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HomeMy WebLinkAboutT MobileCITY OF CHUBBUCK CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This matter comes before the City Council on twelve (12) appeals filed in objection to the Land Use and Development Commission decision granting the application of T Mobile (hereinafter referred to as "Applicant") for a conditional use permit to place an 80 ft cell tower on the grounds at Chubbuck Elementary School on the real property located at 600 West Chastain Drive. The Council reviewed the Commission's findings of facts and conclusions of law, and having heard and reviewed testimony from the appealing parties and the Applicant, and being fully advised, now makes the following: FINDINGS OF FACT 1. Applicant has applied for a conditional use permit as particularly described above. 2. All legal requirements for notice of public hearing have been met. 3. The property in question is zoned R-2 Limited Residential pursuant to the Land Use Ordinance of the City of Chubbuck. 4. The property is designated as Medium Density in the duly adopted Comprehensive Plan of the City of Chubbuck. 5. Relevant criteria and standards for consideration of this application are set forth in Idaho Cade section 67-6512 and in Chubbuck Code section 18.28.040 (C). 6. The facts relevant to an evaluation of the relevant criteria and standards are as follows: A. Chapter 18.13 of the City Code regulates Wireless Communications Facilities and state as its purpose to: "These standards were developed to protect the public health, safety, and welfare, to protect property values and minimize visual impact while furthering the development of enhanced telecommunication services in the city." B. While the Commission found this site complies with Code section 18.13.080 on site selection Priority because Applicant has demonstrated sites for collocation were not viable and FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1 chubbuck 123014 t mobile council ffcl.wpd this site on Public Property that borders a commercial use (Hawthorne Animal Hospital), the property is still in a residentially zoned area. The Council frids under Chubbuck Municipal Code § 18.13.080 (A) this site is not a paragraph 2 priority site but is instead a paragraph 10 priority site. The Council is not satisfied that Applicant has demonstrated there are not other sites with in the area of T Mobil's area that needs additional cell coverage that would be of a higher priority, paragraphs 2 though 9 of Code § 18.13.080 (A). Additionally Applicant has not demonstrated this residential location is proper under Code § 18.13.080 (B) (1). C. The proposed location does not meet the tower height set back from adjoining property and Applicant has not demonstrated why the set back should be waived. D. This site does not pose a safety risk as Applicant will maintain compliance with FCC RF emission standards and the monopole will be constructed in accordance with applicable engineering standards. E. While the property owner, School District No. 25, has indicated support for this site, Applicant at this time does not have a written agreement with School District no. 25 for use of this site. Applicant fails to comply with Chubbuck Municipal Code § 18.28.020 (A) which requires an Applicant to either own or have a contractual interest in real property in order to submit an application under Title 18. F. Several of the appellants have a general complaint about the proposed use but have failed to show their real property interests are actually impacted by the proposed use. G. Those appellants that have demonstrated their real property is impacted show impact due either to failure to meet the required set back from the property line or for aesthetic reasons. BASED UPON THE FOREGOING FINDINGS OF FACT, the City Council hereby enters the following: CONCLUSIONS OF LAW 1. Applicant has failed to show there are not other site that would fit Applicant's needs within Applicant's area of poor coverage that would have a higher priority under Chubbuck Municipal Code § 18.13..080 (A) or that this residential location is proper under Code § 18.13.080 (13)(1). FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 2 chubbuck 123014 t mobile council ffcl.wpd 2. Applicant does not have the ownership or contractual interest in the proposed site required to proceed under Title 18 of the Chubbuck Municipal Code. DECISION The Land Use and Development Commission decision is overruled and the request of the Applicant for a conditional use permit is denied. Adopted the q'lhday of January, 2015, as the findings of fact and conclusions of law of the Chubbuck City Council. By: Vi Gtl �4,6 — Clerk FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 3 chubbuck 123014 t mobile council ffcl.wpd CITY OF CHUBBUCK LAND USE AND DEVELOPMENT COMMISSION FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This matter having come before the Commission for public hearing pursuant to public notice as required by law, on April 14, 2015, upon the application of T Mobile (hereinafter referred to as "applicant") for a conditional use permit to place a 80 ft cell tower on the grounds of Stuart Park on the real property located at 5161 Stuart Avenue and the Commission having heard testimony from interested parties, obtained an independent third party review of Applicant's proposal from CityScape Consultants, Inc., and being fully advised in the matter, now makes the following: FINDINGS OF FACT 1. Applicant has applied for a conditional use permit as particularly described above. 2. All legal requirements for notice of public hearing have been met. 3. The property in question is zoned R-2 Limited Residential pursuant to the Land Use Ordinance of the City of Chubbuck. 4. The property is designated as Medium Density in the duly adopted Comprehensive Plan of the City of Chubbuck. 5. Relevant criteria and standards for consideration of this application are set forth in Idaho Code section 67-6512 and in Chubbuck Code section 18.28.040 (C) and Chapter 18.13. 6. The facts relevant to an evaluation of the relevant criteria and standards are as follows: A. Chapter 18.13 of the City Code regulates Wireless Communications Facilities and state as its purpose to: "These standards were developed to protect the public health, safety, and welfare, to protect property values and minimize visual impact while furthering the development of enhanced telecommunication services in the city." B. This site complies with Code section 18. 13.080 on site selection Priority because Applicant has demonstrated sites for collocation were not viable and this site on Public Property has the least impact on residential areas. Of the other sites considered, the approval of the FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1 chubbuck0501 l5 t mobile ffcl.wpd Chubbuck Elementary site was denied by the City Council. Given the lack of alternative sites, this site in Stuart Park is the best fit for Applicant's needs. The third -party review by CityScape concluded the four existing towers nearest to the proposed site were justified in being eliminated from Applicant's consideration. Co -location on any existing tower will not fit the Applicant's needs to eliminate the gap in coverage. C. Applicant's use will further the development of enhanced telecommunication services in the city by eliminating a wide area of poor coverage for this wireless provider. D. While other providers of wireless service provide coverage to this area, Chubbuck Code Section 18.13.010 A indicates: "This chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services." E. In accordance with City Code 18.13.120, the proposed 80 ft tower in a Residential zone requires a Conditional Use Permit. F. This site is needed by Applicant to provide reliable service to Customers as shown by Applicant's coverage maps and will close a gap in coverage. G. The proposed Tower will be an 80 ft monopole with flush mount antennas, similar to other towers in the City which have posed no threat to public safety. Applicant, by flush mounting the antennae, has mitigated the visual impact of the tower. H. The Cell site would be surrounded by a fence. I. Ground equipment would be contained in an enclosure. J. 100% of tower height setback from adjoining property is not met but this is mitigated by the distance to any structures on this property and the need to locate the tower in this isolated comer of the park so as to minimize interference with other uses of the park. K. Applicant will maintain compliance with FCC RF emission standards. L. Pursuant to Chubbuck Municipal Code §18-13.090, the special requirement for parks are met by Applicant on the following basis: The Applicant has demonstrated to the satisfaction of the City that visual impacts have been mitigated to the fullest extent reasonably possible and that accommodations have been included in the design and placement so that there would be no disruption of normal public use of the park. Specifically locating the tower in the far northwest corner of the park will have the least impact to park users. FINDINGS OF FACT AND CONCLUSIONS OF LAW -Page 2 chubbuck050115 t mobile ffcl.wpd 2. The Applicant has clearly demonstrated that placement of the facility in a public park is necessary for the effective operation of Applicant's services and for the elimination of Applicant's coverage gap. Applicant indicates alternative placement is not possible and such has been confirmed by City's independent third -party review by CityScape. M. The third -party review by CityScape agreed with the elimination of the nearest four towers as alternate sites for placement and further concluded that the selected location in Stuart Park was compliant with the hierarchy [for location of cell towers] as defined in the City's ordinance. N. CityScape and its third -party review has determined, after consideration of the technical specifications of the submitted application, that, with the exception of the landscaping and setbacks, the application is compliant with the requirements and the City's ordinance and CityScape recommended approval of the application with certain suggested conditions. BASED UPON THE FOREGOING FINDINGS OF FACT, the Land Use and Development Commission hereby enters the following: CONCLUSIONS OF LAW 1. The use for which the permit is sought will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare. 2. No credible evidence has been submitted as to loss of economic value; the permit sought will not produce an adverse impact on the economic values of adjacent properties. 3. The permit sought will not produce a negative impact on transportation facilities, public utilities, schools, public parks, or the natural environment. 4. The noise and traffic conditions generated by the use for which the permit is sought, when analyzed in conjunction with the noise and traffic conditions now existing does not indicate that the permit should be denied. 5. The use for which the permit is sought shall not work an unreasonable hardship upon surrounding property owners by virtue of its physical natures or by the impact of changes made in the landscape of the land. 6. On balance, while recognizing the aesthetic qualities of the proposed use in comparison with the aesthetic qualities of the surrounding lands and recognizing the purpose of FINDINGS OF FACT AND CONCLUSIONS OF LAW -Page 3 chubbuck050115 t mobile ffcl.wpd furthering the development of enhanced telecommunication services in the city, the aesthetic conflict has been minimized by siting in a public park adjacent to an arterial street with a church and public library across the street and by using flush mount antennae. 7. The adverse impact of the proposed use on other development within the City has been minimized by Applicant as much as is reasonably possible. 8. Owners of adjacent property have not expressed approval of the issuance of the requested conditional use permit and are opposed to this permit, primarily on the grounds that a park is not a proper site for such a Tower. Chapter 18.13 permits location of a tower in a public park if certain criteria are met which this Applicant has met. 10. The requested conditional use permit should be maintained subject to the conditions set forth below. DECISION 1. The Land Use and Development Commission, pursuant to the foregoing, finds that the request of the applicant should be approved. 2. The following conditions, if any, are hereby imposed upon the granting of said conditional use permit and applicant, by taking advantage of said conditional use permit agrees to the imposition of the same: A. The request waiver for setbacks is justified. B. The Landscaping, fence and screening shall comply with the City Code. C. The Applicant shall provide the required Historical documentation (NEPA/SHOP) results. D. The emergency power generator, if/when installed, shall be tested only between the hours of 9:00 a.m. until 4:00 p.m., Monday through Friday, and the noise level shall not exceed 65 dB at the closest boundary. E. The Tower Owner shall attest that all feed lines for this installation including collocation feed lines and all future installations shall be concealed inside the spine of the support structure (tower). 3. The conditional use permit requested by the Applicant is granted, subject to the foregoing conditions. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 4 chubbuck050I I5 I mobile ffel.wpd 4. The time to appeal this decision begins as of the date of the hearing, April 14, 2015, and the affirmative vote by the Commission to grant the permit, with conditions. 5. Takings. Pursuant to Idaho Code § 67-8001 et seq., the Commission makes the following findings with respect to the decision in this action: A. This Action does not result in a permanent or temporary physical occupation of private property. B. This Action does not require the property owner to dedicate a portion of the property or to grant an easement. C. This Action does not deprive the owner of the property of all viable uses of the property. D. This Action does not have a significant impact on the landowner's economic interest. E. This Action does not deny a fundamental attribute of ownership. F. This Action does not serve the same purpose that would be served by directly prohibiting the use or action; nor does the condition imposed substantially advance such purpose. Adopted the day of May, 2015 as the findings of fact and conclusions of law of the Land Use and Development Commission. Y: erk FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 5 chubbuck0501 IS t mobile ffel.wpd CITY OF CFIUBBUCK LAND USE AND DEVELOPMENT COMMISSION FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This matter having come before the Commission for public hearing pursuant to public notice as required by law, on November 12, 2014, upon the application of T Mobile (hereinafter referred to as "applicant') for a conditional use permit to place a 80 ft cell tower on the grounds at Chubbuck Elementary School on the real property located at 600 West Chastain Drive and the Commission having heard testimony from interested parties and being fully advised in the matter, now makes the following: FINDINGS OF FACT 1. Applicant has applied for a conditional use permit as particularly described above. 2. All legal requirements for notice of public hearing have been met. 3. The property in question is zoned R-2 Limited Residential pursuant to the Land Use Ordinance of the City of Chubbuck. 4. The property is designated as Medium Density in the duly adopted Comprehensive Plan of the City of Chubbuck. 5. Relevant criteria and standards for consideration of this application are set forth in Idaho Code section 67-6512 and in Chubbuck Code section 18.28.040 (C). 6. The facts relevant to an evaluation of the relevant criteria and standards are as follows: A. Chapter 18.13 of the City Code regulates Wireless Communications Facilities and state as its purpose to: "These standards were developed to protect the public health, safety, and welfare, to protect property values and minimize visual impact while furthering the development of enhanced telecommunication services in the city." B. This site complies with Code section 18.13.080 on site selection Priority because Applicant has demonstrated sites for collocation were not viable and this site on Public Property FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1 chubbuck 120314 t mobile ffcl.rtf that borders a commercial use (Hawthorne Animal Hospital) has the least impact on residential areas. Of the other sites considered, Stuart Park and the Hawthorne Animal Hospital property, the Chubbuck School site was the best fit for the Applicant's needs. No other appropriate location in a non-residential zone is available. C. Applicant's use will further the development of enhanced telecommunication services in the city by eliminating a wide area of poor coverage for this wireless provider. D. While other providers of wireless service provide coverage to this area, Chubbuck Code Section 18.13.010 A indicates: "This chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services." E. In accordance with City Code 18.13.120, the proposed 80 ft tower in a Residential zone requires a Conditional Use Permit. F. This site is needed by Applicant to provide reliable service to Customers as shown by Applicant's coverage maps. G. The proposed Tower will be an 80 ft monopole with flush mount antennas, similar to other towers in the City which have posed no problem to public safety. Applicant, by flush mounting the antennae, has mitigated the visual impact of the tower. H. The Cell site would be surrounded with a chain link fence. Applicant's landlord, School District No. 25 has stated a preference for chain link for visibility of intruders. I. Ground equipment would be contained in an enclosure. J. 100% of tower height setback from adjoining property was not met but this is mitigated by the distance to any structures on this property which is a commercial use. K. Applicant will maintain compliance with FCC RF emission standards. BASED UPON THE FOREGOING FINDINGS OF FACT. the Land Use and Development Commission hereby enters the following: CONCLUSIONS OF LAW 1. The use for which the permit is sought will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 2 chubbuck 120314 t mobile ffcl.rtf 2. The permit sought will not produce an adverse impact on the economic values of adjacent properties. 3. The permit sought will not produce a negative impact on transportation facilities, public utilities, schools, public parks, or the natural environment any greater than had the strict terms of the Land Use Ordinance been complied followed. 4. The noise and traffic conditions generated by the use for which the permit is sought, when analyzed in conjunction with the noise and traffic conditions now existing does not indicate that the permit should be denied. 5. The use for which the permit is sought shall not work an unreasonable hardship upon surrounding property owners by virtue of its physical natures or by the impact of changes made in the landscape of the land. 6. On balance, while recognizing the aesthetic qualities of the proposed use in comparison with the aesthetic qualities of the surrounding lands and recognizing the purpose of furthering the development of enhanced telecommunication services in the city, the aesthetic conflict has been minimized by siting on a large public area bordering a commercial use and using flush mount antennae. 7. The adverse impact of the proposed use on other development within the City has not been minimized by Applicant as much as is reasonably possible. 8. Owners of adjacent property have not expressed approval of the issuance of the requested conditional use permit. 10. The requested conditional use permit should be maintained subject to the conditions set forth below. DECISION 1. The Land Use and Development Commission, pursuant to the foregoing, finds that the request of the applicant should be approved. 2. The following conditions, if any, are hereby imposed upon the granting of said conditional use permit and applicant, by taking advantage of said conditional use permit agrees to the imposition of the same: FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 3 chubbuck 120314 t mobile ffcl.rtf A. Apply 80' set back condition that will move playground and other permanent structures away from the base of the tower. The height of the tower will be the radius B. Landscaping requirement as outlined in city code be met in the design criteria, including a 8' chain link fence. 3. The conditional use permit requested by the Applicant is granted, subject to the foregoing conditions. 4. Takings. Pursuant to Idaho Code § 67-8001 et seq., the Commission makes the following findings with respect to the decision in this action: A. This Action does not result in a permanent or temporary physical occupation of private property. B. This Action does not require the property owner to dedicate a portion of the property or to grant an easement. C. This Action does not deprive the owner of the property of all viable uses of the property. D. This Action does not have a significant impact on the landowner's economic interest. E. This Action does not deny a fundamental attribute of ownership. F. This Action does not serve the same purpose that would be served by directly prohibiting the use or action; nor does the condition imposed substantially advance such purpose. Adopted the I day of December, 2014 as the findings of fact and conclusions of law of the Land Use and Development CommissiogK --\ FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 4 chubbuck 120314 t mobile ffcl.rtf CITY OF CHUBBUCK CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This matter comes before the City Council on appeals filed in objection to the Land Use and Development Commission decision on April 14, 2015 granting the application of T Mobile (hereinafter referred to as "Applicant") for a conditional use permit to place an 80 ft cell tower on the grounds of Stuart Park on the real property located at 5161 Stuart Avenue. The Council reviewed the Commission's findings of facts and conclusions of law, and having heard and reviewed testimony from the appealing parties and the Applicant, and being fully advised, now makes the following: FINDINGS OF FACT 1. Applicant applied for a conditional use permit as particularly described above. 2. All legal requirements for notice of public hearing were met. 3. The property in question is zoned R-2 Limited Residential pursuant to the Land Use Ordinance of the City of Chubbuck. 4. The property is designated as Medium Density in the duly adopted Comprehensive Plan of the City of Chubbuck. 5. Appeals were filed by the following individuals whose attendance at the hearing of the appeals before the City Council is noted: A. Suzanne Peck - not in attendance B. Steve and Camille Gannon and Family - not in attendance C. Dana Denning - not in attendance D. Eliza Payne - not in attendance E. Bree Lufkin - not in attendance F. Emily Wright - not in attendance G. Holly Lambson - not in attendance H. Jeremy Lambson - not in attendance Roger and Earlene Porter - Earlene Porter declined to comment. Kjerstin Lind - not in attendance FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1 chubbuck 061015 I mobile ffcl.wpd Roger Porter argued his appeal before the Council. 6. Relevant criteria and standards for consideration of this application are set forth in Idaho Code section 67-6512 and in Chubbuck Code section 18.28.040 (C) and Chapter 18.13. 7. The facts relevant to an evaluation of the relevant criteria and standards are as follows: A. Chapter 18.13 of the City Code regulates Wireless Communications Facilities and state as its purpose: "These standards were developed to protect the public health, safety, and welfare, to protect property values and minimize visual impact while furthering the development of enhanced telecommunication services in the city." B. This site complies with Chubbuck Municipal Code Section 18.13.080 on site selection Priority because Applicant has demonstrated sites for collocation were not viable and this site on Public Property has the least impact on residential areas. Of the other sites considered, the approval of the Chubbuck Elementary site was denied by the City Council. Given the lack of alternative sites, this site in Stuart Park is the best fit for Applicant's needs. The third -party review by Cityscape concluded the four existing towers nearest to the proposed site were justified in being eliminated from Applicant's consideration. Co -location on any existing tower will not fit the Applicant's needs to eliminate the gap in coverage. This site additionally has priority under Chubbuck Municipal Code Section 18.13.0890 as a use on public property since it is owned by the City of Chubbuck and thus has first priority for siting on public property. C. Applicant's use will further the development of enhanced telecommunication services in the city by eliminating a wide area of poor coverage for this wireless provider. D. While other providers of wireless service provide coverage to this area, Chubbuck Code Section 18.13.010 A indicates: "This chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services." E. In accordance with City Code 18. 13.120 , the proposed 80 ft tower in a Residential zone requires a Conditional Use Permit. F. This site is needed by Applicant to provide reliable service to Customers as shown by Applicant's coverage maps and will close a gap in coverage. G. The proposed Tower will be an 80 ft monopole with flush mount antennas, similar to other towers in the City which have posed no threat to public safety. Applicant, by flush FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 2 Chubbuck 061015 t mobile ffcl.wpd mounting the antennae, has mitigated the visual impact of the tower. H. The Cell site would be surrounded by a fence. I. Ground equipment would be contained in an enclosure. J. 100% of tower height setback from adjoining property is not met but this is mitigated by the distance to any structures on this property and the need to locate the tower in this isolated corner of the park so as to minimize interference with other uses of the park. K. Applicant will maintain compliance with FCC RF emission standards. L. Pursuant to Chubbuck Municipal Code §18-13.090, the special requirement for parks are met by Applicant on the following basis: The Applicant has demonstrated to the satisfaction of the City that visual impacts have been mitigated to the fullest extent reasonably possible and that accommodations have been included in the design and placement so that there would be no disruption of normal public use of the park. Specifically locating the tower in the far northwest corner of the park will have the least impact to park users. 2. The Applicant has clearly demonstrated that placement of the facility in a public park is necessary for the effective operation of Applicant's services and for the elimination of Applicant's coverage gap. Applicant indicates alternative placement is not possible and such has been confirmed by an independent third - party review by Cityscape which was requested by the City. M. The third -party review by CityScape agreed with the elimination of the nearest four towers as alternate sites for placement and collocation and further concluded that the selected location in Stuart Park was compliant with the hierarchy [for location of cell towers] as defined in the City's ordinance. N. CityScape and its third -party review determined, after consideration of the technical specifications of the submitted application, that, with the exception of the landscaping and setbacks, the application was compliant with the requirements and the City's ordinance and CityScape recommended approval of the application with certain suggested conditions. BASED UPON THE FOREGOING FINDINGS OF FACT, the City Council hereby enters the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 3 chubbuck 061015 t mobile ffcl.wpd CONCLUSIONS OF LAW 1. The use for which the permit is sought will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare. 2. No credible evidence has been submitted as to loss of economic value; the permit sought will not produce an adverse impact on the economic values of adjacent properties. 3. The permit sought will not produce a negative impact on transportation facilities, public utilities, schools, public parks, or the natural environment. 4. The noise and traffic conditions generated by the use for which the permit is sought, when analyzed in conjunction with the noise and traffic conditions now existing does not indicate that the permit should be denied. 5. The use for which the permit is sought shall not work an unreasonable hardship upon surrounding property owners by virtue of its physical natures or by the impact of changes made in the landscape of the land. 6. On balance, while recognizing the aesthetic qualities of the proposed use in comparison with the aesthetic qualities of the surrounding lands and recognizing the purpose of furthering the development of enhanced telecommunication services in the city, the aesthetic conflict has been minimized by siting in a public park adjacent to an arterial street with a church and public library across the street and by using flush mount antennae. 7. The adverse impact of the proposed use on other development within the City has been minimized by Applicant as much as is reasonably possible. S. Owners of adjacent property have not expressed approval of the issuance of the requested conditional use permit and are opposed to this permit, primarily on the grounds that a park is not a proper site for such a Tower. Chapter 18.13 permits location of a tower in a public park if certain criteria are met which this Applicant has met. BASED UPON THE FOREGOING FINDINGS OF FACT, the City Council hereby enters the following: DECISION 1. The City Council, pursuant to the foregoing, finds that the request of the applicant should be approved and the appeals denied. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 4 chubbuck 06 10 15 t mobile ffcl.wpd 2. The following conditions imposed by the Land Use and Development Commission are sustained but modified and are hereby imposed upon the granting of said conditional use permit and applicant, by taking advantage of said conditional use permit agrees to the imposition of the same: A. The request waiver for setbacks is justified. B. The landscaping, fence and screening shall comply with the City Code, but the fence shall be eight feet (8) in height and be brick in nature. C. The Applicant shall provide the required Historical documentation (NEPA/SHOP) results. D. The emergency power generator, if/when installed, shall be tested only between the hours of 9:00 a.m. until 4:00 p.m., Monday through Friday, and the noise level shall not exceed 65 dB at the closest boundary. E. The Tower Owner shall attest that all feed lines for this installation including collocation feed lines and all future installations shall be concealed inside the spine of the support structure (tower). 3. The conditional use permit requested by the Applicant is granted, subject to the foregoing conditions. 4. The time to appeal this decision begins as of the date of the hearing, May 20, 2015, and the affirmative vote by the Council to deny the appeals. 5. Takings. Pursuant to Idaho Code § 67-8001 et seq., the Council makes the following findings with respect to the decision in this action: A. This Action does not result in a permanent or temporary physical occupation of private property. B. This Action does not require the property owner to dedicate a portion of the property or to grant an easement. C. This Action does not deprive the owner of the property of all viable uses of the property. D. This Action does not have a significant impact on the landowner's economic interest. E. This Action does not deny a fundamental attribute of ownership. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 5 chubbuck 061015 1 mobile fel.wpd F. This Action does not serve the same purpose that would be served by directly prohibiting the use or action; nor does the condition imposed substantially advance such purpose. Adopted the L day of June, 2015 as the findings of fact and conclusions of law of the Chubbuck City Council. Richard Morgan, City Clerk FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 6 chubbuck 061015 t mobile Ercl.wpd CITY OF CHUBBUCK CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This matter comes before the City Council on appeals filed in objection to the Land Use and Development Commission decision on April 14, 2015 granting the application of T Mobile (hereinafter referred to as "Applicant") fora conditional use permit to place an 80 It cell tower on the grounds of Stuart Park on the real property located at 5161 Stuart Avenue. The Council reviewed the Commission's findings of facts and conclusions of law, and having heard and reviewed testimony from the appealing parties and the Applicant, and being fully advised, now makes the following: FINDINGS OF FACT 1. Applicant applied for a conditional use permit as particularly described above. 2. All legal requirements for notice of public hearing were met. 3. The property in question is zoned R-2 Limited Residential pursuant to the Land Use Ordinance of the City of Chubbuck. 4. The property is designated as Medium Density in the duly adopted Comprehensive Plan of the City of Chubbuck. 5. Appeals were filed by the following individuals whose attendance at the hearing of the appeals before the City Council is noted: A. Suzanne Peck - not in attendance B. Steve and Camille Gannon and Family - not in attendance C. Dana Denning - not in attendance D. Eliza Payne - not in attendance E. Bree Lufkin - not in attendance F. Emily Wright - not in attendance G. Holly Lambson - not in attendance H. Jeremy Lambson - not in attendance I. Roger and Earlenc Porter - Earlene Porter declined to continent. J. Kjerstin Lind - not in attendance FINDINGS OF PACT AND CONCLUSIONS OF LAW - Pap 1 chubbuck 061015 I mobile nbl.wpd Roger Porter argued his appeal before the Council. 6. Relevant criteria and standards for consideration of this application are set forth in Idaho Code section 67-6512 and in Chubbuck Code section 18.28.040 (C) and Chapter 18.13. 7. The facts relevant to an evaluation of the relevant criteria and standards are as follows: A. Chapter 18.13 of the City Code regulates Wireless Communications Facilities and state as its purpose: "These standards were developed to protect the public health, safety, and welfare, to protect property values and minimize visual impact while furthering the development of enhanced tclecommunicatioil services in the city." B. This site complies with Chubbuck Municipal Code Section 18.13.080 on site selection Priority because Applicant has demonstrated sites for collocation were not viable and this site on Public Property has the least impact on residential areas. Of the other sites considered, the approval of the Chubbuck Elementary site was denied by the City Council. Given the lack of alternative sites, this site in Stuart Park is the best fit for Applicant's needs. The third -party review by CityScape concluded the four existing towers nearest to the proposed site were justified in being eliminated from Applicant's consideration. Co -location on any existing tower will not fit the Applicant's needs to eliminate the gap in coverage. This site additionally has priority under Chubbuck Municipal Code Section 18.13.0890 as a use on public property since it is owned by tine City Of Chubbuck and thus has first priority for siting on public property. C. Applicant's use will further the development of enhanced telecommunication services in the city by eliminating a wide arca of poor coverage for this wireless provider. D. While other providers of wireless service provide coverage to this area, Chubbuck Code Section 18.13.0 10 A indicates: "This chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services." E. In accordance with City Code 18, 13.120 , the proposed 80 ft tower in a Residential zone requires a Conditional Use Permit. F. This site is needed by Applicant to provide reliable service to Customers as shown by Applicant's coverage maps and will close a gap in coverage. G. The proposed Tower will be an 80 ft monopole with flush mount antennas, similar to other towers in the City which have posed no threat to public safety. Applicant, by flush FINDINGS OF FAc'r AND CONCLUSIONS OF LAW - Page 2 chubbud 061015 t mobile ffcl.wpd mounting the antennae, has mitigated the visual impact of the tower. H. The Cell site would be surrounded by a fence. 1. Ground equipment would be contained in an enclosure. J. 100% of tower height set back from adjoining property is not met but this is mitigated by the distance to any structures on this property and the need to locate the tower in this isolated corner of the park so as to minimize interference with other uses of the park. K. Applicant will maintain compliance with FCC RF emission standards. L. Pursuant to Chubbuck Municipal Code § 18-13.090, the special requirement for parks are met by Applicant on the following basis: 1. The Applicant has demonstrated to the satisfaction of the City that visual impacts have been mitigated to the fullest extent reasonably possible and that accommodations have been included in the design and placement so that there would be no disruption of normal public use of the park. Specifically locating the tower in the far northwest corner of the park will have the least impact to park users. 2. The Applicant has clearly demonstrated that placement of the facility in a public park is necessary for the effective operation of Applicant's services and for the elimination of Applicant's coverage gap. Applicant indicates alternative placement is not possible and such has been confirmed by an independent third - party review by CityScape which was requested by the City. M. The third -party review by CityScape agreed with the elimination of the nearest four towers as alternate sites for placement and collocation and further concluded that the selected location in Stuart Park was compliant with the hierarchy [for location of cell towers] as defined in the City's ordinance. N. CityScape and its third -parry review determined, after consideration of the technical specifications of the submitted application, that, with the exception of the landscaping and setbacks, the application was compliant with the requirements and the City's ordinance and CityScape recommended approval of the application with certain suggested conditions. BASED UPON THE FOREGOING FINDINGS OF FACT, the City Council hereby enters the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 3 cheated 061015 1 mobile frcl.wpd CONCLUSIONS OF LAW I. The use for which the permit is sought will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare. 2. No credible evidence has been submitted as to loss of economic value; the permit sought will not produce an adverse impact on the economic values of adjacent properties. 3. The permit sought will not produce a negative impact on transportation facilities, public utilities, schools, public parks, or the natural environment. 4. The noise and traffic conditions generated by the use for which the permit is sought, when analyzed in conjunction with the noise and traffic conditions now existing does not indicate that the permit should be denied. 5. The use for which the permit is sought shall not work an unreasonable hardship upon surrounding property owners by virtue of its physical natures or by the impact of changes made in the landscape of the land. 6. On balance, while recognizing the aesthetic qualities of the proposed use in comparison with the aesthetic qualities of the surrounding lands and recognizing the purpose of furthering the development of enhanced telecommunication services in the city, the aesthetic conflict has been minimized by siting in a public park adjacent to an arterial street with a church and public library across the street and by using flush mount antennae. 7. The adverse impact of the proposed use on other development within the City has been minimized by Applicant as much as is reasonably possible. 8. Owners of adjacent property have not expressed approval of the issuance of the requested conditional use permit and are opposed to this permit, primarily on the grounds that a park is not a proper site for such a Tower. Chapter 18.13 permits location of a tower in a public park if certain criteria are met which this Applicant has met. BASED UPON THE FOREGOING FINDINGS OF FACT, the City Council hereby enters the following: DECISION I. The City Council, pursuant to the foregoing, finds that the request of the applicant should be approved and the appeals denied. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Puge 4 chubbuck 061015 t mobile ffd.wpd 2. The following conditions imposed by the Land Use and Development Commission are sustained but modified and are hereby imposed upon the granting of said conditional use permit and applicant, by taking advantage of said conditional use permit agrees to the imposition of the same: A. The request waiver for setbacks is justified. B. The landscaping, fence and screening shall comply with the City Code, but the fence shall be eight feet (8') in height and be brick in nature. C. The Applicant shall provide the required Historical documentation (NEPA/SHOP) results. D. The emergency power generator, if/when installed, shall be tested only between the hours of 9:00 a.m. until 4:00 p.m., Monday through Friday, and the noise level shall not exceed 65 dB at the closest boundary. E. The Tower Owner shall attest that all feed lines for this installation including collocation feed lines and all future installations shall be concealed inside the spine of the support structure (tower). 3. The conditional use permit requested by the Applicant is granted, subject to the foregoing conditions. 4. The time to appeal this decision begins as of the date of the hearing, May 20, 2015, arid the affirmative vote by the Council to deny the appeals. 5. Takings. Pursuant to Idaho Code § 67-8001 ct seq., the Council makes the following findings with respect to the decision in this action: A. This Action does not result in a permanent or temporary physical occupation of private property. B. This Action does not require the property owner to dedicate a portion of the property or to grant an easement. C. This Action does not deprive the owner of the property of all viable uses of the property. D. This Action (foes not have a significant impact on the landowner's economic interest. E. This Action does not deny a fundamental attribute of ownership. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 5 chubbuck 061015 t mobile ffcl.wpd This Action does not serve the same purpose that Would be served by directly prohibiting the use or action; nor does the condition imposed substantially advance such purpose. Adopted the _ day of June, 2015 as the findings of fact and conclusions of law of the Chubbuck City Council. By: FINDINGS OF FAC "1' AND CONCLUSIONS OF LAW - Page 6 chubbuck 06 [015 (mobile ncl.wpd Richard Morgan, City Clerk