CUP-02-05 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Conditional Use Permit for a Wireless )
Communication Support Tower, in the ) FINDINGS OF FACT,
Urban Residential-7* (UR-7*) Zone; ) CONCLUSIONS OF LAW,
Applicant: Pro-Land Verizon Wireless ) AND DECISION
File No. CUP-02-05 )
I. SUMMARY OF DECISION
Hearing Matter: Application for a conditional use permit for a wireless communication support
tower, in the UR-7* zone.
Summary of Decision: Approve application, subject to revised conditions of approval, including
a requirement that the antenna array for the proposed tower be designed using "stealth"
technology.
II. FINDINGS OF FACT
1. The application requests a conditional use permit for a 60-foot tall wireless communication
support tower, in the Urban Residential-7* (UR-7*) zone, on a 1,120-square foot portion of a
3.3-acre site.
2. The site is located at the northwest corner of the intersection of Sullivan Road and the
westbound on-ramp for Trent Avenue (State Route No. 290); in the NE 1/4 of Section 2,
Township 25 N, Range 45 East, Willamette Meridian, Spokane County, Washington.
3. The site is currently referenced as County Assessor's tax parcel no. 45021.6415, is legally
described on the site plan of record, and is addressed at 4403 N. Sullivan Road, Spokane Valley.
4. The applicant for the proposal is ProLand-Verizon Wireless, do Julie Cope, 2715 E. 31st
Avenue, Suite B, Spokane, Washington 99223. The site owner is Tom Anderson, 4622 N.
Sullivan Road, Spokane Valley, Washington 99223.
5. On August 9, 2005, the applicant submitted a complete application for a conditional use
permit in City Department of Community Development File No. CUP-02-05.
6. On October 14, 2005, the City Department of Community Development issued a
Determination of Nonsignificance (DNS) for the conditional use permit.
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7. The Hearing Examiner conducted a site visit on November 15, 2005, and conducted a public
hearing on the proposal on November 17, 2005. The requirements for notice of public hearing f.
were met.
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8. The Hearing Examiner heard the proposal pursuant to the City Hearing Examiner
Ordinance, and the City Hearing Examiner Rules of Procedure.
9. The following persons testified at the public hearing:
Micki Harnois, Associate Planner Julie Cope
Spokane Valley Community Development 2715 E. 31st Avenue#B
11707 E. Sprague Avenue, Suite 106 Spokane, WA 99223-4708
Spokane Valley, WA 99206
10. The Hearing Examiner takes notice of the City of Spokane Valley Interim Comprehensive
Plan and Zoning Code; other applicable development regulations; City Municipal Code; and prior
land use decisions in the vicinity.
11. The record includes the documents in File No. CUP-02-05 at the time of the public hearing,
the documents and testimony submitted at the public hearing, and the items taken notice of by the
Hearing Examiner. The Examiner left the record open after the public hearing until November 21,
2005, to allow the applicant to submit additional information regarding radio frequency(RF)
emissions.
12. The site is 3.3 acres in size and relatively flat in topography. A self-service storage building
is located in the east end of the site, with the remainder of the site used for recreational vehicle
storage. A 450-foot wide Bonneville Power Administration easement burdens all but the east 60
feet of the site, and contains overhead transmission lines that pass over the site. The easement lies
immediately west of the storage building on the site.
13. A 6-foot high, chain-link fence, topped by three(3) strands of barbed wire, is located along
the west, south and north borders of the site; and is attached to the north and south sides of the
existing storage building on the site. A gated entrance to Sullivan Road is located in the northeast
corner of the property. The site is landscaped with grass along Sullivan Road.
14. The site plan of record consists of a"site topo" sheet dated April 12, 2005; an architectural
site plan tower elevation" sheet dated July 25, 2005; and a"title sheet" dated July 25, 2005.
15. The site plan of record illustrates a 1,169-square foot area in the southeast corner of the site
to be leased for the proposed tower. The lease area extends between the existing building on the
site and the south property line of the site, and lies immediately east of the BPA power line
easement. The site plan illustrates a 20-foot wide access easement lying 10 feet west of the ('
existing storage building on the site, connecting the lease area for the tower to the site access to
Sullivan Road.
16. The site plan illustrates a 60-foot tall, monopole, wireless communication support tower
within the proposed lease area; with an 8-pronged antenna array affixed near the top, and a
lightning rod located atop. The proposed tower is shown approximately 15 feet from the south
property line of the site, 20 feet from the east property line of the site, and 20 feet south of the
HE Findings, Conclusions and Decision CUP-02-05 Page 2
existing building on the site. The site plan illustrates an 11-foot long storage unit in the lease area,
immediately south and abutting the building on the site, which would be used to store equipment
for the tower.
17. The City Comprehensive Plan designates the site and neighboring land to the west and
northwest in the Low Density Residential category, designates the land lying south of the site in
the Mixed Use category, designates the land lying north of the site in the Medium Density
Residential category; and designates the land lying east of the site in the Light Industrial category.
18. The site is zoned Urban Residential-7* (UR-7*). The land lying north of the site is zoned
Urban Residential-22 (UR-22) and is developed with apartments; and the land lying west and
northwest of the site is zoned Urban Residential-3.5 (UR-3.5) and UR-7, and is developed with
single-family homes, some duplexes, and a portion of the BPA power line easement and overhead
transmission lines.
19. The land lying south and southwest of the site, north of Trent Avenue, is zoned Community
Business (B-2) and Regional Business (B-3), and includes some commercial uses. The land lying
east of the site includes a UR-22 zone improved with an irrigation district office, and
manufacturing uses on land zoned Light Industrial(I-2). The land lying south of Trent Avenue in
the area is zoned Heavy Industrial(I-3), and is developed with a large industrial park and other
industrial uses.
20. The City Arterial Road Plan designates Sullivan Road as an Urban Principal Arterial, and
Wellesley Avenue to the north as an Urban Minor Arterial. SR-290 is a multi-lane state highway
in the area. Sullivan Road is improved to 4-5 lanes in the area, and has curb and sidewalk
adjacent to the site.
21. The only public comment submitted regarding the proposal was an e-mail memo received
from John Farver, who resides a short distance west of the site along Sommer Street. Such
resident objected to the visual impact of the proposed tower; questioned what impact the tower
would have on television, Cingular cellphone and satellite service reception in the vicinity; and
recommended that the tower be located in the industrially zoned area lying south of Trent Avenue
in the area.
22. Policy CF.16.7 of the Comprehensive Plan encourages coordination with utility providers in
the provision of telecommunication services. Policy CF.16.8 promotes long term planning for
telecommunications systems. Policy 16.10 encourages telecommunication services as a means to
mitigate the transportation impact of development and growth.
23. Policy CF.16.9 of the Comprehensive Plan recommends requiring the placement of cellular
communication facilities in a manner that minimizes adverse impacts on adjacent land uses and
utilizes existing structures where feasible.
24. Policy CF.16.15 of the Comprehensive Plan promotes the location of new utility
transmission, distribution and communication facilities when doing so is consistent with utility
HE Findings, Conclusions and Decision CUP-02-05 Page 3
industry practices, State Department of Transportation requirements, and national electrical and
other codes. This includes such facilities as towers, antennas, poles, rights of ways and trenches.
25. Policy UL.5.2 of the Comprehensive Plan recommends that an aesthetic corridor be
established along Trent Avenue (SR-290), visible from the roadway and not exceeding 500 feet
on either side of the road, in order to provide a positive image of the Spokane area. Policy
UL.5.3 recommends that specific regulations be adopted for designated aesthetic corridors.
However, the City has not adopted specific regulations for Trent Avenue as an aesthetic corridor
that would have direct application to the proposal.
26. The UR-7 zone is intended to add to the variety of housing types and densities, and to
provide standards for the orderly development of residential property in a manner that provides a
desirable living environment that is compatible with surrounding land uses and assures the
protection of property values. The UR-7 zone permits the development of single-family homes,
duplexes, multi-family dwellings, and certain other uses.
27. The City Phase I Development Regulations limit new residential development on land
rezoned to the UR-7 under such regulations to a maximum density(net) of six(6) dwelling units
per acre,with such zoning referred to as "UR-7*". The UR-7 zone otherwise permits a density
(net) of seven(7) dwelling units per acre.
28. Wireless communication support towers are permitted through issuance of a conditional use
permit in the UR-7* zone. This includes compliance with the special development standards of
the UR-7 zone for such use, including the requirements of Sections 14.618.240.4 of the City
Zoning Code applicable to wireless communication support towers, and the general criteria
applicable to a conditional use permit application set forth in chapter 14.404 of the City Zoning
Code. A conditional use permit may be denied if the use is not compatible with other permitted
uses in the area, or will be materially detrimental to the public welfare.
29. A wireless communication antenna array is permitted in the UR-7* zone, provided it
complies with the special requirements for such use set forth in Section 14.618.220.6 of the City
Zoning Code.
30. Variances to the development standards of the City Zoning Code may be approved by the
Hearing Examiner after a public hearing under Chapter 14.404 of the Zoning Code.
31. Zoning Code 14.618.240.4a requires the applicant for a conditional use permit for a wireless
communication support tower to demonstrate compliance with the conditions and standards set
forth in Zoning Code 14.618.240.4 (b-s) prior to issuance of a building permit. The Staff Report
discusses the consistency of the application with such criteria.
32. The site plan of record illustrates a proposed 6-foot high chain link fence,with three (3)
strands of barbed wire atop, located along the west border of the proposed lease area, and similar
existing fencing along the south and west borders of the proposed lease area.
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33. Zoning Code 14.618.240.4.d requires a wireless communication support tower facility to be
enclosed by a sight-obscuring, secured fence not less than six(6) feet in height with a locking
gate; and prohibits the installation of barbed wire or razor wire. Zoning Code 14.618.240.4.e
requires the support tower foundation, equipment shelters and other on-the-ground ancillary
equipment to either be buried below ground, or screened with a minimum 6-foot high sight-
obscuring secured fence. Zoning Code 14.810.020.1 generally prohibits a fence in a residential
zone from exceeding six(6) feet in height. Zoning Code 14.810.020.5 prohibits barbed wire
fences in the UR-7 zone.
34. The Staff Report states that the Director of the City Department of Community
Development may "waive" the height and type of perimeter fencing required around the tower
facility, "...as the barbed wire is not the total material of the fence and the site shall be secure for
public safety." However, the Director does not have such waiver authority,Zoning Code
14.618.240.4.d clearly prohibits the installation of barbed wire, there is no evidence in the record
that barbed wire must be affixed to the top of the fence to make the facility secure, and the
applicant conceded at the public hearing that barbed wire did not need to be affixed to the
proposed fence.
35. The existing 6-foot high, chain link fencing with barbed attached to the top located along
the east and south borders of the proposed lease area can remain, but needs to be made sight-
obscuring to comply with Zoning Code 14.618.240.4.d. The proposed 6-foot high chain link
fencing proposed along the west boundary of the lease area needs to be made sight-obscuring and
not have barbed wire attached, to comply with Zoning Code 14.618.240.4.d.
36. The applicant requested a"waiver" from the requirement of Zoning Code 14.618.240.4.o
that the antenna array and supporting electrical and mechanical equipment shall be installed using
"stealth"technology, to allow installation of a standard antenna array. The applicant stated that
the rationale for such waiver was "...the industrial nature of this site and its neighbors, the nearby
towers with standard antenna arrays, the distance of the site on the property from the adjoining
properties, and the diminished capacity of stealth antennas". See letter dated 7-28-05 from
Verizon Wireless to Spokane Valley Planning Department.
37. Zoning Code 14.300.100 defines "stealth" as any wireless communication antenna array that
is designed to blend into the surrounding environment; including, in pertinent, part, support
towers designed to look like trees, light poles, flag poles, etc. The applicant indicated at the
public hearing that if stealth technology was used for the support tower and antenna arrays, the
height of the tower including arrays would have to exceed the maximum structure height of 60
feet set forth in Zoning Code 14.618.240.4.f to accommodate antenna arrays for up to five (5)
cellular carriers and provide adequate wireless reception for the facility.
38. The Staff Report indicated that the Director of the Department of Community Development
may waive the "stealth" requirement of Zoning Code 14.618.240.4.o. However, the Director has
no authority to grant such waiver, which must be done through the variance process set forth in
Chapter 14.404 of the County Zoning Code. The applicant should be required to design the
antenna array(s) using stealth technology, or obtain a variance from such requirement under
HE Findings, Conclusions and Decision CUP-02-05 Page 5
Chapter 14.404 of the City Zoning Code. This would necessitate the submittal of a variance
application and the scheduling of a public hearing before the Examiner.
39. The site plan of record appears to show the antenna array rising above the 60-foot tall
wireless communication support tower by several inches. Since Zoning Code 14.618.240.4.f
defines the height of the support tower to include any attached antenna arrays, the tower height
may exceed the 60-foot maximum height specified for a wireless communication support tower
under Zoning Code 14.618.240.4.f. The applicant should be required to design the tower to be
no taller than 60 feet.
40. Zoning Code 14.618.240.4.j requires the applicant to provide a certified statement from a
licensed radio frequency(RF) engineer demonstrating need within network build out and a report
of RF emissions existing at occupancy, maximum future projected emission requirements, and
cumulative emissions from multiple antenna arrays located on the same structure or wireless
communication support tower are all within the standards required by the FCC.
41. The applicant provided a detailed explanation from its representative at the public hearing,
Julie Cope, regarding the need for the proposed tower, and provided a brief statement from an RF
engineer that a new cellular site is needed to resolve system call capacity and call quality issues
before customers are adversely affected. See letter dated 7-28-05 from Verizon Wireless, and
letter dated 7-14-05 from Scott Cashmore.
42. The applicant provided a statement from an RF engineer indicating the maximum RF
emissions for the five (5) carriers planned on the single antenna array illustrated at the top of the
proposed tower on the site plan, that future site configuration may add a"PCS" antenna array, the
maximum RF emissions for PCS per carrier, and that the proposed site meets all applicable RF
exposure levels adopted by the FCC. See letters dated 7-14-05 and 11-21-05 from Scott
Cashmore.
43. The addition of the PCS antenna array is not addressed on the site plan of record, or in the
application, and would have to comply with the stealth technology and the 60-foot maximum
building height for a wireless communication tower required by Zoning Code 14.618.240.f. The
statement from the RF engineer does not state the cumulative emissions from the currently
proposed antenna array and the possible PCS antenna array, as required by Zoning Code
14.618.240.4.j. The statement otherwise appears to meet the requirements of Zoning Code
14.618.240.4.j.
44. The applicant provided a"visual simulation" of the site plan for the proposal, as required by
Zoning Code 14.618.240.1, although not for a wireless communication support tower and array
utilizing the "stealth" technology required by Zoning Code 14.618.240.o.
45. The proposed tower is located within .8 miles of three (3) existing wireless communication
support towers, all in the same location. However, the record indicates that one of the towers is
too light to support another cellular carrier, and the location of the towers is too close to the
applicant's existing tower located 1.4 miles from the site for the purpose of dividing up "call
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traffic". See letter dated 7-28-05 from Verizon Wireless. These circumstances illustrate
compliance with the co-location requirements of Zoning Code 14.618.240.4.n.
46. The only lighting on the top of the tower will be that required by the FAA. Any security
lighting must be down-shielded and cannot extend beyond the property line, as required by Zoning
Code 14.618.240.4.q and Zoning Code 14.810.180.
47. The applicant provided no documentation that all applicable requirements of the FAA have
been satisfied, as required by Zoning Code 14.618.240.4.j; but such information can be supplied
prior to issuance of a building permit. The Staff Report indicates that an avigation easement for
the facility will not be necessary.
48. The proposal meets all other applicable standards specified in Zoning Code 14.618.240.4, as
discussed in the Staff Report.
49. The DNS issued for the proposal was not appealed. Compliance with federal RF levels, as
required by the County Zoning Code,will ensure that the proposal does not adversely impact
human health.
50. As conditioned, the proposal will not have a significant adverse impact on the environment,
and will be reasonably compatible with neighboring properties and uses.
51. The Examiner has added conditions of approval necessary to ensure that the proposal
complies with the development standards of the Zoning Code for wireless communication support
towers, prior to issuance of a building permit
52. The Staff Report recommended that the conditional use permit be authorized for a period of
two (2) years only, subject to one (1)year extensions approved administratively by the City
Department of Community Development. Zoning Code Chapter 14.618.240 does not authorize
such limitation, and the Staff Report provides no justification for imposing such requirement
under Section 14.404.102 of the City Zoning Code.
53. The Staff Report also recommended that the conditional use permit should be regarded as
personal to the applicant and not run with the land. There is no basis for imposing such a
restriction on the conditional use permit, and it should not be imposed.
Based on the above findings of fact, the Hearing Examiner enters the following:
IlI. CONCLUSIONS OF LAW
1. The application for a conditional use permit for a wireless communication support tower, as
conditioned, in the UR-7* zone, conforms to the Comprehensive Plan.
2. The proposal, as conditioned, is consistent with the purpose and intent of the UR-7* zone,
the standards of the UR-7* zone for a conditional use permit for a wireless communication
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support tower, the general development standards of the UR-7* zone, other provisions of the City
Zoning Code, and other applicable development regulations.
3. The proposal, as conditioned, is compatible with other uses permitted in the UR-7* zone or
located in the vicinity of the proposed use.
4. The proposal, as conditioned, reasonably mitigates any adverse impacts on adjacent
properties by reason of use, extension, construction or alteration allowed with respect to the
conditional use.
5. The proposal, as conditioned,will not have more than a moderate effect on the quality of
the environment. The requirements of the State Environmental Policy Act and the County's
Local Environmental Ordinance have been met.
6. The proposal, as conditioned, complies with the requirements for issuance of a conditional
use permit under Chapter 14.404 and Section 14.618.240.4 of the City Zoning Code.
7. Approval of the land use applications, as conditioned, is appropriate under Section 11 of the
County Hearing Examiner Ordinance, as adopted by County Resolution No. 96-0171.
IV. DECISION
Based on the above Findings of Fact and Conclusions of Law, the application for a
conditional use permit for a wireless communication support tower, in the Urban Residential-7*
(UR-7*) zone, 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.
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—CURRENT
PLANNING DIVISION:
1. The wireless communication support tower shall be developed substantially as indicated on
the site plan of record dated April 12, 2005 and July 25, 2005, subject to compliance with the
conditions of approval stated herein.
2. The antenna array and supporting electrical and mechanical equipment shall be installed
using "stealth" technology, unless a variance is approved by the Hearing Examiner after a
public hearing pursuant to Chapter 14.404 of the County Zoning Code.
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3. The support tower facility shall be enclosed by a 6-foot high sight-obscuring fence. No
new barbed wire may be installed as part of such fencing. The barbed wire affixed to the top of
the existing chain link fence located on the south and east sides of the proposed easement area
may be retained, but such fencing shall be made sight-obscuring.
4. The conditional use permit approval shall only be applicable to the wireless communication
support tower related uses illustrated or described on the site plan of record, subject to
compliance with the conditions of approval stated herein.
5. The owner of the wireless communication support tower facility shall notify the Current
Planning Division when the tower is no longer operating as a part of a wireless communication
system authorized and licensed by the FCC. Within six(6) months of the date the facility ceases
to operate as part of an authorized system, the facility shall either be removed from the site, or a
building permit must be obtained to allow another permitted use of the facility.
6. The conditional use permit approval shall immediately expire if the applicant discontinues
operation of the support tower facility.
7. Except as otherwise noted above, the proposal shall comply with the provisions of Chapter
14.618.240.4 (Conditional Use for a Wireless Communication Support Tower Standards), and
Chapter 14.618 (Urban Residential-7 zone development standards), of the City Zoning Code.
8. All signage shall conform to the standards set forth in Section 14.618.240 4.d of the City
Zoning Code.
9. The conditional use permit may be suspended or revoked, if, after a public hearing, the
Hearing Examiner finds that the applicant failed to comply or ensure compliance with conditions
of approval.
10. The Current Planning Division shall prepare and record a title notice with the Spokane
County Auditor, stating that the subject property is subject to certain conditions of approval
imposed as a result of a land use action. The title notice shall serve as a public notice that the
property is subject to such conditions of approval. The title notice should generally state as
follows:
"The parcel property legally described as (insert legal descri ption) is the subject
of a land use decision by the City of Spokane Valley Hearing Examiner on
January 4, 2006, approving a Conditional Use Permit under the City Zoning
Code, and imposing various conditions of approval affecting the property. File
No. CUP-02-05, relating to such approval, is available for inspection and
copying at the City of Spokane Valley Department of Community
Development."
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SPOKANE VALLEY FIRE DEPARTMENT:
8. The applicant shall submit a list of the amount of diesel that will be stored on site.
DATED this 4th day of January, 2006
SPOKANE COUNTY HEARING EXAMINER
Mi ael C. Dempsey, WSBA#823
r'. --
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 10.35 of the City Municipal Code, 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 issuance of the Examiner's decision, a party with standing
files a land use petition in superior court pursuant to chapter 36.70C RCW. Pursuant to RCW
36.70C.040, the date of issuance of the Hearing Examiner's decision is three (3) days after it is
mailed.
This Decision was mailed by Certified Mail to the Applicant, and by first class mail to other
parties of record, on January 4, 2006. The date of issuance of the Hearing Examiner's decision is
therefore January 9, 2006. THE LAST DAY FOR APPEAL OF THIS DECISION TO
SUPERIOR COURT BY LAND USE PETITION IS JANUARY 30, 2006.
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, (509) 477-7490. The file may be
inspected during normal working hours, listed as Monday- Friday of each week, except holidays,
between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be inspected
at the City of Spokane Valley Department of Community Development, Division of Current
Planning, 11707 E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in the
record will be made available at the cost set by City of Spokane Valley Ordinance.
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-02-05 Page 10