HomeMy WebLinkAbout2010-176 Findings - AT&T Cell Tower Appeal
BEFORE THE CITY COUNCIL OF THE CITY OF ASHLAND
November 2nd, 2010
IN THE MATTER OF AN APPEAL ON THE RECORD OF THE PLANNING )
COMMISSION'S APPROVAL OF PLANNING ACTION #2009-01244, A REQUEST )
FOR SITE REVIEW APPROVAL AND CONDITIONAL USE PERMIT AND )
ADMINISTRATNE V ARlANCE TO ALLOW THE INSTALLATION OF )
ROOFTOP WIRELESS COMMUNICATIONS FACILITIES ON THE EXISTING )
ASHLAND STREET CINEMA BUILDING LOCATED AT 1644 ASHLAND STREET ) FINAL
AND AN ASSOCIATED GROUND-MOUNTED ACCESSORY EQUIPMENT ) DECISION
STRUCTURE. )
)
)
APPLICANTS: Goodman Networks, Inc. for AT&T Wireless, LLC )
This matter came before the City Council as an appeal on the record pursuant to Ashland Land Use Ordinance
(ALUO, or AMC, Ashland Municipal Code) 18.108.110. 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 on July
13, 2010. An appeal request was timely received on July 28, 2010 from Christian E. Heam, attorney for the
appellant Roderick J. Newton.
SCOPE OF THE APPEAL: ALUO 18.108.1I0.A.2 requires that each appeal set forth "a clear arid distinct
identification of the specific grounds for which the decision should be reversed or modified, based on identified
applicable criteria or procedural irregularity." The four clearly and distinctly identified grounds for appeal in
this case were: I) Failure to provide a collocation study and meet the design standards criteria showing how
collocation cannot occur (ALUO 18.72.180.B, and 18.72.180.C.2); 2) Failure to demonstrate that the application
meets a Conditional Use Permit Criterion pertaining to adverse material effects on livability within the impact
area when compared to the target use (ALUO 18.104.050.C); 3) Failure to provide a lease with the application
(ALUO 18.72.180.B); and 4) Failure to meet the criteria for Administrative Variance to the required landscape
buffer for the ground mounted WCF equipment structure (ALVO 18.72.090).
The appellant also proposed to incorporate several other unspecified additional issues detailed in 28 pages of the
nine sub-exhibits provided with the appeal. The Council finds that this attempt to incorporate additional appeal
issues by reference to other documents 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 any additional issues from these sub-exhibits were not included
as identified grounds for appeal. The Council finds that consideration of this appeal is therefore limited to the
four appeal issues which were clearly and distinctly identified in the appeal request.
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.
A. OVERVIEW OF APPLICATION, RELEVANT APPROVAL CRITERIA and COUNCIL
PROCEEDINGS:
1) The subject property is identified as Tax lot #6800 of Map 39 IE 15 AB, located at 1644 Ashland
Street and is zoned Commercial Retail (C-l).
2) The applicants requested Site Review and Conditional Use Permit approval to install rooftop
wireless cOrrullunications facilities (WCF) on the existing Ashland Street Cinema building
located at 1644 Ashland -Street, and to construct an associated ground-mounted accessory
equipment structure. The proposed installation consists of 12 architecturally-integrated panel
antennas. The application includes a request for an Administrative Variance from the Site
Design and Use Standards' required landscape buffer for the ground-mounted accessory
equipment structure. The subject property is located within the Detail Site Review Zone and the
Ashland Boulevard Corridor, and the existing building is also subject to Additional Standards for
Large Scale Projects. Site improvements are outlined on the plans on file at the Department of
Community Development.
3) The criteria for Site Review approval 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.
e. The development complies with the Site Design Standards adopted by the City Council
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 J 8.88, Performance Standards
Options. (Ord. 2655. 1991; Ord 2836 S6, 1999)
4) The criteria for a Conditional Use Permit are described in 18.104.050 as follows:
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.
S. 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.
e. 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
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Page 2
~
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 Comprehensive Plan.
7. Other factors found to be relevant by the Hearing Authority for review of the
proposed use.
5) The Development Standards for Wireless Communications Facilities are described in AMC
18.72.180.C as follows:
1. General Provisions
a. All facilities shall be installed and maintained in compliance with the
requirements of the Building Code. At the time of building permit application,
written statements 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 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 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.
f Applicant is required to remove all equipment and structures 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.
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2. Preferred Desims
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.
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 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.
e. Lattice towers are prohibited as freestanding wireless communication support
structures.
, 3. Landscavinf!. 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.
4. Visual Imvacts
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-
reflective finish and color that blends with the color and design of the structure to
which it is attached.
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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 be reduced if, as
determined 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
requirement.
e. Exterior lighting for a WCF is permilled only when required by a federal or state
authority.
f All wireless communication support structures' must have a non-rejlective finish
and color that will mitigate visual impact, unless otherwise required by other
government agencies.
g. Should it be deemed necessary by the Hearing Authority for the mitigation of
visual impact of the WCF, additional design measures may be required. These
may include, but are not limited to: additional camoujlagematerials and designs,
facades, specific colors and materials, masking, shielding techniques.
5. Collocation standards
a. Each addition of an antenna to an existing WCF requires a building permit,
-unlesstJie' additional antenna increases the height of the facility more than ten
feet.
b. Addition of antennas (0 an existing WCF that increases the overall height of the
facility more than ten feet is subject to a site review." (ORD 2802, S31997)
6) 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 a 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 Use
Chapter; and
D. The variance requested is the minimum variance which would alleviate the difficulty.
7) The City Council, following proper public notice, held a public hearing on October 5th, 2010 to
consider the appeal, at which time testimony was received and exhibits were presented.
Deliberations for the action were continued until the next regular meeting of the Council on
October 19th, 2010.
At its regular meeting on October 19th, 20 I 0 the City Council upheld the appeal on one of the four
identified appeal grounds. Council overturned the Planning Commission's approval, and denied
the application for Site Review, Conditional Use Permit and Administrative Variance to install
rooftop wireless communications facilities and an associated ground-mounted equipment structure.
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As detailed more fully below, the City Council finds that the Planning Commission erred in its
interpretation of the Development Standards for Wireless Communications Facilities in AMC
18.72.l80.C.2.a, that the standards were substantially more rigorous than they had been interpreted
to be in the Planning Commission's decision, and that the applicants failed to meet their burden of
proof as to the design standards criteria with respect to collocation.
References to the Planning Commission Record will be described herein by page number, preceded by the
abbreviation "PCRec".
B. COUNCil., FINDINGS ON APPEAL
1. Procedural matters.
a.. Timeliness of applicant's submittal in response to appeal. The Council finds that
written arguments were to have been submitted not less than ten days prior to the October 5th
hearing, which in this case would have been no later than Monday, September 27th, 201O.when
calculated according to the methodology of ORS 174.210. For reasons that are not entirely clear,
the applicant's representative has asserted that, despite timely mailing of notices by the City, they
did not receive a copy of the appeal notice until Friday, September 24th, 2010. As a result, the
applicant was not able to submit written arguments until Wednesday, September 29t\ 2010. In
light of the applicant's substantial interest in the proceedings and the fact that the applicant did
not receive the mailed notice until very near the submittal deadline, the Council finds that it
would result in fundamental unfairness to exclude these written arguments on a mere technical
violation and that acceptance of these written arguments does not prejudice the substantive rights
of other parties. The Council therefore accepts the applicant's September 29th argument
submittals.
b. Asserted bias of Council members. During the Council hearing, a citizen asserted
that Council members could be biased based on whether they were customers of the applicant
AT&T for their cellular telephone service, and on whether as a result they perceived that in fact
there were problems with poor cell phone coverage in the area subject to this application. During
Council deliberations, each Council member stated for the record that their individual cell phone
service would not be a basis for their decision, and that they were capable of and in fact would
decide this application on its merits and were free from any asserted bias.
2. Teleconllnunications Law Standards.
In addition to the specific standards in the AMC, Council notes the application of two standards of
federal law with respect to applications to site WCF. First, the Council recognizes that the
Telecommunications Act of 1996 expressly preempts local governinent regulation of 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
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November 2, 2010
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with the FCC's regulations concerning such emISSIOns [47 U.S.C. S332(c)(7)(B)(iv)]. The
Council finds that perceived health impacts are included within this prohibition. The Council
therefore concludes that testimony and evidence in this case concerning the environmental effects
of radio frequency emissions are not a basis upon which Council can make a decision; as such,
Council specifically declines to consider all such evidence in evaluating this application.
Second, the City Council further finds that the application as detailed in the whole record is
intended to supplement or enhance the applicant',s own service network, which provides services
already within the City of Ashland. Nothing within the record indicates that t1he applicants are
seeking to address a significant service gap; in fact, the applicants explicitly acknowledged in the
appeal hearing that they do not have a significant service gap in the area.
3. Findings with respect to AMC criteria.
a. Collocation standards.
As noted above, there are four specific grounds for appeal in this case. The first appeal ground
asserts both that the applicant failed to provide a sufficient application in the first instance,
violating AMC 18.72.180.B.6, and that to the extent the applicant's later submissions attempted
to cure this defect, they were insufficient to meet the applicant's burden of proof under this
criterion.
The Council notes at the outset that the purpose of the application submittal requirement is to
ensure that the application is sufficient in substance in order to allow for the evaluation of the
application against the substantive criteria. AMC 18.72.180.B's application submittal
requirements are not stated as jurisdictional requirements. As such, the Council may not use
these requirements as independent approval criteria against which the application must be
measured. The applicant's initial submittal in this case was found to be insufficient by City staff,
and was supplemented during the course of staff's review of the application. (PCRec 511, 769
and 1299, and pages immediately following each of these page numbers). Taken together, while
as shown below the, Council determines that the submittals are insufficient to meet the
applicant's burden of proof on the applicable approval criteria, the submittals are sufficient to
allow for review of the application against those standards.
The substantive standards relevant to this appeal ground are found at AMC 18.72.180.C.2,
"Preferred Designs". As articulated more fully below, Council finds that this standard is
ambiguous on its face, and that it must therefore be interpreted by the Council using its text,
context and apparent purpose.
The City Council finds that with regard to the primary ground for appeal, "Failure to provide
collocation study and to meet the design standards criteria for collocation," the Planning
Commission erred in its interpretation and application of the Development Standards for
Wireless Communication Facilities contained in ALUO 18.72.180.C. More specifically, the City
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Council finds that the "Preferred Designs" are intended to provide a significantly more rigorous
standard of review than was applied by the Plarming Commission. The Council finds that the
Preferred Designs standards of ALUO 18.72.180.C are intended to be'viewed within a broader
context as a ladder or stepped hierarchy, and that these standards are to be more rigorously applied
to regulate the placement, appearance and impact of wireless communication facilities in a
manner which minimizes visual and aesthetic impacts to the greatest extent possible in keeping
with their declared purpose imd intent described in ALUO 18.72.180.A, while providing residents
with the ability to access and adequately utilize the services that these facilities support.
The Council finds that the application of these standards proceeds on a determination of feasibility,
and that "feasible" is not explicitly defined within Ashland's Land Use Ordinance. The Council
therefore finds that "feasible" shall be defined as "capable of being done, executed or effected; .
possible of realization." The Council further finds that a demonstration of feasibility requires a
substantial showing, and that an applicant carmot deem an alternative, such as a collocation site, to
be not feasible simply because it would be difficult for the applicant to make use of ihat alternative.
As such, an application must first provide a collocation feasibility study as required in ALUO
l8.72.180.B.6 which "adequately indicates collocation efforts were made and states the reasons
collocation can or cannot occur." When considered within the hierarchy of preferred designs in
ALUO 18. 72.180.C this study and other materials within the record must demonstrate not merely
that the preferred option of collocation in ALUO 18.72.180.C.2.a is not ideal in meeting the
applicants' objectives, but that collocation at the site is not feasible - as defined above - before
the applicant may proceed to the next available option of placement on a pre-existing structure.
The study also must demonstrate that the applicant made a reasonable effort to locate other
potential collocation sites that would meet the applicant's service objections and clearly identify
why those sites also are not feasible.
The City Council finds that when viewed in light of this more rigorous application of the
standards, the application as contained in the whole record fails to meet the burden of proof in
demonstrating that collocation is not feasible. The Council finds that while the applicants
attempted to better address the feasibility of collocation with incremental submittals through the
application review and hearing process, the application materials provided are on the whole weak
and contradictory; fail to clearly identify a consistent service objective and provide clear analysis
of the feasibility of collocation proceeding from that objective; and flatly put are simply
inadequate to demonstrate that collocation is not feasible.
Early submittals by the applicants note that the Holiday Inn collocation site is "a reasonable
location according to the search map. It is also possible to add false architectural elements to
screen an installation at the Holiday Inn" (PCRec 1299) but remove it from consideration as the,
"slight increase in ground elevation would make the projected signal coverage' area of the
Cinema installation larger and more efficient, potentially serving more customers. Further,
when evaluating locations for radio equipment at the Holiday in, 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
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Page 8
Cinema. This additional length would result in an additional loss of signal, adding to the
inefficiency of a possible Holiday Inn installation" (pCRec 1300). Later submittals state that
"The collocation on the Holiday Inn Express could work purely from an RF perspective."
(pCRec 769) but go on to indicate the site was rejected due to access difficulties likely to be
encountered with the anticipated placement of the accessory equipment cabinet. The applicants
final submittal notes that the Cinema instal]ation "will provide a stronger RF signal that will
cover more area.... will offload more traffic than a site at the hote/.... [and] is predicted to
provide in-building coverage" to both the Southern Oregon University campus and the 1-5
corridor, noting that the "cinema location meets these goals significantly better than the hotel
location" (pCRec 5]5). '
The Council finds that while the applicants have demonstrated a number of justifications for their
preference for the Cinema site, they have failed to adequately demonstrate that collocation on the
existing Ho]iday Inn Express wireless communication facility installation on Clover Lane is not
feasible, and have in fact indicated that this location is reasonab]eaccording to their search map
and could work from a radio frequency standpoint. The Council finds that collocation is the
preferred option under ALUO ] 8.72.] 80.C.2.a, that the hierarchy in preference of design options
stated in the standards is essential in minimizing to the greatest extent possible the visual and
aesthetic impacts of wireless communication facility installations in Ashland, and that without an
adequate demonstration that collocation is not feasible as required' in ALUO ]8.72.]80.C.2.b.,
this installation on a pre-existing structure cannot be approved.
As a result of the findings above as to the first asserted ground for appeal, the Council therefore
concludes that the appeal should be granted on this ground, resulting in reversal of the approval
and denial of the application.
b. ' Conditional Use Permit Criterion: Adverse Materia] Effects
The second ground for appeal asserted by the appellant was that the application failed to meet
AMC 18.104.050.C, requiring that the proposed 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. The Planning Commission found that this was a "comparison standard"
that requires the City to contrast specific impacts resulting from the proposed use to the impacts
if the site were developed to the target use for its C-I zoning, which is retail use built to a floor
area ratio of 0.35. The appellant does not disagree with this interpretation of the code, but rather
argues that there is not substantial evidence in the record to support the Commission's findings
that the proposed use will not have a greater impact than if the site is developed for the target
use. The Council finds that the C.ommission's findings extensively analyze each of the criteria
listed in the code section and evaluate the impact of the proposed wireless communication
facility as compared with development of the site for commercial retail use. (PCRec 467-472).
The Council finds that there is substantial evidence contained within the whole record to support
the findings of the Planning Commission, and hereby adopts the identified Planning Commission
findings in their entirety. Those findings are appended to this Fina] Decision as Appendix A.
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\
The Council concludes that the Planning Commission's decision with regard to this ground
should be upheld, and this ground for appeal should be denied. ]IPJB1J
c. Application submittal requirements
The City Council finds that with regard to the third ground for appeal, "Failure to Provide a
Lease with Application," the appellant argues that the applicant included neither a lease nor a
, collocation study which are required under ALUO 18.72.l80.B. The Council finds that to the
extent that the Commission findings address this issue, they conclude that the identified
documents are submittal requirements rather than approval criteria. Therefore, whether or not
they were provided with the original application, submittals cannot serve as grounds for a denial
of the application. The Council finds that the code requires applicants to provide this
information in order for the City to make a determination whether the application meets
applicable approval criteria; however, the submittal requirements are not approval criteria in and
of themselves. The Council further finds that the applicants did ultimately provide a copy of a
lease that did not explicitly preclude collocation, although it placed a number of preconditions on
collocation which the Commission found questionable (pCRec 463-64). Similarly, the Council
finds that the'applicant provided materials to"address'collocation which-the Commission initially
found inadequate, and which the applicant subsequently supplemented during the hearing process
(PCRec 462-63). The Council finds that by the time the Commission reached its decision, the
study, as supplemented, provided the Commission with adequate information to determine
compliance with the criteria. The Council therefore finds that there is substantial evidence
contained within the whole record to support a finding that the required items were submitted.
As a result, the Council concludes that the Planning Commission's decision with regard to this
appeal ground should be upheld, and this ground for appeal should be denied.
d. Administrative Variance: landscape buffering standards.
The City Council finds that with regard to the final ground for appeal, "Failure to meet criteria
for Administrative Variance to the landscape buffering standards for ground-mounted accessory
equipment," the appellant argues that there is not substantial evidence contained within the whole
record to support the findings of the Planning Commission. The Council finds that the
Commission's findings include a detailed discussion of the accessory equipment structure and
why it meets the criteria for an Administrative Variance to the landscape buffering standards (pC
Rec 474-76). In particular, the COnlmission found that the ten-foot landscape buffer required by
the standards "would extend into the required clear width of 'the alley, impeding vehicular
circulation, fire access and service corridor access for loading [and] unloading." The Council
hereby adopts the findings of the Planning Commission as to this appeal ground, which findings
are appended to this Final Decision as Appendix B. The Council finds that there is substantial
evidence contained within the whole record to support the findings of the Planning Commission
on this matter. Accordingly, the Council concludes that the Planning Commission's decision
with regard to this ground should be upheld, and this ground for appeal should be denied. !IPJB2J
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C. DECISION
Based on the' record of the Public Hearing on this matter, and on the [mdings set forth above, the City
Council concludes that the Planning Commission erred' in its interpretation and application of the
Development Standards for Wireless Communications Facilities in ALUO l8.72.l80.C.2.a, that these
standards are substantially more rigorous than they were applied in the Planning Commission's decision,
and that the applicants have failed to meet their burden of proof in providing an adequate collocation study
to satisfy the design standards criteria for collocation in ALUO 18. n.180.C. The City Council therefore
grants the appeal as to the first appeal ground, denies the appeal as to the remaining three appeal grounds,
and overturns the Planning Commission's approval for Site Review, Conditional Use Pennit and
Administrative Variance to install a rooftop wireless communications facilities. The application is denied.
Stromberg, Mayor
of Ashland
November 2.2010
Date
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APPENDIX A
Planning Commission Findings Regarding Conditional Use Permit Criieria
Concerning '.'No Greater Adverse Effect on Livability" (pCRec 467-72)
9) AMC 18.104 C [No Greater Adverse Effect on Livability];
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 ofthe 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 Comprehensive
Plan.
7. Other factors found to be relevant by the Hearing Authority 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 ill above]. The target use of the zone is
commercial. . Specifically, in C-l target use is defined in AMC 18.104.020.B.4 as;
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:
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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 impact s 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 18.104.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 of the C-1 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
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highest point by approximately ten feet while complying with the forty-foot height requirements of the C-1. A
small enclosure in the rear of the 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 1.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 properly 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 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 properly 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 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 properly 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
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/
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 environmental
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 of RF 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 V.S.C. S332(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.l.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 zone.
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 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
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
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wellness uses in the impact area, the findings under 7 below (other factors) are incOIporated 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 full development of the site to its target
commercial use.
7. Otber factors found to be relevant by tbe Hearing Autbority for review of tbe 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-l 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-l uses would compete
with impact area uses. However, as noted earlier, the standard is not - no adverse 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 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.
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.
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APPENDIX B
Plaimmg Commission Findings Regarding Administrative Variance Criteria (pCRec 474-76)
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 a 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 Use
Chapter; and ~
D. The variance requested is the minimum variance which would alleviate the difficulty.
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 adj acent 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 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 I b, are incorporated
herein by this reference. The proposed structure'mimics similar storage structures already in place on the south
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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 inpnediately
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, t1he 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 th~ is necessary to effectuate
construction of the proposed use. The above fmding 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.
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