Resolution No. 97-36 d
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CITY OF TIGARD,OREGON
'1 RESOLUTION NO.97-3(P ,?^
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A RESOLUTION OF THECITY COUNCIL ADOPTING THE HEARING'S OFFICER r
d FINDINGS AND CONDITIONS OF APPROVAL(AS AMENDED BY CITY COUNCIL "
t ON SEPTEMBER 4, 1997)CONCERNING CONDITIONAL USE PERMIT 97-0004 ,
FILED BY AT&T TO DEVELOP A SO-FOOT CELLULAR COMMUNICATIONS
" TOWER AT 13707 SW PACIFIC HIGHWAY. "„ G
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WHEREAS, on July 17, 1997, the City's Hearings Officer conducted a duly noticed �>
Public Hearing and responded to public testimony regarding the proposed cellular sf ,
communications facility. y
WHEREAS,on August 4, 1997,the City's Hearings Officer issued a decision to approve
Conditional Use Permit 97-0004 subject to Conditions of Approval.
WHEREAS; on August 12, 1997, the City Council called up the Hearings Officer's
decision to approve Conditional Use Permit 97-0004 for further review.
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WHEREAS,on.September 4, 1997, the City Council conducted a duly noticed Public a..
a' r, Hearing at which Public Testimony was taken and the applicable approval standards were 010,
reviewed. k
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: f
SECTION is The City of Tigard Oregon hereby determines that Conditional Use
Permit 97-0004 complies with the..applicable approvalstandards and >,
approves the request subject to the Findings and Conditions of Approval
issued by.the City's Hearings Officer(Exhibit A)as amended by the ix
an S
Tigard City CoCounciSeptember a,1997.
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PASSED: This I ay of—1997.
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fir-City ofTigard
ATTEST:" '
City Recorder—City of Tigard
RESOLUTION NO.97-3G
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77-7
513
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(Adopted by Tigard City Council on September 4,1997,Resolution No.97-36) 'v
ADDITIONAL CONDITIONS FOR CUP 97-0004-AT&T MONOPOLEe �*a_
2.e. The noise generated by this use shall not exceed the levels allowed by the ftp
Tigard Municipal Code. uw"' ..
2.f. The Applicant shall plant two(2)to five(5),three(3)to four(4)inch caliper
trees within the area bounded by the property lines of the three lots abutting
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the northwest property line of the retail center. Exact location to be approved
by a certified arborist. Plan to be subject to review by staff. Tree location is °¢,
to maximize screening of the view of the pole from the adjoining residential
properties and to include trees that grow with varying
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speeds. Tree location
will be either within existing landscape areas or the leased area,but would not
adversely affect the functioning of the monopole. Applicant to be responsible
for maintenance of trees. Certified arborist to be selected by applicant, �raa')h`
approved by City. Council's intent is that staff's review is not a land use
decision. ar �'
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RESOLUTION NO.97--3(P
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k BEFORE FORTHE�USE HEARINGS CER
OETIGARD,OREGON
Regarding an application for a conditional use permit for a ) FINAL O R DE R
50-foot tall towzr for cellular mobile radio telephone )
antennas and an accessory structure in the C-G zone at ) CUP 97-0004
Y 13707 SW Pacific Highway in the City of Tigard,Oregon ) (AT&T Wireless)
I. SUMMARY
1.The applicant requests approval of a conditional use permit for a 50-foot tall
tower that will support flush-mounted panel antennas for cellular mobile radiotelephone
services and a related 11.5-foot x Iii-foot equipment building and associated development. x
The proposed tower and building will be situated in a roughly 936-square foot leased area '
(39 feet x 24 feet)beside(southwest of)a commercial building(for Tune-A-CarlMeineke)
on the 0.95-acre parcel.The leased area now is paved and allows vehicle maneuvering 4 3
around the building.The applicant will surround the tower and accessory building with 15
four-foot tall bollards.The applicant does not propose to provide additional landscaping,
paving or parking,although the applicant agreed at the hearing to enclose[!te accessory
building with a sight-obscuring fence. Parking for the facility will be provided in an
existing parking lot on the site.Access to the facility will be through the existing parking {,,
IOL Utilities for the site will be underground.
.:( 2.A duly noticed public hearing was held to review the application on July 7,
! 1997. City staff recommended approval. The applicant accepted the staff recommendation a ate
without objections. Six members of the public testified orally and/or in writing against the 4
proposal. T
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--� a. The westernmost of the three buildings on the site contains Tune-A-Car
and Meineke.There are several drive-through bays with overhead doors on the east and
west sides of the building- Although the doors facing west are supposed to remain closed
during terrain times and days pursuant to a conditional use permit,unrebutted public
- testimony is that those doors generally are left open at all times and days when the
businesses operate- West of the building is a 20-foot wide automobile maneuvering aisle r;
that connects to maneuvering aisles to the central parking area on the site.
b. The southernmost of the three buildings contains a videotape rental
business and a tanning business,among others.There is parking along the north edge of
the southerly building and in the large central parking lot on the site. There is a large paved
area west of the southerly building for parking and temporary storage of solid waste.
a Based on the survey and site plan provided by the applicant,the two
buildings are less than 45 feet apart at their closest point,although the distance between
increases to the west. Based on a survey of the site by Olsen Engineering in the
application,the proposed leased area is about 15 feet from the rear of the parking spaces
abutting the north side of the southerly building.Based on a site plan by the applicant's
architect(sheet 1/A2),the proposed leased area is about 25 feet from the rear of those
parking spaces.This discrepancy is not resolved by substantial evidence in the record.
(The Staff Report did not identify this discrepancy.The hearings officer discovered it after
the record closed-)
d. The majority of the landscaping on the 0.95-acre parcel is situated in the
setback along Pacific Highway,between the northerly b„yi.ting and SIV Watkins Avenue
(to the north),and in a triangular area at the northwest comer of the parcel. There are
landscape islands in the parking lot There is about a 5-foot wide landscape strip alongthe , ;
west edge of the site.That strip and the adjoining land to the west contains numerous 0-
to 40-foot tall conifer and deciduous trees and other vegetation that screen the site from
view from the west to the height of the trees.There are light standards in the parking lot 'w
g There is not substantial evidence in the record of the height of those light standards..The
hearings officer estimates them to be 30 to 35 feet high. .F .
e- Although the site plan by the applicant's architect(sheet 1/A2)indicates i
there are about 105 parking spaces on the 0.95-acre parcel,that site plan is inaccurate in at
least two regards..It shows parking spaces where the drive west of the Tune-A-
Car/Me ney btW "ig extends to the parking lot north of that building. Assuming the site.
plan is otherwise correct in its illustration of parking on the sire,the actual number of
parting spaces on the site is about 100.
2. The properties north and west of the parcel on which the tower is proposed are
developed with single family detached one-story homes at built-out densities.The tower
site is within 50 feet of the back yard of one home to the west and within roughly 125 feet
to the house on that lot. It is a little farther from the backyard and home on the adjoining lot
to the north,It is several hundred feet or more from other surrounding homes and yards.
Based on the photo simulation of the tower(exhibit A of the applicant's July 28,1997
letter),the upper portion of the tower and antenna will be visible from some but certainly.
t not all vantage points in the vicinity.Visual impacts are greatest on the lot immediately
--west of the tower site and will decrease proportionately with distance..Whether those
visual impacts are significantly adverse is not a basic fact or a question of law,but is a
-'mixed question of law and fact the answer to which mostly depends on the perspective of
the person drawing it.
He ingr Offkt RP d Order
CUP 9741104/AT&T-Hwy 99w) Poge?
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I .i.The issue of the need for the fatuity to be situated where it is pmpa,5::d -stYa<i
i of in some other location on[he site or on some other site altogether,was the subject of
substantial public testimony and applicant response. The public testimony is summarized
in a later finding. Highlights of the applicant's information are summarized below.
a. In exhibit A of the April 3,1997 application in this matter,the
applicant's real estate manager states"this location is the only viable site that will meet our
engineering needs and requirements." In support,the applicant submitted computer-
generated plots illustrating better coverage if the tower is located where proposed versus an
existing tower site at 99W and Walnut Street Also see page 2 of the application. In
summary the applicant argued the new site is needed to increase capacity and improve
quality(e.g..reduce dropped calls)along the Highway 99W corridcr.
b. In a letter dated July 14,1997,the applicant's RF design manager(a
professional en
p engineer)argued a tower tie the proposed location will improve the signal level
and will establish the site as a dominant server in an area that includes about 3/4 of mile of
Highway 99W,partially remedying existing coverage and dominance problems. She
submitted plots of"actual cellular coverage data gathered during test drives along routes
that will be affected by the proposed site"in support of her argument The plot showing
the impact of the new tower is based on a temporary test transmitter operating at the site. .
c. In a letter dated July 28,1997,the applicant's consultant argued the � 3
proposed site"is part of a long-range plan to improve the level of quality of coverage and to
increase the amount of caller capacity m rice Tigard area With the addition o F the proposed
site,and a fortune site to be located in the vicinity of tate Highway 99 and I-5 i-iterchange, 3
AT&T will have completed its plan for improving cellular scrvice-in Tigard for the
immediate and foreseeable future." x
4.The issue of the noise from air conditioner units in the proposed accessory 's
building was raised by the public and responded to by the applicant
a In a letter dated July 14,1997,the applicant testified that two air
conditioners will be installed on the east side of the accessory building. They would
operate in lead-lag mode;one-at-a time.In the letter dated July 14,the applicant identified u
the specific air conditioner units to be used and provided noise data from the manufacturer x
of those units.,This data show that the units produce less than 50 dBA measured 50 feet x,
from the unit with certain assumptions about background noise levels. , .t
b In a letter dated July 28,1997,the applicant offered to install"compact
ultra low noise air-conditioning units in response to continued concerns.These units ','�,�
generate noise that is far below accepted thresholds."The applicant included the
manufacturer's specifications for such a unit,but did not include noise data evident to the
hearings officer. M
c.The record does not include substantial evidence of ambient noise levels
at the site other than the anecdotal testimony from neighbors about high noise levels
emanating from the open bay doors of the Tune-A-Car and Meineke businesses.Higher
noise levels caused by the automobile businesses would mask the perceived impact of noise
.from the proposed air conditioner units.
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' 5.Other basic facts about the site,vicinity and proposed use are summarized in ;
i finding 1.1 above and in Section III of the June 27,1997 City of Tigard Staff Report to the ,.
Hearings Officer(the Staff Report),incorporated herein by reference.
Hearings OgaerFirza[Ordrr t
CUP 97-0004(AT,--!--Hwy 99W) Page 3 M
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a T9- Appi(!'LAtF APPROVAL, CTa\tom A.,zns
The applicable approval standards are identified in Section IV of the SMIT Report
together with responsive findings for each. There is no dispute about which approval
standards are relevant or whether they were adequately identified.The hearings officer
adopts by reference the approval standards cited in Section IV of the Staff Report.
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IV. HEARING AND RECORD
1.Hearings OYficer Lary Epstein(the"hearings officer")received testimony at the
public heating about this application on July 7,1997. At the conclusion of the hearing and
pursuant to a request by a member of the public and the applicant,the hearings officer held
open the public record for one week for submission of unlimited new testimony and
evidence from all parties,for a second week for submission of new testimony and evidence
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from all parties in response to the materials submitted the prior week,and for a third week
} for a final argument by the applicant.The record in this case closed at 5 PM on July 28, E
1997.The testimony and evidence are included herein as Exhibit A(Parties of Record), "
Exhibit B(Taped Proceedings),and Exhibit C(Written Testimony). These exhibits are
filed at the Tigard City Hall-
2.At the hearing,city planner Mark Roberts summarized the Staff Report
3.Mike Bimclorf and Jeff Penick testified for the applicant. Mr.Bimdorf explained
that the AT&T wireless communication system is relatively manirc and that additional sites
fill in where needed to provide capacity.He argued that placing proposed antennas an the
existing cell site at Highway 99W and Walnut Street would result intinefficient overlapping
coverage.He offered to place a sight-obscuring(slatted chain link)fence around the
ground-mounted equipment on the site.Mr.Penick testified that one additional tower may
be needed in Tigard—near the intersection of Highway 99W and Interstate 5,and that
higher towers would not remedy the capacity problem AT&T believes exists with its
existing system.
.; 4:.Carl Johnson,JohnChamberlain,Kaye Chung,David and Vicki Hammes and >
Preston Vielbig testified orally at the hearing against the proposed conditional use permit.
a Mr.Johnson questioned potential health effects.The hearings officer
responded that the City cannot regulate RF emissions that comply with standards adopted
by the Federal Communications Commission pursuant to the Federal Telecommunications
Act of 1996,and that the proposed facility is likely to produce a small fraction of the RF
energy permitted by FCC standards,based on the hearings officer's experience-
b-
xperience_b .The remaining witnesses'testimony-as similar..None perceive a '.
problem with AT&T service coverage or quality based on their experiences. All argued
against a tower so near a single family home,principally because of visual impacts,but
there also were concerns about noise from air conditioning units in the accessory building,
radio frequency interference and the potential for the tower to pose an"attractive nuisance",
Several witnesses suggested alternative locations on the site,(e.g., the grassy area at the
.northwest corner of the site,the Highway 99W frontage of the site or in the parking lot on
the site). Several suggested other locations off-site(see,e.g.,the list in the July 21,1997
letter from John and Debra Chamberlain). Two witnessessubmitted photographs of the
site,surrounding area and other wireless communications facilities,on several of which
they illustrated what they believed the tower would look like from several vantage points.
Xeanngr Off erFinaf Outer
CUP 97-000.!(AT&T-Hy 99W) Page 4
5. Mc Birndorf responded to the public testimony. He argued the applicant has
minimized me visual i—paa:a uy a s u,s a,Iim-line monopole the minimum height necessary
w. to provide the requisite coverage and[lush-mounted panel antenna design and agreeing to
install a sight-obseuring fence around the ground-mounted equipment. He argued that
many utility poles along Highway 99W and elsewhere in the area are similar in appearance
to the proposed tower and have many more obtrusive attachments and connections.He
offered to provide more information about the need for the site if the record is held open for -
that purpose. He explained the site will not have a back-up generator. Batteries will be
used for a back-up power supply. He explained about the proposed air conditioners and
offered to provide more information about them. He testified that the tower cannot be +*..
placed on a landscaped area of the site,because that would violate landscape requirements.
He described security measures the applicant will take to prevent public access to the tower,
including the fence and anti-climbing measures. He described the steps the applicant took
to respond to concerns voiced at public meetings about the proposal,including"flipping"
the building and pole locations in the leased area,thereby moving the pole further away and
orienting the air conditioners to the east ;
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V. EVALUATION OF REQUEST
1.City staff recommended approval of the conditional use permit based on the
findings in Section IV of the Staff Report The hearings officer adopts and incorporates
those findings as his own except as otherwise expressly provided herein. ksr�
2.The proposed wireless communications facility is a conditional use in the C-G
zone.Therefore it must comply with CDC 18.130.040.1
3.There is a dispute about whether the proposed wireless communications facility F
is needed at this site. Area residents say there is no need,because they do not experience
service problems with the applicant's cellular phone system. The applicant says there is a
need,based on dropped calls and inefficient call management. The hearings officer finds it
is irrelevant under the CDC whether there is a need for the proposed facility per se.That
is,need is not relevant under CDC 18.130.140 for this or any other conditional use.
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1 CDC 18.130.040 provides as follows in relevant pare e '
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A.The hearings officer shall approve,approve with conditions,or deny an application for a x ,.
conditional use or to enlarge or alter a conditional use based on findings of fact with respect to
each of the following criteria; r
I.The site size and dimensions pmvide adequate area for the needs of the proposed use:
..The chatopography
and
of the site are suitable for the proposed use considering size,shape.
lodtion,topography and natural features;
3.All required public facilities have adequate capacity to serve the proposal: i
4.The applicable requirements of the zoning district are met except as modified by this
chapter:
5.The supplementary requirements set forth in Cbap'.er 8.114,Signs,and Section .
18.120.180,Approval Standards,if applicable,are met:and n #n
6..The use will comply with the applicable policies of the comprehensive plan.
XcurzngrQ07er Fu+al Order
CUP 97.0066(AT&T-H 99w
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" 4. There is a diputt:a` '!oCaco^ h prope ed.+rirr I,—
,,� -- communications facility is suitable. The hearings officer finds that the location of the
proposed facility near property developed with single family detached dwellings makes this
site lesssuitable than sites farther from such uses,because of perceived aesthetic conflicts
between a wireless communications facility and residential uses in general and single family
detached homes in particular. That is,to the extent the[ower curates a significant adverse
ual impact due to its height and character,it conflicts with nearby residential uses with a
vis
.view i the tower. Unfortunately the CDC provides little guidance about how much impact
is enough to render a site unsuitable enough to deny an application.
a. The hearings officer construes CDC 18.130.140 such that alternative
locations for the use are not relevant. The relevant question under the code is not whether
the proposed use would have fewer impacts if located on another site. The relevant E s
question is whether the proposed site is suitable.There are no doubt sites where the tower
. would not be as obtrusive. There are no doubt"stealth"antenna designs that would reduce t
visual impacts. However the potential for fewer impacts if the proposed use is located
elsewhere or is redesigned is not relevant The relevant question is whether this proposal
` should be approved based on its merits,not whether some other proposal would be. �ppp
b. If the accessory building is enclosed in a sight-obscuring fence as
proposed at the Ircaring by the applicant,the hearings officer finds it does not have a
significant adverse visual impact The building generally is obscured from view from
-, homes and yards to the west by the existing mance vegetation along the west edge of the
site. To the extent it is visible,it is not obtrusive.It will be built of materials common in
the arex T-rn,+11 era/r and hNp
c. Although it is a close call,the hearings officer finds the proposed tower
does not have such significant unmitigated adverse visual impacts that the application
should be denied.The tower is the minimum height and cross section necessary to provide
the service the applicanx intends m provide,and it uses antennas that create the least visual
impact ac the top of the tower. Although visible from off-site,paniculazly from the
adjoining lot the visual impacts created by the tower are no[so different from the impact of
other poles,light standards,signs and structures in the area to render its impact
significandy adverse. The homes to the west already are subject to visual impacts from the
commercial uses on the site and from overhead utility lines and poles.The proposed tower
does not significantly increase those impacts.However,increasing the height:of the facility
(e.g.,for a future collocated antenna)should be prohibited so chat visual impacts do not
,� increase.A condition of approval is wairanred to this effect
5.There is an inconsistency in the record about the distance between the facility
and the parking spaces to the southwest If there is at least 25 fee[between the parking
"spaces and the facility,then cars can maneuver into and out of those spaces safely..If there
is less than 25 feet,then there is not enough room for the parking spaces and the facility,
and the conditional use permit should be denied pursuant to CDC 18.130-140(A)(2). The
distance between the parking spaces and the facility can be confirmed before approval of a
site plan for the facility.A condition of approval is warranted to require such verification.
6. Pursuant to CDC 18-130.040,a conditional use must comply with CDC
18.120.180(Site Development Review approval standards).
a Based on CDC 18.120.180(A)(4),the hearings officer finds that the
cower should nor incorporate any advertising or signage and should not be lighted except as
required by the Federal Communications Commission or other applicable agency or as
Hearings Og er Final Order `
CUP 97-0004(AT&T-Hwy 99W) Page 6
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approved by the planning director for security or safety purposes.Conditions of approval y
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` b. CDC 18.120.140(A)(4)(a)and(b)require buffering between different
types of land uses and CDC 18.120.140(A)(5)(d)requires that a use that creates noise, 1 z
light or glare be buffered from adjoining residential uses.The purposes of the buffer in
this case are to screen the tower from view and to mitigate noise impacts. The existing
vegetation on the west edge of the site buffers the site from view to an extent.
accessory building and bottom half of the tower will be largely hidden from view from the z
west.Only the top 20 to 30 feet of the[ower will be visible from the west- That visual
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impact cannot be mitigated practicably.Therefore the hearings officer finds the proposed '
buffer complies with CDC 18.120.140(A)(4). + 'r t M
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� e. Increasing the landscaped buffer and/or increasing the distance between �i z
the facility and the residential properties to the west would increase the efficacy of the
buffer and would reduce the perceived adverse visual impact of the tower from the west ' #1
But the hearings officer construes CDC 18.120.140(A)(4)to not require relocation of the ?
tower farther away from residential uses or increased landscaping on the site. F""'
7. Pursuant to CDC 18.130.040,a conditional use must comply with the
applicable policies of the comprehensive plan.The policies most relevant to this proposal
are the locational criteria for commercial land uses,particularly general commercial.2,
a. The hearings officer finds that the proposed wireless communications
facility is of a scale that is compatible with surrounding uses. The tower is taller than
surrounding strucnuaru,<. But; cross secti;n is rsuch smaiier than structures on
surrounding properties. The net impact is the same as or less than other structures in the
area,particularly due to the largely passive nature of the wireless communications facility. ' -^ a
b. The hearings officer Fords that the proposed wireless communications
facility is such that the privacy of adjacent homes can be maintained,because the facility is t
not manned and does not provide access to the general public to viewpoints or vistas that
do not already exist-
8.The hearings officer finds a communications tower has inherently adverse visual
impacts that are unavoidable.If the facility is abandoned or its use is otherwise terminated,
the adverse visual impacts of the facility can be eliminated by removing the tower. The .n".8,
hearings officer finds the applicant should be required to remove the tower if all antennas V ;
are removed from the tower or are not operated for at least six months. The tower shall be
removed within 90 days of abandonment
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VI. CONCLUSION AND DECISION
.Mr
1. Based on the findings adopted and"incorporated herein,the hearings officer `z i
concludes that the proposed conditional use permit complies with the applicable criteria and
standards of the Community Development Code,subject to applicable laws and conditions -' z
of approval warranted to address the potential impacts of the conditional use-
1
2 'Ibose locational criteria provide as fopaws in relevant pan:
(4Xa)the scale of the project shall be compatible wi W the surrounding uses. + ;
(4)(b)The site contig nation and characteristics shall be such that the privacy of
adJacent non-commercial uses can be maintained s:
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CUP 97-000.4(AT&T.H..'y 99w) Page 7
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2. In recognition of the findings and conclusions contained herein,and }
incorporating the Staff Report and other reports of affected public agencies and testimony
and exhibits received in this matter,the hearings officer hereby approves CUP 47.0064,
subject to the following conditions:
a. Before the city issues a building permit for the proposed tower,die
applicant shall submit a site plan to the planning director for review and approval,
(1)The site plan shall identify where one(1)off-street parking
space will be provided for the communications facility. That space may be situated in the
existing parking lot if the applicant shows that the number of parking spaces on the site
exceeds the minimum number required by the CDC by at Ieast one space. o c
(2)The site plan shall show aright-obscuring fence on at least the
west,sauth and cast elevations of the ground-mounted equipment on the communications
facility site.The applicant shall maintain the approved screening in good condition as long
az the applicant uses the site for a communications facility. Ck'
Lan shall show all such3�If lighting is proposed for security or safety purposes,the site +�x
p lighting,subject to condition of approval b.
(4)The applicant shall show there is at least 25 feet between the
facility and the closest point of the parking spaces that abut the north side of the
southernmost building on the site.
b. The tower shall not incorporate any advertising,signage,or lighting
except as required by the Federal Communications Commission or other applicable agencyc
with jurisdiction;provided,the planning director may approve lighting deemed necessary .
for security and safety purposes;provided further,permitted lighting shall be designed,
situated and/or operated to minimize its off-site impacts. � t
c.The applicant shall allow antennas for other telecommunications service 't
providers to be situated on the proposed tower,provided it does not increase the height of
the tower or substantially increase adverse visual impacts
,.and shall allow associated s"
transmission equipment to be sitva[ed in the groposed accessory building on the site if the
tower and/or building can accommodate such additional antennas and equipment or can be '
modified m do so; rovided,thea hranc ma
P pp y require such shared user to pay all cora
associated with such shared use as a condition of such shared use;provided further,such `-`�'.r,
mocation to the conditional use should be subject to applicable review by the city.:The
applicant shall respond promptly and in good faith to any inquiry regarding shared use of ,�,
the rower site. h
d- The applicant shall remove the tower within 90 days after the
communications facility is abandoned or its use is otherwise terminated.The facility is
presumed to be abandoned if all of the antennas are removed from the tower or are not
operated for at Ieast sic consecutive months.
s DATEisthis 4th day gust,1997.
` Larry Eps in,
`City of Tig H gs Officer
Hearing t0 sr Final MY
CVP 47-OL11a(AT&T-X+,7 99W) Page 8 �