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HomeMy WebLinkAboutD_Recon of Temp Use Permit Appeal Revised II-- Verizon_181228.pdf Administrative Appeal - 1 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON DECISION FILE NUMBER: LUA18-000405 SITE ADDRESS: 111 Meadow Lane Ave N Renton, WA APPLICANT : Verizon represented by Rick Cardoza, LDC Engineering TYPE OF CASE: City Request for Reconsideration of Final Decision of Appeal of Decision to Deny Tier 2 Temporary Use Permit DISPOSITION Reconsideration Denied Except for adoption of deadline for bonding requirement. Summary The City of Renton requested reconsideration of the November 7, 2018 Final Decision of the above-captioned matter on November 21, 2018. The Final Decision reversed a City decision to deny a temporary use application for the continued siting of a cell-on-wheels (COW) facility. In the alternative, the City requested that a deadline be set for a bonding requirement imposed by the Final Decision. The request for reconsideration is denied except for the adoption of a bond filing deadline. The bond required by the November 7, 2018 Final Decision shall be filed with the City by January 11, 2018. Background The City filed its motion for reconsideration on November 21, 2018. The Appellant filed a response to the motion dated December 5, 2018. The City was given an opportunity to file a reply on December 12, 2018 but chose not to do so. Review of the City’s motion for reconsideration is limited to the City’s motion and Appellant’s response in addition to the administrative record of the November 7, 2018 Final Decision of the above-captioned appeal. Analysis One of the reasons the City’s denial of the temporary use permit was overturned was because the denial would have the effect of precluding cell phone coverage as prohibited by the Telecommunications Act of 1996. In its motion for reconsideration, the City asserted this conclusion was in error because there was insufficient evidence to support a finding that alternative locations were unavailable to fill gaps in coverage. This is incorrect. Rick Cardoza, Verizon’s representative at the hearing, testified that there are no other potential COW locations Administrative Appeal - 2 that allow for required line of site coverage to fill coverage gaps due to buildings blocking to the south and west. Mr. Cardoza is a member of an engineering firm hired by Version to assess tower locations. Mr. Cardoza’s comments and findings in this regard were never disputed by the City as noted in the Findings of Facts of the Final Decision. Consequently, the preponderance of evidence of the administrative record compels the finding that there is no other alternative location available for placement of a COW to fill the gap in coverage currently covered by the COW under appellate review. The testimony of Mr. Cardoza on this issue also constitutes substantial evidence establishing no alternative sites, since he disclosed that an analysis of available sites had been conducted, he likely qualifies as an expert witness as a member of engineering firm and his testimony was undisputed and subject to cross-examination. Since it is somewhat questionable whether the Examiner had the authority to consider compliance with the Telecommunications Act of 1996, this opportunity is taken to clarify that temporary permit denial was in error with or without application of the Telecommunications Act. As noted in the November 7, 2018 Final Decision, the criterion used by the City in denying the temporary use application was 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.” Compliance with the Telecommunications Act of 1996 is arguably pertinent to what is detrimental to public welfare and that is why it was considered in the Final Decision. Certainly, the City is better off in assessing compliance in its administrative review process instead of having to deal with the issue for the first time in a federal court lawsuit from the Applicant. Even if the Examiner had no authority to apply the Telecommunications Act of 1996, the permit still should not have been denied. The City’s only issue with the proposed COW was past failure to comply with permitting conditions. The City never took the position that remaining in the same location for an additional period of time would by itself be materially detrimental to public health, safety and welfare; nor is there any evidence or reasonable inference to be made that, as conditioned by staff, the continued use of the COW would be materially adverse. Further, there was no compelling evidence that bonding and aggressive use of the City’s code enforcement process (which includes permit revocation, see RMC 1-7-1(F)) would not be sufficient to ensure compliance with permit conditions. Given the importance of cell phone and 911 coverage to the public health, safety and welfare, using permit denial as an enforcement tool for past noncompliance issues is not a compelling reason for denial under RMC 4-9-240(J)(1). In short, with or without consideration of the Telecommunications Acts of 1996, the temporary use permit application should not have been denied. In its motion for reconsideration the City requests that a deadline be set for a bonding requirement set by the Final Decision. This is a reasonable request that was not contested by the Applicant in its response. The request to set a bonding deadline is approved and the bond required by the Final Decision shall be filed with the City by January 11, 2018. Decision The City’s November 21, 2018 motion for reconsideration is denied except that the bond required by the November 7, 2018 Final Decision of this matter has a filing deadline with the City of January 11, 2018 Administrative Appeal - 3 Decision issued December 28, 2018. Hearing Examiner 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. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.