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HomeMy WebLinkAboutPlanning Commission Packet - March 6, 2012A CENTRAL POINT CITY OF CENTRAL POINT PLANNING COMMISSION AGENDA March 6, 2012 - 6:00 p.m. ., ~.,. ~.. - , . Next Planning Commission Resolution No. 785 I. MEETING CALLED TO ORDER II. ROLL CALL Planning Commission: Chuck Piland, Mike Oliver, Justin Hurley, Tim Schmeusser, Rick Samuelson, Jr. and Tom Van Voorhees III. CORRESPONDENCE IV. MINUTES Review and approval of December 6, 2011 Planning Commission Minutes V. PUBLIC APPEARANCES VI. BUSINESS Pgs.' - ~ A. Annual Review of Rogue Valley Recovery Homes (File No. 11011) Pgs. 3 - 8 B. Consideration of a Tree Removal Application to remove an Oregon White Oak located in the public right-of--way between 510 and 520 Valley Oak Boulevard in the Transit Oriented Development (TOD) District. Applicant: Griffin Oaks Management Association VII. DISCUSSION Pgs. 9 - 16 A. Federal Changes to Wireless Collocation Laws B. Anticipated Comprehensive Plan Amendments and Code Changes in 2012 (Handout and discussion) VIII. ADMINISTRATIVE REVIEWS IX. MISCELLANEOUS X. ADJOURNMENT City of Central Point Planning Commission Minutes December 6, 2011 I. MEETING CALLED TO ORDER AT 6:00 P.M. II. ROLL CALL Commissioners Chuck Piland, Tim Schmeusser, Mike Oliver, Rick Samuelson, Jr., and Justin Hurley were present. Connie Moczygemba and Pat Beck were absent. Also in attendance were: Tom Humphrey, Community Development Director; Don Burt, Planning Manager; Connie Clune, Community Planner; and Deanna Casey, City Recorder. III. CORRESPONDENCE -None IV. MINUTES Mike Oliver made a motion to approve the minutes of the September 6, 2011 Planning Commission meeting as submitted. Tim Schmeusser seconded the motion. ROLL CALL: Piland, yes; Oliver, yes; Hurley, abstain; Schmeusser, yes; and Samuelson, yes. Motion passed. V. PUBLIC APPEARANCES -None. VI. BUSINESS There was a discussion regarding the availability of iPads for Planning Commission members to receive electronic packets and email. Mr. Humphrey stated that he would look into the possibility of providing the tablets for their use. VII. DISCUSSION Downtown and East Pine Street Corridor Revitalization Plan, an Urban Renewal Plan for the City of Central Point Planning Manager Don Burt explained the Comprehensive Plan components and land development code compliance for the urban renewal plan. The Goal for the Plan is to enhance the downtown and core area of Central Point. He presented charts for the average growth from 2007 to 2012; the real market value vs. assessed value; and presented the proposed map that includes residential, commercial, and the downtown Planning Commission Minutes December 6, 2011 Page 2 core area. The commercial areas on the east side of I-5 have transportation issues that could be assisted by the Urban Renewal plan. There are 15 projects in the Urban Renewal Plan. He explained the costs associated with the projects were done by previous studies for future planning. These projects have all been the topic of discussion over the last five years and still in need of improvement. Projects can be removed if funds are not available or moved up and down the list according to grant and funding options. If a project is not on the list when the District is formed, the Urban Renewal Agency and City Council will be required to go through another public process to add it. The recommended projects will be discussed by the Development Commission in January to better define and clarify the need and descriptions. Staff has been reviewing previous studies and recommendations in order to gather enough information to include in the plan. Project lists are broad in description so the District is not limited in the future. If the project description is specific it would limit the agency from including items such as landscape or sidewalks unless they are listed. By listing Project 3 as "Neighborhood Sidewalks and Street Lighting", we are not limiting the agency to specific streets or sidewalks. The improvements only need be in the north side and south side neighborhoods. Mr. Burt explained the maximum indebtedness is $43,177,530. If the district needs to increase this amount, we would be required to start the process from the beginning. The Agency can spend less, but they cannot spend more. There will be methodology for the funds and actions will be recorded by resolution. The funds will be audited just like a city budget, but it will be a separate budget document. There will also be a separate Budget Committee. The amount must be realistic and can continue to be adjusted until the Council adopts the plan and creates the Urban Renewal District. Staff does not recommend creating a priority list because it would limit the ability to apply for grants and other funding. Other funding could consist of City SDC fees and developer contributions depending on the project and location. The plan duration is 25 years. Urban renewal helps get projects done now rather than waiting until the city is able to acquire the funds down the road when the associated costs could increase. There will be public notices sent to all residents of Central Point for a series of public meetings. Staff is asking for a motion to approve the Planning Commission Resolution forwarding a positive recommendation to the City Council. Justin Hurley made a motion to Approve Resolution 784, A Resolution Forwarding a Recommendation to the City Council to Approve the Downtown and East Pine Street Corridor Revitalization Plan, An Urban Renewal Plan for the City of Central Point. Tim Schmeusser seconded. Roll Call: Mike Oliver, yes; Justin Hurley, yes; Tim Sclnneusser, yes; and Rick Samuelson, yes. Motion approved. Planning Commission Minutes Decembe~~ 6, 2011 Page 3 Regional Problem Solving Update Community Development Director Tom Humphrey presented a status report on the RPS process. The County Commissioners approved the plan and will pass that approval to DLCD. Before DLCD will acknowledge the plan, each city must pass a comprehensive plan amendment. These amendments will include the areas that will comprise the urban reserve. Local cities are all working on a regional plan `element' for their city. They all agree this will be a cleaner, more expedient way of addressing state requirements. After the first of the year, Mr. Humphrey will return to the Commission with the element portion to send to DLCD fora 45 day comment period and review. DLCD will make sure all the elements match the regional plan. After acknowledgement, each city can apply for an Urban Growth Boundary Amendment. All the cities are working hard on their element in order to get a speedy closure to this project. VIII. ADMINISTRATIVE REVIEWS -None IX. MISCELLANEOUS -None X. ADJOURNMENT Mike Oliver made a motion to adjourn the meeting. Tim Schmeusser seconded the motion. Meeting was adjourned at 7:05 p.m. The foregoing minutes of the December 6, 2011 Planning Commission meeting were approved by the Planning Commission at its meeting on the day of .2012. Planning Commission Chair ROC UE VALL,EY REGOYERY HOMES AI`II~IUAL, REYIE~Y City of Central Point, Oregon - ----- 14U J 3rd Jtreet, Central Point, CJK y/SUL 541.664.3321 Fax 541.664.6384 www.central poi ntoregon.gov 1: .~- :~- CENTRAL PAINT Community Development Tom Humphrey, AICP Community Development Director PLANNING DEPARTMENT MEMORANDUM Date: January 3, 2012 To: Central Point City Planning Commission From: Connie Clune, Community Planner Subject: Rogue Valley Recovery Homes File No. 11011 On January 4, 2011 the Planning Commission approved a Conditional Use Permit application to establish aself--run recovery home for fifteen (15) people. The recovery home is located at 134 Laurel Street. As condition of approval, the Commission requested that staff ascertain that the project remained compliant with the two conditions of approval. A. Parking Plan. On January 31, 2011, the Applicant submitted to the Planning Department, for review and approval, a scaled parking plan that demonstrated that the minimum required off-street parking spaces can be provided on-site. The plan was found to comply with code provisions and no parking issues have been reported. B. Deferred Improvement Agreement. The Applicant was required to install sidewalks at the time of approval or sign a Deferred hmprovement Agreement (DIA). On January 28, 2011, Mr. Detwiler signed and recorded the DIA (Jackson County Records 2011- 003225). Currently, eight (8) veterans reside at the facility and report that the house is running well. A recent visit of the home found it to be clean and decorated for the holidays. Planning Commission Minutes Janua~~~ 4, 2011 Page 3 people working for the program. "We run a tight ship" Mr. Detwiler declared. Another member of the group, Misty Cornwell, came forward and said that the majority of the tenants don't drive. The public hearing was then closed. Connie Clune recommended that the applicant submit a diagram of where the parking on the property would be located. Tom Humphrey stated that the Planning Commission had the ability to allow the applicant to manage parking improvements and install them at some time in the future when it becomes necessary. Chuck Piland asked if the Planning Commission had the ability to require a review in a year's time to assess parking. Mr. Humphrey said yes and it was determined that staff would perform the review and report the results to the Planning Commission. Pat Beck made a motion to approve Resolution 778 granting approval of a conditional use permit to operate a fifteen (15) person convalescent home to establish aself--run recovery home within an existing duplex located at 134 Laurel Street, located in an R-2 Residential Two-Family zoning district (Jackson County Assessor's map 37S 2W 03DD, Tax Lot 6000), with the conditions imposed in the Staff Report dated January 4, 2011. In addition, applicant shall be bound by a deferred improvement agreement with the City requiring the addition of two (2) parking spaces at such time as they become necessary. City staff will review this conditional use permit decision in January of 2012 to ascertain that applicant remains in compliance with imposed conditions. Applicant is further required to provide a parking plan for the property located at 134 Laurel Street within thirty (30) days from the date of this hearing. Keith Wangle seconded the motion. ROLL CALL: Oliver, yes; Hurley, yes; Beck, yes; Schineusser, yes; and Wangle, yes. Motion passed. VII. DISCUSSION Revisions to Flood Danza,~e Pt°evention Of~dinance Stephanie Holtey, Floodplain and Stormwater Coordinator, advised commissioners that a new FEMA map will take effect on May 3, 2011. The map has been developed with the best available information and will replace the previous map that was produced in 1982. Mrs. Holtey presented an overview of what will be happening prior to adoption of the new map. There has been a shift in the high risk flood areas and future development will need to occur at a higher standard in order to protect homes. If a homeowner has a mortgage, mortgage companies will be requiring flood insurance. ,~ TREE REMOVAL APPLICATIOItii ~TALLEY OAK BLVD. ~` Stephanie Holtey, CFM ~+ Public Works Department Floodplain/Stormwater Coordinator CENTRAL 140 South 3~ Street ~ Central Point, OR 97502 ~ 541.664.7602 ~ www.centralpointoregon.gov POINT STAFF REPORT March 6, 2012 AGENDA ITEM: File No. Consideration of a Tree Removal Application to remove an Oregon White Oak (Quercus garryana) located in the public right-of-way between 510 and 520 Valley Oak Boulevard in the Transit Oriented District (TOD). Applicant: Griffin Oaks Management Association STAFF SOURCE: Stephanie Holtey, CFM Floodplain/Stormwater Coordinator Mark Brindle, ISA Arborist Parks Maintenance Tom Humphrey, AICP Community Development Director BACKGROUND: Trees are regulated in accordance with Chapter 12.36, Trees; Chapter 17.67, Design Standards - TOD District and TOD Corridor; and Chapter 17.75, Design and Development Standards of the Central Point Municipal Code. Removal of trees planted in the public right-of-way or private property that directly affects public infrastructure or land use design requirements requires approval by the Planning Commission. The subject tree removal request is due to a concern that the Oregon White Oak is overtaking the adjacent pedestrian light (See photos 1 and 2). The tree is located in a landscape row in the public right-of-way between 510 and 520 Valley Oak Boulevard. The land use zone designation is Low Mix Residential (LMR) in the Transit Oriented District. The Oregon White Oak tree in question is approximately 28-feet tall with a diameter at breast height (DBH) of 9-inches. The base of the trunk is about 3-feet from the base of the light pole and the trunk at DBH is 4-feet from the light pole. Trees on the street are spaced approximately 30-feet on center, leaving no room for replacement of the tree at another location. Photo 1. Looking east at tree and and white oak tree. Photo 2. Approx. 3-ft distance between light and tree trunk. ISSUES: Oregon White Oak grows to 80' tall and 3' in diameter. At maturity it has a rounded crown. According to an evaluation conducted by the City's ISA Certified Arborist, the trunk of the subject tree will grow another 1 to 1.5 feet closer to the light pole. However, at maturity the canopy will increase in height and broaden out eliminating the existing conflict with the light. The tree's placement is consistent with tree spacing requirements provided in all applicable code sections with the exception of the setback requirement from utility poles and street lights. Section 12.36.100(E) establishes a standard 10-foot and 20-foot setback from utility poles and street lights, respectively. In addition; this code section allows discretion by the Public Works Director to vary from this setback standard. Due to the temporary nature of the conflict between the Oregon White Oak placement in relation to the adjacent pedestrian light, the benefits of street trees in the urban environment, and health and size of the existing specimen, the Public Works Director has waived the 12.36.100(E) requirement. In the event the tree conflict is not resolved as the tree reaches maturity, the Public Works Department can move the light. EXHIBITS/ATTACHMENTS: Attachment "A" -Application Attachment "B" -Arborist Evaluation Summary E-mail Attachment "C" - E-mail from the Public Works Director ACTION: Discussion and decision by the Planning Commission. RECOMMENDATION: Denial of the request to remove the Oregon White Oak tree per the Staff Report dated March 6, 2012, which cites the following reasons: • The conflict between the tree and the pedestrian light is temporary and will likely be resolved as the tree reaches maturity; • In the event the conflict is not resolved by allowing the natural growth characteristics of the tree over time, the Public Works Department can relocate the pedestrian light, per the Public Works Director; • The benefits of having healthy, large trees in the urban and streetscape environments should be maintained; • Removal of the tree would result in non-compliance with design standards for tree placement set forth in Sections 12.36.100(E), 17.67.050(K)(5), and 17.75.03. ATTACHMENT " ~` " CENTRAL Tree Removal Application POINT OFFICE USE ONLY Arborist Evaluation C~ Hazardous Tree Exemption C~ Tree Board Review Documentation U Attachments Approved ^ Denied ^ Subject to COA Site Address: U ~~ ~~~ ~~ Map and Tax Lot: Zoning District: Right-of-Way: Name: /° .,., ~/~ Owner of Record: ^ Yes ^ No* (y~(~ *Provide written designation of applicant os Street Address: S ~~ ~~ ~ ~ O~~ Mailing Address: ~~ ~ a Phone: ~~ - 6+j ~ _ S~ cy E-mail: ~~ ~ ~' ~r--~,-e Section 1: General Information Number of Trees to be removed: Reason for Removal: ^ Hazardous (attach arboristreport) ^ Other (please be specific): C7 V ~-t' -~G,.~- ~ ~ Section 2: Detailed Tree Information (Complete additional pages if necessary. Attach a site plan and photagra, Tree #1 Species: ~.~ ~ ~~- u Diameter at Breast Height (inches): 6 Height (feet): ZS Location (check all that apply): ^ Front Yard ^ Side Yard Near Sidewalk or Street ^' Within 25-ft of stream bank Tree to be replaced: ^ Yes ~ No Replacement Species: /J~fa- Tree #3 Diameter at Breast Height (in Location (check all that apply): i~ Front Yard ^ Side Yard Near Sidewalk or Street ^ Within 25-ft of stream bank Tree to be replaced: ^ Yes I-i No Replacement Species: agent from owner of record. ~~~ ^ View Obstruction I C Stream Obstruction -Q e.t~ l~ ~ ~, ~-.~c - s-~-~ r~ L.~.,~. gees to be removed labeling each tree as provided below. Tree #2 _ Diameter at Breast Height (inches): Location (check all that apply): a Front Yard ^ Side Yard ~7 Near Sidewalk or Street ^ Within 25-ft of stream bank Tree to be replaced: r~ Yes n No Replacement Species: Tree #4 Species: Diameter at Breast Height (inches): Height: Location (check all that apply): ^ Front Yard ^ Side Yard Near Sidewalk or Street ^ Within 25-ft of stream bank Tree to be replaced: ^ Yes ^ No Replacement Species: By signing below, I agree to the terms and conditions of this permit and certify to the best of my knowledge the information contained in this application is complete, true and accurate. Applicant (PRINTED name) Applicant (SIGNED name) (Date) Owner (PRINTED name) Owner (SIGNED name) (Date) rJ Submittal Requirements for Tree Removal Application ^ Site Plan ^ North Arrow U Location of property lines ^ Location and name of streets, alleys and walkways ^ Location of all driveways on the subject property and nearest driveway on adjacent properties 0 Location of known utilities and drainage facilities in the work area ^ Dimensions of the proposed work area, including distance between driveways and property lines, structures, trees, etc. ^ Location and type of all traffic control devices, such as street signs, an d street lights adjacent to the proposed work. ^ Traffic Control Plan if the work requires alteration of traffic flow for tree removal, as well as consideration for public safety. The Public Works Director or the Tree Board may require a traffic control plan as a condition of approval. Arborist Evaluation for trees being removed due to a suspected hazardous condition. Arborist evaluations must be completed by an ISA Certified Arborist. Tree Removal/Planting Criteria City of Central Point Approved Tree List. The City has developed a list of desirable trees for planting along streets based on tree size and shape. The following list provides a sample of desirable street trees. 1. Oman i tees wrtn pow rviacure ~ tee neigni ~~~ reet or less), for us e m areas under power lines or in small planting areas: Flame Maple/Acer ginnala flame Flowering Dogwood/Cornus florida Aristocrat Pear/Pyrus Calleryana Glens Form Chanticleer Flowering Pear/ Pyrus colleryana Sargent Columnar Cherry/PrunusSargentii "columnaris" Eastern Redbud/Cercis canadensis 2. Medium Trees With Medium Mature Tree Height (30 to 45 feet): Crimson King Maple/Acer plotonoides Kwanzan Cherry/Prunus serrulpta Eastern Redbud/Cercis canadensis October Glory Maple/Acer rubrum Redspire Pear/Pyrus calleryona Black Tupelo/Nyssa sylvatica Autumn Flowering Cherry/Prunussubhirtella 3. Large Trees with Tall Mature Tree Height (50 feet or larger): Armstrong Maple/Acer rubrum 'Armstrong" Red Sunset Maple/Acerrubrun "Franksred" Sugar Maple/Acersocchorum "Green Mountain" Greenspire Linden/Tilia cordata'Greenspire" Tulip Tree/Liriodendron tulipifera 4. Trees to be Planted Under Powerlines Eastern Redbud/Cercis canadensis Flame Maple/Acer ginnala flame Kousa Dogwood/Cornus kousa Thundercloud Plum/Prunus cerasifero 5. Prohibited Street Trees Willows/salix spp Cottonwoods/poplars/Populus spp Big Leaf Maple/Acermacrophyllum Horse Chestnuts/Aesculusspp Alder/Alnus spp Birch/Betula spp Ash/ Fraxinus spp. Goldenchain/Lobumum watereri Fruitless Mulberry/Morns olba Sycamore/Platanus acerifolia Pin Oak/Quercus palustris American Elm/Ulmus americano Nut Tree Varieties Fruit Tree Varieties Catalpa/Catalpa speciosa Osage Orapi/Maclura pomifera Conifers Weeping Varieties of Trees Butterfly Bush Bamboo Growth Characteristics. Trees shall be selected based on growth characteristics and site conditions, including available space, overhead clearance, soil conditions, exposure and desired color and appearance. The following should guide tree selection: 1. Provide a broad canopy tree variety unless limited by overhead clearance. 2. Use lower-growing oropen-branched trees for spaces under utility wires. 3. Select trees that can be "limbed-up" where vision clearance is a concern. 4. Use narrow or "columnar" trees where awnings, other building features, or narrow sidewalks limit growth, or where greater visibility is desired between buildings and the street. 5. Avoid using trees that are susceptible to insect damage, and avoid using trees that produce excessive seeds or fruit. 6. Select trees that are well adapted to the local environment, considering soil, wind, sun exposure and exhaust. Drought resistant trees should be used in areas with sandy or rocky soil. 7. Select trees for their seasonal color, as desired. 8. Use deciduous trees for summer shade and winter sun. Tree Removal/Planting Requirements. Refer to Chapter 12.36 of the Central Point Municipal Code (CPMC) for more information about tree removal and planting requirements. The CPMC can be found on the City's Website: htto://www.centraloointore~on Gov. ~T~'A.~NMENT "~ From: Mark Brindle Sent: Wednesday, February 29, 2012 4:00 PM To: Stephanie Holtey Cc: Jennifer Boardman; Matt Samitore Subject: RE: Tree Evaluation: Valley Oak Blvd and Black Oak Dr Hello Stephanie. I had a chance to take a look at the oak tree at 510-520 Valley Oak Dr.. The oak in question is not a Red Oak as described on the Tree Removal Application, but a White Oak. The tree is located in mow strip between curb and sidewalk. Base of trunk flare is aft from base of street light TC 005's base and is Oft at DBH from light pole. Tree is approximately 28ft tall with a DBH of 9 inches. The tree will grow approximately 1 to 1.5 in diameter closer to light pole. Canopy will eventually be above light pole with no obstruction at maturity. I recommend that the tree stay and the Tree Removal Application be denied. Hope this helps. Let me know if you need anything more. By the way, the top of the rake in photo DSCN0743 is at a height of 5ft. Sincerely Mark Brindle, CPSI ISA Cert. Arborist Parks Maintenance Parks and Recreation City of Central Point 140 South Third Street Central Point, OR 97502 Cell: 541-210-7349 Fax: 541-664 -4056 www.centralpointore>;on.gov ~~ Please consider the environment before printing this email From: Stephanie Holtey Sent: Monday, February 27, 2012 3:09 PM To: Mark Brindle Subject: Tree Evaluation: Valley Oak Blvd and Black Oak Dr Hi Mark, Purusant to our conversation last Thursday afternoon, the City received an application to remove a red oak tree near the intersection of Valley Oak Boulevard and Black Oak Drive. The tree is not considered hazardous; however, it is located very close (approx. 3-5 feet) away from a light pole. The homeowner's association wants to remove the tree due to conflicts with the light. I've attached a couple of photographs and a copy of the application. Can you take a look at the tree and give me an evaluation of the hazard posed to the light by the tree and your recommendation for tree retention or removal? I'd like to include a summary of your evaluation in the staff report, which I need to complete by this coming Friday. Thanks so much for your assistance. ~, ATTACHIVI~fVI® ~~~~ From: Matt Samitore Sent: Thursday, March 01, 2012 3:08 PM To: Stephanie Holtey Subject: RE: Tree Removal Staff Report Stephanie, As we discussed I believe we should vary from our standards to keep the white oak in its current location. The trees planted in this phase of the Twin Creeks Development are beginning to get closer to their matured height and are providing great benefits to shad the residences and streets in this area. If a conflict continues into the future the street light can be moved to the north in order to avoid a conflict with the tree. Matt Samitore, Parks & Public Works Director Public Works Department City of Central Point 140 South Third Street Central Point, OR 97502 Desk: 541-664-3321 (x205) Fax: 541-664-6384 www.centralpointoregon.~ov From: Stephanie Holtey Sent: Thursday, March 01, 2012 2:49 PM To: Matt Samitore Subject: Tree Removal Staff Report Matt, I completed the tree removal staff report for the tree on Valley Oak Boulevard. I found that the tree is consistent with placement standards in 12.36, 17.67 and 17.75 with the exception of the setback standard from utility poles and streetlights. However, in Section 12.36.100(E) it states that the Public Works Director can allow variations to the distances from these infrastructure components. You gave me verbal indication of this variance; however, it may be helpful to have something in writing to attach to the staff report. Would you mind sending mean e-mail or memo re-iterating our earlier conversation to allow the variation in distance between the light pole and the tree? Thanks so much for your help! Stephanie Holtey, CFM Floodplain/Stormwater Coordinator Public Works Department City of Central Point 140 South Third Street Central Point, OR 97502 Desk: 541-664-3321 (x244) Fax: 541-664-6384 www.centralpointoregon.gov ~, FEDERAL GHAI~IC ES TO VYIRELESS GOLLOGATIOI~i LAYS STAFF REPORT ~.~..- '~_~ ~~ CENTRAL POINT _ ..Community Development Tom Humphrey, AICP Community Development Director TO: Central Point City Planning Commission FROM: Tom Humphrey AICP, Community Development Director SUBJECT: New Federal Changes to Wireless Collocation Laws DATE: March 6, 2012 Introduction The City Attorney has made staff aware of changes to federal law for Wireless Collocation that could have an effect on the Planning Commission's review of cell towers and other wireless facilities. According to Attachment `A', local governments need to take immediate action to review and possibly amend local zoning and wireless siting ordinances. Discussion The City of Central Point already has some specific guidelines for the placement and disposition (height, appearance, etc.) of cell towers including a `stealth' provision in some zones. I have included sections of the code that apply to antennas for wireless use whether on a tower or on a building (see Attachment `B'). The new federal law mandates local approval of cer°tain applications for modification of "an existing wireless tower or base station." It precludes a local government from denying any "eligible, facilities request" ... that does not suhstantiaddy change the physical dimensions of such tower or base station." The Central Point Municipal Code appears to be equitable when it comes to this subject and the Commission is aware that we have been pretty creative with wireless providers when it comes to base station placement at Four Oaks and in Twin Creeks. The new law seems to apply strictly to modification requests that involve collocation ofnew transmission equipment, or removal or replacement of existing transmission equipment. The good thing about the new legislation is that it does not prevent a locality from reviewing a proposed collocation installation, so the Planning Commission can continue to be involved in decision making. As Attachment A points out, there are ambiguities in the new law that will allow the City to continue to protect legitimate interests and perhaps to better define those interests. Should the City receive a request to modify an eligible facility, we will work with our attorney and the Planning Commission to operate comfortably within the new rules. Action Direct staff to determine whether any changes should be made to the municipal code as a result of this new federal law and, if necessary, bring those changes to the planning commission for their consideration and action. Attachments A. List Serve Memorandum from Paul Nolte, City Attorney received 2/28/2012 B. Excerpts from CPMC Sections 17.60.040 Antenna Standards and 17.08.005 Definitions ~1 ,~TTAC~IVIENI° " ~ " Paul Nolte, Lawyer 3860 Fisher Road Roseburg, OR 97471 Phone: 541-821-2271 Fax:541-672-2134 law(a~ashlandhome.net Subject: [Members] Further notes on wireless collocation changes mandated by the federal payroll tax extension legislation For those of you who missed the E-NATOA yesterday, here is our take on the new wireless legislation that was signed into law last night: Last night, President Obama signed into law a bill passed by Congress that extended unemployment benefits and the payroll tax deduction. The bill, HR 3630, includes other provisions relevant to local government, including restrictions on siting of wireless facilities. The law is effective immediately. Local governments need to take immediate action to review and possibly amend local zoning and wireless siting ordinances under the new law. 1. Background Under Section 332(c)(7) of the Communications Act, local governments have broad authority to control the siting of cellular and other wireless towers, antennas and related facilities. Many localities have ordinances that govern both the initial placement and modification of wireless facilities. The new law may require changes to those rules. It mandates local approval of certain applications for modification of "an existing wireless tower or base station." The new federal legislation states that "Notwithstanding [Section 332(c)(7)] or any other provision of law, a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." An "eligible facilities request" is any modification request that "involves" collocation of new transmission equipment, or removal or replacement of existing transmission equipment. Basic terms in the legislation, including "wireless tower," "base station," and "substantially change" are undefined, and will ultimately be defined by the courts or by the Federal Communications Commission. ~, ~~ Local governments should anticipate that representatives of tower companies will claim that cities and counties must approve pending collocation applications unless the expansion adds significantly to the height or width of a facility. Entities that have placed wireless facilities on public light poles and other public property may argue they can now expand their facilities. We expect providers to move quickly to challenge any local ordinance that considers any collocation factor other than "physical dimensions." More aggressive applicants may claim the failure to "approve" subjects jurisdictions to damages and attorney's fees for failure to act. Localities need not be intimidated by these claims, but should look seriously at their wireless siting ordinances and regulations. The new federal law does not prevent a locality from reviewing a proposed collocation installation. There are significant ambiguities in the new law that undercut claims that a locality "must act" on every collocation application. These ambiguities suggest that localities may be able to protect legitimate interests. For example, the law only applies to "wireless towers" and, under some FCC orders, wireless towers are facilities built for the "sole or primary purpose of supporting antennas and their associated facilities used to provide FCC-licensed services." Many collocation applications are not for "wireless towers," if that definition applies. Also unclear is what constitutes a "substantial" change. Even a relatively small change in the size of a base station is arguably "substantial" if it creates a hazard, blocks traffic views, or makes a sidewalk inaccessible to the disabled. Nor is it obvious that the new law even applies to light poles and other municipal property where the access is via contract. 2. Actions Items. Localities should consider the following actions. • Because the bill is effective immediately, every local government should immediately review its local requirements for wireless facility collocations. Are the locality's evaluation criteria and application forms consistent with the new "substantial change" in "physical dimension" standard in federal law? Also, localities need to look at their own contracts and models for contracts for allowing access to public facilities. ~~ • Localities should brief elected officials and boards immediately on the bill, so that any decisions granting or denying collocation are consistent with the new rules. Most local interests should be protectable - but only if collocation siting decisions are made in a manner that takes the new law into account. • Localities should prepare for FCC action. The FCC has authority to interpret and implement the provisions of the new law. Industry may seek to have the FCC adopt rules that fit their view of the law, and if the FCC does so, it could have significant adverse effects on local communities. 3. Other matters. With basic terms yet to be defined, the impact of the new law is difficult to predict. Development of a sound ordinance that protects local interests may raise complex legal and policy issues. Nonetheless: • The law appears to substantially preempt many applications of state environmental laws to requests for collocation; • The law also may preempt state collocation laws (to the extent that the laws conflict with federal law) and may have particularly significant effects for "grandfathered" towers or towers that are non-conforming uses; and • The bill raises significant constitutional issues - Can the federal government require a state or locality to "approve" anything? If you have any questions about this federal legislation or how to respond, please feel free to contact us. PLEASE NOTE MY ADDRESS HAS CHANGED Joseph Van Eaton <mailto:joseph.vaneaton@bbklaw.com> Best Best & Krieger LLP 2000 Pennsylvania Avenue, NW Suite 4300 Washington, DC 20006 Web Site < http://www.millervaneaton.com/> -, .L ~. ATTACHMENT "~" 17.60.040 Antenna standards. The purpose of these regulations is to ensure that antennas continue to serve the needs of the community, while assuring that antennas are regulated in a manner that minimized visual impacts. The standards regulating the placement of antennas within the city of Central Point are as set forth in this section. A. Building Roof and Wall-Mounted Antennas. The purpose of these regulations is to ensure that building and wall-mounted antennas are regulated in a manner that minimizes visual impacts, complies with the intent of the terms "concealed," "camouflage" and "disguised" as defined in Section 17.08.010, protects neighborhood livability, promotes universal service to all customers and ensures all providers are fairly treated. Roof- and wall-mounted antennas, as defined in Section 17.08.010, are allowed per Table 1 subject to the following: Table 1 Zoning District Permitted Use Conditional Use Not Permitted R-1 - NA Not Permitted R-2 - NA Not Permitted R-3/H MR Permitted NA Civic Permitted NA - C-2 Permitted NA - EC/GC Permitted NA - C-4 Permitted NA - C-5 Permitted NA - M-1 Permitted NA - M-2 Permitted NA - 1. Building Roof and Wall-Mounted Antennas. a. Building Roof-Mounted Antennas. Antennas installed on a building roof shall be incorporated within or concealed behind existing or new architectural features compatible with and complementary to the building's architectural character so as to not be readily recognizable as an antenna and to be screened from view from the ground level of abutting public streets and adjacent properties. Acceptable types of screening are placement behind the roof parapet, placement behind a screen designed to blend with the existing building, placement within or on the mechanical penthouse or on aroof-mounted building element such as a chimney, exhaust pipe, cupola, bell tower or flagpole. y b. Historic Compatibility. All roof-mounted antennas shall comply with the historic preservation over-ay zone, Chapter 17.70 of this code. c. Building Wall-Mounted Antennas. Any wireless communication facility (WCF) antennas mounted to the roof edge or sidewall elevation of a building shall be completely covered with the same, or complementing exterior finish and color as the exterior of the building or structure. All wall-mounted antennas shall comply with Section 17.60.100, Projections from buildings, of this chapter. d. Allowable Height for Antennas Mounted on Building Roofs and Walls. Antennas mounted on building roofs and walls shall not extend more than ten feet above the highest existing architectural feature on the building. 2. Site Plan Review. All roof-mounted and wall-mounted antennas shall require site plan review. A site plan review of the application for a building permit shall be an administrative Type II procedure and comply with Section 17.05.300 of this title. In some circumstances, a Type II application may be referred by staff to a Type III procedure when unusual features or circumstances of the site, building or improvement could result in an adverse impact on the building, neighborhood or adjacent properties. When such a referral is made, the application shall be processed as a Type III application, including the requirements for a hearing, notice of decision as provided by Section 17.05.400 and shall comply with Chapter 17.72 of this title. 3. Notification. Contemporaneously with any installation of building orwall-mounted antennas, written notice in the form of a sign at least eight inches by twelve inches in size shall be affixed to the building in a conspicuous place, which place shall be approved in advance by the city planning department. B. Tower-Mounted Antennas. Tower-mounted antennas shall comply with the following standards: 1. Tower-mounted antennas are allowed per Table 2: Table 2 Zoning District Permitted Use Conditional Use Not Permitted R-1 - - Not Permitted R-2 - - Not Permitted R-3 - - Not Permitted C-2 - - Not Permitted C-4 - Conditional Use - C-5 - Conditional Use - M-1 - Conditional Use - M-2 - Conditional Use - C-4 TOD Overlay - - Not Permitted C-5 TOD Overlay - - Not Permitted TOD District - - Not Permitted 2. Tower-Mounted Antennas, Single. Single tower-mounted antennas are subject to the following general requirements: a. When adjacent to residentially zoned properties, additional tower setback may be required to protect against collapse; b. Towers and tower-mounted antennas shall be painted an unobtrusive color; c. Lighting on towers shall be prohibited unless required by the Federal Aviation Administration; d. Conditional use permit applications may have additional conditions imposed to mitigate the visual impact of the tower and tower-mounted antennas on surrounding properties. 3. Tower-Mounted Antennas, Co-Located. Co-located antennas are subject to the following requirements: a. Shall be reviewed subject to the site plan review provisions of subsection (A)(2) of this section; b. Shall be mounted in a configuration similar to or less obtrusive than antennas already existing on the tower. (Ord. 1900 §3, 2007). 17.08.005 Definitions, general. For the purpose of this section, the definitions and rules of construction set forth shall prevail, except when the context clearly requires otherwise: "Antenna" means a device, dish or array used to transmit or receive signals for telecommunication purposes. An antenna is typically mounted on a supporting tower, pole, mast or building. "Building roof-mounted antennas" means any wireless communucation facility (WCF) antennas for cellular, personal telecommunications services (PCS) and similar radio services installed on a building roof (see Section 17.60.040). "Building wall-mounted antennas" means any wireless communucation facility (WCF) antennas for cellular, personal telecommunications services (PCS) and similar radio services mounted to the roof edge or sidewall elevation of a building or structure (see Section 17.60.040). i ~ "Communication facility tower (wireless)" means a structure, tower, pole or mast solely dedicated to support one or more wireless communications antenna systems. For the purpose of this section, such a support structure will be referred to generically as a "tower." Tower types include: 1. "Guyed tower" means a tower that is supported by use of cables (guy wires) that are permanently anchored to the ground. 2. "Lattice tower" means a tower characterized by an open framework of lateral cross-members that stabilize the structure. 3. "Monopole" means a single, upright pole, engineered to be self-supporting and requiring no guy wires or lateral cross-members. ~~