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Home My WebLink AboutLUA-07-065_Report 1Chuck and Fran Gitchel 440 I SE 3'ct Place Renton, 98059 T-Mobile is tiying to put this monopole in the comer of our front yard. You have our letter dated July 18'\ 2007in your file so I will just touch on some of the areas and give you an update with this letter. My Background: During the Vietnam War I enlisted in the Air Force (Active Duty) and was trained in electronics as a Radar Repairman and later in the Air National Guard Reserves as a Radio-Telephone Communications Technician. T was taught extensively the dangers of frequency radiation. I was taught that frequency radiation greatly increases the risk of medical problems like cancer, brain tumors, birth defects, sterilization ... the list goes on. The question has and still is "How much is too much?" ln the past, some militaiy men stood near antennas because it made them warm. Further research led to the invention of the microwave oven. Microwave ovens are built with a metal casing and screening in the oven door to help block the radiation from harming you. Microwaves, cell phones, radio and television antennas all use frequency radiation. The dangers exist in all cases. Known Radiation Hazard: Four representatives ofT-Mobile were in our neighborhood again 2 weeks ago. My wife and I confronted them. During our short conversation, T corrunented on the radiation hazards of this proposed tower. We were told that, I quote: "It's not as bad as holding the phone up to your headl" The cell phone companies know how harmful these frequencies are to our health. Microwave ovens have a veiy small transmitter that can boil water, bum meat and catch paper on fire. By their own admission cell phones held up to your head are harmful. Yet we're supposed to believe that a ten foot long vault full of equipment, transmitting to hundreds or thousands of cell phones continuously is not producing enough radiation to be harmful. Common sense tells us otherwise. If you are too close to these towers, it is like having you and your children being completely covered with transmitting cell phones, all the time, day & night. It doesn't end until you get away from the antenna. 45 feet is too close to any home' Cell phone companies only care about the bollom line. They remind me of the tobacco company's years ago with their bogus reports. Are you gullible enough to believe them? Would you take a chance with your children or grandchildren's health1 My wife and I will not' No responsible person or company would knowingly gamble with anyone's livest Falling Hazard: If this monopole is allowed to be placed on the comer of our front yard it would only be 45 feet from our house and 25 feet from our carport. We have a drug house in our neighborhood that's been there 18 years or more. All the surrounding neighbors and the Renton Police arc aware of it. It only takes one druggy to hit and break off that pole bringing it down on our house. Vault Location: Shortly after submitting our letter July 18'1\ my wife and I were sitting in our front room and could tell that something was going on near our house. A person hired by T-Mobile was digging a hole for a soil sample at the proposed vault location. That's when we realized that this vault, with day and night access would be about 25 feet from our bedroom (the length of a pick-up). We would probably hear the equipment running when we put our heads on the pillow. There would be nights that we would be woke up and kept awake by repairmen. It is unbelievable to me that I-Mobile was even allowed to apply for a permit in this location. Environmental Study: I went to the City Clerks office to appeal the Environmental Study. Bonnie called Jill Ding. After several minutes Bonnie told me I didn't need to appeal this decision because T-Mobiles permit was denied and that the Environmental Study pertained to birds and such. On her advice I did not appeal. Hind site, Maybe I should have. But I do not know all the rules and procedures to fight this nightmare. I have to rely and trust the information 1 am told by the professionals at the City of Renton. Real Estate Value: When T-Mobile first applied for this permit, I sat down with Jill Ding in the Renton Planning Department. During our discussion 1 told her that this tower would lower our property values. She responded by saying, We don't know that. l asked her if they wanted letters from appraisers. She said no ... Statements from Real Estate people would be all that is needed. I trusted her judgment. You have in your possession several letters from Real Estate professionals stating that this tower would drastically reduce property values. You also have a letter from Stephen Ames. He is a Certified Residential Specialist and Associate Broker for Prudential NW Realty in Federal Way. We met him through a relative and to my knowledge he has never lived in Renton. We did not pay him to write a letter in our behalf Mr. Ames has a long list of credentials including testifying in court as a Real Estate expert. He has a lot of information in his letter. I'll share with you part: "Controversy on the internet and in libraries concerning EMF and other forms of radiation, radiation fall-out, and rads is as wide-spread as the topics themselves. Whether or not there is a direct threat to people's health, the perception of the risk involved is of significance. As you well know, your perception of things is your connection to reality for you -right? Well, to be honest. this is true for most everyone. A buyer who perceives the risk, whether real or imagined, will usually avoid it, which means no sale for you if you are trying to sell, regardless of the price, because life is not worth money to most people -there's no exchange rate." He ends his letter: "The tower presents a very real blockage to your ability to sell your home at any price." Anyone, with any common sense, would know that placing a 60-foot tower in your front yard, 45 feet from your house, would lower your property value. But he's saying our home would be worthless! T-Mobile Unethical: During our conversation with the T-Mobile representatives 2 weeks ago, I asked them why they were still pursuing this location rather than asking the City Council for a variance for the site at the end of Union Ave. ( 450 Union Ave). After a short discussion, we were told that they are using this appeal to present their case to the City Council to allow them to put the tower there (Meaning the end of Union Ave). The wording in their appeal and what they have just said proves this. T-Mobil is using all ofus here as pawns. Their past and present arrogance, actions and techniques are disgusting. T-Mobile should be banned from doing business in the City of Renton. Please: This whole situation is a nightmare. We could loose our home equity. My wife and I are not physically able to start over. PLEASE STOP T-MOBILE. _ \ ( , , dJ~ 1~-~ Chuck and Fran Gitchel ' July 17, 2007 Stephen T. Ames, CRS Associate Broker Prudential NW Realty Assoc. LLC 622 S. 320th St. Federal Way, WA 98003 Charles and Frances Gitchel 4401 SE 3rd Pl Renton, WA 98059-5140 Dear Chuck and Fran: Per your request, I am writing you this letter to render my professional opinion concerning the marketing effects of a cell tower on or near your property. Licensed in Real Estate in 1975, and a broker since 1979, I have had many experiences including being an expert witness in court, liquidation of large receivership estates for the courts, as well as owned and operated my own firm, and managed others. During the 32+ years I have been in the field of Real Estate, I have achieved and been awarded CRS designation (Certified Residential Specialist) by the National Association of Realtors since 1999, which is only held by some 25,000 agents across the country. I have been ranked in the top 1% internationally since 1996 while with Coldwell Banker, and Top GOLD Producer since being bought-out by Prudential, both the very top ranks achievable. My full credentials are listed below. During the last few years, the saturation of interest and activity in the arena of real estate has become higher than ever. The advent of increased access to information through the internet has made the industry a full disclosure enterprise. Full disclosure is in at least two forms: (1) Selle~s disclosure of what they know to be defective about their property; (2) Buyer's discovery of defective aspects of a property by way of inspection and other forms of due diligence. The latter of the two means of disclosure poses the most difficulty for you in the sale of your home should there be a tower placed on it: discovery. This process includes the Buyer being able to research all aspects of possible threats to their quality of life should they purchase your place. Controversy on the internet and in libraries concerning EMF and other forms of radiation, radiation fall-out, and rads is as wide-spread as the topics themselves. Whether or not there is a direct threat to people's health, the perception of the risk involved is of significance. As you well know, your perception of things is your connection to reality for you -right? Well, to be honest, this is true for most everyone. A buyer who perceives the risk, whether real or imagined, will usually avoid it, which means no sale for you if you are trying to sell, regardless of the price, because life is not worth money to most people -there's no exchange rate. This is not the whole story, however. When it comes to Buyers and Agents, it is the Agent's responsibility to point out known defects or possible defects that would likely be in question even before showing the house to a prospective purchaser. What this means to you is, you won't even get showings as a result of the potential risks to health in the .. • •. ownership as perceived by the professionals who "weed-out" properties that would not be to a Buyer's liking, or would pose potential risks to the Buyer and/or that Agent who could be sued later for what he or she should have known, even if the Buyer did not know at the time. My advice to you is to not allow the tower to go on or near your property, to assure you highest and best use and ultimate value from your property. Should you wish to have me further attest to these factors, I will gladly assist you. The tower presents a very real blockage to your ability to sell your home at any price. Very truly yours, Stephen T. Ames, CRS Associate Broker Prudential NW Realty Assoc. LLC 622 S. 320th St. Federal Way, WA 98003 0: 253.765.2327 C: 206.498.2637 F: 253.839.7066 CREDENTIALS Real Estate Sales License 1975 -Associate Broker of Real Estate License 1979 NAR Certified Residential Specialist (f.:_g_~) Certified 1031 Exchange Specialist -Certified Previews® & Luxury Properties Specialist -Chairman's Circle Office Top Agent 96-06 Chairmen's Circle Gold Producer 96-06 -NAR / WAR / SKAR Realtor® Member -Member NWMLS (Nation's Largest MLS) Member CSA (Commercial Broker's Assoc) I'm writing this letter to you today in hopes that you will be able to share its message at the Public Hearing today. First, the idea that a large corporation like T-Mobile would request permission to put a cellular tower in the middle of a residential area is disturbing to say the least. I've researched cell tower locations on line through several different sites that keep track of this information. Predominantly, cell towers are located on main traffic areas such as Sunset Blvd and NE 41h street. other sites that are off the main roads are located near either business complexes or city owned and operated complexes. It is important to mention that cell companies are not required by law to report these locations to these internet sites that gather this information, so the information is not necessarily complete. However, I'm certain that my neighbors and l can all say with confidence that there are no cell towers located in the new developments in our area. The location T-Mobile is seeking demographically speaking has many older couples interspersed with younger Asian, Hispanic and African American families. The houses in our neighborhood are a $100,000 less in value than those in the new developments. These facts lead to a very troubling conclusion. This has all the appearances of a large company pushing for something far worse than eminent domain. For in that scenario, the party suffering loss must be compensated. However, in this circumstance should the City of Renton decide to approve this deal with T-Mobile, you would have a much worse outcome. Many elderly couples will lose the equity in their homes that they were probably counting on in retirement. The young families who purchased these older homes as a starting investment will see that investment lose value as well. This cell tower proposal is just plain wrong on many different levels. If the City of Renton and T-Mobile cannot see how wrong this is given the facts, then it will be necessary to take our case to the National Cable programs. I'm confident that people across the nation would feel the same indignation that me and my neighbors feel regarding a large company joining with City planners in what amounts to robbing its citizens whom they should be protecting and serving. Fran and Chuck please let me know what the outcome is regarding this. If T-Mobile does not withdraw its proposal, let me know and l will attempt to contact the producers of the O'Reilly Factor and Hannity & Co/mes. Again, this is far worse than eminent domain. This is willful destruction of property and the lives of people who do not have the financial or political power that T-Mobile, Land Developers and the City possess. Best regards, Steven Cheesebrew 4229 SE 3'• St Renton, WA 98059 p.s. I have a clear view of the power pole where this tower would be placed from my patio door. /2-/8-07 December 17, 2007 City of Renton/ T-Mobile Public Hearing RE: Proposed T-Mobile Cell Tower at SE J"' Place & Anacortes Ave SE Dear Renton Planning Department: As residents in the Heather Downs community, we are writing to express our objection to the construction of a cell tower in our neighborhood. We reside at 4215 SE 3"' Street, located just one street behind the proposed cell tower site. It has come to our attention that T-Mobile has not accepted the decision from the Renton Planning Department, which turned down a request for building a monopole at the comer of SE 3"' Place and Anacortes Avenue SE and that T-Mobile is attempting to repeal the department's decision. While we are T-Mobile customers, we side with the Renton Planning Depara,,ent. These poles are an ugly eyesore, and while necessary for the ever growing oommunication industry, they should be placed strategically in locations away from residential homes and neighborhoods. Constructing monopoles on commercial property or at the end of sparsly populated streets would be a far better solution than right in the middle of our neighborhoods 1 It has also come to our attention that the property owners at this site are objecting the construction, as well. This is even more disturbing, because that means that your property, or ours, could be next. Please do not condemn our property for the construction of unwanted towers in our neighborhood. Sin. cerely, ,. / / '" .--~ ~~,,/·--'' _') Steve & Sharon Sharp Residents of Heather Downs Since 1997 42 I 5 SE 3,d Street Renwn, WA 98059 Monday, December 17, 2007 Attention: Renton Planning Department I, Patricia Gloster, resident and homeowner at 4217 SE 3rd Place, Renton, WA 98059 oppose the installation of the T-Mobile monopole at SE 3rd Place & Anacortes Ave SE. I purchased my home 2 years ago to build equity for future retirement. If this pole goes up one block from my home it will not only be un-sitely, but also will reduce the value of my home and my future. This is not acceptable. We should have a choice. I am a T-Mobile customer, I would like better reception, but if this pole gets installed at the proposed location, I will not renew my contact, I will choose a different carrier for my cellular phone service. Sincerely, Patricia Gloster Homeowner 4217 SE 3rd Place Renton, WA 98059 206-372-1341 The Renton Planning Department: To Whom It May Concern; I am writing this letter in response to our neighbors request for support of their protest. The planning department has denied the T-Mobile company request to install a cell phone tower at the comer of SE 3rd Place and Anacortes Ave SE. Please deny the appeal! As a resident of this neighborhood for 35 1/2 years I, along with many others, do not want our area degraded with the installation of a tower by a company that only wants to increase their profit. This is without taking into account the probable effect on the value of the property surrounding that tower. As the participants of this meeting are stressing, the effect could be very bad. This in light of the county increasing the assessed value of each property about 1 Oo/o per year. It would be a real tragedy if a person trying to sell their home in this area would have a lot of trouble if that tower is a major factor in a buyer's decision. The cell phone company can build their towers on other properties to support their needs. They do NOT have to build in a quiet neighborhood like this one. The owners have worked diligently over the years to maintain the quality they have now. Please do not allow it to be degraded by this problem. Thank you for your time and consideration. Sin~rely / / -j / /{u/0,.,( /r; ~ Richard K Christian 4226 SE 3rd Street December 16, 2007 TO: Renton City Council Regarding: T-Mobile tower placement on 4401 SE 3rd Pl Dear Madame Mayor and City council members, It was brought to my attention, from one of our neighbors, that T-mobile would like to place a cell phone tower in front of our neighbor's home on a city right-of-way. I would like to formally oppose any such precedence not just in our neighborhood, but for all of the residential area in Renton. First, let me describe our neighborhood. In the immediate area are small, older homes built in the late 50's and early 60's with good size lots. lt is multicultural, multigenerational, we wave to each other, look out for each other, kids of all ages play together. We love our neighborhood and have stayed in our small rambler for 15 years, because of the people in this neighborhood. We also don't have sidewalks, code enforcement is a little slack and the Renton Reporter won't deliver to our home. l find it highly inappropriate to place a commercial pole in the center of a residential area. I imagine T-Mobile wouldn1 think of placing it in the new expensive home developments just to our east (which are more elevated). There are commercial zoned areas just north of us on NE 4th within a half-mile of their current site. T-mobile is a business. Many long-time residents will see their investments in their homes values drop, and that could affect their finances when they must move to more assisted living. T- mobile will profit from their loss, and ours. I already must endure a beaming, blinking red light from a tower placed some distance west ofmy house, I can't imagine having to endure it so close to the south also. Please consider our appeal to keep this seasoned neighborhood residential, not T-mobile's appeal to profit from our losses. Thank you. Sincerely, q:y o' ·o~~·· .:lm • ·~e: '(~.N'fq, CITY OF RENTON Office of the City Clerk 1055 South Grady Way-Renton WA 98057 c)t,Q ADDRESS SERVICE REQUESTED ,_.{ \ (p6 .Ii' cJ-"'. o'l, 0 . u-{\ v-lY1' / •, ()0-0' CY VJ Kevm toy o"' ~5 00 ..... au"' a:"' 11.U: • Qi}';,,'fSPQs>;;,,.. /:?~~ , ___ z ·~~, :) ._PITNt 02 1M $ 00.394 0004249545 JUN 11 2008 MAILED FROM ZIPGODE 98134 CITY OF RENTON JUN 2 3 2008 Wireless Facilities, Inc. RECEIVED CITY CLERK'S OFFICE 575 Andover Park W, Ste; #201 Tukwila, \VA 98188 7 j, E:: --· :=·=~VJM3:i,~'±i j, 1:3 980 LFE l 60ec 00 06/22/08 RETURN TO SENDER :WIRELESS FACILITIES INC MOVEO LEFT NO ADDRESS UNABLE TO FORWARD RETURN TO SENDER ec~ saos7:ri:2:s.2.s.s *'.2-589-.:t.o.s~.2-:~.2-.1.7 ! I, I nL,! ,11 ·,, .. 1,1,!mlnll ,n! ,! , ,11,,,1 ,hU, ,I ,I," ,I I I CITY -F RENTON· (\'Y 'o~'\c/~Ro,. + ..ii . . + City Clerk. jl-. .K Denis Law, Mayor Bonnie I. Walton· . ?FNcroi;------------------...... ---................ -- June I 0, 2008 Michael Cady T-Mobile USA, Inc. 19807 North Creek Pkv;,y., 2nd Floor Bothell, WA 98011 Re: T-Mobile Monopole Conditional Use Penni!; CU,07-065 SE 3rd Pl. and Anacortes Ave. SE Dear Mr. Cady: At the regular Council meetingofJunc 9, 2008, the Renton City Council adopted the recommendation of the Committee of the Whole affirming the decision of the Hearing Examiner who affirmedthe Administration's denial of the conditional use permit. A copy of the approved Committee report is enclosed. For additional inforrn?tion or assistance, contact City Clerk Bonnie Walton: Sincerely, Michele Neumann Deputy City Clerk Enclosure cc: · MayorDenis Law. Council Presiden.t Marcie,Palmer Neil w·atts, Development Seiv-i.ccs Director Parties of Record (36) -l-05_5_S_o_ut_h_G-,a-dy-W-ay---R-e-nt-on-,-W-a-,h~in-:-gt-,-o-n..,.9_8_05-7---(4_2_5)_4_3_0_,-65_1_0_/._FA_x_·_(4-25_)_4_30--6-5-l-',-6 •~ ~ -_ -AHEAD.OF THi CURVE \:I This paperi:ontains 50% recycle,j material, 30% post consumer • APPROVED BY CITY COUNCIL Date b/1 pot7r3 ' COMMITTEE OF THE WHOLE REPORT June 9, 2008 T-Mobile Conditional Use Permit Appeal File LUA-07,065,CU-A,ECF L---------~-("-R-'--'e-=--fe'--'-rre_cl___f\p"'n=-·1--'-7'-'' 2"--'0'---'0--'-8"----) ------------" This appeal was referred by the Planning & Development Committee to the Committee of the Whole to determine the issue of jurisdiction to hear this appeal and, if necessary, the substantive issues of the appeal. Subsequently, T-Mobile filed a brief raising the issue of the applicability of §253 of the Telecommunications Act to this application and appeal. The Committee of the Whole recommends that the City Council take the following action: I. Find that the Council does not have the authority to consider alleged violations of §253 of the Telecommunications Act as the Council's jurisdiction is derived from an appeal from the Hearing Examiner and neither the Hearing Examiner nor the City Council has the authority to consider the validity of provisions of the City Code under the Telecommunications Act. 2. Deny the City's Motion to Dismiss this appeal for lack of jurisdiction. The Committee feels that the issue of jurisdiction should have been raised earlier, before the Hearing Examiner, and in the interest of fairness to T-Mobile, the Council should hear and rule upon the merits of this appeal. 3. Affirm the decision of the Hearing Examiner as the Appellant T-Mobile has failed to meet its burden to establish that the Hearing Examiner's decision was based upon a substantive error of fact or law. ?rJ~~- Marcie Palmer, ~uncilPresident Chris-Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Kevin Foy Wireless Facilities, Inc. 575 Andover Park W, Ste: #201 Tukwila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4th Street Renton, WA 98055 Van Slaughter 4409 SE 3rd Place Renton, WA 98059 Alvin & Jacqueline Courtney PO Box 2653 Renton, WA 98056-0653 John Ehle 406 Anacortes Avenue SE Renton, WA 98059 Roger & Bickey Berry 4405 SE 3rd Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3rd Place Renton, WA 98059 Cory & Lori Foster 4413 SE 3rd Place Renton, WA 98059 Pauline Blue 420 Chelan Avenue SE Renton, WA 98059 Mike Cady 575 Andover Park W, Ste. 201 Tukwila, WA 98188 T-Mobile USA 19807 North Creek Parkway Bothell, WA 98011 Newton & Joyleen Ellifiits 4218 SE 3rd Place Renton, WA 98059 Stephen Northcraft 4209 SE 3rd Place Renton, WA 98059-5144 Victor Bloomfield & Jennifer Skuk 4418 SE 3rd Place Renton, WA 98059 John Megow 4408 SE 3rd Place Renton, WA 98059 Terry Clangh 4503 SE 3rd Place Renton, WA 98059 Tapke V cl qui st 4309 SE 3rd Street Renton, WA 98059 Gail & Anthony Knell 4425 SE 3rd Place Renton, WA 98059 Doug Mears 4308 SE 3rd Place Renton, WA 98059 Kevin Durning 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Chuck & Fran Gitchel 4401 SE 3rd Place Renton, WA 98059 Lewis Sezto I 087 5 Rainier A venue S Seattle, WA 98178 Greg Schoendaller 4408 SE 4th Street Renton, WA 98059 Michael, Debby, & Hannah Ekness 4400 SE 3rd Place Renton, WA 98059 Joel G. Smith 349 Anacortes Avenue SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3rd Place Renton, WA 98059 Joel & Heidy Barnett 4212 SE 3rd Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4th Street Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3rd Street Renton, WA 98059 Joyce-M. Crock 414 Chelan Avenue SE Renton, WA 98059 Jeremy & Jill Peery 4432 SE 4th Street Renton, WA 98059 Linda Atkins Davis Wright Tremaine 777 J08'h Ave NE #2300 Bellevue, WA 98004 James S. Dalgleish 407 Anacortes A venue SE Renton, WA 98059 Chandra Lindquist 251 VashonAvSE Renton, WA 98059 Ann Nielsen, Assistant City Attorney City of Renton Bonnie Watson Keller Williams Realty 615 E Pioneer ste: #203 Puyallup, WA 983 72 John Worthington 4500 SE 2"d PL Renton, WA 98059 Neil Watts, Dev Services Dir. City of Renton I June 9, 2008 Monday, 7 p.m. CALL TO ORDER ROLL CALL OF COUNCILMEMBERS CITY STAFF IN ATTENDANCE APPEALS Committee of the Whole Appeal: Monopole Conditional Use Petmit, T-Mobile, CU-07- _2.0-. Planning & Development Committee Appeal: RTC Short Plat, Voght, SHP-07-088 RENTON CITY COUNCIL Regular Meeting MINUTES Council Chambers Renton City Hall Mayor Denis Law called the meeting of the Renton City Council to order and invited Evan Bradley with Boy Scout Troop 725 to lead the Pledge of Allegiance to the flag. Haydon Truitt introduced the troop and thanked Council for the opportunity to attend the meeting. MARCIE PALMER, Council President; DON PERSSON; KING PARKER; TERRI BRIERE; RICH ZWICKER; GREG TAYLOR; RANDY CORMAN. DENIS LAW, :'v1ayor; JAY COVINGTON, Chief Administrative Officer; MARK BARBER, Assistant City Attorney; MICHELE NEUMANN, Deputy City Clerk; GREGG ZIMMERMAN, Public Works Administrator; ALEX PIETSCH, Community and Economic Development Administrator; PREETI SHRIDHAR, Communications Director; PETER HAHN, Deputy Public Works Administrator -Transportation; DEPUTY CHIEF ROBERT VAN HORNE, Fire Department; DEPUTY CHIEF TIM TROXEL, Police Department. Council President Palmer presented a Committee of the Whole report regarding the T-Mobile Monopole Conditional Use Permit appeal. The appeal was referred to the Committee of the Whole to determine the issue of jurisdiction to hear this appeal, and, if necessary, the substantive issues of the appeal. Subsequently, T-Mobile filed a brief raising the issue of the applicability of Section 253 of the Telecommunications Act to this application and appeal. The Committee of the Whole recommended that the City Council take the following action: 1. Find that the Council does not have the authority to consider alleged violations of Section 253 of the Telecommunications Act as the Council's jurisdiction is derived from an appeal from the Hearing Examiner and neither the Hearing Examiner nor the City Council has the authority to consider the validity of provisions of the City Code under the Telecommunications Act. 2. Deny the City's motion to dismiss this appeal for lack of jurisdiction. The Committee feels that the issue of jurisdiction should have been raised earlier, before the Hearing Examiner, and in the interest of fairness to T- Mobile, the Council should hear and rule upon the merits of this appeal. 3. Affirm the decision of the Hearing Examiner as the appellant T-Mobile has failed to meet its burden to establish that the Hearing Examiner's decision was based upon a substantive error of fact or law. MOVED BY PARKER, SECONDED BY ZWICKER, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. MOVED BY PARKER, SECONDED BY ZWICKER, COUNCIL REMOVE THE T-MOBlLE CONDITIONAL USE PERMIT APPEAL REFERRAL FROM THE PLANNING & DEVELOPMENT COMMITTEE. CARRIED. Planning and Development Committee Chair Parker presented a report regarding the RTC Sh011 Plat Appeal. The Committee heard the matter on 6/5/2008. Pursuant to City Code 4-8-1 IOF, the Committee's decision and recommendation is limited to the record, which consists of, but is not limited to COMMITTEE OF THE WHOLE REPORT June 9, 2008 T-Mobile Conditional Use Permit Appeal File LUA-07,065,CU-A,ECF '------------~('°R-'-'e'-'--'ferred April 7, 2008) . APPROVED BY CITY COUNCIL Date b/c,/p-oog . . This appeal was referred by the Planning & Development Committee to the Committee of the Whole to determine the issue of jurisdiction to hear this appeal and, if necessary, the substantive issues of the appeal. Subsequently, T-Mobile filed a brief raising the issue of the applicability of §253 of the Telecommunications Act to this application and appeal. The Committee of the Whole recommends that the City Council take the following action: I. Find that the Council does not have the authority to consider alleged violations of §253 of the Telecommunications Act as the Council's jurisdiction is derived from an appeal from the Hearing Examiner and neither the Hearing Examiner nor the City Council has the authority to consider the validity of provisions of the City Code under the Telecommunications Act. 2. Deny the City's Motion to Dismiss this appeal for lack of jurisdiction. The Committee feels that the issue ofjurisdiction should have been raised earlier, before the Hearing Examiner, and in the interest of fairness to I-Mobile, the Council should hear and rule upon the merits of this appeal. · 3. Affirm the decision of the Hearing Examiner as the Appellant T-Mobile has failed to meet its burden to establish that the Hearing Examiner's decision was based upon a subs tan ti ve error of fact or law. 117~~ Marcie Palmer,~ June 2, 2008 APPEAL Committee of the Whole Appeal: Monopole Conditional Use Permit, T-Mobile, CU-07- 065 -ADMINISTRATIVE REPORT Streets: Duvall Ave NE Closure, Road Improvements Project Renton City Council Minutes Page 177 proposed amendments, which are as follows: restricting vendors in all zones, allowing vendors on a case-by-case basis through the temporary use permit process, providing exemptions for City-sponsored events or functions, and adding a definition for mobile food vendors. Turning to temporary merchant vendors, Ms. Johnson explained that the vendors are currently allowed through the peddler's licensing requirements in City Code Title V (Business). The proposal revises Title V to reflect new zones. In conclusion, she indicated that the next step is for the Planning and Development Committee to make its recommendation on the matter. Responding to Councilmember Briere's comments, Ms. Johnson confirmed that temporary vendors that sell flowers during the holidays are also required to obtain a peddler's license, which includes a background check, and a business license. The vendors will have to locate in the CA (Commercial Arterial) zone. She also confirmed that unless it was a part of a City-sponsored function, vendors would be unable to sell art in a park. Councilmember Persson noted that one reason for the background check is to prevent pedophiles from receiving a peddler's license. Noting that farmers markets will be restricted to the CD zone, Councilmember Parker pointed out that in the future, a farmers market may be wanted in the Benson Hill or Highlands areas. He also questioned whether mobile food vendors are really mobile, as they tend to stay in one place. Councilmember Taylor inquired as to how other cities regulate mobile food vendors. He expressed support for the encouragement of the free enterprise system, especially in this diverse community, in a way that does not take away from community appeal. Public comment was invited. There being none, it was MOVED BY PARKER, SECONDED BY CORMAN, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. \ . Councilmember Parker announced that the Committee of the Whole heard the appeal regarding the T-Mobile conditional use permit this evening, and the Committee will present its report at the next Council meeting (6/9/2008). Chief Administrative Officer Covington reviewed a written administrative report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2008 and beyond. Items noted included: * Beginning June 3, the 2008 Senior Stage Review will air on Renton Cable Channel 21. Public Works Administrator Zimmerman reported on the temporary closure of Duvall Ave. NE between NE Sunset Blvd. (SR-900) and SE 95th Way. Originally scheduled to begin on June 2, he indicated that the road will be closed beginning on June 5. Mr. Zimmerman explained that the delay is due to the contractor having to wait for State approval of the required stormwater pollution prevention plan. Stating that the road will remain closed through approximately July 2009, he reviewed the detour routes and noted that Union Ave. NE is not a designated truck route. Councilmember Parker pointed out that the temporary full closure of Duvall Ave. NE saves the taxpayers money and shortens the time of the project. He stressed the importance of continuous communication to the public regarding V April 25, 2008 APPEAL FILED BY: CITY ~F RENTON Renton City Council Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. RE: Appeal of Hearing Examiner's decision dated 1/15/2008 regarding the conditional use a£/'lication tor a wireless communications facility, known as the T-Mobile Monopole; SE 3 Place and Anacortes Ave. SE R-0-W (File LUA-07-041 CU-A, ECF). To Parties of Record: The Renton City Council's Committee of the Whole will meet to deliberate the above-referenced item on the following date: Monday, June 2, 2008 4:00 p.m. 7th Floor/Council Chambers City of Renton 1055 South Grady Way Renton, Washington This Council Committee meeting is open to the public, but it is not a public hearing. It is a working session of the Committee of the Whole. No new testimony or evidence will be taken. However, the parties are expected to attend and be prepared to explain why the Council Committee should uphold or overturn the decision of the Hearing Examiner. If you have questions regarding these meetings, please phone Julia Medzegian, Council Liaison, at 425-430-6555. Sincerely, 'if)~~ Marcie Palmer, Chair Committee of the Whole Renton City Council ----10_5_5_S_ou-th_G_ra-~-W-~--R-e_n_to-n-,~-,-a,-h-in-~-o-n_9_8_05-7---(-42_5_)_43-0--6-5_0_1----~ @) This paper contains 50% recycled material, 30% post consumer AHEAD OF THE CURVE • Chris Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Kevin Foy Wireless Facilities, Inc. 575 Andover Park W., Ste. 201 Tukwila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4th Street Renton, WA 98055 Van Slaughter 4409 SE 3rd Place Renton, WA 98059 Alvin & Jacqueline Courtney P.O. Box 2653 Renton, WA 98056-0653 John Ehle 406 Anacortes Avenue SE Renton, WA 98059 Roger & Vickey Berry 4405 SE 3rd Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3rd Place Renton, WA 98059 Cory & Lori Foster 4413 SE 3rd Place Renton, WA 98059 Pauline Blue 420 Chelan Ave. SE Renton, WA 98059 Mike Cady 575 Andover Park W., Ste 201 Tukwila. WA 98188 T-Mobile USA 19807 North Creek Parkway Bothell, WA 98011 Newton & Joyleen Ellifrits 4218 SE 3rd Place Renton. WA 98059 Stephen Northcraft 4209 SE 3rd Place Renton. WA 98059-5144 Victor Bloomfield & Jennifer Skuk 4418 SE 3rd Place Renton. WA 98059 John Megow 4408 SE 3rd Place Renton, WA 98059 Terry Clangh 4503 SE 3rd Place Renton, WA 98059 Tapke Velquist 4309 SE 3rd Street Renton. WA 98059 Gail & Anthony Knell 4425 SE 3rd Place Renton, WA 98059 Doug Mears 4308 SE 3rd Place Renton, WA 98059 Kevin Durning 575 Andover Park W .. Ste. 201 Tukwila, WA 98188 Chuck & Fran Gitchel 4401 SE 3rd Place Renton, WA 98059 Lewis Sezto 10875 Rainier Ave. S Seattle, WA 98178 Greg Schoendaller 4408 SE 4th Street Renton, WA 98059 Michael, Debby & Hannah Ekness 4400 SE 3rd Place Renton, WA 98059 Joel G. Smith 349 Anacortes Ave. SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3rd Place Renton, WA 98059 Joel & Heidy Barnett 4212 SE 3rd Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4th St. Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3rd St. Renton, WA 98059 April 21, 2008 Ordinance #5371 Transportation: Logan Ave N Bicycle Lane, Boeing, Budget Amend NEW BUSINESS Community Event: Piazza Renton Spring Festival AUDIENCE COMMENT Citizen Comment: Gitchel - Monopole Conditional Use Permit Appeal, T-Mobile, CU- 07-065 -~-~- ADJOURNMENT Recorder: Michele Neumann April 21, 2008 Renton City Council Minutes Page 131 An ordinance was read amending the 2008 Budget to transfer from Fund 303 to Fund 316 for the Cedar River Trail Extension Project (Logan Ave. N. Bicycle Lane) expenses, and appropriating revenues in Fund 316 and authorizing expenses in that fund in the net amount of$11 l,875. MOVED BY PERSSON, SECONDED BY CORMAN, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL A YES. CARRIED. Council President Palmer thanked the volunteers, City staff, and all those who attended the Piazza Renton Spring Festival and participated in the Downtown Renton Poker Run on April 19. She stated that the turnout was good despite the stormy weather. In response to the question posed by Chuck Gitchel (Renton), Chief Administrative Officer Covington indicated that the Committee of the Whole will likely discuss tile T-Mobile monopole conditional use permit appeal in June. MOVED BY PERSSON, SECONDED BY TAYLOR, COUNCIL ADJOURN. CARRIED. Time: 8:06 p.m. 'ti1t&n« i -If !;)aft.rt-t:! Bonnie I. Walton, CMC, City Clerk STATE OF WASHINGTON, COUNTY OF KING } AFFIDAVIT OF PUBLICATION PUBLIC NOTICE Linda M Mills, being first duly sworn on oath that she is the Legal Advertising Representative of the Renton Reporter a bi-weekly newspaper, which newspaper is a legal newspaper of --. general circulation and is now and has been for more than six months prior to the date of publication hereinafter referred to, published in the English language continuously as a bi-weekly newspaper in King County, Washington, The Renton Reporter has been approved as a Legal Newspaper by order of the Superior Court of the State of Washington for King County. The notice in the exact form annexed was published in regular issues of the Renton Reporter (and not in supplement form) which was regularly distributed to its subscribers during the below stated period, The annexed notice, a: Public Notice was published on April 12, 2008, The full amount of the fee charged for said foregoing publication is the sum of $92.40. CITY OF RENTON NOJ'ICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the Renton City Council has fixed the 21st day of April, 2008, at 7:00 p.m. a<; the date and time for a public hearing to be held in the seventh floor Council Chambers of Renton City Hall, 1055 S. Grady Way, Renton, WA 98057, to consider the following: Text Amendment to Renton City Code tu I) allow Monopole I structures in Residential zones on half acre lots with Administrative Conditional Use Pcm1it approval, provided there is a 100 foot setback: create additional flexibility to allow a lesser setback with a Hearing Examiner Conditional Use Pennie; and to allow Monopole I structures in the public right-of-way only on designated arterial roads: and also 2) make non- subsrnmive language corrections and cross references (housekeeping amendments) to wireless regulations in all Lones. AJI interested parties are invited to attend the hearing and present written or oral comments regarding the proposal. Renton City Hall is in compliance with the American Disabilities Act, and interpre1ivc services for the hearing impaired will he provided upon pnor notice. ror information, call 42."i-430-6.'i 10. Bunnie I. \Valton Citv Clerk Puhlishcd in the Rc.nton Reporter on April 12, 2008. #67(1>4. ----; ' /~//7¥® 'l:fuaM.Mills , ............ ,,,·-."\\\\\"\ \ \ \' 2" 0"'i OAI_ .,,,. ,: -<..: ,,,,-..,\1•.111 S;:, ......... 'i11 = 0 ~'~<:,\ON €~11, r,.., 11. -....:C: -~7 ..,,()I/I.Jo' I 3 f~+ oiA!? ?,p\ ~ Legal Advertising Representative, Renton Reporter Subscribed and sworn to me this 16th day of April, 2008. 1 ' __.,. ;; ~ }-"("I',-',-/,-__.. . 0 (fl,., / ; ~u _.-; :;:. / ~ ~ / / ,.,. b CJ = z ...... "/ lfl \ Us\." ;; Q ::; I',,).', 7 \"-...:/..... _,. 1, "'7-,..'1111 u-i9~ ~.;;: () :::: I /: i11 ........ ~ -1, .("" \',\\\\\\\,.... ~ . ::: e State of Washington, Residing '111 OF "· 'c,'<' _::c JI ~VI·\ ,,> 1\\\\\\\,,-...,:--' Co· , April 7, 2008 Monday, 7 p.m. CALL TO ORDER ROLL CALL OF COUNCILMEMBERS CITY STAFF IN ATTENDANCE SPECIAL PRESENTATION King County: Update, Councilmember Julia Patterson APPEAL Planning & Development Committee Appeal: Monopole Conditional Use Permit, T-Mobile, CU-07- 065 . RENTON CITY COUNCIL Regular Meeting MINUTES Council Chambers Renton City Hall Mayor Denis Law called the meeting of the Renton City Council to order and led the Pledge of Allegiance to the flag. MARCIE PALMER, Council President; DON PERSSON; KING PARKER; TERRI BRIERE; RICI I ZWICKER; GREG TAYLOR. MOVED BY PERSSON, SECONDED BY PALMER, COUNCIL EXCUSE ABSENT COUNCILMEMBER RANDY CORMAN. CARRIED. DENIS LAW, \'1ayor; JAY COVINGTON, Chief Administrative Officer; ZANETTA FONTES. Assistant City Attorney; BONNIE WALTON, City Clerk; GREGG ZIMMERMAN, Public Works Administrator; ALEX PIETSCH, Community and Economic Development Administrator; SUZANNE DALE ESTEY, Economic Development Director; PREETI SHRIDHAR, Communications Director; EMERGENCY MANAGEMENT DIRECTOR DEBORAH NEEDHAM and DEPUTY Cl-lIEF CHUCK DUFFY, Fire Department; COMMANDER PAUL CLINE, Police Department. King County Council Chair Julia Patterson, District 5, gave an update on King County. She explained that King County is a regional government, dependent upon two taxing sources: sales and property tax. The regional services King County is responsible for includes criminal justice, sewage treatment, public transportation, elections, animal control, and public health. She noted that this year, King County will be updating its comprehensive plan, conducting a charter review, and addressing voter approved initiatives and Council initiated measures. Councilmembcr Patterson reported that King County is working on an Equity and Social Justice Initiative. The initiative aims to end local inequities in wealth, health, and opportunities to result in greater economic vitality, lower health care and criminal justice costs, and a much more politically engaged population. Pointing out that South King County is not being treated equitably in a number of different public policy arenas, she stressed that it is time for leaders to come together and discuss how to change the economic disparities in King County. Planning and Development Committee Chair Parker presented a report regarding the T-Mobile monopole conditional use permit appeal. The Committee recommended that the City Council refer this matter to the Committee of the Whole for the purpose of conducting a hearing to determine the jurisdictional question raised by the City Attorney, and assuming the Committee of the Whole finds there is jurisdiction, to determine the underlying substantive issues raised in the T-Mobile appeal.* Councilmember Parker explained that the appeal of the Hearing Examiner's decision filed on 1/29/2008 was discussed by the Committee on April 4. The Committee heard argument from the City and T -Mobile solely on the jurisdictional issue raised by the City Attorney. The Committee, having no authority to decide the jurisdictional issue and having been asked by T-Mobile to allow arguments before the full Council on the underlying issues raised in the appeal, voted to recess the hearing and forward the matter to the full Council. April 7, 2008 ADMINISTRATIVE REPORT CONSENT AGENDA Council Meeting Minutes of 3/24/2008 Appointment Planning Commission Appointment: Airport Advisory Committee CAG: 00-049, Valley Communications Center lnterlocal Agreement Human Resources: Administrator Appointment (Nancy Carlson), Hire at Step E Court Case: State of Washington, CRT-08-003 Appeal: 409 Whitworth Condominiums Site Approval, Various, SA-07-125 CED: 2008 Neighborhood Program Grants Renton City Council Minutes Page 106 l *MOVED BY PARKER, SECONDED BY ZWICKER, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. Chief Administrative Officer Covington reviewed a written administrative report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2008 and beyond. Items noted included: * The 6th Annual Piazza Renton Spring Festival will be held on April 19 at the Piazza. located on the comer ofS. 3rd St. and Burnett Ave. S. * Improvements lo Burnett Linear Park located between S. 6th and S. 7th Streets will begin in mid-April and continue through mid-July 2008. Items on the consent agenda are adopted by one motion which follows the listing. Approval of Council meeting minutes of 3/24/2008. Council concur. Mayor Law appointed Ed Prince to the Planning Commission for an unexpired term expiring 6/30/20 IO (position previously held by Casey Bui). Refer to Community Services Committee. Mayor Law reappointed the following individuals to the Airport Advisory Committee, each for a three year term expiring on 5/7/2011: Jennifer Ann Rutkowski (Talbot fl ill neighborhood primary representative); Matthew Devine (Talbot Hill neighborhood alternate representative); Robert Moran (South Renton neighborhood primary representative); Michael Rice, Aerodyne, (Airport Leaseholders primary representative); and Jan Fedor (The Boeing Company representative). Council concur. AdministratiYe. Judicial and Legal Services Department requested authorization to ratify the first amendment to CAG-00-049, the Valley Communications Center interlocal agreement, to extend the member city rate to Valley Regional Fire Authority and to acknowledge that King County Fire Protection District #39 is successor to the Federal Way Fire Department. Refer to Public Safety Committee. Administrative, Judicial and Legal Services Department recommended confirmation of the appointment of Nancy Carlson as the new Human Resources Administrator, effective 4/7/2008; and approval of her salary at Step E of the salary range. Council concur. Court Case filed by the State of Washington regarding the condemnation of property for public use relating to the improvement ofl-405 and SR-167. Refer to City Attornev and Insurance Services. City Clerk submitted three appeals of the Hearing Examiner's decision regarding 409 Whitworth (Condominiums) Site Plan application (SA-07-125); appeals filed on 2/1512008 by Phyllis Webb and 2/18/2008 by Harold Deacy and by Chris Cirillo, Capital Homes, LLC, each accompanied by required fee. Refer to Planning and. Qevelopment Committee. Community and Economic Development Department reported submission of grant applications for the 2008 Neighborhood Grant Program and recommended funding thirteen projects and ten newsletters totaling $68,053, and authorizing a second round of funding with a deadline of 10/10/2008. Refer to Community Services Committee. PLANNING AND DEVELOPMENT COMMITTEE COMMITTEE REPORT April 7, 2008 I-Mobile Monopole Appeal (February 11, 2008) tF'."c'.''."l'\.'[;;!'J BV 1 C:ul CGU~CiL Date ¢-1-)oot The Planning and Development Committee recommends that the City Council refer this matter to the Committee of the Whole for the purpose of conducting a hearing to determine the jurisdictional question raised by the City Attorney and, assuming the Committee of the Whole finds that there is jurisdiction, to determine the underlying substantive issues raised in ea!. King Parker, Chair ,r-\ A. L ."-...) Gre~ '/aylor, Member cc: Neil Watts Alex Pietsch La.trr-y Warr-en 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ,. JR\GINAL MAR ~ 8 2il08 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON PLANNING & DEVELOPMENT COMMITTEE IN RE APPEAL OF HEARING EXAMINER DECISION DATED JANUARY 15, 2008, REGARDING ADMINISTRATIVE CONDITIONAL USE APPLICATION OFT- MOBILE ) ) ) ) ) ) T-MOBILE USA INC. and T-MOBILE WEST ) CORPORATION, ) APPLICANT and APPELLANT V. CITY OF RENTON, ) ) ) ) ) ) ____ ___::R:::E:::S=-PO:::..N:..c.=D=.E.:..:N..:.T.:..... _____ ) No. LUA 07-065CU-A, ECF 1 APPLICANT T-MOBILE'S HEARING BRIEF Applicant T-Mobile USA West, Inc. and T-Mobile West Corporation ("T-Mobile") submits this Hearing Brief in support of its appeal of the denial of its administrative conditional use permit application ("AClJP") for a wireless communication facility to be collocated on a replacement utility pole located within the public right-of-way of the City ofRenton.2 1 The City's Briefreferences an incorrect file number for this application. 2 The City's Brief in several places mischaracterizes T-Mobile's Appeal Statement filed in this matter on January 29, 2008 as "Appellant's Brief." This misrepresents both the nature of Appeal Statement, and the process by which this appeal before the Council is being T-MOBILE HEARING BRIEF -I BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAIi/ OFFICE~ 777 -IOHH Avenue NE , Smt~ 2100 Bellevu~, Washington 98004-5149 (425)646-6100 · Fax (425)Mh·619Y 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I. FACTS T-Mobile has been seeking permits from the City of Renton to locate a wireless facility within the City of Renton to fill a significant gap in its network coverage in the area of the City located east of Union Avenue SE and bounded roughly by SE 2nd Place to the north and SE 4th Place to the south for approximately three years. (Radio Frequency Engineer Site Analysis ("RF Site Rpt.") at 3; Transcript of Hearing before City of Renton Hearing Examiner ("Tr.") at 39). T-Mobile applied in May 2006 for a permit to locate a facility at a .92 acre Seattle Public Utilities ("SPU") site, but the City refused to accept and process that application. (SPU Application; Tr. 39-40; City rejection letter dated May 18, 2006). The City's reason for refusing to process the application was that the property parcel size was below a I-acre minimum size threshold, and the City took the position that it could not grant any variance of the lot size limitation. (Rejection letter; Tr. id.). Following the rejection of its May 2006 application to locate at the SPU site, T- Mobile was told by the City that "a new code was in the works" that would allow wireless facilities to be located on utility poles within the public right-of-way. (Tr. 40). T-Mobile conducted. The Renton City Code provides only 14 days from date of a Hearing Examiner decision to file an appeal to the City Council. RMC 4-8-11 O(F). The required content for an appeal filing is to specify the substantial errors in fact or law which exist in the decision being appealed from. RMC 4-8-11 O(C)(3). This provision does not require that an appellant prepare and file a hearing brief in order to state the issues on appeal. In this case, the Council has ordered a briefing schedule on the issues, and the parties are complying with the briefing schedule. T-Mobile makes a further preliminary objection to the City's mischaracterization of the Appeal Statement to the extent that the City objects, City's Br. at 13, to T-Mobile's preservation of its right to correct any mistakes in the Hearing Examiner "minutes" summary of hearing testimony that are revealed by review of the verbatim transcript that T-Mobile has provided. The hearing testimony was what it was. There was not time prior to the deadline to file the Appeal Statement to have the testimony transcribed. There is nothing inappropriate about stating that the right to have the verbatim transcript control over the "minutes" is preserved. The verbatim transcript is the record. The "minutes" are not. T-MOBILE HEARING BRIEF -2 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -I OHi! Avenue NE · Suite BOO Bellevue, Washington 9~004-HO (42.'i)646-6100 · Fax:(425)646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 waited for this code change to be approved, and then submitted the right-of-way utility pole collocation application that is the subject of this appeal. (Tr. id.; T-Mobile June 29, 2007 Land Use Permit Application). Contrary to assertions in the City's brief, T-Mobile considered several site candidate alternatives, including a raw land site at 400 Union Avenue SE, other alternative utility pole locations, and a light pole location. (RF Site Rpt. at 4). The proposed location ofa utility pole within the public right-of-way adjacent to property addressed as 4401 SE 3rd Pl. was chosen because it provides the best coverage to fill the gap, and the fewest other site location limitations. (RF Site Rpt. id.: Tr. 41-47). Because the significant coverage gap T-Mobile seeks to fill is within Y, to I mile of the proposed location (the "search ring"), site candidates in other areas of the City would not fill the gap. (See Tr. 42-44, 49- 50, 80-81). As the T-Mobile RF engineer testified, T-Mobile "put[s] our [search] rings where our coverage holes are." (Tr. 49). This is required so that the significant gap will be filled by the selected site. (RF Site Rpt.) II. ARGUMENT A. T-Mobile's Application for a Conditional Use Permit in the Public Right-of-Way is Duly Authorized. The City alleges as a "standing" or jurisdictional issue that T-Mobile's appeal and its application cannot be further considered by the City because allegedly under RMC 4-9- 030(8) T-Mobile is not the owner or ''duly authorized agent" of the owner of the public right-of-way where T-Mobile seeks to locate the proposed wireless facility. City's Hearing Brief at 5. Notwithstanding that from the standpoint of fairness to T-Mobile it is highly disturbing that the City would assert lack of jurisdiction to process the application for the T-MOBILE HEARING BRIEF -3 BEL 409743v2 0048172-000261 Da•,:is Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE Suite 2100 Bellevue, Wash,ngton 9S004.5l49 (425) 646·6100 · Fax (425) 645·6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 first time during consideration of an appeal to the City Council, the City's arguments in this regard fail. It is incontrovertible that the proposed location is within the public right-of-way and that T-Mobile has a franchise from the City granting it permission to locate wireless facilities within the public right-of-way. In addition, the City's zoning code provides a separate and independent basis of authorization for a wireless provider to submit an application to locate a facility within the public right-of-way. Further, and finally, the record before the City demonstrates that T-Mobile submitted, and the City accepted as complete, T-Mobile's application for an ACUP, which application included evidence both that Puget Sound Energy has duly authorized T-Mobile to collocate on a replacement utility pole, and that T-Mobile applied to the City for a right-of-way permit which application the City accepted and has been processing concurrently with the ACUP application. Given these multiple bases for T-Mobile's authority to locate in the public right-of- way, the City's efforts to dispose ofT-Mobile's appeal for supposed lack of"standing" or jurisdiction completely fail. 1. It is Indisputable that the Location Proposed by T-Mobile is Public Right-of-Way. The City has not contested that the proposed location of the T-Mobile facility that is the subject of this appeal is within the public right-of-way. Nevertheless, for the record, T-Mobile notes the following facts: The location proposed by T-Mobile is the intersection of SE 3rd Place and Anacortes Avenue SE, adjacent to Lot 1, Block 4, Heather Downs Division No. 1, according to the Plat thereof recorded in Vol. 62 of Plats, Page 28, records of King County, T-MOBILE HEARING BRIEF -4 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE · Sui1e 2rno Bellevue, Washington no04·~149 (425) 646-6100 • Fax: (425) 646.6199 1 2 3 4 5 6 7 8 9 10 I 1 12 13 14 15 16 17 18 19 20 21 22 23 Washington. (See T-Mobile's application for right of way permit). The recorded plat, obtained from the public records of King County, Washington and attached hereto, states on its face that all streets and avenues depicted on the face of the plat are dedicated to the public. The City Council must take judicial notice of recorded instruments concerning the real property that is the proposed site in this appeal, and cannot ignore or exclude the existence of the recorded plat from its decision-making in this case. See ER 201(b)(fact appropriate for judicial notice is one not subject to reasonable dispute and capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); See also, Northern Pac. Ry. Co. v. Cily of Walla Walla, 114 Wash. 153, 156, 194 P. 962 ( 1921) (government is bound by approved plat). 2. The City Has Entered Into a Franchise Agreement with T- Mobile that Grants Permission to T-Mobile to Locate Facilities within the Public Right-of-Way. The City of Renton has adopted Ordinance No. 5083, an executed copy of which is attached hereto. Ordinance 5083 provides as follows: An Ordinance of the City of Renton, Washington, granting unto VoiceStream PCS lll Corporation, a Delaware corporation, its successors and assigns, the right, privilege, authority a11d Master Use Agreement to install telecommunication facilities together with appurtenances thereto, upon, over, under, along and across the streets, aveneues, and alleys of the City of Renton within City Right of Way and public properties of the City. The ordinance was adopted by the Renton City Council on June 14, 2004. VoiceStream PCS III Corporation was the predecessor-in-interest to T-Mobile here, and T-Mobile is VoiceStreams' successor and assign pursuant to the Ordinance. As quoted above, the Ordinance grants to T-Mobile the right to locate facilities within the right-of-way. T-MOBILE HEARING BRIEF -5 DEL 409743,2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -lOHH Avenu~ NE · Suite 2JI)() Bellevue. Wa~h.ington ~Kil04-514~ (415)&!&-&100 · Fax (425)646-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Because the ordinances of the City of Renton are binding law within the jurisdiction of the City, the City cannot ignore or deny the existence of Ordinance 5083. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267,296, 937 P.2d 1082 (1997) (city cannot lawfully act in disregard of its own ordinances); Nolte v. City of Olympia, 96 Wn. App. 944,982 P.2d 659 (Div. 2,1999) (city is bound by, and must adhere to, its ordinances).3 Ordinance 5083 on its face evidences that T-Mobile is an authorized franchisee of the City of Renton and thus a "duly authorized" agent of the City for purposes of submitting any applications for the installation of wireless facilities within the ROW pursuant to the City Code.4 3. The City's Zoning Code Legislatively Grants Authority for a Wireless Carrier to Submit an Application for a Right-of-Way Location The City's zoning scheme for wireless communications uses is accomplished through the combined application of several separate sections of the Renton Municipal Code ("RMC"). An initial stop in this multi-layered scheme is RMC Section 4-2, which establishes zoning map designations and allowed uses. There is no separate zoning classification for uses within the public-right-of-way; rather, the Renton City Code assigns to the public right-of-way the same zoning classification as it assigns to the adjacent and abutting property. See 4-2-030 (zoning district boundaries are the centerlines of streets shown on zoning maps). 3 The July 2007 department comments on T-Mobile's application received by the Development Department state that as a condition of an ACUP, T-Mobile "shall comply with the Master Use Agreement." Thus, the Development Department file recognizes the existence ofT-Mobile's franchise agreement. 4 The case of Wesco/ Corporation v. City of Des Moines, 120 Wn. App. 764 (Div. I, 2004) is not controlling in the "jurisdiction" issue raised by the City for several reasons. Chief among those reasons is that in Wesco/ the developer did not have a signed lease or franchise. Here, T-Mobile does. T-MOBILE HEARING BRIEF -6 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP L"'W OFFICES 777 -10iTH Avenue NE • Suite BOO Bellevue, Washington 9R004-5 I 49 {41l) 646-6100 • Fax: (425) &46--15199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Here, the property adjacent to the proposed I-Mobile facility is zoned R-8, and the City thus applied the R-8 zoning use classifications to the proposal. (See City's June 6, 2007 letter stating project site is within the public right-of-way adjacent to, and thus classified as, an R-8 zone). Allowed uses within the R-8 zone are set forth in table form at RMC 4-2-070D. For wireless communications facilities, a Monopole I support structure on public right-of-way is allowed by administrative conditional use permit and right-of- way permit. RMC 4-2-070D, RMC 4-2-080(A) note 45.5 By this legislative determination that a wireless facility is allowed in the public right-of-way with an ACUP and right-of- way permit, the Renton City Council has legislatively authorized wireless communications providers to submit such applications. Once submitted, the Code establishes procedures for processing and deciding such applications. including RMC Section 4-4-140 (Wireless Communication Facilities) and RMC 4-9-030(1) (Special Decision Criteria for Wireless Communication Facilities in Lieu of Standard Criteria.). Because the Renton Code establishes a separate zoning and permitting scheme for wireless communications facilities distinct from its other permit processes, any questions regarding the submission and processing of such an application must be resolved by reference to the specific wireless 5 One of the use types allowed within the City of Renton is a "conditional use (administrative)," defined as a "land use which may be permitted within a zoning district following review by the Development Services Division Director to establish conditions mitigating impacts of the use and to assure compatibility with other uses in the district." RMC 4-2-050. The Administrative Conditional Use contrasts to the Hearing Examiner Conditional Use in a very important respect. The ACUP begins with a presumption that the use is appropriate for the zone if properly conditioned. The HCUP is reserved for "uses with special characteristics that may not generally be appropriate within a zoning district." RMC 4-2-050. The character of HCUP uses is reflected in the general directive of RMC 4-9-030(A) that "the purpose of a conditional use is to allow certain uses in districts from which they are normally prohibited." The ACUP use, as reflected by the language ofRMC 4-2-050, does not share this ·'prohibited" characteristic, contrary to assertions in the City's Brief at 4-5. T-MOBILE HEARING BRIEF -7 BEL 40974Jv2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -IOSTH Avenue NE · Suite 2300 Bellevue, Washington ~~0\11-5149 (425) 646-£\00 · Fax: (425) 646-619; 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 communications provisions in the code, not general code provisions. Were the Council to accept the City Attorney's arguments that no wireless facility application could even be submitted for consideration in the public right of way because of the operation of the general CUP subsection 4-9-030(8), the Council thereby would read the provisions of RMC 4-2-070D allowing wireless communications uses in the public right-of-way "via an administrative conditional use permit and right-of-way use permit" (RMC 4-2- 080(A)( 45)), completely out of the Code. Such an interpretation would render the provisions of RMC 4-2-070D and RMC4-2-080(A)(45) meaningless. It is abundantly clear from the structure of the Renton City Code that the granting of a right-of-way use permit and administrative conditional use permit constitute the authorization of the City for the successful wireless provider to locate on City right-of-way property. The City has no other method for creating "duly authorized" wireless communications users of its right-of-way other than these zoning provisions and its franchising authority. I-Mobile already has obtained a City franchise as discussed above through Ordinance 5083. Its possession of that franchise, and its compliance with the processes to obtain an ACUP and right-of-way use permit constitute full compliance with all available City processes for becoming the City's duly authorized agent for location in the public right-of-way. 6 6 I-Mobile's applications to the City included an application for a City right-of-way permit. See letter from T-Mobile to City dated June 19, 2007 and application accepted by City on June 29, 2007. I-MOBILE HEARING BRIEF -8 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777~ 108Tll Avenue NE • Suite noo Bellevue, Wa5hington 98004-Sl49 (42S) 646-6100 · Fax: (4lS) &46~1~9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4. T-Mobile Obtained the Permission of Puget Sound Energy to Coordinate Replacement of the Power Pole, and Submitted a Complete Application for a Conditional Use Permit and a Right- of Way Permit to the City of Renton, and the City Accepted the Application and Deemed it Complete. The City of Renton conducted a pre-application review ofT-Mobile's proposal to replace an existing power pole in the public right-of-way during late May and early June, 2007 and provided comments to T-Mobilc on the proposed application. (May 17, 2007 letter from T-Mobilc to City of Renton Development Services Division requesting pre- application review, and June 7, 2007 memorandum from Ms. Jill Ding, Senior Planner, to T-Mobile concerning results of pre-application review.) Subsequently, on June 29, 2007, T-Mobile submitted a Land Use Pem1it Master Application naming the City of Renton as the property owner and T-Mobile as Applicant. The application included a copy ofa letter from Puget Sound Energy ("PSE") evidencing that PSE had reviewed the T-Mobile antenna design, that the primary usage of the pole support structure would be for electrical distribution, and the wireless equipment would be secondary, and that the structural loading calculations, design and installation of the pole will be performed by PSE. (PSE letter dated June 28, 2007). The application also included a copy ofT-Mobile's June 29, 2007 application to the City for a right-of-way permit. Subsequently, and finally, the City wrote a letter to T-Mobile dated July I 0, 2007 stating that T-Mobile's application for the required ACUP was deemed complete and was accepted for review and processing. Thus T-Mobile took every step required of it by the Renton Code to initiate an application for the permit at issue here, and the City acknowledged and accepted completion of those steps. The City should not be allowed to now act in a maooer that is inconsistent with its acceptance and processing of the application. To permit repudiation and rejection of the T-MOBILE HEARING BRIEF -9 BEL 409743v2 0048 l 72-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -IOSTH Avenue NE · Sunc nn~ Bellevue, Washington 9g004-~149 (42l) 64G-6100 hx: (42S) 646-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 application at this late date would violate the requirements of RCW 36.708.070 that within 28 days of receipt of application, local government either notify an applicant whether its application is complete, or specify what information is necessary to make the application complete. Such an action also would violate constitutional principles of due process. See Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 638, 733 P.2d 182 (1987) citing Mercer Enterprises v. Bremerton, 93 Wn.2d 624, 633, 611 P.2d 1237 (l 980)(courts must consider the conduct of the parties where city officials clearly frustrate a developer's diligent, good faith efforts to complete the permit application process); see also Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978).7 B. The City Must as a Matter of Federal Law Comply with the Telecommunications Act. The City devotes a prominent section of its brief to the surprising argument that governing federal statutes and established case law construing such statutes should be ignored by the City Council in its deliberations on this appeal. See City's Br. At 6-7. As a matter of fact, T-Mobile disputes the City's contention that issues concerning the potential for a denial ofT-Mobile's application to violate the federal Communications Act were not raised before the Hearing Examiner. See Appeal dated October 29, 2007 at 12-13; Tr. 21, 72, 111. Regardless of whether such issues were argued as such to the Hearing Examiner, however, the City is bound to follow controlling provisions of the federal Communications Act and relevant case law construing those provisions. See Wash. Const. Art. 11, § 11 (any county, city, town or township may make and enforce within its limits only such local 7 The City could, at any time during the processing of the application, have advised T- Mobile that more information regarding its status as an authorized user of the right-of-way was needed. To now interpose the alleged lack of such information as a means to deprive the City Council of jurisdiction to hear the appeal is fundamentally unfair. T-MOBILE HEARING BRIEF -10 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -10BTH Avenue NE · Suite lJQO Bellevue, Washmgton noo(.1149 (42S) 646·6!00 • Fax: (42S) 646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 police, sanitary and other regulations as arc not in conflict with general laws); see also State v. Lundquist 60 Wash.2d 397, 374 P.2d 246 (1962) (City may not adopt or enforce ordinances in conflict with state or federal constitutions or general laws of the State or United States.) As discussed in detail below, it would be illegal for the City to deny an application for permits for a wireless telecommunications facility where such a decision would be preempted by or otherwise invalid under the federal Communications Act of 1934, as amended by the Telecommunications Act of 1996, (hereinafter the "Act"), 47 U.S.C. §§ 253, 332(c).8 1. The City's \Vireless Communications Right-of-Way Zoning Scheme is Invalid and Preempted by Section 253 The Ninth Circuit and District Courts in the Ninth Circuit have repeatedly held that municipalities are prohibited by Section 253 of the federal Communications Act from imposing complex, discretionary, and burdensome zoning obligations on telecommunications providers as a condition of deploying facilities for the provision of telecommunications services. See, e.g, Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700, 715-16 (9th Cir. 2007); Qwest Communications v. City of Berkeley, 433 F.3d 1253, 1258, (9th Cir. 2006); City a/Auburn v. Qwest Corp., 260 F.3d 1160, 1175- 76 (9th Cir. 2001), cert. denied, 534 U.S. 1079 (2002); NextG Networks a/Calif., Inc. v. 8 Even where it has delegated appellate authority to a hearing examiner, a local government legislative body still retains broad appellate jurisdiction. Washington Real Property Deskbook § 112.2(3). An appellate body reviewing a case on a closed record nevertheless reviews issues of law de nova. See !US Development, Inc. v. Pierce County ex rel. Dept. of Planning and Land Services, 148 Wn.2d 451, 61 P.3d 1141 (2003) reconsideration denied. (Appellate courts review questions oflaw de novo to determine whether the land use decision was supported by fact and the applicable law.) In addition, the City decision is not final until the Council acts upon this administrative appeal, and in so doing the Council must address any legal issue arising under ordinances or statutes that bears upon its decision. T-MOBILE HEARING BRIEF -I I BEL 409743,2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 177 -lOSTH Avenue NE · Suite !JOU Bellevue, Washmgtun 98004·5149 (42:1) 646-6100 · Fax: (415) 646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Counly of Los Angeles, 522 F. Supp. 2d 1240, 1249-52 (C.D. Cal. 2007); NextG Networks of Calif, Inc. v. City of San Francisco, 2006 WL 1529990 (N.D. Calif. June 2, 2006); GTE Mobil net Corp. v. City of San Francisco, 2007 WL 420089 (N.D. Cal. 2007). Nonetheless, the City has adopted and enforced against T-Mobile requirements that are in conflict with the clear precedent of the Ninth Circuit. For example, under the City's requirements, especially as here interpreted by the City in its Brief, T-Mobile may not deploy wireless communications facilities within the City right-of-way unless it complies with all of the following: 1. Obtain a Telecommunications Franchise pursuant to RMC 5-19-1 O(F), requiring the submission of all of the following information: B. Franchise Application: Any person that desires a telecommunications franchise pursuant to this Section shall file an application with the City which shall include the following information: 1. The identity of the franchise applicant, including all affiliates of the applicant. 2. A description of the telecommunications services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities. 3. A description of the transmission medium that will be used by the franchisee to offer or provide such telecommunications services. 4. Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify: a. The location and route requested for the applicant's proposed telecommunications facilities. b. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route. c. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers. T-MOBILE HEARING BRIEF -12 Davis Wright Tremaine LLP BEL 409743v2 0048112-000261 LAW OFFICES 777 -lOSTH Avenue NE · Suite 2l0D Bellevue, Washington 98004·5149 (425)645·6100 · Fax (41j)64~·6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 d. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. 5. If the applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route. 6. If the applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify: a. The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities: b. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. 7. If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways: a. The location proposed for the new ducts or conduits; b. The excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. 8. A preliminary construction schedule and completion dates. 9. A preliminary traffic control plan in accordance with the Manual on Uniform Traffic Control Devices. 10. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities. 11. Information in sut1icient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application. 12. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services. 13. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising. 14. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease. T-MOBILE HEARING BRIEF-13 Davis Wright Tremaine LLP BEL 40974Jv2 0048172-000261 L,>,W OFFICES 777 -IORTI! Avenue NE · Suite 2300 Bellevue, Wuhington n004·5149 (425) 646-<,HIO · F,ix (425) 646-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 15. A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions. 16. A description of applicant's access and line extension policies. 17. The area or areas of the City the applicant desires to serve and a schedule for build-out to the entire franchise area. 18. All fees, deposits or charges required pursuant to Section 5-19-7 of this Chapter. (Amd. Ord. 4862, 9-18-00) 19. Such other and further information as may be requested by the City. RMC 5-19-1 O(F)(B). 2. Obtain a Right-of-Way Permit, as required by RMC 4-2-070D and 4-2-080A; 3. Obtain a Conditional Use Permit, requiring submission of voluminous information, including but not limited to the following; note that application submittal requirements must be gleaned from an 11-page table (as published in the Code Publishing Co. Development Regulations volume) (the following partial sampling of listed requirements below is for an ACUP application): 1. Wireless communication facility applicant agreement statement; ll. Construction Mitigation description; u1. Drainage control plan and report; 1v. Architectural elevations; v. Grading elevations; vi. Environmental checklist; vu. Geotechnical report; vm. Grading plans, conceptual and detailed; 1x. Inventory of existing wireless communication facility sites; x. Justification for conditional use permit request; xi. Draft wireless facility site lease agreement; xu. List of surrounding property owners; xm. Mailing labels for surrounding property owners; xiv. Map of view area for wireless communication facility; xv. Neighborhood detail map; xv1. Photosimulations of wireless communication facility; xvu. Preapplication meeting summary; xvJ11. Project narrative; xix. Service area map for wireless communication facility; I-MOBILE HEARING BRIEF -14 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 177 -lOSTH Avenue NE · Suite llOO Bellevue, Washington 98004.,149 (425)646·6100 · Fax: (41S)646.6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 xx. Site plan; xx1. Utilities plan; xxn. Preliminary sketch for preliminary review of wireless communication facility. RMC Table 4-8-120C. Other requirements imposed on the wireless communication facility applicant arise from the need to meet the applicant's burden to prove that the following discretionary decision criteria are satisfied: l. Height of the proposed tower 2. Proximity of the tower to residential structures and residential district boundaries. 3. Nature of uses on adjacent and nearby properties. 4. Surrounding topography. 5. Surrounding tree coverage and foliage. 6. Design of the tower. with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. 7. Proposed ingress and egress. 8. Potential noise, light and glare impacts. 9. Availability of suitable existing towers and other structures. 10. Compatibility with the general purpose, goals, objectives and standards of the Comprehensive Plan, the Zoning Ordinance and any other plan, program, map or ordinance of the City. RMC 4-9-030(]). Additionally, the Code imposes penalties for noncompliance with the foregoing provisions. RMC 4-1-110 makes the failure to comply with the provisions of the development code regulations "misdemeanors subject to the [ criminal] enforcement penalty and abatement procedures of RMC 1-3-1 and 1-3-3." Failure to comply with the franchise ordinance requirements results in potential fines of not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1,000.00) for each offense. RMC 5-19-1 O(F). The foregoing provisions have many common features with those determined to be preempted and invalidated under Section 253(a) by the Ninth Circuit. For example, in T-MOBILE HEARING BRIEF -15 REI. 409143v2 0048172-000261 Davis Wnght Tremaine LLP LAW OFFICES 777 -lOHH Av~nue NE · Suite BOO Bellevue. Washington 9~11'!4-11!9 (42l) 6H-610t> · hx. (425) 646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Berkeley, the Court held invalid under Section 253 an ordinance that prevented a carrier from locating equipment in the municipal right-of-way unless the carrier complied with a complex set of regulations, which, among other elements required carrier reporting of significant amounts of technical information, and allowed the City broad discretion to deny permits, thus impeding the ability of the carrier to provide services requested by its customers. 433 F.3d at 1258. Similarly, in Auburn, the Court invalidated an ordinance that required a carrier to submit a lengthy and detailed application form (together with technical detail about the carrier's services such as maps, license documentation, corporate policies and other information at the municipality's discretion), and then submit to a public hearing and a municipal decision process that vested a significant degree of discretion in the municipality. 260 F.3d at 1175-76; see also Qwest Corp. v. City of Portland, 385 F.3d 1236, 1240 (91h Cir. 2004). In Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (91h Cir. 2007) ("Sprint San Diego"), the Ninth Circuit held that a combination of burdensome and voluminous application submission requirements, extensive, subjective, aesthetic discretion vested in a decision-maker, public hearing requirements and penalties for noncompliance in the zoning ordinance raised similar concerns under Section 253 as the court had expressed in the Auburn case. Id. at 715-16. Contrary to contentions in the City's Brief that Section 253 is violated only where a zoning scheme has the actual effect of preventing all telecommunications providers from providing services, the Ninth Circuit has been clear that to prove a violation of Section 253, it is not necessary for a telecommunications provider to show actual impact on the ability to provide telecommunications services; rather, what is expressly preempted T-MOBILE HEARING BRIEF-16 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -IOHH Avenue NE · Suite 2300 Bellevue, Washington 98004-5149 (425) 646-6100 Fax: (425) 646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 is any regulation "that may have the effect of prohibiting the provision of telecommunications services .... " Id. (quoting Qwest Corp. v. City of Portland, 385 F.3d 1236, 1241 (9 1h Cir. 2004) (emphasis in original). As discussed above, individually and on the whole, the City's requirements imposed on T-Mobile in this case are much like those preempted by the Ninth Circuit in these prior cases. On their face, the requirements of the City of Renton for permission to construct a communications facility within the public right-of-way prohibit or may have the effect of prohibiting T-Mobile's provision of telecommunications services in violation of Sections 253 of the Act. 2. The City's Code Is Not Saved By Section 253(b) Although the City sketches out a potential defense under Section 253(b) to T- Mobile' s Section 253(a) claim, City's Br., al 9, Section 253(b) is not applicable to the City. While Section 253(c) (discussed in detail below) applies to State or "local government," 47 U.S.C. § 253(c), Section 253(b), by its plain terms, reserves authority only for the State. 47 U.S.C. § 253(b). If Congress had intended to reserve to cities the authority reserved in Section 253(b), it would not have drawn the distinction. Southwestern Bell Wireless, Inc. v. Johnson County Bd. of County Comm 'rs, 199 F.3d 1185, 1192 (10th Cir. 1999), cert. denied, 530 U.S. 1204 (2000). Nonetheless, some courts have held that a city may use Section 253(b) as a defense where the State has "specifically delegated" authority to regulate telecommunications providers to protect public safety, see, e.g., Cox Communications PCS, LP v. City a/San }vfarcos, 204 F. Supp.2d 1260, 1264 (S.D. Cal. 2002) (quoting Bel/south Telecomms, Inc. v. City of Coral Springs, 42 F. Supp. 2d 1304 (S.D. Fla. 1999)), but that is not the case here. T-MOBILE HEARING BRIEF -17 DEL 409743v2 0048172-000261 Davis Wright Tremaine LLP lAW OFFICES 7i7 108Tll Avenue NE · Suite BOD Bellevue. Washington ~~00~-)149 (lll) G46-0IOO · Fax: {'25) 646-6199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 There is no evidence or assertion by the City here that it has been delegated authority to regulate for public safety and welfare specifically with regard to telecommunications providers. Even were the City to assert that its zoning regulations are an exercise of its general police power to benefit public health, safety and welfare, such as assertion would not avail it, because as discussed above, the general delegation of police power is not what Congress intended to address in Section 253(b ). Moreover, the Washington State Legislature has enacted RCW 35.99.040 which specifically recognizes that a Washington city's zoning authority and police powers over telecommunications providers is limited by Section 253. RCW 35.99.040(2)(c) provides that "nothing in this chapter ... limits the authority of a city or town to regulate the placement of facilities through its local zoning or police power, if the regulations do not otherwise: (c) violate section 253 of the telecommunications act of 1996 .... ") (emphasis added). Thus, rather than legislating that the City's general police and zoning authority trump the limitations of Section 253, the Washington Legislature has specifically dictated the opposite -that the City's zoning and police powers are subrogated to the limitations of Section 253. In addition, RCW 35.99.040(1) (a) and (c) prohibit cities from regulating the services or business operations of telecommunications providers, thus further indicating that the regulatory authority "saved" by Section 253(b) has not been delegated to the City.9 9 RCW 35.99.010(6) defines "service providers," as used in RCW 35.99.040, as "every corporation ... owning, operating, or managing any facilities used to provide and providing telecommunications ... service .... " RCW 35.99.010(7) defines "telecommunications service" as "the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public." (Emphasis added). Thus, T-Mobile is a "service provider" protected by RCW 35.99.040. T-MOBILE HEARING BRIEF-18 BEL 409743v2 0048 l 72-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE · Suite ZJOO Bellevue, Washington 98004-5149 (425)646-6100 · F'ax. (415)646-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3. The City's Requirements Are Not Within the Narrow Authority Reserved to the City Under Section 253(c). I-Mobile having established that the City's actions and requirements violate Section 253(a), the burden shifts to the City to establish, as it alleges, City's Br., 9, that the challenged provisions are within its authority under Section 253(c). TC Sys. Inc. v. Town of Colonie, 263 F. Supp. 2d 471,484 (l\.D.N.Y. 2003). Under Section 253(c), the City may "manage" use of the public rights-ol~way and require fair and reasonable compensation for use of the public rights-of-way. However, such management and compensation must be competitively neutral and nondiscriminatory. 47 U.S.C. § 253(c); see, e.g., Auburn, 260 F.3d at 1177. l\loreover, the Ninth Circuit has definitively held that Section 253(c) "saves" only those municipal requirements that are "directly related" to management of the public rights-of-way. Auhurn, 260 F.3d at 1177-78; see also TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 81-82 (2"d Cir. 2002); Colonie, 263 F. Supp. 2d at 484-85. In Qwest Communirntions Corp. v. City of Berkeley, the Ninth Circuit explained that proper "management" activities include "coordination of construction schedules, determination of insurance, bonding and indemnity requirements, establishment and enforcement of building codes, and keeping track of the various systems using the rights-of-way to prevent interference between them." 433 F.3d 1253, 1258 (9 111 Cir 2006). This can be contrasted with demands for "information [ such as] the nature of the requested use, the uses of adjacent buildings and structures, [or] the location and dimensions of all structures, yards, walls, fences, parking and loading facilities," which have "little to do with managing the physical integrity ol'the rights-of-way ... and cannot be viewed as management of the rights-of-way preserved by section 253(c)." NextG Los Angeles, 522 F. Supp. 2d at 1254-55. T-MOBILE HEARING BRIEF -19 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -IOSTH Avenue NE · Sune nrh1 Bellevue, Washington noo4-5149 (425) 646-6100 Fax: (415) 646.6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The City's requirements here effectively require that T-Mobile obtain not only a franchise agreement and a right-of-way permit in order to locate a facility within the public right-of-way, but also endure a conditional use process that requires T-Mobile to demonstrate compliance with a host of vague and discretionary criteria such as whether the design characteristics of the pole have the effect of reducing or eliminating "visual intrusiveness", whether "adverse impact on the community is minimal" or whether the total number of towers in the community is "minimized." RMC 4-9-030(1); RMC 4-4- 140(B). None of these requirements have anything to do with the legitimate management of the right-of-way as outlined by Auburn and its progeny, and such requirements are not within the limited "safe harbor" of Section 253(c). 4. The City's Denial Violates Section 332(c)(7)(B) and the Provisions of332(c)(7)(B) Incorporated into the City's Own Code In addition to the facial invalidity of the City's wireless communications public right-of-way zoning scheme under Section 253 discussed above, the City's application of its code to deny T-Mobile's requested ACUP at the proposed right-of-way location is invalid under Section 332( c )(7)(B)(i)(II) of the Act because it prohibits or has the effect of prohibiting the provision of wireless services. This violation is particularly egregious here because the City's own wireless facilities ordinance expressly incorporates the substantive prohibitions of the Act against improper wireless telecommunications decision-making. See RMC 4-4-140(E). Courts across the country have invalidated wireless facility permit denials pursuant to the authority of Section 332(c)(7)(B)(i)(Il) of the Act. See, e.g., Omnipoinl Communications v. Town a/Lincoln, 107 F. Supp. 2d 108 (D. Mass. 2000) (gap in network T-MOBILE HEARING BRIEF -20 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE • Suite HOO Bellevue, Washington 98004-.1149 (425) 646.6100 · Fax· (H.'i) 646~199 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 coverage over busy highway was significant and town violated Act in denying permit for only workable site that covered the gap); Nex1el Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187, 1189 (W.D.N.Y. 2003) (denial ofan application to collocate antennas on an existing structure prevented users from reaching facilities to make phone calls and violated Act "effect of prohibiting" clause); Independent Wireless One v. Town of Charlotte, 242 F. Supp. 2d 409,420 (D. Vt. 2003) (denial of application to install antennas on existing farm silos prevented canier from filling significant network gap and threatened to give existing carriers service monopoly); Cingular Wireless v. Thurston County, 425 F. Supp. 2d 1193 (W.D. Wash. 2006) (overturning denial of permit where proposed tower site filled significant gap in carrier's coverage). Collectively, these decisions stand for the proposition that the Act establishes clear boundaries governing wireless zoning decisions. Courts interpreting§ 332(c)(7)(B)(i)(ll) recognize that in enacting these boundaries, Congress intended to promote the "twin goals of encouraging competition in the wireless services industry and facilitating efficient use of bandwidth." MetroPCS, Inc. v. City and County ofSan Francisco 400 F.3d 715, 731 (9'h Cir. 2005). For a§ 332(c)(7)(B)(i)(II) claim. the Ninth Circuit has defined "[A] two-prong analysis requiring (I) the showing of a "significant gap' in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations." Id. at 731. The court in MetroPCS held that in evaluating whether a significant gap exists, the appropriate inquiry is whether there is a gap in the canier's own service coverage. Id. at 732.10 The court in Me/roPCS further held that once a carrier demonstrates the existence of a significant coverage gap, the inquiry then shifts to determining whether "the manner in 10 Thus the argument of the City that it is relevant whether other caniers can provide service to the area T-Mobile seeks to cover, City's Br. at 11, is unavailing. T-MOBILE HEARING BRIEF -21 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -lllkTH Avenue NE · Sui!e HOO Bellevue, Washington 98004-5149 (415)646-6100 · Fax:(425JM6-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 which [ the carrier] proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve." Id. at 734 ( quoting APT Pittsburgh Ltd. Partnership v. Penn Township Butler County of Pennsylvania, 196 F.3d 469,480 (1999)) (emphasis added by MetroPCS court). In adopting this standard, the Ninth Circuit expressly rejected a narrower standard used by the First and Seventh Circuits that requires a showing that there are no alternative sites that would close the coverage gap: "the First and Seventh Circuit requirement that a provider demonstrate that its proposed facility is the only viable option seems too exacting." Id. at 734; see also, T-Mobile Central, LLC v. Unified Gov't of Wyandotte County, 2007 WL 12893579 *28 (D. Kan. 2007) (injunction stayed pending appeal, 2007 WL 4201165 (D. Kan. 2007)). As the federal district court for the Western District of Washington has recognized, in order to satisfy the "least intrusive means" test, the carrier need only show "a good faith effort has been made to identify and evaluate less intrusive alternatives .... " Thurston County, 425 F. Supp. 2d at 1195 (quoting Penn Township, 196 F.3d at 480). The record here before the City of Renton reflects that T-Mobile has a significant gap in its network coverage in the vicinity of the proposed right-of-way location. See RF Site Rpt. at 3 and attachments thereto; see also Tr. 42-44. In order to close that gap and provide service in the City, T-Mobile first proposed to construct a monopole at the SPU site. When intake of that application was refused, T-Mobile then sought permits for the proposal now before the Council. The evidence submitted by T-Mobile in support of its choice meets the "good faith" showing test, and was erroneously rejected by the City. T-Mobile's RF engineering site report and testimony at the hearing reflects that in addition to its unsuccessful effort to obtain permits for the SPU site, I-Mobile considered I-MOBILE HEARING BRIEF -22 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -JOHH Avenue NE · Suite HOO Bellevue, Washington 98004-5149 (H5)U6-6100 • Fax. (425)U6-6199 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 several other alternatives lo the proposed location. With respect to the identification of alternatives, the RF engineer stated: To provide coverage in [the area of the gap] it is necessary to locate a wireless communication facility ("WCF") within the search area [referring to Attachment 2 to the Site Report]. The search ring is not the same thing as the coverage to be obtained. The search ring shows the location in which a WCF must be located to provide the necessary coverage to the area in the system that has the coverage gap. RF Site Rpt. at 3 ( emphasis added). On the next page of the report, the engineer discussed how T-Mobile seeks out sites within the search ring that may be appropriate candidates, and the factors that govern the ranking of those candidates. The engineer then states: After viewing the area, the candidates considered for location, included: 1. Existing utility wooden pole on east of 4401 SE 3rd Pl. 2. Existing utility wooden polc/PSE 167152 at SE 3rd & Anacortes 3. Existing utility wooden pole/PSE 167225 at SE 3rd & Anacortes 4. Existing utility wooden polc/PSE 167123 at SE 3rd & Anacortes 5. Existing light pole/PI 78 5 at SE 3'd & Anacortes 6. Rawland monopole at 400 Union Ave SE Eliminated from consideration are sites where zoning ordinances prohibit the location, insufficient room for mechanical equipment is available, required setbacks cannot be achieved or landowners are not interested in leasing property. The subject location would provide the best coverage with the least impact to the surrollllding area. RF Site Rpt. at 4. Regarding the selection among these alternatives, Kris Conaxis testified on behalf ofT-Mobile that the aesthetic impacts of collocating on an existing utility pole or light pole were very similar among the alternatives: "T-Mobile would ask if this [the proposed] T-MOBILE HEARING BRIEF -23 HEL 409743v2 0048112-00026 l Davis Wright Tremaine LLP LAW OFFICES 711 -108TH Avenue NE · Sunc 2100 Bellevue, Washing1on noo•-5149 (42S) 646.61 oo · Fax· (425) 646·6 l 9? I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 facility doesn't meet the intent of the Comp Plan for screening ... how are we going to pick any other utility pole on any of these streets that are going to meet the criteria of the Code and be screened?" Tr. 47. The Hearing Examiner admitted that T-Mobile was essentially correct in identifying the difficulties with the site alternatives: The appellant is probably correct when they state that: 'Any candidate considered or will be considered in a residential designation will meet the same opposition; just different residents.' The City has created a potentially hard criteria to satisfy .... Hearing Examiner decision, Conclusion of Law 6. Despite his acknowledgement of the inherent dilemma created by the existence of a significant gap in the T-Mobile network in a residential zone on the one hand, and the bias of the Code to zone wireless communication facilities out of residential zones on the other, see RMC 4-4-140 (B), the Hearing Examiner nevertheless upheld the denial issued by the Development Director on the basis that T-Mobile had not considered alternatives that the T-Mobile witnesses had already testified were not located within the search ring. It was on this basis that the City concluded----erroneously-that T-Mobile did not consider any alternatives to the proposal. T-Mobile clearly did consider alternatives; the City, however, wished T-Mobile to also consider additional alternatives, even though those would not fill the significant gap. The standards of MetroPCS do require a wireless carrier to make a good faith effort to identify and evaluate less intrusive alternatives that would fill the coverage gap. Thurston County, 425 F. Supp. 2d at 1195. The standards do not require, however, that the carrier shift its search to alternatives that would not fill the gap, or that would not be any less intrusive. The carrier is not required by MetroPCS to prove that its preferred site is the only viable option-as discussed above, such a strict standard has been rejected by the T-MOBILE HEARING BRIEF -24 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE · Suue noo Bellevue, Washington 98004-Sl49 (42S)&46-6l00 · Fax:(05)646-6199 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 Ninth Circuit. Yet here, that is the effort that the City would require ofT-Mobile. The City's Brief argues that the denial was proper because "T-Mobile has not shown that alternate locations would not allow them to meet their need to fill a significant gap." The City supports this contention by reference to testimony of the Department Director, Neil Watts, that "if T-Mobile had been able to demonstrate that all the other sites did not provide adequate service it would be much harder to deny this request." City's Br. at 14. The City's reliance upon this testimony by Mr. Watts proves that the City seeks to justify its denial to T-Mobile based upon the ·no other viable option' test of the First and Seventh Circuits, which the Ninth Circuit has expressly rejected. Thus the City's defense to T- Mobile's Section 332(c)(7)(B)(i)(II) claim fails.11 C. The Hearing Examiner Decision Erroneously Applied the Law and is Not supported by Substantial Evidence 1. The T-Mobilc Application is Governed by the Decision Criteria ofRMC 4-9-030(J). Section 4-4-140 of the Renton Code '·establish[ es] general guidelines for the siting of wireless communications facilities, including towers and antennas." RMC 4-4- 140(A).12 For applications that require a conditional use approval, the Code sets forth 11 The City's Brief points to the criteria of Rtv1 C 4-4-140(B)( 1 ), (3) and ( 4) as the legal basis for the Hearing Examiner's decision, and argues that these goals somehow can be "balanced" with the requirements of the federal Communications Act, with the result that the City's goals may outweigh the Act. City's Br. at 14. This contention is obviously flawed. Whatever the "goals" stated by the City ordinance, if the application of that ordinance results in a decision that violates the Act, it is the decision under the ordinance, and not the federal Communications Act, that must fall. 12 RMC 4-4-140 provides specific location and permitting standards applicable to wireless communication facilities ("WCF"); these standards are set forth in a table, according to the type of WCF The definitions of the listed types of WCF are found in RMC 4-11-230. One of the problems encountered by T-lv1obile in its efforts to obtain a land use permit for the proposed right-of-way facility is that the code does not recognize or establish a WCF type that matches T-Mobile's proposal. This issue was discussed at length in the hearing. T-MOBILE HEARING BRIEF -25 BEL 409743v2 0048172-00026 l Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE -Suiie 210!1 Bellevue, Washtngton 91004,j\49 (425) 646-6100 fax· (42SJ 64~-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 separate, wireless, criteria, in lieu of the standard conditional use decision criteria. Compare RMC 4-9-030(]) (Special Decision Criteria for Wireless Communication Facilities in Lieu of Standard Criteria) with RMC 4-9-030(G) (Decision Criteria). Thus, the assertion by the City in its Brief at 4-5 that the T-Mobile (or any wireless) application is governed by the factors of RMC 4-9-030(G) is incorrect. To the contrary, wireless facility conditional use applications, including T-Mobile's, are governed by the special wireless facility decision criteria of 4-9-030ffi. A further error of the City in briefing this matter is the contention that the administrative conditional use permit decision process here is governed by a presumption that the use is "normally prohibited" unless justified. This contention ignores the directive of RMC 4-2-050 which states in pertinent part: 4-2-050 PERMITTED LAND USES ESTABLISHED: A. CATEGORIES OF USES ESTABLISHED: This Section establishes permitted, conditional, accessory and prohibited uses, by zone, for all properties within the Renton City Limits .... : PERMITTED USES: Land uses allowed outright within a zone. CONDITIONAL USES (ADMINISTRATIVE): Land uses which may be permitted within a zoning district following review bv the Development Services Division Director to establish conditions mitigating impacts of the use and to assure compatibility with other uses in the district. CONDITIONAL USES (HEARING EXAMINER): Uses with special characteristics that may not generally be appropriate within a zoning district, but may be permitted See Tr. 56-63. T-Mobile's proposal was submitted and processed as a Monopole I, even though the proposal does not involve locating a new structure in the right-of-way, but rather involves replacing an existing power pole with a somewhat taller pole in order to facilitate T-Mobile's collocation on the power pole. Testimony before the Hearing Examiner made clear that the electrical utility, PSE, does not allow collocation on a power pole unless the pole is structurally capable of supporting the additional weight, and that in most cases this will mean that there will be a replacement pole installed. Tr. 101-02 (transcript erroneously identifies Conaxis as Hearing Examiner). T-MOBILE HEARING BRIEF -26 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE · Suit~ l.300 Belle,·ue, Washington 98004-SIO (415) 646-6100 · Fax: (05) M6-6199 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 subject to review by the Hearing Examiner to establish conditions to protect public health, safety and welfare (Emphasis added). These provisions clearly distinguish between administrative conditional uses which are to be permitted with appropriate mitigating conditions, and hearing examiner conditional uses which are "generally not appropriate within a zoning district" unless the hearing examiner can establish protective conditions. The City's Brief incorrectly characterizes the process that applies to the T-Mobile application not only as to the governing decision criteria, but by its assertion that the negative presumption of the hearing examiner conditional use applies to the T-Mobile application. Because the T-Mobile application is subject to the administrative conditional use process (and not the hearing examiner process), this assertion is incorrect. Both the Director in his administrative denial ofT-Mobile's application, and the Hearing Examiner in his decision upholding the administrative denial, relied principally on aesthetics to justify the denial. The Hearing Examiner held at Conclusion 4 that "Unless the facility can be made aesthetically appropriate, the Director was correct in his determination." Both decision-makers appear to have implicitly determined that unless the facility could be completely screened, it would be aesthetically (in)appropriate. See Director's Decision at 5, opining that "there are existing trees in the surrounding neighborhood; however staff has concerns regarding the lack of screening ... in the immediate vicinity of the monopole:" compare Examiner notation that staff concluded that there was a "lack of trees in the immediate vicinity" and conclusion that "screening [is] impossible." Examiner Fact Finding 5: Conclusion of Law 4. Such conclusions are at odds with the specific directives of RMC 4-4-140(F)(2) concerning "visual impact:" T-MOBILE HEARING BRIEF -27 BEL 40974Jv2 0048172-000261 Davis Wright Tremaine LLP LAWOFFICF.S 771 -108TH Avenue NE Su11c 21ml Bellevue, Washington 9S004-5149 (415) 646-Gl()(l • Fax: (415) 646.&199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 [Wireless facility] site location ... shall preserve the pre- existing character of the surrounding buildings ... to the extent consistent with the function of the communications equipment. Wireless communication towers shall be integrated ... to blend in with the existing characteristics of the site to the extent practical. (Emphasis added). Both the Director and the Hearing Examiner gave insufficient weight to the record evidence that there were no other, better, locations within the search ring, and to the uncontroverted evidence in the RF Site Report that any alternatives must be located within the search ring in order to be able to cover the significant gap. Furthermore, both decision-makers discounted the record evidence that there will be screening of the proposed facility. See RF Site Rpt., photosimulations; see also Tr. 89. Although there will not be complete screening, the taller wooden utility pole will be very similar in basic appearance to the existing wooden pole, and it will blend better into the background of the neighborhood because of the area trees than it would if there were no neighborhood trees. The denial decisions are based on a bias that complete screening should be attained, but the Renton City Code does not require this. Furthermore, as Mr. Conaxis testified during the hearing, complete screening would render the communications purpose of the proposal nonfunctional. See, e.g., Tr. 19. The Hearing Examiner's decision acknowledges that given the inherent characteristics of the right-of-way, complete screening of a wireless facility is not possible at this, or any other, public right of way location. It is inherent in the nature of the public right-of-way that such a location is typically exposed to view. Were there sufficient trees to screen this utility pole, PSE presumably would have to remove them because of the threat they would pose to the electrical lines. In adopting code provisions that allow wireless facilities within the public right-of-way, the Renton City Council has already made a legislative determination that this type of location I-MOBILE HEARING BRIEF -28 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -108TH Avenue NE · Suite 2JOO Bellevue, Washmg1on 98004.5149 (425)646-{;100 · Fax (425)M5--li199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 is appropriate for such facilities. Given the nature of the typical right-of-way, and the nature of communications facilities. the acceptance of some visual impact to the surrounding area is inherent in the ordinance. This fact is expressly acknowledged in the I, ordinance, see RMC 4-4-l 40(F)(2). ' In light of this prior legislative determination, and given the nature of the administrative conditional use process, see RMC 4-2-0SO(A), the appropriate task of the Director and the Examiner on review 01this ACUP application was to determine what mitigating conditions to impose to ameliorate impacts. Given that (I) T-Mobile had already been excluded from the SPU site, (2) had delayed re-application pending the City's promised adoption of the amendments that would allow wireless facilities in the public right-of-way, (3) has a significant gap in its coverage in the residential area where the site search ring is located, and (4) had no other, less intrusive, alternatives within that search ring, the requested permit should have been granted. The proposed T-Mobile site is the best achievable in this location. The Code does not require aesthetic perfection, and it was error for the City to refuse to grant the permit based on the lack of such perfection. III. CONCLUSION For all of the above reasons, the Renton City Council Planning & Development Committee should recommend to the Renton City Council that the Hearing Examiner's decision upholding the denial by the Development Director of an administrative 13 Citizen testimony concerning potential effects on property values, see Bonnie Watson letter received July 23, 2007 by the Council and letter to Gitchel from Ames dated July 17, 2007, was general in nature and reflected speculation and exaggerated fears (Ames cited to "Internet controversy". This evidence was rebutted and outweighed by a professional Market Study prepared by Michael Essig and submitted by T-Mobile, concluding that there is no impact on property values from wireless facilities. Although this study contained copious data and was analyzing the effects of a WCF on a site located within a residential zone, it was erroneously ignored or dismissed by the decision-makers. This was error. T-MOBTLE HEARING BRIEF -29 BEL 40974Jv2 0048 l 72-000261 Davis Wright Tremaine LLP LAW OFFICES 777 -JOHH Avenue NE · Suite nc,o Bellevue, Wa~hington 9S004-51~9 C42l) 646-0100 · Fu. (425)646-6199 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 conditional use permit to T-Mobile should be reversed. The Renton City Council should remand the T-Mobile application to the Development Director with instructions to grant the requested administrative conditional use permit and right-of-way permit to T-Mobile. DATED this 28th day of March, 2008. T-MOBILE HEARING BRIEF -30 BEL 409743v2 0048172-000261 Davis Wright Tremaine LLP Attorneys for T-Mobile By~M~ Linda White Atkins WSBA #17955 Davis Wright Tremaine LLP LAW OFFICES 111-lOHH Avenue NE · Suite 2100 Bellewe, Washington 9S004-S149 (Hl)646-6100, Fuc(42S)646-6l99 ATTACHMENT 1 ~ s5 s.u·a· 'l ,_ S{ 0 • ' ' I~ SJ ' ' i'll ~ ~ Ii. ~ ~ ~ ,, !vi :• :~ N ' ' !' ~ I~ 1 ,ri ' -. ' ' ..s&!"L.rN• " !;r ' " :, ~ ! ~ 47 :j6 JJil TI~j~ ~111]JJilTI~IlB DDD'\Jv>D~DaD~ SECTION 15 TWP Z3 N I zrc l 3 " 4{ 45· TI] dD v~i? ~ ~ ~aD Jl R.5, E.1/1/ :Vl e ATTACHMENT 2 CITY OF RENTON, WASHINGTON ORDINANCE NO. 5083 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO VOICESTREAM PCS III CORPORATION, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND MASTER USE AGREEMENT TO INSTALL TELECOMMUNICATION FACILITIES TOGETHER WITH APPURTENANCES THERETO, UPON, OVER, UNDER, ALONG, AND ACROSS THE STREETS, A VENUES AND ALLEYS OF THE CITY OF RENTON WITHIN CITY RIGHT OF WAY AND PUBLIC PROPERTIES OF THE CITY. TIIB CITY COUNCIL OF TlIB CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. Master Use Agreement There is hereby given and granted unto VOICESTREAM PCS III CORPORATION, a Delaware Corporation, its successors, and assignees for a period of 10 years from the effective date of this master use agreement, the rights, privileges, and authority to construct, operate, maintain, replace, alter, remove and repair one or more wireless communications facilities ("Facilities"), together with all equipment, support structures, conduit, cables and appurtenances of Grantees' systems, under, along, over, below and through certain public right-of-way and other public lands within the City of Renton. The following City codes shall apply to this agreement in their entirety: City Code 4-2-080A 5-19-05 4-4-140 5-19-07 4-2-070 5-19-08 4-5-050B 5-19-09 4-11-230 5-19-10 ORDINANCE NO. 5083 SECTION II. Non-Exclusive Master Use Agreement (Code 5-19-5) This Master Use Agreement is granted upon the express condition that it shall not be deemed or held to be an exclusive agreement in, along, over, through, tmder, below or across any of said public rights-of-ways, public thoroughfares, sidewalks, and utility easements within the City of Renton. Such agreement shall in no way prevent or prohibit the City of Renton or its tenants from using any of said roads, streets or other public or tenant properties or affect its jurisdiction over them or any part of them. The City of Renton retains full power to make all necessary changes, relocation's, repairs, maintenance, establishment, improvement, dedication of same as they may deem fit including the dedication, establishment, maintenance and improvement of all new rights-of-ways and thoroughfares and other public properties of every type and description. VoiceStream PCS III Corporation, as Grantee herein, agrees and covenants at its sole cost and expense to protect, support, temporarily disconnect, relocate or remove from any street any of its installations when so required by the City of Renton, upon not less then ninety (90) days prior written notice. Cause for the City of Renton to issue such notice include, but are not limit to, traffic conditions, public safuty, street vacations, dedications of new rights-of-ways and the establishment and improvement thereof, freeway construction, change of establishment of street grade or the construction of any public improvement or structure by Government agency acting ~ a Government capacity (''Redevelopment"). The Grantee shall in all such cases have the privilege to temporarily by-pass, in the authorized portion of the same street, upon approval by the City of Renton, any section of the System required to be temporarily disconnected or removed If Grantee is tmable to by-pass the affected Facilities during the City's Redevelopment, the City and Grantee shall reasonably cooperate to allow Grantee to operate a temporary facility on property owned, operated or controlled by City in the immediate vicinity, if possible. In the event Grantee must permanently relocate any Facilities due to such Redevelopment by the City, the City agrees to use best efforts to relocate Grantee's Facilities to an adjacent right of way area. Grantee may, after receipt of written notice requesting a permanent relocation of its Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such ahenmtives and advise Grantee in writing if one or more of the alternatives are suitable to accommodate the work, which would otherwise necessitate relocation of the Facilities. If so requested by the City, Grantee VOICESTI\EAMIT-MOBILE 2 ORDINANCE NO. 5083 shall submit additional relevant infonnation to assist the City in making such evaluation The City shall give each ahemative proposed by the Grantee full and fuir consideration, within a reasonable time so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately detennines not less than fifteen (15) days from the commencement of such work by the City tbal there is no other reasonable ahemative, Grantee shall relocate its Facilities as otherwise provided in this Section SECTION III. Location of Facilities: The location of facilities shall be underground or in accordance with City code 5-19-S(I) I through 4 as conditions warrant. SECTION IV. Master Use/Franchise Construction Permit (Code 5-19-9): A Master Use/Franchise Construction pennit application with three (3) sets of plans is required for each proposed project. All construction, and installation of work wherever same crosses any of the public properties shall be done under the supervision of the duly authoriz.ed representative of the Planning/Building/Public Works Administrator, and Grantee shall timely submit unto the Public Works Administrator, prior to any such work, detalled plans and specifications of any proposed work. The location of any Permit on public property in a street, Municipal Airport, or other public area shall be subject to approval of the Public Works Administrator or his authoriz.ed representative and such approval shall be provided in writing. The Grantee shall further inform the City of any time or date that the Grantee is performing work within the :franchised area to allow the City to inspect such work. Work within City Streets shall be accomptished through boring rather than open trenching whenever reasonably feasible. New fucilities installed within City rights-of-way shall be located outside of the street travel and parking lanes, whenever feasible and will not delay or increase the costs of the proposed facilities. The Master Use/Franchise Construction permit fee is stated in Section 18 of this agreement document. SECTIONV. System Components: All components of the System and other components of any communication line, to be placed within any street right-of-way, Municipal Airport, or other public property shall be VOlCESrnEAMIT-MOBILE 3 ORDINANCE NO. 5083 designated, manufactured and installed in accordance and in full compliance with industry standards and applicable ordinances. Placement of conduit in street crossings shall be PVC schedule 80 or steel conduit. Schedule 40 PVC is acceptable in areas outside the roadway. SECTION VI. Permanent Records (Code 5-19-9)(N): The Grantee shall at all times keep full and complete plans, profiles and records showing the location, installed depth and size of all its installations and SYstems wherefore laid in the City and hereafter installed. Such plans and records shall be kept current by the Grantee. As-built plans and records shall be available to the City at all times upon request. A telephone contact number for requested plans shall be supplied to the City and kept current. SECTION VII. Planning/or Construction: During any period of construction, all surface structures, if any, shall be erected and used in such places and positions witbin said public right-of-way, and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property and tenants and Grantee shall at all times post and maintain proper barricades during such period of construction as required by the laws and statutes of the State of Washington. The Grantee shall avoid the use of arterials as designated by the City of Renton Arteria!Street Map, defined by the Transportation Department and recently constructed or paved overlaid streets as much as possible. Specific route alignments are subject to approval by the City via the construction permitting process. All components of the System constructed and installed by the Grantee underground, witbin the City of Renton, shall be located in approved locations, buried and installed to a depth of not less than three feet and as otherwise provided for in the aforesaid Code, the Jaws of the State of Washington, and the ordinances of the City of Renton, now or hereafter in force, regulating such installations. Grantee shall establish and maintain at all times adequate facilities on the portion of each of the 5Ysterns installed under the authority of this agreement, and elsewhere on the system, to promptly localize operating troubles and to minimize the effects thereof; whether on City streets or on their use by the public. AU tr11ck, vehicles and equipment working in City right-of-way shall be marked with company logo, including company name and phone numbers. VOICESTREAMT-MOBILE 4 ORDINANCE NO. 5083 Approved traffic control plans shall be utilized fur each installation when working in the public right-of-way (code 5-19-1 l)(F). The Grantee shall be responsible for all work by their contractor, meeting the requirements of the Manual on Uniform Traffic Control Devices {MUTCD) for all work within the public right-of-ways. The Grantee shall be responsible for notifying the Valley Communication Center for any street closures. a minimum of24 hours prior to said closure. The Grantee shall subscribe to and maintain membership in the regiolllll "One-Call" utility location service and shall promptly locate all of its lines upon request. SECTION VIII. Restoration And Repair of Facilities (Code 5-19-JO)(H): Grantee, its successors and assignees, hereby agrees and covenants to promptly repair any damage to City or tenant property of every type and nature and all other City or tenant improvements caused by fuilure of Grantee's work during the Jifu of this Agreement. Should it be necessary to make any excavation within any public right-of:.way, in the laying, constructing, maintenance, removing, replacing, altering or repairing of all or any portion of the system, Grantee shall without delay and at Grantee's sole cost and expense, restore the surface of said right-of-way or other public or tenant property to at least the same condition immediately prior to any such installation and construction. In case of damage by the Grantee to said streets, avenues, roads, alleys, lanes, public places and ways, to the pavement, turnouts, gutters, ditches, walks, · poles, pipes, plantings, rail, bridges, trestles, wharves or landings, and/or other appurtenances and improvements, the Grantee shall immediately repair all damage at its sole cost and expense. Grantee shall comply with all ordinances and regulations of the City of Renton, Washington, regarding such excavation and whenever deemed necessary by the Public Works Administrator shall be required to post a perfurmance bond in favor of the City warranting, among other things, that such restoration work will be done promptly to a condition eqlllll or better than the original condition and in a proper, workman like manner. Where concrete encased recorded monuments have been disturbed or displaced, Grantee shall restore the monument to federal state and local standards and specifications. VOJCESTREAM/f -MOBILE 5 ORDINANCE NO. 5083 · All restoration of public streets, sidewalks and other amenities shall conform to current City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City ofRenton's Trench Restoration Standards. As a condition of receiving the right to work within the public right-of-way, VoiceStream PCS III Corporation shall assume full responsibility for using materials and installation methods that are in full compliance with City Standards and shall verify this by submittal of docwnentation of materials and testing reports when requested by the City. All costs for performing on-site testing, such as Compaction tests, shall be borne by VoiceStream PCS III Corporation. SECTION IX. Hold Harmless Agreement: The Grantee, its successors and assignees, agrees and covenants to indemnify and hold harmless the City of Renton from and against any and all liability, loss cost, damage, whether to persons or property, or expense of any type or nature to the extent it arises (collectively, ''Claims") from any negligent act or omi~sion or willful misconduct of Grantee, its successors and assigns arising from or connected to the Grantee's work under this Agreement, except to the extent any such Claim is due to the negligence or intentional acts of the City, its employees, agents or independent contractors. In addition, in case any suit or action is instituted against the City by reasons of any such damage or injury, City shall (i) cause written notice thereof to be given llllto Grantee and (ii) give all reasonably requested assistance in defense or settlement of such claim at Grantee's expense, and (iii) grant Grantee the right to control the defense or settlement of such claims. SECTIONX. Liability Insurance (Code 5-19-10 (0, P, Q & R): VoiceStream PCS III Corporation shall maintain in full force and effect throughout the term of this agreement, Comprehensive General Liability insurance coverage, inclusive of umbrella coverage, insuring both the Grantee and the City and its elected and appointed officers, officials, agents and employees as additionally insured as follows: I. Comprehensive general liability insurance, inclusive of umbrella coverage, with limits not less than: a. Five million dollars ($5,000,000) for bodily injury or death to each person; b. Five million dollars ($5,000,000) for property damage resulting from any one accident; VOJCESTREAM/T-MOBILE 6 ORDINANCE NO. 5083 2. Automobile liability insurance for owned, non-owned and hired vehicles, inclusive of umbrella coverage, with a limit of three million dollars ($3,000,000); 3. Worker's compensation with statutory limits and employer liability insurance, inclusive of umbrella coverage, with limits of not less than one million dollars ($1,000,000); and 4. Comprehensive form premises -Operations, explosions and collapse hazard, underground hazard and products completed hazard, inclusive of umbrella coverage, with limits of not less than three million dollars ($3,000,000). The Grantee shall submit to the City Clerk evidence that it has in full force and effect and shall keep in full force and effect during the life of the Agreement, comprehensive general liability insurance naming Grantee and the City of Renton as additional insured with coverage as stated above. It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 30 days after receipt by the City, by registered mail, of a written notice addressed as required by such intent to cancel or not renew. After receipt by the City of said notice, and in no event later than ten days prior to said cancellation, the Grantee shall obtrun and furnish to the City replacement insurance policies meeting the requirements of this section. SECTION XL Revocation or Termination of Grant (Code 5-19-JO}(U &f'.): For the purpose of compelling compliance by the Grantee with all the tenns and conditions of this Agreement and the maintenance of said System and facilities in good condition, City retains the right to end and terminate and fully forfeit the Agreement herein granted, within (30) thirty days after written notice unto the Grantee, whenever the Grantee fuils to comply with any of the material terms and conditions hereof; provided that Grantee has a reasonable length of time in which to cure such noncompliance. Upon forfeiture the City shall have the right to require the Grantee to remove any and all of its systems within the City of Renton, all at the Grantee's cost and expense, and to promptly and timely restore all roads and other public properties to the condition innnediately prior to any such forfeiture and termination. VOICESTREAM/T-MOBILB 7 ORDINANCE NO. 5083 However, the Grantee may apply to the City for an extension of time to comply due to unavoidable delays and events beyond its control. The extension of time will not be unreasonably withheld as determined by the City. SECTION XII. Reservation of Rights (Code 5-19-12)(0): The Grantee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City at all times and the City shall enforce general ordinances necessary to protect the safety and welfare of the public. The Grantee agrees to comply with all applicable general laws enacted by the City as long as such regulations do not increase the burden or impair the rights of the agreement hereunder. The layiog, construction, installation, maintenance and operation of the Facilities, System and facilities in connection therewith shall not preclude the City of Renton, its authorized agents, contractors and representatives from blasting, grading, excavating or doing other necessary or public works over, unto, abutting, or contiguous to Grantee's System provided, however, that Grantee shall be given (10) ten working days written notice of any such blasting, grading, or excavating so that the Grantee may take proper steps to protect its communication line and facilities. The parties agree that this Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders and ordinances (the ''Law"). Accordingly, any provision of this Agreement or any local ordinance, which may conflict with or violate the Law, shall be invalid and unenforceable, whether occurring before or after the execution of this Agreement, it being the intention of the parties (i) to preserve their respective rights and remedies under the Law, and (ii) that the execution of this Agreement does not constitute a waiver of any rights or obligations by either party under the Law. The provisions of this Agreement shall be applied to all telecommunication providers in a competitively neutral and nondiscriminatory manner. SECTION XIII. Damage, Injury or Loss (Code 5-19-JO)(K): Except for damage, injury or loss caused by the City of Renton, the Grantee shall have no recourse whatsoever against the City of Renton for any loss cost, expense, or damage arising out VOICESTREAWf-MOBil.E 8 ORDINANCE NO. 5083 of any provision or requirement of this Agreement or the enforcement thereof. This Agreement does not relieve the Grantee of any requirement of any City Ordinance, rule or regulation, or specification of the City, including but not limited to any requirement relating to street work, street excavation permits and fees therefore, or the use, removal or relocation of property and streets. No privilege nor exemption is granted or conferred unto the Grantee by this Agreement except those specifically prescn"bed herein, and any such privilege claimed under this Agreement by the Grantee in any street shall be subordinate to any prior lawful occupancy of the street or any subsequent improvement or installation therein. SECTION XIV. Discontinued Agreement (Code 5-19-JO(I)I-5): In the event the use of any permitted property is permanently discontinued by Grantee, or no Permit has been obtained there:tbre upon expiration of this Agreement, or within thirty days after any termination of this Agreement, then the Grantee shall promptly remove from the streets and other properties all its facilities, other than any the City may permit to be temporarily or permanently abandoned. SECTION XV. Ownership Transfer (Code 5-19-IO(I')J-6): This Agreement may not be assigned to a successor or assignees without the prior written consent of the City Council of the City of Renton, provided that Grantee may assign this Agreement to a parent or affiliate upon prior written notice to the City. The City will not delay or withhold written consent without just cause. For the purposes of this section, a merger or corporate reorganization of any entity controlling, controlled by or under common control with Grantee shall not be deemed a transfer of assignment. SECTION XVI. Security Device (Code 5-19-IO(Q): The Grantee shall, within (l 0) ten days after the award of this Agreement, file with the City of Renton Public Works Department at all times thereafter maintain in full fi:>rce and efrect an acceptable security device or escrow account in duplicate efrective for the entire term of this Agreement, and conditional that in the event Grantee shall fail to comply with any one or more of the provisions of this Agreement then there shall be recovered jointly and severally from the principal and surety of such security device or escrow account any damage suffered by the City as a result thereof; including the full amount of any compensation, indemnification or cost of removal VOICESTREAMff-MOBILE 9 ORDINANCE NO. 5083 or abandorunent of properties herein above described, up to the full amount of the said bond, said condition to be a continuing obligations within the City of Renton or may have arisen from the acceptance of such Agreement by the Grantee or from its exercise of any such privilege herein granted. The security device or escrow account initially filed in accordance with the requirement of this Section shall be in the amount of Twenty Five Thousand Dollars ($25,000). In the event of substantial change in volume of street space occupied by permitted properties, the City may permit or may require a corresponding change in the amount of such security device or escrow account. The bond form set forth as attachment " C " is deemed an approved security device. SECTION XVII. System Expansion: Upon application to the City ofRenton's, Department of Building/Planning/Public Works by the Grantee, the Department of Public Works may authorize the Grantee to install, construct and/or retain in City streets additional System expansions, as contemplated in Section I hereof; in manner satisfactory to the Department of Public Works. Such additional installations shall be subject to all of the terms and conditions oftbis Master Use Agreement and to any such additional conditions as may be prescnlJed by the Department of Public Works as to any such additions. The City of Renton conducts both an annual pavement overlay program and a 6-year transportation improvement program for the repair and improvement of city streets. The City publishes updates to these programs annually. It is the City's intent that newly paved streets not be excavated or damaged within five years of pavement installation. It is therefore the Grantee's responsibility to obtain the City's annual publications regarding the pavement overlay program and the 6-year transportation improvement program, and to schedule any system expansions or programmed maintenance operations in such a way as to avoid disturbing pavement within five years of installatiotL The City of Renton reserves the right to withhold issuance of permits for planned expansion or maintenance activities that will damage pavement within five years of its installation. SECTION XVIII. Telecommunication/Permit Fees: The Grantee, VoiceStream PCS III Corporation, its successors and assignees) agrees to pay annually to the City of Renton from and after the date of acceptance of this Agreement and VOICESTREAMII-MOBILE 10 ORDINANCE NO. SOBJ during the period it shall remain in eflect an utility tax of six per cent (6%) per annum of its gross receipts derived from the telecommunication facilities located within the limits of said City of Renton as specified In City code 5-11-1. However, if the 6% per annum communication (utility) tax falls below $200 annually than an administrative fee shall be applied upto $200. Payments are to be paid in monthly instalhnents in accordance with City code 5-11-2 to the Finance and Information Service Administrator. Master Use/Franchise Construction Permit Fee is $50.00. Inspection rate is billed at $40.00 an hour. VoiceStream PCS III Corporation does hereby agree to pay a one time Administrative fee fur Agreement preparation and processing of$5,000 dollars. SECTION XIX. Applicants Contacts: Any notices or infonnation required to be given to parties under this Master Use Agreement may be sent to the following addresses unless otherwise directed. VoiceStream PCS III Corporation Attn: Legal Deparu:nent 12920 Southeast 38th Street Bellevue, WA 98006 SECTION XX. Effuctive Date: Renton City Hall Attn: Jan Illian Development Services 6'h Floor 1055 -S. Grady Way Renton, WA 98055 This Ordinance shall be in full force and effect from and after its passage, approval and five days after its legal publication as provided by law, and provided it has been duly accepted by Grantee as herein above provided. SECTION XXI. Environmental Indenmification: Grantee shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law. Grantee shall be responsible for, and shall promptly conduct any investigation and remediation as required by any applicable environmental laws, all spills or other releases of any Hazardous Substance caused by Grantee, that have occurred or which may occur on the Property. Each party agrees to defend, indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, VOJCESTREAWf,MOBILE 11 ORDINANCE NO. 5083 demands and liability ( collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the .... i )! -~- indemnitee may sufrer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Haz.ardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively, "Actions"), that relate to or arise from the indenmitor's activities on the Property. The iudemm:fications in this section specifically include, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. PASSED BY THE CITY COUNCIL this~ 14th day of_~J=un=e~--~ 2004. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this 14th_· day of __ Jun_e _____ _, 2004. A-~ Lawrence J. Warren, City Attorney Date of Publication: 6/18/2004 {SU!mnary) ORD. l 118:5/27/04;ma VOICESTREAM/f-MOBILE 12 ORDINANCE NO. 5083 ACCEPTED BY GRANTEE, VOICESTREAM PCS m CORPORATION this 23rd day of June 2iJ_0_4_ Signature Print Name TITLE ___________ _ Signature Print Name YOJCESTREAM/T·MOBILE 13 March 24, 2008 Ordinance #5365 Board/Commission: Municipal Arts Commission Revisions AUDIENCE COMMENT Citizen Comment: Gitchel - Monopole Conditional Use Permit Appeal, T-Mobile, CU- 07-041"'" o~5 -- ADJOURNMENT Recorder: Michele Neumann March 24, 2008 Renton City Council Minutes Page 98 An ordinance was read amending Chapter 8, Municipal Arts Commission, of Title II (Commissions and Boards) of City Code by introducing a five-year Master Plan for A1is and Culture; clarifying how funding is established and adjusted for the I% for Art Fund; and scheduling the annual review of the two- year plan for projects slated for the I% for Art Fund, to be completed during the annual City budget preparation process. MOVED BY BRIERE, SECONDED BY PARKER, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. In response to the inquiry of Chuck Gitchel (Renton) regarding the T-Mobile monopole conditional use permit appeal, Councilmember Parker stated that the Planning and Development Committee will present its recommendation regarding the matter to the full Council on April 7. MOVED BY PERSSON, SECONDED BY PALMER, COUNCIL ADJOURN. CARRIED. Time: 9:39 p.m. ~,i,-4: w~ Bonnie I. Walton, CMC, City Clerk March 24, 2008 RECESS APPEAL Planning & Development Committee Appeal: Monopole Conditional Use Permit, T-Mobile, CU-07- ..Qfl.L AUDIENCE COMMENT Citizen Comment: Galster - Title IV Docket Review, Helipads CONSENT AGENDA Council Meeting Minutes of 3/17/2008 Board/Commission: Planning Commission Membership Expansion Planning: Development Regulations (Title IV) Docket Review Human Services: Regional Affordable Housing Program Fund Usage, King County Utility: White Fence Ranch Sewer Extension Geotechnical Services, Kleinfelder Renton City Council Minutes Page 95 disruptions to people's lives is needed; helicopters are dangerous and noisy; the conditional use permit process creates and continues confusion; preference for a third party to test the helicopter noise; and a better ordinance is needed. Correspondence in support of the helipad proposal was acknowledged from Thomas R. Dahlby and Kathleen I. Dahlby (Renton). Correspondence in opposition to the proposal was acknowledged from the following: Sandy Reisman (city of residence unknown); Thomas and Judith Skillman (Renton); Kim Loulias (Renton); Paul and Tami Skelton (Renton); Jodi Watson (Renton); Linda Fry (city of residence unknown); Robert L. Undsderfer (Renton); Betty Childers and Steve Denison (Renton); John Middlebrooks (Renton); Mary Lowry and Mike l,owry (Renton); and Joanie Rosling (Renton). Correspondence regarding the proposal was also acknowledged from Steve F. (city of residence unknown) and Marleen Mandt (city of residence unknown). There being no further public comment, it was MOVED BY PERSSON, SECONDED l:lY PAR.KER, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. MOVED BY PERSSO.'J, SECONDED BY TAYLOR, COUNCIL RECESS FOR FIVE MINUTES. CARRIED. Time: 9: 12 p.m. The meeting was reconvened at 9:17 p.m.; roll was called; all Councilmembers present except Corman, previously excused. Planning and Development Committee Chair Parker announced that the hearing regarding the T-Mobilc monopole conditional use permit appeal was continued to April 4 at 1 :30 p.m. Pegi Galster (Renton) requested that before making a decision on the matter of the proposed zoning revision that would allow helipads in certain R-8-zoned properties, the City hire a consultant to conduct a noise study. She also urged Council to read the documentation she submitted regarding noise. Items on the consent agenda are adopted by one motion which follows the listing. Approval of Council meeting minutes of 3/17/2008. Council concur. Community and Economic Development Department recommended approval to expand the Planning Commission from seven to nine members. Council concur. (See page 97 for ordinance.) Community and Economic Development Department recommended approval of Title IV docket item 08-0 I: text amendment for Monopole I in residential zones and housekeeping amendments to wireless regulations in all zones. Refer to Planning and Development Committee. Human Services Di vision requested approval of an agreement with King County regarding the use of SHB (Substitute House Bill) 2060 local low income housing funds for the Regional Affordable Housing Program. Refer to Community Services Committee. Utility Systems Division recommended approval of an agreement in the amount of $35,752 with Kleinfelder for the White Fence Ranch Sewer Extension Project geotechnical services. Council concur. CITY )F RENTON . ,~Y o o~,, *" ~ + .ii + Office of the City Attorney ~ -~~L'...!K:!0!·'~1 !I'~K~1,!M~a~yo:::r _____________________ _!L~a~w~r:en~c:e~J~. ~W~a~r~re:n~-!!.,'iNrfO) March 20, 2008 King Parker, Chair Rich Zwicker, Vice-Chair Greg Taylor, Member Planning and Development Committee Renton City Council 1055 S. Grady Way Renton, WA 98057 '; i. .. . / f\, .,... Senior Assistant City Attorneys I ~ ll\.i (\.,,(,,11/ ?7 /:;!(A, Mark Barber &iY1vJ'l1 . Zanetta L. Fontes Assistant City Attorneys I I Ann S. Nielsen ?) ·w f) B Garmon Newsom II Shawn E. Arthur CITY OF REl\lrON MAR!; 0 2U0b Re: T-Mobile Mono,zole Appeal Hearing. LUA 07-065, CU-A l,E:CE:IVED CITY ClfRK'8 OFFIGf Dear Members of the Planning and Development Committee: Please note that as reflected in the letter to the Committee from Chris Bacha dated March 19, 2008, the parties have agreed to a short continuation of the appeal hearing in the matter referenced above. Our understanding is that the Committee will formally open the hearing this afternoon as scheduled, and then continue the hearing of the matter to Friday, April 4, 2008 at 1 :30 p.m. As reflected in Mr. Bacha's letter, the parties have agreed to the following briefing schedule. Respondent, City of Renton has filed its Brief today. Appellant's Brief will be due on Friday, March 28, 2008. ~--: Ann Nielsen Asst. City Attorney For Respondent, City of Renton Linda Atkins Davis, Wright, Tremaine For Appellant, T-Mobile -P-o-st_O_f_fi_ce_B_o_x_6_2_6 _-R-en-to_n_, _W_as_h-in_gt_o_n_9_8_0_5 7---(-42_5_)-25-5--8-6_7_8 _/ F-AX--( 4-2-5)_2_5-5--5-4 7-4-~ @ This paper contains 50% recyded material, 30% post consumer AHEAD OF THE CURVF. 1 2 3 II 5 6 1 8 9 10 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 BEFORE THE RENTON CITY COUNCIL PLANNING & DEVELOPMENT COMMITTEE TN RE APPEAL OF THE HEARING EXAMINER'S DECISION DATED JANUARY 15, 2008, REGARDING CUP APPLICATION FOR A WIRELESS COMMUNICATION FACILITY, KNOWN AS THE T-MOBILE MONOPOLE I. FILE NO, LUA 07-041, CU-A, ECF RESPONDENT CITY OF RENTON'S HEARING BRIEF FACTS Representatives for T-Mobile 1 submitted an application for an Administrative Conditional Use Permit ("CUP") for approval of the replacement of an existing 40-foot tall wood power pole with a 59 foot 11 inch wood power pole that would simultaneously function as a Monopole I structure. The proposed location is Northwest of 4401 SE 3rd Place in the vicinity of SE 3rd Place and Anacortes Ave SE, in Renton, WA, which would abut the front yard area of an existing single family home located at 4401 SE 3rd Place. The proposed monopole and related equipment vault would be located within the public right-of-way in an area zoned R-8. There are many single family homes surrounding the location from all sides. 1 Although the underlying application is T-Mobile, the original application was submitted by Kevin Foy, of Wireless Facilities, Inc ("WFI") a subagcnt acting on behalf ofT-Mobile. BRIEF OF CITY OF RENTON -I ORIGi~JAL WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW lOO SOUTH SECOND STREET • POST OFflCE BOX 6l6 RENTON, WASHINGTON 98057 PHONE (4H) Z5Hl67!l • FAX (iZ5l z55.5474 1 2 3 The surrounding R-8 zoning designation has a maximum height limitation of30 feet and 2 stories and the surrounding Puget Sound Energy ("PSE") power poles have a 11 maximum height of 40 feet. RMC 4-2-1 JOA and RMC 4-4-140G. T-Mobile's proposed 5 Monopole I requires a CUP because it would exceed the maximum height permitted for a 6 single family residence by approximately 30 feet and the existing PSE power poles by 7 almost 20 feet. If allowed, this Monopole I would be the tallest structure in the 8 neighborhood. Moreover, contrary, to T-Mobile' s assertion, there are no trees in the 9 immediate vicinity of the proposed Monopole I location. "[T]herefore no screening would 10 be provided for the existing single family residences located in the immediate vicinity of 11 12 the project site." City of Renton PBPW Report and Decision, October 15, 2007 ("Rpt. & 1 3 Dec. ") at pp. 2. 111 The City of Renton ("City") staff received numerous comment letters from 15 residents in the surrounding community, generally expressing their opposition to the 16 proposed location of the Monopole I. Their concerns ranged from health issues, aesthetic 17 18 impacts and possible diminishrnent of property values. Although there were a numerous of letters regarding the potential health hazards and effects of radiation from telephone poles, 19 20 the City Staff did not factor those comments in their decision process.2 There were 21 however, a number of separate letters submitted from real estate agents indicating that the 22 presence of a monopole in the area would impact negatively, the area's property values.3 23 211 2 The issues of potential harmful effects of ultraviolet emissions are specifically precluded fi-om review under RMC 4-4-140£(5). 25 3 T-Mobile contends that they were not given an opportunity to provide rebuttal information and submitted 26 a Market Study dated Aug 9, 2003 by Michael S. Essig in response. Appellant's Transcript of Proceedings ("Transcript"), pp. 32. This report was already a part of the application file and thus, already reviewed by 27 the City. This report contains an analysis of the Redmond, WA area's cumulative real estate effects from the existence of a monopole, but the monopole there is located in a public park, not directly abutting a private 28 home in a residential area. Transcript pp. 77-78. BRIEF OF CITY OF RENTON -2 WARREN BARBER&FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTOr,.1980S7 PHONE (OS) 255·B67A • FAX (,425) 2SS·54?f 1 2 3 According to T-Mobile, the proposed location was specifically targeted because of the existence of"mature trees" in the neighborhood which T-Mobile believed would provide screening of the Monopole However, City Staff evaluated the area and concluded II 5 that in fact, there "are no trees in the immediate vicinity," and therefore, the "monopole I 6 structure would be highly visible to the properties in the immediate vicinity." Rpt & Dec., 1 atpp. 4. 8 City staff conducted further review of evaluating T-Mobile's application for a 9 Monopole I within the City's Comprehensive Plan, zoning and other applicable statutes 10 and code provisions. In doing so, the City Staff concluded that the proposal to locate the 11 12 Monopole at the proposed site "is not consistent with the Utilities Comprehensive Plan 13 element (specifically policies U-100 and U-10 I), due to the aesthetic impacts the 111 monopole I structure would have on the surro1mding properties ... " Rpt & Dec., at pp. 6. 15 16 17 18 Unfortunately, there was little if any information provided by T-Mobile regarding any alternate sites or structures. Having failed to provide information regarding whether they explored alternate sites, and based on the factors above, City Staff concluded "that the proposed location may not be suitable for a monopole I structure, due to its location within 19 20 an existing established single family neighborhood and the aesthetic impact it would have 21 on the neighborhood and the lack of any mitigation that could be required to reduce the 22 impacts." Rpt & Dec., at pp. 4. 23 211 25 PROCFDURAL HISTORY On October 8, 2007, the City's SEPA official, the Environmental Review Committee ("ERC") issued a DNS for T-Mobile's application. There was no appeal of this 26 SEPA determination. On October 15, 2007, the City of Renton, through its Development 27 28 BRIEF OF CITY OF RENTON -3 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 1 00 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON. WASHINGTON 98057 PHONE ('125) 255,8678 • FAX (•U5) !55-547<4 1 Services Director, Neil Watts, issued a denial ofT-Mobile's request for a CUP. Rpt & 2 Dec., at pp. 7. T-Mobile ("Appellant") filed a timely appeal to the Hearing Examiner. On 3 December 18, 2007, a hearing was held before the Hearing Examiner. This was an open Ii 5 record hearing in which witnesses for the Appellant, witnesses for the City and members of 6 the general public were allowed to testify. The Hearing Examiner issued his decision on 7 January 15, 2008, affirming the decision of the Director to deny the CUP. T-Mobile 8 Monopole Report and Recommendation by Hearing Examiner ("HEX Decision'') at pp. 9 I I. In doing so, the Hearing Examiner pointed out that the Director properly reviewed T- 10 Mobile's proposal within the City's CUP code provisions and based on the aesthetic 11 12 implications, deemed the site inappropriate for the Monopole I. Furthermore, the Hearing 13 Examiner found no evidence that an error was made in denying the CUP and therefore, 111 found no basis to overturn the Director's decision. Id. 15 On January 29, 2008, Appellant, through their attorney, Linda Atkins, of Davis, 16 17 18 Wright, Tremaine, filed a timely appeal of the Hearing Examiner's decision. The Renton City Counsel referred the matter to the Planning and Development Committee ("Committee") for the appeal. Appellant's allegations of errors are set forth in the 19 20 document filed by Ms. Atkins with their notice of appeal. For purposes of reference, the 21 City is referring to this submission as Appellant's Brief Respondent, City of Renton, now 22 submits its brief in response to the issues raised in Appellant's Brief 23 211 25 A. II. AUTHORITY AND ARGUMENT T-MOBILE LACKS STANDING TO BRING AN APPLICATION FOR A CONDITIONAL USE PERMIT 26 The provisions governing CUPs are set forth in RMC 4-9-030. This section lists 27 the purpose of the CUP is to allow uses in areas in which they are normally prohibited 28 BRIEF OF CITY OF RENTON -4 WARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFF1CE BOX 6i6 RENTON, WASHINGTON gsoS1 PHONE 1425) 2.55-8678 • FAX ( .. 25) 255-5•7" 1 2 3 "when the proposed uses are deemed consistent with other existing and potential uses within the general area of the proposed use." 4-9-0JO(A). Section 4-9-0JO(G) provides the factors which the City must consider in determining whether or not to grant a CUP. These II 5 factors include, but are not limited to: compatibility with the City's Comprehensive Plan; 6 adverse effects on nearby properties; and compatibility with the general character of the 7 neighborhood. 8 However, this CUP section also contains a standing provision under 4-9-0JO(B) 9 Who }vfay Apply: "A property owner, or his duly authorized agent, may file an application 10 for a conditional use permit where the proposed use or development requires any such 11 12 permit. .. " This section raises a quandary for the Appellant. The City believes that this is 13 a threshold issue which effectively curtails Appellant's ability to advance this case. T- 111 Mobile is clearly not a "property ov,mer" of the proposed site location or any property 15 within the City limits of Renton. To the best of the City's knowledge, I-Mobile has not 16 held itself out to be a duly authorized agent of the property owner. If I-Mobile is inclined 17 18 to argue that the CUP was brought in its capacity as the City's agent, the City will respond that there is no evidence of such relationship, and is prepared to present testimony to that 19 20 effect. 21 I-Mobile is seeking to place its structure on the City's public right-of-way. 22 Ostensibly, the City is the purported ·'owner" of the public right of way. As such, the City 23 has the authority to appoint an agent. But, it has not designated I-Mobile as its duly 211 authorized representative. Therel'ore, I-Mobile cannot be construed as the City's 25 26 authorized agent, especially under this situation where the CUP application was denied. Given this, I-Mobile lacks standing to apply for a CUP. 27 28 BRIEi' OF CITY OF RENTON -5 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW I 00 SOUTH SECOND STREET • l'OST OFF1CE BOX 626 RENTON, WASHINGTON 980S7 PHONE (•25! 25S,867!1 • FAX (•ZS\ 2S$,S~H 1 2 3 On a related front, T-Mobile pointed out in the hearing before the Hearing Examiner that the utility pole upon which they seek to affix the monopole is "owned by Puget Sound Energy." Transcript, pp. 28, at Ins. 8-9. This now conjures prompts the II 5 additional jurisdictional issue in that if PSE is the rightful owner of the "property" at issue, 6 to wit, the existing pole, must T-Mobile now obtain permission from PSE to apply for the 7 CUP as its designee? And, insofar as T-Mobile is not a duly authorized agent for PSE, 8 they would similarly fail the test for standing under the City's CUP criteria. 9 The City anticipates that Appellant will counter that the City accepted T-Mobile's 10 application and having held an open record hearing on the application, the City should be 11 12 estopped from arguing standing. However, jurisdiction is a fundamental and threshold 13 issue, and if the jurisdiction was inherently defective, no subsequent actions can cure that 111 defect. Accordingly, this Committee is precluded from reviewing this case and has no 15 option but to recommend that the City Council dismiss this proceeding without prejudice.4 16 17 18 19 20 21 22 B. APPELLANT HAS FAILED TO RAISE OR PRESERVE THE SPECIFIC BASIS FOR ALLEGING A VIOLATION OF THE TELECOMMUNICATIONS ACT OF 1996, THEREFORE, APPELLANT IS PRECLUDED FROM RAISING THIS CHALLENGE ON APPEAL Pursuant to RMC 4-8-J JOF(5), the City Council review is a closed record hearing in which no new or additional evidence is permitted. Thus, this Committee is limited to a closed record hearing, and a review of the underlying HEX Decision shows that the Appellant did not raise a challenge to any alleged violations of the Telecommunications 23 211 Act of 1996 ("Telcom Act") in the hearing below. The transcript of the hearing also fails 25 to show any instance where T-Mobile raised an issue of any alleged violation of the 26 Telecom Act. Mere reference to the general concept of the "Telecom Act" is not sufficient 27 2 8 4 This would allow T -Mobile the opportunity to reapply once the jurisdictional issue has been resolved. BRIEF OF CITY OF RENTON -6 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX fll6 RENTON, WASHINGTON 98057 PHONE ('1151 lSS-667R • FAX (42SI 255-5<t7<t 1 to preserve a challenge on the City's code 5 In fact, the transcript shows that the City, not 2 the Appellant raised the issue of the Telecom Act and did so in reference to the applicable 3 standards regarding coverage. Transcript, pp. 111, al Ins. 5-14. There was never a Ii 5 challenge to the CUP process as being contrary to the barriers to entry provision of 47 USC 6 § 253(a). In fact, it is unclear from Appellant's brief what ordinance, provision, process or 7 action constitutes the basis ofT-Mobile's allegation of violation. 8 9 10 11 Appellant merely invokes§ 253(a) and makes non-specific allegations of error. Having failed to raise or preserve that challenge in the hearing below, there is nothing in the record below which contains evidence sufficient for the Committee to now take review 12 of this issue. There has been no ordinance or provision identified in the hearing below, 13 that is the subject of a challenge hascd un / 253(a) grounds. Accordingly, Appellant 1 Ii should be precluded from now raising a challenge to any provisions of§ 253 and this 15 Committee should recommend that those issues pertaining to alleged violations of the 16 Telecom Act be stricken. 17 18 For sake of argument and analysis, had Appellant properly preserved this issue, the City maintains that the§ 253(a) challenge still fails. § 253(a) is used "to assert a facial 19 20 challenge to a wireless facilities zoning ordinance." Sprint v. San Diego, 479 F.3d 1061, 21 1069 (9'h Cir. 2007). " ... § 253(a) is a proper vehicle to challenge an entire wireless 22 facilities zoning ordinance." Id. The CUP at issue is not limited to, nor specific to, 2 3 wireless facilities. In fact, it is ironic that the provision at issue, a CUP process, essentially 211 functions as a permissive method to allow wireless facilities and/or other non-conforming 25 26 27 28 users to seek an exemption to the existing zoning. 5 The only time the Telecom Act is brought up by I-Mobile was by Mr. Conaxis in reference to the goals of the Code seeking to meet the Telecom Act. Transcript, pp. 2 I, at Ins. I 8-19. BRIEF OF CITY OF RENTON -7 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 1 00 SOUTH SECOND STREET • POST OFFlCE BOX 626 RENTON, WASHJNGTON 98057 PUONE ("iHI ZSS,B678 • FAX (GS) Z5S·54H 1 Appellant primarily relies on two cases Sprint v. San Diego, 479 F.3d 1061 (91h 2 Cir. 2007) and City of Auburn v. Qwest, 260 F.3d 1160 (91h Cir. 2001) to claim that the 3 City's denial of the CUP violates the Telecom Act. However, a close reading of the two 4 5 cases shows that they do not support the position advanced by the Appellant. In the City 6 of Auburn v. Qwest, the Court specifically limited the issue to "who bears the costs of 7 relocation prior to the effective date of the new statute." Auburn, 260 F.3d at 1167. In all 8 fairness, the Auburn Court did deal with the issue of state and federal preemption oflocal 9 ordinance regulating telecommunications. Id. at 1170. But, in doing so, all that the 10 Auburn Court did was acknowledge that the Telecom Act "prohibits state and local 11 12 governments from creating 'barriers to entry,' legal requirements that prohibit or have the 13 effect of prohibiting a company from providing telecommunications service." Id. On this, 14 the City of Renton demurs. In the same vein, the Auburn Court points out the "safe 15 harbor" provision "established by§ 253(c), allows a local government to manage and 16 17 18 collect fees for the use of public rights-of-way by telecommunication providers." Id. In the Sprint case, the Court determined that the County of San Diego's local zoning ordinance had the effect of violating § 253 barriers to entry. However, the 19 20 ordinance at issue in the Sprint case specifically creates an onerous four separate permit 21 requirements solely targeted at wireless communication facilities. Again, nothing in this 22 Sprint case is remotely similar to T-Mobile's CUP situation. Hence, the City contends 23 that neither case cited by Appellant supports its position. 24 25 26 Moreover, Appellant seeks to apply § 253 only with respect to the language of section (a) which states, "no state or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to 27 28 BRIEF OF CITY OF RENTON -8 WARREN BARBER er FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 980S7 PHONE \'flS) 255-8678 • FAX (-425) 1S5-S47-4 1 2 3 provide any interstate or intrastate telecommunications service." (emphasis added.) In doing so, Appellant conveniently ignores the rest of the sections, those commonly referred to as the "safe harbor" provisions, which comprise§ 253. In particular,§ 253(b) and (c) 4 5 which states respectively: 6 1 8 9 10 1 1 12 13 14 15 (b) STATE REGULATORY AGTIIORITY -nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254, requirements necessary to preserve and advance universal service. protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. (c) STATE AND LOCAL GOVERNMENT AUTHORITY -Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and non discriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government. Appellant has invoked§ 253(a) without showing how the City's denial ofT- 16 Mobile's request for a CUP has the effect of prohibiting any company's ability to provide 17 telecommunications services. There is no evidence in the record that the City' action to 1 8 deny the CUP has the effect of preventing all other telecommunication providers from 19 providing services. In fact, the record below clearly demonstrates that alternate sites exist, 20 and were proposed to the Appellant. yet, Appellant opted only to pursue the proposed 21 22 location at issue. It is both, disingenuous and meritless for Appellant to claim that the City's denial of their CUP request amounts to a violation of§ 253(a). 23 24 It is the Appellant's burden to show how the City's CUP process should prohibit or 25 have the effect of prohibiting T-Mobile's ability lo provide its services. In fact, the very 26 essence and nature of the City's CUP process is to pennit, not prohibit, a 27 28 telecommunications provider or other like applicant to undertake a use that is otherwise BRJEF OF CITY OF RENTON -9 WARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW lOO SOUTH SECOND STREET • POST OFFICE BOX 6Z6 RENTON, WASHJNGTON 98057 PHONE (425) 255-1167!'1 • FAX (G51 z55.5474 1 2 3 II not permitted in a particular zone. There has been no showing of a potential § 253(a) violation despite Appellant's desire to conjure one up. Again, for argument's sake, the City submits that the applicable statute to this 5 situation is 47 USC§ 332(7) and not§ 253(a). Appellant does make a single, fleeting 6 reference to § 332(7) in her brief. Specifically, Appellant points to subsection (B) of§ 1 332(c)(7) to note the limitations of the City regarding mobile services. However, a review 8 of the entire language and subsections of§ 332(c)(7), in particular subsection (A) reveals 9 that deference should be given to the local government authority: 10 11 12 13 111 15 16 17 18 19 20 21 (7) Preservation oflocal zoning authority. (A) General authority. Except as provided in this paragraph, nothing in this Act 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. (B) Limitations. (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof-- (!) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. "[T]he Act specifically preserves traditional local zoning authority over siting decisions, and it has been consistently held that the TCA does not intrude upon the 22 substantive content of local zoning rules. MetroPCS v. San Fran., 400 F.3d 715, 730 (9'" 2 3 Cir. 2004). This MetroPCS case involved a wireless telecommunications provider's 211 application for a CUP to the City of San Francisco "to install six panel antennas on an 25 existing light pole" atop a parking garage roof. One of the questions before this Court was 26 27 whether the "CUP application prohibited or had the effect of prohibiting the provisions of 28 BRIEF OF CITY OF RENTON -10 WARREN BARBER 6' PONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 980S7 PHONE ('42Sf H5-8678 • FAX (42.5) Hs-s•1• 1 wireless services in violation of§ 332(c)(7)." The MetroPCS Court found no evidence in 2 3 the record that the City's denial of MelroPCS's CUP constituted a "general ban" on II wireless services. Id. at 731. 5 Similarly, the record here is devoid of any evidence that would support T-Mobile's 6 desire to have the City's denial of its CGP be akin to a general ban on wireless services. In 7 fact, the record contains mention of alternate providers and the issue was raised as to 8 9 10 11 whether other carriers are able to provide service in the area targeted by T-Mobile. Transcript, pp R4. T-Mobile acknowledged that other carriers rely on difference frequencies and therefore, they may have different siting needs or other means of getting 12 coverage to that area. Id. 13 Nonetheless, T-Mobile's position appears to be grounded in a "significant gap" in 111 service issue. Though there seems to be some controversy among the different Circuits, 15 the MetroPCS Court held "that a signi Ii cant gap in service ( and thus an effective 16 17 18 prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage. Id. at 733. T-Mobile has not shovm that alternate locations (such as Union or along major mierials) would not allow them to meet their need 19 20 to fill a significant gap. There is nothing in the record which shows that without siting on 21 the current location sought, T-Mobile would be completely unable to fill a significant gap 22 in its service. Again, T-Mobile fails to adequately substantiate its position, leaving the 2 3 Committee no alternative other than to recommend denial ofT-Mobile's appeal. 211 Insofar as the Committee disagrees with the City's position regarding the two 25 jurisdictional argument set forth above, the City will address the substantive basis for its 26 position in the sections below: 27 28 BRIEF OF CITY OF RENTON -1 1 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFlCE BOX 62'6 RENTON, WASHINGTON 96057 PHONE (HS) ZSS,8678 • FAX (flS) 2SS-S .. 7+ 1 C APPELLANT CLEARLY STATED ITS INTENT TO ADVANCE ITS APPLICATION 2 AS A MONOPOLE I, AND IS NOW ESTOPPED FROM CHANGING THE NATURE OF ITS APPLICATION 3 II The RMC defines a Monopole I structure as "a wireless communication support 5 structure which consists of a free standing support structure, less than 60 feet in height, 6 erected to support wireless communications, antennas and appurtenances." RMC 4-11- 1 230(M). In its submission, T-Mobile argues that the Hearing Examiner erred in 8 characterizing T-Mobile's proposal as a "monopole I" structure. Appellant's Brief, pp. 3, 9 section B.1. In the hearing before the Hearing Examiner, Appellant abruptly raised the 10 issue that they were "not a Monopole I." Transcripl, pp. 38, at Ins. 17-18. The City 11 12 countered that if T-Mobile was now contending that their application was not a Monopole 13 I, the hearing would be moot. Transcript, pp. 55, at Ins. 19-20; 57, at Ins. 7-15. 111 Appellant then acknowledged that their application was indeed for a Monopole I. 15 Transcript, pp. 63, at Ins. 13-21. As a result, the hearing proceeded under this premise. T- 16 Mobile now conveniently ignores the record of the hearing in which Appellant 17 18 acknowledged their proposal "under the declaration of a Monopole l." HEX Decision, pp. 5. Accordingly, T-Mobile's alleged error ofmischaracterization of the project as a 19 20 Monopole I must fail. The Committee should recommend that the Council disregard this 21 issue and bind T-Mobile to an application as a Monopole I structure. 22 D. 23 211 APPELLANT HAS SHOWN NO EVIDENCE TO SUPPORT A FINDING OF SUBSTANTIAL ERROR IN FACTOR LAW AND THEREFORE, THE DENIAL OF THE CUP SHOULD BE AFFIRMED The appeal to the City Council is vested in RMC 4-8-11 OF. Under subsection RMC 25 26 4-8-11 OF (6), the City Council shall only base its decision "upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties." The 27 28 BRIEF OF CITY OF RENTON -12 WARREN BARBER e, FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SlCONO STREET • POST OFflCE BOX 626 RENTON, WASHINGTON 980S7 PHONE (42SI I5S-867R • FAX (,US) 2SS-S474 1 Hearing Examiner's decision must be given deference and unless the Council finds that the 2 Hearing Examiner made "a substantial error in fact or law" his decision must remain 3 undisturbed. RMC 4-8-11 OF(7). '·A finding is clearly erroneous when although there is II 5 evidence to support it, the reviewing court on the entire evidence is left with the definition 6 and firm conviction that a mistake has been committed." Norway Hill v. King County 1 Council, 87 Wn.2d 267,274,552 P.2d 674 (1976). 8 "[T]his Court may not overturn the Board's decision on 'substantial evidence' 9 grounds if that decision is authorized by applicable local regulations and sup-ported [sic) 10 by a reasonable amow1t of evidence (i.e., more than a 'scintilla' but not necessarily a 11 12 preponderance)." MetroPCS, 400 F.3d at 725. "[M]ost courts have held that 13 discrimination based on 'traditional bases of zoning regulation' such as 'preserving the 111 character of the neighborhood and avoiding aesthetic blight' are reasonable and thus 15 permissible." MetroPCS, 400 F.3d at 727. 16 17 18 Appellant has submitted several allegations of error in fact and law, which are set forth in its Appeal Brief However, a close review of the items in this Brief reveals that Appellant fails to meet the requisite level necessary to overturn the Hearing Examiner's 19 20 decision. Furthermore, Appellant seeks to reserve the right to present additional evidence 21 as Appellant deems appropriate. Appellant's Brief, pp. 3, section A.3. Unfortunately, 22 Appellant is time barred from raising any additional issues other than those set forth in its 2 3 Appeal Brief Hence, pursuant to the City's applicable provisions governing appeals, this 211 Committee must limit its review to the record below. 25 26 Appellant, throughout its Brief, alleges that the Hearing Examiner ignored pertinent facts and/or misconstrued information. The Hearing Examiner did neither. In fact, the 27 28 BRIEF OF CITY OF RENTON -13 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON. WASUINGTON 9SOSi PHONE (f!S) ?S5,867S • FAX (f!S) 255,HH 1 Hearing Examiner was careful to limit the testimony of the large number of public citizens 2 who appeared at the hearing to give testimony, cautioning them that it was improper to 3 II give testimony regarding possible harmful effects of radiation from poles. Transcript, pp. 5 92,at Ins. 18-21, pp. 93,at Ins. 23-24., pp. 94,at Ins. 4-5. Insofar as citizens testified 6 regarding this, the Hearing Examiner specifically stated that "the code does not allow him 1 to consider the health issues when making his decision .... He therefore will not allow 8 radiation testimony." HEX Decision, at pp. 6. 9 The Hearing Examiner did however, allow relevant testimony regarding the 10 potential impact to property values as relevant information. Transcript, pp. 93, at Ins. 10- 11 12 22. He also made specific inquiries of the City's witness regarding the factors that went 13 into the CUP process. In responding, the City pointed out that Rlv!C 4-4-140 governs 111 Wireless Communication Facilities. In evaluating an application by a wireless provider, 15 the City looks to finding a balance between meeting the goals of this provision set out in 16 Section B with ensuring compliance with the Telecom Act which has been ratified in 17 18 Section E. In this particular situation, the City found that the location proposed by T- Mobile would contravene the goals of RMC 4-4-140B(1), (3) and (4) which are: to 19 20 encourage placement of towers in non-residential areas, and concentrated in areas to 21 minimize adverse visual and community impacts. Denying the CUP here, did not violate 22 any of the provisions of the Telecom Act set forth in RMC 4-4-140(£), in that there was no 2 3 arbitrary discrimination against T-Mobile and this action did not have the effect of 211 25 26 prohibiting T-Mobile from providing wireless service. "If T-Mobile had been able to demonstrate that all the other sites did not provide adequate service to this area, it would be much harder to deny this request." Testimony by Neil Watts during December 18, 2007 27 28 BRIEF OF CITY OF RENTON -14 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON ':'SOS7 f'HONE l·US) 2.SS,9676 • FAX H·2Sl 2S5,Si74 1 hearing, HEX Decision,, at pp. 5. In his testimony, Watts laid out the analysis that went 2 3 into determining whether or not the CUP should be granted. Transcript, pp. 74-75. Watts specifically pointed out that "if I-Mobile had been able to demonstrate to us that all these 11 5 other sites, either on Northeast Fourth with taller poles which are allowed in the 6 commercial zone, or use of the existing poles on Union somehow did not provide adequate 7 service to this area, I think we would have a much harder time being able to deny this 8 9 10 11 request." Transcript, pp. 72, Ins. /3-/9. The Hearing Examiner ca.reli.tlly considered all the evidence, including testimony by I-Mobile that they have not truly explored alternatives other sites. Transcript, pp. 50, 12 at ins. 1-6. Only after a through review and careful consideration, the Hearing Examiner 13 issued a decision which sets forth the specific findings of fact and conclusions of law 14 supporting his decision to uphold the denial of the CUP. There is nothing erroneous or 15 inadvertent about this decision, and Appel !ant's mere conjecture and unsubstantiated 16 allegation does not amount to the requisite level necessary to overturn the Hearing 17 18 Examiner's determination. It is Appellant who ignores relevant facts and misconstrues the evidence. Appellant cannot claim error simply because the Hearing Examiner makes 19 20 findings consistent with the testimony and evidence presented at the hearing, ( e.g. the lack 21 of trees, screening in the proposed location) which does not benefit Appellant. There is a 22 noticeable lack of reference to the record in Appellant's Brief, though it does not restrain 2 3 Appellant from claiming a myriad of alleged errors. 24 Therefore, there is no basis to find substantial error in fact or law, and the 25 26 Committee must recommend to the Council, that the decision by the Hearing Examiner be affirmed. 27 28 BRIEF OF CITY OF RENTON -15 WARREN BARBER&FONTES, P.S. ATTORNEYS AT LAW I 00 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 98057 PHONE (415) 2SS.f!67R • FAX (i2Sl 255,5474 1 2 3 III. CONCLUSION Appellant's case fails fundamentally on the lack of jurisdiction to bring forth this appeal. On that basis, this Committee must recommend that this matter be dismissed. In II 5 the alternative, Appellant cannot now raise new issues in a closed-record appeal where 6 those specific issues have not be raised or preserved in the hearing below. Furthermore, 7 Appellant has shown no evidence other than random, unsubstantiated assertions to merit a 8 reversal of the Hearing Examiner's decision. Accordingly, this Committee is left with no 9 choice other than to conclude that there was no substantial error of fact or law, and thus, 10 must recommend to the City Council to affirm the decision of the Hearing Examiner. 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 DATED: this 20th day of March, 2008. ::et~T~ OF RENTON - Ann Nielseil, #31425 Assistant City Attorney BRIEF OF CITY OF RENTON -16 WARREN BARBER& FONTES, P.S. ATTORNEYS AT LAW I 00 SOUTH SECOND STREET • POST OFFICE BOX 6Z.6 RENTON, WASHINGTON 98057 PHONE (,US) ;!.55-861S • FAX l .. 2Sl 255-S'4H RECEIVED KENYON DISEND/ PLLC MAR 1 9 2008 ---------------THE MuNICIPALLAw FIRM Renton City Council MICHAEL R. KENYON BRUCE L. 0ISEND SHELLEY M. KERSLAKE SANDRA $. MEADOWCROFT CHRIS D. BACHA BOB C. STERBANK MARGARET J. KrNG King Parker, Chair Rick Zwicker, Vice Chair Greg Taylor, Member 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027-3820 W\\1 \\' .KENYONDISEND.COM (425) 392-7090 • (206) 628-9059 FAX (425) 392-7071 March 19, 2008 Planning and Development Committee Renton City Council 1055 S. Grady Way Renton, WA 98057 Re: T-Mobile Monopole Appeal Hearing, LUA 07-065, CU-A City's Request for Continuance Dear Members of the Planning and Development Committee: KARIL. SAND PETER B. BECKWITH RENEE G. WALLS KATHRYN J. HARDY AMY Jo PEARSALL I have been retained by the City Attorney to act as legal counsel for the Planning and Development Committee for the purpose of the above referenced appeal hearing. My role is to assist you in understanding the legal issues that may arise as part of this appeal and in making a decision in accordance with the applicable ordinances, federal and state laws, rules and regulations. As you are aware the City, by letter dated March 14, 2008, requested a continuance of the hearing to allow more time to brief the legal issues raised by T-Mobile in this appeal and to await the outcome of a text amendment that may provide an alternate solution for the parties. The purpose of this letter is to advise you of my discussion with the attorneys representing the parties and my recommendation for action by the committee. T-Mobile has raised multiple issues relative to the decision of the hearing examiner to deny the appeal. The City intends to respond to these issues with additional submittals and will likely raise an additional jurisdictional issue. T-Mobile, through its attorney, expressed a desire to proceed with the hearing on Thursday and provide post-hearing briefs for consideration by the committee. My view is that the committee should hear oral argument on the issues that are raised and that adequate time should be provided before the hearing for the parties to provide briefing on the issues. This will further allow time for me to review the submittals and provide advice to the committee in advance of the hearing so that the committee will fully understand the issues that are before it. G:\APPS\CIV\RENTON\T.MOBJLE APPEAL\LTR • PD Committee-Cll/s Request for Continuance.doc/KDP/03/19/08 SERVING WASH!N(;TON CITIES SINCE 1993 King Parker, Chair Rick Zwicker, Vice Chair Greg Taylor, Member March 19, 2008 Page2 T-Mobile has agreed to a brief continuance and a schedule for additional submittals. Pursuant to this schedule the City would file and serve its brief no later than March 20'\ T- Mobile would file and serve its responsive pleadings no later than March 28'\ and the hearing would be conducted by special setting on the afternoon of April 4th at I :30 p.m. I recommend that you open the hearing set for Thursday and make a motion for a continuance of the hearing, setting the schedule for additional submittals and a new hearing date in accordance with the foregoing. If you have questions, I can be contacted at (253) 219-0016. Very truly yours, KENYON D1sEND, PLLC p r Christopher D. Bacha Kenyon Disend, PLLC cc: Ann Nielson, Asst. City Attorney Linda Atkins, Attorney for T-Mobile Special Counsel to the Planning and Development Committee G:\APPS\CIV\RENTON\T-MOBILE APPEAL IL TR -PD Committee-City's Request for Continuance.doc/KDP/03/19/08 Davis Wright Tremaine LLr l,IND,\ WHITE ATKINS O!Rl'cr {425) 6~6,G115 lind~atl.ins@d,,:t com March 14, 2008 Mr. King Parker, Chair Mr. Rich Zwicker, Vice-Chair Mr. Greg Taylor, Member SU I I F :! .\ 00 777 lll8Tl1 AVLNUE NE Bl:I ! ~.VLIF, W.'\ 98004-Sl49 Renton City Council Planning & Development Committee 1055 South Grady Way Renton, WA 98057 lAWY£R~ Im P/a,1\JY'w1lc; ?, fAr-. llnvm 1 3Jiv/oB 'I F.t. (~ 25) &~6-/.J I lJII FAX (~25) 646-619') www.dwt.com Re: T-Mobile Monopole, SE 3rd Place and Anacortes Av SE R-0-W; LUA 07-065 CU-A;Hearing Date Gentlemen: I represent T-Mobile in the above-referenced matter, and write to respond to the request by Ms. Ann Nielson for a continuance of the March 20 hearing for the above referenced matter. T-Mobile objects to any continuance of the scheduled hearing on March 20 for several reasons. First, regarding the proposed text amendment to the City code, while T-Mobile appreciates that the City is considering pursuing a text amendment proposal, there is no certainty as to the outcome of such a process. It is unknown how much time such a process will take, and it is unknown whether such a proposal would be approved. Additionally, the City clerk's letter of February I, 2008 acknowledging receipt ofT- Mobile's appeal gave all parties of record until February 11, 2008 to file responses to T-Mobile's appeal. That date passed with no filings from the City. Any request for a briefing schedule should have been made within the JO-day window established by the clerk's letter. The failure to do so in a timely manner constitutes waiver of that opportunity. Finally, it must be noted that T-Mobile has been forced to make two applications to the City so far in its efforts to fill the significant gap in its network in this area, necessitated by the vague, complex, discretionary, and burdensome zoning scheme imposed by the City of Renton as BEL 409050"·1 0048 I 72-000161 Mr. King Parker, Chair Mr. Rich Zwicker, Vice-Chair Mr. Greg Taylor, Member March 14, 2008 Page2 a condition of deploying facilities for the provision of telecommunications services. See, e.g., Sprint Telephony PSC, l.P. v. County of San Diego, 490 F.3d 700, 715-16 (9th Cir. 2007); City of Auburn v. Qwest Corp., 260 F.3d 1160, 1175-76 (9th Cir. 2001), cert. denied, 534 U.S. 1079 (2002) The need for these multiple efforts already has caused T-Mobile to endure significant delays to date. To impose further delays upon the processing of this application by continuing the scheduled appeal hearing while the City seeks to fix problems with its code will constitute undue delay on the part of a municipality in processing an application for a wireless facility permit in violation of the federal Communications Act, 47 U.S.C § 332(c)(7)(B)(ii). The request for a continuance should be rejected and the hearing held as scheduled. Very truly yours, Davis Wright Tremaine LLP ~v~ Linda White Atkins Uy S 1-e) cc: Tim Sullivan, Esq. BEi. 409050vl 0048172..()()()26! Denis Law, Mayor February 13; 2008 APPEAL FILED BY: CITY -:>F RENTON Renton City Conncil Pltl;JJtwn? J 1}ur. ~Ylv'm-· 3/10/?-oog Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. RE: Appeal of Hearing Examiner's decisions dated January 15, 2008, regarding conditional use application for a wireless communications facility, known as the T-Mobile Monopole; SE 3rd Place and Anacortes Av SE R-0-W. (File LUA-07-041 CU-A, ECF) To Parties ofRecord: The Renton City Council's Planning and Development Committee will meet to deliberate the above-referenced item on the following RE-SCHEDULED date: Thursday, March 20, 2008 3:00 p.m. 7th Floor/Council Chambers City of Renton 1055 South Grady Way Renton, Washington 98057 This Council Committee meeting is open to the public, but it is not a public hearing. It is a working session of the Planning and Development Committee. No new testimony or evidence will be taken. However, the parties are expected to attend and be prepared to explain why the Council Committee should uphold or overturn the decision of the Hearing Examiner. If you have questions regarding these meetings, please phone Julia Medzegian, Council Liaison, at 425-43o-65ss:- King Parker, Chair Planning & Development Committee Renton City Council ---.-,-0-55-So-u-th_G_r-ad_y_W_a_y ___ R_e-nt-o-n,-W-a_s_hi-ng_t_on-9-80_5_7---(4-2-5)_4_3_0--6-50-l~---~ @ This paper contains 50% recycled material. 30% post consumer AHEAD-OF THE CURVF. Chris Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Kevin Foy Wireless Facilities, Inc. 575 Andover Park W., Ste. 201 Tukwila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4th Street Renton, WA 98055 Van Slaughter 4409 SE 3rd Place Renton, WA 98059 Alvin & Jacqueline Courtney P.O. Box 2653 Renton, WA 98056-0653 John Ehle 406 Anacortes Avenue SE Renton, WA 98059 Roger & Bickey Berry 4405 SE 3rd Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3rd Place Renton, WA 98059 Cory & Lori Foster 4413 SE 3rd Place Renton, WA 98059 Pauline Blue 420 Chelan Ave. SE Renton, WA 98059 Mike Cady 575 Andover Park W., Ste 201 Tukwila, WA 98188 T-Mobile USA 19807 North Creek Parkway Bothell, WA 98011 Newton & Joyleen Ellifrits 4218 SE 3rd Place Renton, WA 98059 Stephen Northcraft 4209 SE 3rd Place Renton, WA 98059-5144 Victor Bloomfield & Jennifer Skuk 4418 SE 3rd Place Renton. WA 98059 John Megow 4408 SE 3rd Place Renton, WA 98059 Terry Clangh 4503 SE 3rd Place Renton, WA 98059 Tapke Velquist 4309 SE 3rd Street Renton, WA 98059 Gail & Anthony Knell 4425 SE 3rd Place Renton, WA 98059 Doug Mears 4308 SE 3rd Place Renton, WA 98059 Kevin Durning 575 Andover Park W., Ste. 201 Tukwila, WA 98188 Chuck & Fran Gitchel 4401 SE 3rd Place Renton, WA 98059 Lewis Sezto 10875 Rainier Ave. S Seattle, WA 98178 Greg Schoendaller 4408 SE 4th Street Renton, WA 98059 Michael, Debby & Hannah Ekness 4400 SE 3rd Place Renton, WA 98059 Joel G. Smith 349 Anacortes Ave. SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3rd Place Renton, WA 98059 Joel & Heidy Barnett 4212 SE 3rd Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4th St. Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3rd St. Renton, WA 98059 Joyce M. Crock 414 Chelan Ave. SE Renton, WA 98059 Jeremy & Jill Peery 4432 SE 4th St. Renton, WA 98059 Linda Atkins Davis Wright Tremaine 777 108th Ave. NE, #2300 Bellevue, WA 98004 Margaret Starkey Kenyon Disend, PLLC 11 Front Street S Issaquah, WA 98027 James S. Dalgleish 407 Anacortes Ave. SE Renton. WA 98059 Chandra Lindquist 251 Vashon Ave. SE Renton. WA 98059 Ann Nielsen City Attorney's Office Planning & Development Committee (3) Bonnie Watson Keller William, Realty 615 E. Pioneer, Ste. 203 Puyallup, WA 98372 John Worthington 4500 SE 2nd Pl. Renton, WA 98059 Neil Watt, Development Services • February 11, 2008 Ordinance #5348 Annexation: Benson Hill Communities, R-4 Zoning Ordinance #5349 Annexation: Benson Hill Communities, R-8 Zoning Ordinance #5350 Annexation: Benson Hill Communities, R-10 Zoning Ordinance #5351 Annexation: Benson Hill Communities, R-14 Zoning NEW BUSINESS Finance: Benson Hill Communities Annexation Funding, Capital Funding Financial Policy, Newly Annexed Areas Franchise/Utility Fees Citizen Comment: Various - Monopole Conditional Use Permit Appeal, T-Mobile, CU- 07-00 ot..,S AUDIENCE COMMENT Citizen Comment: Ellifrits - Monopole Conditional Use Permit Appeal, T-Mobile, CU- 07-041 Renton City Council Minutes Page 49 zoning; Benson Hill Communities; CPA 2007-M-06. MOVED BY CORMAI\, SECONDED flY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL ALL A YES. CARRIED. An ordinance was read amending Chapter 2, Zoning Districts -Uses and Standards, of Title IV (Development Regulations) of City Code establishing the zoning classification of certain property annexed within the City of Renton from King County zoning to R-4 (Residential -four dwelling units per net acre) zoning; Benson Hill Communities; CPA 2007-M-06. MOVED BY CORMAN, SECONDED BY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. An ordinance was read amending Chapter 2, Zoning Districts -Uses and Standards, of Title IV (Development Regulations) of City Code establishing the zoning classification of certain property annexed within the City of Renton from King County mning to R-8 (Residential -eight dwelling units per net acre) zoning; Benson Hill Communities; CPA 2007-M-06. MOVED BY CORMAN, SECONDED BY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL A YES. CARRIED. An ordinance was read amending Chapter 2, Zoning Districts -Uses and Standards, of T1tk IV ( Development Regulations) of City Code establishing the zoning classification of certain property annexed within the City of Renton from King County znning to R-10 (Residential -ten dwelling units per net acre) zoning; Benson Hill Communities; CPA 2007-M-06. MOVED BY CORMAN, SECONDED BY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL A YES. CARRIED. An ordinance was read amending Chapter 2, Zoning Districts -Uses and Standards, ofTitk IV (Development Regulations) of City Code establishing the zoning classification of certain property annexed within the City of Renton from King County zoning to R-14 (Residential -14 dwelling units per net acre) zoning; Benson Hill Communities; CPA 2007-M-06. MOVED BY CORMAN, SECONDED BY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALI : ALL A YES. CARRJED. MOVED BY PERSSON, SECONDED BY CORMAN, COUNCIL REFER THE FOLLOWINCi THREE TOPICS TO THE FINANCE COMMITTEE: CONTINUED FLJN[)JNG FOR THE BENSON HILL COMMUNITIES ANNEXATIO'.\ PLAN, FINANCIAL POLICY FOR CAPITAL FUNDING PLAN, AND FRANCHISE/UTILITY FEES FOR NEWLY ANNEXED AREAS, CARRIED. Councilmembcr Parker reported receipt of letters from Valerie and Michael O'Halloran (Renton), and Chuck and Fran Gitchel (Renton) regarding the appeal of the Hearing Examiner's decision concerning the T-Mobilc monopole conditional use permit application. MOVED BY PARKER, SECONDED BY ZWICKER, COL"iCIL REFER THE CORRESPONDENCE TO THE PLANNING AND DEVELOPMENT COMMITTEE. CARRIED. , Newton Ellifrits (Renton) noted a correction to the consent agenda item I concerning the appeal of the Hearing Examiner's decision regarding the T- J Mobile monopole conditional use permit application. He pointed out that the i location is SE 3rd l'I" not S. 3rd Pl. as stated. F eb!UlU"Y I I , 2008 Renton City CoJ..Ulcil 1055 S Grady Way Renton, WA 98057 Ref: LUA07-065, CU-A, ECF Appeal f!.orre.spofla-. ,e,e.- ,;.;;. j(J/)f CiTY OF RENTOl\l FEB 11 2008 /~~ RECEIVED Kekr +o f(anrt/~ ,,. 1 c1rvcLERK'iioFF1ce 'JJe //el Pf ;v1aif f!om ;1,1' 'ff-cc:. T -Mobile Monopole in SE 3'" Place and Arnu:ortes Ave SE Right of Way Dear Council Members: As expected, T-Mobik has filed an appeal to the Hearing Examiner's decision in the above-ref:erew::ed matter. T -Mobile originally tried to install a monopole l structure in the Seattle Public Utilities pump station facility located at the end of Union Ave SE. They were prevented from doing so because the parcel in question is .08 of an acre short of the required I acre. T-_Mobile's application for a variance to this requirement w_as deni~ The matter has become protracted and expensive in terms of city resources and time, and in citiwn anxiety. The City has the oppmtunity and obligation to resolve this in a way that does not impact a residential neighborhood. We suggest the Council move quickly and allow the requested var:iance to the 1 acre requirerr:u.:.DL We certainly do not want the City to be in violation of the Telecommunication Act of 1996; then we would have no control at all in the placement of these structures. ·i:rzOJI-~ M ~o~ Valerie and Michael O'Halloran 44WSE4th&reet Renton, WA 98059 425-271-6973 Chuck and Fran Gitchel 4401 SE 3rd Place Renton, WA 98059 February 10, 2008 City of Renton, Affeal CITY OF RENTON l!orrespondettce FEB 1 1 2008 c2-I/ -;I ~ O <J RECEIVED f] CITY CLERK'S OF'FICE ,iefer -lo 1/.ard 1>e/i11i,d f hn11i'!j+ DetJe/o;me11f f!ommi'Hee My wife and I live at the site where T-Mobile is still trying to install a 60 ft monopole 45 feet from our house and a 24/7-access vault 25 feet from our bedroom. Several Real Estate Professionals have written, and you have in your possession their letters, stating that all the property values near this pole would be drastically reduced or not saleable at any price. T-Mobile was unable to show any facts to the contrary at the hearing. If T-Mobile is allowed to place their antenna on the corner of our front yard, it will open the door for any cell phone company to place their antennas at ANY residentially zoned utility pole in the city of Renton. Hundreds of families would have their net worth drastically reduced. Would you want this to happen to you? ... Would you want a cell phone monopole in your front yard two car lengths from your house? ... Would you want to have people working one car length from your bedroom in the middle of the night? ... Would you want to hear equipment running every night when you put your head on your pillow? T-Mobile was not allowed to apply for a permit at the south end of Union Ave. (See Exhibit A), but they were allowed to apply for a permit 45 feet from our house. THIS IS VERY BAD LAW! I previously asked the city council to grant T-Mobile a variance to pursue the location at 450 Union Ave. For whatever reason No action was taken. I asked the T-Mobile representatives to ask the city council for a variance for the Union Ave location. T-Mobile said they had their own ways of dealing with cities. It's evident by T-Mobiles recent appeal that they would rather use strong-arm techniques. I have had more than one neighbor tell me that T-Mobile has a lot of money and will ultimately get whatever they want in Renton. I do not believe this to be true, but if it is and if T-Mobile is right in their way of dealing with the City of Renton, Let me say: "The previous mayor and the previous city council passed these bad laws regarding cell phone monopoles. If T-Mobile succeeds in putting their antenna at the corner of our front yard, my neighbors, my wife and I will sue the city of Renton for our losses in property values. We will do everything in our power to get the local and national media involved to find out who is responsible for this happening and what company or group they work for." I would hope it doesn't come to that. I have been watching these city council proceedings for several months now. I personally believe that Mayor Law and most of the present city council members want to do what's best for the citizens of Renton. I hope I'm not being naYve in this thinking. Please DO NOT allow T-Mobile to install their antenna at the corner of our property. Chuck Gitchel Fran Gitchel Exhibit A 450 Union Ave. SE ,, February 11, 2008 CONSENT AGENDA Council Meeting Minutes of 2/4/2008 AJLS: Renton Pool, Renton School District Appeal: Monopole Conditional Use Permit, T-Mobile, CU-07- ~ 0 b.5 Vacation: Queen Ave NE, Newfourth, V AC-07-003 Vacation: Whitworth Ave S, TEAM Properties, V AC-07- 002 Plat: Magnussen, NE 2nd St, FP-07-129 EDNSP: Shoreline Master Program, Parametrix Annexation: Benson Hill Communities, State Funding CAG: 07-140, Benson Rd S Water Line Relocation, Ceccanti Utility: White Fence Ranch Sewer Extension Survey, PACE Engineers Renton City Council Minutes Page 45 Parker with thank you notes from the students for their participation in the judging process. Councilmember Parker indicated that he was amazed by the talent displayed by the students. Items on the consent agenda are adopted by one motion which follows the listing. Approval of Council meeting minutes of 2/4/2008. Council concur. Administrative, Judicial and Legal Services Department recommended approval of an agreement in the amount of $175,000 with Renton School District #403 to provide financial support for the Renton Pool at Lindbergh High School. Refer to Committee of the Whole. City Clerk reported appeal of Hearing Examiner's decision regarding T-Mobile's conditional use permit application for monopole at SE 3rd Pl. by T-Mobile 1 USA, Inc., represented by Linda Atkins of Davis Wright Tremaine, Jaccompanied by required fee. Refer to Planning and Development Committee. I City Clerk recommended adoption of an ordinance finalizing the vacation of a portion of Queen A, e. "E, south of NE 4th St., as all conditions of the vacation approval have been satisfied (VAC-07-003; petitioner Newfourth, LLC). Council concur. (Sec page 47 for ordinance.) City Clerk recommended adoption of an ordinance finalizing the vacation of a portion of Whitworth A,c. S., south ofS. 4th St., as all conditions of the vacation approval IJa\c been satisfied (VAC-07-002; petitioner TEAM Properties, LLC). Council concur. (See page 47 for ordinance.) Development Services Division recommended approval, with conditions, of the Magnussen Final !'lat: 49 single-family lots on 8.37 acres located at NE 2nd St. between Duvall Ave. NE and Field Ave. NE. Council concur. (See page 46 for resolution.) Economic Development. "leighborhoods and Strategic Planning Department recommended apprm al of a contract with Parametrix, Inc. in the amount of $199,890 to update the Shoreline Master Program. Council concur. Finance and Information Services Department recommended adoption of an ordinance establishing the State funding threshold and sales tax rebate rate related to the Benson Hill Communities Annexation. Council concur. (See page 47 for ordinance.) Utility Systems Division submitted CAG-07-140, Water Line Relocation for Realignment of Benson Rd. S. and 1-405 Overpass; and requested approval of the project, authorization for final pay estimate in the amount of $11,979, commencement or 60-day lien period, and release of retained amount of $54,193.25 to Ceccanti, Inc., contractor, if all required releases are obtained. Council concur. Utility Systems Division requested approval ofan agreement in the amount of $48,000 with PACE Engineers, Inc. to perform base mapping for the White Fence Ranch Sewer Extension project. Council concur. MOVED BY PALMER, SECONDED BY CORMAN, COUNCIL APPROVE THE CONSENT A(jENDA AS PRESENTED. CARRIED. CI. , OF RENTON COUNCIL AGENDA BILL I Al#: Submitting Data: For Agenda of: February 11, 08 Dept/Div/Board: AJLS/City Clerk Staff Contact: Bonnie I. Walton Agenda Status Consent.. .............. X Subject: Public Hearing ........ Appeal of Hearing Examiner's decision dated January 15, 2008 Correspondence ....... regarding T-Mobile Monopole in SE 3"1 Place R-0-W Ordinance ............. Application. Resolution ............. (File No. LUA-07-~ CU-A, ECF) Old Business .......... uh Exhibits: New Business ......... • City Clerk's letter (2/1/08) Study Sessions ........ • Appeal -T-Mobile USA (1/29/08) including: Information ............ * Hearing Examiner's Report & Recommendation (1/15/08) * Appeal to Hearing Examiner (10/29/07) Recommended Action: Refer to Planning and Development Committee Approvals: Legal Dept. ......... . Finance Dept.. ..... . Other. ................ . Fiscal Impact: NIA Expenditure Required .. . Transfer/ Amendment. ...... . Amount Budgeted ....... . Revenue Generated ........ . Total Project Budget ... . City Share Total Project .. . SUMMARY OF ACTION: Appeal of the Hearing Examiner's decision on the T-Mobile Monopole in SE 3rd Place R-0-W was filed on January 29, 2008 by Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cade, T-Mobile USA, Inc. accompanied by the required $75 fee. STAFF RECOMMENDATION: Council to take action on the T-Mobile Monopole in SE 3'd Place Right-of Way appeal. cc: Jennifer Henning Larry Warren Rentonnet/agnbill/ bh February I, 2008 APPEAL FILED BY: Linda Atkins, Attorney or Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. RE: Appeal of Hearing Examiner's decision dated January 15, 2008, regarding conditional use ap;lication for a wireless communications facility, known as the T-Mobile Monopole; SE 3' Place and Anacortes Av SE R-0-W. (File No. LUA-07-.041 CU-A, ECF) To Parties of Record: DbS Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the hearing examiner's decision on the T-Mobile Monopole within the SE 3rd Place and Anacortes Av SE right-of-way Conditional Use Permit application has been filed with the City Clerk. In accordance with Renton Municipal Code Section 4-8-1 lOF, within five days ofreceipt oftl1e notice of appeal, or immediately after all appeal periods with ilie Hearing Examiner have expired, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to support of their positions regarding the appeal within ten (I 0) days of the date of mailing of this notification. The deadline for submission of additional letters is by 5:00 p.m., Monday, February 11, 2008. NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will be reviewed by the Council's Planning and Development Committee at 3:00 p.m. on Thursday, February 21, 2008, in the Council Chambers, 7°' Floor of Renton City Hall, 1055 South Grady Way, Renton, Washington 98057. The recommendation of the Committee will be presented for consideration by the full Council at a subsequent Council meeting. Copy of the appeal and the Renton Municipal Code regarding appeal of Hearing Examiner decisions or recommendations is attached. Please note that the City Council will be considering the merits of ilie appeal based upon the written record previously established. Unless a showing can be made that additional evidence could not reasonably have been available at the prior hearing held by the Hearing Examiner, no further evidence or testimony on this matter will be accepted by the City Council. For additional information or assistance, please call me at 425-430-6510. Sincerely, Bonnie I. Walton City Clerk Attachments Citv of Renton Municipal 0 Title IV. Chapter 8. Section 110 -Appe 4-8-11 OC4 The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170, the fee schedule of the City. (Ord. 3658, 9-13-82) 4-8-11 OF: Appeals to City Council -Procedures 1. Time for Appeal: Unless a specific section or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body, any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council, upon a form furnished by the City Clerk, within fourteen (14) calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: 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. 3. Opportunity to Provide Comments: Other parties of record may submit letters in support of their positions within ten ( I OJ days of the dates of mailing of the notification of the filing of the notice of appeal. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members 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. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: 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 shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription of the hearing record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizmg new or additional evidence or testimony, and a remand to the Hearing Examiner for receipt of such 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. (Ord. 4389, 1-25-1993) 6. Council Evaluation Criteria: 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. 7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-l-050Fl, 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. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-1-050F2 and F3, and after examination of the record, the Council detennines 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. 9. Decision Documentation: In any event, the decision of the City Council shall be in writing and shall specify any modified or amended findings and 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, 9-13-1982) 10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection GS of this Section. (Ord. 4660, 3-17-1997) PPEAL TO RENTON CITY COUN1 OF HEARING EXAMINER'S DECISION/RECOMMENDATION CIIYOF Rl:il!YON--.. -4, l)UY1 I JAN 2 9 2008 ;} :1)r1 RECEIVED CITY CLER.K'B OFFIC~ APPLICATIONNAME T-Mobile SE 3rd Pl & Ana=rtes Ave. Right-or-way FILE NO. LUA07-06SCU-A, ECF The undersigned interested party hereby files its Notice of Appeal from the decision or recommendation of the Land Use Hearing Examiner, dated January 15 , 20~. \ I I ' I. IDENTIFICATION OF PARTY APPELLANT: Name: T-Mobile USA, Inc./Michael Cady REPRESENTATIVE (IF ANY): I Name: Linda w. Atkins & Davis Wright TrernaipE Address: 19807 North Creek Pkwy 2nd Floor Bothell, WA 98011 Address: 777 108th Ave NE, #2300 Bellevue, WA 98004-5149 Phone Number: 425-398-7603 Email: Michael.Cady@T-Mobile.com Phone Number: 425-646-6115 Email: lindaatkins@dwt.com 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. 4 ' 5 ' Error: e attached 7,12, 14,15,·---------------------------------- 18-21 Correction: See attached ------------------------------ Conclusions: No. 1-7 Error: _...=Se"'e"--'a"'t=.:ta=ch=edc::..._ ________________________ _ Correction: See attached .illh£!:: No. Error: -~S=ee~a=t=ta=ch=e=d~----------------------- Correction: See attached 3. SUMMARY OF ACTION REQUESTED The City Council is requested to grant the following relief: (Attach explanation, if desired) See attached. X Reverse the decision or recommendation and grant the following relief: Issue Permit Modify the decision or recommendation as follows: OR X Remand to the Examiner for further consideration as follows: See attached. Other: Appellant/Representative Signature Linda W. Atkins Type/Printed Name /-;;Jf-<"<7fl Date ' Ple"fe reff\t\.kle IV, Ch)l!)ter 8, of the Renton Munici.pal Code .• and Section 4-8-1 IOF, for specific appeal procedu,t§. f / i· \ ti'N . ~ ~. ~ U}:,..{( ""-/\, ~ HQoA-t~ &,:.,~E ...J "-"v'---Llw .. ~. ~" C ~. U\oc,__ W;. \ . NOTE: cc·~ Appeal of Hearing Ex, 1er Decision No. LUA07-65, CU-A, tCF Page 1 of 8 BEFORE THE RENTON CITY COUNCIL APPEAL OF DENIAL OF ADMINISTRATIVE CONDITIONAL USE PERMIT Appellant: Decision Appealed: Project Name: Property Owner: Project Location: File Number: I. I-Mobile USA, Inc. and I-Mobile West Corporation, d/b/a I- Mobile Decision of City of Renton Hearing Examiner dated January 15, 2008 I-Mobile Monopole in SE 3rd Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 Street right-of-way located northwest of property addressed at 4401 SE 3rd Place, within SE 3rd Place and Anacortes Ave SE LUA07-065, CU-A, ECF Nature of Application and Project Location I-Mobile, the Appellant and Applicant, filed an application for an Administrative Conditional Use Permit approval for a wireless communications facility with the City of Renton on June 28, 2007. The application requested permission to replace an existing 40-foot tall wooden Puget Sound Energy ("PSE") power pole with a new wooden power pole to be 59-feet-11-inches tall. Permission to replace the existing wooden power pole with a new pole was requested so that I-Mobile could collocate three flush-mounted wireless communications antennas on the pole. The I-Mobile proposal also included a request for permission to install an underground vault to house telecommunications equipment associated with the wireless facility. The project site totals 104 square feet in area and would be accessed via Anacortes A venue NE. The purpose of the proposed I-Mobile wireless communications facility is to provide in- building and outdoor coverage to a residential area located within the City of Renton east of Union Avenue SE and roughly bounded by SE 2"d Place to the north and SE 4th Place to the south. The area surrounding the proposed site is zoned Residential-8 (R-8) (8 dwelling units per acre). Single family residences surround the project site. I-Mobile currently cannot provide adequate wireless signal in this area, and thus cannot adequately serve its customers in the area. The application was processed by the City of Renton as an Administrative Conditional Use permit to install a "monopole l" structure. As defined by RMC 4-11-230 a "monopole l" structure is: Appeal of Hearing Ex 1er Decision No. LUA07-65, CU-A, tCF Page 2 of8 A wireless communication support structure which consists of a freestanding support structure, less than sixty feet ( 60') in height, erected to support wireless communication antennas and connecting appurtenances. As T-Mobile explained to the Hearing Examiner during the open record appeal hearing in this matter, this definition is not a completely accurate description of the T-Mobile application. Although it is necessary to replace the existing PSE pole with a somewhat taller pole in order to allow the attachment of T-Mobile antennas at the proper height, the primary purpose of the pole will continue to be to support PSE power lines. II. City of Renton Development Services Permit Denial and Appeal to City of Renton Hearing Examiner. In an Administrative Land Use Action decision issued October 15, 2007, City of Renton Development Services Director Neil Watts denied T-Mobile's application on the following grounds: I. The subject proposal does not comply with all of the policies and codes of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single fiuni/y residential neighborhood 2. The proposal does not comply with the Comprehensive Plan Utilities element due lo the aesthetic impacts the monopole would have on !he surrounding neighborhood that cannot be mitigated. The proposal does no/ comply with all the Wireless Communication Facilities Conditional Use Criteria. 3. Unrebutted testimony was received from real estate professionals stating that the siting of a monopole I structure at the proposed location would reduce the property values in the vicinity. T-Mobile disagreed with these conclusions and appealed this administrative denial to the City of Renton Hearing Examiner. III. T-Mobile's Grounds for Appeal of Hearing Examiner's Denial Decision The City of Renton Hearing Examiner held an open record hearing on T-Mobile's appeal on December 18, 2007. Witnesses for T-Mobilc at the hearing included T-Mobile representatives Kevin Foy and Chris Conaxis, T-Mobile Zoning Supervisor Michael Cady, and T-Mobile's Radiofrequency ("Rf") engineer, Kevin During. Following the hearing, the Hearing Examiner denied T-Mobile's appeal, and entered Findings and Appeal of Hearing Ex' 1er Decision No. LUA07-65, CU-A, ~CF Page 3 of8 Conclusions as set forth on pages 8 -11 of the Examiner decision. A true and correct copy of the Examiner's decision is attached to this appeal as Appendix I: T-Mobile hereby appeals the Hearing Examiner denial and the Examiner's findings and conclusions, as set forth below: A. Potential Errors Related to Hearing Examiner "Minutes" of December 18, 2007 Hearing I. To the extent that any of the text of the Hearing Examiner decision as set forth beginning at the bottom of page I of the decision and continuing through the top of page 8 of the decision--denominated by the Examiner as "Minutes"~is inconsistent with, or does not accurately reflect, the actual testimony of the witnesses at the hearing, T-Mobile objects to the same, and requests that for purposes of the appeal that the City Council consider and base its decision on only the official record of the December 18, 2007 Hearing Examiner hearing. 2. To any extent that the "Minutes" of the December 18, 2007 hearing as set forth at pages 1-8 of the Examiner's decision (a) are inaccurate and (b) constitute factual findings of the Examiner, T-Mobile hereby appeals from such inaccurate findings. 3. T-Mobile reserves the right to order and enter into the record before the City Council a complete transcription of the December 18, 2007 hearing, and to present to the Council in written briefs or in oral argument further specific objections to the characterization of the evidence by the Hearing Examiner in the "Minutes" as necessary or appropriate for its appeal. B. Errors in Hearing Examiner's Findings 1. T-Mobile appeals from Finding 4 of the decision to the extent that such finding may inadequately characterize the nature of the T-Mobile application. Finding 4 states that the proposal is for a "monopole I" structure. As defined by RMC 4-11-230 a "monopole I" structure is "A wireless communication support structure which consists of a freestanding support structure, less than sixty feet ( 60') in height, erected to support wireless communication antennas and connecting appurtenances." Although it is necessary to replace the existing PSE pole with a somewhat taller pole in order to allow the attachment of T-Mobile antennas at the proper height, the primary purpose of the pole will continue to be to support PSE power lines. PSE power lines obviously are not "wireless" facilities. T-Mobile's proposal is to collocate its antennas on the PSE pole. 2. T-Mobile appeals from Finding 5 of the decision because this finding recites conclusions of the City staff report with which T-Mobile disagrees. Testimony and documents in the record before the Examiner demonstrate that there are many trees in the area, and that from certain views in the neighborhood there would be a screening effect for the pole. The existing PSE pole is 40' tall; thus, to the extent that this Finding 5 Appeal of Hearing Ex. 1er Decision No. LUA07-65, CU-A, t:'.CF Page 4 of8 characterizes the existing structures in the area as no higher than 30', the Finding is inaccurate. 3. T-Mobile appeals from Finding 7 to the extent that the Hearing Examiner has incorporated and relied upon certain conclusions of Development Director Watts which are recited in finding 7. T-Mobile disagrees with the Director's conclusions as set forth in the written appeal from the Director's decision that T-Mobile filed with the Hearing Examiner. A true and correct copy ofT-Mobile's appeal of the Director decision is attached hereto as Appendix 2, and each of the grounds for appeal set forth in Appendix 2 are incorporated herein by reference. 4. T-Mobile appeals from Finding 12 because it inaccurately characterizes what may be allowed in the R-8 zone under the Renton wireless facilities ordinance. RMC 4-4- 140(G) sets forth the height limits for wireless facilities. Under these provisions, wireless facilities may exceed the height limit for a /One, for example, a monopole I structure is allowed at any height less than 60' in all zones. The mere fact that a wireless facility proposal is taller than other structures in a zone is not a determining factor for granting a wireless facility permit. By their nature, wireless facilities must be taller than other structures in an area, otherwise the wireless signal cannot be sent. The Renton Municipal Code acknowledges this fact. The Hearing Examiner, however, erroneously ignores this fact. 5. Finding 14 restates certain comments made by the Director in his administrative decision. To the extent that the Examiner may have adopted or relied upon such comments, T-Mobile appeals from Finding 14, for the reasons set forth in its appeal of the Director's decision, attached hereto as Appendix 2. 6. Finding 15 recites certain conclusions of the ERC. To the extent that such recited conclusions, or other text of Finding 15, suggest or state that the Examiner finds that the T-Mobile application should be denied on aesthetic grounds, T-Mobile appeals from the finding. Testimony and documents presented to the Hearing Examiner addressed aesthetic issues and issues related to various mitigation measures that might be utilized for a wireless facility of this type. Finding 15 does not accurately reflect such evidence. 7. T-Mobile appeals from Finding 18. There is no indication in the Finding as to what letter the Examiner refers to ( there were at least two real estate agent letters in the record). To the extent that T-Mobile is able to guess at which letter the Examiner relies upon, T-Mobile disagrees that any such letter referred to in the Finding "indicates" that there would be an adverse effect on property values. The letters contain statements by parties who were not present at the hearing and who therefore could not be cross- examined. No evidence was presented regarding the qualifications of the letter writers. The finding refers to evidence that is of indeterminate identity, and given the lack of expert qualifications, of little or no weight. Appeal of Hearing Ex 1er Decision No. LUA07-65, CU-A, L.__:F Page 5 of8 8. I-Mobile appeals from Finding 19. This finding mischaracterizes the referenced report submitted by Appellant, and ignores pertinent evidence in the Appellant's report as well as supporting testimony given at the hearing concerning the relevance of the report and concerning the similarities between the property analyzed in the report and the proposal at issue. 9. I-Mobile appeals from Finding 20. The utility poles referenced are not identified as to location or height, nor is their location or height correlated to the search ring criteria for the I-Mobile site. There is no factual basis stated for the conclusion that such poles, with or without the unspecified "modifications" referred to in the Finding, could "provide less aesthetic concern." The Finding is inconsistent with the testimony and documents presented to the Examiner, and mischaracterizes the facts concerning what locations are actually able and suitable to provide coverage for the gap in service that prompted T- Mobile to make the application at issue. 10. Finding 21 inadequately characterizes the evidence presented by T-Mobile concerning its efforts to submit an application to the City for a site that was not located within a residential area. This finding does not accurately reflect the record or T- Mobile's efforts in this regard. C. Errors in Hearing Examiner's Conclusions. I. T-Mobile appeals from Conclusion I for the following reasons. RMC 4-8- 110(7)(b) sets out six separate grounds for reversal or remand of an administrative land use decision "if the substantial rights of the applicant may have been prejudiced because the decision is: (i) in violation of constitutional provisions; (ii) in excess of the authority or jurisdiction of the agency; (iii) made upon unlawful procedure; (iv) affected by other error of law; (v) clearly erroneous in view of the entire record as submitted; (vi) arbitrary or capricious." The Hearing Examiner's Conclusion I purports to cite these criteria, but only refers to four of the six criteria. Conclusion I declares that T-Mobile failed to show any error under the six criteria, but fails to identify how, or on what basis, the Examiner reached this decision. The Examiner ignored the provisions of the federal Telecommunications Act, and ignored written and testimonial evidence from I-Mobile as to facts relevant to the application decision, including but not limited to substantial evidence that T-Mobile considered other alternatives to the proposed location, including an alternative that would have placed the facility completely outside of a residential area, but was thwarted by the City itself from pursuing that alternative, by reason of the letter and the application of the City's burdensome, overly restrictive, anti-competitive ordinances which denied T -Mobile the ability to fill a significant gap in its coverage and to compete on a level playing field with other wireless service providers. 2. T -Mobile appeals from Conclusions 2 and 3 on the grounds that these conclusions evidence that the Examiner gave undue deference to the decision of the Director, in direct violation of Renton Municipal Code provisions that require the Examiner to hold an open Appeal of Hearing Ex. 1er Decision No. LUA07-65, CU-A, 1cCF Page 6 of 8 record hearing on the application and to decide based upon the record evidence admitted before the Examiner whether the application should be approved. 3. Conclusion 4 is erroneous and should be reversed by the Council because it reflects that the Examiner incorrectly applied the permit approval criteria for wireless facilities, and improperly based his decision on undue deference to the decision of the Director, and upon an erroneous application of the law. The Examiner in Conclusion 4 erred in determining that this proposal could be denied solely for aesthetic reasons, and further erred in ignoring substantial evidence that this permit denial deprives T-Mobile of the ability and opportunity to close a significant gap in its coverage which cannot be closed through any other site alternatives. 4. T-Mobile appeals from Conclusion 5 because it reflects that the Examiner ignored substantial evidence presented by T-Mobilc that the proposed facility at the proposed site is the only means available to T-Mobilc under the Renton Municipal Code for closing a significant gap in its coverage. The Examiner declares in this conclusion that some other combination of"additional shorter poles or taller poles spread out further" would be suitable alternatives, without any basis in the record evidence that such unidentified alternatives would be located within the T-Mobile search ring or that such alternatives would have provided adequate coverage. The Examiner fails to discuss T-Mobile's evidence that it attempted without success to persuade the Development Services department to accept an application for T-Mobile to locate its facilities at a nearly I acre size lot, not located within a residential district, where other communications facilities are already located, and which would not have adverse aesthetic impacts because of existing screening trees. The Examiner's Conclusion 5 is clearly erroneous and must be reversed. 5. T-Mobile appeals from Conclusion 6 because it is clearly erroneous on its face. This conclusion admits that no provision of the Renton Municipal Code required T- Mobile to submit reports concerning alternative sites. Having said this, the conclusion then states that I-Mobile's application was properly denied by the Development Services Director because of the absence of alternatives evidence. The Examiner states that "the Director was ... limited to consider the impacts of the proposed pole and site", but then concludes that a permit was properly denied because of factors that do not relate to the proposal. Conclusion 6 is contradictory on its face, illogical, and not based upon the Renton Municipal Code or upon a correct interpretation of Telecommunications Act case law. 6. T-Mobile appeals from Conclusion 7 because it, like Conclusions I, 2 and 3, is predicated on errors of law concerning the proper standard of review of the Director's decision, and upon a misapprehension of the role of an open record appeal hearing within the administrative land use decision making process. Further, Conclusion 7 is predicated on a misapprehension of the role that aesthetics may play in a decision on a wireless facility proposal under Renton's wireless code and under Washington law. For example, RMC 4-4-l 40(F)(2) states on its face that as to visual impact, wireless development should preserve the pre-existing character of the surroundings "to the extent consistent Appeal of Hearing Ex 1er Decision No. LUA07-65, CU-A, ._,CF Page 7 of8 with the function of the communications equipment," and that wireless facilities shall be designed to blend with the existing characteristics of the site "to the extent practical." These provisions clearly state that considerations of aesthetics and compatibility must be balanced with the technical requirements of wireless communications. Here, the Director and the Examiner have denied a permit to T-Mobile for the only feasible location to fill the significant gap in its coverage because the support structure for the antennas will be taller than other structures in the area and because it will be seen. Washington courts consistently have been clear that a permit denial carmot be based upon these considerations alone. See Seattle SMSA Ltd. v. San Juan County, 88 F.Supp.2d 1128, 1131 n.3 (W.D.Wn. 1997) (aesthetic factors may not be sole basis for permit denial); Citizens to Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wn.App. 461 (2001) (fact that monopole would be seen from some adjacent properties insufficient to support permit denial). IV. The City's Permit Denial Violates the Federal Telecommunications Act. The Telecommunications Act of 1996 ("the Act") prohibits municipal government from enacting or enforcing regulations or requirements that "may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C. § 253. Under Section 253 of the Act, federal courts have made it clear that municipalities are prohibited from imposing complex, discretionary, and burdensome zoning obligations on telecommunications providers as a precondition of deploying telecommunications facilities. See, e.g., Sprint Telephony PSC, L.P. v. County of San Diego, 479 F.3d I 061 (9th Cir. 2007); City of Auburn v. Qwest Corp., 260 F .3d 1160 (9th Cir. 2001 ). Such "barriers to entry" are improper, and any municipal decision which embodies or creates such a barrier is a violation of federal law. Here, where T-Mobile has already been prevented from submitting an application to the City for a wireless facility on non-residentially-zoned land that would have covered the gap in its service area, and now has been denied a permit for the only other practicable location that would allow it to service the gap on the grounds that the location is too close to residences, or has too much impact on residences, T-Mobile effectively has been prevented from entering and providing services to this area, in violation of Section 253 of the Act. The City's application of its zoning regulations, as admitted by even the Hearing Examiner in Conclusion 6, have made it virtually impossible for T-Mobile to service its customers in the area affected by this application. Similarly, Section 332(c)(7)(B) of the Act prohibits local government pennit denials that prohibit or have the effect of prohibiting the provision of wireless services. This section of the Act is even expressly recognized by the City, in RMC 4-4-140(E)(2), which provides that "The City zoning requirements may not prohibit or have the effect of prohibiting the provision of wireless telecommunications service." Here, where the City has refused to grant a permit to T-Mobile for a facility at the only practicable location Appeal of Hearing Ex, 1er Decision No. LUA07-65, CU-A, tCF Page 8 of8 that will allow it to fill the significant gap in its service coverage, the City has violated both Section 332 of the Act and its own ordinances. V. RELIEF REQUESTED The Hearing Examiner has erroneously denied T-Mobile's appeal of the Development Director's Decision, and the City Council should reverse the Examiner's decision. For all of the reasons that are apparent from the contents ofT-Mobile's appeal to the Hearing Examiner and from the other documents contained in the record and the testimony that was before the Hearing Examiner, the Development Director erred in issuing his original denial ofT-Mobile's site application. T-Mobile presented ample evidence supporting the proposed location and facility as being the minimum necessary to fill the gap in its service coverage. The record before the Hearing Examiner contains the report and testimony ofT-Mobile's radiofrequency engineer as to the size and location of the coverage gap, and of the reasons why the proposal is the only practicable solution to fill that gap. The RF engineer's report and testimony includes an analysis of alternative sites, which analysis was completely ignored by the Hearing Examiner. Based upon the record before the Hearing Examiner, and upon the applicable criteria of RMC 4-4-140 and 4-9- 030(]), the wireless facility application ofT-Mobile for this location should be approved. T-Mobile respectfully requests that the City Council reverse the Hearing Examiner's decision and grant the requested pe1rnit. In alternative event that the Council believes that additional inforn1ation is required regarding any matter or issue presented to the Hearing Examiner, T-Mobile would request that the Council remand to the Examiner for further proceedings with instructions as to the proper legal standards to apply to a decision on remand. Dated this 29th day of January, 2008. Respectfully Submitted, Davis Wright Tremaine, Attorneys For Appellant T-Mobile By~lt!~ .. ~ Linda White Atkins WSBA #17955 777 108 1h A venue NE Bellevue, WA 98004 Telephone: 425-646-6115 Facsimile: 425-646-6199 Email: lindaatkins@dwt.com APPENDIX 1 OFFICE OF TIIE HEAIUNG EXAMINER CITY OF RENTON REPORT AND RECOJvlMENDATION APPELLANT: January I 5, 2008 T-Mobile Monopole in SE 3"'·P]ace Right-of-Way Appeal LUA-07-065, cu-A, ECF PUBLIC HEARING: After reviewing the Appellant's written requests for a hearing and examining available infonnation on file, the Exan1iner conducted a public hearing on the subject as follows: MINUTES Tire following minutes are a summary of the December 18, 2007 fleariilg. Tlte legal record is recorded 011 CD. The hearing opened on Tuesday, December 18, 2007, at 9:0l a.m. in the Council Chambers on tlie seventh floor of the Renton City Hall. Parties wishing to testify were affim1ed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Staff file containing the original appeal letter and site information, by reference, letters Ji-om a number of neighbors, Mr. Watt's denial,.and the letter establishing this a]}peal date. Parties Present: Neil Walts, Development Services Director, City of Renton Ann Nielsen, Assistant City Attorney Kevin Foy, Appellant Chris Con axis, Representing the Appellant, 575 Andover Park W, .Ste. 20 I, Tukwila, WA 98188 Michael Cady, Zoning Supervisor for T-Mobile, 575 Andover Park W, Ste. 20 I, Tukwila, 98188 Kevin Durning, RF Engineer for T-Mobile, 575 Andover Park W, Ste. 201, Tukwila, WA 98188 Testimony began with: Chris Conaxis stated that T-Mobi!e was here to bring excel1ent coverage to their customers and their needs. There is a greater need in rnral areas and resic!ential neighborhoods. Faotor.s that identify new sites,and candidates include computer modeling, input from customers, compelition:from other can,iers, demand for "91 I" emergency coverage, new types of home construction and population increases in the area, overall system performance, as well as other considerations. A gap in T-Mobile's coverage has been discovered and a location T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page2 has been found that is within the constraints of the code that will serv.e to meet the customer's needs. This phm is .designed to bring cov¢rage to residences east of Union Avenue at SE 2nd Place to the south at SE 4'". These targeted areas are very small. (map referred to as Tab 6 in the booklet) T-Mobile applied for application, went through all the necessary processes and "'8S issued a denial. The infontlation provided was a clmmological order of events, starting at Tab 7 with.the request for pre-application meeting with the City to discuss the proposal. Mr. Conaxis continued through"tl1e booklet reviewing all !he pertinent infonn1ltion in the process leading to the denial of the application. A.esthetics were not braughl up during the review process and yet down the road it ends up being one of the major factors that the City is relying on for the denial of the project. On October 8 they received notice from the ERC and on October 15 they received the staff report, which was a complete reversal of the City's position ftom May/June and the Pre- Application Notice. Part of Tab 4 is the analysis provided by their radio frequency engineer, which discusses how they arrived at this facility as well as ~ome of the alternatives that were reviewed. Some of the other locations required the changing out of an existing utility pole for a new .one slightly taller to acconuuodate the antennas. Tab 2 shows the area without coverage and the second map shows the facility with coverage. It is not a larger area that itcovers. T-Mobile co11tends that under the present code, these monopole facilities are able to be located in this zone up to GO feet. T-Mobije is not proposing a monopole 1, which is define(! in the code as a wireless conununication support structure, consisting of a free-standing support structure Jess than 60 feet in height to support wireless conununications, antennas and connecting appurtenances. They, instead, are proposing an attached wireless communication facility, which would be utilizing an existing structure, granted the existing structure would have to be removed and replaced for a stronger pole .. They consider it an existing structure since one currently exists in the exact spot where the conu11unication tower would be located, the pole would continue to serve il.'s primary purpose as an existing utility pole, the wireless antennas would serve as a secondary function lo tlJat pole. T-Mobile does agree that .the top portion .of the pole would not be able to be screened, to work effectively, the pole does need to protrude above ground and above the trees in order to function properly. Any tree that was in front of the antenna would not allow the wireless m1tenna to fuirction properly, the wireless function cannot work through the trees, i.tmustbe above them, Tlte Examiner stated that aesthetics is the issue and to make the antenna aesthetic the antenna would need to be screened. and if you screen it the antenna beq)mes !.iscless. That is the dilemma. Mr. Cgnaxis stated t]mt that was correct, the top half of the pole could not be screened fron\ a functionality standpoint. There are trees in the area that are acting and a backdrop or screen from certain angles, l:ll)t the top 20 feet of the pole is there for functionality pml)oses, The proposed antennas in this case would be flush mounted to the pole, they would not protrude from the p.ole. The antenna is approximately 6 foetin length amj has a winged shape. The antenna will be flush mounted and paint¢d to match the color ofthe pole. TI1e equipment that runs the antenna will be installed in an underground vault for aesthetic purposes so the general publi~ will n.Cit see the equipment Up.011 a.ppraval of the project, the City has agreed to approve the underground vault activity. T-Mobile would be willing to enclose the antenna in a canister. Michael Cady stated that they had looked at false trees to minimize the look$ of the antenna. What they have found is that when you are close to those trees, they are very µgly, you can tell that they are false, The only time they work well is When there is a site that is quite a distance from anyone viewing it. Secondly the utility T 0 Mobile Monopole Appeal LUA-07-065, CD-A January 15, 2008 Page3 company has never authorized a pole that is designed to look like a tree because their primary function is as a utility pole and that function has to continue. The repo1i states that there is not an impact on prope1iy values. Chris Conaxis conUTiented that the false trees, if they were put on a corner where a utili!y pole currently exists, the false tree would stand out like a sore thumb. !fit is in a full stand oftrees·to 1nake it look like an existing tree tends to work better. They had proposed another alternative of placing the pole within a cluster of trees and that proposal was denied by the City, because of that they had to look for other sites. Under the staff report, the second item that the City contends is that the proposal does not comply with the Comprehensive Plan for utility elements. The neighborhood is currently dominated by 30-40 foot uti!i!y poles, T-Mobile is taking an existing structure and utilizing that existing structure by raising the height rather than bringing a new pole into the neighborhood. It fu1iher states that the proposal does not comply with the Communications _Facilities Conditional Use criteria. On the previous. page under Conditional Penni! Review it states that the applicant's conditional use pem1it application complies with the requirements for the infonnation necessary for the conditional use pem1it review: A third item under the conclusions states testimony was received from real estate professionals stating that the site of monopole 1 structures at the proposed location would reduce the property values in the vicinity. T- Mobile contends that they were never given an opportunity to provide rebuttal to that testimony. ·n1at rebul1al was submitted with the appeal documents. Under Tab 11 on third page there is talk about Ord. 5286 under RMC 4.2-080 states that monopoles proposed on public right-of-way may be allowed via Administrative Use Permit in a Right-of-Way Use Pem1it, that is what they were told in their pre-application meeting and U1at is the process they followed. It further states that the monopole must be 100 feet setback from any adjacent residentially zoned parcel, otherwise a Hearing Examiner Conditional Use would be required. This facility is not l 00 feet from a residentially zoned properly, they contend that the City may not have had the authority to make a decision on this application. Neil Watts quoted from RMC 4.2-060p, which s.tates this project would come under the Administtetive Use Pern1it process. He further went on io explain where the I 00-foot setJ:,ack applied. Chris Conaxis stated that this was not a Monopole I, rather it is an existing structure. The Examiner stated if it is not a Monopole l then Lhis heaiing should probably not be taking place. He further asked for a definition of a Monopole I. Neil Watts stated that it is a freestanding support structure less than 60-feet in height. This is an existing structure. Chris Conaxis staled that they started looking at this location prior to May 2006. Tab 13 contains.the letter and application that T-MobUe turned in for a Monopole l on the property.at 400 Union. This did not meet the size criteria, the parcel was .92 acre and it had to be one full acre. Theywere not even given the ability to request a variance for that site. They ,vere told that a new code was in the works and that it Woulcibe favorable for utility poles in the right of way and that's ,vhere they changed their direction and started lodkingfor suitable options. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 4 Kevin Durning. 575 Andover Park W, Ste. 201, Tukwila, WA 98188 stated that the coverage.fr-0m this particular location would be approximately a halfsmile. They ~re the predominate server in this area, there goal is to stay out of Maple Valley with this particular site and shoot more tothe n.orth. The height and location of trees will affect the service areas. In the winter coverage is usually better because of the deciduous trees. Iftlw tree is within ten or twelve feet it may cause problems, the beam is not allowed to develop it is basically stopped. Chris Conaxis showed a map showing an overview of the neighborhood with the location of the facility marked with a red dot. If this pa1iicular utility pole is notacceptable, how would any other utility pole on any of the surrounding streets meet the code? Union Street was inspected, from this location to Union they would lose 30- 40 feet in elevation, and aga.in once on Union they have the same.problem, where will they be able to put their ground equipment. There is a sidewalk and no place to .accommodate the cabinets above ground or underground. They have been researching this project, for almost 3 )'ears and ha,,e identified one property that appears to meet the needs of the code and after montl1s ofwofk, received a denial. The Examiner asked if a taller tower located in the area of SE I 28'h a:nd Cemetery Road wl1ich is more an arterial and more commercial oriented area, would tha.t serve the are~ geographically? Kevin Durning stated that they do have several locations in and around that particular area, they have not looked in that exact area. Taller is ambiguous, they can serve anything if they have a tall enough tower. He is not sure that it would be approved to be a taller tower in that area. As to what competitors are doing in this area, he did not know, different bands require different frequencies. Ann Nielsen stated that the October 8, 2007 Environmental Committee Report, issued by the City, under No. 3 on page 3 of 4 it specifically lists a category of aesU1etics. The conclusion states that other than relocation there do·es not appear to be any mitigation measure that could be implemented that would reduce the aesth.etics of the proposed Monopole I structure and associated equipment cabinet. Aesthetics was pointed out in the SEPA documents. Also, on October 29, 2007, which ran concurre!lt with .the appeal period on the Director's decision, if there was an issue with tl1is it should have been appealed att,hat time. The Examiner stated that they had no reason to appeal since ERC did not impose any mitigation measures. .Ann Nielsen stated that was true, but the appellant did just bring Op that the City had nowhere brought up the aspect of aesthetics, when it was specifically refereJJced 111 that report. For purpose of the record, are ci1e appellants saying tfrat this .is not a Monopole l structure? Neil Watts read the definition of a Mono po.le 1 structure: "Monopole I: a wireless comm11nicat~QTI support structure which consists of a free st;mdfol!''llJ.IPPOrt slruoture, Jess than 60 feet.in be:ight, erected to support wireless communications, antennas and·appurienances.'' .Ann Nielson stated that it is their application and appeal, but ihcy are Mt saying that it is a Monopole I, if they thirik itis something else, they should reapply under that applicable provision. The Examiner asked if the criteria or conditional use would be different if this was not a Monopole I, if it's less than 60 feet is there some different criteria. I I T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 5 Neil Watts stated when the Ordinance was written, they were looking at two different types, support structures which are basically a Monopole I, Monopole 2 structures which are significantly higher, and the lattic.e towers which are vety extreme situations. Separately from that is the discussion and definition on the different range of antennas. The intention set out in the code in the policies is for people to put antennas on existing structures, buildings, poles, etc. If PSE had a pole that was the right height and was structurally such that it could support the antenna, a pem1it for the antennas could be sought. If the antennas were small enough, which these today appear to be, it would be an outright permitted use. However, this is not an existing pole, either in height or in ability to support this type of facility. There is a new pole being put in. After discussion on whether this was the proper time for this hearing and whether or not this was a Monopole l or not, the appellant stated that he would prefer to continue with the hearing today under the declaration of a Monopole J. Neil Watts this particular provision allowing these types of facilities to go into single-family zoned property in the right of way was a late addition in the last year or two. This was not part of the original wireless code that was written about 1998. It would be vety difficult to meet the criteria for a conditional use permit in dense single-family neighborhood on single-family residential streets. There are several stretches of major arterial streets that arc zoned R-8. Providing service, as most providers arc ttying to do, in these smaller sites is going to be very difficult. In this particular case, Union has the very large existing poles in the area, as well, NE 4"' has large existing po]es,.and they could go in and use the existing pole for their antennas. Established neighborhoods, with smaller streets and smaller lots make it vety difficult to meet the conditional use ctiteria. Neil Watts commented on cost being an issue as far as site selection. The current location being considered is as simple a place for a pole location, there are no existing curbs or sidewalks, installation of the underground vaull, which needs to be underground, is arguably less expensive. It is not physically impossible to install a Va.ult where a sidewalk exists, it also is not physically impossible to make negotiations with adjacent properties to use a portion of their prope1iy for installation of the vault. The focus has been on this site because the location is right in the middle of the area they are trying to provide service to, it was a logical site to look at. A pre-application is not a formal review, it is not a formal denial or approval. It simply lists out codes, fees aad processes and tries to give information if it does not meet code. 111e dilemma is balancing out two needs, they are addressed in the code. Section 4.4.140, wireless communication facilities list the two counterbalancing things being looked at here. Oneis Section B, which talks about poles and 8ection E, which is c.ompliance with the Telecommunications Act of 1996. IfT-Mobile had been able io demonstrate that all the other sites did not provide adequate service to this area, it would be much harder to deny this request. The idea was to try to encourage providers to go to commercial and industrial zoned properties and tp Qo-Jocate on existing poles, towers or buildings. The code is set up to make it easy to go to the desired location and 1nakes it more difficult or impossible to go to areas where the City did 1tol want them to be in. They di'd not want1hem to be in single-family Zones. This application was with the Environmental Review Committee a fairly lengthy period of time. A request for alternative sites was requested and never provided, 1l1erc were many concerns with the Committee, there were identified adverse impacts, but they were not raised to the level of significant. Ann Nielsen referred to Tab 12, the Market Study, which was actually done at a Redmond Park does not appear to be applicable because it is not in a r.esidenlial area. I l ' T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 6 Chris Conaxis stated that it was applicable because the pole was placed at the edge of the park and a residential area surrounded the park. The pole was a replacement structure and has a lot of similarities to this project todey. The pole was set back between 400 and 500 feet of a residential structure. Ann Nielsen continued that the pole was actually set within the park as opposed to a residential area. Tab 4 covets the radio frequency analysis, the City did not receive this analysis prior to today's hearing. T- Mobile does acknowledge that there were other candidates considered besides ·this location. What were tbe facts that precluded moving to this current location? Chris Conaxis stated that it would have required moving a utility pole to another front yard as opposed to the front yard it currently is in. All considered locations were the same circumstances. The location that was chosen had the largest section of right of way and that allowed for the ground equipment. The otherlocations don't have a clear right of way. Elevation is lost on Union and there currently is a developed sidewalk and doing an underground vault in that situation would have been more difficult if it was even allowed. Doing the vault is the most expensive part of the installation and that has been budgeted so wherever the site is, it would not cost any more. It is a major cost to go underground. To put a slab of cement down and place the cabinets above grade would be much cheaper and the preferred alternative. Not all competitors are able !O get service to this area. Some are in there currently, some are not. Michael Cady stated that they really need this site because othercarriers have different frequencies and becaqse of the frequency range ci1ey broadcast in and receive in, they can have different site requirements'than T-Mobile. This site is particular to the coverage gap needs for T-Mobile. Kevin Durning stated that they look at their own needs and not what others are using .or doing at any particular location. New York has sites every other block .in order to get coverage. The planners have to work within the code and find the best locations. The City of Renton would not look favorably on four locations that would provide service when what was proposed for the four could be one with one si"le. Chris Conaxis stated that this pole would be 19 feet taller than any existillg pole. The. Examiner stated that there are trees .in the area bulnothlng screens the comer parcel where lhe pole would b.e located. This would be highly visible to adjacent properties. Chuck Gitchel, 440 I SE 3"' Place, Renton 98059 stated that he resides atthe site of the proposed T-.MobHe monopole that would lie located on the comer ofthdr property. He has training in electrortjcs·'as ·a radar repairman ·and later as a radio/tel~hone comtnunications technician. He was taught extensively the dangers of frequency radiation. TI1e question is how much is· too much. Microwave ovens are built with a meta.I casing and screening in the oven door to help block the radi.ation from harming people. Microwaves, cell phones and radio and television antennas all use frequency radiation, the dangers exist in all cases. T-Mob/Je representatiws came thi9u~ tbe,nei~1borhood a few weeks ago, they were told th¢ 1i¢4!W1oy .radiation from a toiveris not as.,bacl a holding a)ihone l!P to your head. the cell phone cotnpanies 'knowhow harmful thes.e frequencies are to the public's health. The Examiner stated. that the code does not allow him to consider the health issues when making his decision. There are secondary implications including real estate values. He therefore will not allow radiationtesti'mony. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 7 ML Gitchel continued stating that there is a falling hazard, the pole. would be only45 feet from the house and 25 feet from their carport. The existing pole if hit would not hit thei.r house. They have a drug house in the neighborhood, it only takes one person on drugs to hit the new pole and bring it down on top of their house. Regarding the vault location, when a person from T-Mobilc dug a hole for soil samples they realized this vault would be 25 feet from their bedroom, they would be able to hear the equipment running at night. He was told that the Environmental Study pertained to birds, etc, he did not appeal and perhaps he should have. He believes that the installation of this pole would lower their property values. He submitted several letters from real estate experts and read portions from those letters. Chandra Lindquist, 25 I Vashon Avenue SE, Renton 98059 stated that because Unio11 is zoned for this sort of thing and T-Mobile submitted alternate sites, there is a new park in that area, why did they not consider doing their site concurrent w,th the construction of the new park. They stated they did not want to inst.all an underground vault where there are existing sidewalks, there were no existing sidewalks it was vacant land up until one year ago. The Examiner clarified that T-Mobile was asked to submit alternative sites, but they did not respotid to that request. They are not necessarily required to, they had the right to askfot this site, the City had the right to look it over and say no. T-Mobile can come back with a request for a new loc.ation and try again. Mike O'Halloran, 4420 SE 4"' Street, Renton 98059 asked if this monopole is autlJorized what prevents competition from taking over other poles or just adding antenna to the existing or new monopole? Would like to appeal to T-Mobile and the City of Renton lo come up with an alternative location and find a common ground that would satisfy the residents as well as the customers. John Worthington, 4500 SE 2"' Place, Renton 98059 stated that he felt T-Mobile was trying to take advantage of the code and he would like to see an alternative for tl,em. He does not want to impede free market, but he also pointed out that as to property market values, at some point they may want to increase their property taxes for underground utilities, which would increase the overall property values. Committing to a cell phone tower that Jocks them in and grandfatl1er's them in and prevent the neighborhood fram going to underground utilities. Steven Northcraft, 4209 SE 3"' Place, Renton 9805 9 stated that he has underground utl)ities .and in the development immediately south of this area on SE 4 11 ' many oftheho111esh~\%underground .utilities, All ne\v construction is being required to have undergi:;lUnd utilities in this area. Chris Conaxis stated that they were following the code to bring service to tbeir,customers. Ann Nielsen gave a closing statement that Mr. Watts decision a$ Director should be given substantial deference. The burden is that the appellant must show why that decision should be overturned, it does not appear tliat they have done tliat. It is possible that there are other alternatives for T ,Mobile. 1l1e facts show tl1at to al/ow this monopole would make it the tallest structure in the neighborhood. It would be quite visible due to the absence of any trees or mitigated structures. There were statements in all the letters, including le.tters from real estate brokers, stating that the existe1ice ofthis monopole would have adverse real estate effe<;tS to this p;irticolar location. TI1e appellant did a study of effects ofa monopole on residential ptop.erty, however, the study was done on a monopole that was located within the confined of a city park and little, ifany, weigqtsl)ould be give11 to this study. With the appellant's presentation today, they do not appear to have met their burden and therefore asked that the Examiner uphold the Cityls Director decision. T-Mobile Monopole Appeal LUA-07-D65, CU-A January 15, 2008 Page 8 Chrjs Conaxis slated that they cannot be responsible for the technologies cif Sprint,Nextel, Cingular and if they have the ability to come in due to their different technologies, if they are unable to provide the coverage that they want to provide, it does not do their case any good that their competitors do have coverage in this area and they don't and are not allowed to get into that area. They are gone to the preferred locations and now they are trying to get into the rural and residential areas, they would consider it a barrier to entty to provide coverage to thjs particular neighborhood if this facility is not allowed. The 1!:;,:aminer called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing dosed at 11:11 am. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters foe following: FINDINGS: 1. The appellant, Kevin Foy, Wireless Facilities, Inc, for T-Mobile filed an appeal of an administrative decision denying an Administrative Conditional tJse for a Monopole l. 2. The appeal was filed in a timely manner. 3. The project would be located in the public right,of-way near the intersection of SE 3rd Place and Anacortes Avenue SE. The nearby street address would be 4401 SE 3rd Place. 4. The project is described as: "The applicant is requesting Administrative Conditional Use Perrnit approval for the replacement of an existing 40-foot tall wood power pole with a 59' 11-inc)J wpod power pole tl1at would also function as a mo11opole I structure. The monopole I and 'associated equipment vault would be Jocatc:,d wi.thi1'1 the public right.of.way and .is zoned Reside11tial-8 (R-B) dwelling;unitper acre. Single·f1lmily residences surround the project'5ite on 1111 s(des. The site totals 1 Q(square f~,:t in area and woild f¢s\il't in J2 euhic yards of excavations. Access .to the site would be 1irovided by A!Iacorteli Avenue NE." 5. The staff report noted; "The surrounding topography is tlat. Due to the fl~t tQJ)qgtaphy oft)ie site, the prevalence of single story homes. and the lackpft:rees itvthe lrnmed'ia~ vicinity of the project site, the monopole would be more evident to the residents fo the itnmediate vicinity of the project silt> and would not be absorbed in the surrounding environment." (Administrative Conditional Use Report, Oct, 15, 2007, Page 3). The staff report goes on to describe the lack of trees in theimmediate area and the proposed location's abutting a front yard of one residence and. directly across the street from severnl other residences. Staff also noted that .the pole would be almost 30 fo.et taller than tl1e JO foot tall structures pennitted in the zone and was notnensitively sited. 6. The criteria for review areJound in Section4-9-030J. 7. After administrative teview, Development Services Ilirector Watts, found: "1. The subject proposal does not comply with all of the policies and codes T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 9 of lhe Cily of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2. The proposal does not comply with the Co111prehensive Plan Utilities element due to the aesthetic impacts the monopole WQuld have on lhe surrounding neighborhood lhat cannot be mitigated. ·The proposal does not comply with all the Wireless Conununication Facilities Conditional Use Criteria. 3. Unrebutted testimony was received from real estate professionals stating that the siting of a monopole l structure al the proposed location would reduce property values in the vicinity." 8. The Director then denied the permit. 9. The proposed structure would serve a dual purpose. ft would continue to cany Puget Sound Energy lines in the neighborhood and it would also accommodate a wireless cellular facility. The new pole would be 59'1 l" tall. The cellular equipment on the pole would be flush mounted and painted the color of the pole. TI1ere would also be an underground vault containing associated equipment. There was no discussion about the noise that could be generated by the vaulted equipment. The vault would be 13'4" by 8' and access would )le via a ground level hatch door. The vault would be located in the public right- of-way. No additional roads or access requirements arc necessary. 10. The applicant anticipates one vehicle trip per month for maintenance purposes. 11. Approximately 32 cubic yards of material would be excavated to accommodate the vault. 12. The R-8 Zone in which the proposed facility would be located permits a maximum height of 30 feet or two-stories. The existing Puget Sound Energy poles in this area are 40 feet tall. The new p,ole would be one inch less than 60 feet tall or almost 20 feet taller or 50% taller than the existing pole (and other poles in this area). l 3. Monopole 1 facilities ofless than 60 feet may be permitted via an Administrative or Hearing Examiner Cot1ditional Use. The proposed facility, which is one inch less than 60 feet is subject to that review authority (RMC 4-4-140). 14. Additional comments from the Dire.c.tor noted: "Based on conunents received, staff has concerns that the proposed location is notthe moststtitable location for a monopole l structure. The proposed ri1onopole I would be substantially taJlet that(sic) the surrounding single familyresidences and the existing PSE power poles and is located immediately abutting the front yard of any existing single family residence." 15. The appellants noted that the ERC did not propose at1y specific mitigation to address the aesthetic impacts ofthe proposal and relyiilg on the lack of such measure as a sign that the aesthetics were not a critical issue. Rather the ERC did address the aesd1etics in the following statement: "Other than relocation, there does not appear to be any mitigation measures that could be implemented that would reduce the aesthetic impacts of the proposed monopole I structure and associated equipment cabinet." (Page 3 of 4, Environmental Review Committee Staff Report, August 13, 2007). T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 10 16. The appellant also noted that the pole would not be replacing a shorter pole but that the pole would be taller. In fact, the existing pole could not physically support the proposed equipment and would be replaced with a more appropriate, supporting pole in the same location. 17, TI1e appellant noted that they specifically complied with code, designed a tower Jess than 60-feet and that the view of residences would not change. The appellant Speciflca·lly noted: "Any candidate considered or/wiU be considered in a residential designation will meet the same opposition; just different resid.ents." 18. There was a ktter :from a real estate agent indica.ting that the proposed facility would adversely affect property values. While health concerns may not be used to determine ifa wireless facility is appropriately sited, the fact that potential purchasers might shy away from property located near such a facility could affect property values. 19. The real estate report the appellant provided does not provide a comparable situation in any respect. The report speaks of a facility located in a larger park and significantly separated from nearby residential slructures and apparently fairly well screened by existing trees and vegetation. 20. Staff indicated that taller utility poles are located along Union A venue not far from the proposed site and.rnoclifications to those poles could probably provide Jess aesthetic concerns. Any other location would be subject to appropriate review. 21. TI1e appellant did initially consider an approximately 0.92 acre site owned by Seattle but criteria ruled it out of consideration sinc.e one acre sites are the minimum necessary under the Code for "free-standing" cell facilities. CONCLUSIONS: I. The appellant has the burden of demonstrating that the decision of the City Official was eid1er in error, or was otherwise contrary to law or constitutional provisions, or was arbitrary ,md capricious (Section 4- 8-1 I O(E)(7)(b). The appellant has failed to show any error. 2. Arbitrary and c~pricious action has been defined as willful an'1 tmreasoniilg action in disregard of tlie facts and circumstances. A decision; when exl)rcisedhonestJy and upon!}ue consld.era.ti!ln Oftl1e.facts and. circumstances, is not atb.ilr!/ry or taptkious (Nmthem Pac.1fic Transport Co. y Washingto11 UVlitr!rs and Transportation Commission, .69 Wn. 2d 472, 478 (t%1>). 3.. An action is likewise clearly erroneous-when,altho.µgh there is ev!.deftoe to support it, the ,~vleWmg body, on the e.nJire evidence, is left"with the definite and finn convi-0tion thac:a ll11Stake has been conunitted. (Ancl1eta v Daly, 77 Wn. 2d 255,259 (1969). An appellate body should not necessa.rily substitute its judgment for the underlying agency with expertise in a matter unless apptdpriate. 4. Code covering these facilfties does have some admittedly odd provisions or possibly contradictory provisions. Be that as it may, the Director reviewed this proposal under the Conditional Use Code criteria and found that it was inappropriate for this particular location. Unless the facility can be made aesthetfoally appropriate, the Director was correct in his detern1ination. TI1e Director keyed in on. the ,aesthetic impacts and found tliat they could not be rectified. At tlie public hearing a. number of concepts were discussed an.d it was clear that in the current situation, thdocation of this Pille makes screening itnpossible. The aesthetic impacts cannot be reduced. 1he Director did. ti(itrea.eh an erroneous T-Mobile Monopole Appeal LUA.07-065, CU-A January 15, 2008 Page 11 conclusion. 5. No one is disputing that the appellant is attempting to serve his or her customers. What is in dispute is whether they have looked at other reasonable alternatives that might provide satisfactory reception. The appellant focused in on this site for topographical reasons -it is a bit higher in elevation and relatively flat. The appellant apparently did not explore alternatives that might_be suitable given a mix of additional shorter poles or taller poles spread out further. Staff noted that taller utility poles line Union Avenue and modifications to those poles would be less evident aesthetically. 6. The appellant is probably correct when they state that: "Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents." The City has created a potentially hard crite1ia to satisfy but that does not make the decision unreasonable or erroneous. The appellant only considered one other location, which did not comply with lot area size criteria but did not consider other public right-of-way corridors with taller existing power poles or possibly a series of shorter poles. While the appellant did not have to submit alternatives, the Director was, therefore, limited to consider the impacts of the proposed pole and site. The appellant went with only their favored choice, and the Director based on his reading of the code, made a supportable decision. 7. A reviewing body should not reverse the underlying decision unless there is compelling evidence that a mistake was made. This office cannot decide that a mistake was made. It was reasonable intenns of the proposal, the site, the lack of any ability to screen the proposal and the absence of compelling evidence that this is the only tenable location. DECfSION: The decision affomed ORDERED THIS 15'" day of Januaiy 2008 FREDJ. KAUF HEAJUNGE · TRANSMlTTED THIS 15 11 ' day of January 2008 to the parties of record: Neil Watts Development Services Director City of Renton Renton, WA 98057 Chris Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 T,Mobile USA 19807 North Creek Parkway Bothell, WA 98011 Ann Nielsen Assistant City Attorney City of Renton Mike Cady 575 Andover Park IV, Ste. 201 Tukwila, WA 98188 Chuck & Fran Gitchel 440 l SE 3nl Place Renton, WA 98059 Kevin Foy T-Mobile USA, Inc. 12920 SE 3 8'1, Street Bellevue, WA 98006 Kevin Dun1ing. 575 AndoverParkW, Ste. 201 Tuh."Wila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4"' Street Renton, WA 98055 'f-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 12 Newton & Joyleen Ellifrits 4218 SE 3n1 Place Renton, WA 98059 Stephen Northcraft 4209 SE 3'" Place Renton, WA 98059 Victor Bloomfield/ Jennifer Sb."uk 4418 SE 3nl Place Renton, WA 98059 John Megow 4408 SE 3"' Place Renton, WA 98059 Terry Clanf h 4503 SE 3' Place Renton, WA 98059 Tapke Vel~uist 430 I SE 3' Place Renton, WA 98059 Gail & Anthony Knell 4425 SE 3"' Place Renton, WA 98059 Doug Mears 4308 SE 3'" Place Renton, WA 98059 James S. Dalgleish 407 Anacortes Avenue S£ Renton, WA 98059 Cha.ndra Lindquist 251 Vashon Avenue SE Renton, WA 98059 Lewis Sezto 10875 Rainier Avenue S Seattle, WA 98178 Greg Schoendaller 4408. SE 4 11 ' Street Renton, WA98059 Michael, Debby & Hannah Ekness 4400 SE 3"' Place Renton, WA 98059 Joel G. Smith 349 Anacortes Avenue SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3'" Place Renton, WA 98059 Joel & Heidy Barn.ell 4309 SE 3"' Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4"' Street Renton, WA 9lr059 Bruc.e & RuthRuUedge 430.JSE 3"' Place Renton, WA 98059 Btlnnie Watson Keller Williams Realty 615 E Pl qneer, Ste. 203 Puyal]ap, WA 9&372 TRANSMITIED THIS 15'" day of January 2008 to the following: Van Slaughter 4409 SE 3"' Place Renton, WA 98059 .Alvin & Jacqueline Courtney POBox2653 Renton, WA 98056 Jolm Ehle 406 Anacortes A venue SE Rl!nton, WA 98059 Roger & Vickey Berry 4405 SE 3'4 Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3"' Place Renton, WA 98059 Cory & Lori Foster 4413 SE 3'" Place Renton, WA 98059 Pauline Blue 420Chelan Avenue SE Renttln, WA 98059 Joyce M. Crock 414 Chelan Avenue SE Renton, WA 98059 Jeren1y & Jill Pee1y 4412 SE 4,1' Street Renton, WA 98059 John Worthington 4500 SE 2"d !>lace Renton, WA 98059 Mayor Denis.Law Jay Covington, Chief Administrative Officer JJJHa.Medzegian, Council Liaison Robert Van Home, Deputy Fire Chief Lao:y Meckling, Bulldi11g Official Planning Commission Gregg Zfnimerman, l>BPW Aciministrator Alex Pietsch, &anomic Development Jennifer Hehnit1g, Development Services StacyTucker, Iievelopment Services Tr,!!i~pgttatton Division Utllilies Division Neil Watts, n·evelppment Services Ja11et Conklin, Developmeut Services T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 13 Renton Reporter Pursuant to Title IV, Chapter 8, Section lOOGofthe City's Code, request for reconsideration must be .tiled In writing on or before 5:00 p.m., Januarv 29, 2008. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could 110t be reasonably available at the prior-hearing may make a wri·tten request for a review by the Examiner within fourteen ( 14) days from the date ·of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take fu1iher action as he deems proper. An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m., January 29. 2008. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants will be required prior to approval bv Citv Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parle (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made 111 public. This public communication pem1its all interested parties to,lmow the contents of the communicalion and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doc.trine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. APPEND1X2 • ·.,~~Y·o..;_, ·u ... ·· ~, + :. ·. R. .• Rearing Examiner JI /.';;.. Kathy Keolker, Mayor Fr.ed· J, Jµilfman . ,i'L";:.· . Q:;:,,,~,. ________ .....,.......,.. _______ ....... _ . ~'N<f ,.,.. November 6, 2007 Kevin Foy Zoning Specialist WFI 575 Andover Park West, Ste. zor · Tukwila, WA 98188 RE: Tctl1fobile Monopole in SE 3n1 Place and Anacortes Ave SE Right-of-Way Appeal · LUA 07-065, CU-A; ECF . . . Dear Mr, .Foy: 'the appeal h~i'ing on the abovy,foferenc~d matter has b~eii s~~tiduled for Tuesday; l>ecember is; 2007 al9:00 ini; The headng,,\Vlil take place ih.the Col,\licil Ch!lll1bers on the seventh flQOf · qfthe Renton City Hali. The adih;esil is ! 055 s Grady Wa)'in Rerltori'. .. . . ff this office can provide ahy further assistance, pleas~a~;~ss those comriient,;in \Vritirtg. Sincerely, .· /7tl1t&tt$m+an0 Nancy Thompson Secretary to· Hearing Examiner City of Renton . · Enclos\lte cc: Anh Ni~ls~ Assi$t:irit City Attorney Neil Watts, Development Services Director Stacy Tucker; Developinent Services . All Parties of Re¢i)rds · -'-"---10-55-s""o-ut_h_G_ra~dy_W_· . ..cay ___ R_e~nto'-n-.-W-ash-in-gt-on--" .. -9s_oce55 ___ (4-.2-S)-A-30.."'. -65_1_5 _ _;_;__._' ~ ~ ··· · · , . A~.E-AD:_oF T.HB :c~RVE t"a:l Thie, "-..,....,.....,nto,lr,,:, r-.ho,:. c.o,-.,,-,~ m 0 <>t...i<il -~9', nnc,t...,.:..,~,l'na<" City of Renton: Report & Decision: Project Name: Owner: File Number: Department of Planning/ Building/ Public Works Administrative Land Use Action October 1511\ 2007 T-Mobile Monopole in SE 3"' Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 LUA07-065, CU-A, ECF Project Manager: Jill K. Ding OCT J 9 2001 P:rojeet· Description: The application Is requesting Administrative Conditional Use Permit approval for the replacement of an existing 40-foot tall . wood power pole with a 59-11-inch wood power pole that would also function as a monopole I structure. The monopole] an4 associated equipment vault would be located within the public right-of-way and is zoned Residential-8 (R-8) dwelling unit per acre. Single family residences surround the project site on all sides. The project site totals 104 square feet in area and would result in 32 cubic yards a/excavations. Access to the site would be provided via Anacortes Avenue NE. ProjectLocation: Northwe.st of 4401 SE.3rd Place, withinJilE.3nl Place and. Anacortes Ave SE right-of-way Conclusions by Development Services Director: Neil Watts 1) The subject proposal does not comply with all of the policies and codes of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. . . . . . . . 2) The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic Impacts the monopole would.have on the surrounding.neighborhood that-ca,mot be mitigated. The proposal does not comply with all the Wireless Communication F acillties Conditional Use Criteria. 3) Unrebutted testimony was received from real estate professionals stating that the siting of a monopole 1 structure at the proposed location would reduce the property values in the vicinity. cc'. l-a,,.rl'v wCV',en, c\ +v 11t/y ..Vc,I iJo,trs., Dev. '.)>'vC-~ L),rt'cfl;v 0 ·h:1 C-y ti, C f:._e-..--, '""Pt ii , _s,.. V C 5 t:oV1¥1,€-tvo. 1-ie-n; c,.f..y cJe.,,,,,-lz Decision: The conditional Use Permit/or the T-Mobile Monopole in SE 3rd Place and Anacortes Avenue SE right-of-way, File No. LUA07-065 CU-A, ECF is denied. Land Use Decision Appeal Process: Appeals of either the environmental determination (RCW 43.21.Co75(3), WAC · 197-11-680) and/or the land use decision must be filed in writing on or before 5:00 PM October 29,2007. T-Mobile Appeal Narrative: . T,Mobile,hereby appeals the decision rnade·byDevelop!llentServices·Director in regards to application LUA0?-065, CU-A, ECF. T-Mobile will demonstrate the conclusions made forth should be reconsidered by a third party hearing examiner .. Upon review, it is T-Mobile's belief that the supplemental information provided in this appeal and a chance to respond to public concerns should prove T-Mobile meets all standards/criteria set forth in City of Renton Code. Part One: Project Description/Background The proposal would include the replacement of an existing 40-foot tall wood Puget Sound Energy (PSE) distribution line pole with a 59 '-11 '' wood power pole that would also.serve as a monopole 1 structure supporting wireless cellularfacilities. The proposed cellular antenna would be flush mounted and painted to match the color of the wood power pole. The primary function of the pole would remain as part of an electrical distribution system, the installation of the proposed wireless antennas would be a secondary.function. Associated ground equipment is proposed to be located out of sight, below grade in a 13 '.. 4' 'x 8' vault with only the hatch door being the visible part of the vault. The vault hatch would be screened with landscaping as required by the ,City. The site would be accessed via Anacortes Ave SE, which leads directly up to the ·access hatch proposed within the l'igh't-of-1i!ay. 'Once construction is complete, one vehicle trip per month is anticipated for maintenance purposes. The proposed project would result in the removal of 32 cubic yards of soil, which would be transported to an approved off-site location. Part Two: Administrative Land Use Action -Report & Decision · Type of Land Use Action: Administrative Conditional Use Permit Consistency with Conditional Use Permit Criteria: 1) Height of the proposed tower: The proposal would replace an existing40-foot tall PSE power pole with a 59-11- inch tall wood power pole that would also house wireless cellular antenna for T-Mobile. The surrounding R-8 zoning designation has a maximum height of 30 feet and2 stories and the surrounding PSE power poles have a maximum height of 40 feet. The proposed monopole I would exceed the maximum heighlpennittedfor a single family residence by almost 30 feet and the existing PSE power pales by almost 20 feet and would therefere be the tallest structure in the neighborhood. T-Mobile,Resp0nsti: Per RMC 4-4-140 as well as the R-8 zoning designation, monopole,l struetures are allowed via Administrative or Hearing Examiner Conditional Use Permits A · monopole 1 structure has a height limit ofless,than 60-feet. T-Mobile's application,is for the 59-feet 11-inches which is minimal height.;required to meet the intended oove:ta.g&, area. Ordinance No 5286, Renton Municipal Code 4-2-080 Conditions Associated with Zoning Tables section A. Subject to the following conditions: 45. For Monopoles Proposed on Public Right-of-way: may be allowed via an administrative conditionaluse permitand·'1CighN;,f-way usepennit. 46. Eligible/or an administrative condttionaluse perniitprovided that the facility has a minimum·setback of one hundredfeet (I OO)from any adjacent residentially zoned.;. parcel, otherwise a Hearing Examiner conditional use permit is required. T-Mobile Response: According to the Renton Municipal,Cdde .. Monopole 1 structu~es-·are.rulowed,. through_adinmistra\;jve llll,dhearing ex~inei,,;con.diti'()nal use pennits, Mi}nc,p!le.,4Jias, height. d~finiti1;1n.of anything under 60,feet. · T ,Mobile decision to extendithe utilitypofo. . 19-feet 11 •inches was ~nsidered to have least amount of imposing impact aesthetically while·developmg,a,.footprint4hatcdoes,not,exist,foi·T~Nfobilc. T ·Mobile is committed to bring service,:where their customers,work,and,play, Customers rely on T-Mobile wireless services,futwork and recreationahuse,.,Ai.T~ Mobile continues to add wireless technologil/!14he,elientbase continues-.to grew,· Clients areno longer4'.esidingjust in urban areas and<have expanded into suburbinmd,,, residentially zoned. areas and expect a searnlesii ·coverage, commuting, traveling, working, and recreationaJ,.use. The applicant contends that the project site was selected in part due to the existing trees that would screen the proposed monopole 1 from the surrounding properties. Staff has reviewed the proposal, and it appears that there are no existing trees in the immediate vicinity of the proposed monopole 1 structure, and therefore no screening would be provided for the existing singlefamily residences located in the immediate vicinity of the project site. The treesfocated in tJ,.e existing neighborhood would provide some screening of the monopole 1 from the residences located along SE 4th St and SE 3rd St, but would not the residencies along SE 3'd Place and Anacortes Ave SE, which are in the immediate vicinity. T-Mobile Response: The site was considered because it does provide some screening for the residences along SE 4th and SE 3rd St Unfortunately, there was no site that could be identified meeting the criteria set forth from every residence. During the identification process, it was aclmowledged that no free standing Monopole 1 would be permissible in this residential search ring. Code restriction on parcel size, setbacks, and allowable uses would not allow monopole structure solely built for wireless carriers. Limited to strictly collocating on PSE utility poles, typical tree foliage is limited due maintenance required for power-lines. Since utility poles were the only permissible option, T-Mobile identified this site to provide some screening. Please note T-Mobile, as recognized by the City, is a secondar.yuse on the PSE utility pole in the Right-of-Way. Therefore is limitedin design aspects since final approval must meet PSE standards. 2) Proximity of the tower to residential structures and residential district boundaries . The proposed monopole 1 structure wou[dbe located at the SE corner of the intersecti'on dfAnacortesAve SE and ,sE' 3.-d Pla'c'e'wit#in an R-8 zone and abutting the front yard area of an existing single family residence located at 4401 SE 3'4 Place. The project site is surrounded on all sides by single story single family residences. Staff has received numerous comments from the immediately abutting residents and surrounding neighbors expressing their displeasure with the proposal to locate a monopole 1 structure within their neighborhood. Their comments .centered on health concerns, aesthetic impacts to their neighborhood, and,the concern that their property values could be adversely impacted. Staff has reviewed these comments and concurs that the proposed monopole 1 structure would have an adverse impact on the aesthetics oj"the existing neighborhood due to the lack of screening in theaimmediate vicinity of the project site and due to the location of the monopole J within the immediate vicinity ofan existingsingle family residential neighborhood. Therefore, stajfrecommends that an alternate location be identified that would have less of an adverse impact on an existing single family residential neighborhood. T-Mobile Response: T -Mobile understands the apprehension from the neighborhood. Growth in demand for wireless service, along with increased use by existing customers and the advent of next generation wireless device technologies overburdens the wireless network and can result in dropped calJs and spotty coverage. The decision to place new wireless facilities is driven by the needs and expectations ofT-Mobile's customers including: • Customer demand for uninterrupted wireless service throughout homes and neighborhoods; • Customer desire for next generation wireless device technologies; • T-Mobile's responsibility to expand capacity at existing sites and plan aherui'for· future customer demand; and • Government requirements for emergency services and Enhanced 9-1-1. T-Mobile uses specific technical criteria to determine if a new wireless facility is needed. Ra<lio frequency (RF) conducts a thorough analysis of T -Mobile's wireless network, including: • Network Statistics-Engineers review network data to scientifically measure overall network performance. The data includes the amountoftraffic. at individual. wireless facilities, including the number of drop~.and blocked calls. • Customer Satisfaction Surveys and Feedback-Customers are aske(laboutdead · spots; dropped·calls and coverage levels in their home and neighborhoods, • Drive Test-Field technicians, engineers and third-party researchers collect real- . time statistics by canvassing service areas with wireless phones, mobile data computers, and analysis equipment to test network quality. Drive tests simulate the customer experience and provide critical signal strength and call quality data. T-Mobile identified a candidate located at 400 Union Ave SE, Renton WA 98059: Application was made,after identifying the process would include a Hearing Examiner CUP·and Variance required: The vari.an~ wliS reqtifred because the parcel own.ed by Seattle Public Utilities did not have a full one ( l) acre. size parcel. The. pareel. was· .92 aere_s. T ~Mobile recognized the risk, but spent money in putting together the application because it best fit the intent of the code and the requirements at that time per zoning designation. A letter addressed by Neil Watts, Development Services Director, stated the-City would not allow the application because of the failed code requirement of a one.{!) acre parcel size. Aftet denying T-Mobile' s original application (see attachment A) and in accordance with new ordinance (January 2007); the decision to scan the search ring and identify all. possible candidates with new restrictions was given. Already established by the denied application, the only candidates in the search that met code requirements were PSE utility poles. The lack of tree screening is compensated by T-Mobile's design to utilize an existing feature of the neighborhood. PSE poles are apparent through out the neighborhood. By attaching antennas on the pole it utilizes a structure already present. By extending the pole, it meets the coverage objective and requirements needed from T-Mobile RF and creates the least amount of impact on the neighborhood. Per code, R-8 zoning designation, monopole 1 structures are permissible (Jess than 60-feet) and T-Mobile's design creates the least amount of impact. Health concerns are not an issue and evidence provided by T-Mobile shows compliance with all local and federal standards for health safety. 3) Natui:e,of Uses on adjaeent•and nearby properties. The project site would be located within an existing single family neighborhood zoned R-8. The existing single family residences surrounding the project site are primarily single story residences. Staff has received numerous comments from the surrounding neighbors regarding their concerns with the proposal to locate a monopole 1 structure within their neighborhood. Most of the comment centered on health · concerns, the aesthetic impact that the monopole 1 structure would have on their neighborhood, and the adverse impact that the monopole 1 structure would have on their property values. Included with the comments were some assessments from real estate agents confirming. the neighbors concerns that the proposed monopole 1 structure would reduce their property values. Based on the. comments received, sta.ff has concerns that the proposedlocation is not the most suitable location for a monopole 1 structure. The proposed monopole 1 would be substantially taller that the surrounding single family residences and the existing PSE power poles and is located immediately abutting the front yard area of an existing single family residence. T-Mobile Response: T-Mobile's application is desigri6d to fo!Jowthe patameters-oftheRMC. The. Code states the permissible height is less than 60-feet in R-8 designations. T-Mobile needs the height to establish line of site technology to work with its established network. The difference is 19-feet ! !-inches, the additional height of the utility pole is minimal to a brand. new development else where in the neighborhood. The view the residences will have from 0-40-feet will not change. By providing some screening the maximum amount available in the area, T-Mobile has identified-a location that has met., the code requirements. To establish a more detailed footprint and to meet customer needs, T-Mobile must create a Wireless Communication Facility for this area. After all the criteria'involved,in picking this specific location, the concerns will not disappear for alternate candidates; Any candidate considered or/will be considered in a residential designation.will meet the same opposition; just different residents. T-Mobile has met code guidelines and is uncertain any residential applications will be accepted if this application is denied for the conclusions mentioned above. T- Mobile has read code, designed the application to meet standards set forth, filed a pre- application meeting to gain furdier information provided after a preliminary review by city employees. T-Mobile is unclear as to why this approval was not granted since all design standards are met and no indication was provided at the time of the pre-application meeting the design proposed would create aesthetic impact which would lead to a denied application. 4) Surrounding Topography The surrounding topography is flat. Due to the flat topography of the site, the prevalence of single story hvmes, and the laokioftreesin the immediate vicinity of the project site the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed into the surrounding environment. T-Mobile Response: The. topography is. flat and part of the reason the site was chosen. Due the height restraint ofless than 60-feet by RMC, the direct-line-of-site technology would be limited if antennas were obstructed. Trees taller than 60-feet and in .close proximity of the site would diminish the signal strength significantly. It was already established. by the previous denial that a l acre parcel was required unless the facility was placed .within the ROW. After an.analysis of the PSE poles T-Mobile came to the conclusion the application met the intent of the RMC. 5) Surrounding tree coverage and foliage There are existing mature trees in the surrounding neighborhood; however there are no trees within the immediate vicinity oftheproject site. The applicant indicates that no trees would be removed for the installation of the proposed monopole structure. The applicant indicates that the site was selected In part due to the existing mature trees locateq ff!;~ SUY[f!W'}41~JJ n#_g#l:Jorho()d, which. lf.'?,lf{</pr9yide scr_een/ng of the · monopole from the s11rrounding neighborhood. However, there are no trees in the immediate vicinity; monopole 1 structure would be-highly visible to the.properties. in the immediate· vicinity. In section number one, staff acknowledges.''The trees located in the-existing neighborhood would provide.some screening of the monopole 1 from the residences located along SE 4"' St and SE 3rd St", Due to the limitations set forth by the design standards, T-Mobile could not identify a site that meet screening from allresidences. Due to the nature of developing a site, T-Mobile will create some presence in the neighborhood. The steps T-Mobile,has, taken identifies the need and creates a facility with the least amount of impact, .. ·· Identifying another PSE pole will still have ·an effect of those residences abutting the pole. 6) Design of the tower, with,particular reference to deslgn,characterMics that-have the effect of reducing or eliminating visual obtrusiveness. The applicant contends that the proposed monopole I structure has been designed to reduce its impacts on the surrounding single family residential neighborhood. The project site-was selected due to the existing mature trees in the surrounding neighborhood that would screen the monopole from the surrounding neighborhood. The monopole would. be madeofwood:and replaces an existing-wood PSE powerpole, t!w antennas would be flush mounted and painted to match the color of the pole .. The .. equipment cabinet would be installed underground in a vault Staff has received comments from the surrounding neighborhood, · Some.of the concerns cited by the neighbors include aesthetic impacts from having a 59.joot 1 I-inch tall monopole I structure installed within their single family residential neighborhood. The proposed monopole would abut the front yard area of a single family.residenee·and is adjacent (across the street)from several other residences. Stajfhasconcerns·thatthe proposed location may not be suitable for a monopole I structure, due to its location within an existing established single family neighborhood and the aesthetic impact it would have on the neighborhood and the lack of any mitigation that could be required to reduce the impacts. The proposed monopole would be 59-feet I-inches in height, which is almost 30 feet taller than the maximum height permitted in the R-8 zone and·almost 20 feet taller than the existing.PS£ power poles. There are no trees In the immediate vicinity to screen the monopole from the properties abutting and/or adjacent to the project site. T-Mobile Response: T-Mobile proposed the application to the standards set<forth'in RMQ,, The code states any R-8 z0nirigdesignation, can have up fo kss than:60'· monepcile\li sl:l'l,oture. The code dictates the maximum height a WCF can apply for. In this instance, T-Mobile RE·engineers need ,the'.lllax-imum·height stateddn.the code·forthe teclumlog:y-to function properly. Trees and foliage are limited due to the fact the utility pole is in theROW•, T- Mobile's considers the application using a utility pole as a form of screemng.itselfr Tree. screening of monopoles is usually required to conceal the new WCF in .the:wea,.",Since PSE poles are abundant in this neighborhood, T-Mobile will utilize the,eltisting: .. characteristics of the neighborhood to screen the development ofthenew·WCF. 7) Proposed ingress and egress 8) Potential noise, light and,giar,c impacts T-Mobile Response: No further comment provided for numbers 7 and 8. 9) Availability of suitable existing towers and other structures Limited information was provided by the applicant regarding alternate towers and structures. A previous attempt was made to Install a monopole I structure on a Seattle Public Utilities pump station facility located at the terminus of Union Ave SE, south of SE 4'h St. However, the application was rejected by the City as the proposed project site did not meet the applicable criteria for permitting a monopole I facility in an R-8 zone. The proposed monopole would have need located closer than 100-feet from a residential property and the size of the property was less than I ac,:e. No other. information regarding other alternative sites was provided. T-Mobile Response: As mentioned and provided, T-Mobile made application for an alternative site and was denied. The denial stemmed from being .08 of an acre short of the required 1 acre. T-Mobile addressed the situation and applied for a variance on the .08 acre short since it was close proximity in size. T-Mobile believed the intent of the code was to find parcel big enough to support a WCF and being only 3,485 square feet short of an acre, a variance would be granted. After getting.rejected,T-Mobile followed the RMC and all of the design requirements set forth in the WCF section and the requirements set forth fromcthe R·8 zoning designation. T-Mobile's only option was to consider PSE utility poles within.the search ring. 10) Conformance with the Comprehensive Plan, Zoning Code and other·ordinances Policy U-100-Require that the siting and location of telecommunications facilities be acl!()mplishecl hl a ma.J111er tha(lllinlmizes l!dvers.e •mpacts on the enyirolllllent and adjacent land. uses. The proposed monopole 1 structure has been sited·inan existing single family residential neighborhood that is zonedR-8. Staff has received numerous comment letters from the surrounding neighbors expressing concern that the proposed facility may. negatively affect their health, adversely impact the aesthetics of the neighborhood, and reduce their property values, The applicant contends that efforts have been made to reduce the impacts of the.monopole on the surrounding neighborhood, by replacing·the existing wood power pole with another, taller wood power pole, flush mounting, the antennas on the pole andpainting them to.same color as the pole, and installing the ·. equipment cabinet underground in a vault. It does not appear,,that,the intend ofthispolicy is met as the measu~es proposed to diminish the appearance of the facility would not accomplish that. Adjacent land.uses would be impacted by the siting of the facility in the established residential neighborhood. T-Mobile Response: By using the characteristics of the existing PSE utility poles located throughout the neighborhood, T-Mobile contends that it has limited the adversely impact on the aesthetics of the neighborhood. If a new free standing monopole built only for wireless carriers were sited in the neighborhood it would create a significant impact Vaulting ·the radio cabinets keeps· the associated radio equipment out of public site and underground, thus creating almost no impact from the radio cabinets. Painting the antennas to match the pole in color and flush mounting them to the utility pole eliminates the impact of antennas horizontally off the pole and creating. attention by being discolored from the PSEpole. . Policy U-101-Require that cellular communications structures and towers be sensitively sited -and designed to diminish aesthetic impacts, and be collocated on existing structures and•.towers wherever possible and practical. The applicant contends that the proposed location was chosen to maximize the use of existing trees to screen the monopole from the surrounding residential neighborhood. No trees would be removed as a result of project construction. There are existing trees in the surrounding neighborhood; however staff has concerm, regarding the lack of screening available for the existing residences located in the immediate vicinity as there are no trees in the immediate vicinity of the proposed monopole. The proposed antenna would be collocated on an existing PSE power pole that would have to be replaced with a taller pole. It does not appear that the intent of this policy is met as the proposed monopole I structure would not be sensitively sited, an alternate location that is not immediately surrounded by single family residences would be preferred. T-Mobile Response: We believe that this proposal is sensitively sited and that it is theleast impactive altemative available to T-Mobile under the code. It is also making use of existing structures. Therefore, it is implementing policy U-101. As mentioned before, technical data is researched for new WCFs. T-M-0bile shows a need for a new facility with setparameters. Engineers examine existing wireless facilities in the search area to determine if they can be expanded. Using existing facilities is usually the most desired option. Wireless signals travels by line of sight, large buildings, hills and tall trees can limit signal strength. Natural geographic features, structures and vegetation are critical factors that often dictate necessary locations for new wireless facilities. Local zoning and building codes guide where wireless facilities. can.be built and impose specific requirements for location, height and aesthetics. · T-Mobile gives priority whenever possible to siting new wireless facilities in industrial, commercial and mixed-residential areas. However, customers increasingly use their wireless devices at home, making it necessary to place wireless facilities in and around residential neighborhoods. The original application emphasized more screening due to its placement within the parcel and surrounding vegetation. It called for a new monopole structure 1 to be screened by existing trees on the parcel owned• by Seattle Public Utilities. T -Mobile's thought process for applying on :a parcel tliatdoesn't meet the one (1) acre.requirement (parcel was .92 of an acre) but screens more adequately would be considered for approval. Since the application didn't get submitted due not meeting the code. requirements, T-Mobile searched for other possible candidates. PSE poles were the only option T-Mobile considers to meet all requirements. Colloeating on an existing PSE pole (swapped out:) and:adding.the necessary height within oode limit creates the'least amount of impact possible. · · · Please see our SEP A determination of non-significance (Attachment B). B) Zoning Code q Development standards T-Mobile Response: T-Mobile does not have further-comment on the zoning code and development standards. · · T-Mobile Response to the Conclusions: The City ofRenton's explanation fo:r denying T-Mobile's application is not substantiated by the record or the requirement.of the Code. Conclusion 1 states the inability of the project to mitigate aestheti_cdmpl!~ '!n ibe SUlTO!,llld,iJ:W sip:glefamily residential neighborhood'. · · · · By utilizing the characteristics (PSE poles) oftheneighborhood T-Mobile limits aesthetic impact on the neighborhood. FurthiilJ:.indicationthat the impacts are minor is the issuance of the DNS from the environmental.rreview,board. The total. impact/footprint T -Mobile will have on this application different from whatis existing now is the 19-feet 11-incites extra in heighten fue·,l'SE pole and a hatchdoovin the ground. · · · · · · The trade off of having in-house recepttoh for ne~ device technoiogies, . emergency services, and Enhanood 9-1-1 is lesa.than,2Q' feet of '\Yo<id pole~ The. . customers have dictated the need for additionaliseinniess coverage and T-Mobile is ,trying to provide coverage,while following the RMGJ,. To create•a footprint in a residential • • . . neighborhood by changing the height of a PSE pole is the least amount of impact possible. Conclusion 2 states the proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on surrounding neighborhood that cannot be mitigated. City also states the proposal does not comply with all the wireless communication facilities conditional use criteria. Per RMC 4-4-140 F (2) Visual Impact: "Site location and development shall preserve the pre-existing character of the surrounding buildings and land uses and the zone district to the extent consistent with the function of the communications equipment. Wireless communication towers shall be integrated through location and design to blend in with tlN existing characteristics of the site to the extent practical. Existing,.on-site . --. . . •... , .. ·.··• .. _IL.,. vegetation shall be preserved or improved, and disturbance of the existing topography·.· shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area ". · T-Mobile's application is preserving the pre-existing character of the swTOunding neighborhood as much as practical. The additional 19-feet 11-inches required in height on the PSE utility pole is the only change the neighborhood would notice. Any new monopole 1 structure would impact the neighborhood significantly by building a 59-foot I I-inch pole that does not blend into the neighborhood. Even if screened.by trees the section of monopole where the antennas are located would be noticeable due to the line of sight needed to work with the existing network system. T- Mobile believes utilizing the utility pole creates the least amount of impact. Conclusion 3 by the City states unrebutted testimony was received from real estate professionals stating a loss in property values. T-Mobile was never given an opportunity to provide testimony or supporting docwnention to address this testimony. The letters were seen by T -Mobile but not considered credible since there was no supporting docuni:elitatioh or studies -rrither only opinions 9.f realtors and riotappraisers. This criteria is not in the land use code and therefore we did not perceive it to be a valid · argument for denial. Provided in attachment C, is a property value report done by third party assessor for a different T-Mobile site. T-Mobile would have addressed any concerns by·the City on property values if the City had requested any additional information. The letters· submitted. and on file show an emotional attachment from the realtors expressing their concerns. The realtors all live within the neighborhood and are connected to the application. Please review documentation provided by T-Mobile on property values. Based on the content of the application and sensitive consideration given to aesthetic impacts by our site proposal, we. believe this project should receive approval. Failure to approve this sitewould eliminate all potential sites within the search area andTesult in a barrier to entry (Telecomm Act 1996). T-Mobile would have a significant coverage gap in service with no ·effective means of serving this ateitutilizing existing technology. We therefore respectfully request that the administrative decision be overturned. • CITY F RENTON February 1, 2008 City Clerk Bonnie I. Walton APPEAL FILED BY: Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. RE: Appeal of Hearing Examiner's decision dated January 15, 2008, regarding conditional use application for a wireless communications facility, known as the T-Mobile Monopole; SE 3 Place and Anacortes Av SE R-0-W. (File No. LUA-07-041 CU-A, ECF) To Parties of Record: Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the hearing examiner's decision on the T-Mobile Monopole within the SE 3nl Place and Anacortes Av SE right-of-way Conditional Use Permit application has been filed with the City Clerk. In accordance with Renton Municipal Code Section 4-8-11 OF, within five days of receipt of the notice of appeal, or immediately after all appeal periods with the Hearing Examiner have expired, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to support of their positions regarding the appeal within ten (10) days of the date of mailing of this notification. The deadline for submission of additional letters is by 5:00 p.m., Monday, February 11, 2008. NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will be reviewed by the Council's Planning and Development Committee at 3:00 p.m. on Thursday, February 21, 2008, in the Council Chambers, 7'h Floor of Renton City Hall, 1055 South Grady Way, Renton, Washington 98057. The recommendation of the Committee will be presented for consideration by the full Council at a subsequent Council meeting. Copy of the appeal and the Renton Municipal Code regarding appeal ofHearing Examiner decisions or recommendations is attached. Please note that the City Council will be considering the merits of the appeal based upon the written record previously established. Unless a showing can be made that additional evidence could not reasonably have been available at the prior hearing held by the Hearing Examiner, no further evidence or testimony on this matter will be accepted by the City Council. For additional information or assistance, please call me at 425-430-6510. Sincerely, Bonnie I. Walton City Clerk Attachments 1055 South Grady Way-Renton, Washington 98057 -(425_)_4-30---65_1_0_/_FAX--(4_2_5_) 4-3-0--6-5-16--~ @ Thispaperco:,t,1111(; ~D ,{, 1r:cyr.led matenal, 30'% post consumer AHEAD OF THE ClJRVE City of Renton Municipal Luue; Title N, Chapter 8, Section 110 APP-~-" 4-8-I IOC4 The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-J 70, the fee schedule of the City. (Ord. 3658, 9-13-82) 4-8-11 OF: Appeals to City Council -Procedures I. Time for Appeal: Unless a specific section or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body, any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council, upon a form furnished by the City Clerk, within fourteen (14) calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: Within five (5) days ofreceipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal. 3. Opportunity to Provide Comments: Other parties ofrecord 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. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members 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. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: 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 shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription of the hearing record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizing new or additional evidence or testimony, and a remand to the Hearing Examiner for receipt of such 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. (Ord. 4389, 1-25-1993) 6. Council Evaluation Criteria: 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. 7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-1-050Fl, 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. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-l-050F2 and F3, 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 .. 9. Decision Documentation: In any event, the decision of the City Council shall be in writing and shall specify any modified or amended findings and 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, 9-13-1982) 10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection G5 of this Section. (Ord. 4660, 3-17-1997) Lu 11 -C> ... . .;: f'/ Jf ::{t-.f\l r·,y.j n/. c,u>'l ! . 'PEAL TO RENTON CITY COUNC.,., OF HEARING EXAMINER'S DECISION/RECOMMENDATION ,;L\111 2 g i1J,J~ d :1)~1"1 ! .--{l::Cl:::1Vt:iJ i C:rfV C[ l=RK_'~ '11--'fll~r:- APPLICATION NAME T-Mobile SE 3rd Pl & Anacortes Ave. Right-of-way The undersigned interested party hereby files its Notice of Appeal from the decision or recommendation of the FILE NO. LUA07-065CU-A, EX:F Land Use Hearing Examiner, dated January 15 , 20~. l I. IDENTIFICATION OF PARTY APPELLANT: Name: T-Mobile USA, Inc. /Michael Cady REPRESENTATIVE (IF ANY): . I Name: Linda W. Atkins & Davis Wright Tremaipe Address: 19807 North Creek Pkwy 2nd Floor Bothell, WA 98011 Phone Number: 4 25-39S-760J Email: Michael.Cady@T-Mobile.com Address: 777 108th Ave NE, #2300 Bellevue, WA 98004-5149 Phone Number: 425-646-6115 Email:lindaatkins@dwt.com 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. 4 ,5 , Error: see attached 7,12, 14,15,-------------~-------------------~ 18-21 Correction: See attached ----------------------------- Conclusions: No. 1-7 Error: --=Se"'e"'-'a~t~ta=ch=ed~------------------------ Correction: See attached Other: No. Error: _ _.S,see=...;.a_,.tta,.,,.,ch""-"ed""'------------------------- Correction: See attached 3. SUMMARY OF ACTION REQUESTED The City Council is requested to grant the following relief: (Attach explanation, if desired) See attached. X Reverse the decision or recommendation and grant the following relief: Issue Pennit Modify the decision or recommendation as follows: OR X Remand to the Examiner for further consideration as follows: See attached· Other: Linda w. Atkins AppellanURepresentative Signature Type/Printed Name NOTE: cc.~-PleJe ~ef~ 1 ttt:Je IV, Chtt;ter 8, of the Renton M. ~nicipal Code, and Section 4-8-1 IOF, for specific appeal proced~_'· . r / ._-\ t,h-\ · ,~ l.._wr ~ U.X::-, ; _. ''°'\~ H~'""c..\ t:-X<~(r, . .rl -v~) lk.v s,.,-4.\ ~b, C ~-L '\\ ( < \\s. \ Appeal of Hearing Exe er Decision No. LUA07-65, CU-A, ECF Page 1 of8 BEFORE THE RENTON CITY COUNCIL APPEAL OF DENIAL OF ADMINISTRATIVE CONDITIONAL USE PERMIT Appellant: Decision Appealed: Project Name: Property Owner: Project Location: File Number: I. T-Mobile USA, Inc. and T-Mobile West Corporation, d/b/a T- Mobile Decision of City of Renton Hearing Examiner dated January 15. 2008 T-Mobile Monopole in SE 3rd Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 Street right-of-way located northwest of property addressed at 4401 SE 3rd Place. within SE 3rd Place and Anacortes Ave SE LUA07-065. Cli-J\, ECF Nature of Application and Project Location T-Mobile, the Appellant and Applicant filed an application for an Administrative Conditional Use Permit approval for a wireless communications facility with the City of Renton on June 28, 2007. The application requested permission to replace an existing 40-foot tall wooden Puget Sound Energy ("'PSE") power pole with a new wooden power pole to be 59-feet-11-inches tall. Permission to replace the existing wooden power pole with a new pole was requested so that T-Mobilc could collocate three flush-mounted wireless communications antennas on the pole. The T-Mobile proposal also included a request for permission to install an underground vault to house telecommunications equipment associated with the wireless facility. The project site totals 104 square feet in area and would be accessed via Anaco11es Avenue NE. The purpose of the proposed T-Mobilc wireless communications facility is to provide in- building and outdoor coverage to a residential area located within the City of Renton east of Union Avenue SE and roughly bounded by SE 2"d Place to the north and SE 4th Place to the south. The area surrounding the proposed site is zoned Residential-8 (R-8) (8 dwelling units per acre). Single fan1ily residences surround the project site. T-Mobile currently cannot provide adequate wireless signal in this area, and thus cannot adequately serve its customers in the area. The application was processed by the City or Renton as an Administrative Conditional Use permit to install a "monopole I" structure. As defined by RMC 4-11-230 a "monopole I" structure is: Appeal of Hearing Ex ,er Decision No. LUA07-65, CU-A, ECF Page 2 of 8 A wireless communication support structure which consists of a freestanding support structure, less than sixty feet (60') in height, erected to support ,vireless communication antennas and connecting appurtenances. As T-Mobile explained to the Hearing Examiner during the open record appeal hearing in this matter, this definition is not a completely accurate description of the T-Mobile application. Although it is necessary to replace the existing PSE pole with a somewhat taller pole in order to allow the attachment of T-Mobile antennas at the proper height, the primary purpose of the pole will continue to be to support PSE power lines. II. City of Renton Development Services Permit Denial and Appeal to City of Renton Hearing Examiner. In an Administrative Land Use Action decision issued October 15, 2007, City of Renton Development Services Director Neil Watts denied T-Mobile's application on the following grounds: I. The subject proposal does not comply with all of the policies and codes of the City ofRenlon, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding singlefamily residential neighborhood. 2. The proposal does nor comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surrounding neighborhood that cannot be mitigated. The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3. Unrebutted testimony was received from real estate professionals stating that the siting of a monopole 1 structure at the proposed location would reduce the property values in the vicinity. T-Mobile disagreed with these conclusions and appealed this administrative denial to the City of Renton Hearing Examiner. III. T-Mobile's Grounds for Appeal of Hearing Examiner's Denial Decision The City of Renton Hearing Examiner held an open record hearing on T-Mobile's appeal on December 18, 2007. Witnesses for T-Mobile at the hearing included T-Mobile representatives Kevin Foy and Chris Conaxis, T-Mobile Zoning Supervisor Michael Cady, and T-Mobile's Radiofrequency ("RF") engineer, Kevin During. Following the hearing, the Hearing Examiner denied T-Mobile's appeal, and entered Findings and Appeal of Hearing Exa !r Decision No. LUA07-65, CU-A, ECF Page 3 of8 Conclusions as set forth on pages 8 -1 1 of the Examiner decision. A true and correct copy of the Examiner's decision is attached to this appeal as Appendix 1: T-Mobile hereby appeals the Hearing Examiner denial and the Examiner's findings and conclusions, as set forth below: A. Potential Errors Related to Hearing Examiner "Minutes" of December 18, 2007 Hearing 1. To the extent that any of the text of the Hearing Examiner decision as set forth beginning at the bottom of page 1 of the decision and continuing through the top of page 8 of the decision--denominated by the Examiner as "Minutes"-is inconsistent with, or does not accurately reflect, the actual testimony of the witnesses at the hearing, T-Mobile objects to the same, and requests that for purposes of the appeal that the City Council consider and base its decision on only the official record of the December 18, 2007 Hearing Examiner hearing. 2. To any extent that the "Minutes'' of the December 18, 2007 hearing as set forth at pages 1-8 of the Examiner's decision (a) are inaccurate and (b) constitute factual findings of the Examiner, T-Mobile hereby appeals from such inaccurate findings. 3. T-Mobile reserves the right to order and enter into the record before the City Council a complete transcription of the December 18, 2007 hearing, and to present to the Council in written briefs or in oral argument further specific objections to the characterization of the evidence by the Hearing Examiner in the "Minutes" as necessary or appropriate for its appeal. B. Errors in Hearing Examiner's Findings 1. T-Mobile appeals from Finding 4 of the decision to the extent that such finding may inadequately characterize the nature of the T-Mobile application. Finding 4 states that the proposal is for a "monopole l" structure. As defined by RMC 4-11-230 a "monopole l" structure is "A wireless communication support structure which consists of a freestanding support structure, less than sixty feet ( 60') in height, erected to support wireless communication antennas and connecting appurtenances." Although it is necessary to replace the existing PSE pole with a somewhat taller pole in order to allow the attachment ofT-Mobile antennas at the proper height, the primary purpose of the pole will continue to be to support PSE power lines. PSE power lines obviously are not "wireless" facilities. T-Mobile's proposal is to collocate its antennas on the PSE pole. 2. T-Mobile appeals from Finding 5 of the decision because this finding recites conclusions of the City staff report with which T-Mobile disagrees. Testimony and documents in the record before the Examiner demonstrate that there are many trees in the area, and that from certain views in the neighborhood there would be a screening effect for the pole. The existing PSE pole is 40' tall; thus, to the extent that this Finding 5 Appeal of Hearing Exa :r Decision No. LUA07-65, CU-A, ECF Page 4 of 8 characterizes the existing structures in the area as no higher than 30', the Finding is inaccurate. 3. T-Mobile appeals from Finding 7 to the extent that the Hearing Examiner has incorporated and relied upon certain conclusions of Development Director Watts which are recited in Finding 7. T-Mobile disagrees with the Director's conclusions as set forth in the written appeal from the Director's decision that T-Mobile filed with the Hearing Examiner. A true and correct copy ofT-Mobile's appeal of the Director decision is attached hereto as Appendix 2, and each of the grounds for appeal set forth in Appendix 2 are incorporated herein by reference. 4. T-Mobile appeals from Finding 12 because it inaccurately characterizes what may be allowed in the R-8 zone under the Renton wireless facilities ordinance. RMC 4-4- 140(G) sets forth the height limits for wireless facilities. Under these provisions, wireless facilities may exceed the height limit l'or a zone, for example, a monopole I structure is allowed at any height less than 60' in all zones. The mere fact that a wireless facility proposal is taller than other structures in a zone is not a determining factor for granting a wireless facility permit. By their nature, wireless facilities must be taller than other structures in an area, otherwise the wireless signal cannot be sent. The Renton Municipal Code acknowledges this fact. The Hearing Examiner, however, erroneously ignores this fact. 5. Finding 14 restates certain comments made by the Director in his administrative decision. To the extent that the Examiner may have adopted or relied upon such comments, T-Mobile appeals from Finding 14, for the reasons set forth in its appeal of the Director's decision, attached hereto as Appendix 2. 6. Finding 15 recites certain conclusions of the ERC. To the extent that such recited conclusions, or other text of Finding 15, suggest or state that the Examiner finds that the T-Mobile application should be denied on aesthetic grounds, T-Mobile appeals from the finding. Testimony and documents presented to the Hearing Examiner addressed aesthetic issues and issues related to various mitigation measures that might be utilized for a wireless facility of this type. Finding 15 does not accurately reflect such evidence. 7. T-Mobile appeals from Finding 18. There is no indication in the Finding as to what letter the Examiner refers to (there were at least two real estate agent letters in the record). To the extent that T-Mobilc is able to guess at which letter the Examiner relies upon, T-Mobile disagrees that any such letter referred to in the Finding "indicates" that there would be an adverse effect on property values. The letters contain statements by parties who were not present at the hearing and who therefore could not be cross- examined. No evidence was presented regarding the qualifications of the letter writers. The finding refers to evidence that is of indeterminate identity, and given the lack of expert qualifications, oflittle or no weight. Appeal of Hearing Exa r Decision No. LUA07-65, CU-A, ECF Page 5 of 8 8. T-Mobile appeals from Finding 19. This finding mischaracterizes the referenced report submitted by Appellant, and ignores pertinent evidence in the Appellant's report as well as supporting testimony given at the hearing concerning the relevance of the report and concerning the similarities between the property analyzed in the report and the proposal at issue. 9. T-Mobile appeals from Finding 20. The utility poles referenced are not identified as to location or height, nor is their location or height correlated to the search ring criteria for the T -Mobile site. There is no factual basis stated for the conclusion that such poles, with or without the unspecified "modifications" referred to in the Finding, could "provide less aesthetic concern." The Finding is inconsistent with the testimony and documents presented to the Examiner, and mischaracterizes the facts concerning what locations are actually able and suitable to provide coverage for the gap in service that prompted T- Mobile to make the application at issue. 10. Finding 21 inadequately characterizes the evidence presented by T-Mobile concerning its efforts to submit an application to the City for a site that was not located within a residential area. This finding does not accurately reflect the record or T - Mobile's efforts in this regard. C. Errors in Hearing Examiner's Conclusions. I. T-Mobile appeals from Conclusion 1 for the following reasons. RMC 4-8- 110(7)(b) sets out six separate grounds for reversal or remand of an administrative land use decision "if the substantial rights of the applicant may have been prejudiced because the decision is: (i) in violation of constitutional provisions; (ii) in excess of the authority or jurisdiction of the agency; (iii) made upon unlawful procedure; (iv) affected by other error of law; (v) clearly erroneous in view of the entire record as submitted; (vi) arbitrary or capricious." The Hearing Examiner's Conclusion 1 purports to cite these criteria, but only refers to four of the six criteria. Conclusion 1 declares that T-Mobile failed to show any error under the six criteria, but fails to identify how, or on what basis, the Examiner reached this decision. The Examiner ignored the provisions of the federal Telecommunications Act, and ignored written and testimonial evidence from T-Mobile as to facts relevant to the application decision, including but not limited to substantial evidence that T-Mobile considered other alternatives to the proposed location, including an alternative that would have placed the facility completely outside of a residential area, but was thwarted by the City itself from pursuing that alternative, by reason of the letter and the application of the City's burdensome. overly restrictive, anti-competitive ordinances which denied T-Mobile the ability to fill a significant gap in its coverage and to compete on a level playing field with other wireless service providers. 2. T -Mobile appeals from Conclusions 2 and 3 on the grounds that these conclusions evidence that the Examiner gave undue deference to the decision of the Director, in direct violation of Renton Municipal Code provisions that require the Examiner to hold an open Appeal of Hearing Exa ,r Decision No. LUA07-65, CU-A, ECF Page 6 of8 record hearing on the application and to decide based upon the record evidence admitted before the Examiner whether the application should be approved. 3. Conclusion 4 is erroneous and should be reversed by the Council because it reflects that the Examiner incorrectly applied the permit approval criteria for wireless facilities, and improperly based his decision on undue deference to the decision of the Director, and upon an erroneous application of the law. The Examiner in Conclusion 4 erred in determining that this proposal could be denied solely for aesthetic reasons, and further erred in ignoring substantial evidence that this permit denial deprives T-Mobile of the ability and opportunity to close a significant gap in its coverage which cannot be closed through any other site alternatives. 4. T-Mobile appeals from Conclusion 5 because it reflects that the Examiner ignored substantial evidence presented by T-Mobile that the proposed facility at the proposed site is the only means available to T-Mobile under the Renton Municipal Code for closing a significant gap in its coverage. The Examiner declares in this conclusion that some other combination of "additional shorter poles or taller poles spread out further" would be suitable alternatives, without any basis in the record evidence that such unidentified alternatives would be located within the T-Mobile search ring or that such alternatives would have provided adequate coverage. The Examiner fails to discuss T-Mobile's evidence that it attempted without success to persuade the Development Services department to accept an application for T-Mobile to locate its facilities at a nearly 1 acre size lot, not located within a residential district, where other communications facilities are already located, and which would not have adverse aesthetic impacts because of existing screening trees. The Examiner's Conclusion 5 is clearly erroneous and must be reversed. 5. T-Mobile appeals from Conclusion 6 because it is clearly erroneous on its face. This conclusion admits that no provision of the Renton Municipal Code required T- Mobilc to submit reports concerning alternative sites. Having said this, the conclusion then states that T-Mobile's application was properly denied by the Development Services Director because of the absence of alternatives evidence. The Examiner states that "the Director was ... limited to consider the impacts of the proposed pole and site", but then concludes that a permit was properly denied because of factors that do not relate to the proposal. Conclusion 6 is contradictory on its face, illogical, and not based upon the Renton Municipal Code or upon a correct interpretation of Telecommunications Act case law. 6. T-Mobile appeals from Conclusion 7 because it, like Conclusions 1, 2 and 3, is predicated on errors of law concerning the proper standard of review of the Director's decision, and upon a misapprehension of" the role of an open record appeal hearing within the administrative land use decision making process. Further, Conclusion 7 is predicated on a misapprehension of the role that aesthetics may play in a decision on a wireless facility proposal under Renton's wireless code and under Washington law. For example, RMC 4-4-l 40(F)(2) states on its face that as to visual impact, wireless development should preserve the pre-existing character of the surroundings "to the extent consistent Appeal of Hearing Exa r Decision No. LUA07-65, CU-A, EcF Page 7 of 8 with the function of the communications equipment," and that wireless facilities shall be designed to blend with the existing characteristics of the site "to the extent practical." These provisions clearly state that considerations of aesthetics and compatibility must be balanced with the technical requirements of wireless communications. Here, the Director and the Examiner have denied a permit to T-Mobile for the only feasible location to fill the significant gap in its coverage because the support structure for the antennas will be taller than other structures in the area and because it will be seen. Washington courts consistently have been clear that a permit denial cannot be based upon these considerations alone. See Seattle SMSA Ltd. v. San Juan County, 88 F .Supp.2d 1128, 1131 n.3 (W.D.Wn. 1997) (aesthetic factors may not be sole basis for permit denial); Citizens to Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wn.App. 461 (2001) (fact that monopole would be seen from some adjacent properties insufficient to support permit denial). IV. The City's Permit Denial Violates the Federal Telecommunications Act. The Telecommunications Act of 1996 ('"the Act") prohibits municipal government from enacting or enforcing regulations or requirements that "may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C. ii 253. Under Section 253 of the Act, federal courts have made it clear that municipalities are prohibited from imposing complex, discretionary, and burdensome zoning obligations on telecommunications providers as a precondition of deploying telecommunications facilities. See, e.g., Sprint Telephony PSC, L.P. v. County of San Diego, 479 F.3d 1061 (9th Cir. 2007); City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001). Such "barriers to entry" are improper, and any municipal decision which embodies or creates such a barrier is a violation of federal law. Here, where T-Mobile has already been prevented from submitting an application to the City for a wireless facility on non-residentially-zoned land that would have covered the gap in its service area, and now has been denied a permit for the only other practicable location that would allow it to service the gap on the grounds that the location is too close to residences, or has too much impact on residences, T-Mobile effectively has been prevented from entering and providing services to this area, in violation of Section 253 of the Act. The City's application of its zoning regulations, as admitted by even the Hearing Examiner in Conclusion 6, have made it virtually impossible for T-Mobile to service its customers in the area affected by this application. Similarly, Section 332(c)(7)(B) of the Act prohibits local government permit denials that prohibit or have the effect of prohibiting the provision of wireless services. This section of the Act is even expressly recognized by the City, in RMC 4-4-140(E)(2), which provides that "The City zoning requirements may not prohibit or have the effect of prohibiting the provision of wireless telecommunications service." Here, where the City has refused to grant a permit to T-Mobile for a facility at the only practicable location Appeal of Hearing Exa r Decision No. LUA07-65, CU-A, ECF Page 8 of8 that will allow it to fill the significant gap in its service coverage, the City has violated both Section 332 of the Act and its own ordinances. V. RELIEF REQUESTED The Hearing Examiner has erroneously denied I-Mobile's appeal of the Development Director's Decision, and the City Council should reverse the Examiner's decision. For all of the reasons that are apparent from the contents of I-Mobile's appeal to the Hearing Examiner and from the other documents contained in the record and the testimony that was before the Hearing Examiner, the Development Director erred in issuing his original denial of I-Mobile's site application. I-Mobile presented ample evidence supporting the proposed location and facility as being the minimum necessary to fill the gap in its service coverage. The record before the Bearing Examiner contains the report and testimony of I-Mobile's radiofrequency engineer as to the size and location of the coverage gap, and of the reasons why the proposal is the only practicable solution to fill that gap. The RF engineer's report and testimony includes an analysis of alternative sites, which analysis was completely ignored by the Hearing Examiner. Based upon the record before the Hearing Examiner, and upon the applicable criteria of RMC 4-4-140 and 4-9- 030(J), the wireless facility application of I-Mobile for this location should be approved. I-Mobile respectfully requests that the City Council reverse the Hearing Examiner's decision and grant the requested permit. In alternative event that the Council believes that additional information is required regarding any matter or issue presented to the Hearing Examiner, I-Mobile would request that the Council remand to the Examiner for further proceedings with instructions as to the proper legal standards to apply to a decision on remand. Dated this 29th day of January, 2008. Respectfully Submitted, Davis Wright Tremaine, Attorneys For Appellant I-Mobile By~ le! ~~"------__ Linda White Atkins WSBA #17955 777 108th Avenue NE Bellevue, WA 98004 Telephone: 425-646-6115 Facsimile: 425-646-6199 Email: lindaatkins@dwt.com APPENDIX 1 OFFICE OF THE BEARING EXAMINER CITY OF RENTON REPORT AND RECOMMENDATION APPELLANT: January l 5, 2008 T-Mobile Monopole in SE 3"'·Place Right-of-Way Appeal LUA-07-065, CU-A, ECF PUBLIC HEARING: After reviewing the Appellant's written requests for a hearing and examining available infonnation on file, tbe Examiner conducted a public hearing on the subject as follows: MINUTES The following ml/lutes are a swmumy oftlte December 18, 2007 hearillg. The legal record is reco1·ded 01~ CD. The hearing opened on Tuesday, December 18, 2007, at 9:01 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were afiinned by the Examiner. The following exhibits were entered into the record: Exltibit No. 1: Staff file containing the original appeal letter and site information, by reference, letters from a number of neighbors, Mr. Watt's denial, and the letter establishinQ this anneal date. Parties Present: Neil Watts, Development Services Director, City of Renton Ann Nielsen, Assistant City Attorney Kevin Foy, Appellant Chris Conaxis, Representing the Appellant, 575 Andover Park W, Ste.201, Tukwila, WA 98188 Micbael Cady, Zoning Supervisor for T-Mobile, 575 Andover Park W, Ste. 201, Tukwila, 98188 Kevin Duming,RF Engineer forT-Mobile, 575 Andover Park W, Ste. 201, Tukwila, WA 98188 Testimony began with: Chris Conaxis stated that T-Mobile was here to bring excellent coverage to their customers and their needs. There is a greater need in mral areas and residential neighborhoods. Factors that identify new sites and candidates include computer modeling, input from customers, competition from other carriers, demand for "91 l" emergency coverage, new types of home construction and population increases in the area, overall system perfonnance, as well as other considerations. A gap in T-Mobile 's coverage has been discovered and a location T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 2 has been found that is within the constraints of the code that will serve to meet U1e customer's needs. This plan is designed to bring coverage to residences east of Union Avenue at SE 2"• Place to the south at SE 4 1h. These targeted areas are very small. (map referred to as Tab 6 in the booklet) T-Mobile applied for application, went through all the necessary processes and was issued a denial. The information provided was a chronological order of events, starling at Tab 7 with the request for pre-application meeting with the City to discuss the proposal. Mr. Conaxis continued through'the booklet reviewing all 1he pertinent infonnation in the process leading to the denial of the application. Aesthetics were not brought up during the review process and yet down the road it ends up being one of the major factors that the City is relying on for the denial of the project. On October 8 they received notice from the ERC and on October 15 they received the staff report, which was a complete reversal of the City's position from May/June and the Pre- Application Notice. Part of Tab 4 is the analysis provided by their radio frequency engineer, which discusses how they arrived at tl1is facility as well as some of the alternatives that were reviewed. Some of the other locations required the changing out of an existing utility pole for a new one sligl1tly taller to accommodate the antennas. Tab 2 shows the area without coverage and the second map shows the facility with coverage. It is not a larger area that it covers. T-Mobile contends that under the present code, these monopole facilities are able to be located in this zone up to 60 feel. T-Mobile is not proposing a monopole I, which is defined in the code as a wireless conununication support strncture, consisting of a free-standing support structure less than 60 feet in height to support wireless communications, antennas and connecting appurtenances. TI1ey, instead, are proposing an attached wireless communication facility, which would be utilizing an existing strncture, granted the existing structure would have to be removed and replaced for a stronger pole. They consider it an existing structure since one currently exists in the exact spot where the conununication tower would be located, the pole would continue to serve it's primary purpose as an existing utility pole, the wireless antennas would serve as a secondary function to that pole. T-Mobile does agree that the top portion of the pole would not be able to be screened, to work effectively, the pole does need to protrude above ground and above the trees in order to function properly. Any tree that was in front of the antenna would not allow the wireless antenna to function properly, the wireless function cannot work through the trees, it must be above them. The Examiner stated that aesthetics is the issue and to make the antenna aesthetic the antenna would need to be screened and if you screen it the antenna becomes useless. That is the dilemma. Mr. Conaxis stated that that was correct, the lop halfof the pole could not be screened from a functionality standpoint. There are trees in the area that are acting and a backdrop or screen from certain angles, but the top 20 feet of the pole is there for functionality purposes. TI1e proposed antennas in this case would be flush mounted to the pole, they would not protrude from the pole. The antenna is approximately 6 feet in length and has a winged shape. The antenna will be flush mounted and painted to match the color of the pole. T11e equipment that runs the antenna will be installed in an underground vault for aesthetic purposes so the general public will not see the equipment. Upon approval of the project, the City has agreed to approve the underground vaull activity. T-Mobile would be willing to enclose the antenna in a canister. Michael Cady stated that they had looked at false trees to minimize the looks of the antenna. What they have found is that when you are close to those trees, they are very ugly, you can tell that they are false. The only time they work well is when there is a site that is quite a distance from anyone viewing it. Secondly the utility T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 3 company has never authorized a pole that is designed to look like a tree because their primary function is as a utility pole and that function has to continue. The report states that there is not an impact on property values. Chris Conaxis conunented that the false trees, if they were put on a comer where a utility pole currently exists, the false tree would stand out like a sore thumb. !fit is in a full stand of trees·to make it look like an existing tree tends to work better. They had proposed another alternative of placing the pole within a cluster of trees and that proposal was denied by the City, because of that they had to look for other sites. Under the staff report, the second item that the City contends is that the proposal does not comply with the Comprehensive Plan for utility elements. The neighborhood is currently dominated by 30-40 foot utility poles, T-Mobile is taking an existing structure and utilizing that existing structure by raising the height rather than bringing a new pole into the neighborhood. It further states that the proposal does not comply with the Communications Facilities Conditional Use criteria. On the previous. page under Conditional Permit Review it states that the applicant's conditional use permit application complies with the requirements for the information necessary for the conditional use pem1it review. A third item under the conclusions states testimony was received from real estate professionals stating that the site of monopole 1 structures at the proposed location would reduce the property values in the vicinity. T- Mobile contends that they were never given an opportunity to provide rebuttal to that testimony. Tirnt rebut1al was submitted with the appeal documents. Under Tab 11 on third page there is talk about Ord. 5286 under RMC 4.2-080 states that monopoles proposed on public right-of-way may be allowed via Administrative Use Permit in a Right-of-Way Use Permit, that is what they were told in their pre-application meeting and that is the process they followed. It further states that the monopole must be I 00 feet setback from any adjacent residentially zoned parcel, otherwise a Hearing Examiner Conditional Use would be required. This facility is not 100 feet from a residentially zoned property, they contend that the City may not have had the authority to make a decision on this application. Neil Watts quoted from RMC 4.2-060p, which states this project would come under the Administrative Use Permit process. He further went on to explain where the I 00-foot setback applied. Chris Conaxis stated that this was not a Monopole 1, rather it is an existing structure. The Examiner stated if it is not a Monopole I then this heaiing should probably not be taking place. He further asked for a definition of a Monopole I. Neil Watts stated that it is a freestanding support structure less than 60-feet in height. This is an existing structure. Chris Conaxis stated that they started looking at this location prior to May 2006. Tab 13 contains the letter and application that T-Mobile turned in for a Monopole I on the property at 400 Union. This did not meet the size criteria, the parcel was .92 acre and it had to be one full acre. They were not even given the ability to request a variance for that site. They were told that a new code was in the works and that it would be favorable for utility poles in the right of way and that's where they changed their direction and started looking for suitable options. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page4 Kevin Durning, 575 Andover Park W, Ste. 20 l, Tubvila, WA 98188 stated that the coverage from this particular location would be approximately a half-mile. They are the predominate server in this area, there goal is to stay out of Maple Valley with this particular site and shoot more lo the north. TI1e height and location of trees will affect the service areas. In the winter coverage is usually better because of the deciduous trees. If the tree is within ten or twelve feet it may cause problems, the beam is not allowed to develop it is basically stopped. Chris Conaxis showed a map showing an overview of lhe neighborhood with the location of the facility marked with a red dot. If this paiiicular utility pole is not acceptable, how would any other utility pole on any of the surrounding streets meet the code? Union Street was inspected, from this location to Union they would lose 30- 40 feet in elevation, and again once on Union they have the same problem, where will they be able to put their ground equipment. Tbere is a sidewalk and no place lo accommodate the cabinets above ground or underground. They have been researching this project for almost 3 years and have identified one property that appears to meet the needs of the code and after months of work, received a denial. The Examiner asked if a taller tower located in the area of SE 128"' and Cemetery Road which is more an arterial and more commercial oriented area, would that serve the area geographically? Kevin Durning stated that they do have several locations in and around that particular area, they have not looked in that exact area. Taller is ambiguous, they can serve anything if they have a tall enough tower. He is not sure that it would be approved to be a taller tower in that area. As to what competitors are doing in this area, he did not know, different bands require different frequencies. Ann Nielsen stated that the October S, 2007 Environmental Committee Report, issued by the City, under No. 3 on page 3 of 4 it specifically lists a category of aesthetics. The conclusion states that other than relocation there does not appear to be any mitigation measure that could be implemented that would reduce the aesthetics of the proposed Monopole l structure and associated equipment cabinet. Aesthetics was pointed out in the SEPA documents. Also, on October 29, 2007, which ran concurrent with the appeal period on the Director's decision, if there was an issue with this it should have been appealed at that time. The Examiner stated that they had no reason to appeal since ERC did not impose any mitigation measures. Aru1 Nielsen stated that was true, but the appellanl did just bring up that the City had nowhere brought up the aspect of aesthetics, when it was specifically referenced in that report. For purpose of the record, are the appellants saying that this is not a Monopole l structure? Neil Watts read the definition of a Monopole I strnclure: "Monopole I: a wireless communication support structure which consists of a free standing support strncture, less than 60 feet in height, erected to support wireless conununications, antennas and appurtenances." Ann Nielson stated that it is their application and appeal, but they are not saying that it is a Monopole I, if they think it is something else, they should reapply under that applicable provision. The Examiner asked if the criteria or conditional use would be different if this was not a Monopole l, if it's less than 60 feet is there some different criteria. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 5 Neil Watts stated when the Ordinance was written, they were looking al two different types, support structures which are basically a Monopole I, Monopole 2 structures which are significantly higher, and the lattice towers which are very extreme situations. Separately from that is the discussion and definition on the different range of anteMas. The intention set out in the code in the policies is for people to put anteMas on existing structures, buildings, poles, etc. If PSE had a pole that was the right height and was structurally such that it could support the antenna, a permit for the antennas could be sought. If the antennas were small enough, which these today appear to be, it would be an outright permitted use. However, this is not an existing pole, either in height or in ability to support this type of facility. There is a new pole being put in. After discussion on whether this was the proper time for this hearing and whether or not this was a Monopole I or not, the appellant stated that he would prefer to continue with the heating today under the declaration of a Monopole l. Neil Watts this particular provision allowing these types of facilities to go into single-family zoned property in the right of way was a late addition in the last year or two. This was not part of the original wireless code that was written about 1998. It would be very difficult to meet the criteria for a conditional use permit in dense single-family neighborhood on single-family residential streets. There are several stretches of major arterial streets that are zoned R-8. Providing service, as most providers arc trying to do, in these smaller sites is going to be very difficult. In this particular case, Union has the very large existing poles in the area, as well, NE 4"' has large existing poles, and they could go in and use the existing pole for their antennas. Established neighborhoods, with smaller streets and smaller lots make it very difficult to meet the conditional use c1iteria. Neil Watts commented on cost being an issue as far as site selection. The current location being considered is as simple a place for a pole location, there are no existing curbs or sidewalks, installation of the underground vault, which needs to be underground, is arguably less expensive. It is not physically impossible to install a vault where a sidewalk exists, it also is not physically impossible to make negotiations with adjacent properties to use a portion of their property for installation of the vault. The focus has been on this site because the location is right in the middle of the area they are trying to provide service to, it was a logical site to look at. A pre-application is not a formal review, it is not a fom1al denial or approval. It simply lists out codes, fees and processes and tries to give information if it does not meet code. The dilemma is balancing out two needs, they are addressed in the code. Section 4.4.140, wireless communication facilities list the two counterbalancing things being looked at here. One is Section B, which talks about poles and Section E, which is compliance with the Telecommunications Act of 1996. IfT-Mobile had been able to demonstrate that all the other sites did not provide adequate service to this area, it would be much harder to deny this request. The idea was to try to encourage providers to go to commercial and industrial zoned properties and to co-locate on existing poles, towers or buildings. The code is set up to make it easy to go to the desired location and makes it more difficult or impossible to go to areas where the City did not want them to be in. They did not want them to be in single-family zones. This application was with the Environmental Review Committee a fairly lengthy pe1iod of time. A request for alternative sites was requested and never provided. There were many concerns with the Committee, there were identified adverse impacts, but they were not raised to the level of significant. Ann Nielsen referred to Tab 12, the Market Study, which was actually done at a Redmond Park does not appear to be applicable because it is not in a residential area. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 6 Chris Conaxis stated that it was applicable because the pole was placed at the edge of the park and a residential area surrounded the park. The pole was a replacement structure and has a lot of similarities to this project today. The pole was set back between 400 and 500 feet of a residential structure. Ann Nielsen continued that the pole was actually set within the park as opposed to a residential area. Tab 4 covers the radio frequency analysis, the City did not receive this analysis prior lo today's hearing. T- Mobile does acknowledge that there were other candidates considered besides.this location. What were the facts that precluded moving to this current location? Chris Conaxis stated that it would have required moving a utility pole to another front yard as opposed to the front yard it currently is in. All considered locations were the same circumstances. The location that was chosen had the largest section ofright of way and that allowed for the ground equipment. The other locations don't have a clear right of way. Elevation is lost on Union and there currently is a developed sidewalk and doing an underground vault in that situation would have been more difficult if it was even allowed. Doing the vault is the most expensive part of the installation and that has been budgeted so wherever the site is, it would not cost any more. It is a major cost to go underground. To put a slab of cement down and place the cabinets above grade would be much cheaper and the preferred alternative. Not all competitors are able to get service to this area. Some are in there currently, some are not. Michael Cady stated that they really need this site because other carriers have different frequencies and because of the frequency range they broadcast in and receive in, they can have different site requirements than T-Mobile. This site is particular to the coverage gap needs for T-Mobile. Kevin DL>ming stated that they look at their own needs and not what others are using or doing at any particular location. New York has sites every other block in order to get coverage. The planners have to work within the code and find the best locations. The City of Renton would not look favorably on four locations that would provide service when what was proposed for the four could be one with one site. Chris Con axis stated that this pole would be 19 feet taller than any existing pole. The Examiner stated that there are trees in the area but nothing screens the comer parcel where the pole would be located. This would be highly visible to adjacent properties. Chuck Gitchel, 440 I SE 3nl Place, Renton 98059 stated that he resides at the sire of the proposed T-Mobile monopole that would be located on tl1e comer of their property. He has training in electronics as a radar repaim1an and later as a radio/telephone communications technician. He was taught extensively the dangers of frequency radiation. The question is how much is too much. Microwave ovens are built with a metal casing and screening in the oven door to help block the radiation from hum1ing people. Microwaves, cell phones and radio and television antermas all use frequency radiation, the dangers exist in all cases. T-Mobile representatives came through the neighborhood a few weeks ago, they were told the frequency radiation from a tower is not as bad a holding a phone up ta your head. The cell phone companies know how ham1ful these frequencies are to the public's health. The Examiner stated tbat the code does not allow him lo consider the health issues when making his decision. TI1ere are secondary implications including real estate values. He therefore will not allow radiation testimony. T-Mobile Monopole Appeal LUA-07-065, CU-A January I 5, 2008 Page 7 Mr. Gitche! continued stating that there is a falling hazard, the pole would be only 45 feet from the house and 25 feet from their carport. The existing pole if hit would not hit their house. They have a drug house in the neighborhood, it only takes one person on drugs lo hit the new pole and bring it down on top of their house. Regarding the vault location, when a person from T-Mobile dug a hole for soil samples they realized this vault would be 25 feet from their bedroom, they would be able to hear the equipment running at night. He was told that the Environmental Study pertained to birds, etc, he did not appeal and perhaps he should have. He believes that the installation of this pole would lower their property values. He submitted several letters from real estate experts and read portions from those letters. Chandra Lindquist, 251 Vashon Avenue SE, Renton 98059 stated that because Union is zoned for this sort of thing and T-Mobi!e submitted altemate sites, there is a new park in that area, why did they not consider doing their site concurrent with the construction of the new park. They stated they did not want to install an underground vault where there are existing sidewalks, there were no existing sidewalks it was vacant land up until one year ago. The Examiner clarified that T-Mobile was asked to submit alternative sites, but they did not respond to that request. They are not necessarily required to, they had the right to ask for this site, the City had the right to look it over and say no. T-Mobile can come back with a request for a new location and try again. Mike O'Halloran, 4420 SE 4'" Street, Renton 98059 asked if this monopole is authorized what prevents compelition from taking over other poles or just adding antenna to the existing or new monopole? Would like to appeal to T-Mobile and the City of Renton to come up with an alternative location and find a common ground that would satisfy the residents as well as the customers. John Worthington, 4500 SE 2"' Place, Renton 98059 stated that he felt T-Mobile was trying to take advantage of the code and he would like to see an alternative for them. He does not want to impede free market, but he also pointed out that as to property market values, at some point they may want to increase their property taxes for underground utilities, which would increase the overall property values. Committing to a cell phone tower that locks them in and grandfather's them in and prevent the neighborhood from going to underground utilities. Steven Northcraft, 4209 SE 3"' Place, Renton 98059 stated that he has underground utilities and in the development immediately south of this area on SE 4'" many of the homes have underground utilities. All new construction is being required to have underground utilities in this area. Chris Conaxis stated that they were following the code to bring service to their customers. Ann Nielsen gave a closing statement that Mr. Watts decision as Director should be given substantial deference. The burden is that the appellant must show why that decision should be overtumed, it does not appear that they have done that. ll is possible that there are other alternatives for T-Mobile. The facts show tl1at to allow this monopole would make it the tallest structure in the neighborhood. It would be quite visible due to the absence of any trees or mitigated structures. There were statemwts in all the letters, including letters from real estate brokers, stating that the existence of this monopole would have adverse real estate effects lo this particular location. 1l1e appellant did a study of effects of a monopole on residential property, however, the study was done on a monopole that was located within the confined of a city park and little, if any, weight should be given to this study. With the appellant's presentation today, they do not appear to have met their burden and therefore asked that the Examiner uphold the City's Director decision. T-Mobile Monopole Appeal LlJA-07-065, CU-A January 15, 2008 Page 8 Chris Conaxis stated that they cannot be responsible for the technologies of Sprint, Nextel, Cingular and if they have the ability to come in due to their different technologies, if they are unable to provide the coverage that they want to provide, it does not do their case any good that their competitors do have coverage in this area and they don't and are not allowed to get into that area. They are gone to the preferred locations and now they are trying to get into the rural and residential areas, they would consider it a barrier to entry to provide coverage to this particular neighborhood if this facility is not allowed. The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing closed at 11 : 11 am. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters ii1e following: FINDINGS: 1. The appellant, Kevin Foy, Wireless Facilities, Inc, for T-Mobile filed an appeal of an administrative decision denying an Administrative Conditional Use for a Monopole I. 2. The appeal was filed in a timely manner. 3. The project would be located in the public right-of-way near the intersection of SE 3rd Place and Anacortes Avenue SE. The nearby street u<ldress would be 4401 SE 3rd Place. 4. The project is described as: "The applicant is requesting Administrative Conditional Use Permit approval for the replacement of an existing 40-foot tall wood power pole with a 59' I I-inch wood power pole that would also function as a monopole I structure. The monopole I and associated equipment vault would be located within the public right-of-way and is zoned Residential-8 (R-8) dwelling unit per acre. Single-family residences surround the project site on all sides. The site totals 104 square feet in area and would result in 32 cuhic yards. of excavations. Access to the site would be provided by Anacortes AYenue NE." 5. The staff report noted: "The surrounding topography is flat. Due to the flat topography oflhe site, the prevalence of single story homes, and the Jack of trees in the immediate vicinity of the project site, the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed in the surrounding environment." (Administrative Conditional Use Report, Oct, 15, 2007, Page 3). The staff report goes 011 to describe the Jack of trees in the immediate area and the proposed location's abutting a front yard of one residence and directly across the street from several other residences. Staff also noted that the pole would be almost 30 feet taller than the 30 foot tall strnctures pennitted in the zone and was not sensitively sited. 6. The criteria for review are found in Section 4-9-0301. 7. After administrative review, Development Services Director Watts, found: "l. The subject proposal does not comply with all of the policies and codes T -Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 9 of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2. The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole wo_uld have on the surrounding neighborhood that caimot be mitigated. ·The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3. Unrebutted testimony was received from real estate professionals stating that the siting of a monopole I structure at the proposed location would reduce property values in the vicinity." 8. The Director then denied the permit. 9. The proposed structure would serve a dual purpose. It would continue to carry Puget Sound Energy lines in the neighborhood and it would also accommodate a wireless cellular facility. The new pole would be 59'1 I" tall. The cellular equipment on the pole would be flush mounted and painted the color of the pole. TI1ere would also be an underground vault containing associated equipment. There was no discussion about the noise that could be generated by the vaulted equipment. The vault would be 13'4" by 8' and access would be via a ground level hatch door. The vault would be located in the public right- of-way. No additional roads or access requirements are necessary. I 0. The applicant anticipates one vehicle trip per month for maintenance purposes. 11. Approximately 32 cubic yards ofmalerial would be excavated to accommodate the vault. 12. The R-8 Zone in which the proposed facility would be located permits a maximum height of 30 feel or two-stories. The existing Puget Sound Energy poles in this area are 40 feet tall. TI1e new pole would be one inch less than 60 feet tall or almost 20 feet taller or 50% taller than the existing pole (and other poles in this area). 13. Monopole I facilities of less than 60 feet may be permitted ,·ia an Ad1ninistrative or Hearing Examiner Conditional Use. The proposed facility, which is one inch less than 60 feet is subject to that review authority (RMC 4-4-140). 14. Additional comments from the Director noted: "Based on conunents received, staff has concerns lhat the proposed location is not the most suitable location for a monopole I structure. The proposed monopole I would be substantially taller that (sic) the surrounding single family residences and the existing PSE power poles and is located immediately abutting the front yard of any existing single family residence." 15. The appellants noted that the ERC did not propose any specific mitigation to address the aesthetic impacts of the proposal and relying on the lack of such measure as a sign that the aesthetics were not a critical issue. Rather the ERC did address the aesthetics in the following statement: "Other than relocation, there does not appear to be any mitigation measures that could be implemented that would reduce the aesthetic impacts of the proposed monopole I structure and associated equipment cabinet." (Page 3 of 4, Environmental Review Committee Staff Report, August 13, 2007). T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page JO 16. The appellant also noted that the pole would not be replacing a shorter pole but that the pole would be taller. In fact, the existing pole could not physically support the proposed equipment and would be replaced with a more appropriate, supporting pole in the same location. 17. The appellant noted that they specifically complied with code, designed a tower less than 60-feet and that the view ofresidences would not change. The appellant specifically noted: "Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents." I 8. There was a letter from a real estate agent indicating that the proposed facility would adversely affect property values. While health concerns may not be used lo determine if a wireless facility is appropriately sited, the fact that potential purchasers might shy away from property located near such a facility could affect property values. 19. The real estate report the appellant provided does not provide a comparable situation in any respect. The report speaks of a facility located in a larger park and significantly separated from nearby residential structures and apparently fairly well screened by existing trees and vegetation. 20. Staff indicated that taller utility poles are located along Union Avenue not far from the proposed site and modifications to those poles could probably provide less aesthetic concerns. Any other location would be subject to appropriate review. 21. The appellant did initially consider an approximately 0.92 acre site ov..ned by Seattle but criteria ruled it out of consideration since one acre sites are the minimum necessary under the Code for "free-standing" cell facilities. CONCLUSIONS: l. The appellant has the burden of demonstrating that the decision of the City Official was either in e1Tor, or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious (Section 4- 8-11 O(E)(7)(b). The appellant has failed lo show any error. 2. Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co. v Washington Utilities and Transportation Commission, 69 Wn. 2d 472,478 (1966). 3. An action is likewise clearly e1Toneous when, although there is evidence to support it, the reviewing body, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. (Ancheta v Daly, 77 Wn. 2d 255,259 (1969). An appellate body should not necessarily substihile its judgment for the underlying agency with expertise in a matter unless appropriate. 4. Code covering tl1ese facilities does have some admittedly odd provisions or possibly contradictory provisions. Be that as it may, the Director reviewed this proposal under the Conditional Use Code criteria and found that it was inappropriate for this particular location. Unless the facility can be made aesthetically approp1iate, the Director was correct in his detem1ination. The Director keyed in on the aesthetic impacts and found that they could not be rectified. At the public hearing a number of concepts were discussed and it was clear that in the cu1Tent situation, the location of this pole makes screening impossible. The aesthetic impacts cannot be reduced. The Director did not reach an erroneous T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 11 conclusion. 5. No one is disputing that the appellant is attempting to serve his or her customers. What is in dispute is whether they have looked at other reasonable alternatives that might provide satisfactmy reception. The appellant focused in on this site for topographical reasons -it is a bit higher in elevation and relatively flat. The appellant apparently did not explore alternatives that might_ be suitable given a mix of additional shorter poles or taller poles spread out further. Staff noted that taller utility poles line Union Avenue and modifications to those poles would be less evident aesthetically. 6. The appellant is probably correct when they state that: "Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents." The City has created a potentially hard criteria to satisfy but that does not make the decision unreasonable or erroneous. The appellant only considered one other location, which did not comply with lot area size criteria but did not consider other public right-of-way corridors with taller existing power poles or possibly a series of shorter poles. While the appellant did not have to submit alternatives, the Director was, therefore, limited to consider the impacts of the proposed pole and site. The appellant went with only their favored choice, and the Director based on his reading of the code, made a supportable decision. 7. A reviewing body should not reverse the underlying decision unless there is compelling evidence that a mistake was made. This office cannot decide that a mistake was made. It was reasonable in terrns of the proposal, the site, the lack of any ability to screen the proposal and the absence of compelling evidence that this is the only tenable location. DECISION: The decision affirmed ORDERED THIS 15"' day of Januaty 2008 TRANSMlTTED THIS 15"' day of January 2008 to the parties ofrecord: Neil Watts Development Services Director City of Renton Renton, WA 9805 7 Chris Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 T-Mobile USA I 9807 North Creek Parkway Bothell, WA 98011 Ann Nielsen Assistant City Attorney City of Renton Mike Cady 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Chuck & Frnn Gitchel 440 I SE 3"' Place Renton, WA 98059 Kevin Foy T-Mobile USA, Inc. 12920 SE 38'" Street Bellevue, WA 98006 Kevin Durning 575 Andover Park W, Ste.201 Tubvila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4'" Street Renton, WA 98055 T-Mobile Monopole Appeal LUA-07-065, CU-A Ja11uary 15, 2008 Page 12 Newton & Joyleen Ellifrits 4218 SE 3"' Place Renton, WA 98059 Stephen Northcraft 4209 SE 3"' Place Renton, WA 98059 Victor Bloomfield/ Jennifer Sln1k 4418 SE 3"' Place Renton, WA 98059. John Megow 4408 SE 3"' Place Renton, WA 98059 Terry Clanfh 4503 SE 3' Place Renton, WA 98059 Tapke Velquist 4301 SE 3'' Place Renton, WA 98059 Gail & Anthony Knell 4425 SE 3"' Place Renton, WA 98059 Doug Mears 4308 SE 3"' Place Renton, WA 98059 James S. Dalgleish 407 Anacortes Avenue SE Renton, WA 98059 Chandra Lindquist 251 Vashon Avenue SE Renton, WA 98059 Lewis Sezto 10875 Rainier Avenue S Seattle, WA 98178 Greg Schoendaller 4408 SE 4 1" Street Renton, WA 98059 Michael, Debby & Hannah Elmess 4400 SE 3 '' Place Renton, WA 98059 Joel G. Smith 349 Anacortes A venue SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3"' Place Renton, WA 98059 Joel & Heidy Barnett 4309 SE 3" Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4'" Street Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3'" Place Renton, WA 98059 B<JI1nie Watson Keller Williams Realty 615 E Pioneer, Ste. 203 Puyallup, WA 983 72 TRANSMUTED TIUS 15'" day of January 2008 to the following: Van Slaughter 4409 SE 3'" Place Renton, WA 98059 _Alvin & Jacqueline Courtney POBox2653 Renton, WA 98056 John Ehle 406 Anacortes Avenue SE Renton, WA 98059 Roger & Vickey Berry 4405 SE 3'd Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3"' Place Renton, WA 98059 Cory & Lori Foster 4413 SE 3'" Place Renton, WA 98059 Pauline Blue 420 Chelan Avenue SE Renton, WA 98059 Joyce M. Crock 414 Chelan Avenue SE Renton, WA 98059 Jeremy & Jill Pee,y 4432 SE 4'1' Street Renton, WA 98059 John Worthington 4500 SE 2"' Place Renton, WA 98059 Mayor Denis Law Jay Covington, Chief Administrative Officer Julia Medzegian, Council Liaison Robert Van Home, Deputy Fire Chief Larry Meckling, Building Official Planning Commission Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Transpo1iation Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 13 Renton Reporter Pursuant to Title IV, Chapter 8, Section I OOGof the City's Code, request for reconsideration must be filed in writing 011 or before 5:00 p.m., Jnnnnrv 29. 2008. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors oflaw or fact, error in judgment, or the discovery ofnew evidence which could not be reasonably available at the prior-hearing may make a written request for a review by the Examiner within fourteen (14) days from the date ·of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take further action as he deems proper. An appeal to the City Council is govemed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m., January 29, 2008. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants will be required prior to approval by Citv Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication pem,its all interested parries to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would resuil in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. APPEND1X2 Kathy Keoll<er, Mayor November 6, 2007 Kevin Foy Zoning Specialist WFI 575 Andover Park West, Ste. 20[ Tukwila, WA 98i88 Hearing Examiner Frl!d· J, ~ailfman RE: Tc!Yfobile,M:onopole in SE 3«1 Place and Anac;rtes Ave SE Right-of-Way Appeal LUA 07-065, C:U-A; ECF . . . Dear Mr. Foy: ·:·.+ The ~j,peal he;iring on the abov~ referenced matter has beensrh~duled for Tu¢sday; l>eeei!lbet :rs; 2007 11t 9;00 iLm. The hearing.'Nill take place ifrth~ Ci)µi:icil Cbllrilliets on the seventhJ19or . of the' Renton (;ity Hali. The a4ch;ess is 1 055 s Grady W.ayinJlenton'. . If tl\is office can provide any further assistance, pleai~i~d~~s those cci~en~ in Writing ... Sincerely, · ·•. n{l;jt(;t1~J4n0 Nancy .Tho~pson ·· · Secretary to. Hearing Examiner City ofRinton El)closiite . • .. · . . . . . . cc:. Ami Ni~lsenAssistririt City Attorney· Neil Watts, Development Services Director StacyTucker; Development Services · All Patties of.Reeords .--'---l-0-55_S_o-uth_G_ra~dy-W-:.-ay.,..-""•11--en-':-ton,~W-. -•• -h-in-gt-on---98....,0 ... 55""'--(4-. 2.,..5)-4-30-'--65_1_5 --'c-'---. ·.~ n,;.. ·.,.: ·. ·· · · '· A~·-i-Ao·_oF T_.H.B.c~itVn · l-.:ll n.i.. ,..,.,....,.,.....,m ... t .... l';t'l\1/, ...,,...,,.....;.,( ..;~1 ·Vlo.e. N'W<t.........UlmAr OCT 2 9 200! City of Renton: RECEIVED Department of Planning/ Bnilding / Public Works Administrative Land Use Action CITY Gl,&RK'S Qff!Cli; Report & Decision: Project Name: Owner: File Number: October 15'1\ 2007 T-Mobile Monopole in SE 3rd Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 LUA07-065, CU-A, ECF Project Manager: Jill K. Ding I: /0 /'wr J6 Rrojeet, Description: The application is requesting Admillistrative Conditional Use Permit approval for the replacement of an existing 40,Joot tall wood power pole with a 59-11-inch wood power pole that would also junction as a monopole 1 structure. The monopole] and associated equipment vault would lJe located within the public right-of-way and is zoned Residential-8 (R-8) dwelling unit per acre. Single family residences surround the project site on all sides. The project site totals 104 square feet in area and would result in 32 cubic yards ofexcavations. Access to the site would be provided via Anacortes Avenue NE. Project,j:..Ocation: Northwest of 4401 SEJrd Place,,within,SE 3rd Place,and. Anacortes Ave SE right-of-way Conclusions by Development Services Director: Neil Watts 1) The subject proposal does ,wt comply with all of the policies and codes of the City of Renton, due to the inability of the . project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. . . . . 2J The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surroundingneighborhood that cannot be mitigated. The proposal does not comply with nil the Wireless Communication Facilities Conditional Use Criteria. 3) Unrebutted testimony was received from real estate professionals stating that the siting of a monopole 1 structure at the proposed location would reduce the property values in the vicinity. CC·. 1.-w.r,y Wov,eY1, C, +y I/ #y Nt, I t-Jo, tf:s, Dev. s,vc.-::, t),,t'cfw- 0·h,.e-v 1t1ck.-e-,-, ~,;, .s.,.vc.s 't:ovt vi, e. vJ o. (-fem I t, f-y c. I e./ lz Decision: The conditional Use Permit for the T-Mobile Monopole in SE 3rd Place and Anacortes Avenue SE right-of-way, File No. LUA07-065 CU-A, ECF is denied. Land Use Decision Appeal Process: Appeals of either the environmental determination (RCW 43.21.Co75(3), WAC '197-11-680) and/or the land use decision must be filed in writing on or before 5:00 PM · October 29,2007. T-Mobile Appeal Narrative: T,M@bile,hereby ap~als the decision made-by Development Services-Director in regards. to applicationLUA07-065, CU-A, ECF. T-Mobile will demonstrate the conclusions made forth should be reconsidered by a third party hearing examiner .. Upon review, it is T-Mobile's belief that the supplemental infonnation provided in this appeal and a chance to respond to public concerns should prove T-Mobile meets all standards/criteria set forth in City of Renton Code. Part One: Project Description/Background The proposal would include the replacement of an existing 40-foot tall wood Puget Sound Energy (PSE) distribution line pole with a 59 '-11 '' wood power pole that would a/so-serve as a monopole 1 structure supporting wireless cellularfaeilities. The proposed cellular antenna would be flush mounted and painted to match the color of the. wood power pole. The primary .function of the pole would remain as part of an electrical distribution system, the installation of the proposed wireless antennas would be a secondary.function. Associated ground equipment is proposed to be located out of sight, below grade in a 13 'x 4' 'x 8' vault with only the hatch door being the visible part of the vault. The vault hatch would be screened with landscaping as required by the ,City. The slte would be accessed via A?acortes Ave SE, which leads directly up to the access hatch proposed within the right-of-way. 'Once construction is complete, one vehicle trip per month is anticipated for maintenance purposes. The proposed project would result in the removal of 32 cubic yards of soil, which would be transported to an approved off-site location. Part Two: Administrative Land Use Action -Report & Decision · Type of Land Use Action: Administrative Conditional Use Permit Consistency with Conditional Use Permit Criteria: 1) Height of the proposed tower: The proposal would replace an existing40-foot tall PSE power pole.with a 59-11- inch tall wood power pole that would also house wireless cellular antenna for T-Mobile. The surrounding R-8 zoning designation has a maximum height of30feet and2 stories and the surrounding PSE power poles have a maximum height of 40 feet. Theproposed monopole 1 would exceed the maximum heigh/ permitted for a single family residence by a/most 30 feet and the existing PSE power poles by almost 20 feet and would therefore be the tallest structure in the neighborhood. T-MobiledlesJ!l0nse: Per RMC 4-4-140 as well as the R-8 zoning designation, monopole,1 structures are allowed via Administrative or Hearing Examiner Conditional Use Permit. A · monopole 1 structure has a height limit ofless,than.60-feet. T-Mobile's applicati.on,is for the 59-feet I I-inches which is minimal heightcrequired to meet the intended coverage:, area. Ordinance No 5286, Renton Municipal Code 4-2-080 Conditions Associated with Zoning Tables section A. Subject to the following conditions; 45. For Monopoles Proposed on Public Right-of-way; may be allowed via an administrative conditional use permit andright"-Oj-way usepennit. 46. Eligible for an administrative conditional Use permitprovided that the facility has a minimum·setback of one hundred feet (I 00').from·any adjacent residentially zoned,. parcel, otherwise a Hearing Examiner conditional use permit is required. T-Mobile Response: According to the Renton Municipalcco·de .. Monopole 1 structure&are-allowed, through administrative and hearing examinerscouditional use permits, . Monop9lect has,• heightd~finition ofanything ill!der 60-feet. TsMohlle d!lcisionto extend the util.ltypoie ' 19-feet 11-inches was considered to have leastamciuntcifimposing impact aesthetically while developing a,f@otprintcthat-does not exist:foi,T~Nlobi!e; T-Mobile is committed to bring service.where their customerswork•and,play, Customers rely on T-Mobile wireless servicesfor•work and recreational,:use;:,As T- Mobile continnesto add wireless technologi~,the client base continues·,to grow.· Clients are no longer.residing just in urban areas and,have expanded into suburbirand,, residentially zoned areas and expect a seamless·coverage, commuting, traveling; working, and recreational·.use. The applicant contends that the project site was selected in part due to the existing trees that would screen the proposed monopole 1 from the surrounding properties. Staff has reviewed the proposal, and it appears that there are no existing trees in the immediate vicinity of the proposed monopole 1 structure, and therefore no screening would be provided for the existing singlefamily residences located in the immediate vicinity of the project site. The trees .located in the existing neighborhood would provide some screening of the monopole 1 from the residences located along SE 4th St and SE 3rd St, but would not the residencies along SE 3rd Place and Anacortes Ave SE, which are in the immediate vicinity. T-Mobile Response: The site was considered because it does provide some screening for the residences along.SE 4th and SE 3r<1 St. Unfortunately, there was no site that could be identified meeting the criteria set forth from every residence. During the identification process, it was acknowledged that no free standing Monopole I would be permissible in this residential search ring. Code restriction on parcel size, setbacks, and allowable uses would not allow monopole structure solely built for wireless carriers. Limited to strictly collocating on PSE utility poles, typical tree foliage is limited due maintenance required for power-lines. Since utility poles were the only permissible option, T-Mobile identified this site to provide some screening. Please nete T-Mobile, as recognized by the City, is a secondary use on the PSE · utility pole in the Right-of-Way. Therefore is limitedin design aspects since final approval must meet PSE standards. 2) Proximity of the tower to residential structures and residential district boundaries . . The proposed monopole I structure would be located at the SE corner of the intersecti'on dj'Anacortes'Ave SE and ,SE: 3'd Pla~eiwithin an R-8 zone and abutting the front yard area of an existing single family residence located at 4401 SE 3"' Place. The project site is surrounded an all sides by single story single family residences. Staff has received numerous comments from the immediately abutting residents and surrounding neighbors expressing their displeasure with the proposal to locate a monopole 1 structure within their neighborhood. Their comments centered on health concerns, aesthetic impacts to their neighborhood, and the concern that their property values could be adversely impacted. Staff has reviewed these comments and concurs that the proposed monopole 1 structure· would have an adverse impact on the aesthetics ofthe existing neighborhood due to the lack of screening in the immediate vicinity of the project site and due to the location of the monopole 1 within the immediate vicinity of an existing single family residential neighborhood. Therefore, staffrecommends that an alternate location be identified that would have less of an adverse impact on an existing single family residential neighborhood. T-Mobile Response: T-Mobile understands the apprehension from the neighborhood. Growth in demand for wireless service, along with increased use by existing customers and the advent of next generation wireless device technologies overburdens the wireless network and can result in dropped calls and spotty coverage. The decision to place new wireless . facilities is driven by the needs and expectations ofT-Mobile's customers including: • Customer demand for uninterrupted wireless service throughout homes and neighborhoods; • Customer desire for next generation wireless device technologies; • T-Mobile's responsibility to expand capacity at existing sites (Uld plan ahead fo:r future customer demand; and • Government requirements for emergency services and Enhanced 9-1-1. T-Mobile uses specific technical criteria to determine if a new wireless facility is needed. Radio frequency{RF) conducts a thorough analysis oft-Mobile's wireless network, including: •. Network Statistics-Engineers review network data to scientifically measure overall network performance. The data includes the amount.of traffic at individual. wireless facilities, including the number of drop~.and blocked calls. • Customer Satisfaction Surveys and Feedback-Customers are aske1:i'about dead , spots, dropped·calls and coverage levels in their home and neighborhoods, • Drive Test-Field technicians, engineers and third-party researchers collect real- time statistics by canvassing service areas with wireless phones, mobile data computers, and analysis equipment to test network quality. Drive tests simulate the customer experience and provide critical signal strength and' call quality data. T-Mobile identified a candidate located at 400 Union Ave SE, Renton WA 98059. Application was made,after identifying the process would include a Hearing Examiner CUP·and Variance required; The variance was required because the parcel owned'by Seattle Public Utilities did not have a full one (1) acre size parcel. The.parcel was .92 acres. T-Mobile recognized the risk, but spent money in putting together the application because it best fit the intent of the code and the requirements at that time per zoning designation. A letter addressed by Neil Watts, Development Services· Director, stated the·,City would not allow the application because of the failed code requirement of a one{!) acre parcel size. After denying T-Mobile's original application (see attachment A) and in accordance with new ordinance (January 2007), the decision to scan the search ring and identify all possible candidates with new restrictions was given. Already established. by the denied application, the only candidates in the search that met code requirements were PSE utility poles. The lack of tree screening is compensated by T-Mobile's design to utilize an existing feature of the neighborhood. PSE poles are apparent through out the neighborhood. By attaching antennas on the pole it utilizes a structure already present. By extending the pole, it meets the coverage objective and requirements needed from T-Mobile RF and creates the least amount of impact on the neighborhood. Per code, R-8 zoning designation, monopole I structures are permissible (less than 60-feet) and T-Mobile's design creates the least amount of impact. Health concerns are not an issue and evidence provided by T-Mobile shows compliance with all local and federal standards for health safety. 3) Natm;e,.of Uses on, adjacent'imd nearby properties. The project site would be located within an existing single family neighborhood zoned R-8. The existing single family residences surrounding the project site are primarily single story residences. Staff has received numerous comments from the surrounding neighbors regarding their concerns with the proposal to locate a monopole I structure within their neighborhood. Most of the comment centered on health concerns, the aesthetic impact that the monopole I structure would have on their neighborhood, and the adverse impact that the monopole 1 structure would have on their property values. included with the comments were some assessments from real estate agents confirming the neighbors concerns that the proposed monopole I structure would reduce their property values. Based on the comments received, staff has concerns that the proposed location is not the most suitable location for a monopole I structure. The proposed monopole 1 would be substantially taller that the surrounding single family residences and the existing PSE power poles and is located immediately abutting the front yard area of an existing single family residence. T-Mobile Response: T •Mobile's application is designdd to follow the patametfil'li· elf-th~ Rlv.!C. '.fhe Code states the permissible height is less than 60-feet in R-8 designations. T'-Mobile needs the height to establish line of site technology to work with its established network. The difference is 19-feet I I-inches, the additional height of the utility pole is minimal to a brand new development else where in the neighborhood. The view the residences will have from 0-40-feet will not change. By providing some screening the maximum amount available in the area, T-Mobile has identified a location that has met. the code requirements. To establish a more detailed footprint and to meet customer needs, T-Mobile must create a Wireless Communication Facility for this area. After all the criteria'involved·in picking this specific location, the concerns will not disappear for alternate candidates, Any candidate considered or/will be considered in a residential designatiollwill meet the same opposition; just different residents. · '-~, T-Mobile has met code guidelines and is uncertain any residential applications will be accepted if this application is denied for the conclusions mentioned above. T- Mobile has read code, designed the application to meet standards set forth, filed a pre- application meeting to gain further information provided after a preliminary review by city employees. T-Mobile is unclear as to why this approval was not granted since all design standards are met and no indication was provided at the time of the pre-application meeting the design proposed would create aesthetic impact which would lead to a denied application. 4) Surrounding Topography The surrounding topography is flat. Due to the flat topography of the site, the prevalence of single story hemes, and the lack of trees in the immediate vicinity of the project site the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed into the surrounding environment. T -Mobile Response: The topography is. flat and part of the reason the site was chosen. Due the height restraint ofless than 60-feet by RMC, the direct-line-of-site technology would be limited if antennas were obstructed. Trees taller than 60-feet and in close proximity of the site would diminish the signal strength significantly. It was already established. by the previous denial that a 1 acre parcel was required unless the facility was placed .within the ROW. After an.analysis of the PSE polesT-Mobile came to the conclusion the application met the intent of the RMC. 5) Surrounding tree coverage and foliage There are existing mature trees in the surrounding neighborhood; however there are no trees within the immediate vicinity of the project site. The applicant indioates that no trees would be removed for the installation of the proposed monopole structure. The applicant indicates that the site was selected in part due to the existing mature trees located_ in !hf! surr.9!f1J<{111,: n(figl}borho9d, whicfi '1'.q1.fl4pr9vide ~creening of the · monopole Jrom ihe sl,/rroulidingneighborhood. However, there are no trees in the immediate vicinity; monopole I structure would be highly visible to the properties in the immediate vicinity. · In section number one, staff acknowledges "The trees located in the, existing neighborhood would provide some screening of the monopole I from the residences located along SE 4th St and SE 3rd St". Due to the limitations set forth by the design standards, T~Mobile could not identify a site that meet screening from all residences. Due to the nature of developing a site, T-Mobile will create some presence in the neighborhood; The steps T-Mobile,has .. taken identifies the need and creates a facility with the least amount of impact. . . Identifying another PSE pole will still have an effect of those residences abutting the pole. 6) Design of the tower, with,particular reference to design ,characterii.tics. that have the effect of reducing or eliminating visual obtrusiveness; The applicant contends that the proposed monopole 1 structure has,heen designed to reduce its impacts on the surrounding single family residential neighborhood. The project site was selected due to the existing mature trees in the surrounding neighborhood that would screen the monopole from the surrounding neighborhood. The monopole would he made of wood and replaces an existintrwood PSE power:pole; tf:e · antennas would be flush mounted and painted to match the color oj the pole .. The equipment cabinet would be installed underground in a vault. Staff has received comments from the surrounding neighborhood. ,Someof the concerns cited by the neighbors include aesthetic impacts from having a 59,foot I I-inch tall monopole I structure installed within their single family residentia/cneighborhrmd. The proposed monopole would abut the front yard area of a single family 1'esidenee· and·. is adjacent (across the street) from several other residences, Staff has concerns"that the proposed location may not be suitable for a monopole 1 structure, due to its location within an existing established single family neighborhood and the aesthetic impact it would have on the neighborhood and the lack of any mitigation that could be required to reduce the impacts. The proposed monopole would be 59-feet I-inches in height, which is almost 30 feet taller than the maximum height permitted in the R-8 zone and.·almost 20 feet taller than the existingPSE power poles. There are no trees In the immediate vicinity to screen the monopole from the properties abutting and/or adjacent to the project site. T-Mobile Response: T-Mobile proposed theapplication to the standards set<forthin RMC,· The code states any R-8 zoning designation, can have up to less than,"60', monapole".1-s~ture, · The code dictates the maximwn height a WCF can apply for. In this insiance, T-Mobile RF engineers need the:mllll;irnunl'height state<Hn,the code-for the technology-to funeti@n properly. Trees and foliage are limited due to the fact the utility pole is in the;ROW, T. Mobile's considers the application using a utility pole as a form of screenmgsitselfr Tree screening of monopoles is usually required to conceal the new WCF in thec·area:,:;Since PSE poles are abundant in this neighborhood, T-Mobile will utilize the,existing,. characteristics of the neighborhood to screen the development of the new·W6F. 7) Proposed Ingress and egress 8) Potential noise, light and·glaire impacts T-Mobile Response: No further comment provided for numbers 7 and 8. 9) Availability of suitable existing towers and other structures Limited infonnation was provided by the applicant regarding alternate towers and structures. A previous attempt was made to install a monopole I structure on a Seattle Public Utilities pump station facility located at the terminus of Union Ave SE, south of SE 4lk St. However, the application was rejected by the City as the proposed project site did not meet the applicable criteria for permitting a monopole 1 facility in an R-8 zone. The proposed monopole would have need located closer than I 00-feet from a residential property and the size of the property was less than I ac,:e. _No other information regarding other alternative sites was provided. T-Mobile Response: As mentioned and provided, T-Mobile made application for an alternative site and was denied. The denial stemmed from being .08 of an acre short of the required 1 acre. T-Mobile addressed the situation and applied for a variance on the .08 acre short since it was close proximity in size. T-Mobile believed the intent of the code was to find parcel big enough to support a WCF and being only 3,485 square feet short of an acre, a variance would be granted. After getting.rejected;T-Mobile followed the RMC and all of the design requirements set forth in the WCF section and the requirements set forth from-the R·8 zoning designation. T-Mobile's only option was to consider PSE utility poles within the search ring. 10) Conformance with the Comprehensive Plan, Zoning Code and other ordinances Policy U-100-Require that the siting and location of telecommunications facilities he acc:innplished in a mallller th11tminimizes adverse hnpacts on the envirolllllent and adj a cent land uses. The proposed monopole 1 structure has been sited inan existing single family. residential neighborhood that is zoned R-8. Staff has received numerous comment letters from the surrounding neighbors expressing concern that the proposed facility may - negatively affect their health, adversely impact the aesthetics of the neighborhood, and reduce their property values, The applicant contends that efforts have been made to reduce the impacts of the monopole on the surrounding neighborhood, by replacing the existing wood power pole with another, taller wood power pole,flush mounting, the antennas on the pole andpainting them to. same color as the pole, and installing the equipment cabinet underground in a vault. It does not appear. that the intend of thispolicy is met as the measures proposed to diminish the appearance of the facility would not accomplish that. Adjacent land uses would be impacted by the siting of the facility in the established residential neighborhood. T-Mobile Response: By using the characteristics of the existing PSE utility poles located throughout the neighborhood, T-Mobile contends that it has limited the adversely impact on the aesthetics of the neighborhood. If a new free standing monopole built only for wireless carriers were sited in the neighborhood it would create a significant impact Vaulting the radio cabinets keeps the associated radio equipment out of public site and underground, thus creating almost no impact from the radio cabinets. Painting the antennas to match the pole in color and flush mounting them to the utility pole eliminates the impact of antennas horizontally off the pole and creating.attentien by being discolored, fro111 the PSEpole. Policy U-101-Require that cellular communications structures and towers be sensitively sited and designed to diminish aesthetic impacts, and be collocated on existing structures· and,towers wherever possible and practical. The applicant contends that the proposed location was chosen to maximize the use of existing trees to screen the monopole from the surrounding residential neighborhood. No trees would be removed as a result of project construction. There are existing trees in the surrounding neighborhood; however staff has concerns regarding the lack of screening available for the existing residences located in the immediate vicinity as there are no trees in the immediate vicinity of the proposed monopole. The proposed antenna would be collocated on an existing PSE power pole that would have to be replaced with a taller pole. It does not appear that the intent of this policy is met as the proposed monopole I structure would not be sensitively sited, an alternate location that is not immediately surrounded by single family residences would be preferred. T-Mobile Response: We believe that this proposal is sensitively sited and that it is the least impactive alternative available to T-Mobile under the code. It is also making use of existing structures. Therefore, it is implementing policy U-101. As mentioned before, technical data is researched for new WCFs. T-Mobile shows a need for a new facility with set parameters. Engineers examine existing wireless facilities in the search area to determine if they can be expanded. Using existing facilities is usually the most desired option. Wireless signals travels by line of sight, large buildings, hills and tall trees can limit signal strength. Natural geographic features, structures and vegetation are critical factors that often dictate necessary locations for new wireless facilities. Local zoning and building codes guide where wireless facilities.can.be built and impose specific requirements for location, height and aesthetics. T-Mobile gives priority whenever possible to siting new wireless facilities in industrial, commercial and mixed-residential areas. However, customers increasingly use their wirele;s devices at home, making it necessary to place wireless facilities in and around residential neighborhoods. The original application emphasized more screening due to its placement within the parcel and SUITOunding vegetation. It called for a new monopole structure I to be screened by existing trees on the parcel owned-by Seattle Public Utilities. T-Mobile's thought process for applying on ·a parcel that doesn't meet the one (1) acre.requirement (parcel was .92 of an acre) but screens more adequately would be considered for approval. 8ince the application didn't get submitted due not meeting the code requirements, T-Mobile searched for other possible candidates. PSE poles wer.e the only option T-Mobile considers to meet all requirements. Collocatin~; on an existing PSE pole (swapped out) and:adding. the necessary height within codt, limit creates thele!lllt amount of impact possible. · · · Please see our SEP A determination of non-significance (Attachment B). B) Zoning Code C) DeveloJ1ment standards T-Mobile Response: T-Mobile does hot have further-comment on the zoning code and development standards. T-Mobile Response to the Conclusions: Thu City ofRenton's explanation for denying T-Mobile's application is not substantiated by the record or the requirement.of the Code. Conclusion 1 states the inability of the IJroject to mitigate aesthet(c imp~~ ~n \he surro!:1114i1!& sip:glef~ily residential neighborhood'. . . . By utilizing the characteristics (PSE poles) of the neighborhood T-Mobile limits aesthetic impact on the neighborhood. Further indicationthat the impacts are minor is the issuan<:e of the DNS from the environmentalteviewboard. The total impact/footprint T-Mobile will have on this application different from whatis existing now is the 19-feet 11-inches extra in height on thePSE pole and a hatch doorin the ground. Th,~ trade off of having in-house reception for new device technologies, . emergency services, and Enhanced 9-1-1 is les!.than,2Q' feetofwood pole,, The .. customers have dictated the need for additionallseamiess co'verage and T-Mobile is trying to provide coverage.while following the RMC1s · To create•a footprint in a residential neighborhood by changing the height of a PSE pole is the least amount of impact possible. Conclusion 2 states the proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on surrounding neighborhood that cannot be mitigated. City also states the proposal does not comply with all the wireless communication facilities conditional use criteria. Per RMC 4-4-140 F (2) Visual Impact: "Site location and development shall preserve the pre-existing character of the surrounding buildings and land uses and the zone district to the extent consistent with the function of the communications equipment. Wireless communication towers shall be integrated through location and design to blend in with t!J..e e;dsting cwac/eristics of the site to the extentpmctical. Existin~.ol'}-site . ' -. . ... ,'. ' . ' -· . .. ~--.. vegetation shall be preserved or improved, and disturbance of the existing topography · shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area" . . T-Mobile'·s application is preserving the pre-existing character of the surrounding neighborhood as much as practical. The additional 19-feet 11-inches required in height on the PSE utility pole is the only change the neighborhood would notice. Any ;new monopole I structure would impact the neighborhood significantly by building a 59-foot I I-inch pole that does not blend into the neighborhood. Even if screened.by trees the section of monopole where the antennas are located would be noticeable due to the line of sight needed to work with the existing network system. !- Mobile believes utilizing the utility pole creates the least amount of impact. Conclusion 3 by the City states unrebutted testimony was received from real estate professionals stating a loss in property values. T-Mobile was never given an opportunity to provide testimony or supporting documention to address this testimony. The letters were seen by T-Mobile but not considered credible since there was no supporting documentatioh or.studies --rather only opinions of realtors and riot appraisers. This criteria is not in the land use code and therefore we did not perceive it to be a valid · argument for denial. Provided in attachment C, is a property value report done by third party assessor for a different T-Mobile site. T-Mobile would have addressed any concerns by the City on property values if the City had requested any additional information. The letters submitted and on file show an emotional attachment from the realtors expressing their concerns. Tile realtors all live within the neighborhood and are connected to the application. Please review documentation provided by T-Mobile on property values. Based on the content of the application and sensitive consideration given to aesthetic impacts by our site proposal, we.believe this project should receive approval. Failure to approve this sitewould eliminate all potential sites within the search area and,result in a barrier to entry (Telecomm Act 1996). T-Mobile would have a significant coverage gap in service with no effective means of serving this area.utilizing existing technology. We therefore respectfully request that the administrative decision be overturned. ENVIRONMENTAL REVIEW COMMITTEE MEETING NOTICE February 4, 2008 To: Gregg Zimmerman, Planning/Building/Public Works Administrator Terry Higashiyama, Community Services Administrator I. David Daniels, Fire Chief Alex Pietsch, EDNSP Administrator From: Jennifer Henning, Development Planning Meeting Date: Monday, February 4, 2008 Time: 3:00 PM Location: Sixth Floor Conference Room #620 Agenda listed below. Tall Firs Lot 11 Variances (Petzel) LUA07-107, V-A, V-A, V-A, ECF Application for Environmental Review for the development of a single-family home on Lot 11 of Tall Firs at Honey Creek. The project site is located in the R-8 Zone. The site has critical slopes and abuts Honey Creek, a Class 2 stream. In order to build the single-family home, three adminstrative variances are requested; a reduced front yard setback, building on a critical slope, and a reduction in the stream buffer. There are no wetlands onsite. ford-Niemi Preliminary Plat (Henning) LUAOB-001, PP, ECF The applicant has requested subdivision, by means of the Preliminary Plat process, of two parcels of land located on Talbot Hill in Renton. The two parcels total 94,960 sf in area and would be divided into 10 lots and 1 tract. The lots would be suitable for future development for single-family residential structures. The track, consisting of regulated slopes, would be dedicated as a Native Growth Protection Area. The project is in the Residential Single-family Comprehensive Plan designation, which is implemented by Residential 8 zoning. !:felipad Zoning Code Amendment LUAOB-004, ECF (Conkling) Amend the zoning code to allow helipads as an accessory use in the R-8 zone with a conditional use permit. cc: 0. Law, Mayor J. Covington, Chief Administrative Officer S. Dale Estey, Economic Development Director® D. Pargas, Assistant Fire Marshall N. Watts~ P/8/PW Development Services Director ® if:. Kaufman; Hearing Examiner B. Van Horne. Deputy Fire Chief® J. Medzegian, Council P. Hahn, P/B/PW Transportation Systems Director R. Lind, Economic Development L. Warren, City Attorney ® STATE OF WASHINGTON, COUNTY OF KING } AFFIDAVIT OF PUBLICATION PUBLIC NOTICE Linda M Mills, being first duly sworn on oath that she is the Legal Advertising Representative of the Renton Reporter a bi-weekly newspaper, which newspaper is a legal newspaper of general circulation and is now and has been for more than six months prior to the date of publication hereinafter referred to, published in the English language continuously as a bi-weekly newspaper in King County, Washington. The Renton Reporter has been approved as a Legal Newspaper by order of the Superior Court of the State of Washington for King County. The notice in the exact form annexed was published in regular issues of the Renton Reporter (and not in supplement form) which was regularly distributed to its subscribers during the below stated period. The annexed notice, a: Public Notice was published on December 8, 2007. The full amount of the fee charged for said foregoing publication is the sum of $79.80. '''""""'11, ,,, y.'< D,q ,,,, / , /)vi 1-Jl · §_ ~ '"""""' (,s,,,.__1 ,, ?lZJ:Ctf /// // t-•1 = -t-"~_,.,,~s,ot,,/.'f,,,,,,.., ',, Cc' --~.,. T ~.o ,, u• . I:inda M. Mills 3 fo +O A,i,.,_ 1,",, Legal Advertising Representative, Renton Reporter ':; f O -• -~ ~ Subscribed and sworn to me this 12th day of December, 200~ ~ \ '°11 8 1..," j: ;,. -Y...,_ 1,/0.19 \'I.-· 'l ,e._ 11 111 -,,,,' • ,, ,. 0 l\1111,\\\'' '·,' ,,, f:' '"'"' ' ,,, "~"' e State of Washington, Residing 111 " · NOTICE OF PUBLIC HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON A Public Hearing will be held by tht: Renton Hearing Examiner in the Couneil Chambers on the seventh floor of Renton City Hall, 10.'i:":i South Grady Way, Renton, Washington. on December 18, 2007 at 9:00 AM to consider the following petitions: T-Mobile Monopole in SE 3rd Place R-0- W Appeal LUA07-065, CU-A. ECF Location: Within SE 3rd Place and Anacortes Avenue SE R-0-W, adjacent to 440 J SE 3rd Place. The applicant is arpcaling the denial of a Conditional Lse Pem1it Cor the installation of a )9- foot J ]-inch monopole I wuc!ttre and as~lx:imed equipment vault. The propo~al would have been wirhin the right-of-way ahuning a lk~1,k:ntial -8 (R-8) dwdling uni I per acre zone. The project site total~ I 04 square feet in area. All interes1ed persons are invited to he present at1hc Public Hearing to ex.press their opinions. Questions shoultl be directed Lo the Hearing Examiner at 425-430-6515. Published in the Renton Reponcr on December 8, 2007. #27065 .---.. '-.;,i' .. , ' , '.-> ~~·· 'i', February I, 2008 APPEAL FILED BY: Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. RE: Appeal of Hearing Examiner's decision dated January 15, 2008, regarding conditional use awilication for a wireless communications facility, known as the T-Mobile Monopole; SE 3 Place and Anacortes Av SE R-0-W. (File No. LUA-07-041 CU-A, ECF) To Parties of Record: Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the hearing examiner's decision on the T-Mobile Monopole within the SE 3'd Place and Anacortes Av SE right-of-way Conditional Use Permit application has been filed with the City Clerk. In accordance with Renton Municipal Code Section 4-8-1 JOF, within five days ofreceipt of the notice of appeal, or immediately after all appeal periods with the Hearing Examiner have expired, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to support of their positions regarding the appeal within ten (10) days of the date of mailing of this notification. The deadline for submission of additional letters is by 5:00 p.m., Monday, February 11, 2008. NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will be reviewed by the Council's Planning and Development Committee at 3:00 p.m. on Thursday, February 21, 2008, in the Council Chambers, 7'h Floor of Renton City Hall, I 055 South Grady Way, Renton, Washington 98057. The recommendation of the Committee will be presented for consideration by the full Council at a subsequent Council meeting. Copy of the appeal and the Renton Municipal Code regarding appeal of Hearing Examiner decisions or recommendations is attached. Please note that the City Council will be considering the merits of the appeal based upon the written record previously established. Unless a showing can be made that additional evidence could not reasonably have been available at the prior hearing held by the Hearing Examiner, no further evidence or testimony on this matter will be accepted by the City Council. For additional information or assistance, please call me at 425-430-6510. Sincerely, Bonnie I. Walton City Clerk Attachments City of Renton Municipal CL _ "itle IV. Chapter 8. Section 110 --Appea . 4-8-11 OC4 The notice of appeal shall be accompanied by a kc 111 accordance with RMC 4-1-170. the fee schedule of the City. (Ord. 3658, 9-13-82) 4-8-11 OF: Appeals to City Council -Procedures 1. Time for Appeal: Unless a specific scct10n or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body, any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council, upon a form furnished by the City Clerk, within fourteen (14) calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: Within five (5) days of receipt of the notice of appeal, the City Clerk shall notify all parties ofrecord or the receipt of the appeal. 3. Opportunity to Provide Comments: 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. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members 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. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: No public hcanng 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 paiiy offenng the evidence that the c, idence 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 shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription oC the hcanng record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizing new or additional evidence or testimony, and a remand to the Heanng Examiner for receipt of such evidence or testimony, it shall be presumed that no new or mlditional evidence or teslimony has been accepted by the City Council, and that the record before the City Council 1s identical to the hearing record before the Hearing Examiner. (Ord. 4389, 1-25-1993) 6. Council Evalnation Criteria: 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. 7. Findings and Conclusions Required: It~ upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-1-0SOFJ, 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. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-l-050F2 and F3, and after examination of the record, the Council determines that a substantial error 111 tcrct or law exists in the record, or that a recommendation of the Hearmg Exam1m,r 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. 9. Decision Documentation: In any event, the decision of the City Council shall be in writ111g and shall specify any modified or amended findings and conclusions other than those set forth m the report of the Hearing Examiner. Each material find111g shall be supported by substantial evidence in the record. The burden of proof shall rest with the appellant. (Ord 3658, 9-13-1982) 10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection GS of this Section. (Ord. 4660, 3-17-1997) February I, 2008 CERTIFTCA TE OF MAILING ST A TE OF WASHINGTON ) ) § COUNTY OF KING ) BONNIE I. WAL TON, City Clerk for the City of Renton, being first duly sworn on oath, deposes and says that she is a citizen of the ljnited States and a resident of the State of Washington, over the age of 21 and no! a party to nor interested in this matter. That on the I st day of February, 2008, at the hour of 5 :00 p.m. your affiant duly mailed and placed in the United States Post Office at Renton, King County, Washington, by first class mail to all parties ofrecord, notice of appeal filed by S Linda Atkins, Attorney of Davis Wright Tremaine, Representative for Michael Cady, T-Mobile USA, Inc. of the Hearing Examiner's recommendation regarding the T-Mobile Monopole; SE 3rd Place and Anacortes Av SE R-0-W. (File No. LUA-07-065 CU-A, ECF) Bonnie I. Walton, City Clerk SUBSCRIBED AND SWORN TO BEFORE me this 1st day of February, 2008. I · . ' ( ! . \ \ \ / """' -~ · ~ 1 ~-\ hr,_ Cyntfiialt1«6ya ' ----- Notary Public in and for the State of Washington, residing in Renton My commission expires: 8/27/2010 $1 a. I;; Ut st i £. QA . li. I ii L. ·"""'"'"''"' "·£ L /J CITY OF RENTON City Clerk Division 1055 South Grady Way Renton, WA 98057 425-430-6510 D Cash ~ Check No._\~d_d_"_J_'--_j _ gpopv Fee y\Appcal Fee Description: l 1 el 1\ -Gl .J.J.o.5,-{\ , ,/.J .(1cJ...c. t ;;; ILZUW ih L. 4 iii Receipt 1030 D Notary Service D _________ _ ' / l 1, /i ~ { 1" /-, 37 l'I /7 '1 •1 /1 Ci.lerk's Office Distribution List Appeal, T-'lrobile Monopole in SE 3rd Place R-0-W File No. LUA-07-065 CU-A, ECF February 1, 2008 Renton Renorter Citv Attorney Larrv Warren Citv Council * Julia Medzegjan EDNSP/Economic Development Alex Pietsch"' Rebecca Lind/ .Fire Marshal Mark Peterson/ Fire Dent/Fire Prevention Robert Van Home ,./ Planning Commission Judith Subia/ Parties of Record** ( see attached list) PBPW I Administration Gre!!!! Zimmerman/ PBPW/Development Services Neil Watts/ Jennifer Henning/ Stacy Tucker/ Jill Ding,/ Karyren KittricV Janet Conklin / Larrv Meckling ...,- PBPW /Transportation Services Peter Hahn/ PBPW/Utilities & Tech Services LvsHomsbv/ LUA-07-065 • *City Clerk's Letter & POR List only Chris Conaxis 575 Andover Park W, Ste. 201 Tukwila, WA 98188 Kevin Foy Wireless Facilities, Inc. 575 Andover Park W, Ste: #201 Tukwila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4th Street Renton, WA 98055 Van Slaughter 4409 SE 3rd Place Renton, WA 98059 Alvin & Jacqueline Courtney PO Box 2653 Renton, WA 98056-0653 John Ehle 406 Anacortes A venue SE Renton, WA 98059 Roger & Bickey Berry 4405 SE 3rd Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3rd Place Renton. WA 98059 Cory & Lori Foster 4413 SE 3rd Place Renton, WA 98059 Pauline Blue 420 Chelan Avenue SE Renton, WA 98059 Mike Cady 575 Andover Park W, Ste. 201 Tukwila, WA 98188 T-Mobile USA 19807 North Creek Parkway Bothell, WA 9801 1 Newton & Joyleen Ellifrits 4218 SE 3rd Place Renton, WA 98059 Stephen Northcraft 4209 SE 3rd Place Renton, WA 98059-5144 Victor Bloomfield & Jennifer Skuk 4418 SE 3rd Place Renton, WA 98059 John Megow 4408 SE 3rd Place Renton, WA 98059 Terry Clangh 4503 SE 3rd Place Renton, WA 98059 Tapke Velquist 4309 SE 3rd Street Renton, WA 98059 Gail & Anthony Knell 4425 SE 3rd Place Renton, WA 98059 Doug Mears 4308 SE 3rd Place Renton, WA 98059 Kevin Durning 575 Andover Park W, Ste. 201 Tukwila, WA98188 Chuck & Fran Gitchel 4401 SE 3rd Place Renton, WA 98059 Lewis Sezto 10875 Rainier Avenue S Seattle, WA 98178 Greg Schoendaller 4408 SE 4th Street Renton, WA 98059 Michael, Debby, & Hannah Ekness 4400 SE 3rd Place Renton, WA 98059 Joel G. Smith 349 Anacortes Avenue SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3rd Place Renton, WA 98059 Joel & Heidy Barnett 4212 SE 3rd Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4th Street Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3rd Street Renton, WA 98059 . . ' Joyce M. Crock 414 Chelan Avenue SE Renton, WA 98059 Jeremy & Jill Peery 4432 SE 4th Street Renton, WA 98059 Linda Atkins Davis Wright Tremaine 777 108 1h Ave NE #2300 Bellevue, WA 98004 James S. Dalgleish 407 Anacortes A venue SE Renton, WA 98059 Chandra Lindquist 251 Vashon Av SE Renton, WA 98059 Ann Nielsen, Assistant City Attorney City of Renton Bonnie Watson Keller Williams Realty 615 E Pioneer ste: #203 Puyallup, WA 98372 John Worthington 4500 SE 211ct PL Renton, WA 98059 Neil Watts, Dev Services Dir. City of Renton AFFIDAVIT OF SERVICE BY MAILING ST ATE OF WASHINGTON ) ) ss. County of King ) Nancy Thompson being first duly sworn, upon oath, deposes and states: That on the 15th day of January 2008, affiant deposited via the United States Mail a sealed cnvelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. Signature: SUBSCRIBED AND SWORN to before me this / c;:b day o(_),~-~---, ., . ~ , 2008. Application, Petition or Case No.: l No ary Public.in and for the St Residing at L c,, "'-v, T-Ylobile Monopole Location Appeal LUA 07-065, CU-A, ECF of Washington , therein. The Decision or Recommendation co11tai11s a complete list of the Parties of Record. OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND RECOMMENDATION APPELLANT: January 15, 2008 T-Mobile Monopole in SE 3•d Place Right-of-Way Appeal LUA-07-065, CU-A, ECF PUBLIC HEARING: After reviewing the Appellant's written requests for a hearing and examining available information on file, the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summa~y of the December 18, 2007 hearing. The legal record is recorded on CD. The hearing opened on Tuesday, December 18, 2007, at 9:01 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Staff file containing the original appeal letter and site information, by reference, letters from a number of neighbors, Mr. Watt's denial, and the letter establishin!! this anneal date. Parties Present: Neil Watts, Development Services Director, City of Renton Ann Nielsen, Assistant City Attorney Kevin Foy, Appellant Chris Conaxis, Representing the Appellant, 575 /\ndo,cr Park W, Ste. 201, Tukwila, WA 98188 Michael Cady, Zoning Supervisor for T-Mobile, 575 Andover Park W, Ste. 201, Tukwila, 98188 Kevin Durning, RF Engineer for T-Mobile, 575 Andover Park W, Ste. 201, Tukwila, WA 98188 Testimony began with: Chris Conaxis stated that T-Mobile was here to bring excellent coverage to their customers and their needs. There is a greater need in rural areas and residential neighborhoods. Factors that identify new sites and candidates include computer modeling, input from customers, competition from other carriers, demand for "911" emergency coverage, new types of home construction and population increases in the area, overall system performance, as well as other considerations. A gap in T-Mobile's coverage has been discovered and a location T-Mobile Monopole Appea_ LUA-07-065, CU-A January 15, 2008 Page 2 has been found that is within the constraints of the code that will serve to meet the customer's needs. This plan is designed to bring coverage to residences east of Union Avenue at SE z•d Place to the south at SE 4"'. These targeted areas are very small. (map referred to as Tab 6 in the booklet) T-Mobile applied for application, went through all the necessary processes and was issued a denial. The information provided was a chronological order of events, starting at Tab 7 with the request for pre-application meeting with the City to discuss the proposal. Mr. Conaxis continued through the booklet reviewing all the pertinent information in the process leading to the denial of the application. Aesthetics were not brought up during the review process and yet down the road it ends up being one of the major factors that the City is relying on for the denial of the project. On October 8 they received notice from the ERC and on October 15 they received the staff report, which was a complete reversal of the City's position from May/June and the Pre- Application Notice. Part of Tab 4 is the analysis provided by their radio frequency engineer, which discusses how they arrived at this facility as well as some of the alternatives that were reviewed. Some of the other locations required the changing out of an existing utility pole for a new one slightly taller to accommodate the antennas. Tab 2 shows the area without coverage and the second map shows the facility with coverage. It is not a larger area that it covers. T-Mobile contends that under the present code, these monopole facilities are able to be located in this zone up to 60 feet. T-Mobile is not proposing a monopole 1, which is defined in the code as a wireless communication support structure, consisting of a free-standing support structure less than 60 feet in height to support wireless communications, antennas and connecting appurtenances. They, instead, are proposing an attached wireless communication facility, which would be utilizing an existing structure, granted the existing structure would have to be removed and replaced for a stronger pole. They consider it an existing structure since one currently exists in the exact spot where the communication tower would be located, the pole would continue to serve it's primary purpose as an existing utility pole, the wireless antennas would serve as a secondary function to that pole. T-Mobile does agree that the top portion of the pole would not be able to be screened, to work effectively, the pole does need to protrude above ground and above the trees in order to function properly. Any tree that was in front of the antenna would not allow the wireless antenna to function properly, the wireless function cannot work through the trees, it must be above them. The Examiner stated that aesthetics is the issue and to make the antenna aesthetic the antenna would need to be screened and if you screen it the antenna becomes useless. That is the dilemma. Mr. Conaxis stated that that was correct, the top half of the pole could not be screened from a functionality standpoint. There are trees in the area that are acting and a backdrop or screen from certain angles, but the top 20 feet of the pole is there for functionality purposes. The proposed antennas in this case would be flush mounted to the pole, they would not protrude from the pole. The antenna is approximately 6 feet in length and has a winged shape. The antenna will be flush mounted and painted to match the color of the pole. The equipment that runs the antenna will be installed in an underground vault for aesthetic purposes so the general public will not see the equipment. Upon approval of the project, the City has agreed to approve the underground vault activity. T-Mobile would be willing to enclose the antenna in a canister. Michael Cady stated that they had looked at false trees to minimize the looks of the antenna. What they have found is that when you are close to those trees, they are very ugly, you can tell that they are false. The only time they work well is when there is a site that is quite a distance from anyone viewing it. Secondly the utility T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 3 company has never authorized a pole that is designed to look like a tree because their primary function is as a utility pole and that function has to continue. The report states that there is not an impact on property values. Chris Conaxis commented that the false trees, if they were put on a comer where a utility pole currently exists, the false tree would stand out like a sore thumb. !fit is in a full stand of trees to make it look like an existing tree tends to work better. They had proposed another alternative of placing the pole within a cluster of trees and that proposal was denied by the City, because of that they had to look for other sites. Under the staff report, the second item that the City contends is that the proposal does not comply with the Comprehensive Plan for utility elements. The neighborhood is currently dominated by 30-40 foot utility poles, T-Mobile is taking an existing structure and utilizing that existing structure by raising the height rather than bringing a new pole into the neighborhood. It further states that the proposal does not comply with the Communications Facilities Conditional Use criteria. On the previous page under Conditional Permit Review it states that the applicant's conditional use pern1it application complies with the requirements for the information necessary for the conditional use permit review. A third item under the conclusions states testimony was received from real estate professionals stating that the site of monopole I structures at the proposed location would reduce the property values in the vicinity. T- Mobile contends that they were never given an opportunity to provide rebuttal to that testimony. That rebuttal was submitted with the appeal documents. Under Tab 11 on third page there is talk about Ord. 5286 under RMC 4.2-080 states that monopoles proposed on public right-of-way may be allowed via Administrative Use Permit in a Right-of-Way Use Permit, that is what they were told in their pre-application meeting and that is the process they followed. It further states that the monopole must be 100 feet setback from any adjacent residentially zoned parcel, otherwise a Hearing Examiner Conditional Use would be required. This facility is not l 00 feet from a residentially zoned property, they contend that the City may not have had the authority to make a decision on this application. Neil Watts quoted from RMC 4.2-060p, which states this project would come under the Administrative Use Permit process. He further went on to explain where the I 00-foot setback applied. Chris Conaxis stated that this was not a Monopole I, rather it is an existing structure. The Examiner stated if it is not a Monopole I then this hearing should probably not be taking place. He further asked for a definition of a Monopole l. Neil Watts stated that it is a freestanding support structure less than 60-feet in height. This is an existing structure. Chris Conaxis stated that they started looking at this location prior to May 2006. Tab 13 contains the letter and application that T-Mobile turned in for a Monopole 1 on the property at 400 Union. This did not meet the size criteria, the parcel was .92 acre and it had to be one full acre. They were not even given the ability to request a variance for that site. They were told that a new code was in the works and that it would be favorable for utility poles in the right of way and that's where they changed their direction and started looking for suitable options. T-Mobile Monopole Appea1 LUA-07-065, CU-A January 15, 2008 Page4 Kevin Durning. 575 Andover Park W, Ste. 201, Tukwila, WA 98188 stated that the coverage from this particular location would be approximately a half-mile. They are the predominate server in this area, there goal is to stay out of Maple Valley with this particular site and shoot more to the north. The height and location of trees will affect the service areas. In the winter coverage is usually better because of the deciduous trees. If the tree is within ten or twelve feet it may cause problems, the beam is not allowed to develop it is basically stopped. Chris Conaxis showed a map showing an overview of the neighborhood with the location of the facility marked with a red dot. If this particular utility pole is not acceptable, how would any other utility pole on any of the surrounding streets meet the code? Union Street was inspected, from this location to Union they would lose 30- 40 feet in elevation, and again once on Union they have the same problem, where will they be able to put their ground equipment. There is a sidewalk and no place to accommodate the cabinets above ground or underground. They have been researching this project for almost 3 years and have identified one property that appears to meet the needs of the code and after months of work, received a denial. The Examiner asked if a taller tower located in the area of SE 128"' and Cemetery Road which is more an arterial and more commercial oriented area, would that serve the area geographically? Kevin Durning stated that they do have several locations in and around that particular area, they have not looked in that exact area. Taller is ambiguous, they can serve anything if they have a tall enough tower. He is not sure that it would be approved to be a taller tower in that area. As io what competitors are doing in this area, he did not know, different bands require different frequencies. Ann Nielsen stated that the October 8, 2007 Environmental Committee Report, issued by the City, under No. 3 on page 3 of 4 it specifically lists a category of aesthetics. The conclusion states that other than relocation there does not appear to be any mitigation measure that could be implemented that would reduce the aesthetics of the proposed Monopole I structure and associated equipment cabinet. Aesthetics was pointed out in the SEP A documents. Also, on October 29, 2007, which ran concurrent with the appeal period on the Director's decision, if there was an issue with this it should have been appealed at that time. The Examiner stated that they had no reason to appeal since ERC did not impose any mitigation measures. Ann Nielsen stated that was true, but the appellant did just bring up that the City had nowhere brought up the aspect of aesthetics, when it was specifically referenced in that report. For purpose of the record, are the appellants saying that this is not a Monopole I structure? Neil Watts read the definition of a Monopole I structure: "Monopole 1: a wireless communication support structure which consists of a free standing support structure, less than 60 feet in height, erected to support wireless communications, antennas and appurtenances." Ann Nielson stated that it is their application and appeal, but they are not saying that it is a Monopole 1, if they think it is something else, they should reapply under that applicable provision. The Examiner asked if the criteria or conditional use would be different if this was not a Monopole I, if it's Jess than 60 feet is there some different criteria. T-Mobilc Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 5 Neil Watts stated when the Ordinance was written, they were looking at two different types, support structures which arc basically a Monopole 1, Monopole 2 structures which are significantly higher, and the lattice towers which are very extreme situations. Separately from that is the discussion and definition on the different range of antennas. The intention set out in the code in the policies is for people to put antennas on existing structures, buildings, poles, etc. If PSE had a pole that was the right height and was structurally such that it could support the antenna, a permit for the antennas could be sought. If the antennas were small enough, which these today appear to be, it would be an outright permitted use. However, this is not an existing pole, either in height or in ability to support this type of facility. There is a new pole being put in. After discussion on whether this was the proper time for this hearing and whether or not this was a Monopole I or not, the appellant stated that he would prefer to continue with the hearing today under the declaration of a Monopole I. Neil Watts this particular provision allowing these types of facilities to go into single-family zoned property in the right of way was a late addition in the last year or two. This was not part of the original wireless code that was written about 1998. It would be very difficult to meet the criteria for a conditional use permit in dense single-family neighborhood on single-family residential streets. There are several stretches of major arterial streets that are zoned R-8. Providing service, as most providers are trying to do, in these smaller sites is going to be very difficult. In this particular case, Union has the very large existing poles in the area, as well, NE 4"' has large existing poles, and they could go in and use the existing pole for their antennas. Established neighborhoods, with smaller streets and smaller lots make it very difficult to meet the conditional use criteria. Neil Watts commented on cost being an issue as far as site selection. The current location being considered is as simple a place for a pole location, there are no existing curbs or sidewalks, installation of the underground vault, which needs to be underground, is arguably less expensive. It is not physically impossible to install a vault where a sidewalk exists, it also is not physically impossible to make negotiations with adjacent properties to use a portion of their property for installation of the vault. The focus has been on this site because the location is right in the middle of the area they are trying to provide service to, it was a logical site to look at. A pre-application is not a formal review, it is not a fomrnl denial or approval. It simply lists out codes, fees and processes and tries to give information if it does not meet code. The dilemma is balancing out two needs, they are addressed in the code. Section 4.4.140, wireless communication facilities list the two counterbalancing things being looked at here. One is Section B, which talks about poles and Section E, which is compliance with the Telecommunications Act of 1996. IfT-Mobile had been able to demonstrate that all the other sites did not provide adequate service to this area, it would be much harder to deny this request. The idea was to try to encourage providers to go to commercial and industrial zoned properties and to co-locate on existing poles, towers or buildings. The code is set up to make it easy to go to the desired location and makes it more difficult or impossible to go to areas where the City did not want them to be in. They did not want them to be in single-family zones. This application was with the Environmental Review Committee a fairly lengthy period of time. A request for alternative sites was requested and never provided. There were many concerns with the Committee, there were identified adverse impacts, but they were not raised to the level of significant. Ann Nielsen referred to Tab 12, the Market Study, which was actually done at a Redmond Park does not appear to be applicable because it is not in a residential area. T-Mobile Monopole Appea, LUA-07-065, CU-A January 15, 2008 Page 6 Chris Conaxis stated that it was applicable because the pole was placed at the edge of the park and a residential area surrounded the park. The pole was a replacement structure and has a lot of similarities to this project today. The pole was set back between 400 and 500 feet of a residential structure. Ann Nielsen continued that the pole was actually set within the park as opposed to a residential area. Tab 4 covers the radio frequency analysis, the City did not receive this analysis prior to today's hearing. T- Mobile does acknowledge that there were other candidates considered besides this location. What were the facts that precluded moving to this current location? Chris Conaxis stated that it would have required moving a utility pole to another front yard as opposed to the front yard it currently is in. All considered locations were the same circumstances. The location that was chosen had the largest section of right of way and that allowed for the ground equipment. The other locations don't have a clear right of way. Elevation is lost on Union and there currently is a developed sidewalk and doing an underground vault in that situation would have been more difficult if it was even allowed. Doing the vault is the most expensive part of the installation and that has been budgeted so wherever the site is, it would not cost any more. It is a major cost to go underground. To put a slab of cement down and place the cabinets above grade would be much cheaper and the preferred alternative. Not all competitors are able to get service to this area. Some are in there currently, some are not. Michael Cady stated that they really need this site because other carriers have different frequencies and because of the frequency range they broadcast in and receive in, they can have different site requirements than T-Mobile. This site is particular to the coverage gap needs for T-Mobile. Kevin Durning stated that they look at their own needs and not what others are using or doing at any particular location. New York has sites every other block in order to get coverage. The planners have to work within the code and find the best locations. The City of Renton would not look favorably on four locations that would provide service when what was proposed for the four could be one with one site. Chris Conaxis stated that this pole would be 19 feet taller than any existing pole. The Examiner stated that there are trees in the area but nothing screens the corner parcel where the pole would be located. This would be highly visible to adjacent properties. Chuck Gitchel, 4401 SE 3"' Place, Renton 98059 stated that he resides at the site of the proposed T-Mobile monopole that would be located on the comer of their property. He has training in electronics as a radar repairman and later as a radio/telephone communications technician. He was taught extensively the dangers of frequency radiation. The question is how much is too much. Microwave ovens are built with a metal casing and screening in the oven door to help block the radiation from harming people. Microwaves, cell phones and radio and television antennas all use frequency radiation, the dangers exist in all cases. T-Mobile representatives came through the neighborhood a few weeks ago, they were told the frequency radiation from a tower is not as bad a holding a phone up to your head. The cell phone companies know how harmful these frequencies are to the public's health. The Examiner stated that the code does not allow him to consider the health issues when making his decision. There are secondary implications including real estate values. He therefore will not allow radiation testimony. T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 7 Mr. Gitchel continued stating that there is a falling hazard, the pole would be only 45 feet from the house and 25 feet from their carport. The existing pole if hit would not hit their house. They have a drug house in the neighborhood, it only takes one person on drugs to hit the new pole and bring it down on top of their house. Regarding the vault location, when a person from T-Mobile dug a hole for soil samples they realized this vault would be 25 feet from their bedroom, they would be able to hear the equipment running at night. He was told that the Environmental Study pertained to birds, etc, he did not appeal and perhaps he should have. He believes that the installation of this pole would lower their property values. He submitted several letters from real estate experts and read portions from those letters. Chandra Lindquist, 251 Vashon Avenue SE, Renton 98059 stated that because Union is zoned for this sort of thing and T-Mobile submitted alternate sites, there is a new park in that area, why did they not consider doing their site concurrent with the construction of the new park. They stated they did not want to install an underground vault where there are existing sidewalks, there were no existing sidewalks it was vacant land up until one year ago. The Examiner clarified that T-Mobile was asked to submit alternative sites, but they did not respond to that request. They are not necessarily required to, they had the right to ask for this site, the City had the right to look it over and say no. T-Mobile can come back with a request for a new location and try again. Mike O'Halloran, 4420 SE 4'" Street, Renton 98059 asked if this monopole is authorized what prevents competition from taking over other poles or just adding antenna to the existing or new monopole? Would like to appeal to T-Mobile and the City of Renton to come up with an alternative location and find a common ground that would satisfy the residents as we11 as the customers. John Worthington, 4500 SE 2"d Place, Renton 98059 stated that he felt T-Mobile was trying to take advantage of the code and he would like to see an alternative for them. He does not want to impede free market, but he also pointed out that as to property market values, at some point they may want to increase their property taxes for underground utilities, which would increase the overall property values. Committing to a cell phone tower that locks them in and grandfather's them in and prevent the neighborhood from going to underground utilities. Steven Northcraft, 4209 SE 3'd Place, Renton 98059 stated that he has underground utilities and in the development immediately south of this area on SE 4'" many of the homes have underground utilities. All new construction is being required to have underground utilities in this area. Chris Conaxis stated that they were following the code to bring service to their customers. Ann Nielsen gave a closing statement that Mr. Watts decision as Director should be given substantial deference. The burden is that the appellant must show why that decision should be overturned, it does not appear that they have done that. It is possible that there are other alternatives for T-Mobile. The facts show that to allow this monopole would make it the tallest structure in the neighborhood. It would be quite visible due to the absence of any trees or mitigated structures. There were statements in all the letters, including letters from real estate brokers, stating that the existence of this monopole would have adverse real estate effects to this particular location. The appellant did a study of effects of a monopole on residential property, however, the study was done on a monopole that was located within the confined of a city park and little, if any, weight should be given to this study. With the appellant's presentation today, they do not appear to have met their burden and therefore asked that the Examiner uphold the City's Director decision. T-Mobile Monopole Appea, LUA-07-065, CU-A January 15, 2008 Page 8 Chris Conaxis stated that they cannot be responsible for the technologies of Sprint, Nextel, Cingular and if they have the ability to come in due to their different technologies, if they are unable to provide the coverage that they want to provide, it does not do their case any good that their competitors do have coverage in this area and they don't and are not allowed to get into that area. They are gone to the preferred locations and now they are trying to get into the rural and residential areas, they would consider it a barrier to entry to provide coverage to this particular neighborhood if this facility is not allowed. The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing closed at 11: 11 am. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: I. The appellant, Kevin Foy, Wireless Facilities, Inc, for T-Mobile filed an appeal of an administrative decision denying an Administrative Conditional Use for a Monopole I. 2. The appeal was filed in a timely manner. 3. The project would be located in the public right-of-way near the intersection of SE 3rd Place and Anacortes Avenue SE. The nearby street address would be 4401 SE 3rd Place. 4. The project is described as: "The applicant is requesting Administrative Conditional Use Permit approval for the replacement of an existing 40-foot tall wood power pole with a 59' I I-inch wood power pole that would also function as a monopole I structure. The monopole 1 and associated equipment vault would be located within the public right-of-way and is zoned Residential-8 (R-8) dwelling unit per acre. Single-family residences surround the project site on all sides. The site totals 104 square feet in area and would result in 32 cubic yards of excavations. Access to the site would be provided by Anacortes Avenue NE." 5. The staff report noted: "The surrounding topography is flat. Due to the flat topography of the site, the prevalence of single story homes, and the lack of trees in the immediate vicinity of the project site, the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed in the surrounding environment." (Administrative Conditional Use Report, Oct, 15, 2007, Page 3). The staff report goes on to describe the lack of trees in the immediate area and the proposed location's abutting a front yard of one residence and directly across the street from several other residences. Staff also noted that the pole would be almost 30 feet taller than the 30 foot tall structures permitted in the zone and was not sensitively sited. 6. The criteria for review are found in Section 4-9-030J. 7. After administrative review, Development Services Director Watts, found: "l. The subject proposal does not comply with all of the policies and codes T-Mobilc Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 9 of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2. The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surrounding neighborhood that cannot be mitigated. The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3. Unrebutted testimony was received from real estate professionals stating that the siting of a monopole I structure at the proposed location would reduce property values in the vicinity." 8. The Director then denied the permit. 9. The proposed structure would serve a dual purpose. It would continue to carry Puget Sound Energy lines in the neighborhood and it would also accommodate a wireless cellular facility. The new pole would be 59'1 l" tall. The cellular equipment on the pole would be flush mounted and painted the color of the pole. There would also be an undeq,,round vault containing associated equipment. There was no discussion about the noise that could be generated by the vaulted equipment. The vault would be 13'4" by 8' and access would be via a ground level hatch door. The vault would be located in the public right- of-way. No additional roads or access requirements are necessary. I 0. The applicant anticipates one vehicle trip per month for maintenance purposes. 11. Approximately 32 cubic yards of material would be excavated to accommodate the vault. 12. The R-8 Zone in which the proposed facility would be located permits a maximum height of 30 feet or two-stories. The existing Puget Sound Energy poles in this area are 40 feet tall. The new pole would he one inch less than 60 feet tall or almost 20 feet taller or 50% taller than the existing pole (and other poles in this area). 13. Monopole I facilities ofless than 60 feet may be permitted via an Administrative or Hearing Examiner Conditional Use. The proposed facility, which is one inch less than 60 feet is subject to that review authority (RMC 4-4-140). 14. Additional comments from the Director noted: "Based on comments received, staff has concerns that the proposed location is not the most suitable location for a monopole I structure. The proposed monopole I would be substantially taller that (sic) the surrounding single family residences and the existing PSE power poles and is located immediately abulling the front yard of any existing single family residence." 15. The appellants noted that the ERC did not propose any specific mitigation to address the aesthetic impacts of the proposal and relying on the Jack of such measure as a sign that the aesthetics were not a critical issue. Rather the ERC did address the aesthetics in the following statement: "Other than relocation, there does not appear to be any mitigation measures that could be implemented that would reduce the aesthetic impacts of the proposed monopole I structure and associated equipment cabinet." (Page 3 of 4, Environmental Review Committee Staff Report, August 13, 2007). T-Mobile Monopole Appea LUA-07-065, CU-A January 15, 2008 Page 10 16. The appellant also noted that the pole would not be replacing a shorter pole but that the pole would be taller. In fact, the existing pole could not physically support the proposed equipment and would be replaced with a more appropriate, supporting pole in the same location. 17. The appellant noted that they specifically complied with code, designed a tower less than 60-feet and that the view of residences would not change. The appellant specifically noted: "Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents." 18. There was a letter from a real estate agent indicating that the proposed facility would adversely affect property values. While health concerns may not be used to determine if a wireless facility is appropriately sited, the fact that potential purchasers might shy away from property located near such a facility could affect property values. 19. The real estate report the appellant provided does not provide a comparable situation in any respect. The report speaks of a facility located in a larger park and significantly separated from nearby residential structures and apparently fairly well screened by existing trees and vegetation. 20. Staff indicated that taller utility poles are located along Union Avenue not far from the proposed site and modifications to those poles could probably provide less aesthetic concerns. Any other location would be subject to appropriate review. 21. The appellant did initially consider an approximately 0.92 acre site owned by Seattle but criteria ruled it out of consideration since one acre sites are the minimum necessary under the Code for "free-standing" cell facilities. CONCLUSIONS: 1. The appellant has the burden of demonstrating that the decision of the City Official was either in error, or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious (Section 4- 8-l l O(E)(7)(b ). The appellant has failed to show any error. 2. Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co. v Washington Utilities and Transportation Commission, 69 Wn. 2d 472,478 (1966). 3. An action is likewise clearly erroneous when, although there is evidence to support it, the reviewing body, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. (Ancheta v Daly, 77 Wn. 2d 255,259 (1969). An appellate body should not necessarily substitute its judgment for the underlying agency with expertise in a matter unless appropriate. 4. Code covering these facilities does have some admittedly odd provisions or possibly contradictory provisions. Be that as it may, the Director reviewed this proposal under the Conditional Use Code criteria and found that it was inappropriate for this particular location. Unless the facility can be made aesthetically appropriate, the Director was correct in his determination. The Director keyed in on the aesthetic impacts and found that they could not be rectified. At the public hearing a number of concepts were discussed and it was clear that in the current situation, the location of this pole makes screening impossible. The aesthetic impacts cannot be reduced. The Director did not reach an erroneous T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 11 conclusion. 5. No one is disputing that the appellant is attempting to serve his or her customers. What is in dispute is whether they have looked at other reasonable alternatives that might provide satisfactory reception. The appellant focused in on this site for topographical reasons -it is a bit higher in elevation and relatively flat. The appellant apparently did not explore alternatives that might be suitable given a mix of additional shorter poles or taller poles spread out further. Staff noted that taller utility poles line Union Avenue and modifications to those poles would be less evident aesthetically. 6. The appellant is probably correct when they state that: "Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents." The City has created a potentially hard criteria to satisfy but that does not make the decision unreasonable or erroneous. The appellant only considered one other location, which did not comply with lot area size criteria but did not consider other public right-of-way corndors with taller existing power poles or possibly a series of shorter poles. While the appellant did not have to submit alternatives, the Director was, therefore, limited to consider the impacts of the proposed pole and site. The appellant went with only their favored choice, and the Director based on his reading of the code, made a supportable decision. 7. A reviewing body should not reverse the underlying decision unless there is compelling evidence that a mistake was made. This office cannot decide that a mistake was made. It was reasonable in terms of the proposal, the site, the lack of any ability to screen the proposal and the absence of compelling evidence that this is the only tenable location. DECISION: The decision affirmed ORDERED THIS 15th day of January 2008 FREDJ.KAUF HEARING EX TRANSMITTED THIS 15th day of January 2008 to the parties ofrecord: Neil Watts Development Services Director City of Renton Renton, WA 98057 Chris Conaxis 575 Andover Park W, Ste. 20 I Tukwila, WA 98188 T-Mobile USA 19807 North Creek Parkway Bothell, WA 98011 Ann Nielsen Assistant City Attorney City of Renton Mike Cady 575 Andover Park W, Ste. 20 l Tukwila, WA 98188 Chuck & Fran Gitchcl 4401 SE 3'" Place Renton, WA 98059 Kevin Foy T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Kevin Durning 575 Andover Park W, Ste. 20 I Tukwila, WA 98188 Michael & Valerie O'Halloran 4420 SE 4th Street Renton, WA 98055 T-Mobile Monopole Appea. LUA-07-065, CU-A January 15, 2008 Page 12 Newton & Joyleen Ellifrits 4218 SE 3"' Place Renton, WA 98059 Stephen Northcraft 4209 SE 3•d Place Renton, WA 98059 Victor Bloomfield/ Jennifer Skuk 4418 SE 3•d Place Renton, WA 98059 JohnMegow 4408 SE 3'd Place Renton, WA 98059 Terty Clangh 4503 SE 3"' Place Renton, WA 98059 Tapke Vel3uist 4301 SE 3 Place Renton, WA 98059 Gail & Anthony Knell 4425 SE 3•d Place Renton, WA 98059 Doug Mears 4308 SE 3"' Place Renton, WA 98059 James S. Dalgleish 407 Anacortes Avenue SE Renton, WA 98059 Chandra Lindquist 251 Vashon Avenue SE Renton, WA 98059 Lewis Sezto 10875 Rainier Avenue S Seattle, WA 98178 Greg Schoendaller 4408 SE 4th Street Renton, WA 98059 Michael, Debby & Hannah Ekness 4400 SE 3•d Place Renton, WA 98059 Joel G. Smith 349 Anacortes Avenue SE Renton, WA 98059 Dennis & Cindy Shimmel 4224 SE 3"' Place Renton, WA 98059 Joel & Heidy Barnett 4309 SE 3•d Place Renton, WA 98059 Ken & Anne Miller 4415 SE 4" Street Renton, WA 98059 Bruce & Ruth Rutledge 4303 SE 3•d Place Renton, WA 98059 Bonnie Watson Keller Williams Realty 615 E Pioneer, Ste. 203 Puyallup, WA 98372 TRANSMITTED THIS 15th day of January 2008 to the following: Van Slaughter 4409 SE 3•d Place Renton, WA 98059 Alvin & Jacqueline Courtney POBox2653 Renton, WA 98056 John Ehle 406 Anacortes A venue SE Renton, WA 98059 Roger & Vickey Berty 4405 SE 3"' Place Renton, WA 98059 James & Kimberly Stark 4301 SE 3"' Place Renton, WA 98059 Cory & Lori F osier 4413 SE 3"' Place Renton, WA 98059 Pauline Blue 420 Chelan Avenue SE Renton, WA 98059 Joyce M. Crock 414 Chelan Avenue SE Renton, WA 98059 Jeremy & Ji11 Peery 4432 SE 4th Street Renton, WA 98059 John Worthington 4500 SE 2"d Place Renton, WA 98059 Mayor Denis Law Jay Covington, Chief Administrative Officer Julia Medzegian, Council Liaison Robert Van Home, Deputy Fire Chief Larty Meckling, Building Official Planning Commission Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services T-Mobile Monopole Appeal LUA-07-065, CU-A January 15, 2008 Page 13 Renton Reporter Pursuant to Title IV, Chapter 8, Section I OOGof the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m., January 29, 2008. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors oflaw or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen (14) days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take further action as he deems proper. An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m., January 29, 2008. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants will be required prior to approval by City Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication pennits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. Attachment A ,.-JTr,() C..:; : A ' Attachment B Attachment C Attachment D Additional information: Pre-Application Request Pre-Application Response from the City of Renton CITY OF RENTON City Clerk Division 1055 South Grady Way Renton, WA 98055 425-430-6510 Receipt N~ 0974 Date ---'---/ 0-1-/_i_. "i--'--, 1 /1---Z£J=-....,c~'-c71-- qcash )iQ_ Check No. VI h dO c ,...-. 12, Copy Fee D Notary Service c-' 2 '0006°1){/ yQAppea!Fee O ________ _ Description: ,li2rJ-t'Cz I lo rl1u "li'c t/-lz? 1'tri LJJt&t"ler o/ Funds Received From: Kt'/lv1 f"o,J/ Name /-· /f(o_b 1 le /./5 Ci 7',, C, I Amount $ 7S. C 0 Address f 2 7 7 o rt-5 ~-f I, 51 City/Zip ·geffr vtif' , iv,-f 1fot)h 1/ Z: ~ .'.) I zg&-S 71../ -b 3 7 S'· -------· -------· ---·---·· COMMENCING AT 9:00 AM, CITY OF RENTON HEARING EXAMINER PUBLIC HEARING December 18, 2007 AGENDA COUNCIL CHAMBERS, 7TH FLOOR, RENTON CITY HALL 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: T-Mobile Monopole in SE 3'' Place Right of Way Appeal PROJECT NUMBER: LUA-07-065, CU-A, ECF PROJECT DESCRIPTION: The applicant is appealing the denial of a Conditional Use Permit for the installation of a 59-foot 11-inch monopole I structure and associated equipment vault. The proposal would have been within the right-of-way abutting a Residential -8 (R-8) dwelling unit per acre zone. The project site totals 104 square feet in area. HEX Agenda 12-18-07.doc November 19, 2007 Citizen Comment: Gitchel - T-Mobile Monopole Placement, SE 3rd Pl, C~-07- 065 - Citizen Comment: McOmbcr - Highlands Community Association CONSENT AGENDA Council Meeting Minutes of 11/5/2007 CAG: 95-087, King County Fire Protection District #25 AJLS: Public Defender Services, Kameron C Cayce & Associates Court Case: Cheryl J Austin & Jack Austin, CRT-07-014 R1.:11lon Cily Council Minutes Page 394 MOVED BYLAW, SECONDED BY PERSSON, COUNCIL ALLOW THE SPEAKER rrvc. MORE MINUTES, CARRIED. Mr. Giuliani further noted that the City lacks control over the airport, saying that the Federal Aviation Administration ultimately controls the running of the airport. Stating that the City recently updated its phone messaging system, Chief Administrativ c Onicer Covington apologized for the inconvenience and stressed that the problem with the aircraft noise complaint line will be fixed. Chuck Gitchel (Renton) spoke on the topic ofT-Mobile's proposal to place a cell phone tower at SE 3rd PL near his house. He recalled a past proposal for the placement of a cell phone tower at a more suitable location on Union Ave. that was denied due to the Seattle Public Utility-owned property being less than one acre in size. :V1r. Gitchel asked that the ordinance regulating the siting of I , monopoles be rniewcd, and recommended the removal of the one-acre requirement. \ Councilmembn, Corman and Law expressed interest in reviewing the I ordinance. In response to Council inquiries, Planning/Building/Public Works Administrator 7,mmcrman confirmed that T-Mobile is appealing the City's i denial of its conditional use permit to place a tower at SE 3rd PL Regarding the placement of a tower on the Seattle Public Utility-owned property, Mr. Zimmerman conl1rmcd that the request did not meet the one-acre requirement, and he explained that there is no variance provision in City Code in this particular instance. Howard McOmhcr ( Renton) reported that the Highlands Community Association's Emergency Preparedness Workshop was well attended and successfuL Additionally, he announced that a Christmas party will be held at the Highlands Neighborhood Center on December 16. Councilmember Palmer also commented on the success of the workshop, noting that a Spanish language interpreter was available to assist attendees. Items on the consent agenda are adopted by one motion which follows the listing, Approval of Council meeting minutes of 11/5/2007. Council concur. Admiuistrativc, Judicial and Legal Services Department and Fire Department recommended approv·al of an addendum to CAG-95-087, operating agreement with King County Fire District #25, to extend the term through 2009, Refer to Public Safety Committee. Administrative, Judicial and Legal Services Department recommended approval of an agreement "ith Kameron C. Cayce & Associates for public defense services for the years 2008-2010. Refer to Public Safety Committee. Court Case filed by Jay DeMers, Attorney-at-Law, on behalf of Cheryl J. Austin and Jack Austin who seek compensation for medical expenses and economic loss due to injuries sustained by Cheryl J, Austin as a result of an accident on 11/20/2004 al Shattuck Ave. S. and S. 7th St allegedly due to obstruction of her field of vision due to sign age for a construction project and negligent operation of the vehicle that collided into her vehicle, Refer to City Attorney and Insurance Services. Au cl I e 11 re lo711 1Mnf- C /1 u c I<-{i; fc lie I 11/11/iuo 7 60 FT MONOPOLE AND ANCILLARY EQUIPMENT W/EQUUIPMENT SHED PROPOSED IN THE R-8 ZONE. NO PREAPPLICATION MEETING WAS HELD PRIOR TO SUBMITTAL OF THIS PROPOSAL. ON 3-30-2006, MADELINE CHANEY, THE APPLICANT'S REPRESENTATIVE, WAS ADVISED THAT THE PROPOSED MONOPOLE SITE WAS NOT ELIGIBLE FOR A C0ND1Tr0NAL USE PERMIT BECAUSE THE SITE DID NOT COMPLY WITH EITHER OF THE TWO MANDATORY CONDITIONS STIPULATED BY THE ZONING USE TABLE (PROPERTY MUST BE A MINIMUM OF ONE ACRE IN SIZE AND SETBACKS MUST BE MINIMUM OF 100' FROM ABUTTING RESIDENTIAL). WHEN ADVISED THAT THE HEARING EXAMINER WOULD NOT HAVE THE AUTHORITY TO APPROVE THE PROPOSED "CONDITIONAL USE PERMIT WITH VARIANCES" BECAUSE IT WAS IN EFFECT A "USE" VARIANCE REQLEST, 'v!S. CHANEY ADVISED THAT SHE WOULD LIKE TO HAVE THE EXAMINER MAKE THAT DETERMINATION. SHE WAS ALSO ADVISED THAT SHE COL:LD (FREE OF CHARGE) INSTEAD REQUEST THIS AS A WRITTEN DETERtvllNATION WHICH COULD THEN BE APPEALED TO THE EXAMINER. SHE STATED SHE WOULD PREFER TO APPLY FOR THE "VARIANCES" INSTEAD. THE FOLLOWING DAY (3-31-06), THIS APPLICATION WAS SUBMITTED. 5-19-06 NEIL WATTS, DEVELOPMENT PLANNING DIRECTOR, DETERMINED PLANNING & DEVELOPMENT UNABLE TO PROCESS -LETTER TO THIS EFFECT SENT TO APPLICANT A"JD ENTIRE PACKAGE LEFT FOR APPLICANT TO PICK UP. NO FILE COPY WAS RETAfNED. 6-9-06 FINANCE ISSUES $2,600 REFU'-ID. CHECK #249270. 4-2-070D-RESIDENTIAL-8 DU/AC (R-8) 4-2-070D RESIDENTIAL-8 DU/AC (R-8) Uses allowed in the R-8 Zone are as follows: USES: TYPE: AGRICULTU~E AJ;D NATURAL RESOURC.ES ' Natural resource extraction/recovery H ANIMALS A1'/D.flELA'l"EP USES-' ·' \-·,,,;,,J'.)i Animal husbandry (20 or fewer small animals per acre) P #51 Animal husbandry (4 or fewer medium animals per acre) P #51 Animal husbandry (maximum of 1 large animal per acre) P #51 Greater number of animals than allowed above H #36 -- Beekeeping P #35 Kennels, hobby AC #37 -- Pets, common household, up to 3 per dwelling unit or business establishment AC - RESIDENTIAL''"···--,-,,,< C' ' , ... , .. , -- '' Si\'.·J }it.'.,4.'J: ·. _-;} -.. :. ,. ,. _-,;, ,,_ Detached dwelling P #19 Flats or townhouses, no greater than 2 units total per buildil,Wf(existing legal) p Manufactured iwmes Manufactured homes, designated P #19 OTHER,RES,l!;f!~tfft~~/~{)DGll'JGAN9.1H.Q~'?J ' occuPATIQt:1s:,:~,r \i-, _-)\:·: :,·.,; :1r~:: . Adult family home p Group homes II for 6 or less p Group homes II tor 7 or more H Home occupations AC #6 ~~ir,,·_._ ~,, ,. K-12 educational institution (public or private) H #9 K-12 educational institution (public or private), existing p #9 ·-,.~,{.': .. . ' Parks, neighborhood p Parks, regional/community, existing p Parks, regional/community, new AD TYPES: USES: TYPE: OTJ:l.ERRQIIIIIIIIIJNITY ANDPUEl~i~!'f!.§ILIJ]E$,_-_. c;;, Community Facilities Cemetery H Religious institutions H Service and social organizations H Public Facilities City government offices AD City government facilities H Other government offices and facilities H i:tETAUi'·•-•:•:_·· ·,. ,:~. Eating and drinking establishments p #1 Horticultural nurseries H Entertainment Cultural facilities H Recreation Golf courses (existing) p Golt courses (new) H Services, General Bed and breakfast house, accessory AD Day Care Services Adult day care I AC Adult day care II H Day care centers H#25 Family day care AC Healthcare Services Medical institutions H Park and ride, shared-use P #108 Blank= Not Allowed #;;Condition(s) P=Permitted Use AC=Accessory Use H~Hearing Examiner Conditional Use AD~Administrative Conditional Use P#=Pennitted provided condition can be met Uses may be further restricted by: RMC 4-3-020, Airport Related Height and Use Restrictions; RMC 4-3-040C, Uses Permitted in the Automall Improvement District; RMC 4-3-050, Critical Areas Regulations; RMC 4-3-090, Shoreline Master Program Requirements 2 -25 (Revise<l I /07) 4-2-070D -RESIDENTIAL-8 DU/AC (R-8) USES: Ur!41!1E~·• Communications broadcast and relay towers H Utilities, small P Utilities, medium AD Utilities, large H Wlfi~s!:i!!l9,~MMtl~~~T!8N}~~'!)!ij j,J:Ut:~i;ir,h Macro facility antennas AD #46 Micro facility antennas P Mini facility antennas p #44 Minor modifications to existing wireless communication facilities P #49 Monopole I support structures on private property H #45 Monopole I support structures on public right- of-way AD #45 Parabolic antennas -Large H #45 Model homes in an approved residential development: one model home on an existing lot P #53 Sales/marketing trailers, on-site p #53 Temporary or manufactured buildings used for construction P #1 o Temporary uses P #53 (Ord. 4773, 3-22-1999; Amd. Ord. 4963, 5-13-2002; Ord. 4999, 1-13-2003; Ord. 5080, 6-14-2004; Ord. 5241, 11-27-06) TYPES: P=Permltted Use AC=Accessory Use H=Hearing Examiner Conditional Use AD=Admlnlstrative Conditional Use Blank= Not Allowed #=Conditlon(s) P#=Permltted provided condition can be met Uses may be further restricted by: RMC 4-3-020, Airport RelaRted Height and Use Restrictions; 1 ~MCM4-3-04POC, UsesRPermilted in the •J Automall Improvement District; RMC 4-3-050, Critical Areas egulations; RMC 4-3-090, Shore me aster rogram equirements (Revised 1/07) 2 -26 4-2-0SOA 4-2-080 CONDITIONS ASSOCIATED WITH ZONING USE TABLES: A. SUBJECT TO THE FOLLOWING CONDITIONS: 1. Limited to locations within an existing or new golf course or regional park. 2. In addition to the criteria of AMC 4-9-030, Conditional Use Permits, the use must be sited in conjunction with a gas station. Size restrictions apply per use in RMC 4-2-120A. In the CN Zone, the use is limited to operations enclosed within a building, and sited in conjunction with an existing gas station. 3. These uses shall not be located on the ground floor along street frontage in the "Downtown Pedestrian District." See Downtown Pedestrian District Map in RMC 4-2-080D. 4. Existing commercial laundry uses may be continued and may be re-established for purposes of rebuilding upon unintentional destruction of property. Existing commer- cial laundry uses may not ex~nd beyond their existing building footprirtft)lus abutting easements, loading, or parking areas. Ren- ovations or alterations within the existing building footprint are permitted. Existing commercial laundry uses may add to the height of buildings provided that the height of the building not exceed forty two feet ( 42'), and that additional height be used for accessory office to support the commercial laundry uses. Existing of/site warehousing uses accessory to existing commercial laundry uses may be continued but may not be expanded beyond their existing building footprint. 5. Professional bed and breakfast houses are only allowed in the RM-U Zone. 6. Subject to the requirements of RMC 4-9-090, Home Occupations, with the writ- ten approval of the property owner, if tenant occupied. 7. Subject to the development standards applicable to primary structures. 8. Allowed only in the Residential Multi-Family Infill suffix. Twenty four (24) hour on-site management required. The manager's unit is not subject to minimum density require- ments. No estate, garage or other sales 2 -59 from any leasable spaces. No outdoor stor- age, including vehicle or trailer storage lots. Seit service storage uses in this zone are subject to the following special develop- ment standards: Temporary customer mov- ing van/truck parking, if provided, must be clearly marked with signage or paint. Side and rear setbacks subject to the Commer- cial Arterial Zone standards of RMC 4-2-120A, Development Standards for Commercial Zoning Designations, in lieu of the RM-I development standards. 9. Development consistent with an approved "Master Plan" is considered to be a permit- ted use. Other activities which are outright permitted include the addition of up to four (4) new portables, or changes in facilities not exceeding ten percent (10%) of gross floor area. Other proposed activities require a Hearing Examiner conditional use permit. 10. Permitted when approved by the Develop- ment Services Division and associated with an active building or construction permit, for a period not to exceed the cfuralion of construction. 11. Limited to storage of products in conjunc- tion with retail, service, or office uses. Shall not be located along the building street frontage or in areas visible to the public. 12. Shall be developed as part of larger office structures. Shall not stand alone and shall not occupy more than twenty five percent (25%) per building whose primary use is office. 13. a. Administrative Headquarters Office: These offices shall be associ- ated with a permitted industrial use listed in RMC 4-2-0601. The office uses may be developed in conjunction with, or subsequent to, the industrial use. b. General Offices: Excluding adminis- trative headquarters offices, which are permitted consistent with subsection (13)(a) of this Section, general offices are only allowed in the Employment Area Valley (EAV) land use designa- tion; provided that general offices that are accessory to a primary use are permitted outside the EAV. See EAV Map in RMC 4-2-080B. (Revised 3/06) 4-2-0BOA 14. Except that when operations are predomi- nantly conducted out-of-doors rather than completely enclosed within an enclosed structure, an administrative condrtional use permit is required. 15. Use is limited to building, hardware, and garden. Except in the CD Zone, size restric- tions apply per RMC 4-2-120A. 16. Subject to the density limitations located in the development standards for this zone. Residential uses shall not be located along the street frontage on the ground floor in the "Downtown Pedestrian District." 17. a. General Office and Medical/Dental Offices: Size restrictions apply per RMC 4-2-120A. Additionally, the use may only be pennitted via administra- tive conditional use permit subject to the following criteria in addition to con- ditional use criteria: (i) activities with a limited need for walk-in clientele and (ii) activities for which a reduction in parking standards to one space per five hundred (500) square feet of gross floor: space could be justified. b. Administrative Headquarters Office: New administrative headquar- tern offices are not permitted. For existing, legal administralive head- quarters offices greater than three thousand {3,000) square feel in size, and in existence prior to January 1, 1999, the following expansions may be allowed: (i) parking expansion may be allowed; (ii) a one-time expansion of building square footage, not exceeding three thousand five hun- dred (3,500) square feet, may be per- mjtfed subject to site development plan review. This provision allowing expansion of building square footage shall expire on December 1, 2006, consistent with any approved develop- ment agreements or covenants. 18. a. General Requirements: Subject to the density limits of the development standards for this zooe and only per- mitted within a structure containing retail and/or on-site service uses on the ground floor except in the Employ- ment Area Valley or Commercial Busi- ness Districts, as described below. (Revised 3/06) 2 -60 b. Employment Area Valley: Residen- tial uses are not pennitted in the Employment Area Valley (EAV) land use designation. See EAV Map in RMC 4-2-0808. c. Commercial Business Districts: Townhouse units are allowed without ground floor retail within the building if located more than one hundred fifty feel (150') from an arterial in the NE 4th Business District, Sunset Business District, and Pugel Business District with an administrative conditional use permit, subject to the criteria in RMC 4-9-030K. Residential units developed as part of a same building mixed-use project are allowed at a maximum of sixty (60) du/acre if the requirements for mfxed use development in the Business District Overlay are met. 19. Subject to the density limitations located in the development standards for this zone. CN Zone-Additronal: only permitted within a structure containing retail and/or on-site tl;pervice uses on the ground floor. 20. · Not allowed in locatioos within the Sunset Business District, the NE 4th Business Dis- trict, and within the Pu.get Business District. 21. a. General Requirements: Allowed only in conjunction with offices, residences, hotels, and convention centers, or research and development facilities. 22. 23. b. lntegratien of Uses: The use shall be architecturaHy al'ld functionally inte- grated into the development. Except for marinas, the use must be housed in a structure containing one or more of the uses listed in subsection (21 )(a) of this Section. The requirements in subsectioo (21 }(b) may be adjusted thro~a«111~e~ PlllllJJrCJC<cJeyS. 22-Size restrictions apply per use in RMC 4-2- l 20A. In the CN Zone, fast food establishments are prohibited. In the CV Zone, no office and conference uses are aflowe? for parcels Limited to existing uses. Only those modifi- cations or expansions which do not increase production levels are pennitled in COR 1 and COR 2. Major modifications, production increases, or expansions of existing use require a Hearing Examiner conditional use permit in COR 1 or COR 2. No modifications or expansions are allowed in COR 3. 24. Use requires a Hearing Examiner condi- tional use permit, unless accessory in which case it is outright permitted. Use is not permissible in the area south of 1-405 and north of SW 16th Street, unless acces- sory, in which case it is outright permitted. Explosives and natural gas storage are not permissible in the IL Zone. 2 -60.1 4-2-0BOA (Revised 1/07) This page left intentionally blank. ·O· -< < .. · (Revised 1/07) 2 -60.2 25. A preschool or day care center, when accessory to a public or community facility listed in RMC 4-2-060J, is considered a permitted use. 26. Size restrictions apply per use in RMC 4-2-120A. Must be part of a mixed use development. 27. Shall be architecturally and functionally integrated into the overall development. Freestanding establishments may be per- mitted only if they are five thousand (5.000) square feet or larger per establishment. These requirements may be adjusted through the Master Plan review process. 28. Accessory drive-through service is permit- ted only in association with multi-story buildings. The accessory drive-through ser- vice shall be located to the side and/or rear of the building, and integrated into the exte- rior wall. Drive-through lanes shall not be located between the street and the rnain pedestrian access to the buildings. These requirements may be adjusted through the Site Plan review process. 29. Only allowed in the Employment Area Val- ley (EAV) land use de~pation. See EAV Map in RMC 4-2-0BOff Provided that the use is excluded within the area south ol 1-405 and north of SW 16th Street. 30. a. Uses are limited to: Sales of mobile or manufactured homes, building/ hardware/garden materials, lurnber- yards, and monuments/tombstones/ gravestones. b. Location Restrictions: i. Building/hardware/garden sales and monuments/tombstones/grave- stones sales are only allowed in the Employment Area Valley (EAV) land use designation. However, they are excluded from the area south of 1-405 and north of SW 16th Street. See EAV Map in RMC 4-2-0808. ii. Lumberyards are only allowed in the IM and IH Zones. However, they are excluded from the area south of 1-405 and north of SW 16th Street. 31. Operations must be conducted entirely within an enclosed structure. 32. Outdoor recreation facilities are permitted only in the Employment Area Valley (EAV) 2 -61 4-2-0BOA land use designation. (See EAV map in RMC 4-2-0808.) However, amusement parks require a Hearing Examiner condi- tional use permit. 33. Indoor or outdoor recreational facilities and/ or eating and drinking establishments, mini- marts, laundromats, day care centers, or adult day care II uses are permitted only in conjunction with and intended to serve res- idential development in the R-14 Zone. Project size limitations of RMC 4-2-11 OF apply. A preschool or day care center, when accessory to public or community facilities listed in RMC 4-2-060J, is considered a permitted use. 34. a. Accessory retail uses are permitted where ordinarily incidental to the per- mitted principal use. b. Principal retail sales uses are only per- mitted in the Employment Area Valley (EAV) ,land use designation. See EAV Map in RMC 4-2-0808. 35. Provided hives are established on lots a minimum of one acre in size. Setbacks and other limitations apply per RMC 4-4-010, Standards and Review Criteria tor Keeping Animals. 36. A greater number of animals per acre than are otherwise allowed in this zone may be permitted by the Hearing Examiner; pro- vided: a. The keeping of animals must meet the conditions of RMC 4-4-01 OF, General Requirements for Keeping Animals; and b. A farm management plan has been adopted based on the King County Conservation District's Farm Conser- vation and Practice Standards show- ing that adequate pasturage to support a larger number of animals is provided. 37. a. General Requirements: Subject to requirements of AMC 4-4-010, Stan- dards and Review Criteria for Keeping Animals. Hobby Kennels require a Hobby Kennel License per RMC 4-9-100. b, IL Zone -Kennels: In the IL Zone, when operations are predominantly conducted out of doors rather than (Revised l/07) 4-2--080A completely enclosed w1Ihin an 46. Eligible for an auministrative conditional enclosed structure. an administrative use permit provided that the facility has a conditional use permit is required. minimum setback of one hundred feet c. IM Zone -Kennels and Hobby Ken-(100') from any adjacent residentially , nels: Within the area south of 1-405 zoned parcel, otherwise a Hearing Exam-;J and north of SW 16th Street only iner conditional use permit is required. indoor kennels or indoor hobby ken-47. May be allowed by an administrative condi- nels are permitted. tional use permit if the monopole II facility is 38. Only allowed in the Employment Area Val-to be constructed on property where wire- ley (EAV) land use designation. See EAV less communication support structures Map in RMC 4-2-080B. presently operate, and the new monopole II facility will not exceed the height of the 39. Requirements for uses not associated with existing support structures. Prohibited if a medical institution: Use must be located located within three hundred feet (300') of within the Center Institution (Cl) Compre-an RC, R-1, R-4, R-8, R-10, orR-14Zone hensive Plan land use designation. unless the Development Services Division 40. Permitted when located within the Center determines that all residentially zoned Institution (Cl) Comprehensive Plan land property within three hundred feet (300') of the proposed facility is undevelopable due use designation. to critical areas regulations (RMC 4-3-050); 41. Limited to the area south of 1-405 and west then the new wireless support structure can of SR-167/Rainier Avenue S. be reviewed as an administrative condi-, 42. Permitted only on the ground-floor level as tional use. part of a residential project on RM-U zoned 48. A Hearing Examiner conditional use permit properties fronting on South 7th Street. is required. However, this use is typically (Amd. Ord. 4971, 6-10-2002) -· prohibited if located within three hundred .f.~.'· feet (300') of an RC, R-1. R-4, R-8, R-10, or 43. Subject to the provisions of RMC 4-3-010, R-14 Zone, unless the Development Ser-Adult Retail and Entertainment Regula-"') vices Division determines that all residen-1-·_ lions, and chapter 5-12 RMC, Adult Enter-,. tially zoned property within three hundred ,,..;~_- tainment Standards. In the CO zone, uses feet (300') of the proposed facility is unde-shall be developed as part of larger office velopable due to critical areas regulations structures, shall not stand alone, and shall (RMC 4-3-050), in which case the new not occupy more than twenty five percent (25%) per building whose primary use is wireless support structure can be reviewed as a Hearing Examiner conditional use per-office. mil. 44. Permitted provided that the facility has a 49. Whether emergency or routine, so long as minimum setback of one hundred feet (100') from any adjacent residentially there is little or no change in the visual appearance, as determined by the Zoning zoned parcel, otherwise an administrative Administrator. conditional use permit is required. 45. For Monopoles Proposed on Private 50. a. General Requirements: Permitted Property: May be allowed via a Hearing subject to the applicable density limita- Examiner conditional use perm~; provided, lions, building length, and dwelling unit that the site is over one acre in size and the type mix requirements of the develop- facility has minimum setbacks of one hun-ment standards for this zone. dred feet (100') from any adjacent residen-b. R-10 Zone: Limited to no more than tially zoned parcel; otherwise the use is four (4) attached dwellings per build- prohibited. ing. For Monopoles Proposed on Public C. R-14 Zone: Buildings shall not exceed Right-of-Way: May be allowed via an six (6) dwelling units per structure administrative conditional use permit and except as provided in RMC 4-9--065D, J right-of-way use permit. Bonuses. (Revised I /07) 2 -62 51. a. General Requirements: No animals are allowed on lots less than one acre in size. Animal husbandry uses are subject to the standards listed in RMC 4-4-01 o. Standards and Review Crite- ria for Keeping Animals. Only combi- nations of medium and small animals or large and small animals may be per- mitted outright on one acre. provided that the overall total of animals is con- sistent with the requirements per acre (for example, twenty {20) small ani- mals plus tour (4) medium animals). b. R-8 and R-10 Zones -Small Ani- mals: Only six (6) or fewer small ani- mals per acre are permitted. c. R-8 and R-10 Zones -Large Ani- mals: large animals are permitted on lots four (4) acres or greater in size. Only one large animal per two (2) acres is permitted. 52. Permitted when ancillary to a permitted use where food and beverages are served on the premises and located in an area with an Employment Area Valley (EAV) land use designation as shown on the City's Com- prehensive Plan Land Use Map, and located south of 1-405. In the case of the IM Zone, the location is further limited to IM- zoned areas south of SW 16th Street. Should any court of competent jurisdiction find that the City zoning for card rooms is unconstitutional or illegal, then the City elects to permit the existing card rooms to continue operation as nonconforming legal uses and otherwise bans card rooms. 53. Provided a temporary use permit is obtained consistent with the provisions of AMC 4-9-240. Temporary Use Permits. 54. Allowed outright in the Employment Area Valley (EAV) land use designation. (See EAV Map in AMC 4-2-0808.) Outside the EAV. the use shall be developed as part of larger office structures. Such uses shall not stand alone and shall not occupy more than twenty five percent (25%) per building whose primary use is office. 55. a. Adult day care I on a property with a nonresidential facility is only allowed outright in the Employment Area Val- ley {EAV). See EAV Map in AMC 4-2-0808. Outside of the EAV, an 2 -62.1 4-2-080A administrative conditional use permit is required. b. Adult day care I on a property contain- ing a residential use requires an administrative conditional use permit in any location. 56. Except not permissible within the Employ- ment Area Valley (EAV). (See EAV Map in AMC 4-2-0808.) 57. Only allowed in the Employment Area Val- ley (EAV) land use designation, unless the use is accessory in which case it is allowed outside the EAV. See EAV Map in AMC 4-2-0808. 58. Only allowed in the Employment Area Val- ley (EAV) land use designation. See EAV Map in AMC 4-2-0808. Outside of the EAV. use is allowed as an administrative condi- tional use. 59. Excluded within the area south of 1-405 and north of SW 16th Street. 60. Subject to the size restrictions of AMC 4-2-120A. Retail sales uses are limited to: flowers/plants and floral supplies; min/- marts; crafts. including supplies and fin- ished products, gift shops, and specialty markets. 61. No drive-through service shall be permit- ted, except for financial institutions which are permitted three (3) accessory drive-up windows that shall be part of the exterior wall of the financial institution structure. 62. Outside the Employment Area Valley (EAV) land use designation (see EAV Map in AMC 4-2-0808), drive-through is permitted only when accessory to a financial institu- tion. Financial institutions are permitted three (3) accessory drive-up windows that shall be part of the exterior wall of the finan- cial institution structure. Within the EAV, drive-through-service is permitted. 63. Subject to the size restrictions of AMC 4-2-120A. On-site services excluding dry cleaning. real estate offices. and fitness centers. 64. Limited to storage in association with rental services. In the CV Zone and within one thousand two hundred feet (1,2001 of NE 4th Street within the NE 4th Corridor, an administrative conditional use permit is required. Not allowed within one thousand (Revi.~ed 3/06) 4·2·080A two hundred feet (1,200') o, 0unset Boule- vard within the Sunset Corridor. Size restrictions apply per RMC 4-2-120A. 65. Allowed outright in the Employment Area Valley (EAV) land use designation. (See EAV Map in RMC 4-2-080B.) Outside the EAV, the use is limited to health clubs/fit· ness centers/sports clubs, which shall be developed as part of larger office struc- tures. Such uses shall not stand alone and shall not occupy more than twenty five per- cent (25%) of any one floor of a building whose primary use is office. 66. Requires a Hearing Examiner conditional use permit, except that electrical power generation and co-generation is permitted as an accessory use when located more than one hundred feet (100') from any property zoned for residential use, i.e. RC, R-1, R-4, R-8, R-10, R-14, RM, and produc- ing less than ten (10) megawatts of electric- ity. In the CO Zone, the use must be accessory to a medical institution. 67. Chemical and allied products manufactur- ing operations, or operations which are conducted predominantly out of doors, require a Hearing Examiner conditional use permit in the IM Zone, and an administra- tive conditional use permit in the IH Zone, except that these uses are not permissible in the area south of 1-405 and north of SW 16th Street. 68. Within the NE 4th Business District, within the Sunset Business District and within the Puget Drive Business District: a. Uses are subject to the size restric- tions of RMC 4·2· 120A, and b. Within Puget and Sunset Business Districts, department stores are not permitted. 69. Within the NE 4th Business District, within the Sunset Business District and within the Puget Drive Business District, uses are subject to the size restrictions of RMC 4-2-120A. Within the Sunset and Puget Business Districts, only the following on- site services are permitted: entertainment media rental, financial and real estate ser- vices, and repair services (excluding auto repair). Rental services require an adminis- trative conditional use permit. (Revised 3/06) 2 -62.2 70. No drive-throug,, service shall be permit· ted, except for multi-story financial institu- tions which are permitted three (3) accessory drive-up windows. The acces- sory drive-through service shall be located to the side and/or rear of the building, and the windows shall be part of the exterior wall. Drive-through lanes shall not be located between the street and the main pedestrian access to the buildings. These requirements may be adjusted through the Site Plan review process. 71. Only allowed in the Employment Area Val- ley (EAV) land use designation south of 1-405 subject to a Hearing Examiner Condi- tional Use Permit. See EAV Map in RMC 4·2·080B. No secure community transition facility (SCTF) shall: a. House more than six persons, exclud- ,ing resident staff. Any increase in the number of resident beds shall require an entirely new application. b. Be allowed within three hundred thirty feet (330') of atJ¥f;esidential zone located within of~utside the City limits. c. Be allowed adjacent to, abutting, across a parking lot from, or within the "line of sight" from a "risk potential activity" as defined in RCW 71.09.020, now or as hereafter amended, or risk potential facilities in existence at the time a site is listed for consideration. For the purposes of granting a Condi- tional Use Permit for siting an SCTF, the Reviewing Official shall consider a permanent, unobstructed visual dis- tance of six hundred feet (600') to be within "line of sight." The Reviewing Official may reduce the distance to less than six hundred feet (600') through the Conditional Use Permit process, if the applicant can demon- strate that a visual barrier exists or can be created that would reduce the line of sight to less than six hundred feet (600'). Risk potential facilities currently include, but are not limited to: • Community and recreation cen- ters, • Churches, synagogues, temples and mosques, • Licensed day care, • Licensed preschool facilities, • Public libraries, • Public parks, • Public and private schools, • School bus stops, • Sports fields, or • Publicly dedicated trails. d. Be located~!iin one mile from any SCTF, worl<release, prerelease, or similar facility. "Distance" referenced in paragraphs b, c, and d of this section is measured by follow- ing a straight line from the nearest point of the building in which the secure community treatment facility is to be located, to the nearest point of the zoning boundary line or property line of the lot on which the buffered use is located. The City may impose conditions to mitigate any potential adverse impact of the SCTF on surrounding uses, except that the Con- ditional Use Permit conditions may not impose restrictions on the SCTF greater than those set forth in RCW 71.09.285 through 71.09.340 inclusive. 72. Big-box retail uses are subject to compli- ance with design regulations applicable to District 'C' as detailed in RMC 4-3-100, except in the Employment Area -Valley south of Interstate 405. Big-box retail uses are not permitted in lhe NE 4th Street Commercial Corridor, Puget Commercial Corridor, and NE Sunset Bou- 2 · 62.3 4-2-0BOA levard Commercial Corridor within the Commercial Arterial (CA) Zone. 73. Within the Center Village Zone, Residential Bonus District, "residential only uses" are limited to townhouse development in the range of seven (7) to twenty (20) dwelling units per net acre. Garden style apartments are prohibited. Flats or townhouses, when in a mixed-use structure that combines res- idential with first floor commercial uses, have a maximum density of eighty (80) dwelling units per net acre. Projects within the Center Village are also subject to the provisions and development standards in RMC 4-3-095C and D, Center Village Res- idential Bonus District. Attached dwelling unit developments in the range of ten (10) to twenty {20) dwelling units per net acre may only be townhouse unit types. 7 4. a. , Flats permitted only north of N. 8th Street unless part of a mixed use structure with ground-floor commer- cial. Flats are permitted with a maxi- mum density of eighty five (85) d.uJ net acre. All residential parking except that intended for guests is required to be located in structured parking. A bonus of up to one hundred fifty (150) d.u./net acre permitted for flats in a mixed use structure with ground-floor commercial uses within them. b. Townhouses: Parking is required to be provided under a structure. A max- imum height of three stories is allowed for townhouses. Minimum density of twenty {20) d.u./net acre permitted and maximum of twenty five {25) d.u./ net acre permitted. 75. Only permitted west of Park Ave. and south of N. 8th Street. 76. Only Grades 9 through 12 permitted. 77. a. Only permitted north of N. 8th Street and as part of a mixed use structure. b. Limited to training related to research and development, arts, computer sci- ences, business, culinary arts, medi- cal-related fields and/or other knowledge-based industries. 78. No freestanding structures permitted unless architecturally and functionally inte- (Revised 6/05) 4~2-080A grated into an overall shopping center or mixed use development. 79. a. Must function as an anchor to larger retail developments that are planned as part of an integrated and cohesive center. b. Big-box use must be connected to additional structures within a shopping center with supporting retail or service uses structures with common walls, or plazas, or other similar features, excluding pushcarts/kiosks. c. Buildings oriented along Park Avenue must have one or more pedestrian entries on Park Avenue. 80. Drive-through windows must abut a build- ing facade or wall and must be located within the building footprint. 81. No stand-alone structures smaller than five thousand (5,000) square feet, except for pushcarts/kiosks, unless architecturally and functionally integrated into a shopping center or mixed use development. 82. a. Multi-story,:stand-alone retail buildings greater than seventy five thousand (75,000) square feet are allowed only with structured parking and a maxi- mum building footprint of sixty five thousand (65,000) square feet. b. No freestanding structures smaller than five thousand (5,000) square feet are permitted, unless architecturally and functionally integrated into overall shopping center or mixed use devel- opment. C. Buildings oriented along Park Avenue must have one or more pedestrian entries on Park Avenue. 83. a. Movie facilities with more than four (4) screens must be architecturally and functionally integrated into overall shopping center or mixed use devel- opment. b. Buildings oriented along Park Avenue must have one or more pedestrian entries on Park Avenue. 84. Pem,itted subject to the conditional use cri- teria regarding airport compatibility located in AMC 4-3-020. 85. Only permitted south of N. 8th Street. (Revised 6/05) 2 -62.4 86. Limited to airp.~ .. e manufacturing, biotech- nology, life science, information technology (i.e., hardware, software, computer compo- nents), or other high technology industry. 87. a. Attached Dwelling Units, General: Not allowed within one thousand feet (1,000') of the centerline of Renton Municipal Airport runway. Pem,itted as mixed use structures with ground-floor commercial except that parcels may be developed exclusively for attached dwelling units if: i. The entire frontage of the block is residential, ii. Support facilities such as exer- cise facilities, lobbies, etc., face the street frontage and living areas are in the rear, or iii. Entries to attached dwelling units are slightly elevated above the sidewalk level. · b. Stacked Flats: In addition to required provisions of attached dwelling units, general, above, the following provi- sions are required: i. Structured parking is required north of N. 8th Street. ii. South of N. 8th Street, only guest parking may be provided as sur- face parking. iii. A minimum of twenty (20} dwell- ing units per net acre are required. c. Townhouses: In addition to required provisions of attached dwelling units, general, above, a minimum density of twenty (20) dwelling units per net acre is required. 88. a. Not pem,itted within one thousand feet (1,000') of the centerline of Renton Municipal Airport runway. b. Structured parking is required north of N. 8th Street. c. Buildings oriented to pedestrian streets must have ground-floor com- mercial uses within them. 89. Not pem,itted within one thousand feet (1,000') of the centerline of Renton Munici- pal Airport runway. 4-2-080A · 106, Only structured park and rides are permit- ted in the Center Village Comprehensive Plan designation. 107. Only structured park and rides are permit- ted. 108. Permitted on existing parking required as accessory parking for a nonresidential use. 109. Not permitted in the area bounded by SW 7th Street, Shattuck Avenue, Airport Way and Hardie Avenue except when part of a mixed-use transit oriented development with structured parking. 110. Limited to existing fueling stations in the Commercial Neighborhood (CN) Zone. (Ord. 4186, 11-14-1988; Ord. 4404, 6-7-1993; Ord. 4432, 12-20-1993; Ord. 4466, 8-22-1994; Ord. 4631, 9-9-1996; Ord. 4736, 8-24-1998; Ord. 4773, 3-22-1999; Ord. 4777, 4-19-1999; Ord. 4786, 7-12-1999; Ord. 4802, 10-25-1999; Ord. 4803, 10-25-1999; Ord. 4827, 1-24-2000; Ord. 4840, 5-8-2000; Ord. 4847, 6-19-2000; Amd. Ord. 4963, 5-13-2002; Ord. 4982, 9-23-2002; Ord. 5001, 2-10-2003; Ord. 5018, 9-22-2003; Ord. 5027, 11-24-2003; Ord. 5028, 11-24-2003; Ord. 5080, 6-14-2004; Ord. 5100, 11-1-2004; Ord. 5124, 2-7-2005; Ord. 5191, 12-12-2005; Ord. 5241, 11-27-2006) (Revised 1/07) 2 -62.6 ) 90. Structured parking Street. ired north of N. 8th 91. a. Not permitted within one thousand feet (1,000') of the centerline of Renton Municipal Airport runway. 92. 93. 94. 95. 96. b. Structured parking required north of N. 8th Street. c. If located north of N. 8th Street, then must be located in a mixed use struc- ture. d. Buildings oriented to pedestrian streets, must have ground-floor com- mercial uses within them. a. Structured parking required north of N. 8th Street. b. Buildings oriented to pedestrian streets must have ground-floor com- mercial uses within them. C. Must be located within a mixed use structure. a. Structured parking required north of N. 8th Street. b. Buildings oriented to pedestrian · streets must have ground-floor corn- rnercial uses within them. a. Must be located within a mixed use structure. b. Structured parking required north of N. 8th Street. a. Multi-story, stand-alone retail buildings greater than seventy five thousand (75,000) square feet are allowed only with structured parking and a maxi- mum building footprint of sixty five thousand (65,000) square feet. b. Structured parking required north of N. 8th Street. a. Not permitted within one thousand feet {1,000') of the centerline of Renton Municipal Airport runway. Beyond one thousand feet (1,000') of the centerline of the Renton Municipal Airport run- way, this use is allowed subject to the conditional use criteria regarding air- port compatibility located at RMC 4-3-020. b. Structured parking required north of N. 8th Street. 2 -62.5 97. 98. 4-2-0SOA c. Bu JS oriented to pedestrian streets must have ground-floor com- mercial uses within them. · The use shall be architecturally and func- tionally integrated into a larger mixed use development. a. Not permitted within one thousand feet (1,000') of the centerline of Renton Municipal Airport runway. b. Structured parking is required. c. Buildings oriented to pedestrian streets must have ground-floor com- mercial uses within them. 99. Must be located within a mixed use struc- ture. 100. a. Not permitted within one thousand feet (1,000') of the centerline of Renton Municipal Airport runway. b. Must be located within a mixed use structure. 1 01. a. Not permitted within one thousand feet (1,000') of the centerline of Renton Mu11icipal Airport runway. b. fi'•iited only south of N_ 8th Street. c. Buildings oriented to pedestrian streets must have ground-floor com- mercial uses within them. 102. Buildings oriented to pedestrian streets must have ground-floor commercial uses within them. 103. Structured parking is required. 104. a. Limited to airplane manufacturing and related accessory uses, biotechnol- ogy, life science, information technol- ogy (i.e., hardware, software, computer components), or other high technology industry. b. For uses other than airplane manufac- turing and related accessory uses, structured parking required north of N. 8th Street. c. For uses other than airplane manufac- turing and related accessory uses, buildings oriented to pedestrian streets must have ground-floor com- mercial uses within them. 105. Not permitted when west or north of 1-405. (Revised 1/07) ( 8. DIFFERENCES IN STREET LAYOUT: Where the street layout actually on the ground varies from that shown on the Zoning District Maps, the designations shown on the maps shall be applied to the street as actually laid out so as to carry out the intent and purpose of the zoning plan of that district. C. CONFLICT BETWEEN ZONING MAP AND CHAPTER TEXT: If any conflict exists between the Zoning District Map and the text of this Chapter, the text of the Chapter will prevail. D. CONFLICT BETWEEN ZONING MAP AND LEGAL DESCRIPTION OF REZONE ORDINANCE: If any conflict exists between the adopting Zoning Map of the City and the text of any rezone ordi- nance for any particular parcel of property, the adopted Zoning Map will govern. Once any con- flict is shown to exist, the City Council shall ask the Administration to determine the source of the conflict and to make a recommendation for any future action by the Council. The Council will hold a public hearing to determine if it wishes to take any action to reso(ve the conflict. Notification ot the public hearing will be given to the property owners and parties of record to the rezone. E. DESIGNATION OF SPECIAL ZONING CATEGORIES AND TIME LIMITATIONS: Properties having a zoning category subject to a time limitation, such as a Planned Urban Devel- opment approval or reversionary zoning, and those properties under contract rezone shall be specially designatec on the Zoning Map to indi- cate their special nature and give notice to tho public that further inquiry into their zoning status is necessary. (Ord. 5153, 9-26-2005) F. ANNUAL MAP UPDATE: The Zoning Map of the City of Renton shall be up- dated and presented to the Council on an annual basis for adoption by the Council as the formal and legal zoning classification for the properties within the corporate limits of the City. (Ord. 1472, 12-18-1953; Ord. 3101, 1-17-1977; Ord. 4302, 12-17-1990; Amd. Ord. 4963, 5-13-2002) 2-7 4-2-050A 4-2-040 ZONING REGULATION INTERPRETATION: A. WIRELESS COMMUNICATION FACILITIES: 1. Entire Lot Considered: For purposes of det_ermining whether the installation of a tower or antenna complies with zoning devel- opment regulations, including but not limited to setback requirements, lot coverage re- quirements and other such requirements, the dimensions of the entire lot shall control, even though antennas or towers may be located on leased parcels within such lots. 2. Installation Not Considered an Expan- sion of Nonconformity: Towers constructed and antennas installed in accordance with the provisions of this Chapter shall not be deemed to constitute the expansion of a non- conforming use or structure. A different exist- ing use of an existing structure on the same lot shall not preclude the installation of an an- tenna or tower on such lot. (Ord. 4689, 11-24-1997; Amd. Ord. 4963, 5-13-2002) 4-2-050 PERMITTED LAND USES ESTABLISHED: A. CATEGORIES OF USES ESTABLISHED: This Section establishes permitted, conditional, accessory and prohibited uses, by zone, for all properties within the Renton City Limits. All uses in a given zone are one of six (6) types: PERMIITED USES: Land uses allowed out- right within a zone. CONDITIONAL USES (ADMINISTRATIVE): Land uses which may be permitted within a zoning district following review by the Devel- opment Services Division Director to estab- lish conditions mitigating impacts of the use and to assure compatibility with other uses in the district. CONDITIONAL USES (HEARING EXAM- INER): Uses with special characteristics that may not generally be appropriate within a zoning district, but may be permitted subject (Revised 12/05) 4-2-0508 to review by the Hearing Examiner to estab- lish conditions to protect public health, safety and welfare. ACCESSORY USES: Uses customarily inci- dental and subordinate to the principal use and typically located upon the same lot occu- pied by the principal use. Some accessory uses are specifically listed, particularly where a use is only allowed in an accessory form, whereas other accessory uses are deter- mined by the Development Services Division on a case-by-case basis per RMC 4-2-050C4 and C6, Accessory Use Interpretations and Unclassified Uses. · PROHIBITED USES: Any use which is not specifically enumerated or interpreted by the City as allowable in that district. Any use not specifically listed as a permitted, conditional, or accessory use is prohibited, except those uses determined to be unclassified and per- mitted by the Development Services Division Director pursuant to RMC 4-2-040C6. Any prohibited use is illegal and is a misdemeanor punishable under RMC 1 -3-1. UNCLASSIFIED USE: A use which doeS' not appear in a list of permitted, conditionally per- mitted, or accessory uses, but which is inter- preted by the Development Services Division Director as similar to a listed permitted, con- ditionally permitted or accessory use, and not otherwise prohibited, pursuant to RMC 4-2-050C6, Unclassified Uses. (Ord. 5159, 10-17-2005) 8. ZONING USE TABLES ESTABLISHED: The following tables establish whether a specific use is permitted in a zoning district and whether the use is allowed as "permitted," "conditional," or "accessory" use. The zone is located on the hori- zontal row and the specific use is located on the vertical column of these tables. C. INTERPRETATION OF ZONING USE TABLES: 1. Legend: The following letters have the following meanings when they appear in the box at the intersection of the column and the row: (Revised 12/05) 2-8 P Permitted Use AD Conditional Use -Administrative H Conditional Use-Hearing Examiner AC Accessory Use 2. Other Requirements Applicable: The above uses are subject to the review proce- dures specified in chapter 4-9 RMC, Permits -Specific, the development standards of chapters 4-3, Environmental Regulations and Overlay Districts, 4-4, City-Wide Property De- velopment Standards, and 4-6, Street and Utility Standards, and may be subject to addi- tional conditions as noted in subsection C3 of this Section. The Aquifer Protection Regula- tions of RMC 4-3-050, Critical Areas Regula- tions, further restrict usage of those properties located within the Aquifer Protec- tion Area Boundary shown in RMC 4-3-0500, Maps. 3. Additional Use-Related Condltions: .. lf. · a number also appears at the intersection of the column and the row, the use is also sub- ject to the additional requirements as listed immediately following the use table in RMC 4-2-080 Conditions Associated with Zoni;W;, Use Tables. All applicable requirements shaf( govern a use whether specifically identified in this Chapter or not. 4. Accessory Use Interpretations: The Development Services Division Director may determine if an unclassified use or a classi- fied use, even if not specifically listed as ac- cessory (AC), is permitted as an accessory use in a zone. Upon inquiry by an applicant, an administrative interpretation shall be made by the Development Services Division Director to determine if a proposed use Is al- lowed as an accessory use utilizing the rules of interpretation in subsection C4a of this Section. If the applicant does not concur with the interpretation of whether a use is acces- sory or with the permit type applied to a use, appeal may be made pursuant to RMC 4-8-110. Interpretations made by the Devel- opment Services Division Director shall be documented, and updates to Title 4, when consistent with the title format and level of de- tail, shall incorporate "accessory use" inter- pretations upon approval by the legislative authority. 0 a. Rules of Interpretation for Acces- sory Uses: To determine whether a use is permitted as accessory, the Develop- ment Services Division Director shall uti- lize the following rules of interpretation: i. II a use is allowed or conditionally allowed in a zone as a "permitted" use, accessory uses associated with the primary use that are determined to be incidental, necessary and com- monly found with the permitted use may be allowed with the same permit type as the primary use, unless spe- cifically stated otherwise. ii. If a use is permitted or condition· ally permitted as a primary use, sub- ject to location restrictions, the listed use, even as an accessory use, is also subject to the same location re- strictions as the primary use, unless specifically stated'otherwise. For ex- ample, ii a use is restricted to a loca- tion within the Employment Area Valley (EAV) land use designation, then the accessory form of the use is only permitted in the EAV, unless specifically stated otherwise. iii. Required parking, required site utilities/facilities, and other develop- ment standards required in order to establish or operate a use on a site according to the AMC are consid- ered accessory. 5. Prohibited Uses: If no symbol appears in the box at the intersection of the column and the row, the use is prohibited in that dis- trict unless otherwise determined by the De- velopment Services Division Director, pursuant to this subsection C6 of this Section, Unclassified Uses, or subsection C4, Acces- sory Use Interpretations. 6. Unclassified Uses: Upon inquiry by an applicant, an administrative interpretation shall be made by the Development Services Division Director to determine if a proposed use not specifically listed is allowed utilizing the criteria in subsection C6a of this Section. Should interpretation be made that a pro- posed, unlisted use not be allowed in a spe- cific zoning district, the Director shall indicate which zones, if any, do permit the use. If the 2-9 4-2-050C Development Services Division Director's in- terpretation indicates that an unlisted use is not consistent with the permitted, conditional or accessory uses in any district, or ii a party does not concur with the permit type applied to a use, appeal may be made pursuant to AMC 4-8-110. Interpretations made by the Development Services Division Director shall be documented, and updates to TIiie 4, when consistent with the title format and level of de- tail, shall incorporate "unclassified use" inter- pretations upon approval by the legislative authority. a. Criteria for Unclassified Uses: In order to make a determination that an un- classified use is permitted, conditionally permitted or accessory, the Development Services Division Director must find that the use is: i. In keeping with th{\ purpose and intent of the zone, and consistent with the Renton Comprehensive Plan policies; and ii. Similar in nature to, and no more intense than, a specifically listed per- mitted, conditional or accessory use; and iii. Consistent with subsection C4 of this Section, if determined to be per- missible as an accessory use. 7. Use Table Conflicts: In the event of a conflict between AMC 4-2-060, the Master Zoning Use Table and any other individual zoning use tables, AMC 4-2-070A through 4-2-070S, the provisions of AMC 4-2-060 shall have priority. 8. Existing Legal Uses: Where the term "existing" or "existing legal" follows a listed use type within the table(s) (e.g., flats or townhouses, existing legal), then those uses that can document their legal status, are con- sidered to be a permitted use given all the rights of other permitted uses within the dis- trict. In addition, these uses may be rebuilt "as is, where is" should they suffer damage. These uses may be remodeled without limita- tion on value and may be enlarged subject to current code requirements (e.g., height limits, lot coverage, density limits, setbacks, park- (Revised 12/05) 4-2-050C ing, etc_), unless otherwise ~,,ecifically condi- tioned in RMC 4-2-080. (Ord. 4523, 6-5-1995; Ord. 4549, 8-21-1995, 2-12-1996; Ord. 4587, 3-18-1996; Ord. 4595, 4-8-1996; Ord. 4851, 8-7-2000; Ord. 4782, 5-24-1999; Amd. 4963, 5-13-2002) (Revised 12/05) 2 • 10 0 \...,llctp~9 1 / .J-UV. VY AL E. RESIDENTIAL-8 DU/ACRE (R-8): The Residential-8 Dwelling Units Per Net Acre Zone (R-8) is established tor single family residential dwellings allowing a range of four (4) to eight (8) dwelling units per net acre. It is intended to implement the Single Family Land Use Comprehensive Plan designation. Development in the R-8 Zone is intended to create opportunities for new single family residential neighborhoods and to facilitate high-quality infill development that promotes reinvestment in existing single family neighborhoods. It is intended to accommodate uses that are compatible with and support a high-quality residential environment and add to a sense of community. Interpretation of uses and project review in this zone shall be based on the purpose statement, objectives and policy direction established in the Residential Single Family land use designation, Objective LU-FF, Policies LU-147 through LU-156, and the Community Design Element of the Comprehensive Plan. 12/06/00 "~y o CIT~ ::>F RENTON \~~ Heariag Exam;,~ ~,;N'1'0~r-K-ath_y_K_e_a_lk-•r_._M_•y_a_, _____________________ F_r•_d_J_._K_a_u_fm-au __ _ November 6, 2007 Kevin Foy Zoning Specialist WFI 575 Andover Park West, Ste. 201 Tukwila, WA98188 RE: T-Mobile Monopole in SE 3ro Place and Anacortes Ave SE Right-of-Way Appeal LUA 07-065, CU-A, ECF Dear Mr. Foy: The appeal hearing on the above referenced matter has been scheduled for Tuesday, December 18, 2007 at 9:00 a.m. The hearing will take place in the Council Chambers on the seventh floor of the Renton City Hall. The address is 1055 S Grady Way in Renton. If this office can provide any further assistance, please address those comments in writing. Sincerely, !1a/it uo J~rj'Y\_) Nancy Thompson Secretary to Hearing Examiner City of Renton Enclosure cc: Ann Nielsen Assistant City Attorney Neil Watts, Development Services Director Stacy Tucker, Development Services All Parties of Records ----,o-5_5_S_ou_th_Gr_a-dy-W-ay ___ R_e_nt_o_n,-W-as-hi-ng-rto-n-98-0-55---(-42_5_) -43-0--6-5-15 ____ ~ a,,_ AHEAD OF THE CURVE City of Renton: Report & Decision: Project Name: Owner: File Number: Department of Planning/ Building/ Public Works Administrative Land Use Action October 15th, 2007 T-Mobile Monopole in SE 3rd Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 LUA07-065, CU-A, ECF Project Manager: Jill K. Ding OCT 2 9 2001 RECEIVED Ct1Y CLERK'S OFF!CI!! I ; {O l'n,1 Y-5, Project Description: The application is requesting Administrative Conditional Use Permit approval for the replacement of an existing 40-foot tall wood power pole with a 59-11-inch wood power pole that would also function as a monopole I structure. The monopole] and associated equipment vault would be located within the public right-of-way and is zoned Residential-8 (R-8) dwelling unit per acre. Single family residences surround the project site on all sides. The project site totals I 04 square feet in area and would result in 32 cubic yards of excavations. Access to the site would be provided via Anacortes Avenue NE. Project Location: Northwest of 440 I SE 3rd Place, within SE 3rd Place and Anacortes Ave SE right-of-way Conclusions by Development Services Director: Neil Watts I) The subject proposal does not comply with all of the policies and codes of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2) The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surrounding neighborhood that cannot be mitigated. The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3) Unrebutted testimony was received from real estate professionals stating that the siting of a monopole I structure at the proposed location would reduce the property values in the vicinity. CC'. l-cvry Wev,-err, C, +y 4t/y AJ(, / Wo, tfs., Dev. 5,vc.. ~ 'Di recfv.,.- :S·b:;;e,y ,;,eke-,-, ~ v, s ... vcs "f:ortn,€.. vVo. l-brt-1 C,t-y C \e_..,;IZ Decision: The conditional Use Permit/or the T-Mobile Monopole in SE 3rd Place and Anacortes Avenue SE right-of-way, File No. LUA07-065 CU-A, ECF is denied. Land Use Decision Appeal Process: Appeals of either the environmental determination (RCW 43.21.Co75(3), WAC 197-11-680) and/or the land use decision must be filed in writing on or before 5:00 PM October 29,2007. T-Mobile Appeal Narrative: T-Mobile hereby appeals the decision made by Development Services Director in regards to application LUA07-065, CU-A, ECF. T-Mobile will demonstrate the conclusions made forth should be reconsidered by a third party hearing examiner. Upon review, it is T-Mobile's belief that the supplemental information provided in this appeal and a chance to respond to public concerns should prove T-Mobile meets all standards/criteria set forth in City of Renton Code. Part One: Project Description/Background The proposal would include the replacement of an existing 40-foot tall wood Puget Sound Energy (PSE) distribution line pole with a 59'-J J '' wood power pole that would also serve as a monopole 1 structure supporting wireless cellular facilities. The proposed cellular antenna would be flush mounted and painted to match the color of the wood power pole. The primary function of the pole would remain as part of an electrical distribution system, the installation of the proposed wireless antennas would be a secondary function. Associated ground equipment is proposed to be located out of sight, below grade in a 13 'x 4 ''x 8' vault with only the hatch door being the visible part of the vault. The vault hatch would be screened with landscaping as required by the City. The site would be accessed via Anarnrtes Ave SE, which leads directly up to the access hatch proposed within the right-of-way. Once construction is complete, one vehicle trip per month is anticipatedfor maintenance purposes. The proposed project would result in the removal of 32 cubic yards of soil, which would be transported to an approved off-site location. Part Two: Administrative Land Use Action -Report & Decision Type of Land Use Action: Administrative Conditional Use Permit Consistency with Conditional Use Permit Criteria: 1) Height of the proposed tower: The proposal would replace an existing 40-foot tall PSE power pole with a 59-11- inch tall wood power pole that would also house wireless cellular antenna for T-Mobile. The surrounding R-8 zoning designation has a ma.ximum height of 30 feet and 2 stories and the surrounding PSE power poles have a maximum height of 40 feet. The proposed monopole 1 would exceed the ma.ximum height permitted for a single family residence by almost 30 feet and the existing PSE power poles by almost 20 feet and would therefore be the tallest structure in the neighborhood. T-Mobile Response: Per RMC 4-4-140 as well as the R-8 zoning designation, monopole I structures are allowed via Administrative or Hearing Examiner Conditional Use Permit. A monopole I structure has a height limit ofless than 60-feet. T-Mobile's application is for the 59-feet I I-inches which is minimal height required to meet the intended coverage area. Ordinance No 5286, Renton Municipal Code 4-2-080 Conditions Associated with Zoning Tables section A. Subject to the following conditions: 45. For Monopoles Proposed on Public Right-of-way: may be allowed via an administrative conditional use permit and right-of-way use permit. 46. Eligible for an administrative conditional use permit provided that the facility has a minimum setback of one hundred feet (1 (){)')from any adjacent residentially zoned parcel, otherwise a Hearing Examiner conditional use permit is required. T-Mobile Response: According to the Renton Municipal Code Monopole I structures are allowed through administrative and hearing examiner conditional use permits. Monopole 1 has height definition of anything under 60-feet. T-Mobile decision to extend the utility pole 19-feet 11-inches was considered to have least amount of imposing impact aesthetically while developing a footprint that does not exist for T-Mobile. I-Mobile is committed to bring service where their customers work and play. Customers rely on I-Mobile wireless services for work and recreational use. As T- Mobile continues to add wireless technologies the client base continues to grow. Clients are no longer residing just in urban areas and have expanded into suburbs and residentially zoned areas and expect a seamless coverage, commuting, traveling, working, and recreational use. The applicant contends that the project site was selected in part due to the existing trees that would screen the proposed monopole I from the surrounding properties. Staff has reviewed the proposal, and it appears that there are no existing trees in the immediate vicinity of the proposed monopole I structure, and therefore no screening would be provided for the existing single family residences located in the immediate vicinity of the project silc. 1Yie trees located in the existing neighborhood would provide some screening of the monopole I from the residences located along SE 41h St and SE 3rd St, but would not the residencies along SE 3rd Place and Anacortes Ave SE, which are in the immediate vicinity. T-Mobile Response: The site was considered because it does provide some screening for the residences along SE 4th and SE 3nl St. Unfortunately, there was no site that could be identified meeting the criteria set forth from every residence. During the identification process, it was acknowledged that no free standing Monopole 1 would be permissible in this residential search ring. Code restriction on parcel size, setbacks, and allowable uses would not allow monopole structure solely built for wireless carriers. Limited to strictly collocating on PSE utility poles, typical tree foliage is limited due maintenance required for power-lines. Since utility poles were the only permissible option, T-Mobile identified this site to provide some screening. Please note T-Mobile, as recognized by the City, is a secondary use on the PSE utility pole in the Right-of-Way. Therefore is limited in design aspects since final approval must meet PSE standards. 2) Proximity of the tower to residential structures and residential district boundaries The proposed monopole I structure would be located at the SE corner of the intersection of Anacortes Ave SE and SE 3rd Place within an R-8 zone and abutting the front yard area of an existing single.family residence located at 4401 SE 3rd Place. The project site is surrounded on all sides by single story single family residences. Staff has received numerous comments from the immediately abutting residents and surrounding neighbors expressing their displeasure with the proposal to locate a monopole I structure within their neighborhood. Their comments centered on health concerns, aesthetic impacts to their neighborhood, and the concern that their property values could be adversely impacted. Staff has reviewed lhese comments and concurs that the proposed monopole I structure would have an adverse impact on the aesthetics ofthe existing neighborhood due to the lack of screening in the immediate vicinity of the project site and due to the location of the monopole I within the immediate vicinity of an existing single family residential neighborhood. Therefore, staff recommends that an alternate location be identified that would have less ofan adverse impact on an existing single family residential neighborhood. T-Mobile Response: T-Mobile understands the apprehension from the neighborhood. Growth in demand for wireless service, along with increased use by existing customers and the advent of next generation wireless device technologies overburdens the wireless network and can result in dropped calls and spotty coverage. The decision to place new wireless facilities is driven by the needs and expectations ofT-Mobile's customers including: • Customer demand for uninterrupted wireless service throughout homes and neighborhoods; • Customer desire for next generation wireless device technologies; • T-Mobile's responsibility to expand capacity at existing sites and plan ahead for future customer demand; and • Government requirements for emergency services and Enhanced 9-1-1. T-Mobile uses specific technical criteria to determine if a new wireless facility is needed. Radio frequency (RF) conducts a thorough analysis ofT-Mobile's wireless network, including: • Network Statistics-Engineers review network data to scientifically measure overall network performance. The data includes the amount of traffic at individual wireless facilities, including the number of dropped and blocked calls. • Customer Satisfaction Surveys and Feedback-Customers are asked about dead spots, dropped calls and coverage levels in their home and neighborhoods. • Drive Test-Field technicians, engineers and third-party researchers collect real- time statistics by canvassing service areas with wireless phones, mobile data computers, and analysis equipment to test network quality. Drive tests simulate the customer experience and provide critical signal strength and call quality data. T-Mobile identified a candidate located at 400 Union Ave SE, Renton WA 98059. Application was made after identifying the process would include a Hearing Examiner CUP and variance required. The variance was required because the parcel owned by Seattle Public Utilities did not have a full one (1) acre size parcel. The parcel was .92 acres. T-Mobile recognized the risk, but spent money in putting together the application because it best fit the intent of the code and the requirements at that time per zoning designation. A letter addressed by Neil Watts, Development Services Director, stated the City would not allow the application because of the failed code requirement of a one (1) acre parcel size. After denying T-Mobile's original application (see attachment A) and in accordance with new ordinance (January 2007), the decision to scan the search ring and identify all possible candidates with new restrictions was given. Already established by the denied application, the only candidates in the search that met code requirements were PSE utility poles. The lack of tree screening is compensated by T-Mobile's design to utilize an existing feature of the neighborhood. PSE poles are apparent through out the neighborhood. By attaching antennas on the pole it utilizes a structure already present. By extending the pole, it meets the coverage objective and requirements needed from T-Mobile RF and creates the least amount of impact on the neighborhood. Per code, R-8 zoning designation, monopole 1 structures are permissible (less than 60-feet) and T-Mobile's design creates the least amount of impact. Health concerns arc not an issue and evidence provided by T-Mobile shows compliance with all local and federal standards for health safety. 3) Nature of Uses on adjacent and nearby properties. The project site would be located within an existing single family neighborhood zoned R-8. The existing single family residences surrounding the project site are primarily single story residences. Staff has received numerous comments from the surrounding neighbors regarding their concerns with the proposal to locate a monopole 1 structure within their neighborhood. Most of the comment centered on health concerns, the aesthetic impact that the monopole 1 structure would have on their neighborhood, and the adverse impact that the monopole 1 structure would have on their property values. Included with the comments were some assessments from real estate agents confirming the neighbors concerns that the proposed monopole 1 structure would reduce their property values. Based on the comments received, staff has concerns that the proposed location is not the most suitable location for a monopole 1 structure. The proposed monopole J would be substantially taller that the surrounding single family residences and the existing PSE power poles and is located immediately abutting the front yard area of an existing single family residence. T-Mobile Response: T-Mobile's application is designed to follow the parameters of the RMC. The Code states the permissible height is less than 60-feet in R-8 designations. T-Mobile needs the height to establish line of site technology to work with its established network. The difference is 19-feet I I-inches, the additional height of the utility pole is minimal to a brand new development else where in the neighborhood. The view the residences will have from 0-40-feet will not change. By providing some screening the maximum amount available in the area, T-Mobile has identified a location that has met the code requirements. To establish a more detailed footprint and to meet customer needs, T-Mobile must create a Wireless Communication Facility for this area. After all the criteria involved in picking this specific location, the concerns will not disappear for alternate candidates. Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents. I-Mobile has met code guidelines and is uncertain any residential applications will be accepted if this application is denied for the conclusions mentioned above. I- Mobile has read code, designed the application to meet standards set forth, filed a pre- application meeting to gain further information provided after a preliminary review by city employees. I-Mobile is unclear as to why this approval was not granted since all design standards are met and no indication was provided at the time of the pre-application meeting the design proposed would create aesthetic impact which would lead to a denied application. 4) Surrounding Topography The surrounding topography is flat. Due to the flat topography of the site, the prevalence of single story homes, and the lack of trees in the immediate vicinity of the project site the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed into the surrounding environment. I-Mobile Response: The topography is flat and part of the reason the site was chosen. Due the height restraint ofless than 60-feet by RMC, the direct-line-of-site technology would be limited if antennas were obstructed. Trees taller than 60-feet and in close proximity of the site would diminish the signal strength significantly. It was already established by the previous denial that a I acre parcel was required unless the facility was placed within the ROW. After an analysis of the PSE poles I-Mobile came to the conclusion the application met the intent of the RMC. 5) Surrounding tree coverage and foliage There are existing mature trees in the surrounding neighborhood; however there are no trees within the immediate vicinity of the project site. The applicant indicates that no trees would be removed for the installation of the proposed monopole structure. The applicant indicates that the site was selected in part due to the existing mature trees located in the surrounding neighborhood, which would provide screening of the monopole from the surrounding neighborhood. However, there are no trees in the immediate vicinity; monopole 1 structure would be highly visible to the properties in the immediate vicinity. In section number one, staff acknowledges "The trees located in the existing neighborhood would provide some screening of the monopole 1 from the residences located along SE 4'h St and SE 3rd St". Due to the limitations set forth by the design standards, I-Mobile could not identify a site that meet screening from all residences. Due to the nature of developing a site, I-Mobile will create some presence in the neighborhood. The steps I-Mobile has taken identifies the need and creates a facility with the least amount of impact. Identifying another PSE pole will still have an effect of those residences abutting the pole. 6) Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. The applicant contends that the proposed monopole 1 structure has been designed to reduce its impacts on the surrounding single family residential neighborhood. The project site was selected due to the existing mature trees in the surrounding neighborhood that would screen the monopole from the surrounding neighborhood. The monopole would be made of wood and replaces an existing wood PSE power pole, the antennas would be flush mounted and painted to match the color of the pole. The equipment cabinet would be installed underground in a vault. Sta.ff has received comments from the surrounding neighborhood. Some of the concerns cited by the neighbors include aesthetic impacts from having a 59-foot I I-inch tall monopole 1 structure installed within their single family residential neighborhood. The proposed monopole would abut the Font yard area of a single family residence and is adjacent (across the street) from several other residences. Sta.ff has concerns that the proposed location may not be suitable for a monopole 1 structure, due to its location within an existing established singlefami!v neighborhood and the aesthetic impact it would have on the neighborhood and the lack of any mitigation that could be required to reduce the impacts. The proposed monopole would be 59-feet I-inches in height, which is almost 30 feet taller than the maximum height permitted in the R-8 zone and almost 20 feet taller than the existing PSE power poles. There are no trees in the immediate vicinity to screen the monopole from the properties abutting and/or adjacent to the project site. I-Mobile Response: I-Mobile proposed the application lo the standards set forth in RMC. The code states any R-8 zoning designation, can have up to less than 60' monopole I structure. The code dictates the maximum height a WCF can apply for. In this instance, I-Mobile RF engineers need the maximum height stated in the code for the technology to function properly. Trees and foliage are limited due to the fact the utility pole is in the ROW. T- Mobile's considers the application using a utility pole as a form of screening itself. Tree screening of monopoles is usually required to conceal the new WCF in the area. Since PSE poles are abundant in this neighborhood, I-Mobile will utilize the existing characteristics of the neighborhood to screen the development of the new WCF. 7) Proposed ingress and egress 8) Potential noise, light and glare impacts T-Mobile Response: No further comment provided for numbers 7 and 8. 9) Availability of suitable existing towers and other structures Limited information was provided by the applicant regarding alternate towers and structures. A previous attempt was made to install a monopole 1 structure on a Seattle Public Utilities pump station facility located at the terminus of Union Ave SE, south of SE 4th St. However, the application was rejected by the City as the proposed project site did not meet the applicable criteria for permitting a monopole 1 facility in an R-8 zone. The proposed monopole would have need located closer than 100-feet from a residential property and the size of the property was less than 1 acre. No other information regarding other alternative sites was provided. T-Mobile Response: As mentioned and provided, T-Mobile made application for an alternative site and was denied. The denial stemmed from being .08 of an acre short of the required 1 acre. T-Mobile addressed the situation and applied for a variance on the .08 acre short since it was close proximity in size. T-Mobile believed the intent of the code was to find parcel big enough to support a WCF and being only 3,485 square feet short of an acre, a variance would be granted. After getting rejected, T-Mobile followed the RMC and all of the design requirements set forth in the WCF section and the requirements set forth from the R-8 zoning designation. T-Mobile's only option was to consider PSE utility poles within the search ring. 10) Conformance with the Comprehensive Plan, Zoning Code and other ordinances Policy U-100-Require that the siting and location of telecommunications facilities be accomplished in a manner that minimizes adverse impacts on the environment and adjacent land uses. The proposed monopole 1 structure has been sited in an existing single family residential neighborhood that is zoned R-8. Staff has received numerous comment letters from the surrounding neighbors expressing concern that the proposed facility may negatively affect their health, adversely impact the aesthetics of the neighborhood, and reduce their property values. The applicant contends that efforts have been made to reduce the impacts of the monopole on the surrounding neighborhood, by replacing the existing wood power pole with another, taller wood power pole, flush mounting the antennas on the pole and painting them to same color as the pole, and installing the equipment cabinet underground in a vault. It does not appear that the intend of this policy is met as the measures proposed to diminish the appearance of the facility would not accomplish that. Adjacent land uses would be impacted by the siting of the facility in the established residential neighborhood. T-Mobile Response: By using the characteristics of the existing PSE utility poles located throughout the neighborhood, T-Mobile contends that it has limited the adversely impact on the aesthetics of the neighborhood. If a new free standing monopole built only for wireless carriers were sited in the neighborhood it would create a significant impact. Vaulting the radio cabinets keeps the associated radio equipment out of public site and underground, thus creating almost no impact from the radio cabinets. Painting the antennas to match the pole in color and flush mounting them to the utility pole eliminates the impact of antennas horizontally off the pole and creating attention by being discolored from the PSE pole. Policy U-101-Require that cellular communications structures and towers be sensitively sited and designed to diminish aesthetic impacts, and be collocated on existing structures and towers wherever possible and practical. The applicant contends that the proposed location was chosen to maximize the use of existing trees to screen the monopole from the surrounding residential neighborhood. No trees would be removed as a result of project construction. There are existing trees in the surrounding neighborhood; however staff has concerns regarding the lack of screening available for the existing residences located in the immediate vicinity as there are no trees in the immediate vicinity of the proposed monopole. The proposed antenna would be collocated on an existing PSE power pole that would have to be replaced with a taller pole. It does not appear that the intent of this policy is met as the proposed monopole 1 structure would not be sensitively sited, an alternate location that is not immediately surrounded by single.family residences would be preferred. T-Mobile Response: We believe that this proposal is sensitively sited and that it is the least impactive alternative available to T-Mobile under the code. It is also making use of existing structures. Therefore, it is implementing policy U-101. As mentioned before, technical data is researched for new WCFs. T-Mobile shows a need for a new facility with set parameters. Engineers examine existing wireless facilities in the search area to determine if they can be expanded. Using existing facilities is usually the most desired option. Wireless signals travels by line of sight, large buildings, hills and tall trees can limit signal strength. Natural geographic features, structures and vegetation are critical factors that often dictate necessary locations for new wireless facilities. Local zoning and building codes guide where wireless facilities can be built and impose specific requirements for location, height and aesthetics. T-Mobile gives priority whenever possible to siting new wireless facilities in industrial, commercial and mixed-residential areas. However, customers increasingly use their wireless devices at home, making it necessary to place wireless facilities in and around residential neighborhoods. The original application emphasized more screening due to its placement within the parcel and surrounding vegetation. It called for a new monopole structure I to be screened by existing trees on the parcel owned by Seattle Public Utilities. T-Mobile's thought process for applying on a parcel that doesn't meet the one (I) acre requirement (parcel was .92 of an acre) but screens more adequately would be considered for approval. Since the application didn't get submitted due not meeting the code requirements, T-Mobile searched for other possible candidates. PSE poles were the only option T-Mobile considers to meet all requirements. Collocating on an existing PSE pole (swapped out) and adding the necessary height within code limit creates the least amount of impact possible. Please see our SEPA determination of non-significance (Attachment B). B) Zoning Code C) Development standards T-Mobile Response: T-Mobile does not have further comment on the zoning code and development standards. T-Mobile Response to the Conclusions: The City ofRenton's explanation for denying T-Mobile's application is not substantiated by the record or the requirement of the Code. Conclusion I states the inability of the project to mitigate aesthetic impacts on the surrounding single family residential neighborhood. By utilizing the characteristics (PSE poles) of the neighborhood T-Mobile limits aesthetic impact on the neighborhood. Further indication that the impacts are minor is the issuance of the DNS from the environmental review board. The total impact/footprint T-Mobile will have on this application different from what is existing now is the 19-feet I I-inches extra in height on the PSE pole and a hatch door in the ground. The trade off of having in-house reception for new device technologies, emergency services, and Enhanced 9-1-1 is less than 20' feet of wood pole. The customers have dictated the need for additional/seamless coverage and T-Mobile is trying to provide coverage while following the RMC. To create a footprint in a residential neighborhood by changing the height of a PSE pole is the least amount of impact possible. Conclusion 2 states the proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on surrounding neighborhood that cannot be mitigated. City also states the proposal does not comply with all the wireless communication facilities conditional use criteria. Per RMC 4-4-140 F (2) Visual Impact: "Site location and development shall preserve the pre-existing character of the surrounding buildings and land uses and the zone district to the extent consistent with thefimction of the communications equipment. Wireless communication towers shall he integrated through location and design to blend in with the existing characteristics of the site to the extent practical. Existing on-site vegetation shall be preserved or improved. and disturbance of the existing topography shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area ". T-Mobile's application is preserving the pre-existing character of the surrounding neighborhood as much as practical. The additional 19-feet I I-inches required in height on the PSE utility pole is the only change the neighborhood would notice. Any new monopole 1 structure would impact the neighborhood significantly by building a 59-foot I I-inch pole that does not blend into the neighborhood. Even if screened by trees the section of monopole where the antennas are located would be noticeable due to the line of sight needed to work with the existing network system. T- Mobile believes utilizing the utility pole creates the least amount of impact. Conclusion 3 by the City states unrebutted testimony was received from real estate professionals stating a loss in property values. T-Mobile was never given an opportunity to provide testimony or supporting documention to address this testimony. The letters were seen by T-Mobile but not considered credible since there was no supporting documentation or studies -rather only opinions of realtors and not appraisers. This criteria is not in the land use code and therefore we did not perceive it to be a valid argument for denial. Provided in attachment C, is a property value report done by third party assessor for a different T-Mobile site. T-Mobile would have addressed any concerns by the City on property values if the City had requested any additional information. The letters submitted and on file show an emotional attachment from the realtors expressing their concerns. The real tors all live within the neighborhood and are connected to the application. Please review documentation provided by T-Mobile on property values. Based on the content of the application and sensitive consideration given to aesthetic impacts by our site proposal, we believe this project should receive approval. Failure to approve this site would eliminate all potential sites within the search area and result in a barrier to entry (Telecomm Act 1996). T-Mobile would have a significant coverage gap in service with no effective means of serving this area utilizing existing technology. We therefore respectfully request that the administrative decision be overturned. ' City of Renton: Report & Decision: Project Name: Owner: File Number: Department of Planning/ Building/ Public Works Administrative Land Use Action October 15 11\ 2007 T-Mobile Monopole in SE 3rd Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton WA 98057 LUA07-065, CU-A, ECF Project Manager: Jill K. Ding c;,f DF REivTO~; fl CT~ 9 2001 RECEIVED f,!TY CU,RK'S 0FF1CF. I; /0 rw1 JS Project Description: The application is requesting Administrative Conditional Use Permit approval fi,r the replacement of an existing 40:foot tall wood power pole with a 59-11-inch wood power pole that would also function as a monopole 1 structure. The monopole] and associated equipment vault would be located within the public right-oFway and is zoned Residential-8 (R-8) dwelling unit per acre. Single familv residences surround the project site on all sides. The project sile totals 104 square feet in area and would result in 32 cu hie yards of excavations. Access to the site would be provided via Anacortes Avenue NE. Project Location: Northwest of 4401 SE 3'd Place, within SE yct Place and Anacortes Ave SE right-of-way Conclusions by Development Services Director: Neil Watts cc._ I) The subjecr proposal does not comply with all of the policies and codes oftlu: City of Renton, due to the inability of the project to miligale the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2) The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surrounding neighborhood that cannot be mitigated. The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3) Unrebutted testimony was receivedfrom real estate professionals stating that the siting,~( a monopole 1 structure at the proposed location would reduce the property values in the vicinity. Decision: The conditional Use Permit.for the T-Mobile Monopole in SE J'd Place and Anacortes Avenue SE right-of-way, File No. LUA07-065 CU-A, ECF is denied. Land Use Decision Appeal Process: Appeals of either the environmental determination (RCW 43.21.Co75(3), WAC 197-11-680) and/or the land use decision must be filed in writing on or before 5:00 PM October 29,2007. T-Mobile Appeal Narrative: T-Mobile hereby appeals the decision made by Development Services Director in regards to application LUA07-065, CU-A. ECF. T-Mobile will demonstrate the conclusions made forth should be reconsidered by a third party hearing examiner. Upon review, it is T-Mobile's belief that the supplemental information provided in this appeal and a chance to respond to public concerns should prove T-Mobile meets all standards/criteria set forth in City of Renton Code. Part One: Project Description/Background The proposal would include the replacement of an existing 40-foot tall wood Puget Sound Energy (PSE) distribution line pole with a 59 '-11 '' wood power pole that would also serve as a monopole 1 struc/urc supporting wireless cellular facilities. The proposed cellular antenna would be flush mounted and painted to match the color of the wood power pole. The primary .function of the pole would remain as part ofan electrical distribution system, the installation of the proposed wireless antennas would be a secondary.function. Associated ground equijmient is proposed to be located out of sight, he/ow grade in a 13 'x 4' 'x 8' vault with only the hatch door being the visible part of the vault. The vault hatch would be screened with landscaping as required by the City. The site would he accessed via Anacortes Ave SE, which leads directly up to the access hatch proposed within the right-of-,rny. Once construction is complete, one vehicle trip per month is anticipated for maintenance purposes. The proposed project would result in the removal of 32 cubic yards of soil, which would be transported to an approved off-site location. Part Two: Administrative Land Use Action -Report & Decision Type of Land Use Action: Administrative Conditional Use Permit Consistency with Conditional Use Pem1it Criteria: 1) Height of the proposed tower: The proposal would replace an existing 40~foot tall PSE power pole with a 59-11- inch tall wood power pole that would also house wireless cellular antenna for T-Mobile. The surrounding R-8 zoning designarion has a maximum height of 30 feet and 2 stories and the surrounding PSE power poles have a maximum height of 40 feet. The proposed monopole I would exceed the maximum height permitted for a single family residence by almost 30.feet and the existing PSE power poles by almost 20.feet and would therefore be the tallest structure in the neighborhood. T-Mobile Response: Per RMC 4-4-140 as well as the R-8 zoning designation, monopole I structures are allowed via Administrative or Hearing Examiner Conditional Use Permit. A monopole I structure has a height limit of less than 60-feet. T-Mobile's application is for the 59-feet I I-inches which is minimal height required to meet the intended coverage area. Ordinance No 5286, Renton Municipal Code 4-2-080 Conditions Associated with Zoning Tables section A. Subject to thefiJllowing conditions: 45. For Monopoles Proposed on Public Right-o.fway: may be allowed via an administrative conditional use permit and right-o.fway use permit. 46. Eligible for an administrative conditional use permit provided that the.facility has a minimum setback <!f one hundred.feet ( I 00) from any adjacent residentially zoned parcel, otherwise a Hearing Examiner conditional use permit is required. T-Mobile Response: According to the Renton Municipal Code Monopole I structures are allowed through administrative and hearing examiner conditional use permits. Monopole I has height definition of anything under 60-feet. T-Mobile decision to extend the utility pole 19-feet I I-inches was considered to have least amount of imposing impact aesthetically while developing a footprint that does not exist for T-Mobile. T-Mobile is committed to bring service where their customers work and play. Customers rely on T-Mobile wireless services for work and recreational use. As T- Mobile continues to add wireless technologies the client base contmues to grow. Clients are no longer residing just in urban areas and have expanded into suburbs and residentially zoned areas and expect a seamless coverage, commuting, traveling, working, and recreational use. The applicant contends that the proicct site was selected in part due to the existing trees that would screen the proposed monopole I from the surrounding properties. Staff has reviewed the proposal, and it appears that there are no existing trees in the immediate vicinity of the proposed monopole I structure, and therefore no screening would be provided/or the existing single family residences located in the immediate vicinity of the project site. The rrees located in the existing neighborhood would provide some screening of rhe monopole I from the residences located along SE 4'h St and SE 3rd St, but would not the residencies along SE 3rd Place and Anacortes Ave SE, which are in the immediate vicinity. I-Mobile Response: The site was considered because it does provide some screening for the residences along SE 4th and SE 3rd St. Unfortunately, there was no site that could be identified meeting the criteria set forth from every residence. During the identification process, it was acknowledged that no free standing Monopole I would be permissible in this residential search ring. Code restriction on parcel size, setbacks, and allowable uses would not allow monopole structure solely built for wireless carriers. Limited to strictly collocating on PSE utility poles, typical tree foliage is limited due maintenance required for power-lines. Since utility poles were the only permissible option, I-Mobile identified this site to provide some screening. Please note I-Mobile, as recognized by the City, is a secondary use on the PSE utility pole in the Right-of-Way. Therefore is limited in design aspects since final approval must meet PSE standards. 2) Proximity of the tower to residential structures and residential district boundaries The proposed monopole I structure would be located at the SE corner of the intersection of Anacortes Ave SE and SE 3•·d Place within an R-8 zone and abutting the front yard area of an existing singlefamilv residence located at 4401 SE 3'd Place. The project site is surrounded on all sides bv single story singlefamily residences. Staff has received numerous commentsfrom rhe immediately abutting residents and surrounding neighbors expressing their displeasure with the proposal to locate a monopole I structure within their neighborhood. lheir comments centered on health concerns, aesthetic impacts to their neighborhood, and the concern that their property values could be adversely impacted. Staff has reviewed these comments and concurs that the proposed monopole I structure would have an adverse impact on the aesthetics of the existing neighborhood due to the lack of screening in the immediate vicinity of the project site and due to the location of the monopole I nithin the immediate vicinity ofan existing single family residential neighborhood. Thl'l'efhre, staff recommends that an alternate location be identified that would have less of an adverse impact on an existing single family residential neighborhood. • • T-Mobile Response: T-Mobile understands the apprehension from the neighborhood. Growth in demand for wireless service, along with increased use by existing customers and the advent of next generation wireless device technologies overburdens the wireless network and can result in dropped calls and spotty coverage. The decision to place new wireless facilities is driven by the needs and expectations ofT-Mobile's customers including: • Customer demand for uninterrupted wireless service throughout homes and neighborhoods; • Customer desire for next generation wireless device technologies; • T-Mobile's responsibility to expand capacity at existing sites and plan ahead for future customer demand; and • Government requirements for emergency services and Enhanced 9-1-1. T-Mobile uses specific technical criteria to determine if a new wireless facility is needed. Radio frequency (RF) conducts a thorough analysis ofT-Mobile's wireless network, including: • Network Statistics-Engineers review network data to scientifically measure overall network performance. The data includes the amount of traffic at individual wireless facilities, including the number of dropped and blocked calls. • Customer Satisfaction Surveys and Feedback-Customers are asked about dead spots, dropped calls and coverage levels in their home and neighborhoods. • Drive Test-Field technicians, engineers and third-party researchers collect real- time statistics by canvassing service areas with wireless phones, mobile data computers, and analysis equipment to test network quality. Drive tests simulate the customer experience and provide critical signal strength and call quality data. T-Mobile identified a candidate located at 400 Union Ave SE, Renton WA 98059. Application was made after identifying the process would include a Hearing Examiner CUP and variance required. The variance was required because the parcel owned by Seattle Public Utilities did not have a full one ( l) acre size parcel. The parcel was .92 acres. T-Mobile recognized the 1isk, but spent money in putting together the application because it best fit the intent of the code and the requirements at that time per zoning designation. A letter addressed by Neil Watts, Development Services Director, stated the City would not allow the application because of the failed code requirement of a one ( 1) acre parcel size. After denying T-Mobile's original application (see attachment A) and in accordance with new ordinance (January 2007), the decision to scan the search ring and identify all possible candidates with new restrictions was given. Already established by the denied application, the only candidates in the search that met code requirements were PSE utility poles. The lack of tree screening is compensated by T-Mobile's design to utilize an existing feature of the neighborhood. PSE poles are apparent through out the neighborhood. By attaching antennas on the pole it utilizes a structure already present. By extending the pole, it meets the coverage objective and requirements needed from T-Mobile RF and creates the least amount of impact on the neighborhood. Per code, R-8 zoning designation, monopole 1 structures are pennissible (less than 60-feet) and T-Mobile's design creates the least amount of impact. Health concerns are not an issue and evidence provided by T-Mobile shows compliance with all local and federal standards for health safety. 3) Nature of Uses on adjacent and nearby properties. The project site would be located within an existing single.family neighborhood zoned R-8. The existing single familv residences surrounding the project site are primarily single story residences. Staff has received numerous comments from the surrounding neighbors regarding their concerns with the proposal to locate a monopole I structure within their neighborhood. Most of the comment centered on health concerns, the aesthetic impact that the monopole I structure would have on their neighborhood, and the adverse impact that the monopole I structure would have on their property values. Included with the comments were some assessments.from real estate agents confirming the neighbors concerns that the proposed monopole I structure would reduce their property values. Based on the comments received, staff has concerns that the proposed location is not the most suitable location fi,r a monopole J structure. The proposed monopole I would be substantially taller that the surrounding single.family residences and the existing PSE power poles and is located immediately abutting the front yard area of an existing single family residence. T-Mobile Response: T-Mobile's application is designed to follow the parameters of the RMC. The Code states the permissible height is less than 60-feet in R-8 designations. T-Mobile needs the height to establish line of site technology to work with its established network. The difference is 19-feet I I-inches, the additional height of the utility pole is minimal to a brand new development else where in the neighborhood. The view the residences will have from 0-40-feet will not change. By providing some screening the maximum amount available in the area, T-Mobile has identified a location that has met the code requirements. To establish a more detailed footprint and to meet customer needs, T-Mobile must create a Wireless Communication Facility for this area. After all the criteria involved in picking this specific location, the concerns will not disappear for alternate candidates. Any candidate considered or/will be considered in a residential designation will meet the same opposition; just different residents. T-Mobile has met code guidelines and is uncertain any residential applications will be accepted if this application is denied for the conclusions mentioned above. T- Mobile has read code, designed the application to meet standards set forth, filed a pre- application meeting to gain further infonnation provided after a preliminary review by city employees. T-Mobile is unclear as to why this approval was not granted since all design standards are met and no indication was provided at the time of the pre-application meeting the design proposed would create aesthetic impact which would lead to a denied application. 4) Surrounding Topography The surrounding topography is/lat. Due to the flat topography of the site, the prevalence a/single story homes, and the lack of trees in the immediate vicinity of the project site the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be ahsorhed into the surrounding environment. T-Mobile Response: The topography is flat and pmi of the reason the site was chosen. Due the height restraint of less than 60-feet by RMC, the direct-line-of-site technology would be limited if antennas were obstructed. Trees taller than 60-feet and in close proximity of the site would diminish the signal strength significantly. It was already established by the previous denial that a 1 acre parcel was reyuired unless the facility was placed within the ROW. After an analysis of the PSE poles T-Mobile came to the conclusion the application met the intent of the RMC. 5) Surrounding tree coverage and foliage There are existing mature trees in the surrounding neighborhood; however there are no trees within the immediate vicinity 1ifthe pr<ject site. The applicant indicates that no trees would he removed for the insta!lation o/'the proposed monopole structure. The applicant indicates that the site was selected in part due to the existing mature trees located in the surrounding neighborhood. 1Fhich would provide screening of the monopole/ram the surrounding neighborhood. However, there are no trees in the immediate vicinity; monopole 1 structure would be high(y visible to the properties in the immediate vicinity. In section number one, staff acknowledges "The trees located in the existing neighborhood would provide some screening of the monopole 1 from the residences located along SE 4th St and SE 3rd St · · Due to the limitations set forth by the design standards, T-Mobile could not identify a site that meet screening from all residences. Due to the nature of developing a site, T-Mobile will create some presence in the neighborhood. The steps T-Mobile has taken identifies the need and creates a facility with the least mnount of impact. Identifying another PSE pole will still have an effect of those residences abutting the pole. 6) Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. The applicant contends that the proposed monopole 1 structure has been designed to reduce its impacts on the surrounding single family residential neighborhood. The project site was selected due to the existing mature trees in the surrounding neighborhood that would screen the monopole from the surrounding neighborhood. The monopole would be made of wood and replm.:es an existing wood PSE power pole, the antennas would be flush mounted and painted to match the color of the pole. The equipment cabinet would be installed underground in a vault. Staff has received commentsfiom the surrounding neighborhood. Some of the concerns cited by the neighbors include aesthetic impacts from having a 59-foot I I-inch tall monopole 1 structure installed within their single family residential neighborhood. The proposed monopole would abut the fi'ont yard area of a single fi.zmi(y residence and is adjacent (across the street) from several other residences. Staff has concerns that the proposed location may not be suitable for a monopole 1 structure, due to its location within an existing established singlefi:unilv neighborhood and the aesthetic impact it would have on the neighborhood and the lack of any mitigation that could be required to reduce the impacts. The proposed monopole would be 59-feet I-inches in height, which is almost 30 feet taller than the maximum height permitted in the R-8 zone and almost 20 feet taller than the existing PSE power poles. There are no trees in the immediate vicinity to screen the monopole from the properties abutting and/or adjacent to the project site. T-Mobile Response: T-Mobile proposed the application to the standards set forth in RMC. The code states any R-8 zoning designation, can have up to less than 60' monopole I structure. The code dictates the maximum height a WCF can apply for. In this instance, T-Mobile RF engineers need the maximum height stated in the code for the technology to function properly. Trees and foliage are limited due to the fact the utility pole is in the ROW. T- Mobile's considers the application using a utility pole as a form of screening itself. Tree screening of monopoles is usually required to conceal the new WCF in the area. Since PSE poles are abundant in this neighborhood, T-Mobile will utilize the existing characteristics of the neighborhood to screen the development of the new WCF. 7) Proposed ingress and egress 8) Potential noise, light and glare impacts T-Mobile Response: No further comment provided for numbers 7 and 8. 9) Availability of suitable existing towers and other structures Limited infiJrmation was provided hy the applicant regarding alternate towers and structures. A previous attempt was made to install a monopole 1 structure on a Seattle Public Utilities pump station facility located at the terminus of Union Ave SE, south of SE 4th St. However, the application was rejected by the City as the proposed project site did not meet the applicable criteria fiJr permitting a monopole 1 facility in an R-8 zone. The proposed monopole would have need located closer than 100-feet from a residential property and the size oft he property was less than 1 acre. No other information regarding other alternative sites was provided. T-Mobile Response: As mentioned and provided. T-Mobile made application for an alternative site and was denied. The denial stemmed from being .08 of an acre short of the required 1 acre. T-Mobile addressed the situation and applied for a variance on the .08 acre short since it was close proximity in size. T-Mobile believed the intent of the code was to find parcel big enough to support a WCF and being only 3,485 square feet short of an acre, a variance would be granted. After getting rejected, T-Mobile followed the RMC and all of the design requirements set forth in the WCF section and the requirements set forth from the R-8 zoning designation. T-Mobile's only option was to consider PSE utility poles within the search ring. 10) Conformance with the Comprehensive Plan, Zoning Code and other ordinances Policy U-100-Require that the siting and location of telecommunications facilities be accomplished in a manner that minimizes adverse impacts on the environment and adjacent land uses. The proposed monopole 1 structure has been sited in an existing single family residential neighborhood that is zoned R-8. Staff has received numerous comment letters from the surrounding neighbors expressing concern that the proposed facility may negatively affect their health, adverse Iv impact the aesthetics of the neighborhood, and reduce their property values. The applicant contends that efforts have been made to reduce the impacts of the monopole on the surrounding neighborhood, by replacing the existing wood power pole with another, taller wood power pole, flush mounting the antennas on the pole and painting them to same color as the pole, and installing the equipment cabinet underground in a mu/t. it does not appear that the intend of this policy is met as the measures proposed to diminish the appearance of the facility would no/ accomplish that. Adjacent land uses would be impacted by the siting ofthefi1cilitv in the established residential neighborhood. T-Mobile Response: By using the characteristics of the existing PSE utility poles located throughout the neighborhood, T-Mobile contends that it has limited the adversely impact on the aesthetics of the neighborhood. If a new free standing monopole built only for wireless carriers were sited in the neighborhood it would create a significant impact. Vaulting the radio cabinets keeps the associated radio equipment out of public site and underground, thus creating almost no impact from the radio cabinets. Painting the antennas to match the pole in color and flush mounting them to the utility pole eliminates the impact of antennas horizontally off the pole and creating attention by being discolored from the PSE pole. Policy U-101-Require that cellular communications structures and towers be sensitively sited and designed to diminish aesthetic impacts, and be collocated on existing structures and towers wherever possible and practical. The applicant contends that the proposed location was chosen to maximize the use of existing trees to screen the monopolefi-om the surrounding residential neighborhood. No trees would be removed as a result of project construction. There are existing trees in the surrounding neighhorlwod; however staff has concerns regarding the lack of screening available for the existing residences located in the immediate vicinity as there are no trees in the immediate vicinity of the proposed monopole. The proposed antenna would be collocated on an existing PSE power pole that would have to be replaced with a taller pole. It does not appear that the intent of this policy is met as the proposed monopole 1 structure would not be sensitively sited, an alternate location that is not immediately surrounded by single family residences lrnu/d be preferred. T-Mobile Response: We believe that this proposal is sensitively sited and that it is the least impactive alternative available to T-Mobile under the code. It is also making use of existing structures. Therefore, it is implementing policy U-101. As mentioned before, technical data is researched for new WCFs. T-Mobile shows a need for a new facility with set parameters. Engineers examine existing wireless facilities in the search area to detem1inc ifthcy can be expanded. Using existing facilities is usually the most desired option. Wireless signals travels by line of sight, large buildings, hills and tall trees can limit signal strength. Natural geographic features, structures and vegetation are critical factors that often dictate necessary locations for new wireless facilities. Local zoning and building codes guide where wireless facilities can be built and impose specific requirements for location, height and aesthetics. T-Mobile gives priority whenever possible to siting new wireless facilities in industrial, commercial and mixed-residential areas. However, customers increasingly use their wireless devices at home, making it necessary to place wireless facilities in and around residential neighborhoods. The original application emphasized more screening due to its placement within the parcel and surrounding vegetation. It called for a new monopole structure I to be screened by existing trees on the parcel owned by Seattle Public Utilities. T-Mobile's thought process for applying on a parcel that doesn't meet the one (I) acre requirement (parcel was .92 of an acre) but screens more adequately would be considered for approval. Since the application didn't get submitted due not meeting the code requirements, T-Mobile searched for other possible candidates. PSE poles were the only option T-Mobile considers to meet all requirements. Collocating on an existing PSE pole (swapped out) and adding the necessary height within code limit creates the least amount of impact possible. Please see our SEP A determination of non-significance (Attachment B). B) Zoning Code C) Development standards T-Mobile Response: T-Mobile does not have further comment on the zoning code and development standards. T-Mobile Response to the Conclusions: The City ofRenton's explanation for denying T-Mobile's application is not substantiated by the record or the requirement of the Code. Conclusion I states the inability of the project to mitigate aesthetic impacts on the surrounding single family residential neighborhood. By utilizing the characteristics (PSE poles) of the neighborhood T-Mobile limits aesthetic impact on the neighborhood. Further indication that the impacts are minor is the issuance of the DNS from the environmental review board. The total impact/footprint T-Mobile will have on this application different from what is existing now is the 19-feet I I-inches extra in height on the PSE pole and a hatch door in the ground. The trade off of having in-house reception for new device technologies, emergency services, and Enhanced 9-1-1 is less than 20' feet of wood pole. The customers have dictated the need for additional/seamless coverage and T-Mobile is trying to provide coverage while following the RMC. To create a footprint in a residential neighborhood by changing the height of a PSE pole is the least amount of impact possible. Conclusion 2 states the proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on surrounding neighborhood that cannot be mitigated. City also states the proposal does not comply with all the wireless communication facilities conditional use criteria. Per RMC 4-4-140 F (2) Visual Impact: "Site location and development shall preserve the pre-existing character oft he surrounding buildings and land uses and the zone district to the extent consistent 11·ith thefimction of the communications equipment. Wireless communication towers shall he integrated through location and design to blend in with the existing characteristics oft he site to the extent practical. Existing on-site vegetation shall be preserved or improved. and disturbance of the existing topography shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area ". T-Mobile's application is preserving the pre-existing character of the surrounding neighborhood as much as practical. The additional 19-feet I I-inches required in height on the PSE utility pole is the only change the neighborhood would notice. Any new monopole I structure would impact the neighborhood significantly by building a 59-foot I I-inch pole that does not blend into the neighborhood. Even if screened by trees the section of monopole where the antennas are located would be noticeable due to the line of sight needed lo work with the existing network system. T- Mobile believes utilizing the utility pole creates the least amount of impact. Conclusion 3 by the City states unrebutted testimony was received from real estate professionals stating a loss in property values. T-Mobile was never given an opportunity to provide testimony or supporting documention to address this testimony. The letters were seen by T-Mobile but not considered credible since there was no supporting documentation or studies -rather only opinions of real tors and not appraisers. This criteria is not in the land use code and therefore we did not perceive it to be a valid argument for denial. Provided in attachment C, is a property value report done by third party assessor for a different T-Mobile site. T-Mobile would have addressed any concerns by the City on property values if the City had requested any additional information. The letters submitted and on file show an emotional attachment from the realtors expressing their concerns. The realtors all live within the neighborhood and are connected to the application. Please review documentation provided by T-Mobile on property values. Based on the content of the application and sensitive consideration given to aesthetic impacts by our site proposal, we believe this project should receive approval. Failure to approve this site would eliminate all potential sites within the search area and result in a barrier to entry (Telecomm Act 1996). T-Mobile would have a significant coverage gap in service with no effective means of serving this area utilizing existing technology. We therefore respectfully request that the administrative decision be overturned. REPORT & DECISION REPORT DA TE. Project Name: Owner: Applicant: Contact: File Number: Project Description: Project Location: Exist. Bldg. Area SF: Site Area: Project Location Map City of Renton Department of Planning I Building I Public Works ADMINISTRATIVE LAND USE ACTION October 15, 2007 T-Mobile Monopole in SE 3'' Place and Anacortes Ave SE Right-of-Way City of Renton, 1055 S Grady Way, Renton, WA 98057 Kevin Foy, T-Mobile USA, 19807 North Creek Pkwy N, Bothell, WA 98011 Kevin Foy, Wireless Facilities, Inc., 575 Andover Park W, ste 201, Tukwila, WA 98188 LUA07-065, CU-A, ECF Project Manager: Jill K. Ding The applicant is requesting Administrative Conditional Use Permit approval for the replacement of an existing 40-foot tall wood power pole with a 59-foot 11- inch wood power pole that would also function as a monopole I structure. The monopole I and associated equipment vault would be located within the public right-of-way and is zoned Residential -8 (R-8) dwelling unit per acre. Single family residences surround the project site on all sides. The project site totals 104 square feet in area and would result in 32 cubic yards of excavation. Access to the site would be provided via Anacortes Avenue NE. Northwest of 4401 SE 3'' Place, within SE 3'' Place and Anacortes Ave SE ri ht-of-wa N/A Proposed New Bldg. Area SF: N/A 104 sq. ft. Total Building Area SF: N/A TMobilecup.doc City of Renton P!B!PW Department T-MOB/LE MONOPOLE in SE 3"' PLACE and ANACORTES AVE SE R-0-W 'ministrative Conditional Use Report LUA-07-065 CU-A, ECF REPORT AND DECISION OF October 15, 2007 Page 2 of 8 II PART ONE: PROJECT DESCRIPTION/BACKGROUND The proposal would include the replacement of an existing 40-foot tall wood Puget Sound Energy (PSE) distribution line pole with a 59-foot 11-inch wood power pole that would also serve as a monopole 1 structure supporting wireless cellular facilities. The proposed cellular antenna would be flush mounted and painted to match the color of the wood power pole. The primary function of the pole would remain as part of an electrical distribution system, the installation of the proposed wireless antennas would be a secondary function. Associated ground equipment is proposed to be located out of sight, below grade in a 13-foot 4-inch by 8-foot vault with only the hatch door being the visible part of the vault. The vault hatch would be screened with landscaping as required by the City. The site would be accessed via Anacortes Avenue SE, which leads directly up to the access hatch proposed within the right-of-way. Once construction is complete, one vehicle trip per month is anticipated for maintenance purposes. The proposed project would result in the removal of 32 cubic yards of soil, which would be transported to an approved off-site location. II PART TWO: ADMINISTRATIVE LAND USE ACTION -REPORT & DECISION A. Type of Land Use Action Site Plan Review XX Conditional Use Administrative Special Permit for Grade & Fill Shoreline Substantial Develo ment Permit Bindin Site Plan Administrative Code Determination B. Exhibits The following exhibits were entered into the record: Exhibit No. 1: Project (yellow) file containing: application, proof of posting and publication, environmental review and other documentation pertinent to this request. Exhibit No. 2: Enlarged Site Plan (Dated 6/15/07) Exhibit No. 3: Site Elevation (Dated 6/15/07) Exhibit No. 4: Existing Conditions Photo Simulation Looking NW from Anacortes Ave SE Exhibit No. 5: Proposed Conditions Photo Simulation Looking NW from Anacortes Ave SE Exhibit No. 6: Existing Conditions Photo Simulation Looking SW from SE 3cd Place Exhibit No. 7: Proposed Conditions Photo Simulation Looking SW from SE 3cd Place Exhibit No. 8: Existing Conditions Photo Simulations Looking NE from SE 3cd Place Exhibit No. 9: Proposed Conditions Photo Simulations Looking NE from SE 3cd Place Exhibit No. 10: Zoning Map sheet F6 west % (Dated 2/28/07) Exhibit No. 11: 32 Comment Letters from Surrounding Neighbors C. Consistency with Conditional Use Permit Criteria In reviewing the proposal with respect to the Conditional Use Criteria set forth in Section 4-9-030J, the following issues have been identified by City Departmental Reviewers and Divisional Reviewers: 1. Height of the proposed tower TMobilecup.doc The proposal would replace an existing 40-foot tall PSE power pole with a 59-foot 11-inch tall wood power pole that would also house wireless cellular antenna for T-Mobile. The surrounding R-8 zoning designation has a maximum height of 30 feet and 2 stories and the surrounding PSE power poles have a maximum height of 40 feet. The proposed monopole I would exceed the maximum height permitted for a single family residence by almost 30 feet and the existing PSE power poles by almost 20 feet and would therefore be the tallest structure in the neighborhood. The applicant contends that the project site was selected in part due to the existing trees that would screen the proposed monopole I from the surrounding properties. Staff has reviewed the proposal, and it appears that there are no existing trees in the immediate vicinity of the proposed monopole I structure, and therefore no screening would be provided for the existing single family residences located in the immediate vicinity of the project site. The City of Renton PIBIPW Department T-MOBILE MONOPOLE in SE J'" PLACE and ANACORTES AVE SE R-0-W 'ministrative Conditional Use Report LUA-07-065 CU-A, ECF REPORT ANO DECISION OF October 15, 2007 Page 3 of8 trees located in the existing neighborhood would provide some screening of the monopole I from the residences located along SE 4'" Street and SE 3'd Street, but would not the residences along SE 3'd Place and Anacortes Avenue SE, which are in the immediate vicinity. 2. Proximity of the tower to residential structures and residential district boundaries The proposed monopole I structure would be located at the southeast corner of the intersection of Anacortes Avenue SE and SE 3'd Place within an R-8 zone and abutting the front yard area of an existing single family residence located at 4401 SE 3'd Place. The project site is surrounded on all sides by single story single family residences. Staff has received numerous comments from the immediately abutting residents and surrounding neighbors expressing their displeasure with the proposal to locate a monopole I structure within their neighborhood. Their comments centered on health concerns, aesthetic impacts to their neighborhood, and the concern that their property values could be adversely impacted. Staff has reviewed these comments and concurs that the proposed monopole I structure would has an adverse impact on the aesthetics of the existing neighborhood due to the lack of screening in the immediate vicinity of the project site and due to the location of the monopole I within the immediate vicinity of an existing single family residential neighborhood. Therefore, staff recommends that an alternate location be identified that would have less of an adverse impact on an existing single family residential neighborhood. 3. Nature of uses on adjacent and nearby properties The project site would be located within an existing single family neighborhood zoned R-8. The existing single family residences surrounding the project site are primarily single story residences. Staff has received numerous comments from the surrounding neighbors regarding their concerns with the proposal to locate a monopole I structure within their neighborhood. Most of the comments centered on health concerns, the aesthetic impact a monopole I structure would have on their neighborhood, and the adverse impact that the monopole I structure would have on their property values. Included with the comments were some assessments from real estate agents confirming the neighbors concerns that the proposed monopole I structure would reduce their property values. Based on the comments received, staff has concerns that the proposed location is not the most suitable location for a monopole I structure. The proposed monopole I would be substantially taller that the surrounding single family residences and the existing PSE power poles and is located immediately abutting the front yard area of an existing single family residence. 4. Surrounding topography The surrounding topography is flat. Due to the flat topography of the site, the prevalence of single story homes, and the lack of trees in the immediate vicinity of the project site the monopole would be more evident to the residents in the immediate vicinity of the project site and would not be absorbed into the surrounding environment. 5. Surrounding tree coverage and foliage TMobilecup.doc There are existing mature trees in the surrounding neighborhood; however there are no trees within the immediate vicinity of the project site. The applicant indicates that no trees would be removed for the installation of the proposed monopole I structure. The applicant indicates that the site was selected in part due to the existing mature trees located in the surrounding neighborhood, which would provide screening of the monopole I from the surrounding City of Renton P/B/PW Department T-MOBILE MONOPOLE in SE 3"' PLACE and ANACORTES AVE SE R-0-W lministrative Conditional Use Report LUA-07-065 CU-A, ECF REPORT AND DECISION OF October 15, 2007 Page 4 of B neighborhood. However, there are no trees in the immediate vicinity, monopole I structure would be highly visible to the properties in the immediate vicinity. 6. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness The applicant contends that the proposed monopole I structure has been designed to reduce its impacts on the surrounding single family residential neighborhood. The project site was selected due to the existing mature trees in the surrounding neighborhood that would screen the monopole from the surrounding neighborhood. The monopole would be made of wood and replaces an existing wood PSE power pole, the antennas would be flush mounted and painted to match the color of the pole. The equipment cabinet would be installed underground in a vault. Staff has received comments from the surrounding neighborhood. Some of the concerns cited by the neighbors include aesthetic impacts from having a 59-foot 11-inch tall monopole I structure installed within their single family residential neighborhood. The proposed monopole would abut the front yard area of a single family residence and is adjacent (across the street) from several other residences. Staff has concerns that the proposed location may not be suitable for a monopole I structure, due to its location within an existing established single family neighborhood and the aesthetic impact it would have on the neighborhood and the lack of any mitigation that could be required to reduce the impacts. The proposed monopole would be 59 feet 11 inches in height, which is almost 30 feet taller than the maximum height permitted in the R-8 zone and is almost 20 feet taller than the existing PSE power poles. There are no trees in the immediate vicinity to screen the monopole from the properties abutting and/or adjacent to the project site. 7. Proposed ingress and egress The proposed monopole would be located within the existing public right-of-way southeast of the intersection of Anacortes Avenue SE and SE 3'd Place. Access would be provided off of Anacortes Avenue SE. 8. Potential noise, light and glare impacts No lighting is proposed to be installed on the monopole I, therefore no light or glare impacts are anticipated. Temporary noise impacts are anticipated during project construction. The applicant has submitted a Construction Mitigation Plan that provides measures to reduce construction impacts such as noise, control of dust, traffic controls, etc. 9. Availability of suitable existing towers and other structures TMobilecup.doc Limited information was provided by the applicant regarding alternate towers and structures. A previous attempt was made to install a monopole I structure on a Seattle Public Utilities pump station facility located at the terminus of Union Avenue SE, south of SE 4th Street. However, the application was rejected by the City as the proposed project site did not meet the applicable criteria for permitting a monopole I facility in an R-8 zone. The proposed monopole would have been located closer than 100 feet from a residential property and the size of the property was less than 1 acre. No other information regarding other alternative sites was provided. City of Renton P!BIPW Department T-MOBILE MONOPOLE in SE :f" PLACE and ANACORTES AVE SE R-0-W . ministrative Conditional Use Report LUA-07-065 CU-A, ECF REPORT ANO DECISION OF October 15, 2007 Page SofB 10. Conformance with the Comprehensive Plan, Zoning Code & other ordinances TMobilecup.doc The proposed use shall be compatible with the general purpose, goals, objectives and standard of the Comprehensive Plan, the Zoning Ordinance and any other plan, program, map or ordinance of the City of Renton. a. Comprehensive Plan, Its Elements and Policies The Comprehensive Plan objective for telecommunication services is to promote the timely and orderly expansion of all forms of telecommunications services within the City and the remainder of its Planning Area. The following Comprehensive Plan policies are applicable to the proposal: Policy U-100. Require that the siting and location of telecommunications facilities be accomplished in a manner that minimizes adverse impacts on the environment and adjacent land uses. The proposed monopole I structure has been sited in an existing single family residential neighborhood that is zoned R-8. Staff has received numerous comment letters from the surrounding neighbors expressing concern that the proposed facility may negatively affect their health, adversely impact the aesthetics of the neighborhood, and reduce their property values. The applicant contends that efforts have been made to reduce the impacts of the monopole on the surrounding neighborhood, but replacing the existing wood power pole with another, taller wood power pole, flush mounting the antenna on the pole and painting them the same color as the pole, and installing the equipment cabinet underground in a vault. It does not appear that the intent of this policy is met as the measures proposed to diminish the appearance of the facility would not accomplish that. Adjacent land uses would be impacted by the siting of the facility in the established residential neighborhood. Policy U-101. Require that cellular communication structures and towers be sensitively sited and designed to diminish aesthetic impacts, and be collocated on existing structures and towers wherever possible and practical. The applicant contends that the proposed location was chosen to maximize the use of existing trees to screen the monopole from the surrounding residential neighborhood. No trees would be removed as a result of project construction. There are existing trees in the surrounding neighborhood; however staff has concerns regarding the lack of screening available for the existing residences located in the immediate vicinity as there are no trees in the immediate vicinity of the proposed monopole. The proposed antenna would be collocated on an existing PSE power pole that would have to be replaced with a taller pole. It does not appear that the intent of this policy is met as the proposed monopole I structure would not be sensitively sited, an alternate location that is not immediately surrounded by single family residences would be preferred. b. Zoning Code The project area is located within City of Renton right-of-way at the southeast corner of the intersection of SE 3'd Place and Anacortes Avenue NE, and is zoned Residential -8 dwelling units per acre (R-8). The proposal for the installation of a monopole I support structure within public right- of-way in the R-8 zone is permitted subject to the approval of an Administrative Conditional Use Permit. City of Renton P/8/PW Department T-MOBILE MONOPOLE in SE J"' PLACE and ANACORTES AVE SE R-0-W 'ministrative Conditional Use Report LUA-07-065 CU-A, ECF REPORT AND DECISION OF October 15, 2007 Page 6 of 8 c. Development Standards Lot Coverage -Not applicable as the proposed monopole I structure and associated underground equipment cabinets do not have building foot prints and would be installed within City of Renton right-of-way. Setbacks -Not applicable as the proposed monopole 1 structure and associated equipment cabinets would be located with City of Renton right-of-way. Landscaping -Landscaping around the associated equipment cabinets shall be screened and/or landscaped as determined by the reviewing official. The proposal would submerge the equipment cabinet underground in a vault. A 5-foot wide landscape strip is proposed on the south side of the vault and a 10-foot wide landscape strip is proposed on the north side of the vault. The landscape strips would be vegetated with Emerald Green Arborvitae and Dwarf Periwinkle. Staff has reviewed the proposed landscape plan and had determined that the proposed landscaping would sufficiently screen the vault from the north and south, however staff has concerns that the lid of the vault would be visible from surrounding properties to the east and west and recommends that the lid of the vault be painted to blend in with the surrounding vegetation. Building Height -A monopole I structure is less than 60 feet in height. The proposed monopole would be 59 feet 11 inches and would therefore qualify as a monopole I structure. Parking -The applicant anticipates one service technician will visit the site per month. No specific parking requirements are applicable to Monopole I structures. XX Co ies of all Review Comments are contained in the Official File. Copies of all Review Comments are attached to this report. D. Findings, Conclusions & Decision Having reviewed the written record in the matter, the City now enters the following: 1) Request: The Applicant has requested Administrative Conditional Use Permit Approval for the T-Mobile Monopole in SE 3'd Place and Anacortes Ave SE File No. LUA-07-065 CU-A, ECF. 2) Environmental Review: The City's Environmental Review Committee (ERC) has reviewed the proposal and issued a determination of non-significance (DNS). 3) Conditional Use Permit Review: The applicant's Conditional Use Permit application complies with the requirements for information necessary for Conditional Use Permit review. The applicant's construction drawings and other project drawings are entered as Exhibits No. 1 through 11. 4) Comprehensive Plan: The subject proposal is not consistent with the Utilities Comprehensive Plan element (specifically policies U-100 and U-101 ), due to the aesthetic impacts the monopole I structure would have on the surrounding properties as indicated in the comment letters staff received from the surrounding property owners. 6) Zoning: The project site is located within the SE 3'd Place and Anacortes Avenue SE right-of-way, and is zoned Residential -8 dwelling unit per acre (R-8). The proposal complies with the development standards of the Wireless Communication Facilities, provided all advisory notes and conditions of approval are complied with. 7) Existing Land Use: Land uses surrounding the subject site include: North: Single Family Residential (R-8); East: Single Family Residential (R-8); South: Single Family Residential (R-8); West: Single Family Residential (R-8). TMobilecup.doc City of Renton P/BIPW Department T-MOBILE MONOPOLE in SE :f" PLACE and ANACORTES AVE SE R-0-W REPORT AND DECISION OF Oclober 15, 2007 E. Conclusions lministrative Conditional Use Report LUA-07-065 CU-A, ECF Page 7 of 8 1) The subject proposal does not comply with all of the policies and codes of the City of Renton, due to the inability of the project to mitigate the aesthetic impacts that the proposal would have on the surrounding single family residential neighborhood. 2) The proposal does not comply with the Comprehensive Plan Utilities element due to the aesthetic impacts the monopole would have on the surrounding neighborhood that cannot be mitigated. The proposal does not comply with all the Wireless Communication Facilities Conditional Use Criteria. 3) Unrebutted testimony was received from real estate professionals stating that the siting of a monopole I structure at the proposed location would reduce the property values in the vicinity. F. . Decision The Conditional Use Permit for the T-Mobile Monopole in SE 3'd Place and Anacortes Avenue SE right-of-way, File No. LUA07-065 CU-A, ECF is denied. EFFECTIVE DATE OF DECISION ON LAND USE ACTION: SIGNATURES: I ' J\ i c/ ll/C-lt[; • Neil Watts, Development Services Director TRANSMITTED this 15th day of October, 2007 to the owner: City of Renton 1055 S Grady Way Renton, WA 98057 TRANSMITTED this 15th day of October, 2007 to the applicant: Kevin Foy T-Mobile USA 19807 North Creek Pkwy N Bothell. WA 98011 TRANSMITTED this 15th day of October, 2007 to the contact: Kevin Foy Wireless Facilities, Inc. 575 Andover Park W, ste 201 Tukwila, WA 98188 TRANSMITTED this 15th day of October. 2007 to the Parties-of-Record: Chuck & Fran Gitchel Michael & Valerie O'Halloran 4401 SE 3rd Place 4420 SE 4th Street Renton, WA 98059 Renton, WA 98055 Lewis Sezto Van Slaughter 10875 Rainier Avenue S 4409 SE 3rd Place Seattle, WA 98178 Renton, WA 98059 Greg Schoendaller Alvin & Jacqueline Courtney 4408 SE 4th Street PO Box 2653 Renton, WA 98059 Renton, WA 98056-0653 Michael, Debby, & Hannah Ekness John Ehle 4400 SE 3rd Place 406 Anacortes Avenue SE Renton, WA 98059 Renton, WA 98059 TMobilecup.doc October 15, 2007 Date Newton & Joyleen Ellifrits 4218 SE 3rd Place Renton, WA 98059 Stephen Northcraft 4209 SE 3rd Place Renton, WA 98059-5144 Victor Bloomfield & Jennifer Skuk 4418 SE 3rd Place Renton, WA 98059 John Megow 4408 SE 3rd Place Renton, WA 98059 City of Renton PIBIPW Department T-MOBILE MONOPOLE in SE :t" PLACE and ANACORTES AVE SE R-0-W REPORT ANO DECISION OF October 15, 2007 Joel G. Smith Roger & Bickey Berry 349 Anacortes Avenue SE 4405 SE 3rd Place Renton, WA 98059 Renton, WA 98059 Dennis & Cindy Shimmel James & Kimberly Stark 4224 SE 3rd Place 4301 SE 3rd Place Renton. WA 98059 Renton, WA 98059 Joel & Heidy Barnett Cory & Lori Foster 4212 SE 3rd Place 4413 SE 3rd Place Renton, WA 98059 Renton, WA 98059 Ken & Anne Miller Pauline Blue 4415 SE 4th Street 420 Chelan Avenue SE Renton, WA 98059 Renton, WA 98059 Bruce & Ruth Rutledge Joyce M. Crock 4303 SE 3rd Street 414 Chelan Avenue SE Renton, WA 98059 Renton, WA 98059 Bonnie Watson Jeremy & Jill Peery Keller Williams Realty 4432 SE 4th Street 615 E Pioneer ste: #203 Renton, WA 9805 Puvalluo, WA 98372 TRANSMITTED this 15th day of October, 2007 to the following: Jennifer Henning, Current Planning Manager Larry Meckling, Building Official Larry Rude, Fire Marshall Kayren Kittrick, Public Works Division Renton Reporter Lawrence J. Warren, City Attorney ministrative Conditional Use Report LUA-07-065 CU-A, ECF Page 8of8 Terry Clangh 4503 SE 3rd Place Renton, WA 98059 Tapke Velquist 4309 SE 3rd Street Renton, WA 98059 Gail & Anthony Knell 4425 SE 3rd Place Renton, WA 98059 Doug Mears 4308 SE 3rd Place Renton, WA 98059 James S. Dalgleish 407 Anacortes Avenue SE Renton, WA 98059 Land Use Decision Appeal Process Appeals of either the environmental determination [RCW 43.21.C075(3), WAC 197-11-680) and/or the land use decision must be filed in writing on or before 5:00 PM October 29, 2007. If no appeals are filed by this date, both actions will become final. Appeals must be filed in writing together with the required $75.00 application fee with: Hearing Examiner, City of Renton, 1055 South Grady Way, Renton, WA 98055. Appeals to the Examiner are governed by City of Renton Municipal Code Section 4-8-110. Additional information regarding the appeal process may be obtained frorn the Renton City Clerk's Office, (425) 430-6510. Advisory Notes to Applicant: The following notes are supplemental information provided in conjunction with the environmental determination. Because these notes are provided as information only, they are not subject to the appeal process. Planning 1. RMC section 4-4-030.C.2 limits haul hours between 8:30 am to 3:30 pm, Monday through Friday unless otherwise approved by the Development Services Division. The Development Services Division reserves the right to rescind the approved extended haul hours at any time if complaints are received. 2. Commercial, multi-family, new single family and other nonresidential construction activities shall be restricted to the hours between 7:00 am and 8:00 pm, Monday through Friday. Work on Saturdays shall be restricted to the hours between 9:00 am and 8:00 pm. No work shall be permitted on Sundays. Plan Review 1. The project shall comply with the Master Use Agreement. TMobilecup.doc ' \ ' -' ;:J \ \ ' ' ' <l \ \ ' ' .,.. . • .,.. I cc 11 z 1 : i 2 I ! 'i: ; ! f I I ' l t I " l I I • i ! s ! ! ,1 11 g ! i j t ! -l I ' ti I f •• ' '\';" I I I' I! Ii I I I' I I I ll i! i I !I Ii ) I II l! t' -1.1 ' '! ! ! ' l I I ' I ' I I 11 I I I I 1 I I I I I I' 3RD &ANAC~ ... ES SE04619A 4401 SE 3RD PLACE RENTON, WA 98059 EXISTING PHOT0#1 f ·· ,rv'fobilc· 19607 NORTH CREEK PKWY N BOTHELL, WA 98011 OFFICE (425) 398-7600 3RD &ANAC, ES SE04619A 4401 SE 3RD PLACE RENTON. WA 98059 PROPOSED PHOT0#1 ,r·. · · .,·.\. ·1'; : .. • 1·,,, . " r t _r f t 19807 NORTH CREEK PKWY N BOTHELL WA 98011 OFFICE {425) 398-7600 3RD & ANA<, rEs SE04619A 4401 SE 3RD PLACE RENTON. WA98059 EXISTING PHOT0#2 FROM SE 3RD PLACE LOOKING SOUTH-I/VEST ,, ' ) . 1 T ·' ' \ I' J ,._\ ' .. · I 1' . , J I I • , , 19807 NORTH C~E;K. PKWY N BOTHELL, WA 96011 OFFICE (425) 39!H600 :i J: ,.,,_ -~ 3RD &ANAC ES SE04619A 4401 SE 3RD PLACE RENTON. WA 98059 PROPOSED PHOT0#2 FROM SE 3RD PLACE LOOKING SOUTH-WEST T " .., ' ' ·'' ''""'1!1·i1 ,;, -' \. __ l l ' '· 1 19807 NORTH CREEK PKWY N BOTHELL. WA98011 OFFICE (425) 300:7600 ·-- .~, I 3RD &ANACJ ... ES SE04619A 4401 SE 3RD PLACE RENTON. WA 98059 EXISTING PHOT0#3 .. v-:,----- FRQ;l\d~~ ~RI)_ PLACE LOOKING NORTH-EAST T 19807 NORTH CREEK PKWY N IJOTHELL WA 98011 OFFICE (425) 398-76()() / 3RD & ANAC-", ES SE04619A 4401 SE 3RD PLACE RENTON. WA 98059 T 'h 11 \ ' .. Cc !VHd'Jlh 19807 NORTH CREEK PKWY N BOTHELL WA 98011 OFFICE (425) 398-7600 PROPOSED PHOT0#3 FROM SE 3RD PLACE LOOKING NORTH-EAST / ' l.; ·1. if 1R / / / E6 • 10 T23N R5E W 1/2 NE 4th St. CA CA NE 41.lf Ost. CA CA NE 3rd. CL CA R-10 R-lO(P) ;,J OQ I ·R-10 -0 R=lO R-10 R-8 R-8 R-8 NE 2Iii1dBS R~s R-8 R-4 ,;/ ',· ',~ ITT R-4 ' ... Q) .;; C"l .~ ~ 0 R~B ~ R~4 Pol RMH :=:, ~ =: R-8 z .... ... 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C\ Y'1'\Ve I~ ------- -~l \ __ f\ ___ X\.~ G __ -c: ·-·---·-____ .--·-····--------·------- -'\. -\j'J or r , t 6 .. °'_bot _1~'l~ ... _ _-. _____ .. _____ -__ " ~ \-~-~~~ ~-~·~ 't Gr re~]~ f_~I-r~~= ····s".-, X\---eve T--· -~(\-·----------1( --efl -----·, -----~-.C ··-----~J . _. . .. D_t\_ll.~ __ f ___ [J._JS_ --· -···, i ------------··""-·--"'~--~------------·--.. -----------------.-----------------~-----------------~------1 ------··. -· -·-···--·------------·-------·---·· -----·--·------i -· -\--------"·--··-· -----------------·-----.. ·----·· . . --·-·--··· -- . --------------------------------------------' ----·--·--· ------- ·····-····---- ·--·-··--·--··-· July 19, 2007 RE: T-Mobile Monopole in SE 3rd Place R-0-W/LUA07--065, CU-A, ECF Jill Ding -Senior Planner Renton City Hall Development Services Division 1055 S Grady WY Renton, WA 98057 Dear Madam: It has come to our attention that the City of Renton would like to allow a cellular phone company to install a monopole in our neighborhood for a cellular antenna. This is extremely concerning for us for the following reasons: • There are common health concerns over the safe proximity of cell towers and power lines that are often conflicting. TI1erefore, we do not feel that it is safe to be exposed to prolonged electromagnetic fields and radiation that these structures can emit. • Even if studies and opinions state that these structures are safe, there is still a common conception that they are not, and that will adversely affect our property value. Few potential home buyers want to buy a home that is nearby a cell phone tower or power pole. It would be a shame to see the appreciation we have seen in our home values in the last few years evaporate. • _The unsightliness of such a slructure would also be a potential deterrent for home · · buyers. Even if the monopole may not be tall initially, other cellular providers could lease space on the pole, creating a potentially very tall eye sore in the neighborhood. Consider the property values of homes adjacent to commercial areas where cell towers or power lines are located. The values of those homes are often lower than comparable homes. We ask tl1at the City reconsider allowing the installation of this cellular tower and antenna. I, Jeremy Peery, have lived in Renton most ofmy life and the Heather Downs neighborhood is one ofRenton's most beautiful, peaceful, and desirable to live in neighborhoods. Why else would the city have jnst installed such a beautiful pad<: there (Heritage Park). There is n:o place for these structures in the middle of our neighborhoods. They should be installed where they will have minimal impact on the character of neighborhoods. We also see no benefit to the community to install them and will not vote for or support any city council or staff member that supports cellular towers in our neighborhoods. Please put yourself in our place a)ld reconsider. Sincerely, . l. Jeremy and Jill P# ·~: 1· 4432 SE 4TH ST RENTON, WA ,9~_059 425-793-0882 '·,, '.t,iJ· ., . .• ",l? JJ~kr-- 11 _-:£ -~ -~44"'q'>J/...~--_/1\~--'<PL!.AL'S~JL July 18, 2007 Ms. Jill Ding Development Services Division City of Renton 1055 South Grady Way Renton, WA 98057 Case LUA07-065 T-Mobile 60 foot Monopole at 3ro Place ROW Dear Ms. Ding - DEVELOPMENT PU\NNING CITY OF RENTOM JUL 1 9 2007 RECEIVED I would like to see the T-Mobile cell phone tower moved to another location. Allowing a commercial structure in the middle of a residential development violates the intent of the City of Renton's Mission Statement regarding livable neighborhoods. Sincerely, , r / ~A ·~o~ Michael O'Halloran 4420 SE 4th Street Renton, WA 98059 425-271-6973 Cc. Mayor Kathy Kaelker Renton City Council July 18th, 2007 Jill Ding Renton City Hall, 6th Floor 1055 S Grady Way, Renton, WA 98057 Dear Ms. Ding, ,0 LANMING dENTON JUL 1 9 2007 RECEIVED ~· •v ,--v...,.,_ I am writing to voice my opposition to a cell tower being constructed at the corner of SE 3rd place and Anacortes in Renton. My backyard is approximately 150 feet from the proposed location and I'm certain it will impact my views from my backyard. Who wants an unsightly cell tower as a view from their backyard deck? The proposition states that the cell tower will be 60 feet, but I'm concerned that it could be as high as 100 feet if the cell tower owner should lease it to another cell company. Although unfounded, I am also concerned about the health is- sues these towers carry with them. Finally, I am also concerned about the impact on the property values of our neighborhood should such a tower be built. I understand the necessity of cell coverage (I own a cell phone myself), and the impor- tance to line of sight to a tower, but I think this tower could be placed in an area where it won't have as much impact on views and property valuation. There are several wooded sections in this neighborhood, perhaps it could be placed in one of those areas and camouflaged as well? I understand that Southern California has adopted some unique ways to camouflage their cell towers. Thank you for your consideration and time, Greg Schoendaller 4408 SE 4th ST Renton, WA 98059 July 18, 2007 Jill Ding, Senior Planner Development Services Division City of Renton 1055 S. Grady Way Renton, WA 98057 Re: Case LUA07-065, CU-A, ECF TMobile 60-foot Monopole at SE 3rd Place ROW Dear Ms. Ding, DEVELOPMENT PLANNING CITY OF RENTON JUL 1 9 2007 RECEIVED Pursuant to the above-referenced Land Use permit, a proposed 60-foot monopole cellular tower would be placed via underground vault on a right of way on the southeast comer of SE 3rd Place and Anacortes Avenue. It is my understanding that this is the first such conditional permit to place a cellular tower in a residential neighborhood, all previous placements having been on commercial or public land. The City of Renton is known for its neighborhood-focused initiatives with emphasis on quality-of-life enhancements. The opening statement of the City's mission is "Providing a healthy, welcoming atmosphere where citizens choose to live, raise families and take pride in their community". This concept was perfectly reflected in the recent dedication of Heritage Park on Union Avenue SE. Heritage Park is a fantastic addition to the neighborhood and brings pride, as well as recreation, to all who live in the area. The park is at the gateway to the Heather Downs neighborhood, the proposed site of the cellular tower. It seems inconsistent for the City to establish a beautiful park for citizens to enjoy, yet allow the placement of a commercial structure in the midst of their homes. There are a dozen residences where the proposed tower will be in view from windows, yards or decks, even with the mature trees and landscaping in the area. I understand that this proposed location was selected in part because of the elevation of this comer. I would like to submit the following alternative, non-residential locations for consideration: • The southern-most end of Union Avem1e is only 3 blocks from the proposed site and is King County property overlooking Maple Valley Highway and the Cedar River Valley. • The south end of Union is also home to a Seattle Water Pump Station. • The Olympic Pipeline right-oJ:way is less than a mile west of the proposed location. • Heritage Park itself is another possibility. The tower could be placed on one of the comers and it would not detract from the beauty or use of the park. The height of the tower could be increased to compensate for the loss of elevation at these alternative locations. The impact to people of a height increase in these locations would be negligible. In summary I oppose the placement of a commercial structure, regardless of how aesthetically camouflaged, in a residential neighborhood. I believe this sets an unfavorable precedent that is contrary to Renton's message and vision. Thank you for your consideration of alternative, non-residential locations for the placement of commercial structures such as this proposed cellular tower. Sincerely, ~att~ Valerie O 'Halloran 4420 SE 4th Street Renton, WA 98059 425-271-6973 Cc: Kathy Koelker, Mayor Renton City Council July 19, 2007 City of Renton Development Planning 1055 South Grady Way Renton, WA 98057 Attn: Jill K Ding, Senior Planner File No.: T-Mobile Monopole in SE 3'd Place R-O-W/LUA07-065, CU-A, ECF Dear Ms. Ding: We are writing to voice our protest of the planned cell phone tower that will be located in our neighborhood. Besides being an eyesore we will see from inside our home and outside from our patio, we will have to contend with the blinking light(s) that they have to place on cell towers. We also fuel this tower will lower our property value that we've spent over 40 years trying to increase! Have you considered placing the tower in the stand of trees at our new Heritage Park? Have you looked at the south end of Union Avenue where there are also trees that would help camouflage the tower? We ask you please not to place this tower 011 the proposed site of 4401 SE 3'd Place. Sincerely, Alvin L. Courtney P0Box2653 Renton WA 98056-0653 425-226-5114 ~.~M£f /Jk/l, "zt1 J~1~Co~; Physical Address: 4325 SE Third Street 4418 SE 3n1 Place Renton, WA 98059 Jill Ding, Senior Planner Development Services Division 1055 South Grady Way Renton, WA 98057 Dear Ms. Ding: We are writing in reference to the T-Mobile Monopole in SE 3'd Place R-0-W project, Land Use Number LUA07-065, CU-A, ECF. We are opposed to this project and request that you terminate it. Our reasons are as follows: • A 59-foot, I I-inch monopole with its associated equipment vault is in itself ugly • Having a pole in the neighborhood would lower our property values • The pole is counter to the efforts of the City of Renton to improve neighborhoods. The city has passed and enforced codes that are used to prevent blight and related degradations. For example, there are codes that limit the height of weeds, require the removal of garbage, require that homes be maintained, etc. The pole would degrade the comer of SE 3n1 Place and Anacortes Avenue SE as well as the surrounding properties. • There are other more suitable locations for a cellular tower. Towers such as this do not belong in a residential neighborhood. They should be placed on government property or at business locations. • As a T-Mobile customer, our service is adequate. A pole would not provide any additional benefits that would improve our service. Once again, please terminate this project at once. We do not want a cellular tower in our neighborhood. In addition to the address above, we can be reached by phone at 425-228-2805 or by e-mail at vic-jeni@juno.com Thank you, 1)~ £. RI~ iii -----------------~~- Victor E. Bloomfield Q{.,,el?t-,U...e,~ovlfb:a,!2 C,v~ L..e-S..J' L',a/c-/t/ ry-o UC -;, D UL 1 9 2007 ECE/V/:n !l(e,-i_,~ ' )~ ' 'f :;i_ 0 0 7 tlrzo-r Ir\~ "l -· = ,J~o G~ : G.o ~s w 7~ ~ rns5J,D 31 Loc.ATioN. . ·.===----s~ '1b__ r~~ ~ f~L6'--Q_ ;.i~ ~ <Sh.Q_ ~ ~ °3 "c) ~ __ l_(:':>o'J 5£ 1H1R.D oTRE;ET. - ~ 8~ ~,.J~ c?f me O ~J°-<-v,,_0 r~~ c_.tJtL~ (k z~~ '(j ~c~ 0-~ ~l ~cj-+L- U~ 1 d -Y1-<5,,~ evvcol {L c_Q;,_~ 1 +QLQ_ ~- -<(6 !c_o._c,~,_,, 'LQ_(fQ.e_J~d 1 '-1-f~ ~ Rau ~d,. k C OLu.,,;.e /yy\_o L_aJ2R ~~ ~ ~ ~<::Jli.>o._;c,_QJ C-~c.Q.-"-~) i~~ ~cJl.,_=~q ~ '(\, I. -. -U -~j~ -Q.i-C' ~ ~fdi ~ _,{.v~ f-°-0-d2.~ °d ~ ~ . -,.d ~~k'L/ Q,h~ ~ s E '3 -~OLC-0..---- fu C>J;i_O__ G,;:,'1'\_ c..:_c\_'<.fl_ 0-~ o\_,;,_d, .&./L.~ -&.,_,._c.k Ct...A.. +t, s~ ~ c,{_ ~ ~UsV'-' ~. ~J, ~w~ ~l.tr'~ Jill K. Ding Senior Planner City of Renton 1055 s Grady Way Renton, WA .9a·oss jding@ci.renton.wa.us Re: proposed cell phone tower on public right-of-way at 4401 SE 3nl Place. Dear Ms. Ding, s:_ '-'1 JJ'1 2 CO 1- RECEIVEd JUL 2 3 2007 RENTON CiTy CouNcil I would like to enter my strong objection to the proposed building of a 60 foot tall cell phone tower and associated vauh on the public right of way at this address. This tower and associated vault will resuh in lowered property values, obstructed views, and create potential safety and health haz.ards for the children in the neighborhood. Further, I do not believe the neighborhood was adequately notified, nor were more suitable ahernative sites considered. The site selected is conspicuously placed at the intersection of two residential streets. It would literally tower over the neighborhood, obstructing views and lowering the quality of life for the residents. This neighborhood is almost entirely owner occupied houses. Placing the tower at the very center of the neighborhood only assures that a maximum number of home owners will be negatively impacted. The result will be lowered property values in a neighborhood of almost exclusively owner-occupied homes. These homes will quickly turn into low income rentals. Placing this tower so near homes may cause serious health problems to those who live around it. Cell towers operate on radio waves, with the antennae collecting, strengthening, and redirecting the radio waves from one tower to another. Studies have shown that exposure to high levels of these radio waves cause serious health issues. Those ofus living near the tower will have no way of knowing how whether or not we are being exposed to an unsafe level of these radio waves. Our children will be Jiving, playing, sleeping almost directly under this tower. While some studies have shown cell phone towers are safe, others have not. Even if it could be shown that this tower is safe in terms of radio wave levels, we have other very legitimate concerns. There is no way to prevent our children from playing on or around them. The notice states the vault will occupy a 104 square foot area, on a right of way that is only four feet wide. There will certainly be no way to fence it off. Children playing around it could easily be injured by the equipment itself. There are many more suitable locations nearby for such a tower. There is public right-of- way in several locations along 4th Avenue NE between Union Street and Duval Street that could be used, as well as commercial land in that area that could be lease by the company for this purpose. There is City of Renton owned land and city right-of-way immediately south of the cemetery and east of Edmonds Ave. This would be perhaps the most suitable, as it is far away from any residential area. The far southeast or northwest corners of the new park could be used (at these locations the tower and vault could be properly fenced and screened from public view). There is public right-of-way available along Duval St. south of 4th Ave NE. And there is space available at the far south end of Union Ave SE in the Seattle City Light compound. None of these locations would have the impact of the site chosen. Finally, I do not believe the neighborhood was properly notified of this proposal. Signs were posted on utility poles in only a portion of the area that would be impacted. The design of the diagram was confusing, showing only the entire lot on which the tower and vault would be placed. It did not give a description of the vault, did not indicate if either the vault or tower would be fenced to prevent children from being hurt around it, and did not state if it would be shielded from public view. Notification by mail only came several days later and was not more specific than the original posted notices. At no time did I-Mobile or any of its agents or contractors contact me regarding this project. Please place these concerns into the official record. I am available for questions, and ask to be informed of any future public hearings, appeals, or other opportunities to give input on this important matter. J-%- JohnMegow 4408 SE 3rd Place Renton, WA 98059 (425) 227-4379 megowj@yahoo.com Ms. Jill Ding Renton Planning Department Renton City Hall 6th floor 1055 S. Grady Way Renton, WA 98057 Ms. Ding, RECEivECI JUL 2 3 2007 RENTON CiTy CouNcil 4209 SE 3rd Place Renton, WA 98059 July 19, 2007 I am writing to express my concern over the proposed installation of a cell phone tower less than one block from my home in the Heatherdowns area of the Renton Highlands. The reference for this proposed cell tower which would be located at 4401 SE 3rd Place is R-0-W/ #LUA-065 CU-A ECF. Frankly, I do not understand why a cell tower needs to be located in the middle of a residential area when there are several locations very close by that would not be as intrusive to the residential area. And as a matter of City building code, new residential neighborhoods are required to have all utilities underground. It is inconsistent with this policy to allow a cell tower to be located a residential neighborhood. Obvious alternative locations (shown on attached map) include sighting it within the water pump station complex at the south end of Union A venue, or among the trees in the newly developed Heritage Park on Union, or in the construction area to the west. Additionally, there are a myriad of potential locations in the publicly owned wooded area between the Heatherdowns development and the MapleWood golf course to the south. \ My biggest objection to this proposal is the potential impact on property values in this area. A cell tower at the proposed location would certainly limit the prospective buyers. Just the appearance of the tower in the neighborhood is enough to scare away potential buyers with concerns over health issues, in addition to being an eyesore. I ask the City to reconsider the proposal to locate a cell tower in my neighborhood and reject it. Sincerely, cc: CG Q) +-' C'O C ,_ Q) +-' <( .:::c. ,_ C'O a.. C 0 :;:; _$ C 2 IB ~ ~ ...... ,_ ,_ C'O g?<CJBu 0 -0 u <( - "O C ~ 0 0 :;:; 0.. C'O 0 C) ,_ 0 a.. - C 0 ·-...... C C'O .o C) 0 ...... C'O ...... Q) Cf) ...... 0.. C'O EE :J 2 a.. <( RECElvEd July 22, 2007 JUL 2 3 2007 RENTON Chy CouNcil 4400 SE 3rd PL Renton, WA 98059 Subject: Proposed cell phone tower at 4401 SE 3rd PL To: The Renton Planning Department; Attn Jill Ding Cc: The Renton City Council I am writing to express my extreme disagreement with the proposed placement of a cell phone tower at 440 I SE 3'd PL. I have several reasons for my grave concern over this site and would like to ask that you reject this location for the cell tower and work with the builders on a better site. First, this site is right in the middle of a residential neighborhood and couldn't be more out of place. At the 4401 SE 3rd PL, there is no way you can disguise this tower and avoid it from being an eyesore. I've seen some creative ways of disguising these towers but this 60-foot monstrosity would be among a grouping of rambler homes and on a street comer. There is no way to hide a 60-foot tower at this location. Second, on a personal consideration, this 60-foot tower directly in front of our home would block the view from our front window and porch at 4400 SE 3rd PL. We enjoy our view out over the neighborhood and would be very much saddened to have a 60-foot (or more) tower in that view. We already contend with utility poles but there is no comparison between a 20-30 foot tall telephone pole versus a 60-foot tower. This is a personal loss that we'd have to deal with 365 days a year. We are also aware that this might negatively impact radio and satellite TV reception. Third, we are convinced that this 60-foot tower directly in front of our home would have a grave impact on our home values. This is due to the fact that our view would be hindered greatly. In addition to the loss of our view, we'd still have to deal with the likely fear of future home buyers might have about health concerns a cell phone tower 25 feet from their perspective home. I know the jury is not out on the health concerns but the studies don't have to be conclusive to scare off prospective buyers. So we would most assuredly have a negative impact on our homes resale value. If you question this; then ask your realtor, like I have, on how your home value would be affected if you allowed a cell phone company build a 60 foot tower 25 feet directly in front of your home? So please reject this location of the 60-foot cell phone tower at 4301 SE 3rd PL as it is just out of place at this location. Instead, there have to be some locations that would be more suitable along Union. I don't want to pass this problem onto other landowners but there are some tall trees that this tower can be built amongst and be disguised as a tree where it p. I ol Z doesn't have to be so obtrusive. There is even a utility yard at 450 Union Ave SE that a tower could be built on and the tower could be disguised as a pine tree to fit in with the other trees. This site would be advantageous in that you don't have to intrude on a landowner. I also have read that shorter towers could be built and serve the same function and could be an alternative for a residential neighborhood like ours. Perhaps in this way, utilizing the existing utility poles along Union could be considered. Thank you fur considering our comments and hope that you work with the cell phone company to find a better location for their tower. We all appreciate our cell phone coverage but it's clear that there has to be a better location for this cell phone tower and ask that you work for a better solution. Sincerely, 1l'i:h ~ Michael:~J~ PCO RNT 41-2475 ~nn11..-.~ REAL ESTATE Joi>., l. Sn11 KMS -Ro,100 011,co IJ1«oll1<ona1!ldt,pt,,don11, ... iied...c1,..,.,,o 4735 NE 4th Sr. Renton, WA 98059 direct: (206) 718-SELL (7355) July 23, 2007 Michael and Debbie Eckness 4400 SE 3rd Pl Renton, WA 98058 Dear Michael and Debbie, This letter is in regards to your recent inquiry regarding your home in Renton. The question was raised to me about property values with regards to cell towers in the near vicinity. There is an old saying "Perception is Reality". I live with this quote on a daily basis. Buyers come to me with ideas that are their reality. Whether it is accurate or not, is not the issue. It is their reality. One large perception is that power lines and possibly cell towers can cause cancer. Whether this is true or not .... I do not know or represent. One thing I do know, homes near power lines or cell towers sell for less and it takes much longer for them to sell. So the answer to your question, "Will a cell tower lower my property value or make my property harder to sell?" The answer is a definite ... YES! If the cell tower is in the vicinity but not easily seen by your home and does not cause interference with other equipment, there is not an issue. If the cell tower is easily visible from your home and/or causes interference, this must be considered in pricing your home when the home goes on the market. It is important to remember that many people think that the REALTOR sets the price of the home. This is incorrect. It is important to understand that buyers determine the value of the market. Ifit is a seller's market, it will be easier to sell but will always still sell for less. If it is a slower market, pricing will be very important. I hope this is helpful information and that it answers the questions that you have. I hope you have a wonderful summer and enjoy lots of great time with your family. Warmest regards, July 22, 2007 R£CEIVEd JUL 2 3 2007 To whom it may concern, RENTON Cily CouNcil I am a property owner in the Heather Downs subdivision located in the Renton Highlands. My address is 406 Anacortes Avenue SE. It is my understanding that there is a proposal to build a cell phone tower within blocks of my home. I would not appreciate this as the value ofmy property would significantly decrease. Please look for an alternative location. Thank you. ,_~:' (__ Lz.__..~ ~:.' John Ehle 406 Anacortes Ave Se Renton, WA 98059 (425) 228-0331 Home (206) 290-7147 Cell July 22, 2007 Mr. Chuck Gitchel 440 l Southeast Third Place Renton, Washington 98059 Re: Proposed T-Mobile Cell Tower Site Mr. Gitchel, RECEIVEd JUL 2 3 2007 RENTON Ci,y CouNcil As a member of this community, I do not support the construction of the proposed T-Mobile Cell Tower located at 4401 Southeast Third Place. There are two (2) existing cell phone towers located less than one mile from the proposed T-Mobile site, (by Union and Fourth), T-Mobile should not be allowed to desecrate our neighborhood with another unsightly cell phone tower, when T-Mobile could use existing cell towers already in place. If the use ofexisting cell towers are not an option, l would expect the Renton City Council and T-Mobile would respect this community's wishes to move the proposed site to a different location, which would be more discrete, such as at the south end of Union Avenue, by the existing tree line. Why place a cell tower exactly in the middle of a residential community? It makes no sense at all. If the Renton City Council does not listen to the community members, and still allows the proposed T- Mobile site construction, I would expect to see an immediate and substantial DECREASE in my property taxes, as the land value of our entire community would be permanently and irreparably harmed. Has anyone from the City Council even seen the proposed site from ground level? The proposed site is LITTERALL Y in the exact middle of our residential community. It's funny how the proposed T-Mobile site is not located anywhere near any of our elected City Council Officials' houses, isn't it? Of course, the City of Renton and City Council Members would not want to loose valuable revenue from existing tax paying citizens. If the proposed T-Mobile site construction continues as planned, land values will drop, and elected city officials will not be elected again, as they obviously do not listen to the communities whom have elected them. ~1t~ 349 Anacortes Avenue Southeast Renton, Washington, 98059 c;m1 th_ 1_00rf7"1hot~D._4_il_~1_21 H -425-271-2947 C -509-470-0600 Jill Ding Renton City Hall 6" Floor 1055 Grady Way Renton EA 98057 RE: Land Use#: LUA07-065, CU-A, ECF Project Narne: T-Mobile Monopole in SE Yd Place R-0-W RrttlvEd JUL 2 3 20G7 RENTON Ci,y CouNcil We are writing this letter to express our concerns regarding the above proposed cell phone tower. There have been no studies regarding the radiation concerns for cell phone towers. Therefore, we are greatly concerned about the health issues tliat could result &om a cell phone tower being installed in our neighborhood, especially since our home is nght next door to the proposed site. Besides adults working in their yards, there are many children in the neighborhood that play on tl1e street next to the proposed site, including our own grandchildren. It is also our understanding that are property values will decrease or that our property would become un-sellable due to these health concerns. We have been told that a real estate agent would not even show our home due to these issues. In addition, a cell phone tower in the middle of our neighborhood would be unsightly. Who would want to look out their window and see an ugly tower? We suggest that the tower be built within the green belt tl11ee blocks south of the proposed site or within the woods behind Heritage Park on Union Ave. We also suggest that the tower be designed to look like a fir tree so that it will blend into the surroundings. Thank you for your consideration in this matter. Renton, WA 98059 cc: Renton City Council Dennis Law • • July 21, 2007 REcE\vEd ·Jul 2 3 2001 R1:moN CiTY Corn11cil Renton City Council, Denis Law, Jill K. Ding : 4224 SE 3rd Pl. Renton, WA. 98059 425-271-9573 We are addressing the proposed installation on the roads edge of a monstrous 60 foot tower. This abomination is likely to grow much taller over time with the leasing to other companies. There is no logical reason to allow this eyesore to be built in the middle of a residential neighborhood. Plus there is no doubt that it will extremely affect all of our property values in a negative way. If the value of our homes are affected by allowing this to be built at this location we will be forced to take steps against the city to recoup our losses. There are multitudes of places in this area that a tower could be placed that wouldn't be in the middle of a residential family neighborhood. It could be placed at the very end of Union where I believe there is only two houses , it could be placed in Suunydale along the back where there is open sight lines , or along the west property line of the Leisure Estates complex and probably the best or second best spot(best at end of Union) would be in the new park on Union. It is my understanding these eyesores can be dressed up to look like many things including trees to help mitigate there obtrusiveness. At any of the sites listed the tower could be placed on the edge of a housing area or in the case of the park anywhere, would bother know one. Not in the middle of a neighborhood on the edge of the road! Please do your jobs as elected officials and stand with the citix.ens of your city you are supposed to represent and not with big business. This cannot be allowed to happen. If it goes forward the people of this area are prepared to ban together to contact the Attorney General and to hire an Attorney to fight this and our city. . . . . . . . . . . . . . . . . . . . . . . . . . . . . RrCElvEd July 19, 2007 JUL 2 3 2007 RENTON Ci-ry CouNcil To Whom It May Concern, I am writing to express my extreme concern that our neighborhood will become the site for a new cell phone tower. Of course we are aware of the published studies trying to prove that these towers are not harmful to our health, however we are unconvinced by these attempts by the cellular industry to downplay the dangerous effects oflow-level radio-frequency emissions. Federal law (designed to promote the development of cell phone service in the area) prevents us from petitioning these towers based on health concerns because there is no conclusive evidence to prove that towers are responsible for the cancer, tumors, headaches, and nausea suffered by the residents living around them, so I would be glad to address several other reasons why the proposal for this tower should be rejected immediately. In addition to the negative impact this tower could cause to the health of our community, it also jeopardizes the value of our property which is absolutely unacceptable. We have owned property on 3'd Place in Renton for over two decades and so have my neighbors. We have too much invested in this street, and community, in the form of property value, neighborhood relationships, and family memories to allow a cell phone tower to deface it. It is a known fact that power lines, busy streets, and cell phone towers all reduce property values and make homes less desirable to prospective buyers. The appeal of our beautiful and serene neighborhood is enhanced by the distance from the busy freeway and crowded downtown metro areas. It is a quiet and friendly community that does not need to be disrupted by the inevitable grating sounds of construction required to erect this prospective tower. Besides the construction process, the tower once complete will be an eye-sore jutting out .md disrupting the unblemished expansive sky line between our charming one story houses. This tower would be an unwelcome visual impediment. It is understandable that the demand for cellular phone use and better service is desirable to cellular phone custom!lrs, however that does not justify moving these towers into the heart of our residential community. There are numerous other less objectionable sites in close proximity that should be considered, for instance the south end of Union Ave in the trees or at Heritage Park. Placing the tower in a wooded area and designing it to resemble the fir trees would be a more acceptable proposal. Thank you for your consideration and your prompt attention to the resolution of this matter is greatly appreciated. Sincerely, James & Kimberly Stark 4301 SE lrd Pl.ace Renton, WA 9805'.9 (425) 228-4968 JIMKIMSTARK@aol.com Jill Ding Renton City Hall, 6th Floor 1055 S. Grady Way Renton, WA 98507 RECEiVEd · JUL 2 3 2007 RENTON Ci1y CouNcil Dear Ms. Ding, Subject: Proposed cell phone tower site on SE 3rd Place, Renton, WA July 18, 2007 We live on SE 3rd Place approximately half a block from the proposed site for a I-Mobile cell phone tower. We are writing to express our dissatisfaction with the decision to place a large cell phone tower in such a residential location. In fact, one home owned by Mr. Gitchel, will sit directly under the cell phone tower. Our neighborhood is deeply concerned about this decision and asks you as a representative of our community to help us fight this installation. We can list the reasons simply that we DO NOT want this tower placed on our neighborhood street. First, regardless of what people say, our property value will decrease. No one wants to live under a cell phone tower. Secondly, real or not, there are perceived health impacts ofliving so close to a cell phone tower. We do not want our child impacted by that and realize that someone thinking of purchasing our home would consider that fact as well. Please consider other sites for this cell phone tower and do not impact our neighborhood in this negative way. Sites that immediately come to mind include Heritage Park at the west end of the park. Cell phone towers can be disguised as trees and in fact might provide some wildlife benefit (nesting and roosting for birds) in an area like Heritage Park where trees are in such close proximity. This site would have a much lower impact to neighbors in our community. In addition, you might consider looking at a site at the south end of Union Avenue. Again, the cell phone could be disguised as a tree. We provide a few links to disguising cell phone towers as trees and ask that you press T- Mobile to choose a less residential site and hide the unsightly cell phone tower from view. The best situation would be to place the tower at one of the sites listed above and disguise it among the native Douglas Fir trees. http:/ /waynesword.palomar.edu/faketree.htm http://www.flickr.com/photos/xeni/528725576/ #,~B--~~(k~ 4212 SE 3rd Place Renton, WA 98059 ( 425)-687-8088 ( 7120107 Ms. Jill Ding, RECEIVEd JUL 2 3 2007 RENTON Cily CouNcil This letter is to inform you of our strong concerns regarding the proposed cell phone tower placement in our neighborhood. We fear first for our health and well being as nothing good can come from having radiation from the proposed tower engulf otlr block. As we live only two doors down from the site we feel that our concerns are well founded. The fact that federal law does not allow you to consider the effects of radiation upon our health is most disturbing, but not surprising considering the many poor choices our federal lawmakers have made. With this in mind, we as citizens of Renton must be able to count on our elected leaders to protect us from situations that put us in harms way, whether the federal government cares about us or not. Also, we believe that allowing this unsightly tower within the confines of an established working class neighborhood can only reduce our property values, and in some cases render a home incapable of being sold. A conversation with a friend of ours who is a realtor confirmed our fears of diminished values. Finally, let us be honest with one another. Having a tower such as this in our neighborhood will be an ugly, constant reminder that financial considerations often take precedent over quality of life and consideration for those who do not have the power to stop such a travesty. Ms. Ding, you DO have the power to put a stop to this horrible plan, and with power comes the responsibility to use it wisely. Please do not allow our neighborhood, our neighbors, and our families to be subjected to this "experiment". We thank you for your time and consideration. '-\ . ~Q_ ory and Lo i Foster' · ) 4413 S.E. 3'ct Pl. Renton, Wa. 98059 DEAR SIRS Rn:EivEd JUL 2 3 2007 RENTON Ciry CouNcil 4425 SE 3 PLACE RENTON, WA [N REGARDS TO THE CELL PHONE TOWER TO BE LOCATED AT 4401 SE 3PL. YOUR DECISION TO rNSTALL SUCH A TOWER [NA RESIDENTIAL NEIGHTBOURHOOD CLUSTERED WITH HOMES NEAR SUCH A POLE IS STUPIDITY [N ITSELF. YOU HA VE ADJACENT PROPER TY AND IT INCLUDES TREES AND IS NEAR THE CANYON. THAT LOCATION IS FAR BETTER SUITED AS IT WILL BE PARTIALLY HIDDEN FROM DIRECT VIEW AND NOT ON THE STREET NEXT TO A NEIGHBOUR'S BEDROOM. THE TOWER WILL BE UGLY AT THE PROPOSED LOCATION AND WILL BRrNG DOWN PROPERTY VALUES AS DEMOSTRA TED BY OVERHEAD POWER LINES IN OTHER NEIGHBOURHOO YOU SAY YOU CANNOT TAKE rNTO CONSIDERATION RADIATION FROM SUCH A TOWER. HOW STUPID THAT STATEMENT IS WHEN THERE IS OTHER PROPERTY AVAILABLE THAT HAS LESS IMPACT OF EVERYDAY LIFE IN A NEIGHBOURHOOD. FOR ONCE USE A BIT OF COMMON SENSE. YOURS GAIL AND ANTHO~ KNELL (PROPERTY OWNERS) / I i . . ·1/JM ;if ·,,-.,.._,- July 19. 2007 DearRelltefl City Ce\rneil, t:,-2..,is L,«.J RECEivro JUL 2 3 2007 RENTON CiTy CouNcil We are writing this letter to express our grave concerns regarding the installation ofa cell phone tower at 4401 SE 3'd Place. Our foremost concerns are health issues. Regardless of what is directed by federal law, radiation should be a consideration when installation of such a tower affects the health of the general public. The desire for clarity of phone calls should not outweigh the increased health risks to area residents. These towers are unsightly, especially in someone's backyard. There are many areas of the United States where cell towers are made to look like part of the landscape, sometimes in the form of trees. If the tower were "disguised" and located in an area of trees, possibly at the south end of Union Avenue or within the current trees of Heritage Park, the impact on the neighborhood would be greatly reduced. It has been stated that the initial tower would be 60 feet high, with the potential for extensions to reach up to 100 feet. It is absurd to place a structure of this size in the backyard of a residential home! The City should regulate the maximum height of these towers to reduce the possibility of unlimited extensions. We would encourage the City to explore alternative solutions in regards to the location and appearance of the tower before deciding the outcome of this request. Placing the tower as currently proposed would directly affect the health and property values of area residents. As Renton continues to improve its regional image, it would be a mistake to allow structures of this type to hinder the positive image we are working so hard to achieve. We strong% recommend that you deny the request for placement of a cell phone tower at 440 l SE 3 Place. Sincerely, ~~ Anne Miller JL\~ Ken Miller 4415 SE 4th St. Renton, WA 98059 425-271-7969 krniller@connectexpress.com Jill Ding Renton City Hall, 6th FL Doug Mears 4308 SE 3rd PL Renton, WA 98059 ( 425) 235-7964 1055 S Grady Way, Renton, WA 98057 Re: INSTALLATION OFT-MOBILE TOWER July, 20, 2007 Dear Ms. Ding: RrcElv£d JUL 2 3 2007 RENTON Cily CouNcil It is with great concern that I learned ofT-Mobile's plan to install a new tower at the intersection of SE 3rd PL and Anacortes streets in the Heather Downs neighborhood of the Highlands. When my wife (3 months pregnant at the time) and I were looking to purchase a home in the fall of 1994, we were looking for a neighborhood free from overhead power lines or other sources of electro-magnetic radiation (EMR). A number of studies had just been concluded around that time which confirmed a very strong correlation between high levels of this radiation and various types of physical ailments, including brain tumors and other types of cancers. While industry argued the study results (naturally), the correlative evidence was, and still is, very compelling. It was compelling enough, in fact, that we wouldn't consider purchasing a home in such close proximity to high-powered lines or towers of any type. Even if it could be proven that the radiation produced by these towers is not harmful (which certainly has not happened yet), the controversy surrounding these towers is commonly known, making homes in close proximity to these towers nearly impossible to sell, or at the very least, impossible to sell at a price close to homes situated away from such towers and high-voltage power sources. Therefore, the damage which will be caused by this tower, ifT-Mobiie is allowed to build it, will be economic at the very least; if the various studies about the effects of EMR are correct, the damage done to those living around the tower will be physical as well as economic. In either case, it is a frightening prospect. Of course, T-Mobile can argue that the protests over their proposed new tower are just another example of the "not in my back yard syndrome," and that these towers have to be built somewhere. Yes, they DO have to be built somewhere, if we want to keep this type of technology, but why do they have to be placed in the middle of residential neighborhood, with streets which are always full of playing children? The people who purchased homes in this neighborhood could NEVER have imagined such a thing would be constructed in such a bizarre location. There are still plenty of wooded areas nearby which could hold such a tower without the risks associated with building the tower (literally) in our front yards. One does not have to be far away from these towers to dramatically reduce the levels ofEMR exposure. It is impossible to avoid the highest levels of exposure, however, for the many houses crowded around the proposed tower location. I urge you to reconsider the location of this T-Mobile tower. I have spoken to my neighbors at length about this issue, and I assure you that we are unified in our opposition to it. We have all promised to band together in whatever legal action is needed to stop its construction. We all strongly believe that there is more at stake here than property values. We believe that the health of our families may very well be at stake, and as you know, there is nothing that people will fight harder to protect than their children. Thank you in advance for your careful consideration of this very important matter. Sincerely, ~~ Doug Mears (dougemears@msn.com) cc: Renton City Council Mr. Dennis Law Rut~/) ,,r:utu1/f,(4111' ~ · f11tn .· 1ft Aft/;]&· - •. ·1 I' V Joa 7 RECEivEd JUL 2 3 2007 RENTON Chy CouNcil · J~ a1eL ·J)J. (9w du ,;11-<!lu.Jf:uJ'J._ u1~ :;£. llnZim, '-tv'tt -r io;;i ·JuL 2 3 2001 ~ RENTON Ciry CouNcil ---~[)) __ _ KELLER WILUAMSR 1 R E A L T y I'm writing this letter on the behalf of the residents ofHeatherdowns regarding the proposed placement of a T-Mobile cell phone tower on the comer of SE 3rd Place & Anacortes A venue. I myself for 17 years owned & lived 5 houses to the west of the proposed cell tower site. I understand my neighbors concerns about a 60 foot monolith being constructed in their small single family one story home residence neighborhood. Especially with the potential of the tower reaching 100 feet is concerning. I am a licensed realtor in the State of Washington and an owner of my Keller Williams Puyallup office. It is my opinion that the marketable value of the properties located within this area would be affected dramatically. Even though the proposal states that there is no conclusive evidence of environmental impacts of the project that has nothing to do with marketability of a property with a structure of this magnitude standing out like a sore thumb. The one uncontrollable factor in real estate sales is LOCATION, LOCATION, LOCATION!!! Constructing a cell phone tower is affecting the location of this quiet neighborhood whether significant environmental impacts or not. Sellers will see an impact on the marketable and sellable value of their homes. Buyers will see the tower and say, "What is that?" Buyers set the market value of homes. If a buyer has a choice of identical homes, both priced in the $300,000 range, one with a cell phone tower in close proximity and one without, buyers will choose the home without the tower. Unless .the home with the cell phone tower was priced dramatically less. I have seen this time and time again. I feel there are plenty of other suitable locations to build a cell phone tower rather titan a small residential neighborhood. If you have any questions, feel free to call me at my numbers listed below. Best regards, Bonnie Watson Keller Williams Realty 615 East Pioneer, Suite #203 Puyallup, WA 98372 Office #253-848-5304 Cell #253-906-7284 -.-I ;p(!(' J' ftj: luu, ·1 ., ..Jv ! CITY OF RENTON JUL 2 3 2007 1/)9) 0( RECElveg CITY CLERK'S FFICE ':,_; . :·-1 ,; ' I l l. ·- . -' .. ..;. L ' ---·····-·-· __ .......... ·. ·---·-·-·---'-·---------"--.-·--------- July 23, 2007 Jill K. Ding, REcEivEd JUL 2 3 2007 RENTON Ciry CouNcil Regarding the proposed site ofa I-Mobile Monopole, to be located at the corner of SE 3rd Place and Anacortes Ave SE. I am a neighbor of the Gitchels, even though r live a block away at 407 Anacortes Ave SE. From my house you can see the corner of the proposed I-Mobile Monopole. I am appalled that you would even consider having a company come in and put in an unsightly pole, sticking out like a sore thumb, for all to see, even from my house, the view would be unsightly. A lot of us have lived in Heather Downs, raised our families, and now have grandchildren, or will have grandchildren, visiting and possibly playing in the streets nearby. Who knows what the health affects may be from having such a pole so close by. We are a Family Neighborhood, not an Industrial Park. I'm sure there are other areas in the Highlands where such a pole would be better suited. What's wrong with putting it at the end of Union Avenue, in the tree line, make it look like a tree or something and not have it stick out in plain sight. What's wrong with up at the new Heritage Park, up on Union Avenue? I'm sure there's room in the back, among the trees where it wouldn't be such an unsightly eye sore. I wouldn't purchase a house ifl had to look at that I-Mobile Monopole everytime I went out or looked out my front door. I don't think any perspective home buyer would even consider buying in this neighborhood, with that ugly pole sticking out, staring you in the face. I, as a homeowner, and resident of this neighborhood, ask that you reconsider relocating the site of any purposed I-Mobile Monopole. ;z:'°7~ /,.ffe ~/1 wc-s _5;p.7f Ll#,1fL ""C'::/..54 407 Anacortes Ave SE Renton, WA 98059 CC: Renton City Council, Denis Law July 18, 2007 Jill K Ding, We are responding to the T-Mobile Monopole in SE 3'd Place R-0-W JUL 2 3 2007 RENTON Ci-ry CouNcil This tower will not be placed near our home without the City of Renton or T-Mobile purchasing our home at today's value! We Charles & Frances Gitchel live at 4401 SE 3'd Place. The proposed location of this Antenna is in the comer of our front yard. Our house is not big and fancy, but it is our home. We live in a neighborhood where there aren't any sidewalks. Men, women and children walk and play in the street The proposed location of this Antenna is where a city sidewalk should be. My wife purchased this home in 1966 and raised her children here. I grew up in Renton and went to Renton High School. During the Vietnam War I enlisted in the Air Force (Active Duty) and was trained in electronics as a Radar Repairman and later in the Air National Guard Reserves as a Radio-Telephone Communications Technician. I was taught extensively the dangers of frequency radiation. I talked to Stephen Ames, CRS, our Real Estate Broker, about the affects of this proposed cell tower on our property value. His letter is attached. Listed is his long list of Real Estate Credentials, including him being an expert witness in court. In his letter, when he refers to the radiation issue, he states "A buyer who perceives the risk, whether real or imagined, will usually avoid it, which means no sale for you if you are trying to sell, regardless of the price, because life is not worth money to most people -there's no exchange rate." It is very evident that the Renton City Hall needs to be educated on the health and financial consequences of these towers. I was taught that frequency radiation greatly increases the risk of medical problems like cancer, brain tumors, birth defects, sterilization ... the list goes on. The question has and still is "How much is too much?" In the past, some military men stood near antennas because it made them warm. Further research led to the invention of the microwave oven. Microwave ovens are built with a metal casing and screening in the oven door to help block the radiation from harming you. -Microwave is at a different frequency than arc cell phones, radio and television, but they all use frequency radiation. The dangers exist in all cases. I will use a microwave oven as an example because it is something people can relate to. -The amount of danger from frequency radiation is directly related to the power output of the antenna. Example: If you place a glass of water in a high-powered microwave oven, it will boil in about 2 minutes. But if you place that same glass of water in a cheap low powered microwave oven, it will take 3 or more minutes to boil. -The amount of danger from frequency radiation is also determined by how far you are from the antenna. The closer you are, the more power you receive. A good example is the signal bars on your cell phone. -In the water example the water boiled sooner if the oven had more power, but the water still boils at a lower power level. This shows that the danger from frequency radiation is also determined by the length of time you're being radiated at any given power level. As an example: You can put a cold glass of water in a high powered microwave for 5 or more seconds, the water will still be cold. It wasn't radiated long enough to have any noticeable affect. Cell Phone towers are transmitting to hundreds or thousands of cell phones continuously. If you are too close to these towers, it is like having you and your children being completely covered with transmitting cell phones, all the time, day & night. It doesn't end until you get away from the antenna. But how close is too close? What effect will it have even at low levels? Who knows? The water still boils I Cell phone companies only care about the bottom line. Are you gullible enough to believe them? Would you take that chance with your children or grandchildren's health? My wife and I will not I No responsible person would gamble with anyone's lives! A neighbor gave us this letter from Bonnie Watson at Keller Williams Realty. Her letter is attached. She states in her letter: "It is my opinion that the marketable value of the properties located within this area would be affected dramatically." Our Broker, Stephen Ames, has a lot of information in his attached letter. He concluded it with: "The tower presents a very real blockage to your ability to sell your home at any price." Do you understand what he's saying? Anyone, with any common sense, would know that placing a 60-foot tower in your front yard, 45 feet from your house, would lower your property value. But he's saying our house would be worthless! This insanity needs to end. City Hall is supposed to protect it citizens. We were let down. Our back is against the wall. The regulations on cell tower locations needs to be modified so that no one else has to go through the many sleepless nights, the mental anguish and having the runs. These towers should all look like fir trees and be placed in wooded areas, greenbelts or water run- off holding ponds. Even City Parks, where the exposure would be for a limited amount of time, would be better than destroying neighborhoods and radiating families 24 hours a day. There are wooded areas 2 blocks south and another 3 blocks east of our home. So why here? The wooded area at the south end of Union Avenue is only 3 blocks away. Heritage Park is just up the street. So why here? If you say the law will not allow you to place it in these areas ... Change the laws I Any trees that are disturbed, require the cell companies to replace them. If you are one of those that say you can't disturb the animals, your priorities are in the wrong order. Your saying it's OK to put us through hell but you can't bother the Rats in the forest? City ofRenton's regulations on cell phone towers has allowed T-Mobile to apply for a permit to place this tower just 45 feet from our home I Would you let them? Would you want an ugly, radiating antenna in your front yard this close to your children? Would you like your home equity stolen from you? Of course not! Does this situation fall into the category of "To Serve and Protect the Public"? It was suggested to me, that Rats from the cell phone industry, might have influenced City Hall. I ask you, do you represent the citizens of Renton? Or do the Rats have priority? Please end this "NIGHTMARE!" Cw~rances L. Gitchel CC: Renton City Council, Denis Law, July 18, 2007 Renton City Council, lorre.spondenc. 7-,J.3. ;l,007 ~~ CITY OF RENTON JUL 18 2007 As per the attached letter, I'm requesting that your cell tower regulations need to be modified. I would like this topic be added to your agenda for the next meeting, Monday, July 23rd. Chuck Gitchel 4401 SE 3rd St Renton, WA 98059 425-255-0077 chuckandfrantest@comcast.net July 17, 2007 Charles and Frances Gitchel 4401 SE 3rd Pl Renton, WA 98059-5140 Dear Chuck and Fran: Per your request, I am writing you this letter to render my professional opinion concerning the marketing effects of a cell tower on or near your property. Licensed in Real Estate in 1975, and a broker since 1979, I have had many experiences including being an expert witness in court, liquidation of large receivership estates for the courts, as well as owned and operated my own firm, and managed others. During the 32+ years I have been in the field of Real Estate, I have achieved and been awarded CRS designation (Certified Residential Specialist) by the National Association of Realtors since 1999, which is only held by some 25,000 agents across the country. I have been ranked in the top 1% internationally since 1996 while with Coldwell Banker, and Top GOLD Producer since being bought-out by Prudential, both the very top ranks achievable. My full credentials are listed below. During the last few years, the saturation of interest and activity in the arena of real estate has become higher than ever. The advent of increased access to information through the internet has made the industry a full disclosure enterprise. Full disclosure is in at least two forms: (1) Seller's disclosure of what they know to be defective about their property; (2) Buyer's discovery of defective aspects of a property by way of inspection and other forms of due diligence. The latter of the two means of disclosure poses the most difficulty for you in the sale of your home should there be a tower placed on it: discovery. This process includes the Buyer being able to research all aspects of possible threats to their quality of life should they purchase your place. Controversy on the internet and in libraries concerning EMF and other forms of radiation, radiation fall-out, and rads is as wide-spread as the topics themselves. Whether or not there is a direct threat to people's health, the perception of the risk involved is of significance. As you well know, your perception of things is your connection to reality for you -right? Well, to be honest, this is true for most everyone. A buyer who perceives the risk, whether real or imagined, will usually avoid it, which means no sale for you if you are trying to sell, regardless of the price, because life is not worth money to most people -there's no exchange rate. This is not the whole story, however. When it comes to Buyers and Agents, it is the Agent's responsibility to point out known defects or possible defects that would likely be in question even before showing the house to a prospective purchaser. What this means to you is, you won't even get showings as a result of the potential risks to health in the ownership as perceived by the professionals who "weed-out" properties that would not be to a Buyer's liking, or would pose potential risks to the Buyer and/or that Agent who could be sued later for what he or she should have known, even if the Buyer did not know at the time. My advice to you is to not allow the tower to go on or near your property, to assure you highest and best use and ultimate value from your property. Should you wish to have If me further attest to these factors, I will gladly assist you. The tower presents a very real blockage to your ability to sell your home at any price. « Very truly yours, Stephen T. Ames, CRS Associate Broker Prudential NW Realty Assoc. LLC 622 S. 320th St. Federal Way, WA 98003 0: 253.765.2327 C: 206.498.2637 F: 253.839.7066 CREDENTIALS -Real Estate Sales License 1975 -Associate Broker of Real Estate License 1979 -NAR Certified Residential Specialist (CRS) -Certified 1031 Exchange Specialist -Certified Previews® & Luxury Properties Specialist -Chairman's Circle Office Top Agent 96-06 -Chairmen's Circle Gold Producer 96-06 -NAR /WAR/ SKAR Realtor® Member -Member NWMLS (Nation's Largest MLS) -Member CSA (Commercial Broker's Assoc)