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HomeMy WebLinkAboutDecision - Temp Use Permit Appeal -- Verizon Decision Administrative Appeal - 1 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON DECISION FILE NUMBER: PR17-000365 SITE ADDRESS: 111 Meadow Lane Ave N Renton, WA APPLICANT : Verizon represented by Rick Cardoza, LDC Engineering TYPE OF CASE: Appeal of Decision to Deny Tier 2 Temporary Use Permit DISPOSITION Denial of permit reversed; permit approved as outlined in “Decision” section below. SUMMARY Verizon has appealed a July 17, 2018 decision by the City of Renton to deny an application for a Tier II Temporary Use Permit to extend the amount of time that a Verizon Cellular Tower on Wheels (COW) is allowed to remain on property located at 111 Meadow Lane Ave N. The appeal is sustained and the permit denial is reversed to authorize additional time for the COW to remain as outlined in the “Decision” section below. The decision is denied because requirements of the Telecommunications Act of 1996 prohibit permit denials if they prevent a wireless service provider from filling gaps in service coverage, if no feasible alternatives are available. In this case, the City denied the permit application because Verizon failed to provide for screening as required by the conditions of approval for the original temporary use permit approval. Verizon established with undisputed evidence that denial of the permit would cause a gap in coverage and that there were no feasible alternative sites currently available to close the gap. This decision concludes that under such circumstances denial is not consistent with the Telecommunications Act if alternative measures can be employed to both hold Verizon accountable for its violations and to also assure that adequate screening is maintained. Those measures are available to the City. A condition has been added to the original conditions of approval requiring the posting of a maintenance bond that the City can use to maintain and/or replace the required screening if Verizon fails to do so. As to accountability, the City has a code enforcement process that enables it to levy fines upon Verizon on a daily basis if it fails to comply with landscaping requirements. TESTIMONY Administrative Appeal - 2 [This summary of oral testimony should not be considered a part of th is Decision. It is solely provided for the convenience of the reader as an overview of testimony. Nothing in this summary should be construed as a Finding of Fact or Conclusion of Law or signifying any priority or importance to the comments of any individual. No representations are made as to accuracy. For an accurate rendition of the testimony, the reader is referred to the recording of the hearing.] September 25, 2018 Hearing: Appellant Rick Cardoza, Applicant Representative Verizon cares about the community and the city. There were issues with the COW but Verizon has addressed the issues. The objective is to screen the base of the facility with both site obscuring and natural vegetation. There is sight obscuring material on the fence surrounding the panels and microwave dish. The power pole in the photo is the power source and is on wheels. The vegetation for screening is now on a maintenance schedule to be watered. Some vegetation is not planted in the ground. Natural arborvitae screens the fence on two sides facing residential areas. They were trying to make the structure fit with the structures currently in the area. The COW mast is like other vertical structures in the area such as PSE poles and light standards behind in the park. They are appealing the city’s decision to deny the second temporary use permit for the COW based on the need to provide adequate wireless services in the community. The initial planning was performed by Verizon Wireless engineering. Mr. Cardoza referenced an aerial photo, provided in the appeal, to demonstrate that Verizon engineering has been looking at various ways to provide adequate service to the area. There are existing sites in a heavy industrial zone and on a central Renton rooftop. They are currently pursuing other permanent sites in Renton to ensure adequate coverage There are two types of antenna technology. Coverage antennas are usually rectangular panels on top of the COW that can transfer signals. Other antennas are microwave dish, which are point-to- point antennas that go from one point to another and require direct line of sight. The more preferred method to get signals to the call center is fiber, but this requires permission from the city. Engineers use search areas to identify properties that would allow the network to work. There are a number of challenges in this area due to topography issues, including hills surrounding the river delta and existing conservation areas, limited use around airfields, and residential zoning. Verizon has already utilized industrial, downtown and commercial zoning. They have been looking for space in residential areas focusing on arterial strips. The City of Renton has been successful in long range planning, but with this come restrictions on zoning and the density of the city that has created demand issues on Verizon network and challenges in locating sites that can be used. Verizon has been working with facilities regarding the use of city property, but policies and procedures for the city need to be developed prior to use. As a result, they are “in a squeeze” which has taken them to the COW on the Bryant Motors property. There is adequate space for the COW and for access to it. The necessary line of site is available. There are no other locations that allow the line of site due to buildings blocking to the south and west, so without using fiber this is not an option. This area works from an RF standpoint. Administrative Appeal - 3 Krystal Taylor, Verizon Engineer Ms. Taylor stated that Verizon has a need for new sites due to coverage and capacity. The signal from current sites doesn’t reach areas where they are adding coverage. These sites need to be shorter sites so they don’t interfere with one another so they will need to add several to replace one. They also want to locate sites closer to where the users are to improve service. The Cedar River COW has a lot of traffic, several antennas and is overcapacity. They need multiple sites to replace this one. Some of the smaller sites up north will work to replace part of this, but they need sites in the south, including the one that is the subject of this hearing In response to questions from the Hearing Examiner, the appellants noted that the city’s condition for adequate screening was not unreasonable. The required landscaping had died out and has now been replaced, as demonstrated in the photos. Carl Bretz, Verizon Engineer Mr. Bretz stated that the COW is located in a key area with high traffic and that cars on the 405 increase demand. The COW is needed to meet existing demand. Verizon has noted a high volume of 911 emergency calls and noted that the COW enhanced coverage and speed for public safety. Mr. Cardoza Mr. Cardoza stated that Verizon cares about the community and he reiterated the importance of essential and adequate service in the local area. Verizon would like further consideration of the use of fiber and siting facilities on city property. He noted the potential financial benefit to city. Verizon continues to actively pursue these options. He cited issues with trying to lease new property that will be adequate for engineering, the checklist of FCC standards for each site, working with land use and building code permits, and optimizing constructions sites to be integrated into the network. He stated that Verizon would like at least a year to continue to utilize this COW site while pursuing other options. City Alex Morganroth, Associate City of Renton Planner Mr. Morganroth summarized the Staff Report. He explained the nature of the site and its zoning, emphasizing that stringent public notice is required. He discussed the timeline from the original temporary use permit. After an extension of the original TUP in 2017, an issue with the landscaping condition occurred. The sight-obscuring vegetation died off and the city received complaints from residents who wanted enforcement of requirements. The city doesn’t dispute the need for Verizon service. The denial was based on failure to meet conditions of landscaping and screening. The city is working with Verizon and already have two land use applications approved in northern Renton. The city has been trying to work to get Verizon’s applications expedited. He noted the volume of public comments regarding this project since it is taking longer than Verizon had initially indicated. He stated that the code allows for a five-year limit, and usually after a year staff reevaluates and listen to public feedback. Administrative Appeal - 4 Leslie Clark, Asst. Renton City Attorney Ms. Clark noted that the distinction in this case is that it is a temporary use permit. The city is arguing that conditions weren’t met. Verizon is arguing that need preempts the temporary use permit. The cit y is not effectively prohibiting services. Regarding using city owned property, when the city is operating as a landowner (instead of in a regulatory capacity) they have no requirements. Mr. Morganroth noted that he can’t speculate on what would have happened if they had complied with conditions with respect to reevaluation of their temporary use permit. He noted that the city had originally been told it would be 6 to 12 months. The conditions need to be in met for the life of the permit. Appellant: Final Comments Mr. Cardoza reiterated the importance of public safety in processing the 911 calls. Verizon considered moving when denied the extension but decided not to move due to the level of 911 calls in that space. Verizon is currently in compliance and the landscaping in question has a continuous watering system in place. October 23, 2018 Rehearing: Rick Cardoza on behalf of the Applicant testified that Verizon needs to augment its services using the proposed COW as a temporary stop gap measure. The proposed COW is needed to fill the coverage gap in the area per RF justification of the site in order to provide adequate services until Verizon is able to complete installation of three permanent sites in adjacent areas. The COW is also necessary to provide needed line of sight for a donor site for backhaul interconnect. The COW currently meets all prior conditions. Verizon is prepared and wishes to apply for a new temporary use permit if warranted but hasn’t yet filed such an application. Verizon is working with the City on a franchise agreement that would allow deployment of small cell technology within right of way. However, those efforts may take several months before permits could even be filed. The time frame for that option is over a year. Consequently, Verizon needs the COW for approximately 18 months. In response to examiner questions, Mr. Cardoza noted that the COW is still operating at the site subject to the temporary use permit under appeal. EXHIBITS The exhibits entered into the October 23, 2018 hearing were the following: Exhibit 1 Verizon Appeal, including all exhibits Exhibit 2 Four Photos of the COW Exhibit 3 Email dated August 6, 2018 from Mr. Cardoza Exhibit 4 Staff PowerPoint Administrative Appeal - 5 Exhibit 5 2018 Temporary Use Decision; LUA18-000405 Exhibit 6 2017 Temporary Use Decision; LUA17-000465 Exhibit 7 Hearing Recording of September 25, 2018 hearing FINDINGS OF FACT 1. Decision Under Appeal. Verizon has appealed a July 17, 2018 decision by the City of Renton to deny an application for a Tier 2 Temporary Use Permit to extend the amount of time that a Verizon Cellular Tower on Wheels (COW) is allowed to remain on property located at 111 Meadow Lane Ave N. A Temporary Use Permit for COW was originally approved on October 6th, 2017 for six months with a right to request a three month extension. City staff approved the three month extension on April 6, 2018 with an expiration date of July 6, 2018. The decision under appeal, Ex. 5, denies an additional request by Verizon to extend the expiration period beyond July 6, 2018. The City denied the second extension request because Verizon failed to comply with conditions requiring screening of the facility. Landscaping required to screen the facility had died and required fencing to screen the facility had been tagged. Beginning in January of 2018, Staff contacted the applicant multiple times with regards to the condition of the screening, but the health of the plants did not improve and eventually all plants died due to the lack of maintenance. As to the fence screening, the applicant was required to provide a slatted/screened chain link or cedar fencing as a condition of the original permit. Staff notified the applicant that graffiti was found on the chain-link fence screening material a few months after the permit was approved. The applicant removed the material but did not replace it, leaving only the chain-link fence which did not meet the condition of approval for screening of the equipment. The City has received numerous complaints from neighbors regarding the screening. Verizon explained that it had used the wrong type of vegetation for the screening, since the COWs location didn’t allow for any ground disturbance. By the time of the September 25, 2018 appeal hearing Verizon had replaced the dead vegetation and installed the required fence screening. 2. Hearing. A hearing on the subject appeal was held on September 25, 2018 at the Renton City Hall Council Chambers, 1055 South Grady Way, Renton, WA 98057. After the close of the hearing City staff discovered that they had not properly advertised the hearing. Consequently, the hearing was re-held on October 23, 2018 after proper advertising. The only persons who attended the October 23, 2018 hearing were City staff and the applicant. The exhibits and hearing recording of the September 25, 2018 hearing was admitted into the October 23, 2018 hearing. 3. Project Description. The base of the COW is approximately 6' x 14' in size. The total leased area is approximately 30' x 35'. The COW mast holds three panel antennas and a microwave antenna, with a total max height of 40 feet (40’). Three ecology blocks are attached to the COW using guy lines to increase stability. 4. Coverage Requirements. Verizon submitted both testimony from its engineers and written documentation, Ex. 1, that the COW is necessary to fill coverage gaps for wireless and 911 communications. Verizon also presented evidence that no other sites currently available to fill Administrative Appeal - 6 these coverage gaps, although it is constructing permanent facilities that will render the COW unnecessary in the future. The City did not contest this evidence. It is determined that the COW is necessary for Verizon coverage until the permanent facilities are in place and that there are no alternative sites currently available to fill the coverage gaps. 5. Timing of Alternative Sites. The decision under appeal, Ex. 5, asserts that “[d]uring the time in which the original TUP was issued, the applicant applied for three permanent wireless facilities within the City. Based on these applications, the need for a temporary facility is no longer necessary as indicated in the original application.” During the appeal hearing, the Appellant disputed this assertion, stating that the three sites are still under construction and will take at least a year to complete. The City did not dispute this position. Given that the Verizon witnesses were in a better position than the City to know the construction status of the permanent sites, given that the Verizon testimony was under oath, and finally given that the City didn’t dispute the Verizon testimony on this issue, it is determined that the permanent sites will not be available for at least a year. Administrative Appeal - 7 CONCLUSIONS OF LAW 1. Authority of Examiner: Tier II temporary use permits qualify as Type II review pursuant to RMC 4-8-080(G) that is subject to open record appeal to the hearing examiner. 2. Permit Denial Under Telecommunications Act Arguably Prohibited If Other Measures Can be Taken to Ensure Zoning Code Compliance while Holding Verizon Accountable for Violations. The Telecommunications Act arguably prohibits denial of the requested permit extension if measures can be reasonably imposed to assure compliance with permitting criteria while also holding Verizon accountable for violating conditions of approval. 47 U.S.C.A. § 332(c)(7)(B)(i)(II), a section of the Telecommunications Act of 1996, provides that that state or local regulation governing placement and construction of personal wireless service facilities “shall not prohibit or have the effect of prohibiting the provision” of such services. At the same time § 332(c)(7)(A) provides that “[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” This appeal presents a unique situation where § 332(c)(7)(B)(i)(II) and § 332(c)(7)(A) are in direct conflict with each other. The federal courts have issued several opinions elaborating upon how to apply the § 332(c)(7)(B)(i)(II) prohibition against using local regulation to prevent provision of wireless services. For denial of permits, the courts have ruled that the applicant has the burden of showing the lack of available and technologically feasible alternatives. T-Mobile USA Inc. v. City of Anacortes, 572 F.3d 987, 996 (2009). In this appeal, as determined in Finding of Fact No. 4 and 5, it is uncontested that Verizon doesn’t have feasible alternatives to provide full cell phone coverage. At the same time, however, the City’s screening requirements were imminently reasonable and Verizon should not be allowed to ignore their application with impunity under the guise of coverage necessity. Verizon can easily comply with the screening requirements without compromising its ability to provide service. § 332(c)(7)(A) authorizes a City to make decisions regarding the “modification” of wireless service facilities if those decisions don’t prevent coverage. The City’s decision to require the screening does not prevent coverage except when Verizon chooses to ignore that requirement. The conflict between § 332(c)(7)(A) and § 332(c)(7)(B)(i)(II) can be resolved without resorting to permit denial by employing measures that hold Verizon accountable for permit violations while also assuring permit compliance. When past code compliance issues are handled in this manner, the authority of the City to impose reasonable zoning standards is preserved while at the same time enabling wireless service providers to provide full coverage. 3. Permit Denial Overturned Because Alternative Measures can Be Used to Assure Adequate Screening without Precluding Service Coverage. The decision to deny the temporary use permit under appeal is reversed because alternative measures are available to provide for adequate screening. Administrative Appeal - 8 The City’s bases its decision to deny on violation of one permit criteria, RMC 4-9-240(J)(1), which requires that “[t]he temporary use will not be materially detrimental to the public health, safety, or welfare, nor injurious to property or improvements in the vicinity of the temporary use.” See Ex. 5. City staff found that the unsightly aesthetics caused by the failure of Verizon to maintain required screening created impacts that were materially detrimental and injurious as contemplated by RMC 4-9-240(J)(1). Verizon does not dispute that when the screening wasn’t maintained, it violated RMC 4-9-240(J)(1). However, as determined in Conclusion of Law No. 2, to ensure consistency with the Telecommunications Act denial should only be exercised if there are no reasonable alternative measures that can be imposed to assure zoning code compliance while also holding Verizon accountable for violations. Those alternative measures are available here. Specifically, a condition requiring the submittal of a maintenance bond will be added to the original conditions of approval. If Verizon fails once again to properly maintain the screening, the City can use the bond proceeds to do the maintenance at the expense of Verizon. Further, the City has its code enforcement tools to hold Verizon accountable for continued violations. RMC 1-3- 1E provides that each day of violation constitutes a separate day of violation, enabling the City to accumulate significant fines over time if Verizon once again fails to maintain screening. DECISION The LUA18-000405 decision to deny Verizon’s request for a Tier II permit extension is reversed and Verizon’s request to extend the temporary permit is approved for an expiration date of January 6, 20201 subject to the following additional condition: Verizon shall post a bond in an amount determined by City staff found to be sufficient to cover the costs of maintaining and replacing the landscape and fence screening required for the proposal, including any administrative and legal expense potentially incurred by the City in executing on the bond. The City shall have the right to execute the bond should Verizon fail to remedy any maintenance or replacement issues within ten calendar days’ notice from the City. Verizon shall replenish the bond within 30 days of execution as necessary to maintain the full bond amount over the duration of the temporary use permit. Decision issued November 7, 2018. Hearing Examiner 1 None of the exhibits or testimony of the administrati ve record identify the amount of additional time requested by Verizon for LUA18-000405. The 18 month extension is based on Verizon testimony that appears to be the maximum amount of time necessary for use of alternative sites. If Verizon’s request in LUA18-000405 was less than 18 months, this decision shall be construed as limiting the expiration period to the lesser amount of time. Administrative Appeal - 9 Appeal Right and Valuation Notices RMC 4-8-080(G) provides that hearing examiner decisions on appeals of Tier II Temporary Use permits are subject to closed record appeal to the Renton City Council. Appeals of the hearing examiner’s decision must be filed within fourteen (14) calendar days from the date of the decision. A request for reconsideration to the hearing examiner may also be filed within this 14-day appeal period. Affected property owners may request a change in valuation for property tax pu rposes notwithstanding any program of revaluation.