020
By signing and dating below, you .are confirming that YOll have read and agree With KAS &
Associates, Inc. Standard Terms and Conditions and Standard Billing Policy, att~ched. Please
acknowledge YOL,r approval of services and additional fees associated with this Design Change Notice
by having an authorized representative sign and dale in the space provided beJowand. return one c9PY
to ollr office.
Signature:
Date:
www.kasinc.com
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ordinance Relating to Noise and Heat Pumps or Mechanical Devices and
Amendin~ AMC 9.08.170, 9.08.175, and 15.04.185
October 5,2010 Primary Staff Contact: Megan Thornton
City Attorney's Office E-Mail: thorntm@ashland.oLus
Community De ii1,t~ment Secondary Contact: Bill Molnar
Martha Benn ~ Estimated Time: 5 minutes
Question:
Will the 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"?
Staff Recommendation:
Staff recommends Council approve the Second Reading of this ordinance.
Background:
At the September 21, 2010 regular meeting the City Council approved first reading of this ordinance
with no changes.
The AMC provisions regarding noise were originally adopted in 1968, and the decibel standards were
added in 1982. Based on staffs experience in enforcing this code, staffrecommended updating a
number of the noise provisions, especially the provisions regarding heat pumps and mechanical
devices. It was also necessary to update sections of the code that attempted to distinguish between
commercial and non-commercial speech, which is not allowed under the Oregon Constitution. Staff
also received feedback from Council requesting that the antiquated references be removed and that
staff consider looking at the League of Oregon Cities (LOC) model noise ordinance when updating the
language. The proposed ordinance addresses all of these concerns.
The heat pump and mechanical device provisions were amended to clearly state what decibel standard
applies by stating the installation year, instead of referring to the date the ordinance was adopted. In
addition, because decibel standards apply to heat pumps and mechanical devices, those provisions
were moved to 9.08.170.E, regarding decibel level readings, and eliminated from Chapter 15,
Buildings and Construction. Section 15.04.185, heat pumps and mechanical devices, was repealed
because it suggested there would be an inspection to determine noise levels before an installation
permit would be granted, but this is not possible because the device must be installed for an inspection
to take place. Staff believes that consolidating all ofthe standards into one section will make it easier
for citizens to locate and comply with the standards regarding heat pumps and mechanical devices.
There has been confusion and litigation over these code provisions in Ashland Municipal Court and
Jackson County Circuit Court; and the Circuit Court Judge also suggested revising these sections.
The LOC model ordinance and the City's noise provisions are both based upon the reasonable person
standard; therefore, staff was able to borrow from the model ordinance to update the current language
in the code. These revisions made it possible to eliminate references to noises that are produced by a
vitro la, steam whistle, and bells attached to animals. Definitions were also added to make the
Page I of4
~~,
CITY OF
A.SHLAND
ordinance clearer. The following Table shows the current noise provision, and the corresponding
adaptation of the model ordinance section that was used to effectuate the update:
@u.I;.IJ~nt IDi1iIjnanc~e
1. The keeping of any bird or animal, including specifically any
dog, which by causing frequent or long-continued noise disturbs
the comfort and repose ofaoy person in the vicinity.
2. The attaching of a bell to an animal or allowing a bell to remain
on an animal.
3. The use ora vehicle or engine, either stationary or moving, so
out of repair, loaded, or operated as to create any loud or
unnecessar Tatin, rindin ,Tattlio ,or other noise.
4. The sounding ofa horn or signaling device on a vehicle on a
street, public place, or private place, except as a necessary warning
of danger.
5. The blowing ofa steam whistle attached to a stationary boiler,
except to give notice of the time to begin or stop work, as a
warnin ofdan er, or u on re uest of ro er Cit authorities
6. The use ofa mechanical device operated by compressed air,
steam, or otherwise, unless the noise thereby created is effectively
muffled;
7. The erection, including excavation, demolition, alteration, or
repair of a building in residential districts, other than between the
hours of seven (7:00) a.m. and six (6:00) p.m. weekdays, and on
weekends and Holidays between the hours of eight (8:00) a.m. and
six (6:00)p.m., except in case of urgent necessity in the interest of
the public welfare and safety and then only with a permit granted
by the City Administrator for a period not to exceed ten (10) days.
The permit may be renewed for periods oftive (5) days while the
emergency continues to exist. If the Council determines that the
public health, safety and welfare will not be impaired by the
erection, demolition, alteration, or repair ofa building between the
hours of six (6:00) p.m. and seven (7:00) a.m., and if the Council
further determines that loss or inconvenience would result to any
person unless the work is permitted within these hours, the Council
may grant permission for such work to be done within specified
hours between six (6:00) p.m. and seven (7:00) a.m. upon
application therefore being made at the time the permit for the
work is awarded or during the progress of the work. (Ord. 2580,
1 990)The actual owner of property may do work on property
which is actually owner occupied between the hours of six (6:00)
p.m. and ten (10:00) p.m. without obtaining a permit as herein
re uired;
8. The use of a gong or siren upon a vehicle, other than police, fire,
or other emergency vehicle;
See general prohibition in proposed ordinance *9.08.170.8.
3. Vehicle Horns, Signaling Devices, and Similar Devices. The
sounding of any horn, signaling device, or other similar device, on
any automobile, motorcycle, or other vehicle on any right-of-way
or in any public space of the City, for more than ten consecutive
seconds. The sounding of any horn, signaling device, or other
similar device, as a danger warning is exempt ITom this
rohibition. ModelOrd. '6.B
See general prohibition in proposed ordinance *9.08.170.8.
11. Blowers, and Similar Devices. In residential or noise sensitive
areas, between the hours of9:00 p.m. and 7:00 a.m., the operation
of any noise-creating blower, power fan, power tools or any
internal combustion engine, the operation of which causes noise
due to the explosion of operating gases or fluids, provided that the
noise is unreasonably loud and raucous and can be heard across the
property line of the property from which it emanates. (Model Ord.
6.L
6. Construction or Repair of Buildings, Excavation of Streets and
Highways. The construction, demolition, alteration or repair of
any building or the excavation of streets and highways other than
between the hours of7:00 a.m. and 7:00 p.m., on weekdays, and
8:00 a.m. and 6:00 p.m. on weekends and holidays, except in the
case of an emergency in the interest of the public welfare and
safety. In cases of emergency, construction or repair noises are
exempt from this provision. In non-emergency situations, the City
Administrator may issue a permit, upon application, if the City
Administrator determines that the public health and safety, as
affected by loud and raucous noise caused by construction or repair
of buildings or excavation of streets and highways between the
hours of7:00 p.m. and 7:00 a.m. will not be impaired, and if the
City Administrator further determines that loss or inconvenience
would otherwise result. The permit shall grant permission in non-
emergency cases for a period of not more than five days. The
permit may be renewed once for a period of five days or less. The
actual owner of property may do work on property which is owner
occupied between the hours of 6:00 p.m. and 10:00 p.m. without
obtaining a permit under this paragraph. (Model Ord. S6.1)
4. Non-Emergency Signaling Devices. Sounding or permitting
sounding of any amplified signal from any bell, chime, siren,
whistle or similar device, intended primarily for non-emergency
purposes, from any place for more than ten consecutive seconds in
any hourly period. The reasonable sounding of such devices by
houses of religious worship, ice cream trucks, seasonal
contribution solicitors or by the City for traffic control purposes
are exem t from the 0 eration of this rovision. (Model Ord. 96.C)
Page 2 of4
r~'
9. The creation of excessive noise on a street adjacent to a school,
institution of learning, church, or court of justice, while the same
are in use, or on a street adjacent to a hospital, nursing home, or
other institution for the care of the sick or infirm, which
unreasonably interferes with the operation of such institution or
disturbs or unduly annoys patients;
10. The discharge in the open air of exhaust of a steam engine,
internal combustion engine, motorboat, or moto~ vehicle except
through a muffler or other device which wiJI effectively prevent
loud or exnlosive noises and the emission of annovinp" smoke;
II. The use or operation of an automatic or electric piano, musical
instrument, stereo, radio, or similar device, television, computer,
loudspeaker, or any instrument for sound producing or any sound-
amplifying device so loudly as to disturb persons in the vicinity
thereof or in such a manner as renders the use thereof a nuisance.
However, upon application to the City Administrator, or designee
and a report from the Chief of Police, the City Administrator or
designee may grant permits to responsible persons or organizations
for the broadcast or amplification of programs of music, news,
speeches, or general entertainment as a part of a national, state or
City event, public festivals, or special events of a noncommercial
nature. If the City Administrator or designee disapproves such a
permit, the matter may be appealed pursuant to the AMC 2.30, and
the decision of the Hearings Officer, who shall not be the City
Administrator, shall be final. The broadcast or amplification shall
not be audible for a distance of more than one thousand (1,000)
feet from thc instrument, speaker, or amplifier, and in no event,
shall a permit be granted where any obstruction to free and
uninterrupted traffic, both vehicular and pedcstrian, will result.
12. The making ofa noise by crying, calling, or shouting or by
means ofa whistle, rattle, belJ, gong, clapper, horn, hammer, drum,
musical instrument, or other device for the purpose of advertising
goods, wares, or merchandise, attracting attention, or inviting
patronage of a person to a business. However, newsboys may sell
newspapcrs and magazines by public outcry;
13. The conducting, operating, or maintaining ofa garage within
one hundred (100) feet of a private residence, apartment, rooming
house, or hotel in such manner as to cause loud or disturbing
noises to be emitted there from between the hours of eleven
(11:00) p.rn. and seven (7:00) a.m.)
CITY OF
ASHLAND
10. Noise Sensitive Areas - Schools, Courts, Churches, Hospitals,
and Similar Institutions. The creation of any unreasonably loud
and raucous noise adjacent to any noise sensitive area while it is in
use, which unreasonably interfercs with the workings of the
institution or which disturbs the persons in thesc institutions;
provided that conspicuous signs delineating the boundaries of the
noise sensitive area are displayed in the streets surrounding the
noise sensitive area. (Model Ord. ~6.K)
See general prohibition in proposed ordinance 99.08.170.8.
7. Radios, Televisions, Boomboxes, Stereos, Musical Instruments
and Similar Devices. The use or operation of a radio, television,
boombox, stereo, musical instrument, or similar device that
produces or reproduces sound in a manner that is plainly audible to
any person other than the player(s) or operator(s) of the device, and
those who are voluntarily listening to the sound, and which
unreasonably disturbs the peace, quiet, and comfort of neighbors
and passers-by, or is plainly audible at a distance of 50 feet from
any person in a commercial, industrial area, or public space. The
use or operation of a radio, television, boombox, stereo, musical
instrument, or similar device that produces or reproduces sound in
a manner that is plainly audible to any person other than the
player(s) or operator(s) of the device, and those who are
voluntarily listening to the sound, and unreasonably disturbs the
peace, quiet, and comfort of neighbors in residential or noise
sensitive areas, including multi-family or single-family dwellings.
(Model Ord. .6.E)
8. Loudspeakers, Amplifiers, Public Address Systems, arid Similar
Devices. The unreasonably loud and raucous use or operation of a
loudspeaker, amplifier, public address system, or other device for
producing or reproducing sound is prohibited without a permit
from the City Administrator. The City Administrator may grant a
permit to responsible persons or organizations for the broadcast or
amplification of sound as a part of a national, state, or city event,
public festival, or special events ofa noncommercial nature. If the
City Administrator does not grant the permit, the matter may be
appealed to an outside hearings officer pursuant to AMC 2.30.
This permit shall not be required for any public performance,
gathering, or parade for which a permit authorizing the event has
been obtained from the City. (Model Ord. .6.F)
9. Yelling, Shouting, and Similar Activities. Yelling, shouting,
hooting, whistling, or singing in residential or noise sensitive areas
or in public places, between the hours of 10:00 p.m. and 7:00 a.m.,
or at any time or place so as to unreasonably disturb the quiet,
comfort, or repose of reasonable persons of ordinary sensitivities.
This section is to be applied only to those situations where the
disturbance is not a result of the content of the communication but
due to the volume, duration, location, timing or other factors not
based on content. iModel Ord. .6.Gl
12. Commercial Establishments Adjacent to Residential Property.
Unreasonably loud and raucous noise from the premises of any
commercial establishment, including any outdoor area which is
part of or under the control of the establishment, between the hours
of II :00 p.rn. and 7:00 a.m., which is plainly audible at ITom the
nronenv line of any residential nronertv. (Model Ord. i6.M)
The ordinance includes exemptions for regular vehicular traffic, emergency vehicles, emergency
signals, railroads, airports, certain types of construction, and some outdoor activities. It is necessary to
exempt railroads and airports because these industries are regulated by federal laws, such as the Noise
Page 3 of4
.....
r_~
CITY OF
ASHLAND
Control Act of 1972, F"deral Aviation Act, Airport Noise and Capacity Act of 1990, and federal rules
regarding the railroad and airport noise. In addition, the Supreme Court and the 9th Circuit have both
held that local laws that "Congress unequivocally intended that the federal government have 'full
control over aircraft noise, pre-empting state and local contral. '" San Diego Unified Port v. Gianturco,
651 F.2d 1306, 1311 (1981) (citing Citv of Burbank v. Lockheed Air Terminal. Inc., 411 U.S. 624, 633
(1973)).
Related City Policies:
Ashland City Charter Article X, Ordinance Adoption Procedures
Council Options:
(1) Move to approve First Reading of the ordinance.
(2) Postpone Second Reading of the proposed ordinance.
Potential Motions:
Staff: Conduct Second Reading by title only.
Council: Move to approve Second Reading of the ordinance.
Attachments:
Proposed ordinance
9
,
Page 4 of4
~~,
ORDINANCE NO.
AN ORDINANCE RELATING TO NOISE AND HEAT PUMPS OR
MECHANICAL DEVICES AND AMENDING AMC 9.08.170,9.08.175, AND
15.04.185
Annotated to show deletioHs and additions to the code sections being modified. Deletions are
bold lined through and additions are bold underlined.
WHEREAS, Article 2. Section I of the Ashland City Charter provides:
Powers of the Citv The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess ;,Ill powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession;
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities. Citvof
Beaverton v. International Ass'n of Firefighters, Local 1660, Beaverton Shop, 20 Or. App. 293,
531 P 2d 730, 734 (1975);
WHEREAS, the noise ordinance was adopted in 1982;
WHEREAS, the code should be updated to remove antiquated language, modify standards, and
address problems with the mechanical devices provisions.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Sections 9.08.170 [Unnecessary Noise] through 9.08.175 [Heat Pumps or
Mechanical Devices] are hereby amended to read as follows:
9.08.170 Unnecessary Noise
A. Definitions. For the purposes of this section on Iv. the following words shall have
the meaning provided in this paragraph.
1. Emergencv: any occurrence or set of circumstances involving actual or
imminent physical trauma or property damage demanding immediate
attention.
2. Emergencv Work: any work performed for the purpose of preventing or
alleviating phvsical trauma or property damage. whether actuallv caused or
threatened bv an emergency. or work bv private or public utilities when
restoring utility service.
Page I of9
3. City Administrator: 'the City Administrator of City or the City
Administrator's desil!nee.
4. Noise Sensitive Area: includes. but is not limited to. real propertv normallv
used for sleepinl!. or normallv used as a school. church. hospital or public
Iibrarv.
5. Plain Iv audible: anv sound that can be detected bv a reasonable person of
ordinarv sensitivities usinl! his or her unaided hearinl! faculties.
6. Public ril!ht-of-way: any street. sidewalk. or similar place normally
accessible to the public which is owned or controlled by a l!overnment entity.
7. Public space: any reaJ property or structures on real property. owned by a
l!overnment entity and normally accessible to the public. includinl! but not
limited to parks and other recreational areas.
8. Residential property: any real property located in a residentially zoned
district pursuant to the local land use code.
A. B.General Prohibition. No person shall make, continue. or assist in makin~
eontinue, or eause to be mode
I) any unreasonably loud, disturbing, or raucous noise: or
2) any unneeessary noise which either that unreasonably annoys, disturbs, injures,
or endangers the comfort, repose, health, safety, or peace of reasonable persons of
ordinarv sensitivity. within the iurisdictionallimits of the' City: or others.
3) any noise which is so harsh. prolonl!ed. unnatural. or unusual in time or place
as to occasion.unreasonable discomfort to any persons. or as to unreasonably
interfere with the peace and comfort of neil!hbors or their l!uests. or operators
or customers in places of business. or as to detrimentally or adversely affect
such residences or places of business.
-8. !:::..The standard for judging loud, disturbing and unnecessary noises shall be that of an
average, reasonable person with ordinary sensibilities after taking into consideration~
Suek noises ...:hiek ore in violation of this seetion include but ore not limited to tke
following:
h the character of the neighborhood in which the noise is made and the noise is
heard..
2. the proximity of the sound to sleepinl! facilities. whether residential or
commercial: ,
3. the the land use. nature. and zoninl! of the area from which the sound
emanates and the area where it is received or perceived:
4. the time of day or nil!ht the sound occurs:
5. the duration of the sound; and
6. whether the sound is recurrent. intermittent. or constant.
D. Noises Prohibited. The followinl! acts are declared to be per se violations of this
Ordinance. This enumeration does not constitute an exclusive list:
1. Unreasonable Noises. The unreasonable makinl! of. or knowinl!ly and
unreasonably permittinl! to be made. any unreasonably loud. boisterous or
unusual noise. disturbance. commotion or vibration in any boardinl! facility.
Page 2 of9
dwelline:, place of business or other structure, or upon any public street, park,
or other place or buildine:. The ordinary and usual sounds, noises, commotion
or vibration incidental to the operation of these places when conducted in
accordance with the usual standards of practice and in a manner which will
not unreasonablv disturb the peace and comfort of adjacent residences or
which will not detrimentallv affect the operators of adjacent places of business
are exempted from this provision.
2. Animals and Birds. Unreasonablv loud and raucous noise emitted bv an
animal or bird for which a person is responsible. A person is responsible for
an animal if the person owns, controls or otherwise cares for the anjmal or
bird.
3. Vehicle Horns, Sie:naline: Devices, and Similar Devices. The soundine: of any
horn, sie:naline: device, or other similar device, on any automobile, motorcvcle,
or other vehicle on any rie:ht-of-wav or in any public space of the City, for
more than ten consecutive seconds. The soundine: of any horn, sie:naline:
device, or other similar device, as a dane:er warnine: is exempt from this
prohibition.
4. Non-Emere:encv Sie:naline: Devices. Soundine: or permittine: soundine: of any
amplified sie:nal from any bell, chime, siren, whistle or similar device,
intended primarilv for non-emere:encv purposes, from any place for more
than ten consecutive seconds in any hourlv period. The reasonable soundine:
of such devices bv houses of relie:ious worship, ice cream trucks, seasonal
contribution solicitors or bv the City for traffic control purposes are exempt
from the operation of this provision.
5. Emere:encv Sie:naline: Devices. The intentional soundine: or permittine: the
soundine: outdoors of any emere:encv sie:naline: device includine: fire, bure:lar,
civil defense alarm, siren, whistle, or similar emere:encv sie:naline: device,
except in an emere:encv or except as provided in subsections (a) and (b),
below.
a. Testine: of an emere:encv sie:naline: device shall occur between 7:00
a.m. and 7:00 p.m. Anv testine: shall use on Iv the minimum cvcle test
time. In no case shall such test time exceed five minutes. Testine: of the
emere:encv sie:naline: system shall not occur more than once in each
calendar month.
b. If a false or accidental activation of an alarm occurs more than twice
in a calendar month, the owner or person responsible for the alarm
shall be in violation of this Ordinance.
6. Construction or Repair of Buildine:s, Excavation of Streets and Hie:hwavs.
The construction, demolition, alteration or repair of any buildine: or the
excavation of streets and hie:hwavs other than between the hours of 7:00 a.m.
and 7:00 p.m" on weekdays, and 8:00 a.m. and 6:00 p.m. on weekends and
holidavs, except in the case of an emere:encv in the interest of the public
welfare and safety. In cases of emere:encv, construction or repair noises are
exempt from this provision. In non-emere:encv situations, the City
Administrator may issue a permit, upon application, if the City
Administrator determines that the public health and safety, as affected bv
Page 3 of9
loud and raucous noise caused bv construction or repair of buildings or
excavation of streets and highways between the hours of 7:00 p.m. and 7:00
a.m. will not be impaired, and if the City Administrator further determines
that loss or inconvenience would otherwise result. The permit shall grant
permission in non-emergency cases for a period of not more than five days.
The permit may be renewed once for a period of five days or less. The actual
owner of property may do work on property which is owner occupied
between the hours of 6:00 p.m. and 10:00 p.m. without obtaining a permit
under this paragraph.
7. Radios, Televisions, Boomboxes, Stereos, Musical Instruments and Similar
Devices. The use or operation of a radio, television, boombox, stereo, musical
instrument, or similar device that produces or reproduces sound in a manner
that is plain Iv audible to any person other than the plaver(s) or operator(s) of
the device, and those who are voluntarilv listening to the sound, and which
unreasonablv disturbs the peace, Quiet, and comfort of neighbors and
passers-by, or is plainlv audible at a distance of 50 feet from any person in a
commercial, industrial area, or public space. The use or operation of a radio,
television, boombox, stereo, musical instrument, or similar device that
produces or reproduces sound in a manner that is plain Iv audible to any
person other than the plaver(s) or operator(s) ofthe device, and those who
are voluntarilv listening to the sound, and unreasonablv disturbs the peace,
Quiet, and comfort of neighbors in residential or noise sensitive areas,
including multi-familv or single-familv dwellings.
8. Loudspeakers, Amplifiers, Public Address Systems, and Similar Devices. The
unreasonablv loud and raucous use or operation of a loudspeaker, amplifier,
public address system, or other device for producing or reproducing sound is
prohibited without a permit from the City Administrator. The City
Administrator may grant a permit to responsible persons or organizations
for the broadcast or amplification of sound as a part of a national, state, or
city event, public festival, or special events of a noncommercial nature. If the
City Administrator does not grant the permit, the matter may be appealed to
an outside hearings officer pursuant to AMC 2.30. This permit shall not be
required for any public performance, gathering, or parade for which a
permit authorizing the" event has been obtained from the City.
9. Yelling, Shouting, and Similar Activities. Yelling, shouting, hooting,
whistling, or singing in residential or noise sensitive areas or in public places,
between the hours of 10:00 p.m. and 7:00 a.moo or at any time or place so as
to unreasonablv disturb the Quiet, comfort, or repose of reasonable persons
of ordinary sensitivities. This section is to be applied on Iv to those situations
where the disturbance is not a result of the content of the communication but
due to the volume, duration, location, timing or other factors not based on
content.
10. Noise Sensitive Areas - Schools, Courts, Churches, Hospitals, and Similar
Institutions. The creation of any unreasonablv loud and raucous noise
adiacent to any noise sensitive area while it is in use, which unreasonablv
interferes with the workings of the institution or which disturbs the persons
Page 4 of9
in these institutions: provided that conspicuous sil!ns delineatinl! the
boundaries of the noise sensitive area are displaved in the streets
surroundinl! the noise sensitive area.
11. Blowers, and Similar Devices. In residential or noise sensitive areas, between
the hours of 9:00 p.m. and 7:00 a.m., the operation of anv noise-creatinl!
blower, power fan, power tools or anv internal combustion enl!ine, the
operation of which causes noise due to the explosion of operatinl! l!ases or
fluids, provided that the noise is unreasonablv loud and raucous and can be
heard across the property line of the property from which it emanates.
12. Commercial Establishments Adiacent to Residential Property. Unreasonablv
loud and raucous noise from the premises of any commercial establishment,
includinl! any outdoor area which is part of or under the control of the
establishment, between the hours of 11 :00 p.m. and 7:00 a.m., which is
plainlv audible at from the property line of any residential property.
1. The keeping of any binl or animal which by causing fFeljuent or long continued
noise disturbs the eomfort and repose of any person in the ';icinity;
2. The attaching of a bell to an animal or allowing a bell to remain on an animal;
3. The use of a yehiele or engine, either stationary or moving, so out of repair,
loalled, or operatell as to ere ate any loud or unneeessary grating, grinlling,
rattling, or other noise;
1. The sounlling of a horn or signaling de'liee on a vehiele on a street, publie
plaee, or priyate plaee, exeept as a neeessary warning of danger;
S. The Mowing of a steam whistle attaehed to a stationary boileF, exeept to gin
notiee of the time to begin or stop worl., as a warning of danger, or upon
reljuest of proper City authorities;
9.- The use of a mechanical device operated by compressed air, steam, or otherwise,
unless the noise thereby created is effectively muffled
7. The erection, including exeayation, demolition, alteration, or repair of a
buillling in residential districts, other than between the hours of seven (7:00)
a.m. and six (6:00) p.m. ','l'eekdays, and on weel.ends and Holida)'s between the
hours of eight (8:00) a.m. anll six (6:00)p.m., except in case of urgent necessity
in the interest of the publie welfare and safet)' and then only with a permit
granted by the Cit), ,A.llministrator for a perioll not to ellceed ten (10) lIays.
The permit may be renewell for periods of Ihe (S) days while the emergeney
eontinues to Cllist. If the Council determines that the publie health, safet)' and
welfare will not be impairell by the erection, demolition, alteration, or repair
of a building between the hours of six (6:00) p.m. anll seven (7:00) a.m., and if
the Council further lIetermines that loss or ineon'/enience woulll result to any
person unless the worl. is permittell within these hours, the Couneil may grant
permission for such wort. to be done within specifiell hours between six (6:00)
p.m. and seven (7:00) a.m. upon application therefore being malle at the time
the permit fur the work is awarded or lIuring the progress of the work. (01'11.
2S80, 1990)The aetualowner of property may 110 work on property which is
actually owner oceupied between the hours of six (6:00) p.m. anll ten (10:00)
p.m. without obtaining a permit as herein reljuired;
Page 5 of9
bE.
8. The use of a gong or siren upon a vehicle, other than poliee, fire, or other
emergency \'ehicle. .
9. The ereation of excessiye noise on a street adjacent to a schooJ, institution of
learning, church, or court of justice, while the same are in use, or on a street
alljacent to a hospital, nursing home, or other institution f~r the care of the
sicll or infirm, which unreasonably interferes with the operation of sueh
institution or disturbs or unduly annoys patients;
10. The discharge in the open air of exhaust of a steam engine, internal
combustion engine, motorboat, or motor vehicle except through a muffler or
other device which will effectively preyent loud or explosive noises and the
emission of annoying smolle;
l1.The use or operation of an automatic or electrie piano, phonograph,
gramophone, Victrola, radio, television, loudspeaker, or any instrument for
sound produeing or any sound amplifying deyice sa loudly as to disturb
per~ons in the yicinity thereof or in sueh a manner as renders the use thereof
a nuisance. Howe';er, upon applieation to the Cit)' Administrator and a report
from the Chief of Police, the City Administrator may grant permits to
responsible persons or organizations fer the broadcast or amplification of
programs of musie, news, speeches, or general entertainment as a part of a
.national, state or Cit). event, publie festivals, or speeial events of a
noneommereial nature. If the Cit)' Administrator disappro'ies sueh a permit,
the matter may be appealed to the Cit)' Council 'I\'hose deeision shall be final.
The broadcast or amplifieation shall not be audible far a distanee of mare
than one thousand (1,000) feet from the instrument, speaker, or amplifier, and
in no event, shall a permit be granted where any obstruction to free and
uninterrupted traffie, bath ';ehicular and pedestrian, will result. (Ord. 2307,
t-984)
12. The making of a noise by erying, ealling, or shouting or by means of a whistle,
rattle, bell, gang, clapper, horn, hammer, drum, musical instrument, or ather
deyiee far the purpose of ad'iertising goods, wares, or merchandise, attraeting
attention, or inviting patronage of a person to a business. Howeyer, newsboys
may sell newspapers and magazines by public outcry;
13. The eondueting, operating, or maintaining of a garage within one hundred
(100) feet of a pri'iate residenee, apartment, roaming house, or hoteJ in such
manncr as to cause loud or disturbing noises to be emitted therefrom between
the hours of cleven (II :(0) p.m. and sc';cn (7:00) a.m.
Generallv sound measurements are not required for enforcement of this chapter:
however, sound measurements are required for enforcement pursuant to this
section. If sound measurements are taken, thev shall be taken with a sound level
meter in l!ood operatinl! condition. Any source of noise which exceeds the
following standards is considered a public nuisance~
I. Decibel Noise Standards
Allowable Statistical Noise Levels in any One Hour:
7 a.m. to 9 p.m. 9 p.m. to 7 a.m.
L50--50 DBA L50--45 DBA
L1 0--55 DBA L1 0--50 DBA
Page 6 of9
LI--60 DBA LI--55 DBA
where:
L50 = noise level exceeded 50% of the time
LlO = noise level exceeded 10% of the time
LI = noise level exceeded 1% of the. time
2. Standards for measuremeRt. StaRdards for measurement of Raise sourees shall
be deseribed iR "Sound Measurement Proeedures Manual," current reo/isioR,
as adopted by the State Department of EnviroRmental Quality.
3.- 2. Where measured. Measurement of a noise source shall be made from the closest
propertv line of a residential property. strueture in a residential zone.
1. ConstruetioR aetivities exempted. Noise from temporary eORstruetioR aeth.ities
is exempted from the Raise perwrmaRee standards from 7:00 a.m. to 9 p.m. 3.
Heat Pumps or Mechanical Devices.
a. No person shall operate a commercial or residential heat pump, air-
conditioninl! unit, or similar mechanical device if noise levels from its
operation exceed forty-five (45) DBA from the closest property line of a
residential propertv on an adiacent parcel of land characterized as a noise
sensitive area.
b. No person shall operate a commercial or residential heat pump. air-
conditioninl! unit, or similar mechanical device that was installed prior to
1981 if noise levels from its operation exceed fifty (50) DBA from the closest
property line of a residential property on an adiacent parcel of land
characterized as a noise sensitive area.
~ Heat Pumps or Mechanical Devices is a Class II violation.
S. 4. 'Variances. The Council may grant variance to the Decibel Noise Standards when
it finds that strict compliance with the ordinance would cause an unusual and
unreasonable hardship to a commercial or industrial use.
a. The Council shall notify all adjacent residential structures within 200 ft. of the
proposed variance and shall hold the public hearing on the variance prior to making
any decisions on the request for a variance.
b. The variance shall be the minimum necessary to alleviate the unreasonable
hardship.
F. Exemptions.
1. Sounds caused bv the followinl! are exempt from the prohibitions set out in
paral!raph D and are in addition to the exemptions specificallv set forth in
paral!raph D:
a. Sounds of rel!ular vehicular traffic upon premises open to the public,
provided that the prohibition of paral!raph D.3 continues to applv.
b. Sirens. whistles, or bells lawfullv used bv emerl!encv vehicles, or other
alarm svstems used in case of fire, collision, civil defense. police
activity. or imminent danl!er, provided that the prohibition contained
in paral!raph D.5 continues to applv.
Page 70f9
c. The emission of sound for the purpose of alertinl!: persons to the
existence of an emerl!:encv or the emission of sound in the
performance of emerl!:encv work.
d. Sounds rel!:ulated bv federal law, includinl!:, but not limited to, sounds
caused bv railroads or airports.
e. Repairs or excavations ofbridl!:es, streets or hil!:hwavs bv or on behalf
of the City, the State, or the federall!:overnment, between the hours of
7:00 p.m. and 7:00 a.moo when public welfare and convenience renders
it impractical to perform the work between 7:00 a.m. and 7:00 p.m.
f. Temporarv Construction activities. Noise from temporary
construction activities that take place between 7:00 a.m. to 9 p.m.
g. Outdoor School and PlaVl!:round Activities. Reasonable activities
conducted on public plaVl!:rounds and public or private school
l!:rounds, which are conducted in accordance with the manner in
which such spaces are l!:enerallv used, includinl!: but not limited to,
school athletic and school entertainment events.
h. Other Outdoor Events. Athletic events, outdoor l!:atherings, public
dances, shows and sporting events, and other similar outdoor events,
provided that anI' reQuired permits have been obtained from the
appropriate permittinl!: authority.
Do G. Penalty. Unless otherwise specified in this section, Unneeessary unnecessary
noise is.a Class I Violation.
9.08.17$ Heat Pumfls or Meekllnieal Deviees
No f1er~on shall eause or f1ermit to exeeed, on f1roflerty under their ownershifl or
. eontrol, the standards set ferth in Seetion 1$.01.18$ of the Munieiflal Code. Heat
Pumfls or Meehanieal Deyiees is a Class II ','iolation.
SECTION 2. Sections 15.04.185 [Heat Pumps and Mechanical Devices] is hereby amended as
follows:
15.04.185 Heat Pumps and Mechanical.Devices
The following standards shall goyern the issuanee of f1ermits and noise levels of
heat f1uRlfland other meehanieal installations:
f.. Existing Heat Pumfls and Meehanieal Deviees. No f1erson owning or
eon trolling an existing eommercial or residential heat )lumfl or meehanieal de'liee
shall cause or permit operation ofthat noise souree if the noise le'lels generated by
the heat )lump or meehanieal deviee exeeed fifty ($0) DR'~ measured within twenty
fi'ie (2$) f.eet of the nearest residential strueture on an adjaeent )lareel of land.
B. New Heat Pumfland Meehanieal Installations. Effeetin uflon adofltion ofthis
Section, 80 person shall install or oflerate a eommereial or residential heat pump or
meckllnieal deviee if noise levels from its ofleration exeeed forty fi','e (1$) DBA
within twenty five (2$) feet of the nearest residential strueture on an alljaeent pareel
of land or within the setbaek zone of an)' adjaeent unoeeupied f1areel of land zoned
for residential use.
Page 8 of9
G A. Permit Requirement. No person shall install a commercial or residential heat
pump. air conditioninl! unit, or similar mechanical device prior to submitting a permit
application to the Building Official and receiving approval. .....11 applications shall certify
that the operation of the heat pump or mechanical device will meet the pro'/isions of
Section 2 using the f.ir Conditioning and Refrigeration Institute Standards fer
f.pplication for Sound Rated Outdoor Unitary Equipment. (Standard 27S)
D. Enforcement Responsibility. It shall be the responsibility of the Building
Official to assure all provisions of this Section are met prior to issuing an
installation permit for a heat pump or mechanical device.
Eo .!L(Repealed by Ord. 2685, 1992) (Ord. 2153 SI, 1981;Ord 2925, 2006)
SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 4. Savinl!s. Notwithstanding this amendment/repeal, the City ordinances in
existence at the time any criminal or civil enforcement actions were commenced, shall remain
valid and in full force and effect for purposes of all cases filed or commenced during the times
said ordinance(s) or portions thereof were operative. This section simply clarifies the existing
situation that nothing in this Ordinance affects the validity of prosecutions commenced and
continued under ihe laws in effect at the time the matters were originally filed.
SECTION 5. Codification. Provisions of this Ordinance shall be incorporated in the City Code
and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another
word, and the sections of this Ordinance may be renumbered, or re-Iettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 4-5) need not be codified and
the City Recorder is authorized to correct any cross-references and any typographical errors.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the _ day of ,2010,
and duly PASSED and ADOPTED this _ day of ,2010.
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this _ day of
,2010.
John Stromberg, Mayor
Reviewed as to form:
Megan Thornton, Acting City Attorney
Page 9 of9
CITY OF
ASHLAND
Council Communication
Authorization to Solicit Proposals for a Public Works Project
Meeting Date: October 19,2010 Primary Staff Contact: James H. Olson
Department: Public Works E-Mail: olsoni(alashland.or.us
Secondary Dept.: Finance Secondary Contact: Michael R. Faught
Approval: Martha Benn Estimated Time: 10 Minutes
Question:
Will the Council authorize the solicitation of a proposal for soil and groundwater monitoring on City
owned property at 1097 'B' Street?
Staff Recommendation:
Staff recommends that the Council authorize the solicitation of a proposal for soil and groundwater
monitoring on City owned property at 1097 'B' Street.
Background:
Ordinance No. 3013 which was approved on May 19, 2010 requires that the Council, acting as the
Local Contract Review Board (LCRB) authorize solicitations of competitive sealed bids and proposals.
The engineering staff is currently preparing a request for proposal for a public works project:
Determination of the Magnitude and Extent of Contamination in Soil and Groundwater at 1097 'B'
Street.
Proiect Description
The City of Ashland is seeking proposals to provide professional services required for the review,
evaluation and monitoring of soil and groundwater contamination due to petroleum related
contamination at the 'B' Street Municipal Yard at 1097 'B' Street. The anticipated scope of services
will include, but are not limited to:
. Review existing data and reports regarding the known environmental conditions at the site;
. Prepare a written Risk-Based Evaluation ofthe site requesting closure from the Oregon
Department of Environmental Quality (ODEQ). Under the Rick-Based Evaluation, provide all
required testing, monitoring and evaluation including:
o Develop a final conceptual site model
o Develop risk-based concentrations for contaminants of concern
o Develop risk-based concentrations for the protection of the environment if contamination
exceeds the acceptable risk levels for ecological receptors
. Develop and implement an action plan for responding to contaminated soil and groundwater;
Assist the City of Ashland in all required actions necessary to receive a ruling of "No Further
Action" from ODEQ for the 'B' Street Municipal Yard.
Page 1 of2
r~'
-..
CITY OF
ASHLAND
Related City Policies:
Ordinance 3013, enacted on May 19, 2010, establishes certain rules and guidelines pertaining to public
contracting and personal service contracts. The ordinance also adopted the Oregon Public Contracting
Code and Attorney General's Model Rules for public contracting.
Council Options:
. The council may authorize the solicitation of proposals for a public works project
. The council may decline to approve the solicitation of proposals for the project
Potential Motions:
. Move to authorize the solicitation of proposals for a public works project
. Move to deny the solicitation of proposals for the project
Attachments:
. None
Page20f2
~.l'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ordinance Relating to Noise and Heat Pumps or Mechanical Devices and
Amending AMC 9.08.170, 9.08.175, and 15.04.185
October 19,2010 Primary Staff Contact: Megan Thornton
City Attorney's Office E-Mail: thorntm@ashland.oLus
Community Dev ment Secondary Contact: Bill Molnar
Martha Benn Estimated Time: 5 minutes
Question:
Will the 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"?
Staff Recommendation:
Staff recommends Council approve the Second Reading of this ordinance.
Background:
At the September 21, 2010 regular meeting the City Council approved first reading of this ordinance
with no changes.
The AMC provisions regarding noise were originally adopted in 1968, and the decibel standards were
added in 1982. Based on staffs experience in enforcing this code, staff recommended updating a
number of the noise provisions, especially the provisions regarding heat pumps and mechanical
devices. It was also necessary to update sections of the code that attempted to distinguish between
commercial and non-commercial speech, which is not allowed under the Oregon Constitution. Staff
also received feedback from Council requesting that the antiquated references be removed and that
staff consider looking at the League of Oregon Cities (LOC) model noise ordinance when updating the
language. The proposed ordinance addresses all of these concerns.
The heat pump and mechanical device provisions were amended to clearly state what decibel standard
applies by stating the installation year, instead of referring to the date the ordinance was adopted. In
addition, because decibel standards apply to heat pumps and mechanical devices, those provisions
were moved to 9.08.1 70.E, regarding decibel level readings, and eliminated from Chapter 15,
Buildings and Construction, Section 15.04.185, heat pumps and mechanical devices, was repealed
because it suggested there would be an inspection to determine noise levels before an installation
permit would be granted, but this is not possible because the device must be installed for an inspection
to take place. Staff believes that consolidating all of the standards into one section will make it easier
for citizens to locate and comply with the standards regarding heat pumps and mechanical devices.
There has been confusion and litigation over these code provisions in Ashland Municipal Court and
Jackson County Circuit Court, and the Circuit Court Judge also suggested revising these sections.
The LOC model ordinance and the City's noise provisions are both based upon the reasonable person
standard; therefore, staff was able to borrow from the model ordinance to update the current language
in the code. These revisions made it possible to eliminate references to noises that are produced by a
vitrola, steam whistle, and bells attached to animals. Definitions were also added to make the
Page I of4
~~.,
CITY Of
A.SHLAND
ordinance clearer. The following Table shows the current noise provision, and the corresponding
adaptation of the model ordinance section that was used to effectuate the update:
riur.r.ent IDliilinance
1. The keeping of any bird or animal, including specifically any
dog, which by causing frequent or long-continued noise disturbs
the comfort and repose of any person in the vicinity.
2. The attaching of a bell to an animal or allowing a bell to remain
on an animal.
3. The use of a vehicle or engine, either stationary or moving, so
out of repair, loaded, or operated as to create any loud or
unnecessar atin, riodin , rattlin , or other noise.
4. The sounding ofa horn or signaling device on a vehicle on a
street, public place, or private place, except as a necessary warning .
of danger.
5. The blowing ofa steam whistle attached to a stationary boiler,
except to give notice of the time to begin or stop work, as a
warn in of dan er, or u on re uest of ro er Cit authorities
6. The use ofa mechanical device operated by compressed air,
steam, or otherwise, unless the noise thereby created is effectively
muffled;
7. The erection, including excavation, demolition, alteration, or
repair of a building in residential districts, other than between the
hours of seven (7:00) a.m. and six (6:00) p.m. weekdays, and on
weekends and Holidays between the hours of eight (8:00) a.m. and
six (6:00)p.m., except in case of urgent necessity in the interest of
the public welfare and safety and then only with a permit granted
by the City Administrator for a period not to exceed ten (10) days.
The permit may be renewed for periods of five (5) days while the
emergency continues to exist. If the Council determines that the
public health, safety and welfare will not be impaired by the
erection, demolition, alteration, or repair of a building between the
hours of six (6:00) p.m. and seven (7:00) a.m., and if the Council
further determines that loss or inconvenience would result to any
person unless the work is permitted within these hours, the Council
may grant permission for such work to be done within specified
hours between six (6:00) p.m. and seven (7:00) a.m. upon
application therefore being made at the time the permit for the
work is awarded or during the progress of the work. (Ord. 2580,
1990)The actual owner of property may do work on property
which is actually owner occupied between the hours of six (6:00)
p.m. and ten (10:00) p.m. without obtaining a permit as herein
re uired;
8. The use of a gong or siren upon a vehicle, other than police, fire,
or other emergency vehicle;
Rr.o oseil IDliilinance
2. Animals and Birds. Unreasonably loud and raucous noise
emitted by an animal or bird for which a person is responsible. A
person is responsible for an animal if the person owns, controls or
otherwise cares for the animal or bird. Model Ord. g6.H)
See general prohibition in proposed ordinance g9.08. I 70.8.
See general prohibition in proposed ordinance 99.08.170.8.
3. Vehicle Horns, Signaling Devices, and Similar Devices. The
sounding of any horn, signaling device, or other similar device, on
any automobile, motorcycle, or other vehicle on any right-of-way
or in any public space of the City, for more than ten consecutive
seconds. The sounding of any horn, signaling device, or other
similar device, as a danger warning is exempt from this
rohibition. Model Ord. 6.B
See general prohibition in proposed ordinance 99.08.170.8.
II. Blowers, and Similar Devices. In residential or noise sensitive
areas, between the hours of9:00 p.m. and 7:00 a.m., the operation
of any noise-creating blower, power fan, power tools or any
internal combustion engine, the operation of which causes noise
due to the explosion of operating gases or fluids, provided that the
noise is unreasonably loud and raucous and can be heard across the
property line of the property from which it emanates. (Model Ord.
6.L
6. Construction or Repair of Buildings, Excavation of Streets and
Highways. The construction, demolition, alteration or repair of
any building or the excavation of streets and highways other than
between the hours of7:00 a.m. and 7:00 p.m., on weekdays, and
8:00 a.m. and 6:00 p.m. on weekends and holidays, except in the
case of an emergency in the interest of the public welfare and
safety. In cases of emergency, construction or repair noises are
exempt from this provision. In non-emergency situations, the City
Administrator may issue a permit, upon application, if the City
Administrator determines that the public health and safety, as
affected by loud and raucous noise caused by construction or repair
of buildings or excavation of streets and highways between the
hours of7:00 p.m. and 7:00 a.m. will not be impaired, and if the
City Administrator further determines that loss or inconvenience
would otherwise result. The permit shall grant permission in non-
emergency cases for a period of not more than five days. The
permit may be renewed once for a period of five days or less. The
actual owner of property may do work on property which is owner
occupied between the hours of6:00 p.m. and 10:00 p.m. without
obtaining a permit under this paragraph. (Model Ord. 96.J)
4. Non-Emergency Signaling Devices. Sounding or permitting
sounding of any amplified signal from any bell, chime, siren,
whistle or similar device, intended primarily for non-emergency
purposes, from any place for more than ten consecutive seconds in
any hourly period. The reasonable sounding of such devices by
houses of religious worship, ice cream trucks, seasonal
contribution solicitors or by the City for traffic control purposes
are exem t from the 0 eration of this rovision. (Model Ord. g6.C)
Page 2 of4
-..
r.'1
9. The creation of excessive noise on a street adjacent to a school,
institution of learning, church, or court of justice, while the same
are in use, or on a street adjacent to a hospital, nursing home, or
other institution for the care of the sick or infirm, which
unreasonably interferes with the operation of such institution or
disturbs or unduly annoys patients;
10. The discharge in the open air of exhaust of a steam engine,
internal combustion engine, motorboat, or motor vehicle except
through a mumer or other device which will effectively prevent
loud or exolosive noises and the emission of annoviOl~: smoke;
II. The use or operation of an automatic or electric piano, musical
instrument, stereo, radio, or similar device, television, computer,
loudspeaker, or any instrument for sound producing or any sound-
amplifying device so loudly as to disturb persons in the vicinity
thereof or in such a manner as renders the use thereof a nuisance.
However, upon application to the City Administrator, or designee
and a report from the Chief of Police, the City Administrator or
designee may grant permits to responsible persons or organizations
for the broadcast or amplification of programs of music, news,
speeches, or general entertainment as a part of a national, state or
City event, public festivals, or special events of a noncommercial
nature. If the City Administrator or designee disapproves such a
permit, the matter may be appealed pursuant to the AMC 2.30, and
the decision of the Hearings Officer, who shall not be the City
Administrator, shall be final. The broadcast or amplification shall
not be audible for a distance of more than one thousand (1,000)
feet from the instrument, speaker, or amplifier, and in no event,
shall a permit be granted where any obstruction to free and
uninterrupted traffic, both vehicular and pedestrian, will result.
12. The making of a noise by crying, calling, or shouting or by
means of a whistle, rattle, bell, gong, clapper, horn, hammer, drum,
musical instrument, or other device for the purpose of advertising
goods, wares, or merchandise, attracting attention, or inviting
patronage of a person to a business. However, newsboys may sell
newspapers and magazines by public outcry;
13. The conducting, operating, or maintaining ofa garage within
one hundred (100) feet ofa private residence, apartment, rooming
house, or hotel in such manner as to cause loud or disturbing
noises to be emitted there from between the hours of eleven
(I] :00) p.m. and seven (7:00) a.m.)
CITY OF
ASHLAND
10. Noise Sensitive Areas - Schools, Courts, Churches, Hospitals,
and Similar Institutions. The creation ofaoy unreasonably loud
and raucous noise adjacent to any noise sensitive area while it is in
use, which unreasonably interferes with the workings of the
institution or which disturbs the persons in these institutions;
provided that conspicuous signs delineating the boundaries of the
noise sensitive area are'displayed in the streets surrounding the
noise sensitive area. (Model Ord. ~6.K)
See general prohibition in proposed ordinance ~9.08.170.B.
7. Radios, Televisions, Boomboxes, Stereos, Musical Instruments
and Similar Devices. The use or operation of a radio, television,
boombox, stereo, musical instrument, or similar device that
produces or reproduces sound in a manner that is plainly audible to
any person other than the player(s) or operator(s) of the device, and
those who are voluntarily listening to the sound, and which
unreasonably disturbs the peace, quiet, and comfort of neighbors
and passers~by, or is plainly audible at a distance of 50 feet from
any person in a commercial, industrial area, or public space. The
use or operation of a radio, television, boombox, stereo, musical
instrument, or similar device that produces or reproduces sound in
a manner that is plainly audible to any person other than the
player(s) or operator(s) of the device, and those who are
voluntarily listening to the sound, and unreasonably disturbs the
peace, quiet, and comfort of neighbors in residential or noise
sensitive areas, including multi-family or single-family dwellings.
(Model Ord. WE)
8. Loudspeakers, Amplifiers, Public Address Systems, and Similar
Devices. The unreasonably loud and raucous use or operation of a
loudspeaker, amplifier, public address system, or other device for
producing or reproducing sound is prohibited without a permit
from the City Administrator. The City Administrator may grant a
permit to responsible persons or organizations for the broadcast or
amplification of sound as a part of a national, state, or city event,
public festival, or special events ofa noncommercial nature. If the
City Administrator does not grant the permit, the matter may be
appealed to an outside hearings officer pursuant to AMC 2.30.
This permit shall not be required for any public performance,
gathering, or parade for which a permit authorizing the event has
been obtained from the City. (Model Ord. S6.F\
9. Yelling, Shouting, and Similar Activities. Yelling, shouting,
hooting, whistling, or singing in residential or noise sensitive areas
or in public places, between the hours of 10:00 p.m. and 7:00 a.m.,
or at any time or place so as to unreasonably disturb the quiet,
comfort, or repose of reasonable persons of ordinary sensitivities.
This section is to be applied only to those situations where the
disturbance is not a result of the content of the communication but
due to the volume, duration, location, timing or other factors not
based on content. {Model Ord. 06.G\
12. Commercial Establishments Adjacent to Residential Property.
Unreasonably loud and raucous noise from the premises of any
commercial establishment, including any outdoor area which is
part of or under the control of the establishment, between the hours
of 11 :00 p.m. and 7:00 a.m.. which is plainly audible at from the
Drooertv line of anv residential DroDertv. {Model Ord. S6.M\
The ordinance includes exemptions for regular vehicular traffic, emergency vehicles, emergency
signals, railroads, airports, certain types of construction, and some outdoor activities, It is necessary to
exempt railroads and airports because these industries are regulated by federal laws, such as the Noise
Page 3 of 4
r~'
CITY Of
ASHLAND
Control Act of 1972, Federal Aviation Act, Airport Noise and Capacity Act of 1990, and federal rules
regarding the railroad and airport noise. In addition, the Supreme Court and the 9th Circuit have both
held that local laws that "Congress unequivocally intended that the federal government have 'full
control over aircraft noise, pre-empting state and local contral.'" San Diego Unified Port v. Gianturco,
651 F,2d 1306, 1311 (1981) (citing City of Burbank v. Lockheed Air Terminal. Inc., 411 U.S. 624, 633
(1973)).
Related City Policies:
Ashland City Charter Article X, Ordinance Adoption Procedures
Council Options:
(1) Move to approve First Reading of the ordinance,
(2) Postpone Second Reading of the proposed ordinance.
Potential Motions:
Staff: Conduct Second Reading by title only.
Council: Move to approve Second Reading of the ordinance.
Attachments:
Proposed ordinance
Page4of4
~~,
~
ORDINANCE NO.
AN ORDINANCE RELATING TO NOISE AND HEAT PUMPS OR
MECHANICAL DEVICES AND AMENDING AMC 9.08.170, 9.08.175, AND
15.04.185
Annotated to show deletiBfls and additions to the code sections being modified. Deletions are
bold" ~.. _.~ and additions are bold underlined.
WHEREAS, Article 2. Section I of the Ashland City Charter provides:
Powers of the Citv The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
. municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession;
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities. Citvof
Beaverton v. International Ass'n ofFirefighters~ Local 1660, Beaverton Shop, 20 Or. App. 293,
531 P 2d 730,734 (1975);
WHEREAS, the noise ordinance was adopted in 1982;
WHEREAS, the code should be updated to remove antiquated language, modify standards, and
address problems with the mechanical devices provisions.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Sections 9.08.170 [Unnecessary Noise] through 9.08.175 [Heat Pumps or
Mechanical Devices] are hereby amended to read as follows:
9,08,170 Unnecessary Noise
A. Definitions. For the purposes ofthis section on Iv. the followinl! words shall have
the meaninl! provided in this paral!raph,
1. Emerl!encv: any occurrence or set of circumstances involvinl! actual or
imminent phvsical trauma or property damal!e demandinl! immediate
attention,
2. Emerl!encv Work: any work performed for the purpose of preventinl! or
alleviatinl! physical trauma or property damal!e. whether actually caused or
threatened by an emerl!ency. or work bv private or public utilities when
restorinl! utility service,
Page 1 of9
3, City Administrator: the City Administrator of City or the City
Administrator's desil!nee, .
4, Noise Sensitive Area: includes. but is not limited to. real property normallv
used for sleepinl!. or normallv used as a school. church, hospital or public
library,
5. Plainlv audible: any sound that can be detected bv a reasonable person of
ordinary sensitivities usinl! his or her unaided hearinl! faculties,
6, Public ril!ht-of-wav: any street, sidewalk, or similar place normallv
accessible to the public which is owned or controlled bv a l!overnment entity,
7, Public space: any real property or structures on real property. owned bv a
l!overnment entity and normallv accessible to the public, includinl!' but not
limited to parks and other recreational areas,
8, Residential property: any real property located in a residentiallv zoned
district pursuant to the local land use code,
A. B, General Prohibition, No person shall make, continue, or assist in makin~
eontinue, or cause to he made
I) any unreasonablv loud, disturbing, or raucous noise: or
2) any unneeessary noise whieh either that unreasonablv annoys, disturbs, injures,
or endangers the comfort, repose, health, safety, or peace of reasonable persons of
ordinary sensitivity, within the iurisdictionallimits of the City: or others,
3) any noise which is so harsh, prolonl!ed, unnatural, or unusual in time or place
as to occasion unreasonable discomfort to any persons, or as to unreasonablv
interfere with the peace and comfort of neil!hbors or their l!uests. or operators
or customers in places of business, or as to detrimentallv or adverselv affect
such residences or places of business,
B, C. The standard for judging loud, disturbing and unnecessary noises shall be that of an
average, reasonable person with ordinary sensibilities after taking into considerationl
Such noises whieh are in yiolation of this section inelude hut are not limited to the
fallowing:
h the character of the neighborhood in which the noise is made and the noise is
heard.i
2, the proximity of the sound to sleepinl! facilities, whether residential or
commercial:
3, the the land use, nature, and zoninl! of the area from which the sound
emanates and the area where it is received or perceived:
4, the time of day or nil!ht the sound occurs:
5, the duration of the sound: and
6, whether the sound is recurrent. intermittent, or constant.
D, Noises Prohibited, The followinl! acts are declared to be per se violations of this
Ordinance, This enumeration does not constitute an exclusive list:
1, Unreasonable Noises, The unreasonable makinl! of. or knowinl!lv and
unreasonablv permittinl! to be made, any unreasonablv loud, boisterous or
unusual noise, disturbance, commotion or vibration in any boardinl! facility,
Page 2 of9
dwellinl!. place of business or other structure, or upon any public street, park,
or other place or buildinl!, The ordinary and usual sounds, noises. commotion
or vibration incidental to the operation of these places when conducted in
accordance with the usual standards of practice and in a manner which will
not unreasonablv disturb the peace and comfort of adiacent residences or
which will not detrimentallv affect the operators of adiacent places of business
are exempted from this provision,
2, Animals and Birds. Unreasonablv loud and raucous noise emitted bv an
animal or bird for which a person is responsible, A person is responsible for
an animal if the person owns, controls or otherwise cares for the animal or
bird.
3, Vehicle Horns, Sil!nalinl! Devices, and Similar Devices. The soundinl! of any
horn, sil!nalinl! device, or other similar device, on any automobile, motorcvcle,
or other vehicle on any ril!ht-of-wav or in any public space of the City, for
more than ten consecutive seconds, The soundinl! of any horn, sil!nalinl!
device. or other similar device. as a danl!er warninl! is exempt from this
prohibition,
4, Non-Emerl!encv Sil!nalinl! Devices, Soundinl! or permittinl! soundinl! of any
amplified sil!nal from any bell. chime. siren. whistle or similar device.
intended primarilv for non-emerl!encv purposes, from any place for more
than ten consecutive seconds in any hourlv period, The reasonable soundinl!
of such devices bv houses of relil!ious worship, ice cream trucks, seasonal
contribution solicitors or bv the City for traffic control purposes are exempt
from the operation of this provision,
5, Emerl!encv Sil!nalinl! Devices, The intentional soundinl! or permittinl! the
soundinl! outdoors of any emerl!encv sil!nalinl! device includinl! fire, burl!lar.
civil defense alarm, siren. whistle. or similar emerl!encv sil!nalinl! device,
except in an emerl!encv or except as provided in subsections (a) and (b),
below.
a, Testinl! of an emerl!encv sil!nalinl! device shall occur between 7:00
a,m, and 7:00 p,m, Anv testinl! shall use on Iv the minimum cvcle test
time, In no case shall such test time exceed five minutes. Testinl! of the
emerl!encv sil!nalinll system shall not occur more than once in each
calendar month,
b, If a false or accidental activation of an alarm occurs more than twice
in a calendar month, the owner or person responsible for the alarm
shall be in violation of this Ordinance,
6. Construction or Repair of Buildinl!s. Excavation of Streets and Hil!hwavs,
The construction. demolition. alteration or repair of any buildinl! or the
excavation of streets and hil!hwavs other than between the hours of 7:00 a,m.
and 7:00 p,m., on weekdays, and 8:00 a,m, and 6:00 p,m, on weekends and
holidavs, except in the case of an emerl!encv in the interest of the public
welfare and safety, In cases of emerl!enCV, construction or repair noises are
exempt from this provision, In non-emerl!enCV situations, the City
Administrator may issue a permit, upon application. if the City
Administrator determines that the public health and safety. as affected bv
Page 3 of9
loud and raucous noise caused bv construction or repair of buildinl!s or
excavation of streets and hil!hwavs between the hours of 7:00 p,m, and 7:00
a,m, will not be impaired, and if the City Administrator further determines
that loss or inconvenience would otherwise result. The permit shalll!rant
permission in non-emerl!enCV cases for a period of not more than five days.
The permit may be renewed once for a period of five days or less, The actual
owner of property may do work on property which is owner occupied
between the hours of6:00 p,m, and 10:00 p,m, without obtaininl! a permit
under this paral!raph.
7, Radios. Televisions, Boomboxes. Stereos. Musical Instruments and Similar
Devices, The use or operation of a radio. television, boombox, stereo, musical
instrument. or similar device that produces or reproduces sound in a manner
that is plain Iv audible to any person other than the plaver(s) or operator(s) of
the device, and those who are voluntarilv Iisteninl! to the sound, and which
unreasonablv disturbs the peace, Quiet. and comfort of neil!hbors and
passers-by. or is plainlv audible at a distance of 50 feet from any person in a
commercial. industrial area, or public space, The use or operation of a radio. .
television. boombox. stereo. musical instrument. or similar device that
produces or reproduces sound in a manner that is plainlv audible to any
person other than the plaver(s) or operator(s) of the device, and those who
are voluntarilv Iisteninl! to the sound. and unreasonablv disturbs the peace.
Quiet. and comfort of nei!!hbors in residential or noise sensitive areas,
includin!! multi-familv or sin!!le-familv dwellinl!s,
8, Loudspeakers. Amplifiers. Public Address Systems, and Similar Devices, The
unreasonablv loud and raucous use or operation of a loudspeaker, amplifier.
public address system, or other device for producinl! or reproducinl! sound is
prohibited without a permit from the City Administrator. The City
Administrator may !!rant a permit to responsible persons or orl!anizations
for the broadcast or amplification of sound as a part of a national. state, or
city event. public festival, or special events of a noncommercial nature, If the
City Administrator does not !!rant the permit. the matter may be appealed to
an outside hearin!!s officer pursuant to AMC 2,30, This permit shall not be
required for any public performance. !!atherin!!. or parade for which a
permit authorizin!! the event has been obtained from the City,
9, Yellin!!, Shoutin!!, and Similar Activities, Yellinl!, shoutin!!. hootinl!.
whistlin!!, or sin!!in!! in residential or noise sensitive areas or in public places.
between the hours of 10:00 p,m, and 7:00 a,m,. or at any time or place so as
to unreasonablv disturb the Quiet, comfort. or repose of reasonable persons
of ordinary sensitivities, This section is to be applied onlv to those situations
where the disturbance is not a result of the content of the communication but
due to the volume. duration. location. timin!! or other factors not based on
content,
10, Noise Sensitive Areas - Schools. Courts. Churches, Hospitals. and Similar
Institutions, The creation of any unreasonablv loud and raucous noise
adiacent to anv noise sensitive area while it is in use, which unreasonablv
interferes with the workin!!s of the institution or which disturbs the persons
Page 4 of9
in these institutions: provided that conspicuous sil!ns delineatinl! the
boundaries of the noise sensitive area are displayed in the streets
snrroundinl! the noise sensitive area,
11. Blowers, and Similar Devices, In residential or noise sensitive areas, between
the hours of 9:00 p,m, and 7:00 a,m,. the operation of any noise-creatinl!
blower, power fan, power tools or any internal combustion enl!ine. the
operation of which causes noise due to the explosion of operatinl! l!ases or
fluids. provided that the noise is unreasonably loud and raucous and can be
heard across the property line of the property from which it emanates,
12, Commercial Establishments Adiacent to Residential Property, Unreasonably
loud and raucous noise from the premises of any commercial establishment.
includinl! any outdoor area which is part of or under the control of the
establishment. between the hours of 11 :00 p.m. and 7:00 a,m,. which is
plainly audible at from the property line of any residential property,
1. The keeping of an)' bird or animal which b)' causing (relJucnt or long continued
noise disturbs the eomfurt and repose of an)' pcrson in the vicinity;
], The attaehing of a bell to an animal or allowing a bell to rcmain on an animal;
], The use of a ychicle or engine, either stationary or moving, so out of repair,
loaded, or operated as to create any loud or unneeessary grating, grinding,
rattling, or other noise;
4, The sounding of a horn or signaling de'/iee on a ychiele on a street, publie
place, or private place, exeept as a neeessary warning of danger;
S, The Mowing of a steam whistle attached to a stationary boilcf,except to give
notice of the time to begin or stop worl" as a warning of danger, or upoR
relJuest of proper City authorities;
e.- The use of a mechanical device operated by compressed air, steam, or otherwise,
unless the noise thereby created is effectively muffled
7, The ereetion, including eKea'/ation, demolition, alteration, or repair of a
building in residential districts, other than between the hours of seven (7:1111)
a,m, and six (li:lIl1) p,m, weekda)'s, and on ",eel,ends and Holidays between the
hours of eight (8:1111) a,m, and six (li:lIl1)p.m., exeept in case of urgcnt neeessity
in the interest of the publie welfare and safet)' and then onl)' with a permit
granted by the City ".dministrator for a period not to cxeeed ten (111) da)'s.
The permit ma)' be renewed fur periods of fin (S) days while the emergency
continues to exist, If the Council determines that the public health, safety and
welfare will not be impaired by the ereetion, demolition, alteration, or repair
of abuilding between the hours of six (li:lIl1) p,m, and seven (7:1111) a,m" and if
the Couneil further determines that loss or ineonvenienee would result to an)'
person unless the work is permitted within these hours, the Council ma)' grant
permissioR fur such worl, to be daRe within specified hours between six (li:lIl1)
p,m, and seven (7:1111) a,m, upon applicatioR therefure being made at the time
thc pcrmit for the 'l'\'orl, is awarded or during the progress of thc work (Ord,
2S811, 199(1)The actual owner of propert)' may do worl, OR property which is
actually owner occupied between the hours of six (li:lIl1) p,m, and ten (111:1111)
p,m, without obtaining a permit as hereiR relJuired;
Page 5 of9
8, The use of a gang or siren upon a ':ehiele, ather than poliee, fire, or ather
emergency ':ehide,
9, The creation of cxecssi-:e noise an a street adjaeent to a schaal, in5titution of
learning, church, or court of justice, while the same are in use, or an a street
adjacent to a hospital, nursing home, or ather institution far the care of the
sick or infirm, which unrea50nably interferes with the operation of such
in5titution or disturbs or unduly annoys patient5;
10, The discharge in the open air of exhaust of a steam engine, internal
combustion engine, motorboat, or motor ychide except through a mufAcr or
ather dcyice which will effeetiyely prcYent laud or explosive noises and the
cmission of annoying smol.e;
11.The use or operation of an automatie or electric piano, phonograph,
gramophone, Victrola, radio, tclcyision, loudspeal.er, or any instrument fur
sound producing or any sound amplifying dcyice sa loudly as to di5turb
persons in the vicinity thereof or in such a manner a5 renders the U5e thereof
a nuisanee, Howe'ier, upon application to the City LA,dministrator and a report
from the Chief of Police, the City L\dministrator may grant permit5 to
re~ponsible persons or organizations far the broadca~t or amplification of
programs of musie, news, speeches, or general entertainment as a part of a
national, state or City event, public festivals, or special events of a
noneommereial nature, If the City l,dministrator disapproves such a permit,
the matter may be appealed to the City Council who5e decision shall be final.
The broadcast or amplification shall not be audible far a di5tanee of mare
than one thousand (1,000) feet from the instrument, speal,er, or .amplifier, and
in nO event, shall a permit be granted where any obstruction to free and
uninterrupted traffic, bath ':ehicular and pedestrian, '/I'i11 result, (Ord, 2307,
1984j
12, The maldng of a noise by elJ'ing, calling, or shouting or by means of a whi5tle,
rattle, bell, gang, clapper, horn, hammeF, drum, muieal instrument, or ather
de~'ice fur the purpose of advertising goads, ware5, or merchandise, attraeting
attcntion, or inviting patronage of a person to a business. However, newsboys
may sell newspapers and magazines by publie outcry;
13, The eoudueting, operating, or maintaining of a garage within one hundred
(100) fi!et of a private residence, apartment, roaming hause, or hotel in such
manner as to eause laud or disturbing noises to be emitted therefrom betwcen
the houm of ele'ien (11 :00) p,m, and seYen (7:00) a.m,
b. E, Generallv sound measurements are not required for enforcement of this chapter;
however, sound measurements are required for enforcement pursuant to this
section, If sound measurements are taken, they shall be taken with a sound level
meter in l!:ood operatinl!: condition, Any source of noise which exceeds the
following standards is considered a public nuisance;.
I. Decibel Noise Standards
Allowable Statistical Noise Levels in any One Hour:
7 a.m. to 9 p.m. 9 p.m. to 7 a.m.
L50--50 DBA L50--45 DBA
LlO--55 DBA LlO--50 DBA
Page 6 of9
LI--60 DBA LI--55 DBA
where:
L50 = noise level exceeded 50% of the time
LlO = noise level exceeded 10% of the time
LI = noise level exceeded I % of the time
2, Standards far mea~urement. Standards for mea~urement of noi~e sourees shall
be deseribed in "Sound Measurement Proeedures I\<Ianuol," eurreat reyi~ion,
a~ adopted by the State Department of Environmental Quality,
J. 2, Where measured. Measurement of a noise source shall be made from the closest
property line of a residential property, strueture in a re~idential zone,
1, Construetion oetivities enmBted, Noise from temporary eODstruetion oeti':ities
i~ exempted from the Roi~e perfarmonee standards from 7:00 o,m, to 9 p,m. 3,
Heat Pumps or Mechanical Devices,
!!:. No person shall operate a commercial or residential heat pump. air-
conditioninl! unit. or similar mechanical device if noise levels from its
operation exceed forty-five (45) DBA from the closest property line of a
residential property on an adiacent parcel of land characterized as a noise
sensitive area,
b, No person shall operate a commercial or residential heat pump. air-
conditioninl! unit. or similar mechanical device that was installed prior to
1981 if noise levels from its operation exceed fifty (50) DBA from the closest
property line of a residential property on an adiacent parcel of land
characterized as a noise sensitive area.
c, Heat Pumps or Mechanical Devices is a Class II violation,
& 4. Variances. The Council may grant variance to the Decibel Noise Standards when
it finds that strict compliance with the ordinance would cause an unusual and
unreasonable hardship to a commercial or industrial use.
a. The Council shall notify all adjacent residential structures within'200 ft. of the
proposed variance and shall hold the public hearing on the variance prior to making
any decisions on the request for a variance,
b, The variance shall be the minimum necessary to alleviate the unreasonable
hardship.
F, Exemptions,
1. Sounds caused bv the followinl! are exempt from the prohibitions set out in
paral!raph D and are in addition to the exemptions specificallv set forth in
paral!raph D:
a, Sounds of rel!ular vehicular traffic upon premises open to the public,
provided that the prohibition of paral!raph D.3 continues to applv,
b, Sirens. whistles. or bells lawfullv used bv emerl!encv vehicles. or other
alarm svstems used in case of fire, collision, civil defense. police
activity. or imminent danl!er, provided that the prohibition contained
in paral!raph D,S continues to applv,
Page 7 of9
c, The emission of sound for the purpose of alertinl! persons to the
existence of an emerl!encv or the emission of sound in the
performance of emerl!encv work,
d. Sounds rel!ulated bv federal law. includinl!. but not limited to. sounds
caused bv railroads or airports,
e. Repairs or excavations of bridl!es, streets or hil!hwavs bv or on behalf
of the City, the State, or the federall!overnment, between the hours of
7:00 p.m, and 7:00 a,m., when public welfare and convenience renders
it impractical to perform the work between 7:00 a,m, and 7:00 p,m,
f, Temporary Construction activities, Noise from temPOrary
construction activities that take place between 7:00 a,m. to 9 p,m,
g, Outdoor School and PlaVl!round Activities, Reasonable activities
conducted on public plaVl!rounds and public or private school
l!rounds, which are conducted in accordance with the manner in
which such spaces are l!enerallv used, includinl! but not limited to,
school athletic and school entertainment events,
h. Other Outdoor Events, Athletic events. outdoor l!atherinl!s. public
dances. shows and sportinl! events. and other similar outdoor events,
provided that anv required permits have been obtained from the
appropriate permittiril! authority,
Do G, Penalty, Unless otherwise specified in this section. Unneccssary unnecessary
noise is a Class I Violation.
9,08,17S Heat Pumps or Mechanical De'/iees
No person shall cause or permit to exceed, on property under their ownersbip or
control, tbe standards set furtb in Seetion 1S,01.18S of tbe Municipal Code, Heat
Pumps or Meebanical Deyices is a Class II violation,
SECTION 2. Sections 15.04.185 [Heat Pumps and Mechanical Devices] is hereby amended as
follows:
15.04.185 Heat Pumps and Mechanical Devices
Tbe fullowing standards sball go'/ern the issuance of permits and noise levels of
beat pump and other meebanical installations:
A, Existing Heat Pumps and Meebanical Devices, No person ov:ning or
eon trolling an existing eommercial or residential beat pump or meebanical dcvice
shall cause or permit operation of tbat noise source if tbe noise le'/els generated by
tbe hcat pump or mecbanical deviee exceed fifty (SO) OBi'.. measured witbin twenty
five (2S) feet of tbe nearest residential strueture on an adjacent pareel of land,
B, Ncw Heat Pump and Meebanieallnstallations, Effeeth'e upon adoption of tbis
Section, no person shall install or operate a commercial or residential heat pump or
mecbanical device if noise Icvcls from its operation cxceed forty five (1S) DBA
witbin twenty fi'/e (2S) feet of tbe nearest residential structure on an adjacent parcel
of land or witbin tbe sctback zone of an)' adjacent unoecupied pareel of land zoned
for residential use,
Page 8 of9
G A. Permit Requirement. No person shall install a commercial or residential heat
pump. air conditioninl! unit,or similar mechanical device prior to submitting a permit
application to the Building Official and receiving approval. All applieations shall certify
that the operation of the heat pump or mechanicaldeviee will meet the provisions of
Seetion 2 using the Air Cooditioniog and Refrigeratioo Iostitute Standards for
!.pplieatioo for Sound Rated Outdoor Uoitary ElJuipment. (Standard 27S)
D, Eoforeement Respoosibility, It shall be the respoosibility oCthe Buildiog
Offieial to assure all provisioos of this Seetioo are met prior to issuing an
iostallation permit fur a heat pump or meehaoiealdeviee,
Fro ~(Repealed by Ord. 2685, 1992) (Ord. 2153 S I, 1981 ;Ord 2925, 2006)
SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable.,The invalidity of one section, subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 4, Savinl!s. Notwithstanding this amendment/repeal, the City ordinances in
existence at the time any criminal or civil enforcement actions were commenced, shall remain
valid and in full force and effect for purposes of all cases filed or commenced during the times
said ordinance(s) or portions thereof were operative, This section simply clarifies the existing
situation that nothing in this Ordinance affects the validity of prosecutions commenced and
continued under the laws in effect at the time the matters were originally filed.
SECTION 5, Codification, Provisions of this Ordinance shall be incorporated in the City Code
and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another
word, and the sections of this Ordinance may be renumbered, or.re-Iettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 4-5) need not be codified and
the City Recorder is authorized to correct any cross-references and any typographical errors,
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the _ day of ,2010,
and duly PASSED and ADOPTED this _ day of ,2010,
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this _ day of
,2010.
John Stromberg, Mayor
Reviewed as to form:
Megan Thornton, Acting City Attorney
Page 9 of9
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ordinance Revisin~ the Public Contractin~ Code
October 19,2010 Primary Staff Contact: Megan Thornton
City Attorney's Office E-Mail: thorntm@ashland.or.us
Public Works/Fina Secondary Contact: Faught/Tuneberg
Martha Benne Estimated Time: 15 minutes
Question:
Will the City Council approve First Reading of an ordinance titled, "An Ordinance Relating to Public
Contracting and Amending AMC 2.50.080, 2.50.090, 2,50,100,2.50,120, and 2.50.130" and move the
, ordinance on to Second Reading?
Staff Recommendation:
Staff recommends Council approve First Reading by title only and move the ordinance on to Second
Reading.
Background:
The City adopted a new Public Contracting code in May 2010. After utilizing the new code for the last
four months City Staff recommended additional revisions to clarify some ambiguities and streamline
the processes in the new code. The following changes were incorporated:
. Instead of authorizing the issuance of solicitation documents, the Local Contract Review Board
will approve the award of all contracts that require formal competitive solicitation or bids.
. The dollar value for small procurements was inserted for easy reference by staff.
. Redundancies were eliminated by only requiring the Finance Director to endorse tlie amount of
the contract ifthe contract amount exceeds the amount approved on the requisition documents.
. It is now clear that findings regarding availability of city personnel and resources are only
required for Iniermediate Procurements of personal services.
. The ordinance clarifies that all records shall be retained in accordance with OAR 137-047-
0620.
Related City Policies:
City Charter Article 10, Ordinance adoption provisions
Council Options:
1.) Move to approve the First Reading and set the matter for a Second Reading.
2.) Postpone consideration of the proposed ordinance.
Potential Motions:
Staff: [Conduct First Reading of the ordinance by title only.]
Council: Motion to approve First Reading and set the matter for Second Reading.
Attachments:
. Proposed ordinance
Page I of I
r~'
ORDINANCE NO.
AN ORDINANCE RELATING TO PUBLIC CONTRACTING
AND AMENDING AMC 2.50.080,2.50.090,2.50.100,2.50.120, AND 2.50.130
Annotated to show deletions and additions to the code sections being modified. Deletions are
bold '" and additions are bold underlined.
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the Citv The City shall have all powers which the constitutions, statutes, and
common iaw of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession;
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities. Citvof
Beaverton v. International Ass'n of Firefighters. Local 1660. Beaverton Shop. 20 Or. App, 293,
531 P 2d 730, 734 (1975);
WHEREAS, AMC 2.50, Local Contract Review Board, was adopted in May 20 I 0;
WHEREAS, the implementation of the new public contracting procedures has resulted in the
need for minor amendments,
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Section 2.50.080 [Forinal Processes - Competitive Sealed Bidding and Proposals]
is hereby amended to read as follows:
2,50,080 Formal Processes-Competitive Sealed Bidding and Proposals
Except as otherwise expressly provided herein, in addition to the requirements of the Model
Rules and the Oregon Public Contracting Code:
A. The Finance Director must sign off that there are appropriate funds for the project
before the project is put out for bids.
8. The City Attorney must determine that the contract is appropriate as to form before the
project is put out for bids. In addition. the City Attornev shall review all formal
competitive solicitations or formal competitive bids to ensure that the appropriate
process is bein!! followed,
Ordinance No.
Page 1 of7
C. The Local Contract Revie'il' Boarll shall authorize solicitation~ of competitive
sealell hills anll eompetitive sealellpropo~al~,
D. The City .".Horney shall review all formal competith'e solicitations or fermal
eompetitiYe hill~ to ensure that the appropriate proces$ is hein!; follo,"'ell,
1
C, The Local Contract Review Board shall approve the award of all contracts for
which the Ashland Municipal Code or the Orel!on Public Contractinl! Code require
formal competitive solicitations or formal competitive bids,
D,-E, Electronic Solicitation. Competitive sealed bids and competitive sealed proposals
may be available online, but applicants will NOT be able to submit their proposals and/or
responses online. Bids and proposals must be delivered in hard copy fonn to the City in
accordance with the requirements for the competitive solicitation. Individuals that obtain
the solicitation materials electronically are responsible for regularly checking for
instructions, addenda, and related materials,
SECTION 2, Section 2.50.090 [Exemptions from Fonnal Competitive Selection Procedures] is
hereby amended to read as follows:
2,50,090 Exemptions from Formal Competitive Selection Procedures
All Public Contracts shall be based upon Competitive Sealed Bidding (Invitation to Bid) or
Competitive Sealed Proposals (Request for Proposal) pursuant to ORS 279A - 279C and the
Model Rules except for the following:
A. Contracts listed in ORS 279A.025(2).
B. Purchases through federal programs as set forth in ORS 279A.180.
C. Public Improvement Contracts that qualify for exemption as set forth in 279C.335.
D. Small Procurements - a public contract not exceeding $5,000.
I. Small Procurements shall be awarded in accordance with ORS 279B,065, OAR
137-047-0800, OAR 137-047-0265 and all other applicable provisions oflaw.
E. Intennediate Procurements - a public contract for goods and services greater than
$5,000 and less than $100,000.
I. Intennediate Procurements shall be awarded in accordance with ORS
279B.070, OAR 137-047-0800, OAR 137-047-0270 and other applicable
provisions oflaw.
F. Sole Source Procurements - a public' contract in which the Department Head finds in
writing that there is only one provider of a product or service of the quality and type
required available.
I. Sole-source procurements shall be awarded in accordance with ORS 279B.075
and all other applicable provisions oflaw,
G. Special Procurements - a public contract for a class special procurement, a contract
specific procurement or both, based upon a contracting procedure that differs from
procedures described in ORS 279B.055, 279B.060, 279B.065, 279B.070. The contracting
approach may be custom designed to meet the procurement needs.
Ordinance No.
Page 2 of7
I. Special procurements shall be awarded in accordance with ORS 279B.085 and
all other applicable provisions oflaw.
H. Emergency Procurements - a public contract that is necessary because an emergency
exists meaning there are circumstances creating a substantial risk ofloss, damage,
interruption of services or threat to public health, safety, welfare, or property that could
not have been reasonably foreseen and requires prompt execution of a public contract to
remedy the condition.
I, Emergency procurements shall be awarded in accordance with ORS 279B.080
and all other applicable provisions oflaw.
1. The following classes of contracts are hereby specifically exempted from the Oregon
Public Contracting Code and Model Rules pursuant to ORS 279A.025(t):
I. Contracts for the purchase of materials where competitive bids for the same
materials have been obtained by other public agencies or tlie federal government
whose processes for bid and award are substantially equivalent to those set forth
herein, and the contract is to be awarded to the party to wliom the original
contract was awarded as Ion!! as no material chan!!e is made to the terms.
conditions. or prices of the ori!!inal contract, sa long as the price of the
matcrials is the same or lower than that in the original contract.
2. Contracts for licenses and maintenance of computer hardware, computer'
software, and telecommunications products (including cable, video and television
products).
3. Purchase of items or services of an artistic nature, including, but not limited to
public art.
4. Contracts for removal, cleanup or transport of hazardous materials. As used in
this Subsection, "hazardous materials" include any material or substance which
may pose a present or future threat to human health or the environment, including
Hazardous Waste as that term is used in the Resources Conservation and
Recovery Act (42 USC 6901 et seq.),
5. Contracts for purchase of used motor vehicles, defined as any motor vehicle
that is at least one year old.
6. Contracts for the purchase of used heavy construction equipment.
7. Contracts for the purchase of copyrighted materials where there is only one
supplier available within a reasonable purchase area for such goods.
8. Contracts for the purchase of advertising, including legal advertising intended
for the purpose of giving public notice,
9. Contracts for the purchase or sale of all utilities including, but not limited to,
electric power, gas, water, sewage, internet, cemetery lots, cable and
telecommunication services, and the sale of telecommunication materials or
products or other services, materials or products traditionally provided by the
City.
10. Contracts for the purchase of goods or services where the rate or price for the
goods or services being purchased is established by federal, state or local
regulating authority.
Ordinance No.
,
Page 3 of7
SECTION 3, Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby
amended to read as follows:
2.50,100 Informal Process - Process for Exempt Procurements
The following process shall apply to all contracts that are exempt from formal competitive
selection procedures in AMC 2.50.090.
A. The Public Contracting Officer is responsible for determining whether a project is
subject to an exemption pursuant to AMC 2.50.090 that will allow a process other than a
formal solicitation, Except for small procurements and emergency procurements, it is the
responsibility of the Public Contracting Officer to evaluate whether an exemption exists
and write findings consistent with Oregon law to document the exemption. A copy of the
written findings shall be given to the City Attorney, If an exemption is approved all
applicable provisions of the Oregon Public Contracting Code and the Model Rules must
be followed. Notwithstanding the exemptions, the City Attorney, the Public Contracting
Officer, or Local Contract Review Board may require a formal competitive solicitation to
ensure the purposes of this Chapter.
B. Except for small procurements equal to or less than $5,000, and emergency
procurements, any informal procurement process, listed in AMC 2.50.090 shall require
the Public Contracting Officer to obtain written authorization from the Finance Director
to ensure that adequate funds are available for the project.
C. For intermediate procurements of any amount the contracting agency shall use a
written solicitation to obtain quotes, bids, or proposals. .
D. For all contracts over $5,000 the City Attorney must determine that the contract is
appropriate as to form before the contract is awarded. Use of a City standard form
contract negates the need for legal sign off on all informal contracting processes.
E. After the procurement process is complete, the Public Contracting Officer must
execute the procurement contract, and the Finance Director must endorse the amount of
the contract if the value of the contract exceeds the amount orh!inallv approved bv
the Finance Director on the requisition documents.
F. The Public Contracting Officer must execute any change orders or amendments to the
contract that are authorized under the Oregon Public Contracting Code or the Model _
Rules.
SECTION 4, Section 2,50,120 [Personal Services Contracts] is hereby amended to read as
follows:
2.50,120 Personal Services Contracts
A. A personal service contract that does not exceed $35,000 may be awarded by direct
appointment. Personal Services Contracts that are for contract amounts greater than
$35,000, but less than $75,000 shall follow the process for Intermediate Procurements as
outlined above. In addition, for Intermediate Procurements, the Public Contracting
Officer shall make findings that City personnel are not available to perform the services,
and that the City does not have the personnel or resources to perform the services
Ordinance No.
Page 4 of?
required under the proposed contract. However, the City Attorney, the Public Contracting
Officer, or Local Contract Review Board, can require a formal solicitation for bids to
ensure that the purposes of this chapter are upheld.
I. Class Exemption - Attorney Services. Personal service contracts for legal
counsel, legal services, expert witnesses, court-appointed attorneys, stenographers
and other legal services are exempt from the competitive procurement
requirements of this section and may be entered into based upon the judgment of
the City Attorney. The City Attorney shall obtain City Council approval of any
expenditure for legal services paid to a single legal services provider that is
expected to exceed $50,000 prior to entering into the contract. In addition, except
for legal counsel hired by the City to provide legal services to indigent criminal
defendants prosecuted by the City, the City Attorney shall select and retain all
outside legal counsel hired by the City subject to the approval of the City Council.
2. Pre-qualified Pool Exemption. The City may directly award a personal services
contract that does not exceed $100,000 to a provider that has been selected to be
on a list of:
a. The City's current list of qualified providers through a formal process;
or
b, From another public contracting agency's current list of qualified
providers as long as the public contracting agency uses a process
substantially similar to the City's to derive the list.
3, Continuation of Work Exemption. Personal service contracts of not more than
$100,000 for the continuation of work by a contractor who preformed preliminary
studies, analysis or planning for the work under a prior contract may be awarded without
competition if the prior contract was awarded under a competitive process and the Public
Contracting Officer determines that use of the original contractor will significantly
reduce the costs of, or risks associated with, the work.
B. The Local Contract Review Board is hereby opting out of OAR 137-048 regarding
architectural, engineering, and land surveying services.
C. The standard procurement rules adopted above shall apply to such contracts, as well as
the following personal services selection criteria:
I. Specialized experience in the type of work to be performed;
2. Capacity and capability to perform the work, including any specialized services
within the time limitations for the work;
3. Educational and professional record, including past record of performance on
contracts with governmental agencies and private parties with respect to cost
Ordinance No.
Page 5 of7
.
control, quality of work, ability to meet schedules, and contract administration
where applicable;
4. Availability to perform the assignment and familiarity with the area in which
the specific work is located, including knowledge of designing or techniques
peculiar to it, where applicable;
5. Cost of the services; and
6. Any other factors relevant to the particular contract.
SECTION 5, Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby
amended to read as follows:
2.50.130 Record Keeping
All records shall be retained in accordance with OAR 137-047-0620, To facilitate contract
file record keeping and reduce accounting and auditing difficulties in having dispersed contract
files, each city department will maintain a complete file on all contracts executed on behalf of
that department. Information to be included in the file shall include, at a minimum:
A. Any and all invitation for bids, requests for proposals, and any advertisements;
B. Council consent authorizing contract execution when applicable;
C. Copies of the signed contract, any required insurance certificates, bonds, or other bid
security;
D. Any approved Local Contract Review Board waivers; and
E. List of who the solicitation documents were sent out to or the list of plan holders.
The City Recorder's Office shall retain the original executed contract as well as original copies
of any required insurance certificates, performance bonds, and payment bonds or other bid
security, The department which is responsible for the procurement shall continually monitor
insurance certificates to ensure the City remains an additional insured and that the other party has
sufficient coverage.
SECTION 6, Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable, The invalidity of one section, subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses,
SECTION 7, Codification. Provisions of this Ordinance shall be incorporated in the City Code
imd the word "ordinance" may be changed to "code", "article", "section", "chapter" or another
word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 6-7) need not be codified and
the City Recorder is authorized to correct any cross-references and any typographical errors.
Ordinance No.
Page 6 of7
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the _ day of ,2010,
and duly PASSED and ADOPTED this_day of ,2010.
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this _ day of
,2010.
John Stromberg, Mayor
Reviewed as to form:
Richard Appicello, City Attorney
Ordinance No.
Page 7 of7
CITY OF
A.SHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ordinance Creating a New Chapter 13.30 - Relating to the Advance Financing of .
Public Improvements
October 19, 2010. Primary Staff Contact:
Public Works E-Mail:
N/ A Secondary Contact:
Martha Benne Estimated Time:
Michael R. Faught
faughtm@ashland.or.us
Megan Thornton
15 minutes
Question:
Should the Council approve First Reading of an ordinance amending Chapter 13 to add provisions
concerning Advance Financing of Public Improvements and move the ordinance on to Second
Reading?
Staff Recommendation:
Staff recommends Council approve the First Reading of this ordinance and set Second Reading for
November 2,2010,
Background:
At the November 30, 2009 and the October 4,2010 City Council Study Sessions, the City Council
heard a presentation on the merits of adding code language to the Ashland Municipal Code (AMC),
creating an Advance Financing of Public Improvements ordinance. The first reading of a new
proposed Advance Financing of Public Improvements ordinance was scheduled for March 16,2010
and was subsequently continued to August 3, 2010.
It is important to note that based on questions regarding interest rates in the proposed ordinance at the
October 4,2010 City Council Study Session, the following section number 13,30,050 (B) of the draft
ordinance has been edited as follows:
B, Rates. Benefitine: property owners shall pay advance financed reimbursement rates
calculated as follows:
If the advance financed public improvement described in City Staff Analvsis. Section
13,30,030. is completed bv one of the followine: parties:
1. If the City issues municipal bonds to constrnct the improvements. the
reimbursement to the City shall be the total of: the actual cost of the improvements.
the interest rate on the bonds. plus and additional interest rate UP to a maximum
allowed bv state and federal laws controlline: municipal bonds for administration of
the debt,
2, If a private developer uses it own funds to constrnct the improvements. the
reimbursement to the City shall be the total of: the actual cost of the improvements.
the interest rate on the bonds. plus an additional interest rate UP to the maximum
allowed bv state and federal laws controlline: municipal bonds for administration of
Page I of4
~~,
CITY OF
ASHLAND
the debt,
3, If financed bv the City from its own cash reserves or bv any other public or
private party. the reimbursement to the City or fundin!! party shall be the total of:
the actual cost of the improvement. and interest rate specified bv the City of or bv
the fundin!! party and a!!reed to bv the City. plus an additional interest rate UP to
the maximum allowed bv state and federal laws controllin!! municipal bonds for
administration ofthe debt,
4, If ineauities are created throu!!h the strict implementation of the above Formulas
1,2 or 3. above, the Council may modify its impact on a case-by-case basis,
Advance Financinf! of Public Imvrovements Rationale
Most new private developments require the upgrade of public facilities. Unless these projects meet the
requirements of a Systems Development Charge or a Local Improvement District, the cost of these
upgrades is paid for by the developer and/or the City,
When the developer is required to install larger capacity facilities to meet the demands of future
development, they (or the City) shoulder the burden of the increased costs. As a result, future property
owners get the full benefit of the new facility without paying their proportionate share of the costs.
Currently, there are only two methods of charging benefited property owners their share of public
improvement projects. Such methods include a System Development Charges (SDC) or the formation
of a Local Improvement District (LID).
I. SDC's: The collection of SDC's are payable upon and as a condition of approval:
a. The issuance or approval of a building or plumbing permit for a development;
b. A permit for a development not requiring the issuance of a building permit, or
c. A permit or other authorization to connect to the water, sanitary sewer, or
d. Storm drainage system (AMC 4.20.070). The amount of the SDC is based on the cost of
the capital improvement attributed to growth and identified on the Capital Improvement
Project (eIP) list.
This method collects revenue for future capacity projects identified in the adopted Master Plan CIP
lists. When developers or the City constructs one of the approved SDC projects, SDC's can be
used to reimburse the City or a developer,
2. LID: A Local Improvement District (LID) is an existing tool to construct public facilities,
generally in an existing facility or neighborhood (street, transit, parking, sewer, water, irrigation,
etc.) and distributes the cost of public improvement projects based on benefited use. An LID
assessment is assessed to the property owner immediately and the debt can be financed over a
period of at least ten (10) years.
A third option is Advance Financing which is similar to the formation of a Local Improvement District
(LID) in that it distributes the cost of public improvement projects based on benefited use. The
difference between the two financing options is that an LID assessment is due immediately. The
Advance Financing method is due when the benefited property owner hooks into the public
improvement.
Page 2 of4
~.l'
CITY OF
ASHLAND
Kev Elements of ProDosed Ordinance
If the Council desires to provide a third financing option for developer conditioned or for pubic
initiated public improvements then staff recommends adding a new chapter of the municipal code
13.30 titled Advance Financing of Public Improvements, Some ofthe key elements of the new
proposed Advance Financing Ordinance are as follow:
. Public Improvement
1. The grading, graveling, paving or other surfacing of any street; or opening, laying out,
widening, extending, altering, changing the grade of or constructing any street.
2, The construction of sidewalks.
3. The construction or upgrading of any sanitary or storm sewer.
4. The construction or upgrading of any water line, reservoir, well or related water facility.
5. Any other public improvement authorized by the Council.
. Applicabilitv
o Either the City Councilor the Planning Commission may condition planning actions to
require the applicant to enter into an Advance Financing agreement.
o The City Council may designate the City or other public entity as the developer and direct
the City Administrator to prepare an Advance Financing application.
. Receipt of Application: The Public Works Department receives Advance Financing applications
and prepares an analysis of the proposed public improvement.
. Public Hearing: An informational public hearing before the City Council shall be held to give the
general public an opportunity to express views and questions about the proposed Advance
Financing of Public Improvements.
. Advance Financing Resolutions and Agreements: If the Council desires to proceed with Advance
Financing of a Public Improvement, the Council shall pass an Advance Financing Resolution.
. Disposition of Advance Financed Reimbursements:
o The City collects the payments for the Advance Financed public improvement and then
pays the developer for a period of 10 years. The developer can request two additional 5
year extensions.
o Reimbursements not paid to the developer shall be retained by the City and used for other
related system improvements as authorized by the Council.
Related City Policies:
Ashland City Charter Article X, Ordinance Adoption Procedures
Council Options:
1. Move to approve First Reading of the ordinance and set second reading for November 2,2010.
2. Postpone First Reading to a date certain.
Potential Motions:
Staff: Conduct First Reading:
Page) of 4
r~'
CITY OF
ASHLAND
Council:
Move to approve First Reading of the ordinance and set second readingfor November
2, 2010.
Attachments:
Proposed ordinance
Pagc4of4
~i.'
ORDINANCE NO.
AN ORDINANCE CREATING A NEW CHAPTER 13.30 RELATING
TO THE ADVANCE FINANCING OF PUBLIC IMPROVEMENTS
Annotated to show deletiolls and additions to the code sections being modified. Deletions are
bold ., ... and additions are bold underlined.
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the Citv The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession; and
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities, Citvof
Beaverton v. International Ass'n of Firefighters, Local 1660, Beaverton ShOD, 20 Or. App. 293,
531 P 2d 730, 734 (1975); and
WHEREAS, The City Council finds and determines that it is in the best interests of the people
of the City of Ashland to authorize the creation of an advanced financing resolution to provide
for an alternative reimbursement vehicle for infrastructure co~ts fronted by the City or by a
private party in excess of a development's proportionate infrastructure allocation; and
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:_
SECTION 1. A new Chapter 13.30, including Sections 13.30.010 [Definitions] through
13.30.075 [Dispute Resolution], is hereby added to read as follows:
CHAPTER 13,30
ADVANCE FINANCING OF PUBLIC IMPROVEMENTS
SECTIONS
13,30,010 Definitions
13,30.015 Purpose
13,30.020 Applicability
13,30,025 Receipt of Application
13,30.030 City Staff Analvsis
13.30,035 Public Hearinl!
13.30,040 Notification
13,30,045 Advance Financinl! Resolutions and Al!reements
13,30.050 Advance Financed Reimbursement
13,30,055 Disposition of Advance Financed Reimbursements
13,30,060 Recordinl!
Page 1 0[8
13,30,065 Public Improvements
13,30,070 Multiple Public Improvements
13,30,075 Dispute Resolution
13,30,010 DEFINITIONS
The followin2 are definitions for the purposes of this Chapter and for the purposes of any
advance financin2 a2reement entered into with the City of Ashland ("City") pursuant
hereto and for any actions taken as authorized pursuant to this Chapter or otherwise:
A, ADVANCE FINANCING: means a developer's or City's payment for the
installation of one or more public improvements installed pursuant to this
Chapter which benefitin2 property owners may utilize upon reimbursin2 a
proportional share of the cost of such improvement.
B. ADVANCE FINANCING AGREEMENT: means an a2reement between one or
more private land owner(s) or developer(s) and the City. as authorized by the
Council by resolution, and executed by the City Administrator, which a2reement
provides for the installation of and pavment for advance financin2 of public
improvements, and mav. in such a2reement, require provisions for
improvement, inspection and other financial 2uarantee(s) as the City deems best
to protect the public and benefitin2 property owners. and may make such other
provisions as the Council determines necessarv and proper,
C. ADVANCE FINANCING RESOLUTION: means a resolution passed by the
Council and executed by the Mayor desi2natin2 a public improvement to be an
advance financed public improvement and containin2 provisions for financial
reimbursement bv benefitin2 property owners who may eventually utilize the
improvement and such other provisions as the Council determines in the best
interest of the public,
D, BENEFITTING PROPERTY OWNER: means the fee holder of record of the
le2al title to real property which, by virtue of installation of an advance financed
public improvement, may be served, all or in part, by the same, Where such real
property is bein2 purchased under recorded land sales contract. then such
purchaser(s) shall also be deemed owner(s),
E, CITY: means the City of Ashland and shall include the followin2 entities:
1. COUNCIL: means the City Council of Ashland;
2, CITY ADMINISTRATOR: means the City Administrator of the City of
Ashland;
3, PLANNING COMMISSION: means the Plannin2 Commission of the City
of Ashland;
4. PUBLIC WORKS DIRECTOR: means the Public Works Director of the
City of Ashland;
5, CITY ENGINEER: means the City En2ineer of the City of Ashland,
F, DEVELOPER: means the City. an individual. a partnership. a ioint venture. a
Page 2 of8
corporation, a subdivider, a partitioner of land or anv other entitv, without
limitation, who will bear, under the terms of this Chapter, the expense of
construction, purchase, installation, or other creation of a public improvement,
G, PROPORTIONAL SHARE: means the amount of the advance financed
reimbursement due from the benefitinl! property owner calculated in
accordance with section 13,30,050(B),
H, PUBLIC IMPROVEMENT: means the followinl!:
1. The l!radinl!, l!ravelinl!, pavinl! or other surfacinl! of any street; or
openinl!, lavinl! out, wideninl!, extendinl!, aIterinl!, chanl!inl! the l!rade of or
constructinl! any street;
2, The construction of sidewalks;
3, The construction or uPl!radinl! of any sanitary or storm sewer;
4, The construction or uPl!radinl! of any water line, reservoir, well, or
related water facilitv; or
5, Anv other public improvement authorized bv the Council.
13.03,015 PURPOSE
The purpose of this Chapter is to ensure orderlv new development bv providinl! methods to
finance necessarv public improvements so that these necessary public improvements are
installed concurrent with, or before, the new development occurs, The Chapter permits the
Citv to require that new development pay the installation cost of necessary public
improvements and assures that necessary public improvements are installed in accordance
with adopted public facilities plans, The Chapter provides for a mechanism to reimburse
developers, the Citv, or both, from benefitinl! propertv owners for a proportional share of
costs incurred,
13,03,020 APPLICABILITY
A, In accordance with Title 18 "Land Use" of the Ashland Municipal Code, the
Planninl! Commission or Council may condition approval of planninl! actions,
such as but not limited to, subdivisions, land partitions and conditional use
permits, to require that the applicant construct necessary public improvements
for the development, When the development is to occur at locations where
approved capital improvement or other master planninl! documents show new
public improvements are necessary, the Planninl! Commission or Council may
condition such planninl! action approval(s) to require that the applicant enter
into an advance financinl! al!reement which will best protect the public and
promote the l!eneral welfare of the Citv,
8, In accordance with Section 13.30.035 - 13.30-045, the Council may determine
that an advance financed public improvement will best protect the public and
promote the l!eneral welfare of the Citv bv ensurinl! orderlv new development,
In the absence of a development application, the Council may, bv option,
desil!nate the Citv or other public entitv as the developer and direct the City
Administrator to prepare an advance financinl! application,
Page3of8
C, In the event the development's subiect property is in the Urban Growth
Boundarv, it shall be. in due course. annexed to the City, The terms of the City's
al!reement(s) with Jackson County. concerninl! the Urban Growth Boundarv. as
well as other al!reements for provision of public services. (e,l!. al!reements with
Ashland Fire District and others). shall be considered in action(s) taken throul!h
under the auspices of this Chapter.
13,30,025 RECEIPT OF APPLICATION
The City Public Works Department will receive applications. accompanied bv a mandatory
application fee. plus a deposit for the cost to notice and prepare the analvsis of the
proposed public improvement. in such form and amount as the Council may. from time to
time. set bv resolution. for advance financed public improvements, The application fee is
non-refundable and the deposit will be applied al!ainst the cost of administrative analvsis of
the proposed advance financed public improvements. for the cost of notifvinl! the property
owners. and for recordinl! cost. When the City. or other public entity. is the developer. the
Council shall. bv motion. direct the City to submit the application to the public works
department without fee or deposit. Applications for advance financed public
improvements are expected to be submitted and approved prior to start of work: however.
applications will be accepted for a period of six months after start of work for the public
improvement,
13.30,030 CITY STAFF ANALYSIS
Upon receipt of the advance financed public improvements application. the public works
department shall make an analvsis of the advance financed public improvements proposal
and shall prepare a report to be submitted to the Council for review. discussion. and public
hearinl!, Such report shall include a map showinl! the location and area of all benefitinl!
properties, The report shall also include the City Enl!ineer's estimate of the total cost of the
advance financed public improvement. and a cost allocation plan to benefitinl! properties,
If the improvement is in the City's Urban Growth Boundarv. Jackson County and special
districts affected shall be provided a COPy of the report.
13,30,035 PUBLIC HEARING
Within a reasonable time after the Public Works Department has completed its analvsis
and report to the City Administrator. an informational pnblic hearinl! before the Council
shall be held in which all parties and the l!eneral public shall be l!iven the opportunity to
express their views and ask Questions pertaininl! to the proposed advance financed public
improvements, Since advance financed public improvements do not l!ive rise to
assessments. the public hearinl! is for informational purposes on Iv. and is not subiect to
mandatory termination due to remonstrances, The Council has the sole discretion. after the
public hearinl!. to decide whether or not an advance financinl! resolution shall be approved,
13,30,040 NOTIFICATION
Not less than seven (7) nor more than thirty (30) days prior to any public hearinl! beinl!
Page 4 0[8
held pursuant to this Chapter. the developer. all benefitinl! property owners. and the
l!eneral public (and. if the improvements are within the City's Urban Growth Boundarv.
then Jackson County. and any other district affected) shall be notified of such hearinl! and
the purpose thereof, Public notice shall be accomplished bv a written notice posted at
Ashland City Hall and such other conspicuous locations as the Council may determine to
be appropriate. and bv a written notice published in a newspaper of l!eneral circulation in
the community. once in either of the two consecutive weeks prior to the hearinl!,
Notification of benefitinl! property owners shall also be accomplished bv rel!ular mail. or
bv personal service, If notification is accomplished bv mail. notice shall be considered made
on the date that the letter of notification is posted. Failure of any owner to be so notified
shall not invalidate or otherwise affect any advance financinl! resolution or the Council's
action to approve or not to approve the same,
13,30,045 ADVANCE FINANCING RESOLUTIONS AND AGREEMENTS
After the public hearinl! held pursuant to section 13.30,040.
A. If the Council desires to proceed with advance financinl! of a public
improvement. it shall pass an advance financinl! resolutionaccordinl!lv, The
resolution shall desil!nate the proposed improvement as an advance financed
public improvement and provide for advance financed reimbursement bv
benefitinl! property owners pursuant to this Chapter, When the developer is a
private developer. the advance financinl! resolution shall instruct the City to
enter into an al!reement between the developer and the City' pertaininl! to the
advance financed public improvement. and may. in such al!reement. require
improvement. inspection and other financiall!uarantee(s) as the City deems best
to protect the public and benefitinl! property owners. and may make such other
provisions as the Council determines necessarv and proper,
B, If the Council reiects the application. no further action shall be taken at that
time,
13,30.050 ADVANCE FINANCED REIMBURSEMENT
A. Advanced Financed Reimbursement Imposed, An advance financed
reimbursement is imposed on all benefitinl! property owners at such time as the
owners applv for connection to advance financed public improvement. or applv
for buildinl! permits for proiects that utilize an advance financed public
improvement,
B. Rates, Benefitinl! property owners shall pay advance financed reimbursement
rates calculated as follows:
If the advance financed public improvement described in City Staff Analvsis.
Section 13,30,030. is completed bv one of the followinl! parties:
1. If the City issues municipal bonds to construct the improvements. the
reimbursement to the City shall be the total of: the actual cost of the
Page 5 of8
improvements. the interest rate on the bonds. pIns and additional interest rate
UP to a maximum allowed bv state and federal laws controllinl! municipal
bonds for administration of the debt.
2. If a private developer uses it own funds to construct the improvements. the
reimbursement to the City shall be the total of: the actual cost of the
improvements. the interest rate on the bonds. plus an additional interest rate
UP to the maximum allowed by state and federal laws controllinl! municipal
bonds for administration of the debt.
3. If financed by the City from its own cash reserves or by any other public or
private party. the reimbursement to the City or fundinl! party shall be the
total of: the actual cost of the improvement. and interest rate specified by the
City ef or by the fundinl! party and al!reed to by the City. plus an additional
interest rate up to the maximum allowed by state and federal laws controllinl!
municipal bonds for administration of the debt.
4. If inequities are created throul!h the strict implementation of the above
Formulas 1.2 or 3. above. the Council may modify its impact on a case-by-case
basis.
C. Collection
1. The advance financed reimbursement is immediately due aud payable by
benefitinl! property owners upon their application for connection to an
advance financed public improvement or any buildinl! permit the result of
which will utilize any advance financed public improvement. If connection is
made or construction commenced without the above-described permits. then
the advance financed reimbursement is immediately due and payable upon the
earliest date that any such permit was required. No permit for connection or
construction shall be issued until the advance financed reimbursement is paid
in full or otherwise processed in accordance with the terms of Paral!raph 2 of
this Subsection C. Whenever the full and correct advance financed
reimbursement is due and has not been paid and collected for any reason. the
City Administrator shall report to the Council the amount of the uncollected
reimbursement. the description of the real property to which the
reimbursement is attributable. the date upon which the reimbursement was
due and the name or names of the benefitinl! property owners. The City
Council. by motion. shall then set a public hearinl! and shall direct the City
Administrator to I!ive notice of the hearinl! to each of those benefitinl!
property owners. tOl!ether with a copy of the Citv Administrator's report
concern in I! the unpaid reimbursement. either in person or by certified mail.
Upon public hearinl!. the Council may accept. reject. or modify the City
Administrator's report; and if it finds that any reimbursement is unpaid and
uncollected. the Council. by motion. may direct the City Recorder to docket
the unpaid and uncollected reimbursement in the City docket of liens. Upon
completion of the docketinl!. the City shall have a lien al!ainst the described
Page 60f8
land for the full amount of the unpaid advance financed reimbursement.
tOl!ether with interest at the current lel!al rate. and the City's actual cost of
servinl! notice upon the benefitinl! property owners. The lien shall be enforced
in the manner provided by Orel!on Revised Statutes Chapter 223.
2. Whenever an advance financed reimbursement is due and collectable. the
benefitinl! property owner may apply. upon forms provided by the City
Administrator. for the voluntarv imposition of a lien upon the subiect
property for the full amount of the advance financed reimbursement and the
payment of that lien in twenty equal semi-annual installments includinl!
interest at the current lel!al rate. The applicant must provide a certificate from
a licensed title insurance company showinl! the identity and amount of all
other liens already of record al!ainst the property and a certificate from the
County Tax Assessor showinl! the assessed value less the combined total
principal balance and accrued interest on all prior liens. Upon receipt of such
certificates and application. the City Administrator shall compute the amount
of the advance financed reimbursement. the date upon which the
reimbursement is due. the name or names of the applicant/owners and the
description of the property: and. upon receivinl! that report. the City
Recorder shall record the lien in the City record of liens. From the time that
docketinl! is completed. the City shall have a lien upon the subiect property
for the amount of the charl!e and interest upon that charl!e at the rate
established by the Council for advance financed public improvements. That
lien shall be enforced in the manner provided in Orel!on Revised Statutes
Chapter 223.
13.30.055 DISPOSITION OF ADVANCE FINANCED REIMBURSEMENTS
Private developers shall receive a portion of advance financed reimbursement collected by
the City pertaininl! to their advance financed public improvements. Such reimbursemeut
shall be delivered to the developer for a period of ten (10) years from the date the
applicable advance financinl! al!reement has been executed. In addition. any developer. or
said developer's heirs. successors or assil!ns. may apply at five-year intervals for two five-
year extensions beyond the initial ten-year period. Such reimbursement will be made bv the
City within ninety (90) days of receipt of the advance financed reimbursements. Advance
financed reimbursements not paid to the developer under the terms of this Chapter shall be
retained by the City to be used for related system improvements as authorized from time to
time by the Council.
13.30.060 RECORDING
All advance financinl! resolutions shall be recorded by the City in the property records of
Jackson County. Orel!on. Such resolution shall identify full lel!al description of the
benefitinl! properties. Failure to make such recordinl! shall not affect the lel!alitv of an
advance financinl! resolution or al!reement.
13.30.065 PUBLIC IMPROVEMENTS
Page 70f8
Public improvements established pursuant to advance financinl! al!reements shall become
and remain the sole property of the City pursuant to the advance financinl! al!reements.
and advance financed reimbursement. plus interest. not paid to the developer durinl! the
ten-year period. or any extension or extensions thereof. as set forth in section 13.30.055.
shall be paid to the City to be used for related system improvement as authorized from
time to time by the Council.
13.30.070 MULTIPLE PUBLIC IMPROVEMENTS
Any advance financinl! application may include one or more public improvements.
13.30.075 DISPUTE RESOLUTION
In the event of a dispute arisinl! from a transaction prescribed in this Chapter. it shall first
be addressed by mandatory mediation. the participants in which shall be all parties
affected. If settlement cannot be reached. resolution shall be by bindinl! arbitration and the
prevailinl! partv(ies) shall be entitled to arbitration fees and costs incurred.
SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 3. Codification. Provisions of this Ordinance shall be incorporated in the City Code
and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another
word, and the sections of this Ordinance may be renumbered, or re-Iettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 2-3) need not be codified and
the City Recorder is authorized to correct any cross-references and any typographical errors.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the _ day of ,2010
and duly PASSED and ADOPTED this _ day of ,2010
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this _ day of
,2010.
John Stromberg, Mayor
Reviewed as to form:
Richard Appicello, City Attorney
Page 8 of8