CUP-01-10 Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Conditional Use Permit for a )
Telecommunication Wireless Support Tower, )
in the Single-Family Residential (R-3) District ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Applicant: Goodman Networks ) AND DECISION
File No. CUP-01-10 )
)
I. SUMMARY OF DECISION
Summary of Hearing Matter: Application for a conditional use permit for a
telecommunication wireless support tower, in the R-3 zoning district.
Summary of Decision: Approve application, subject to revised conditions.
FINDINGS OF FACT
1. The application requests approval of a conditional use permit for a telecommunication
wireless support tower, in the Single-Family Residential (R-3) District; in the northeast portion
of a 7.5-acre site.
2. The site is located at the southwest corner of 8111 Avenue and Eastern Road, and addressed
at 6102 E. Eighth Avenue; in Spokane Valley, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 35243.0754, and is
legally described on Sheet T-1 submitted by the applicant.
4. The applicant is Goodman Networks, c/o Steven Burke, P.O. Box 1511, Coeur d'Alene, ID
83816. The site owner is Avista Utilities Corporation, c/o Ted Baker, 1141 E. Mission Avenue,
Spokane, WA 99202.
5. On February 9, 2010, the applicant submitted a complete application for the proposal, on
behalf of AT& T Mobility Corporation.
6. On April 23, 2010, the City Community Development Department, Planning Division
("City Planning Division"), issued a Determination of Nonsignificance (DNS) for the
application, pursuant to the Chapter 21.20 of the Spokane Valley Municipal Code (SVMC). The
DNS was not appealed.
7. On May 20, 2010, the Examiner conducted a public hearing on the proposal. The notice
requirements for the hearing were met. The Examiner conducted site visits on May 18, 2010 and
May 24, 2010.
HE Findings, Conclusions and Decision CUP-01-10 Page 1
8. The Hearing Examiner heard and decided the application pursuant to SVMC 17.80.130,
Chapter 18.20, Chapter 19.150 and. Chapter 22.120; and pursuant to the Hearing Examiner
Scheduling Rules and Rules of Conduct, set forth in Appendix 13 of the Uniform Development
Code (UDC), a part of the SVMC.
9. The following persons testified at the public hearing:
Karen Kendall, Assistant Planner Steven Berke
City Community Development Department Goodman Networks
11707 E. Sprague Avenue, Suite 106 P.O. Box 1511.
Spokane Valley, WA 99206 Coeur d'Alene, ID 83816
Ken Seymour Velma Churchill
AT& T 817 S. Eastern Road
3808 N. Sullivan Rd., #104 Spokane Valley, WA 99212
Spokane, WA 99216
Vicki Merriott
6013 E. 9th Avenue
Spokane Valley, WA 99212
10. The following exhibits were admitted at the public hearing, in addition to the Staff Report
and the exhibits attached thereto:
Exhibit 10 Power point presentation by City Planning Division(14 pages)
Exhibit 11 Letter dated 5-19-10 from Steven Berke of Goodman Networks (3 pages)
Exhibit 12 Photos of cell towers with stealth design, submitted by Vicki Merriot (4
pages)
11. The record includes the testimony and exhibits submitted at the public hearing, the
documents contained in the application file at the time of the public hearing, and the items taken
notice of by the Hearing Examiner.
12. The site is 7.5 acres in size, irregular in shape, and relatively flat in topography. A 1-acre
parcel improved with a single-family residence and abutting 8th Avenue separates the east and
west parts of the northerly portions of the site.
13. The west portion of the site is improved with an Avista Utilities electrical distribution
substation; which accesses Dickey Road, 8th Avenue and 10th Avenue. The substation contains
numerous transformers and overhead power lines, is surrounded by chain link fencing with razor
wire on top, is barren of vegetation inside the fencing, and is bordered by landscaping strips that
contain evergreen trees and plantings of various sizes. See photos of site, and Sheet Z-1.
14. The east portion of the site is sparsely covered with grasses; contains a grove of evergreen
trees in its south and southeast parts; and contains two (2) large evergreen trees, and some
HE Findings, Conclusions and Decision CUP-01-10 Page 2
I
smaller evergreen and deciduous trees, west and northwest of the location of the proposed
support tower. See photos of site, and Sheet Z-1.
I
15. An overhead electrical power and telephone line, mounted on 40-foot tall wooden poles,
extends along the northerly border of the site and the 1-acre parcel near 8th Avenue. This
includes a power pole supported by guy wires lying approximately 90 feet north of the location of
the proposed support tower. See photos of site and Sheet Z-1.
16. A set of three (3) overhead electrical power lines, mounted on 60-foot tall power poles,
extend easterly from the power substation to a power pole located near the southeast corner of the
1-acre parcel; turn diagonally northeast to a power pole located approximately 65 feet southeast
of the proposed support tower; and then continue easterly on the site before crossing Eastern
Road. See photos of site and Sheet Z-1.
17. The support tower would be erected on a 60-foot tall steel monopole, within a proposed
leased area of 1,050 square feet on the site. The applicant plans to erect an antenna array at the
top of the monopole, with provisions for mounting collocated antenna arrays below the top array.
18. The support tower and antenna arrays are depicted and described on 24-inch by 36-inch
sheets prepared by an architect; including sheets T-1 (title sheet), Z-1 (site plan), Z-2 (enlarged
site plan) and Z-3 (east elevation) submitted on February 9, 2009; the letter dated February 8,
2010 from Steven Berke of Goodman Networks to the City Planning Division; various exhibits
attached to such letter; and the letter dated May 19, 2010 from Steven Berke (Exhibit 11). Also
see completed application form and environmental checklist.
19. The proposed leased area has dimensions of 35 feet by 30 feet; and is situated 60 feet south
of 8th Avenue, 52 feet and 9 inches west of Eastern Road, 42 feet and 4 inches east of the 1-acre
parcel located to the west, and over 500 feet north of 10th Avenue. See Sheet Z-1.
20. A 12-foot by 24-foot concrete base pad would be constructed in the leased area, directly
north of the support tower. The pad would support several cabinets, a horizontal ice bridge, coax
cables, a GPS antenna and other equipment for the support tower and antenna arrays.
Underground power and telephone lines would be extended to the leased area from the power
pole located 60 feet to the north, near 8th Avenue. See Sheet Z-2.
21. The leased area would be surrounded by a 6-foot high chain fence, with sight-obscuring
slats and a locking gate; and illuminated by a 300-watt halogen light with a 1-hour timer, affixed
above the concrete pad, with the lighting directed downward. Lighting of the tower is not
proposed. See Sheet Z-2.
22. The applicant plans to mount an antenna array for AT& T Mobility at the top of the tower;
which array would contain three (3) sectors, with each sector housing three (3) antennas. The
sectors would project out horizontally from the top of the tower. See Sheet Z-2
HE Findings, Conclusions and Decision CUP-01-10 Page 3
23. The support tower would include provisions for collocating two (2) additional antenna
arrays below the top array, for up to two (2) additional wireless carriers. The applicant submitted
a possible plan showing the collocated arrays mounted at maximum heights of 40 feet and 50 feet
on the tower; with the array sectors projecting at lesser distances from the monopole than the
array mounted at the top of the monopole.
24. The facility would be accessed via a paved access driveway with a turnaround, in an L-
shaped configuration. The driveway access would be extended to the facility from Eastern Road
over a distance of 52 feet and 9 inches, and have a width of approximately 12.5 feet wide. The
turnaround would be approximately 16 feet wide and 37.5 feet long. See Sheet Z-1.
25. The tower and top antenna array would belong to AT& T; and would provide wireless
A Y g T; p
telephone service and broadband high speed internet access for AT& T Mobility, a cellular and
broadband carrier. The tower is intended to improve coverage for wireless customers, including
improved coverage and reliability for 911 emergency calls.
26. The support tower, the AT& T Mobility antenna array and any collocated arrays would be
painted a dark green color to help the tower blend into the nearby trees and reduce glare. The
coax cables for the support tower would be placed inside the tower, to mitigate visual impacts.
The applicant has no plans to remove any existing trees or shrubs on the property.
27. Pursuant to a letter dated February 8, 2010, Steven Berke advised that the support tower
would be built to accommodate a total of three (3) wireless carriers; and that AT & T Mobility
desires to collocate the antenna arrays of other carriers on the support tower, provided the
antenna equipment for the other carrier(s)does not interfere with the existing equipment of AT&
T Mobility.
28. Steven Berke also advised in such letter that there are no existing towers located within one
(1)mile of the site, Avista Utilities does not allow antenna arrays to be attached to its power
poles and prefers stand alone towers for wireless antennas, the proposed antenna array would not
cause any electromagnetic interference with televisions/antennas or other wireless activities, the
facility would be built to minimize visual impacts to the area, and the extension of cellular and
broadband service through the construction of new wireless towers is being supported financially
by the U.S. Congress and provides a stimulus to local economies.
29. Pursuant to a letter dated January 12, 2010, Steven Berke advised that a 1-mile radius
search around the site revealed that there are no suitable existing structures within the geographic
area that meet AT& T Mobility coverage objectives; including structures of suitable strength,
height or geographic location to accommodate the proposed antenna array(s) and supporting
equipment.
30. Pursuant to a second letter dated January 12, 2010, Steven Berke advised that AT & T was
entering into a lease agreement for the project with Avista Utilities; and would be required by the
lease to remove the support tower, all aboveground improvements and restore the disturbed
HE Findings, Conclusions and Decision CUP-01-10 Page 4
I
portion of the site to its pre-lease condition if the antennas installed on the site are no longer
licensed by the FCC or the site is no longer used for wireless communication.
31. The applicant did not provide a copy of the proposed lease, or proposed easement necessary
for the access driveway and turnaround; or a legal description of the portion of the site that would
be leased.
32. Pursuant to a third letter dated January 12, 2010, Steven Burke advised that AT& I had
licensing agreements with all major wireless carriers in the Spokane area, the master licensing
agreement allows for collocation through a site license agreement, the proposed tower would be
registered with the FCC, other carriers would become aware of the newly constructed tower as a
result of such registration, and the tower would be structurally built to handle additional carriers.
33. Pursuant to a letter dated January 14, 2010, Steven Burke advised that the FCC requires all
transmitter sites to comply with the Maximum Permissible Exposure (MPE) levels for RF (radio
frequency) emissions that are set forth in federal regulations governing the operation of cellular
tower sites; such levels incorporate two tiers of exposure limits, one for protecting the general
public and one for employees; the federal regulations require each operator to have a compliance
policy in place regarding such emissions; and AT&T has an appropriate compliance policy in
place, and all its sites are compliant with FCC exposure regulations.
34. The applicant submitted before and after photo simulations of the support tower with the
AT&T Mobility antenna array at the top, and two (2) antenna arrays collocated below the top
arrays. Also see Sheet Z-3, and enlarged photo simulations in Exhibit 10.
35. The applicant also submitted a copy of a determination by"TOWAIR"that the proposed
tower and antenna require FAA notification and FCC registration, and before and after
schematics showing the improvements in cellular coverage in the area that would result from the
project. See p. 1-3 of TOWAIR Determination Results.
36. Neighboring property owners submitted a petition opposing the project, which was signed
by 17 property owners and registered voters who reside near the site to the east or west along 8th
Avenue, 9th Avenue or Eastern Road.
37. Vickie Merriott, who submitted the petition and resides two (2) residential lots west of the
site and Dickey Road, along 9th Avenue, on parcel no. 35243.0749, expressed opposition to the
project at the public hearing and in a letter submitted before the hearing. See parcel information
in application file.
38. Merriott expressed concerns that the proposed support tower and antenna array do not
utilize "stealth technology" as required by SVMC 22.120.040(A)(2); the tower is located in the
center of the east portion of the site, and not near the existing large tree shown west of the tower
on the applicant drawings; the applicant does not intend to provide a greenbelt easement for the
tree as required by SVMC 22.120.040(A)(1), or any landscape screening; nothing is proposed by
the applicant to camouflage the tower on the north, south and east sides; the tower should be
HE Findings, Conclusions and Decision CUP-01-10 Page 5
surrounded by landscape screening; Avista Utilities provides drip irrigation to the trees and
shrubs planted around its substation on the site, and the extension of water on the site to maintain
landscape screening for the facility is feasible; the same applicant is proposing a tower in another
area of the county, that will be required to meet stealth technology design requirements; the
tower will "stick out like a sore thumb" in the neighborhood; the 300-watt floodlight proposed
for the facility violates SVMC 22.120.040(E), will shine into nearby homes, is not required by
the FAA for a 60-foot tall cellular tower, and should be eliminated; the tower fails to include a
"fall radius" as required by law; and the proposal is opposed by 17 property owners in the
adjacent area, as outlined in the petition.
39. Velma Churchill, who resides directly across Eastern Road from the site, at the northeast
corner of 9th and Eastern (parcel no. 35243.0451), testified at the hearing that she would look
right out her front window at the wireless facility, the area is not wooded as indicated by County
staff, the closest wooded area is located one (1) mile to the south in the Dishman Hills area, the
proposal would increase the blighting of the area already impacted by the utility lines and Avista
substation located on the site, and the proposal would reduce residential property values and
increase littering in the area.
40. The site; and neighboring land, except to the north across 8th Avenue; are designated in the
Low Density Residential category of the Comprehensive Plan and zoned R-3. Such neighboring
land generally consists of single-family homes on urban-sized lots, except for the 1-acre parcel
containing a residence. The land lying several blocks to the south is mountainous and wooded.
See ground photos in Exhibit 10.
41. The land lying north of the site across 8th Avenue is designated in the Medium Density
Residential or High Density Residential categories of the Comprehensive Plan; zoned MF-1 or
MF-2 (i.e. multifamily zones), respectively; and developed with single-family homes, condos and
multifamily uses.
42. The City Arterial Street Plan designates 8th Avenue and Thierman Road in the area as
Minor Arterials, and Dickey Road to the southwest as a Collector Arterial. The Yellowstone
Pipe Line Company has a gas pipeline facility installed in Eastern Road adjacent to the site.
43. The Comprehensive Plan indicates that the Low Density Residential category addresses a
range of single-family residential densities from 1-6 dwelling units per acre, and is implemented
by a series of zones that allow a specific range of lot sizes; with most densities ranging from 4-6
units per acre.
44. The Comprehensive Plan indicates that the Medium Density category is intended to allow
higher densities up to 12 units per acre; and a variety of multi-family uses, as well as single-
family homes. The Comprehensive Plan indicates that the High Density Residential category
would allow densities in excess of 12 units per acre.
45. Policies LUP-1.1 and LUP-1.2 of the Comprehensive Plan recommend that the character of
existing and future residential neighborhoods be maintained and protected, and that residential
HE Findings, Conclusions and Decision CUP-01-10 Page 6
areas be protected from the impacts of adjacent non-residential uses and/or higher intensity uses4
through the development and enforcement of the City's land use regulations and joint planning.
46. Policy LUP-14.1 recommends that performance and community design standards be used to
maintain neighborhood character, achieve a greater range of housing options, and create
attractive desirable commercial and office developments.
47. Policy PUP-3.1 promotes the co-location of new utility transmission, distribution and
communication facilities when consistent with industry practices, State transportation
requirements, and building and electrical codes.
48. Policy PUP-3.4 recommends that the City encourage the development of City-wide
it communication networks, using the most advanced technology available to increase internal and
external connectivity.
49. Policy PUP-3.5 recommends that the City encourage the undergrounding of utility
distribution lines in new construction and significantly reconstructed facilities, consistent with
applicable laws.
50. PUP-3.8 recommends that cellular facilities, substations and antennas be placed in a
manner that minimizes adverse impacts on adjacent land uses and utilizes existing structures
where feasible.
51. The R-3 zoning district is intended to implement the Low Density Residential category of
the Comprehensive Plan; and to preserve the character of existing development, subject to the
dimensional standards set forth in SVMC Chapter 19.40. See SVMC 19.40.050. The purposes
of the MF-1 and MF-2 zoning districts are set forth in SVMC 19.40.070 and 19.40.080.
52. A telecommunication wireless support tower is permitted in the R-3, MF-1 and MF-2
zones; subject to the approval of a conditional use permit and building permit. A
telecommunication wireless antenna array is permitted outright in such zones; subject to the
approval of a building permit. See Appendix 19-A in SVMC 19.120.010, and SVMC
19.120.020.
53. An application for a conditional use permit for a telecommunication wireless support tower
is subject to review by the Hearing Examiner after a public hearing; and must comply with the
submittal requirements and design standards set forth for such facilities in SVMC Chapter
22.120, and the general conditional use permit requirements set forth in SVMC 19.150.030. See
SVMC 22.120.020. SVMC 19.150.010 provides that a request for a conditional use permit may
be denied where it cannot be clearly demonstrated that the requested use will be compatible with
other permitted uses in the vicinity of the conditional use.
54. An application for a building permit for a telecommunication wireless antenna array, or for
a telecommunications wireless support tower, is subject to administrative review by the City
HE Findings, Conclusions and Decision CUP-01-10 Page 7
Planning Division, and must comply with the submittal requirements and design standards set
forth for such facilities in SVMC 22.120.030.
55. The requirements for wireless communication facilities set forth in Sections 22,120.020
through 22.120.040 of the SVMC, and the requirements for approving conditional use permits set
forth in 19.150.030 supersede the ambiguous and potentially conflicting language in SVMC
22.120.010, the advisory"purpose and intent" statement for SVMC Chapter 22.120, which states
that the "...provisions of this section are not intended to and shall not be interpreted to prohibit
or to have the effect of prohibiting wireless communication services."
56. Appendix A of the UDC, which defines certain words in the SVMC, provides various
pP P
definitions under the word "telecommunications". This includes the following relevant terms:
"Alternative mounting structure: A water tower, manmade tree, clock tower,
church steeple, bell tower, utility pole, light standard,freestanding sign,flagpole,
or similar structure designed to support and camouflage or conceal the presence
of telecommunications antennas."
"Array: An arrangement of antennas and their supporting structure."
"Collocation: A single telecommunications tower and/or site used by more than
one telecommunications service provider. "
"Monopole: A telecommunications tower, which consists of a single-vertical
pole,fixed into the ground and/or attached to a foundation. "
"Stealth: A telecommunications antenna that is effectively camouflaged or
concealed from view. "
"Tower: A self-supporting or guyed structure more than 20 feet in height, built
primarily to support one or more telecommunications antennas... "
57. The applicant did not submit a signed letter with the application stating that all applicable
requirements of the FCC, the FAA and any required avigation easements have been satisfied; as
required by SVMC 22.120.030.A. The applicant did submit evidence that FAA would be
notified of the tower, the tower would be registered with the FCC and the facility would be
compliant with MPE levels established by the FCC for RF exposure. Submittal of the required
letter should be required before issuance of a building permit for the tower.
58. The applicant did not submit proof with the application that all the necessary property or
easements have been secured to assure for the proper construction, continued maintenance, and
general safety of the properties adjoining the wireless communication facility; as required by
SVMC 22.120.030.I. The applicant did describe the proposed lease that would house the
facilities, and the proposed driveway access and turnaround. Submittal of proof of the lease
HE Findings, Conclusions and Decision CUP-01-10 Page 8
executed with Avista Utilities and an easement for the driveway should be required before
issuance of a building permit for the tower.
S9. The applicant complied with all other submittal requirements for a conditional use permit
application set forth in SVMC 22.120.030.
60. SVMC 22.120.040 requires all personal wireless service facilities to be installed using
'stealth technology"; including but not limited to the support tower, antenna array, supporting
electrical and mechanical equipment, and equipment structures.
61. SVMC 22.120.040 provides that "stealth technology" means the use of both existing and
"future"technology to design a facility that resembles an object that is already present in the
local environment; such as a tree, streetlight or traffic signal; and also includes the specific
"stealth technology"requirements for the various components of the wireless facility set forth in
SVMC 22.120.040.A-K.
62. SVMC 22.120.040.A.1 provides that"stealth technology" for personal wireless support
towers located"within existing trees"means that the tower is painted a dark color, is made of
wood or metal, and a greenbelt easement is required to ensure permanent retention of the
surrounding trees.
63. SVMC 22.120.040.A.2 provides that"stealth technology" for personal wireless support
towers located "in a more open setting" means that the tower must have a"backdrop", including
but not limited to trees, a hillside or a structure on at least two (2) sides; be a compatible color
with the backdrop; be made of compatible materials with the backdrop, and have "architectural
or landscape screening" for the other two (2) sides. If existing trees are used as a backdrop, a
greenbelt easement must be provided to ensure permanent retention of the surrounding trees.
64. The Staff Report submitted by the City Planning Division does not describe with
particularity how current or"future"technology was used by the applicant to make the wireless
support tower facility resemble an object that is already present in the local environment, such as
a tree or power pole; does not conclude whether the tower is located "in the trees" or"in a more
open setting"; and does not describe how the criteria for a tower located "in a more open setting"
is met by the project.
65. The City Planning Division advised at the hearing that it considers the proposed facility to
be located in a"wooded" setting more than an"open" setting, considering the existing tree cover
located nearby to the west. See testimony of Karen Kendall.
66. Sheet Z-1, which has a scale of one (1) inch equals 50 feet, shows the foliage of the large
evergreen tree located west of the leased area lying just over 20 feet northwest of the proposed
tower, the foliage for an additional large tree lying just over 60 feet northwest of the proposed
tower, a few smaller trees located between or around the two (2) large trees, and some larger
trees located further to the northwest and southwest on the adjoining 1-acre parcel. No nearby
trees are found due north, east or south of the leased area.
HE Findings, Conclusions and Decision CUP-01-10 Page 9
67. The applicant provided un-rebutted testimony at the hearing that locating a 60-foot wireless
support tower with antenna arrays"in the trees" would significantly degrade the quality of the
signals of the antennas, and was not desirable. See testimony of Ken Seymour.
8. The proposed support tower is located near trees to the west; but it is clearly not located in
the trees"within the meaning of SVMC 22.12O.O4O.A.1. The proposed tower is clearly located
'in a more open setting", as referenced in SVMC 22.12O.O4O.A.2, and must meet the stealth
technology requirements for such setting.
69. The proposed support tower has a tree "backdrop"to the west, consisting of existing trees.
If the trees are intended to be used as a backdrop, the applicant must provide a greenbelt
easement to ensure permanent retention of a substantial portion of the trees.
70. The proposed support tower has a structural "backdrop"to the south. This includes the two
(2) 60-foot tall power poles anchored by guy wiring, located 65 feet southeast and 220 feet
southwest of the proposed tower, that support three (3) sets of overhead power lines; and the
large Avista substation located to the southwest. The grove of trees located in the southeast
corner of the site also help screen the tower to views from the west and south, but are not
necessary to establish the "backdrop".
71. The proposed support tower has a structural "backdrop" to the north, consisting of the 40-
foot tall power pole with attached conduits, anchored by guy wiring, located 90 feet north of the
proposed tower. The pole supports the overhead power and telephone line that extends along the
north border of the site. See photo facing north of Eastern Road, in Exhibit 10.
72. The proposed support tower does not have a"backdrop" on the east side. Accordingly,
architectural or landscape screening must be installed on the east side of the tower to meet the
requirements of SVMC 22.12O.O4O.A.2.
73. Since the proposed support tower has a"backdrop"on both the north and south sides, the
applicant could provide architectural or landscape screening on the west side, in lieu of having to
acquire a greenbelt easement for existing trees located west side of the proposed tower. See
SVMC 22.12O.O4O.A.2.
74. SVMC 22.12O.O4O.A.2 does not define or provide examples of"architectural screening or
landscaping"that can be used on two (2) sides of the tower.
75. The applicant contended that the 6-foot high fence with site-obscuring slats planned around
the perimeter of the leased area can be used to provide the "architectural screening" around the
proposed tower required by SVMC 22.12O.O4O.A.2. However, SVMC 22.12O.O4O.F already
requires such fencing for the facility, so architectural screening would be needed to meet the
requirement. The applicant and the City Planning Division did not offer any examples of
additional architectural screening that could be used to satisfy SVMC 22.12O.O4O.A.2.
HE Findings, Conclusions and Decision CUP-01-10 Page 10
76. SVMC 22.120.050 references SVMC Chapter 22.70 for landscaping requirements
applicable to wireless communication facilities in the underlying zoning district. SVMC
22.70.030 imposes screening and landscaping requirements on multifamily and nonresidential
projects located in certain zones when located adjacent to other zones; but not when located in
the R-3 district, as the current site is. See Table 22.70-2.
7. SVMC 22.70.030, while not directly applicable to the proposed tower, is useful in
identifying landscaping that may be used to meet the landscape screening requirements of SVMC
22.120.040.A.2. SVMC 22.70.030 specifies two (2) types of screening requirements, Type I-Full
Screening and Type II-Visual Buffering.
'78. Type I screening is intended to provide full screening; and includes the installation of a 6-
foot high, 100% sight-obscuring fencing, along with a 5-foot buffer strip of sight-obscuring
landscaping, as described in SVMC 22.70.030.B. Type II screening is intended to minimize the
incompatibility between adjacent land uses; and requires a visual screen of not less than five(5)
feet in width that may include fencing, architectural panels, berms, walls, vegetative plantings, or
some combinations thereof, as described in SVMC 22.70.030.C.
79. It is noted that SVMC 19.40.010.G.2 requires public utility distribution facilities, except
power poles and underground transformers, to install Type I landscape screening along property
lines adjacent to a residential use or zone.
80. The applicant should be required to install five (5) feet of landscaping directly outside the
chain link fence proposed along the east side of the facility, on which side of the facility there is
no"backdrop"; to ensure compliance with SVMC 22.120.040.A.2. Such landscaping could also
be installed along the west side of the facility, if the applicant is unwilling or unable to acquire a
greenbelt easement for existing trees on the west side of the tower.
81. The landscaping should at a minimum include the installation of a 5-foot width of the
vegetative plantings specified for Type II-landscaping in SVMC 22.70.040.C; subject to the
general provisions for landscaping listed in SVMC 22.70.040.E.
82. The landscaping required should be subject to adjustment by the City Planning Division, to
ensure that it does not conflict with the operation of the wireless facility, or its proposed access
from Eastern Road; and is not consumed by any deer in the area. The applicant may need to
lease a slightly larger area from Avista Utilities to accommodate the landscaping.
83. If the applicant elects to obtain a greenbelt easement for existing trees located west of the
site,the easement should be large enough to allow permanent maintenance of the large tree
located west of the proposed lease area, or a substantial portion of the trees located west and
northwest of the proposed lease area. The Staff Report recommended that the applicant be
required to obtain a greenbelt easement for the existing trees to the west.
84. The applicant requested a"waiver" of the greenbelt easement for the existing trees and any
landscaping requirements for the proposed tower, on the basis that the site is not currently served
HE Findings, Conclusions and Decision CUP-01-10 Page 11
with water by the local water district. However, water lines are available in the adjoining streets
for hookup, and the Avista substation located on the site has landscaping that is artificially
watered. Further, the requirements of SVMC 22.120.040.A.2 cannot be waived without the
approval of a variance application by the Hearing Examiner under SVMC Chapter 19.170.
85. The monopole-type tower has the general appearance of a power pole, with antenna arrays
instead of cross arm supports, and coaxial cables installed inside the monopole instead of
intrusive guy wires on the outside. The tower would be painted a dark green color approved by
City Planning staff, to help blend with the existing trees to the west and nearby power poles; and
would be made of compatible materials with the backdrop. These measures appear adequate to
meet the general requirement of SVMC 22.120.040 that the facility be designed to resemble an
abject that is already present in the local environment; aside from meeting the specific stealth
technology requirements specified in such section.
86. The applicant did not indicate whether AT&T Mobility would be able to procure a
greenbelt easement for existing trees located west of the proposed lease area, or any additional
lease area or easement(s)that may be.needed to install landscaping or install a water line for the
facility; from Avista Utilities. However, the conditional use permit cannot be approved without
the support tower facility meeting the requirements of SVMC 22.120.040.
87. SVMC 22.120.040.A.3 requires wireless antenna arrays to be integrated into the design of a
wireless support tower to which they are attached, with external projections from the tower
limited to the greatest extent technically feasible. The first paragraph of SVMC 22.120.040
requires that the antenna array be installed using stealth technology.
88. The applicant indicated it had plans to reduce the extent to which the collocated antenna
arrays project from the monopole-type tower, and to paint them the same color as the top array
serving AT& T mobility. The City Planning Division requested that the arrays be painted the
same dark green color as the tower, that it have authority to review and approve the color chosen
to paint the tower and antenna arrays, and that the applicant be required to submit a paint chip
showing the proposed color for its review.
89. Since a conditional use permit issued under SVMC Chapter 22.120 pertains only to the
wireless support tower, the Hearing Examiner cannot impose specific requirements for the
antenna array. The installation of the antenna arrays is subject to building permit review by the
City Planning Division, which includes the antennas meeting the stealth technology requirements
set forth in SVMC 120.120.040. The Examiner can require that the support tower be designed in
such a way that it allows the employment of stealth technology for the antennas, as separately
approved by the City Planning Division.
90. SVMC 22.120.040.0 requires that equipment structures for the wireless facility meet
"stealth technology"requirements, consisting of being located within a"building"; on top of a
building, with architecturally compatible screening; underground; or aboveground surrounded by
a solid fence and landscaping.
HE Findings, Conclusions and Decision CUP-01-10 Page 12
91. SVMC 22.120.040.F requires the wireless facility to be enclosed by a 6-foot high site-
obscuring fence not less than six (6) feet in height with a locked gate.
92. SVMC 22.120.040.G requires that support tower foundations, equipment shelters, cabinets
and other on-the-ground ancillary equipment to be buried belowground or screened with a 6-foot
high secured fence not less than six (6) feet in height with a locking gate; with no barbed or razor
wire permitted; but allows waiver of such fencing requirement where all such equipment will be
secured in a locked cabinet designed to be compatible with and blend into the setting, and the
means of access for the support tower is located at least 12 feet aboveground.
93. All the components of the proposed facility, aside from the support tower itself, appear to
consist of the items listed in SVMC 22.120.040.G. See Sheet Z-3 and letter dated 2-8-10 from
Steven Berke. Since such items would be enclosed within a 6-foot high, secure, site-obscuring
secured fence with a locked gate; the potentially conflicting and overlapping requirements of
SVMC 22.120.040.C, F and G are met.
94. SVMC 22.120.040.H requires that all support structure(s) for wireless antennas have their
means of access located a minimum of eight(8) feet aboveground, unless a requirement for a
fence has been waived. Since a fence requirement cannot be waived under SVMC 22.120.040.F,
the access requirement must be met.
95. The design of the support tower with possible collocated arrays shows the lowest arrays
located at least 30 feet aboveground. The Staff Report advises that access to the antenna arrays
will be reviewed at the time of building permit, which will ensure compliance with the access
requirement.
96. SVMC 22.120.040.H requires the support tower to meet the minimum primary structure
setback requirements for the underlying zone. The Staff Report found that all required setbacks
of the R-3 district are met for the proposed tower.
97. The SVMC establishes setbacks and other dimensional requirements for residential
development in the R-3 district and other residential zones of the SVMC; but does not appear to
establish setback or other dimensional requirements for nonresidential uses, such as a wireless
communication support tower, in such zones. The proposed facility does meet the front, rear,
side and flanking street yard setbacks for residential development in the R-3 district. See SVMC
19.40.020.A and Table 19.40-1 therein.
98. The SVMC does not establish a"fall radius" for telecommunication wireless support
towers, as requested by the neighborhood opponents of the project. SVMC 19.40.110 does
establish a"fall radius"for a private (ham operator) tower, on the property where the tower is
installed, equal to the tower's height above grade; and for other types of towers, not including a
wireless communication support tower, on the subject property or in an adjacent easement, equal
to the tower collapse or blade impact area.
HE Findings, Conclusions and Decision CUP-01-10 Page 13
I
99. Project opponents failed to establish the existence of other regulations that require a"fall
radius" for a telecommunication wireless support tower, or provide any engineering safety
information that would support the imposition of a fall radius requirement for the tower,
100. The proposed tower with antenna array meets the 60-foot maximum height limitation for
the R-3 district set forth in Table 22.120-1 of SVMC 22.120.040.x, as concluded in the Staff
Report.
101. Project opponents did not submit competent evidence of an appraisal nature supporting a
finding that the project will significantly impact the values of neighboring residential properties.
'The applicant, who has a real estate license in Idaho, testified that he is unaware of evidence that
wireless communication facilities adversely impact property values, and advised that such
installations may improve the value of certain residential properties due to the enhanced cellular
coverage provides by such facilities.
102. The City Planning Division recommended additional conditions for the project at the
hearing, including the use of a flat dark green color for the proposed tower and antenna array, to
be reviewed and approved by the Division through the submittal of a paint chip by the applicant;
and a requirement that the applicant consult with the Yellowstone Pipeline Corporation before
installing any underground utilities off of Eastern Road.
103. The proposed tower is located on a site that already includes a large electrical distribution
substation, and overhead electric and telephone lines and poles located near the site. The
proposed tower, subject to the additional conditions recommended by the City Planning Division
or found to be necessary by the Examiner, will meet the stealth technology and other
requirements set forth for a wireless support tower facility in SVMC Chapter 22.120, generally
conform to applicable policies of the Comprehensive Plan, clearly be compatible with other
permitted uses in the vicinity, and not have significant adverse environmental impacts.
Based on the above Findings of Fact, the Hearing Examiner enters the following:
III. CONCLUSIONS OF LAW
1. Any finding of fact above that is a conclusion of law shall be construed as a finding of fact
herein.
2. The conditional use permit decision must be limited to the proposed telecommunication
wireless support tower, with the approval of any antenna arrays attached to the tower being
subject to building permit review and approval by the City Planning Division; under SVMC
Chapter 22.120.
3. The conditions of approval recommended by the City Planning Division, and the additional
or revised conditions of approval found to be necessary by the Hearing Examiner in the above
findings of fact, are required to ensure that the proposed support tower meets the application
submittal requirements and the design standards set forth in SVMC Chapter 22.120; and the
HE Findings, Conclusions and Decision CUP-01-10 Page 14
I
conditions and requirements for approving a conditional use permit in SVMC 1 9.150.030. No
other conditions or requirements need to be imposed on the application under SVMC Chapter
19.150.
4 The proposed support tower facility, as conditioned, generally conforms to the
Comprehensive Plan, was clearly shown to be compatible with other uses in the vicinity of the
proposed tower, is consistent with the R-3 district and other provisions of the SVMC, complies
-with the environmental requirements of SEPA and SVMC Title 21 (Environmental Controls),
and complies with all other applicable development regulations.
5. The application, as conditioned, satisfies the requirements for issuance of a conditional use
permit for a telecommunication wireless support tower under SVMC Chapters 19.150 and
22.120.
6. Approval of the conditional use permit, as conditioned, is appropriate under SVMC
18.20.030.
IV. DECISION
Based on the above Findings of Fact and Conclusions of Law, the application for a
conditional use permit for a telecommunication wireless support tower, in the Single-Family
Residential (R-3) District is hereby approved, subject to the conditions of approval specified
below.
Any public agency conditions that have been significantly altered or added to are italicized.
Failure to comply with the conditions of this approval may result in revocation or
suspension of this approval by the Hearing Examiner. This approval does not waive the
applicant's obligation to comply with all other requirements of other agencies with jurisdiction
over land development
Conditions of Approval
SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT—PLANNING
DIVISION:
1. Access to the leased area will be from Eastern Road. All driveways and travel surfaces are
required to be a hard surface consisting of asphalt or concrete, and will be addressed at time of
commercial building permit review.
2. The proposed telecommunication wireless support tower is required to obtain a commercial
building permit, and at such time shall be required to comply with the provisions of Chapter
22.120 of the Spokane Valley Municipal Code (SVMC) for such tower.
HE Findings, Conclusions and Decision CUP-01-10 Page 15
eh
i
3. At the time of building permit review, the support tower will be reviewed to ensure that it is
made of wood or metal.
4. The applicant shall contact and consult with the Yellowstone Pipeline Company prior to the
undergrounding of any utilities or approaches off Eastern Road.
5. The support tower facility shall be developed in substantial conformance to the
architectural designs illustrated on Sheets Z-1, Z-2 and Z-3 submitted by the applicant on
February 9, 2010, and the description of the facility in the letter submitted by Steven Burke of
Goodman Networks on February 8, 2010; subject to compliance with the conditions of approval
herein and regulation standards.
6. At the time of building permit review, the applicant shall submit a letter stating that all
applicable requirements of the FCC, FAA, and any required avigation easements for the support
tower have been satisfied
7. At the time of building permit review, the applicant shall provide the signed statement from
the owner or landlord required by SVMC 22.120.030.H
8. At the time of building permit review, the applicant shall provide proof that all property or
easements have been secured to assure the proper construction, continued maintenance, and
general safety of the properties adjoining the wireless communication facility. This includes
proof of the lease with Avista Utilities for the tower facility, associated access easement, and any
necessary greenbelt easement.
9. At the time of building permit review, the applicant shall submit a landscaping plan for the
installation of five (5)feet of vegetative plantings along the east side of the facility, outside the
chain link fencing; to ensure compliance with SVMC 22.120.040.A.2. The landscaping design
I shall be approved by the Planning Division, and may be adjusted by the Planning Division to
ensure that the landscaping does not conflict with the operation of the wireless facility or access
to the facility, and can withstand predation by deer in the area.
10. The landscaping shall be installed before any use of the support tower facility.
11. At the time of building permit review, the applicant shall submit an executed greenbelt
easement, in a form approved by the City Planning Division,for maintenance of a substantial
portion of the existing trees located west and northwest of the proposed facility. The applicant
may, in lieu of such easement, provide landscaping along the west side of the facility that meets
the requirements imposed for the landscaping required along the east side of the facility.
12. The monopole support tower shall be painted a flat dark green color. A paint chip shall be
submitted with the flat dark green color at the time of building permit submittal for review and
verification.
HE Findings, Conclusions and Decision CUP-01-10 Page 16
13. The support tower shall be designed so that it allows the employment of stealth technology
_for any antenna arrays mounted on the tower, as approved by the City Planning Division.
14. The antenna array(s) attached to the wireless support tower are required to obtain a
commercial building permit prior to their installation, and are subject to administrative review
by the City Planning Division for compliance with the application submittal requirements and
design standards set forth in SVMC Chapter 22.120. This includes the painting of antenna
array(s), and the application of stealth technology to such array(s) as required by SVMC
22.120.040.
SPOKANE REGIONAL CLEAN AIR AGENCY:
1. Dust emissions during demolition, construction and excavation projects must be controlled,
'This may require the use of water sprays, tarps, sprinklers, or suspension of all activity during
certain weather conditions.
2. Measures must be taken to avoid the deposition of dirt and mud from unpaved surfaces
onto paved surfaces. If tracking or spills occur on paved surfaces, measures must be taken
immediately to clean these surfaces.
3. Debris generated as a result of this project must be disposed of by means other than
burning.
4. Spokane Clean Air strongly recommends that all traveled surfaces (i.e. ingress, egress,
parking areas, access roads, etc.)be paved and kept clean to minimize dust emissions.
5. If objectionable odors result from this project, effective control apparatus and measures
must be taken to reduce odors to a minimum.
6. Special attention should be given to proper maintenance of diesel powered construction
equipment to reduce the impact of diesel exhaust, a suspected carcinogen.
7. A Notice of Construction and Application for Approval is required to be submitted and
approved by Spokane Clean Air prior to the construction, installation or establishment of an air
pollution source. This includes emergency generators rated at 500 hp (375 kW) or higher,
natural gas hearing equipment units rated at 4 MMBTU/hr or higher (input), and hauling
equipment units fired with other fuels (e.g. diesel)rated at 1 MMBTU/hr (input) or higher.
Contact Spokane Clean Air for a Notice of Construction application.
8. A Notice of Intent must be submitted to Spokane Clean Air prior to any demolition project
or asbestos project. An asbestos survey must be done by an AHERA accredited building
inspector prior to the demolition or renovation of buildings to determine if asbestos-containing
material is present at the site. Contact Spokane Clean Air for a Notice of Intent Application.
HE Findings, Conclusions and Decision CUP-01-10 Page 17
,QWEST COMMUNICATIONS
1, A conduit path will need to be provided to the nearest serving location as determined by
Qwest Engineer.
DATED this 9th day of June, 2010
SPOKANE COUNTY HEARING EXAMINER
pro `Michae C. Dempsey, WSI3A #8235 Oir
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code(SVMC), and RCW
Chapter 36.70C, the decision of the Hearing Examiner on an application for a conditional
use permit is final and conclusive unless within twenty-one (21) calendar days from the
date of issuance of the Examiner's decision, a party with standing under SVMC Chapter
17.90 files a land use petition in superior court pursuant to RCW Chapter 36.70C.
Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner's decision
is three (3) days after it is mailed.
This decision was mailed by regular mail to the Applicant, and all government
agencies and persons entitled to notice under SVMC 17.80.130.D, on June 9, 2010. The
date of issuance of the Hearing Examiner's decision is June 14,2010, counting to the next
business day. THIS DECISION SHALL BECOME FINAL UNLESS TIMELY
APPEALED ON OR BEFORE JULY 6,2010 (counting to the next business day when the
last day for appeal falls on a holiday). Further information regarding the appeal can be
obtained by consulting the appeal provisions of RCW Chapter 36.70C.
The complete record in this matter, including this decision, is on file during the
appeal period with the Office of the Hearing Examiner, Third Floor, Public Works
Building, 1026 West Broadway Avenue, Spokane,Washington, 99260-0245; and may be
inspected by contacting Kristine Chase, Staff Assistant, at (509) 477-7490. The file may be
inspected during normal working hours; listed as M-F of each week, except holidays,
between 8:30 a.m. and 5:00 p.m. After the appeal period has expired, the file may be
inspected at the City of Spokane Valley Planning Division, 11707 E. Sprague Avenue,
Spokane Valley, WA 99206; by contacting Karen Kendall at(509) 688-0172 normal
working hours. Copies of the documents in the record will be made available at the cost set
by the City.
Pursuant to RCW 36.70B.130, affected property owners may request a change in
valuation for property tax purposes notwithstanding any program of revaluation.
HE Findings, Conclusions and Decision CUP-01-10 Page 18