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LUA97-001
AFFIDAVIT OF PUBLICATION Kristina Thompson, being first duly sworn on oath states that he/she is the Legal Clerk of the SOUTH COUNTY JOURNAL 600 S. Washington Avenue, Kent, Washington 98032 NOTICE OF APPEAL HEARING a dailynewspaper seven (7) times a week. Said newspaper is a le al RENTONN HEARING NGEX OINER published9 RENTON, WASHINGTON newspaper of general publication and is now and has been for more than six months An Appeal Hearing will be held by the prior to the date of publication, referred to, printed and published in the English language Renton Hearing Examiner at his regular meeting in the Council Chambers on the continually as a daily newspaper in Kent, King County, Washington. The South County second floor of City Hall, Renton, Wash- Journal has been approved as a legal newspaper by order of the Superior Court of the ington, on January 28, 1997 at 9:00 AM to consider the following State of Washington for King County. APPEAL OF ISSUANCEtitions:OF AN ACU PER- The notice in the exact form attached, was published in the South County MIT FOR PCS WIRELESS FACILITY/AAD- Journal (and not in supplemental form)which was regularly distributed to the subscribers 97-001 The appellant appeals the issuance of an during the below stated period. The annexed notice, a administrative conditional use (ACU) permit for the PCS Wireless project (file no. LUA- Notice of Appeal Hearing 96-138,ACU). PCS Wireless proposes con- struction of a communication tower with a as published on: 1/17/97 maximum height of 50 ft. The appellant alleges that the ACU permit is in violation of CU permit criteria. The full amount of the fee charged for said regoing publication is the sum of$33.69 Legal descriptions of the files noted Legal Number VN2467 above are on file in the Development Ser- i\ vices Division, Third Floor, Municipal Build- ing, Renton. All interested persons to said / petitions are invited to be present at the ✓/,0 u r/ ►° Public Hearing. Published in the South County Journal Leg erk, South Co j ty Journal January 17, 1997. 2467 Subscribed and sworn before me on thisal ay of - , 19C(7 earMY V> �,�,` �S51oNo��;?%1i� Notary Public of the State of Washington �°� �F:J' �j residing in Renton 0' uk0 As? YN King County, Washington d A1 c 2 h-" �'140 ?1 + ;iF Off: +, „r2WASN%4 _ , i I• ' CITY F`.J RE- N•TN. - U�, - •- earin Examiner Jesse Tanner,Mayor Fred J.Kaufman • February 13, 1997 Mr. Kevin Daly 3933 NE 4th Street Renton, WA. 98056 Re: Appeal of Administrative Land Use Action re Cellular Tower File No. LUA-97-001,AAD Dear Mr. Daly: The above-referenced matter has been dismissed as the appeal was not filed in a timely fashion. Due to the underlying nature as to why the appeal was not timely filed, this office is returning the appellant's $75.00 appeal fee. . • Sincerely, Fred J. Kauf Hearing Examiner FJK:mm • cc: Mayor Jesse Tanner Jay Covington, Mayor's Executive Assistant ' Larry Warren, City Attorney ' Marilyn Pederson, City Clerk , • 200 Mill Avenue South -Renton, Washington 98055 - (206)235-2593 _ LCOVI o JAN 2 81997 2 jlA NER 3 4 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON,WASHINGTON 5 6 IN RE: Appeal of Administrative Land Use ) NO. LUA 97-001,AAD Action re Cellular Tower ) 7 ) BRIEF OF THE CITY OF ) RENTON 8 ) 9 ) 10 L FACTS 11 This appeal is from the granting of an administrative conditional use permit for 12 construction of a steel monopole tower to be used for telecommunication systems. The 13 tower itself is 50 feet tall and within the height limitation of the underlying zone. 14 15 However, a lightening rod would extend above the height of the antennas. This additional 16 height requires an administrative conditional use permit. A conditional use permit is also 17 apparently required to locate a monopole in this zone. 18 There is an existing 40 foot tall billboard located just to the north of the proposed 19 facility providing substantial screening. 20 The City's decision granting the administrative conditional use permit was issued 21 22 on December 4, 1996. This appeal was signed and filed with the City on December 23, 2 3 1996. 24 IL ISSUES 2 5 1. WAS THIS APPEAL TIMELY? 26 2. MAY THE CITY ADMINISTRATIVE STAFF, BY WRONGLY 27 STATING THE LAST DAY TO APPEAL, EXTEND THE APPEAL PERIOD ESTABLISHED BY ORDINANCE? 28 FtREN,KELLOGG, IA!• , BRIEF OF CITY OF RENTON-Page 1 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)266-8678 1 3. WAS THE EVIDENCE PRESENTED BY THE OPPONENT TO THE 2 PROJECT ADEQUATE TO MEET THE OPPONENT'S BURDEN OF 3 PROOF BEFORE THE EXAMINER? 4 4. IS THE QUALITY OF APPELLANT'S EVIDENCE SUFFICIENT TO SATISFY THE TELECOMMUNICATIONS ACT REQUIREMENTS? 5 6 III. ARGUMENT 7 1. WAS THIS APPEAL TIMELY? 8 9 The decision approving the administrative conditional use permit was issued on 10 December 4, 1996. This appeal was dated and filed with the City on December 23, 1996. 11 Therefore,nineteen days separated the decision from the appeal. 12 In order to decide when an appeal must be filed, it must be determined when an 13 appeal right matured and how the Examiner obtained jurisdiction over the subject matter 14 being appealed. 15 16 The duties of the Hearing Examiner are listed in City Code section 4-8-10.A. The 17 Examiner has appellate jurisdiction under § 8, 11 and 13 of that City Code section. 18 Section 8 deals with appeals from administrative determinations of the City's land use 19 regulation codes and apparently applies. Section 11 deals with an appeal of an 20 environmental determination, not an issue in this case. Section 13 applies to an appeal 21 22 from an administrative determination implementing the written land use decision of the 2 3 City Council or Hearing Examiner, also not an issue in this case. The only way the 24 Examiner obtains jurisdiction is under City Code section 4-8-10.A.8 which gives the 25 Examiner jurisdiction to hear appeals from an administrative determination of the City's 26 land use regulation codes. 27 28 W.RREN, KELLOGG,BAR BE , DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 2 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)265-8678 1 City Code section 4-8-11.B.1.b states as follows: 2 3 "Appeals from an administrative decision pursuant to this chapter shall be filed within fourteen(14) days of the date that the action was taken." 4 Since nineteen days elapsed between the time,of the decision and the time of the 5 6 . appeal,this appeal is.untimely and must be dismissed. 7 2. MAY THE CITY ADMINISTRATIVE STAFF, BY WRONGLY STATING THE LAST DAY TO APPEAL, EXTEND THE APPEAL 8 PERIOD ESTABLISHED BY ORDINANCE? 9 It should be noted that the decision itself, stated on page 9, misstated the time 10 within which to appeal: 11 12 "An appeal to the Hearing Examiner is governed by Title IV, Section 4-8- 11.B, which requires that such appeals be filed directly with the Hearing 13 Examiner. Appeals must be in writing but before 5 p.m. on December 23, 1996." 14 That statement is in error. The last day to appeal was December 19, 1996, not as 15 16 stated, December 23, 1996. The question presented is, "Can a misstatement of the time to 17 appeal overcome the clear language of the City ordinance and thereby extend the time of 18 appeal?" 19 The better rule is that the language of the ordinance must prevail and that actions 20 of administrative stag whether deliberate or inadvertent, cannot have the power to 21 22 overrule the specific language of the ordinance and create additional jurisdiction in the 2 3 Examiner. 24 The court, in the case of Den Beste v. Pollution Control Hearings Board, 81 25 Wn. App. 330, 914 P.2d 114 (1996), answers this question. In that case there was an 26 issue as to whether or not the time to appeal was extended to Monday when the last day 27 2$ for the appeal fell on a Saturday. There was a specific administrative rule that had been WARREN,KELLOGG,BARBER, DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 3 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)255-8678 1 adopted, WAC 371-08-235, which would extend the appeal time until Monday. However, 2 3 RCW 1.12.040 only grants an additional day if the last date of appeal falls on a holiday or 4 on a Sunday. The court held, on page 341: 5 "...We agree that the exclusion of Saturdays would provide the greatest 6 degree of fairness to an appealing party because the PCHB is closed on Saturdays. However, the exclusion must be made by the Legislature, not 7 this court. We therefore hold that given the language of RCW 1.12.040, final Saturdays must be included in the time calculation. The provision of 8 WAC 371-08-235 to the contrary is of no force and effect." 9 The case before the Examiner should be even clearer. In the Den Beste case, there 10 was formal rule making and publication of a rule establishing how to calculate the last day 11 12 for appeal when that day fell on a Saturday. Ostensibly, adoption of such a rule would be 13 a formal action of an agency and binding on the agency. However, even such formal 14 action was not deemed sufficient to overrule clear statutory language. In the case before 15 the Examiner, the administrative decision contained an error stating the last day on which 16 to appeal. The statement of the last day to appeal was either inadvertent, but wrong, or 17 based upon an erroneous interpretation of City ordinance. However, in neither instance 18 19 does such a statement overrule the clear language of City ordinance. 20 Therefore, despite the incorrect statement of the last day to appeal, contained in 21 the decision, the clear language of City ordinance must prevail and this appeal is not 2 2 timely. 23 3. WAS THE EVIDENCE PRESENTED BY THE OPPONENT TO THE 2 4 PROJECT ADEQUATE TO MEET THE OPPONENT'S BURDEN OF PROOF BEFORE THE EXAMINER? 25 26 If the Hearing Examiner determines that this appeal was timely filed, then it is 27 28 WARREN,KELLOGG,BARBER, DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 4 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)265-S678 1 necessary to consider appellant's burden of proof. City Code section 4-8-11.B.4 deals 2 3 with that burden of proof 4 "The Examiner may hear and consider any pertinent facts pertaining to the appeal. The Examiner may affirm the decision or remand the case for 5 further proceedings, or it may reverse the decision if the substantial rights 6 of the applicant may have been prejudiced because the decision is: 7 a. In violation of constitutional provisions; or b. In excess of the authority or jurisdiction of the agency; or 8 c. Made upon unlawful procedure; or 9 d. Affected by other error of law; or e. Clearly erroneous in view of the entire record as submitted; 10 or f. Arbitrary or capricious." 11 These grounds for reversal are the traditional grounds for an appeal of an 12 13 administrative decision. Appeals from administrative decisions are nearly universally 14 limited to.the record generated by the decision making body from which the appeal is 15 taken. This is only fair, as a party appealing the decision of a prior body should have fully 16 disclosed the reasons for opposing the application and not withhold those facts to gain an 17 advantage on appeal. On appeal, there should be an opportunity to discuss procedural 18 19 facts, or to disclose.facts not readily available at the time of the original hearing. Outside 20 of those instances, the appeal should be limited to the facts disclosed before the decision 21 making body and arguments made from those facts. 22 The opposition to this application was contained in a letter addressed to Peter 23 Rosen of the City. That letter discloses as reasons for opposition: 24 1. That the tower is not esthetically compatible with the surrounding 25 26 businesses; 27 28 WARREN, KELLOGG,BA!"11 ER, DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 5 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)266-8678 , 1 2. That the monopole would likely have a negative impact on property values; 2 3 and 4 3. That there was a concern about safety because of exposure of radio 5 frequency and microwave radiation. 6 These three concerns do not amount to any substantive evidence upon which the 7 City can rely. The first, on aesthetics, is generally a very personal decision. The City does 8 9 not choose to try and judge aesthetics, but rather requires setbacks, landscaping or 10 screening as opposed to trying to measure aesthetics. There is no complaint that the 11 project will violate any of the City's codes in those respects. The second issue, on 12 property values, is entirely unsupported by fact. In fact, the way the matter is presented 13 indicates that,it is speculative. The exact words in the letter are : 14 15 "Locating a tower so close to a business area would likely have a negative effect on values." 16 Finally,the issue of exposure to electromagnetic frequency is not only unsupported 17 18 by citation to any reputable scientific source, but is specifically eliminated as an item of 19 consideration by the Telecommunications Act of 1996, 47 USC § 332(c)(7). Specifically, 20 a state or local government may not "regulate the placement, construction and 21 modification of personal wireless service facilities on the basis of the environmental effects 22 of radio frequency emissions to the extent that such facilities comply with the 23 commission's regulations concerning such emissions." 24 25 Based upon the three reasons raised in the objection to the issuance of this permit, 26 the City had no alternative but to grant the application. 27 28 WARREN,KELLOGG,BARBEL', • DEAN fr FONTES,P.S. BRIEF OF CITY OF RENTON-Page 6 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)266-8678 1 4. IS THE QUALITY OF APPELLANT'S EVIDENCE SUFFICIENT TO 2 SATISFY THE TELECOMMUNICATIONS ACT REQUIREMENTS? 3 While this office has not undertaken an exhaustive review of the cases interpreting 4 the Telecommunications Act of 1996, it is aware of two cases. The first case is that of 5 6 Sprint Spectrum,L.P.v. City of Medina, 924 F.Supp. 1036 (1996). The second case is 7 Bellsouth Mobility,Inc.v. Gwinnett County, Georgia, 944 F.Supp. 923 (1996). 8 The Sprint Spectrum case, is a local case, but is of little assistance. That case 9 simply states that the establishment of a six month moratorium on issuance of new special 10 use permits for wireless communications facilities was not prohibited by the 11 12 Telecommunications Act of 1996. The Bellsouth case (attached) is of greater assistance. 13 In that case a permit was sought to erect a monopole tower 197 feet in height. The 14 property upon which the tower was to be located was zoned commercial and was 15 occupied by an automotive repair shop, an auto parts store and a tire supply company. 16 The locational facts appear similar to the case before the Examiner, although the tower in 17 that case was nearly four times as high as the one at issue. 18 19 Opponents testified against the tower. The primary spokesperson was from a 20 nearby residential community who expressed concerns that the monopole posed a safety 21 threat to children who might wish to climb it, that the platform and antenna might become 22 dislodged during a storm, that the monopole would not be aesthetically compatible with 23 existing structures, and health concerns because of exposure to microwave emissions and 24 25 diminution in property values. The objections in the Bellsouth case covered the three 26 27 28 WARREN,KELLOGG,BARBER, DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 7 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)266-8678 1 2 objections in this case,but posed additional objections. 3 In the Bellsouth case, the county commissioners denied the permit and the case 4 was appealed to the federal courts under the Telecommunications Act. The federal court 5 had little problem in reversing the county's decision. 6 The court first focused on the Telecommunications Act requirement that: 7 "Any decision by a state or local government or instrumentality thereof to 8 deny a request to place, construct, or modify personal wireless service 9 facilities shall be in writing and supported by substantial evidence contained in a written record." 47 USC § 332(c)(7)(B)(ii) and(iii). 10 The court then defined substantial evidence to mean more than a mere scintilla. 11 12 The court stated that it meant such relevant evidence as a reasonable mind might accept as 1.3 adequate to support a conclusion. The court then found that the applicant had produced 14 compelling evidence and that the local residents' "generalized concerns do not constitute 15 substantial evidence supporting the board's decision." 16 In the case before the Examiner there is no hard evidence to support a concern that 17 18 property values will be depreciated by this tower. The tower is generally located in a 19 commercial area and would be placed in the storage and parking.area of The Plumbing 20 Joint. The tower is located behind a billboard and will largely be shielded from view by it 21 which, in itself, is hardly the earmark of high property values. There is no substantial 22 evidence that property values will be harmed. �3 Under the Telecommunications Act, the Examiner must affirm the decision 24 2 5 granting the administrative conditional use permit. 26 27 28 WARREN,KELLOGG,BA 11ER, DEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 8 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98067 (206)255-8678 1 IV. CONCLUSION 2 3 This appeal was not timely filed. In error on the part of the staff in stating the 4 correct appeals date cannot expand the jurisdiction of the Examiner to hear this appeal. 5 Even if the Examiner can hear the appeal, this appeal fails to meet either the City Code 6 requirements for reversal or the Telecommunications Act requirements to deny the permit 7 for a personal wireless service facility. 8 9 DATED THIS 27th day of January, 1997. 10 11 Respectfully submitted, 12 13 O 14 Lawrence J. W , WSBA#5853 15 of Warren, Kellogg, Barber, Dean &Fontes,P.S., Attorney 16 for the City of Renton 17 3.23.2:as. 18 19 20 21 22 23 24 25 26 27 28 WARREN,KELLOGG, IA I.ER, BEAN&FONTES,P.S. BRIEF OF CITY OF RENTON-Page 9 ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)265-8678 ill/lb/7f 11.11.ii west ruu11 NilL 944 F.Supp. 923 Page 1 • (Cite as: 944 F.Supp. 923) BELLSOUTH MOBILITY INC.,James department recommended approval of Dean and Lanette Dean, Plaintiffs, application subject to three, conditions_, that -.- . v. ^.. operator agreed to, expert appraiser_... promptly . _ GWINNETT COUNTY, GEORGIA; F. - indicated that placement of monopoles had not Wayne Hill,Judy Waters, Kevin Kenerly, previously adversely affected residential Tommy property values, and monopole's radio Hughes, Patti Muise,individually, and in .. frequency emissions would be well below their capacities as Members of the limits imposed by federal regulations. Gwinnett County Board of • Communications Act of 1934, § 332(cX7XBXv), Commissioners; Michael C.Williams, as amended,47 U.S.C.A. § 332(cX7XB'Xv). individually and in his capacity as Director of the Gwinnett [2]MANDAMUS k63 County Department of Planning and 250k63 Development; and William D.Jascomb, Telecommunications Act vests court with Jr.,individually and in his capacity as sufficient authority to grant plaintiff's request Director of the Development Division of for mandamus relief if such relief would be the Gwinnett County Department of warranted under circumstances. Planning and Development, Defendants. Communications Act of 1934, § 332(cX7), as amended,47 U.S.C.A. § 332(cX7). No. 1:96-cv-1268-GET. [3]MANDAMUS k87 United States District Court, 250k87 N.D. Georgia, Writ of mandamus commanding county board Atlanta Division. of commissioners to grant tall structure permit to construct cellular communications Aug. 13, 1996. monopole, rather than remand to board for further consideration, was appropriate remedy Prospective operator of cellular for board's denial of permit application in communications monopole sought review of violation of Telecommunications Act; county board of commissioners' denial of prospective monopole operator complied with application for tall structure permit. The all objective conditions and prerequisites set District Court, G. Ernest Tidwell, Chief out in county code necessary to obtain permit Judge, held that: (1) decision was not and board's denial of application constituted supported by substantial evidence, and(2)writ act, of discretion which was lacking in any of mandamus commanding grant of articulable, objective ground for support. application, rather than remand, was Communications Act of 1934, § 332(c)(7XBXv), appropriate remedy. as amended,47 U.S.C.A. § 332(cX7XBXv). So ordered. - *924 Peter M. Degnan, Scott A. McLaren, Alston & Bird, Atlanta, GA, for BellSouth [1]TELECOMMUNICATIONS k461.5 Mobility,Inc., James Dean and Lanette Dean. 372k461.5 County board of commissioners' decision to John Patrick O'Brien, Donna N. Kemp,.Jill deny application for tall structure permit to Ilene Seligman, Thompson O'Brien Kemp & construct cellular communications monopole Nasuti, Norcross, GA, Caryl B. Sumner, was not supported by substantial evidence; Gwinnett County Law Department, airspace safety report showed that monopole Lawrenceville, GA,Philip W. Horton,William posed no hazard to county's navigable E. Cook, Jr., Arnold & Porter, Washington, airspace, county airport authority voiced no DC, pro hac vice, for Gwinnett County, objection to operator's plans, county Georgia, F. Wayne Hill, Judy Waters, Kevin departments of transportation and public Kenerly, Tommy Hughes, Patti Muise and safety did not object to plans, county planning . Michael C. Williams. Copr. e West 1997 No claim to orig. U.S. govt. works 111/1b/5( 11;i3:4L West rutimsning Lo.-' ray uua 944 F.Supp.923 Page 2 (Cite as:944 F.Supp.923, *92.._ John Patrick O'Brien, Donna N. Kemp, Jill than fifty feet must first apply to the county Ilene Seligman, Thompson O'Brien Kemp & for a . "Tall Structure Permit." This - ' Nasuti, Norcross, GA,for William D. Jascomb, application must be submitted to the county's Jr. department of planning and development. GWINNETT COUNTY, GA., CODE OF ORDER ORDINANCES § 14-117 (1994). Further,each application shall contain detailed plans and _- G. ERNEST TIDWELL, Chief Judge. specifications showing: (1) the nature of the structure, (2) the structure's proposed use, (3) The above-styled matter is before the court the height of the structure, and (4) the on plaintiffs' appeal from the Gwinnett structure's proposed location(with all property County Board of Commissioner's April 23, lines clearly defined and all distances from the 1996 decision denying plaintiff BellSouth proposed structure to the property lines clearly Mobility, Inc.'s'("BellSouth") application for a marked). Id. The property owner must also Tall Structure Permit. The matter is also pay a fee. Id. before the court on: defendants' motion to exceed page limits [docket no. 5]; plaintiffs' Once the property owner has submitted the motion to exceed page limits [docket no. 13]; tall structure permit application, the planning and plaintiffs' motions to dismiss certain and development department of the county claims without prejudice[docket nos. 11 & 18]. will review it and make a written recommendation to the county board of Factual Background commissioners. Although the planning and development department may recommend that Sometime during the early part of 1995, the application be granted or denied, all plaintiff BellSouth determined that in order to applications must be considered by the board meet the obligations imposed on it by its FCC of commissioners, who are charged with the license, it needed to improve its signal responsibility of making the final decision. strength within the Five Forks-Trickum/Oak GWINNETT COUNTY, GA., CODE OF Road area of Gwinnett County, Georgia. ORDINANCES § 14-120. Indeed, according to BellSouth's engineers then determined that to the Code, the board of county commissioners, achieve this objective, BellSouth needed to "in the exercise of its discretion under the install a cellular telephone communications police power vested in [it]," may deny any monopole somewhere within that area. The application: ideal height of the monopole, according to where the proposed structure could interfere BellSouth's engineers, would be 197 feet with or endanger the public using the above ground level. existing or proposed air facilities located within the county, or where the structure to On June 28, 1995, BellSouth entered into a be erected could endanger the person or lease agreement with plaintiffs Dean. That property of citizens of the county, or where agreement gave BellSouth an option to use the structure to be erected would not be the Dean property ("Dean property"), which is compatible from an aesthetic viewpoint with located at 3109 Five-Forks Trickum Road, to existing or proposed development in *925 construct, maintain, and operate a cellular the area of the proposed facility, or where communications monopole. The Dean the structure to be erected would not be property is zoned commercial and is currently acceptable or after evaluation would be occupied by an automotive repair shop, an found to be unacceptable from an auto parts store, and a tire supply company. architectural standpoint with existing or proposed structures in the area. Under section 14-116 of the Gwinnett Id. County Code ("Code"), a property owner who wants to erect on his or her property a On February 12, 1996, plaintiffs, through wireless communication tower that is greater BellSouth and its counsel, filed their Copr. e West 1997 No claim to orig. U.S. govt. works 11l/lb/9( 11:44;bb West rublisning Go.-? rays uuz 944 F.Supp. 923 Page 3 (Citg as:944 F.Supp.923, *91- application for a permit to place a cellular these agencies had no objection to plaintiffs' communications monopole.- on the , Dean plans. The permit application was scheduled property. Their"application was assigned to be considered by the board of commissioners number TSP-96-002. In the application, at a March 26, 1996 hearing. plaintiffs described the structure that BellSouth wanted to place on the Dean Shortly before the board's scheduled as a "197-foot monopole together - homeowners in. a residential property - Po -he . -g �g�-.. .... .. .. with a 326 square foot unmanned single-story subdivision located behind the Dean property prefabricated concrete switch gear building.'. voiced opposition to the application. The Both of these structures were to be "enclosed board decided to postpone the hearing from by an 8-foot chain link fence with 3 strands of March 26, 1996 to April 23, 1996. bobwire along the top." In addition to filling out the form provided by the county, plaintiffs During this time,plaintiffs, apparently after also attached several documents supporting attempting to have some discussion with local their application. These documents included: property owners, supplemented their permit 1) a report by Airspace Safety Analysis application. Plaintiffs agreed to three Corporation showing that the monopole additional conditions. They agreed to prohibit presented no hazard to navigable air space microwave equipment from being operated on • in the area; the Dean property. They agreed to paint the 2) the option and lease agreement between monopole in a color selected by the adjacent BellSouth and plaintiffs Dean; residential property owners. And they agreed 3) plaintiffs' constitutional objections not to light the monopole. Plaintiffs also concerning the standard of review for supplemented their application by providing approving or denying a tall structure permit; the board with the structure's radio frequency and (Rfl emissions specifications. Further, before 4) two complete sets of boundary survey and the April 23, 1996 hearing, plaintiffs site plans. submitted a document to the board informing The boundary survey and site plans which it of the additional requirements that, in their plaintiffs submitted clearly indicate the opinion, the Telecommunications Act imposed nature of the proposed monopole structure, its upon them. ' proposed use, the height of the structure, and its proposed location on the Dean property. At the April 23rd hearing, the board of The documents also'demarcate the property commissioners permitted plaintiffs five lines and show the distances between the minutes to present their case. Speaking in monopole and the property lines. support of the permit application, plaintiffs' representative stated for the record-that the After conducting its investigation, the monopole's height could be reduced from 197 planning and development department feet to 177 feet in order to alleviate some of recommended that plaintiffs' permit the neighbors' aesthetic concerns. He then application be approved on condition that: (1) introduced a certified appraiser's report the site remained a leased area; (2) plaintiffs comparing residential property values in install a 10-foot landscape strip, planted with Gwinnett County neighborhoods surrounding evergreens, outside the fenced area along its three other monopole sites. This report north and west side; and (3) plaintiffs obtain concluded that the cellular communication all the required building and development - monopoles did not adversely affect property permits. As part of the planning and value. development department's investigation, it solicited comment on plaintiffs' application *926 Plaintiffs' representative also from the Gwinnett County Department of introduced a line of sight survey prepared by Transportation, the Gwinnett County Aerial Instrument Research Systems which Department of Public Safety, and the showed the visibility, from various locations Gwinnett County Airport Authority. Each of surrounding the Dean property, of a red Copr. ©West 1997 No claim to orig. U.S. govt. works 01/16/97 11:4b:15 West Publishing Lo.-> rage nen 944 F.Supp. 923 Page 4 - (Cite as:944 F.Supp.923, *9;:_, balloon floated to heights of 197 feet, 187 feet, On May 21, 1996, plaintiffs filed their five and 177 feet. He expressed why the proposed- count complaint against defendants. In Count location was important to BellSouth, and' I, plaintiffs allege that defendants violated produced a list of BellSouth's unsuccessful section 704(a) of the Telecommunications Act - efforts to secure other suitable sites. He of 1996 ("TCA"), 47 U.S.C. § 332(cX7). In concluded by urging the board to grant Count U, plaintiffs contend that defendants plaintiffs' "application"subject to the .."six 'denied them equal-protection under the law. - conditions to which plaintiffs had previously Count III of the complaint alleges that agreed. . ....-.,.... ..... ._ :...__.-...._.:.....: . - defendants denied plaintiffs' rights to . . substantive due process. Count IV seeks After plaintiffs' five minutes had expired, mandamus relief under O.C.G.A. § 9-6-20. the board gave those who opposed plaintiffs' And in Count V, plaintiffs seek compensatory tall structure permit application five minutes and punitive damages under 42 U.S.C. § 1983. within which to speak. At that time, a Plaintiffs also assert a right to.have their resident of the River Oak Village subdivision, appeal heard on an expedited basis under the Bruce Nelson ("Nelson"), stood to speak on TCA. behalf of the residents of his subdivision, the River Oak Frills subdivision, and the Pool On June 25, 1996, after the court conducted Creek subdivision. Nelson expressed concern a conference in its chambers, it set August 1, that the monopole would pose a safety threat 1996, as the date it would hear oral argument to children living in the area who might want on plaintiffs' appeal. Before that hearing, to try to climb it or play around it. Nelson plaintiffs,on July 23, 1996, and July 31, 1996, also expressed his fear that the platform and moved the court to dismiss without prejudice antennae attached to the top of the monopole many of the claims they had stated in the would become dislodged during a storm with complaint. heavy winds and cause damage. Nelson also expressed health concerns about being exposed Nevertheless, on August 1, 1996, the court to microwave emissions on a regular basis. entertained oral argument as scheduled. Further, Nelson said that at least twenty Because plaintiffs, through their motions for homeowners could see the proposed site from dismissal, changed the nature of their claims their front windows. Nelson also stated that• against defendants after defendants had filed the property owners were worried that their brief, defendants requested an property values in the neighborhoods would opportunity to file a supplemental brief. The decrease. Finally, Nelson expressed his court granted defendants'request. Defendants concern that the monopole would 'not be have now filed their supplemental brief, and aesthetically compatible with existing responded to plaintiffs' motions to dismiss. structures and worried that BellSouth would Accordingly, the matter is ripe for the court's rent parts of the tower to other companies for review. - their use. Discussion After hearing these statements, and thanking the speakers for participating, the 1. Defendants'motion to exceed page limits board, without further discussion, voted to deny plaintiffs' application. Subsequently, by Defendants move the court to permit them letter dated April 29, 1996, the board of to exceed, in their brief regarding the scope of • planning and development formally notified review to be afforded plaintiffs' appeal, the plaintiffs that their "application for a Tall page limits prescribed in LR 220--1(d), NDGa. Structure Permit was denied at the Board of Defendants state that because there is no Commissioners meeting on April 23, 1996." reported authority construing the TCA, they must provide the court with a description of Procedural Background the TCA's legislative background, and must give the court information concerning *927. Copr. ©West 1997 No claim to orig. U.S. govt. works 111/1b/Jf 11;9f;3.1 west ruoiisnmg Lo.-/ 1 t5G .,.,LI 944 F.Supp. 923 Page 5 • (Cite as:944 F.Supp.923, *92 _ ... the proper scope of its review under the act. defendants do not oppose plaintiffs' request to Because this information will decrease the . . .. dismiss - the.. claims described above. space within which they may address the Accordingly, plaintiffs' motions to dismiss merits of plaintiffs'cause, defendants contend, certain claims [docket nos. 11 & 18] are _ the court should allow them to exceed the GRANTED. thirty page limit prescribed in the local rules. Plaintiffs do not oppose defendants'request:- .• - 4.Plaintiffs' appeal and complaint Defendants' motion to.exceed .page.-.limits. . Plaintiffs appeal the Gwinnett County board [docket no. 5]is GRANTED. of commissioners' denial of their tall structure permit application. Plaintiffs contend that 2. Plaintiffs'motion to exceed page limits they had a clear right to the tall structure - -- permit, and that the board of commissioners Plaintiffs move the court to permit them to abused its discretion when it denied their exceed, in their brief supporting their appeal application. Thus, plaintiffs argue, they are and complaint, the page limits prescribed in entitled to an order compelling the board of LR 220-1(d), NDGa. Plaintiffs argue that due commissioners to permit BellSouth to place its to the length of defendants' brief, the lack of monopole on the Dean property. In addition, reported authority construing the TCA, the plaintiffs contend that the board violated the novelty of the subject matter, and the unusual TCA because its decision to deny their permit procedures required by the Act, they need application was not supported by substantial additional space within which to address fully evidence. the issues before the court. Defendants do not oppose plaintiffs'motion. Defendants respond that the board of commissioners did not act arbitrarily or Plaintiffs' motion to exceed page limits capriciously when it denied plaintiffs' [docket no. 13]is GRANTED. application. Rather, defendants contend, the board simply reacted to its constituent's 3. Plaintiffs'motions to dismiss aesthetic, economic, and safety concerns and made a rational decision to deny plaintiffs the Plaintiffs, in two separate motions,move the permit they sought. In addition, defendants court to permit them to dismiss without claim that the issues plaintiffs present in this prejudice, many of the claims they state in appeal--whether the board's decision is their complaint. Specifically: (1) all plaintiffs supported by the evidence and whether they seek to dismiss the claims contained in Counts had a clear legal right to the permit sought-- II and DI of the complaint; (2) all plaintiffs are issues that are better left for Georgia seek to dismiss the claims for costs, expenses, , courts to resolve. Thus, defendants argue, the and reasonable attorneys fees asserted in court should abstain from reviewing the board Count V of the complaint; (3)BellSouth seeks of commissioner's decision. to dismiss its claim for compensatory and punitive damages under 42 U.S.C. § 1983; a. Plaintiffs'claims under the TCA and (4) plaintiffs Dean seek to dismiss their claim for punitive damages. On February 8, 1996, President Clinton signed the TCA into law. The TCA is Defendants respond that plaintiffs have used expansive legislation designed primarily to the wrong procedural vehicle.to achieve their increase competition in the objective. Specifically, defendants contend telecommunications industry. . Although the that rather than seeking to dismiss their TCA does not, as defendants correctly point unwanted claims pursuant to Fed.R.Civ.P. out, completely preempt the authority of state 41(aX2), plaintiffs should have deleted them and local governments to make decisions properly by amending their complaint. regarding the placement of wireless Notwithstanding this procedural objection, communications service facilities within their Copr. ©West 1997 No claim to orig. U.S. govt. works ill/lb/9( 11:48:4b West Publishing Lo.-) rage nor 944 F.Supp. 923 Page 6 (Cite as:944 F.Supp. 923, *91, borders,it does impose some limitations. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477,-71 S.Ct. -456, 459,-95 L.Ed. 456 The act, for example, provides that state or (1952). Although the court is not free to local governments which regulate the substitute its judgment for that of the board of placement, construction, and modification of commissioners, it must overturn the board's personal wireless service facilities: "(I) shall decision under the substantial evidence test if not- unreasonably- discriminate among' '" - it "cannot conscientiously find that the providers *928 of functionally equivalent evidence supporting that decision is services; and (II) shall not prohibit or have substantial, when viewed in the light that the the affect of prohibiting, the provision of record in its entirety furnishes, including the wireless services." 47 U.S.C. § body of evidence opposed to the Board's view." 332(cX7)BXiX1). Nor may any state or local Bickerstaff Clay Products Co., Inc. v. governmental body "regulate the placement, N.L.R.B.,871 F.2d 980,984(11th Cir.1989). construction, and modification of personal ' wireless service facilities on the basis of the [1] After • reviewing the information ' environmental effects of radio frequency contained in the written record before the ' emissions to the extent that such facilities board of commissioners, the court cannot ' comply with the Commission's regulations conscientiously find that the evidence concerning such emissions." 47 U.S.C. § supporting the board's decision to deny 332(cX7)(BXiv). Finally, any request to place, plaintiffs' a tall structure permit is construct, or modify a personal wireless substantial. On the contrary, the court finds service facility must be acted upon within a that the record evidence supports plaintiffs' reasonable period of time, and "[allay decision application. by a State or local government or instrumentality thereof to deny a request to As noted in the court's factual summary, place, construct, or modify personal wireless plaintiffs submitted numerous documents to ' service facilities shall be in writing and support their application. Plaintiffs, for supported by substantial evidence contained in example, submitted the report of Airspace a written record." 47 U.S.C. § 332(cX7)(B)(ii) Safety Analysis Corporation showing that the &(iii). monopole posed no hazard to Gwinnett County's navigable air space. The Gwinnett By denying plaintiffs' a permit to place a County Airport authority apparently agreed, wireless communication services facility on since, in its memorandum to the planning and the Dean property, defendants' actions clearly development department it voiced no objection fall within the ambit of the TCA. Thus, the to plaintiffs' plans. The record also contains critical question before the court is whether memoranda from the Gwinnett County the board of commissioner's decision to deny departments of transportation and public plaintiffs' application is supported by safety stating no objection to plaintiffs' "substantial evidence contained in a written application. The record also reflects that the record." 47 U.S.C. § 332(cX7XBXiii). County's planning and development department affirmatively recommended that As the legislative history of the TCA plaintiffs' application be approved subject to indicates, "[t]he phrase 'substantial evidence three limited conditions. Plaintiffs not only contained in a written record' is the promptly agreed to follow the three conditions traditional standard used for judicial review of suggested by the planning and development agency actions." H.R.Conf. No. 104-458, department,but also agreed to meet three self- 104th Congress, 2d Sess. 208 (1996), reprinted imposed conditions. The record further in 1996 U.S.C.A.A.N. 222. Substantial contains expert appraiser's reports indicating evidence, as construed by the courts, means the placement of monopoles has not, on other "more than a mere scintilla. It means such occasions, adversely affected residential relevant evidence as a reasonable mind might property values. Finally, the record contains accept as adequate to support a conclusion." evidence that the monopole's radio frequency Copr. e West 1997 No claim to orig. U.S. govt. works H1/lb/97 .11:517:1111 West rublistiing L.o.-' 1'AU LJ.,J 944 F.Supp. 923 Page 7 (Cite as:944 F.Supp.923, *9,. emissions would be well below the limits [2]In the court's view, simply remanding the imposed by federal regulations. matter to the board of commissioners for their determination would frustrate the TCA's The only record evidence supporting the intent to provide aggrieved parties full relief board's decision is the content of Mr. Nelson's on an expedited basis. Therefore, defendants' five minute testimony. In light of the abstention argument notwithstanding, the compelling evidence presented by -the court finds that the TCA vests the court with. plaintiffs, however, the court finds that Mr. sufficient authority to grant plaintiffs' request - Nelson's generalized concerns . do not for..mandamus relief if such relief would be constitute substantial evidence supporting the warranted under the circumstances. board's decision. Accordingly, the court finds in plaintiffs' favor on their claims brought [3] Further, following the analysis set out by under 47 U.S.C. § 332(cX7)(BXv). the Georgia Supreme Court in Fulton County v. Bartenfeld, 257 Ga. 766, 363 S.E.2d 555 *929 b. Mandamus claims (1988), the court finds that mandamus relief is appropriately granted to plaintiffs in this case. Having determined that plaintiffs are Like the Bartenfeld court, this court finds that entitled to relief under the TCA, the court plaintiffs have complied with all objective must now determine what relief is conditions and prerequisites set out in the appropriate. Defendants contend that the Gwinnett County's Code necessary to obtain a court should simply remand the matter to the tall structure permit. Thus, "since the board board of commissioners and allow it to make a of commissioners' denial thereof constitutes an decision supported by substantial evidence. act of discretion which is lacking in any Plaintiffs, on the other hand, argue that they articulable, objective ground of support, are entitled to an order compelling the board [plaintiffs]have a clear right to issuance of the of commissioners to grant plaintiffs' tall permit, thereby entitling [them] to issuance of structure permit application. the writ commanding grant of the application by the local authorities." Bartenfeld, 257 Ga. Section 704(a) of the TCA does not speak to at 771, 363 S.E.2d 555. Accordingly, the court ! the issue of what relief a court may grant to GRANTS plaintiffs' request for writ of remedy violations of the act. Although it mandamus and ORDERS the Gwinnett permits any person who has been adversely County board of commissioners to GRANT affected by actions that are inconsistent with plaintiffs' application for tall structure permit its provisions to "commence an action in any number TSP-96-002. court of competent jurisdiction," it does not specify an appropriate remedy. See, 47 U.S.C. SUMMARY § 332(cX7XBXv). The TCA, however, does mandate that "[t]he court shall hear and Defendants' motion to exceed page limits decide such action on an expedited basis." Id. [docket no. 5] is GRANTED. Plaintiffs' Indeed, the legislative history of the TCA motion to exceed page limits [docket no. 13] is makes it clear that its drafters intended that .GRANTED. Plaintiffs' motions to dismiss "the court to which a party appeals a decision certain claims [docket nos. 11 & 18] are under section 332(cX7)(BXv) may be the GRANTED. Federal district court in which the facilities are located or a State court of competent The Court finds that the Gwinnett County jurisdiction, at the option of the party making board of commissioners' decision to deny the appeal, and that the courts act plaintiffs' tall structure permit application expeditiously in deciding such cases." number TSP-96-002 is not supported by H.R.Conf. No. 104-458, 104th Congress, 2d substantial evidence in a written record. Sess. 208 (1996), reprinted in 1996 . Accordingly, the court finds in plaintiffs' favor ' U.S.C.A.A.N. 222. on their claims brought under 47 U.S.C. § 332(cX7XBXv). In addition,the court GRANTS Copr. ©West 1997 No claim to orig. U.S. govt. works 111/1b/U( 11:51:Lb west rubiisnrng Lo.-7 rayc 944 F.Supp. 923 ', Page 8 , -Wile as:944 F.Supp.923, *92-- plaintiffs' request for writ of mandamus and ORDERS the Gwinnett County board of commissioners to GRANT plaintiffs' application for tall structure permit number - - TSP-96-002. END OF DOCUMENT _.. . _ . _._ .... .. t s Copr. ®West 1997 No claim to orig. U.S. govt. works 01/27/97 MON 16:37 FAX 206 467 8406 ATER WYNNE g002 ATER ♦• i NNE Two Union Square 601 Union Street,Suite 5450 HEWITT Seattle,Ws5hington 98101-2327 (206)623-4711 DODSO Fax(206)46743406 Si SKERRIT r, LLP REMEOVR ATTORNEYS AT LAW January 27, 1997 1111 JAN 2 8 1997 HUOf RENTON NG EXAMINER Fred 7. Kaufman Renton City Hearing Examiner 200 Mill Street South Renton, WA RE: LUA-96-138, ACU - GTE Wireless PCS Antenna on NE 4th Street Dear Mr. Kaufman: 1 am writing on behalf of GTE Wireless, a new PCS provider, in support of the city's decision to grant an Administrative Conditional Use Permit for the construction of a PCS facility at 3929 NE 4th Street. Appellants allege that somehow the proposed antenna negatively impacts property values for surrounding businesses. While appellant may "feel" that the proposed antenna will negatively impact his property, he provides no basis for such a determination. The proposed antenna is to be sited on a lot zoned Suburban Center (CS). This is a business zone. The monopole is to be adjacent to an existing billboard 40 feet high. The adjacent billboard provides appropriate screening for this area, given the predominant commercial businesses. The difference in height between the antenna and the billboard is only 10 feet. The city staff determined that the antennas's proposed height is compatible with the surrounding area. The PCS antenna will provide this area of Renton with coverage to utilize the next generation of wireless telephone products. The application of PCS will provide commercial users many options. Thus the zoning for this area and the uses allowed in the CS zone are compatible to the commercial applications for the proposed antenna. The new PCS telephones are well-suited to automobile uses, which appear to be the predominant commercial businesses in the area of the proposed antenna. >Ete1[rct31m2 • Portland,Oregon (509)226.1191 Fax(503)226.0079 San Francisco.California (415)421-4143 Fax(43.5)989.1263 06/27/97 MON 16:38 FAX 206 467 8406 ATER WYNNE 'Ej"".) ATER WYNNE - Renton City Hearing Examiner January 27, 1997 Page 2 The compatibility of the uses in this area demonstrates that there can be little if any negative impact on property values. Any business operating in this area is governed by the Renton Municipal Zoning Code that allows "medium utilities" to be placed in the CS zone as long as the city grants an Administrative Conditional. Use Permit. The city staff has determined based upon the city's comprehensive plan and zoning code that the proposed PCS facility is compatible for the area and consistent with the plan and code. Appellants offer no other basis to reject GTE's proposed installation. The lack of compatibility cited in appellants letter asserts that an antenna 10 feet higher than a billboard does not provide the area with a visually clean environment. In this commercial zone other businesses are allowed outdoor signage. These types of outdoor elements are consistent with the proposed antenna. On behalf of GTE Wireless, we request that the hearing examiner uphold the staffs decision to grant the Administrative Conditional Use Permit. Very truly yours, ATER WY.OI 1 HEWI'TT DUl�SUN SKERRITT, LLP Joel R. P:, - er cc: Horazio Calcagno, GTE Wireless, Inc. ,RGT 0;1/27/97 MON 16:37 FAX 206 467 8406 ATER WYNNE goo]. ATERWYNNE HEwrrr Square 601 Union Street Suite 5480 DO'DSQN wattle,Washing' Ina 98101.2327 &SKERRTIT LLP ROO 63-4n6 ' Fax hoary 467-e4o6 ATTORNEYS AT LAW FACSIMILE TRANSMITTAL NOTICE: This facsimile contains confidential information that is being transmitted to and is intended only for the use of the recipient named below. Reading, .disclosure, discussion, dissemination, distribution, or copying of this information by anyone other than the named recipient or his or her employees or agents is strictly prohibited. If you have received this facsimile in error, please immediately destroy it and notify us by telephone, (206) 623-4711. DATE: January 27, 1997 TO: Fred J. Kaufman, Renton City Hearing Examiner's Office FAX NUMBER: 235-2513 FROM: Joel R. Paisner DOCUMENT: Letter re GTE Wireless PCS Antenna on NE 4th St. PAGES (inc. cover): 3 . nPr t NT O N 0 HEARING EXAMINER :> PUBLIC HEARING JANUARY 28, 1997 AGENDA COMMENCING AT'9:00'AM, COUNCIL CHAMBERS, SECOND FLOOR, RENTON MUNICIPAL BUILDING The application(s) listed are in order of application number only and not necessarily the order in which they will be heard. Items will be called for hearing at the discretion of the Hearing Examiner. PROJECT NAME: APPEAL PCS WIRELESS FACILITY ADMINISTRATIVE CONDITIONAL USE PERMIT PROJECT NUMBER: AAD-97-001 (LUA-96-138,ACU) PROJECT DESCRIPTION: The appellant appeals the issuance of an administrative conditional use (ACU) permit for the PCS Wireless project (file no. LUA-96-138,ACU). PCS Wireless proposes construction of a communication tower with a maximum height of 50 ft. The appellant alleges that the ACU permit is in violation of CU permit criteria. Document3 NOTICE OF APPEAL HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON An Appeal Hearing will be held by the Renton Hearing Examiner at his regular meeting in the Council Chambers on the second floor of City Hall,Renton, Washington, on January 28, 1997 at 9:00 AM to consider the following petitions: APPEAL OF ISSUANCE OF AN ACU PERMIT FOR PCS WIRELESS FACILITY/AAD-97-001 The appellant appeals the issuance of an administrative conditional use (ACU) permit for the PCS Wireless project (file no. LUA-96-138,ACU). PCS Wireless proposes construction of a communication tower with a maximum height of 50 ft. The appellant alleges that the ACU permit is in violation of CU permit criteria. Legal descriptions of the files noted above are on file in the Development Services Division, Third Floor, Municipal Building,Renton. All interested persons to said petitions are invited to be present at the Public Hearing. Publication Date: January 17, 1997 Account No. 51067 APPPUB.DOC ;; CITY RENTON ;03:i • Hearing Examiner • Jesse Tanner,Mayor Fred J.Kaufman January 6, 1997 Mr. Kevin Daly 3933 NE 4th Street Renton, WA 98056 Re: Appeal of Administrative Land Use Action re Cellular Tower File No. LUA-97-001,AAD Dear.Mr. Daly:• Your letter of appeal in the above matter has been received and a date and time for said hearing have now been established. The appeal hearing has been set for.Tuesday,,January 28, 1997,at 9:00 a.m. in the Council Chambers on the second floor of City Hall,Renton: Should you be unable to attend, would you please appoint a re resentative to act on your behalf PP P .. We appreciate your cooperation, and if you have any'questions,please contact my secretary. Sincerely, • Fred J. Kaufman Hearing Examiner FJK:mm cc: Mayor Jesse Tanner Jay Covington, Mayor's Executive Assistant Lawrence Warren, City Attorney Peter Rosen, Development•Services 200 Mill Avenue South-Renton, Washington 98055 - (206)235-2593 ®This paper contains 50%recycled material,20%post consumer CITY OF RENTON DEC 2 3 1996 RECEIVED CITY CLERK'S OFFICE Prom: Kevin Daly, (.4vrier/IViana2.er-Chevruu Lite:Express Re: LTJA 96-132.ACti • : 32/2:3/95 I fearing EX...al-nine-A-, au forinnlly requesting an appeal of the Adrnini:,.;trative 1.1,31d. Use.1`,Letiou wtgarding the construction of a cellular 1.01WT at 3929 N. 411 Street. I am objecting to he decision as I feel the report is erroneous in view of the record as submitted. fa is previous IcAter that I Wrote on 9/22/96, I clearly indicated Lay and other business Citti concerns involved property values,husincFs value.-,, and the visual impact of such a struture. in order ibr the Conditional Use Petinit to be ar}proved,numerous factors had to be Considered. I do not believe that the item regarding the impaet/effeet on adjacent properties was considered at all. This was primary concern noted in the 9/22 letter to Mr. Rosen, which was signed by owners of 10 businesses and properties. In actions diseusscd in other nei0aboring cities,the issue of negati,:e impaet on business/property values has been a thcd poiot in col stmotion decisions. I tia'ai ilOti-dvig in Mr. l:Zo:!;en's report that even inafflioncd this impc.ffiant issue. Without being too redundent,I believe that locatine,a tower of this type at the location noted will have a negative effect on lily business and . property values. The next item I take issue with concerns compatibility. The ALUA report states that the structure needs to " be compatible with the residential scale and character of the neighborhood."The area in question isan extremely fast growing Renton business corridor. The new businesses locating along 4th St. have numerous ordinances to follow that are designed to keep the area visually appealing and "clean" looking. A 50 foot "plus" cellular phone tol.verloeater! arli9e,eut to an existing 40-Foot billboard is not trty idea of • in the area concerning landscape requirements, the report notes that the project may be required to buffer adajacent properties from potentially adverse effects. The report simply states that the existing "rockery," storage shed,billboard,and mature plantings would screen the project. This would be totally inadequate in terms of"screening" this giant pole from any angle. This needs to be reviewed by other people. I am hopeful that this appeal gets the attention and time it deserves. Again,I feel that locating this tower at the proposed location would not be in the best interest of the adjacent businesses and the area in general, • Sincerely, Kevin Daly APPEAL - HEARING EXAMINER . WRITTEN APPEAL OF HEARING EXAMINER'S DECISION/RECOMMENDATION 9 f ITY COUNCIL. FILE NO. DEC 2 31996 APPLICATION NAME: L Lk A c( ^ 13? A-c RECEIVED The undersigned interested party hereby files its Notice-of,Appeal from the decisionaITYCLERKEIllaeRrarof the Land Use Hearing Examiner, dated 19 1. IDENTIFICATION OF PARTY APPELLANT: REPRESENTATIVE (IF ANY) Name: Keo ;11 D V.A. Name: Address: 31 33 au E '•( ` S Address: ' Ce I Wa . 4 ?V SC. Telephone No. 7-2-T 74 Telephone No. 2. SPECIFICATION OF ERRORS (Attach additional sheets, if necessary) Set forth below are the specific errors or law or fact upon which this appeal is based: FINDING OF FACT: (Please designate number as denoted in the Examiner's report) • No. Error: c_ c)-%-eck Correction: 1 CONCLUSIONS: No. Error. Correction: • • OTHER • No. Error: Correction: • 3. SUMMARY OF ACTION REOUESTED: The City Council is requested to grant the following relief: (Attach explanation, if desired) • Reverse the decision or recommendation and grant the following relief: Modify the decision or recommendation as follows: • Remand to the Examiner for further consideration as follows: • the Ia1/23/4 � Appellant/Re resentative Signature Date NOTE: Please refer to Title IV, Chapter 8, of the Renton Municipal Code, and Section 4-8-16, for specific appeal procedures. June26, 1995 heappeal.doc/forms City of Renton City Code Title IV -Building Chapter 8 -Hearing Examiner Section 16 -Appeal 4-9-16: APPEAL: ' ` . Unless an ordinance providing for review of decision of the Examiner requires review thereof by the Superior Court, any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Clerk upon a form furnishedby the City Clerk, within fourteen (14) calendar days from the date of the Examiner's written report. The notice of appeal shall be accompanied by a fee in accordance with the fee}�e'cliediile;of the City: .- is A. The written notice of appeal shall fully, clearly and thoroughly specify the•substantial errOr(s) in'fact or law. which in the record of the proceedings from which the appellant seeks relief. Facsiiiiiie fling,of'atriotice Of appeal is authorized i pursuant to the conditions detailed in Renton City Code Section 4-8-11C. (Ord...4,335,3 :6-1-92) • B. Within five (5) days of receipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters in support of their positions within ten (10) days of the dates of mailing of the notification of the filing of the notice of appeal. • C. Thereupon the Clerk shall forviagl:to the7members,of•the.City Council all;of.,the pertinent documents, including the written decision or recommendation, findings and conclusions contained in the Examiner's report, the notice of appeal, and additional letters submitted by the parties. D. No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by • the City Council unless a showing is made by the party offering the'evidence that the evidence could not reasonably have been available at the time of the hearing before the Examiner. If the Council determines that additional evidence is required, the Council may remand the matter to the Examiner for reconsideration. The cost of transcription of the hearing record shall be borne by the appellant. In the absence of any entry upon the record of an order by the City Council authorizing new or additional evidence or testimony, it shall be presumed that no new or additional evidence or testimony has been accepted by the City Council, and that the record before the City Council is identical to the hearing record before the Hearing Examiner. E. The consideration by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties. F. If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to Section 4-8-10A and after ' examination of the record, the Council determines that a substantial error in fact or law exists in the record, it may remand the proceeding to Examiner for reconsideration, or modify, or reverse the decision of the Examiner accordingly.) G. If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to Section 4-8- lOB or C, and after examination of the record, the Council determines that a substantial error in fact or law.exists in the record, or that a recommendation of the Hearing Examiner should be disregarded or modified, the City Council may remand the proceeding to the Examiner for reconsideration, or enter its own decision upon the application pursuant to Section 4-8-1OB or C. . ' H. •In any event, the decison of the city Council shall be in writing and shall specify any.modified or amended findings and I . conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record. The burden of proof shall rest with the appellant. (Ord. 3658, 9-13-82) heappeal.doc/forms �car�1 rs e c Or A uA ci (- 13g //-c 4{ ke LcAc Fx f rt-ss 3713S N F y S T g ©S C1s (ka 1--1 T- )-o S u,--)-c. A ge Ztp, 9 ids �i Zzq E re-ss cio 1-( . E . 9 1` g (��,�� R. g o s• C S--. 0L.A30., 1-1' , . cL r C Tcv-.-/-6,-, q-oS PoLrPros 3 9 Q / iq F L/ SI I�e��'cr� ` �S o s V� © 390 / N F_ yi L Sr. ,�U. ? ?os- re:. II L 1� S .� � I t)\ �a � C h r rc�cl':c 3701 /`(.% . rj.. � gos(.0 Capjw, Co-4'c- 3ef0 1 /n. E . ??0St 140 0 1 r ) h 1S c -Z o f 4`}!_ L/ S I. f2��-.�cn., ro SL E. 7( crclsr. Er, rz- sc 3? o ( ��.� . � SI B-, ?s)-o&-C 4,,:1-o i—a1-k c `1 o o L( F L-1 S DonaLA C rz-r- 1, TVO S1= jc\Cs ��S L�, sT�.��- �1a I y� .�v�. 250 Sc.a-thlc �4. 73/ IJ f-i Pk 3 /`( • `go n r, l v/t e v� A-c rrs dc,K arbor, � 1t5 U \ cr-, ` 1,ckz., VaTh � t (o N�E. CoS Sl'. 5��. /� -( (S Se a/� g Wei40..d1 W„c a.l.\ )_kis A-Q-c 1J.F , Ti?0SI (ikn u e_ 3017 I`l . Li ,-.coin Arc . ���� Lia . n 03 I DUPLICATE RECEIPT DUPLICATE RECEIPT CITY OF RENTON CITY TREASURER REG/RCPT : 02-09692 C:12-23-1996 CASHIER ID : N 17:01:00 A:12-27-1996 5007 APPEALS & WAIVERS $75.00 000.000.00.345.81.00.000003 TOTAL DUE $75.00 RECEIVED FROM: CHEVRON LURE EXPRESS CHECK $75.00 TOTAL TENDERED $75.00 CHANGE DUE $0.00 DUPLICATE RECEIPT DUPLICATE RECEIPT