HomeMy WebLinkAbout06/17/2003 MINUTESMinutes for Approval of
Planning Commission Meeting
June 17, 2003
I. Call to Order
The meeting was called to order by Commissioner Kennedy at 5:35 p.m.
II. Roll Call
Those present were: Commissioner Buckingham, Commissioner Kosusko, Commissioner Nelson,
Commissioner Wood and Commissioner Kennedy. Quorum certified.
III. Approval of Agenda
Commissioner Kennedy introduced the agenda. Mr. Hugo requested a revision to the agenda under
the public meeting phase — switch la and lb, due to the fact that lead staff was briefing the City
Council. A motion was made by Commissioner Kosusko and seconded by Commissioner
Buckingham to approve the agenda as revised. Called for a vote: Buckingham: yes; Kosusko: yes;
Nelson: yes; Wood: yes; and Kennedy: yes. Agenda approved as revised.
IV. Approval of Minutes
The Regular Meeting of May 20, 2003, minutes were presented for approval by Commissioner
Kennedy. A motion was made by Commissioner Nelson and seconded by Commissioner Wood
to approve the minutes as written. Called for a vote: Buckingham: yes; Kosusko: yes; Nelson: yes;
Wood: yes and Kennedy; abstained. Minutes approved as written.
V. Public Meeting
Commissioner Kennedy moved directly to the call to the public portion.
A. Call to the Public (public comments on any item not on tonight's agenda). Seeing no
comments from the public, Commissioner Kennedy closed this portion of the meeting and
moved onto the public meeting portion.
B. Public Meeting
Public Hearing: [Commentary notes are enclosed in brackets.]
a. PL03 -0018 — An ordinance amending Section 21.02.230 and Section 17.04.060(e) of
Bremerton Municipal Code relating to fence height regulations and permit
requirements. Commissioner Kennedy introduced this item and turned the meeting
over to staff, Mr. Hugo.
Planning Commission Meeting June 17, 2003 Page 1 of 25
Mr. Hugo presented the staff report. He stated that the Commissioners had some
background on this previously. This proposal is being brought in an attempt to correct
some deficiencies of the fence regulations that are causing difficulty with compliance.
There are also some issues of potential inequities and problems with property entries s
that are not addressed in the code. The largest problem is that there are too many
fence installations in the city that violate our standards for fences. This is despite the
fact that over a year ago, staff sent out an appeal to all fence contractors in the area
with a copy of all the cities regulations. We asked for their cooperation in all
installations and that they adhere to the city's standards. We asked them to advise
their clients that there are standards and that they, the contractors, cannot do whatever
the client wishes — if it doesn't comply with the city's standards. Unfortunately that
appeal has not been respected. Some of the companies that we ensured received the
letter continue to install new fences that violate the code.
The biggest issue is with height. The code is written around a very traditional, friendly
neighborhood concept of fences. Higher fences are appropriate in back yards where
there is a desire for privacy. But in front yards, we still hold to the notion of openness
and having light and air come into our big picture windows and the front of our homes.
Front yards then are limited to fences of no higher than three feet if they are solid and
no higher than 42 inches it is a chain link fence. However, all over the city we see
fences that are being built up to six feet and sometimes even higher, regardless of
these limitations.
In this proposal, you have a draft of the ordinance. The working draft did not get put
into a hearing draft that would reflect some of the comments made by the Commission
during the workshop on this item. The major changes to our ordinance, comes in two
areas.
The first is in 21.02.230, which lays out the dimensional standards for fences. There is
a revised requirement in Section (b) that now limits the granting of a Type III Special
Use Permit (SUP) for higher fences to side and rear yards. It also lays out a set of
criteria, the first of which is that the fence or wall has to be shown necessary to
provide privacy or security between a residential and a non - residential use.
We have had people who wanted to put up an eight foot fence in the back yard just to
get better separation from their neighbors. Perhaps the thinking is that maybe if a
higher fence (greater than six feet) is warranted that it should be to provide safety and
security from a non - residential use. We should not be walling off the whole
neighborhood with fortress -like, eight foot high fences. The Type III SUP is still
available, but only in side and rear yards and it is only allowed if we are shielding
between residential and non - residential use.
The second area of change is in the design of the fence. The design will present a
finished appearance on its outside face. We don't define finish. This is being
proposed as a Type III. Mr. Hugo recommended that we keep it as a Type III. He said
that this type of application should face a very high level of review. It shouldn't be
anything that our staff reviews. It should go through an open, public review process
where neighbors can comment on it. Part of that comment could be directed at the
visual appearance of the fence. Will it be a neighbor- friendly fence? The hearing
examiner should make the determination because of the variety of materials and styles
Planning Commission Meeting June 17, 2003 Page 2 of 25
of fences. Mr. Hugo thinks it would be very difficult to predefine this. However, the
hearing examiner, based on experience, public comments and submittal of fence
design could determine if an applicant has shown a good finished side of the fence to
your neighbor or not. Mr. Hugo said that the City Attorney had reviewed this
language and had no problems with it (finish) being an undefined term. So, he was not
recommending any changes to this portion of the code.
The third point is that an additional fence or wall height shall not detract from adjacent
residential property owners' use and enjoyment of their property. This could be
approached several ways. We could require property owners in the neighborhood to
sign off on the proposal, giving their approval. He said that he didn't like that
approach because you never know who the next property owners might be. People sell
their homes. It should not be something that is voted on by the current community or
the current profile of the community. It should be something that is found to be
acceptable in long duration. To do that, people in the neighborhood should comment.
The hearing examiner has to listen to those comments and decide if, over time, the
people change is it likely to reflect the same type of comments that future neighbors
will have. If they do, is this (eight foot fence) something that is really necessary? He
said that the public comment and the hearing examiner reflecting on that comment is a
judicious way to deal with the potential impact or consequence of higher fences.
Mr. Hugo referred the group to Section (f). This section is where we note that some
people put nice architectural features into their entries such as trellises or entry gates.
This ordinance now provides for that. He read directly from the draft ordinance:
"... architectural appurtenances such as trellises or entry gates to define a walkway or
driveway entry are allowed in a front yard up to 90" high, provided that no individual
structural support for such features shall be more than 12" square in section, any gate
shall not obscure more than 20% of visibility to the yard as viewed perpendicular to
the gate's installation and iii) any entry feature greater than three feet in height shall
not be more than sixteen feet wide for driveway entry."
Ninety inches is not what you had during the workshop. It was 84" or seven feet. He
said he bumped it up to seven and a half feet. He then mentioned that he had looked at
some garden magazines and that the majority of the trellises were seven feet, some
were higher. The standards for the entry way and drive way (iii) was actually tested
out on a couple of our compliance cases — these are comfortable standards for what
you would expect on a normal installation.
He then moved on to Section 2. This section sets up the conditions for requiring a
building permit for most fences. The only fences that will be exempt from the
requirements of a building permit are fences not more than two feet high or fences that
are temporary for construction fences. The temporary fences on construction projects
tend to be put there for security and public safety. They are protecting deep wholes on
the site, dangerous equipment, potential exposure to electrical, etc — these fences need
to be over six feet high, just to keep people who don't have a right to be on the
property off the site when it's not occupied. The only thing that is really critical in this
section is under (2)(e), which reads:
Planning Commission Meeting June 17, 2003 Page 3 of 25
"Work Exempt from Permit" A building permit shall not be required for the following:
.....2) Fences a) not exceeding 2 feet in height, and b) fences not exceeding eight feet
in height installed on a temporary basis, such as construction site fences, for a period
not exceeding 12 months."
If someone needed something beyond that (12 months), they could come in and ask for
an extension. Extensions are common practice for all kinds of permits in our
department. So if we have a major project, like our downtown projects that may take
18 months, we can accommodate that. He said this concluded the staff report and
asked if there were any questions.
Commissioner Kennedy asked if the Commission had any questions for Mr. Hugo.
Commissioner Wood asked what happens when a person is half -way through a fence
project that is non - compliant. She spoke of a specific project on Pacific Avenue. Mr.
Hugo answered by saying that if the department sees work going on that is out of
compliance, even if it is a fence, we will stop -work it. We do it as quickly as we can
because we can save the property owner money if we catch it early. This is one of the
reasons for the building permit requirement. The requirement for a building permit
allows us to stop and measure any fence activity we see to determine if there is an
issue or permit requirement. If it is a construction fence that is not over eight feet,
there is not a permit issue and not a compliance issue. Anything else, our field people
can do a quick check and confirm that there is a building permit. If they don't have a
building permit, then it is a stop -work immediately. Then they will have to come in
and submit plans. The plans would have to be checked off as compliant and from that
point on, they are directed down a safe path for them and a compliant path for us. In
time, with enough public notice and public education, we will hope that most people
will just come to our office, review their plans, pay their $50.00 permit fee and get
started off correctly. The fee will be nominal, not much more than $50.00.
Commissioner Kosusko asked if this was basically a bigger stick, an easier way to
identify fences that are out of compliance. Mr. Hugo said yes, and that it also gets the
contractors in the mode of working through a process. In business the typical contract
will state that the contractor is responsible for securing all approvals and permits. That
way, if we go back to the property owner about a fence that is out of compliance, the
owner has recourse against the contractor. Contractors will not suffer too many of
those setbacks before they all start following the rules. He believes this ordinance will
be an effective tool to get us fence installations that are in compliance. Over time, it
should reduce trauma in the community and reduce our workload for compliance.
Commissioner Kennedy asked a question about the three foot maximum in the front
yard. Why was the height a foot taller for cyclone fences? Mr. Hugo stated that in
the current code it is six inches taller for cyclone fences. The reason is that they don't
make 42 inch cyclone fence as a standard. They do make 48 inches. This is a policy
call for the Planning Commission and the City Council. We put 48 inches in so that if
someone says that three feet isn't tall enough to safeguard my child or keep my dog in
the yard, they have the option of putting in a 48 inch cyclone fence. Forty -eight
inches should keep in most smaller dogs and children. Strictly a reference to the
safety issue, but there are aesthetic impact and if you don't think that is the right trade-
off, go back to something else. Commissioner Kennedy stated that she thought it
Planning Commission Meeting June 17, 2003 Page 4 of 25
would be nice to have that front height be the same for whatever kind of fence you put
up. There was a short discussion about the visual impact of cyclone fences and the
safety issue of small children and pets. Mr. Hugo stated that when he briefed the City
Council about this issue, they were not very sympathetic to increasing anything. There
were proponents on both sides of the 42 inch versus 48 inch cyclone fence issue as
well.
Commissioner Buckingham asked if there the 48 inches is the only standard height
for cyclone fences or is there a standard 36 inch standard. Mr. Hugo said that he
believes there is a 36 inch standard. Commissioner Buckingham then stated that this
would not create an undue burden on people wanting to build fences if it were lowered
to the 36 inch. Mr. Hugo agreed.
Commissioner Kosusko stated that during the workshop they discussed conditions for
fences on top of retaining walls or bulkheads. Where the measurement is taken? If the
retaining wall is over 30 inches, the fence need to be almost guardrail height. Mr.
Hugo said that yes, they had discussed that issue. He said that this is almost a bigger
issue than we have the ability to take on right now. The Commission will need to
come back to it. This is one of those gray areas in the code that needs some definition.
He said that the staff will need to go out and look at some of the contextual examples
that the Commission provided and come up with some ways that we can discuss it in
the code that makes sense. Commissioner Kosusko asked how he thought this would
be applied right now. Mr. Hugo said it would applied on a case by case basis and as
consistent as possible.
Commissioner Buckingham asked about Section (2)(e)(2)(a). Work exempt from
permits, fences not exceeding two feet in height. He asked how this height was
determined. Mr. Hugo stated that up to two feet could be like a little picket fence. If
someone is doing that around their front yard, we would have no interest in that at all.
It would be entirely decorative, cannot possible get in the way of views, and if one of
our field people sees one of those going up, we won't worry about it. Now, if it goes
up to about 30 inches, someone on our staff may show up to measure it and ask if there
is a permit.
Commissioner Buckingham asked if there was an idea of what the `nominal fee' for
the building permit would be. Mr. Hugo said that he had mentioned $50.00 (about
one hour work of staff time), which would be enough that the public would be
compensated just for the permit recordkeeping. It would be a simple permitting
process, but we would at least look at the plans and make sure that there are no
violations regarding setbacks. We would look at a simple site plan and pay attention
to it out in the field.
Commissioner Nelson asked a question regarding community education. He wanted
to know if we were creating any brochures or special documents to share with people.
Mr. Hugo said that we do have brochures. He feels this is a community paradigm.
People have seen folks build fences any way they wanted to for 50 years and believe
this is normal business. So they are not inclined to come in and find out what the rules
are, particularly if their fence contractor who ignores all the rules — which seems to be
the model here. He spoke of one particular fence contractor who continues to violate
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the rules. This upsets him since he wrote them a personal letter and asked them to stop
doing it. They don't seem to care.
Commissioner Nelson said that he didn't see the issue of fence heights on busy streets
or arterials being dealt with in this draft ordinance. Mr. Hugo said that this concept is
one that he finds some favor with because he drafted something like that about ten
years ago, for another city. It was adopted. He has looked at it again and said that it
probably would not work in Bremerton.
The idea was to look at our high volume, vehicular arterials like 11 Street, coming
down towards Warren Avenue. Warren is a State travel route through the City.
Allowing people who have residential properties along that street to build a higher
fence to give them some screening from noise, litter, and high visibility of all the
strangers going past their front yard. He discussed this with the City Council and they
did not find favor with it. He said that he would not want to bring something forward
that he believes will be "dead on arrival" when it comes from the Commission. Mr.
Hugo stated that the Commission could bring it back up and put it in but that it was his
clear direction from the City Council that the idea of higher fences being allowed for
noise buffers would not fly.
When he reviewed the conditions included in the other city's ordinance, he doesn't
think it could work here because of the environments that it dealt with were fairly
degraded environments today. The kind of fence you would have been required to
build in that other city probably would not have been built by anyone. The fences had
to be solid or articulated with breaks in the fence, landscaping on the outside of the
fence within those setbacks — it would have been a very expensive fence. Then the
condition under which you could have that fence: you still had to have the ability to
come out of your driveway and have enough distance to see up and down the sidewalk
to make sure you weren't backing out and causing a pedestrian danger. There are rich
enough place where people would do it because they have the money and the need for
that degree of privacy. This problem is not addressed here; we haven't solved
anything; and this is something for the staff and the Commission to figure out. They
are bad environments.
Commissioner Nelson asked how we arrived at a $50.00 for the fee. He thought it
was a little high. Mr. Hugo stated that considering the cost of a cedar fence that he
doesn't think $50.00 is very much. People put thousands of dollars into fences and
spending $50.00 to get it right is money well spent. That is what we are there for to
make sure they get it right so that they don't have to back up. We have people doing
thousands of dollars worth of retro -fits on brand new fences. One guy down on Oyster
Bay got a five or six foot high fence all around their property and had to cut three feet
off of that, re -do the rails. When they are done it will be well over $1,000.00.
Without these changes, they would have had to take down about a $10,000.00 entry
gate. Fifty dollars is a pretty good deal. Mr. Hugo says that it is fairly generic. There
is probably 15 minutes of counter time; 15 minutes to check out the site plan; and then
there will be a little bit of field time to make sure, as part of the official inspections,
that everything is being done according to the plan.
Commissioner Kennedy asked if there were any further questions for Mr. Hugo.
Planning Commission Meeting June 17, 2003 Page 6 of 25
Commissioner Buckingham asked about the transition. If someone were in the
process of constructing a fence (that is conforming to the current code) when this
ordinance is adopted, how would they be affected? Mr. Hugo stated that if they are
conforming, we would not expect them to come in now and get a permit. This would
be from the date of adoption. From that date forward, anyone who embarks on any
activity would have to comply. Anyone in the process right now of building a non-
compliant fence, just like anyone else — we go out right now and stop -work them and
get them to undo what they have done.
Commissioner Kennedy opened the floor for public testimony.
Mr. Loui Mitchell of 2333 10 Street, Bremerton. He said that he was at juvenile
court today addressing this very issue. He said that he is a victim of malicious
mischief and has been for several years. Finally, witnessed and apprehended the
juvenile. The first instance, he got a quote from Viking Fence of $4,100.00. He said
that he also has a bulkhead property that was referred to. He said that they (Viking
Fence) did know the rules and regulations and quoted them to him.
Mr. Mitchell said that the reason he was interested in getting a fence was not to keep
juveniles out for future incidents, but to keep his dog in. The second backup was to
have a dog. On the street where he lives, there is lots of traffic that comes from
Callow Avenue and cuts off to points unknown.
He's had three trees broken off at the base after replacing them a second time. He has
had flowers and plants pulled out of his front yard property. He knows that a 3 -4 foot
fence is too little to preclude someone interested in doing damage. They did
apprehend a person who had a record. It continues and he said he didn't know if he
would get any compensation for the fence. Fences are expensive. Chain link fences
are cheap. He believes that the way this ordinance is written, it will encourage more
chain link fences. He thinks the motivation is dogs, on his street there is a ton of dogs.
When a dog barks, all the lights come on and everyone looks out of their windows. It
is not an inconvenience any more — it is a benefit to hear a dog bark in certain
neighborhoods.
He described it as fortuitous that he has had that recent experience and is at the
hearing. He said that he would need to keep at least a medium sized dog in his front
yard, which is his intent and reason for getting a quote from Viking Fence. Even
medium sized dogs are capable of jumping. Then he would have a liability. If the
highest fence that he could install would be a chain link fence — he would have to
weigh the unattractiveness of the chain link against comfort and security. He would
probably not put in the chain link and briefly described his home. He believes that
many people would go for the chain link fence which would actually increase what
you (PC) are trying to prevent.
Commissioner Kennedy then closed the public comment section and opened it back
up to the Commission.
Mr. Hugo said that he wanted to note that currently the 42" chain link height is in the
code. He has interpreted that to mean that it is okay to have a little bit higher fence as
long as you can see through it. We have had some applications in which people
Planning Commission Meeting June 17, 2003 Page 7 of 25
wanted to have a wood fence that was higher. He has told them they could not go
higher than three feet if the fence is solid. However, they could go to another six
inches with a top rail that is only supported every four feet or so. Still that top six
inches is as transparent as a two inch tube rail across the chain link fence. The only
reason for that distinction was one of transparency. So, if you go away from the 42
inches, it take away his ability for this interpretation allowing another six inches of
decorative wood -style top on a solid fence. He said he would do the same thing with
the 48 inch height chain link fence. However, it is easy at 42 inches and not so sure it
would be as easy at 48 inches.
There was a short discussion about the height, solid versus transparent, and definitions.
Commissioner Kosusko stated that we have to decide what is important. Is it more
important to have an aesthetic pleasing streetscape or that someone can have a barking
dog at the sidewalk barking at you when you walk by. He thinks that if everyone is
participating in their street front and it is attractive /inviting some of these issues of
vandalism start to go away. This, in his mind, is a more proactive way to handle it
rather than allowing someone to build a higher barrier.
After a short discussion the consensus of the group was that the maximum height
should be 36 inches, no matter what it is made of. This discussion included the desire
for a more "walkable" city as mentioned in the draft Comprehensive Plan and the
arterials and canyon like streetscapes.
Mr. Hugo stated that the SEPA Determination regarding this item will not be official
until two days hence. He asked the Commission to continue this item until the next
regularly schedule meeting and take final action one month from now. A non - project
DNS (Determination of Non - Significance) will be issued. There won't be any
substantive issues with SEPA. We didn't quite make the publication date so we need
this item continued.
Commissioner Kennedy closed the discussion on this item and asked for a motion. A
motion was made by Commissioner Buckingham and seconded by Commissioner
Kosusko to continue PL03 -0018 — An ordinance amending Section 21.02.230 and
Section 17.04.060(e) of the BMC relating to fence height regulations and permit
requirements — until the next regularly scheduled meeting (July 15, 2003). Called for
a vote: Buckingham: yes; Kosusko: yes; Nelson: yes; Wood: yes; and Kennedy: yes.
Motion carries.
b. PL03 -0027 — Consideration of an ordinance adding a new section 21.02.350 to the
Bremerton Municipal Code entitled "Wireless Telecommunications Facilities." The
proposed section would add siting standards and permitting process requirements for
the placement of wireless telecommunications facilities including antenna arrays on
existing structures and new "cell towers" within the City of Bremerton.
Commissioner Kennedy introduced this item and then turned the floor over to Mr.
Rogerson.
Planning Commission Meeting June 17, 2003 Page 8 of 25
Mr. Rogerson informed the group that he had just completed a City Council briefing
on this item a few minutes ago. He then reminded that Commission that this item is in
a tight schedule because we are responding to a moratorium.
Mr. Rogerson provided some background on this ordinance. In December of last year
this Planning Commission recommended that staff form a public process to develop
the ordinance. The City Council followed through in January, 2003, by instructing the
staff to implement the process. A citizen workgroup with a specific composition: two
(2) members of the Planning Commission; two (2) members of the coordinating
council [the group developing the Comprehensive Plan]; two (2) representatives from
the industry and two (2) at -large citizens. That group was formed and the members
from this Commission were Commissioner Buckingham and Commissioner Kosusko.
From the Coordinating Council we had John Hayes- Larson and Linda Streissguth.
The industry was represented officially by Steve Meadows of GTE. Steve warned us
ahead of time that he had other commitments and handed off industry representation
responsibilities to two other people: Kristina Park of Singular and Khris Conaxsis of
AT &T Wireless. There were two slots on the committee from the industry which was
shared during the course of the process by three people. These three people were
working as a consortium. The two at -large citizens were Loui Mitchell and Jane
Reese. We had good attendance — looking back at the records: Of the five meetings,
Commissioner Buckingham attended four; Commissioner Kosusko attended four or
five; Mr. Larson attended four or five; there was at least one industry representative at
every meeting; Loui Mitchell attended four of the five meetings; and Jane Reese
attended four of the five meetings. Dave Magnemat, Deputy Director of Cencom for
Kitsap County participated to ensure that we did not negatively impact emergency
communications with this ordinance.
Mr. Rogerson then read directly from the draft ordinance. The consensus of the group
was that this ordinance creates strong protection for neighborhoods. Not only through
the standards that it establishes but more importantly, through its incentive approach.
It creates incentives in process for locating facilities in locations that don't insult
residential neighborhoods; incentives for co- locations; and incentives for looking at
priority locations (not near neighborhoods).
There are processes in how easy it is to get a permit and what you need to do going
through the steps that point an applicant away from single family neighborhoods
consistently. There is an inherent set of incentives in this ordinance to move these
facilities away from neighborhoods, a strong set of submittal requirements and a long
list of submittal requirements. These requirements ask the industry to go through a
very strenuous effort to justify the need and location that they claim to need for one of
these facilities. The ordinance also creates a priority locations approach.
Mr. Rogerson then asked the Commission to refer to the draft ordinance and he started
through it section by section.
Subsection (d) — Permits Required. This section establishes which permit process a
particular type of wireless telecommunication project must go through. Smaller
projects, such as placing an antenna on an existing building or an antenna on an
existing tower in a non - residential zone — may be permitted through the least strenuous
permit process available, Type I Administrative process. This process is essentially
Planning Commission Meeting June 17, 2003 Page 9 of 25
over - the - counter. Decisions are made by the Director of Community Development
with minimal or no public notice required. It would be pretty easy for an applicant of
one of these low impact facilities to get a permit.
New Type I towers (60' or less in height) in a non - residential zone must go through a
Type II Administrative process. It is still administrative, where the decision is made
by the Director of Community Development, but now the process requires public
notice to adjacent property owners.
All Type I towers (60' or higher), where ever they are located and the smaller towers,
if they are in a residential zone have to go through the most strenuous permit process —
Type III permit process or a Special Use Permit process. This includes public hearing
and public notice both.
Mr. Rogerson stressed that fact that this hierarchy exists as an incentive approach to
getting these facilities to locate in the least intrusive locations possible. That is the
real important factor in Section (d).
Subsection (e) — Standards for review and approval. This subsection establishes the
criteria under which all applications for wireless telecommunications facilities are
reviewed. This is whether the process is reviewed by the Director of Community
Development or by the Hearing Examiner in Type 11 processes. These are the
standards for approval regardless of process. The high points — An applicant must
demonstrate:
1) (1)(iii) The applicant must has signed an agreement with the City that he agrees
that he will remove abandoned facilities,
2) (2)(i) The tower must be setback from residential properties a distance equal to 1.5
times the height of the tower if that residence is a non - conforming use, in a non-
residential zone. But if that residence is a conforming use (a residence in a
residential zone), then the setback requirement becomes 3 times the height of the
tower. [This was one of the last issues that the group considered. There was a lot
of difference of opinion about what reasonable setbacks were. There was a feeling
that 1.5 times the height was not enough of a setback. The compromise was that
1.5 times was enough from non - conforming residential uses — but a more strenuous
setback would help protect residential uses when they are conforming uses.] Mr.
Rogerson explained the difference between conforming and non - conforming
residential use. A non - conforming use, by intent of the Comprehensive Plan and
the zoning code is intended to go away over time. Therefore, the eventual use of
that property is the more intense use, whatever the zone is. So, the need for
protection there would be less. Now, in a conforming zone — the future use, as far
as the community has planned, is for residential uses. Here the protections would
need to be more strenuous.
3) (2)(iii) This section also says that wireless telecommunications facilities shall be
camouflaged. [That is a term used in many of these ordinances. This ordinance
has this requirement. That camouflage should be accomplished by using materials
and colors that blend with surroundings.] The standards also include that the sites
must be screened with landscaping, walls, berms, etc., to screen the view from
outside the property to equipment enclosures, etc. The screening is aimed at the
facility and the camouflage is aimed at the tower.
Planning Commission Meeting June 17, 2003 Page 10 of 25
4) (2)(vii) This standard says that security fencing must be provided and that the
fencing itself, must be screened. [Not only do you have to provide security
fencing to keep kids from climbing on the tower, but you have to screen that
fencing so that the fencing itself doesn't become a visual intrusion in the
neighborhood. So then you have landscaping, slats, and a variety of methods
enumerated in the ordinance that you can employ to make the fence itself less
intrusive.]
5) (2)(ix) This standard says that a tower cannot be located in view corridors.
[Right now, we do have view corridors defined in the Shorelines Master Program.
The way this is worded, if there are other definitions that come out of the
comprehensive planning process for the implementation of the Comprehensive
Plan, it can be applied to those types of view corridors.]
Subsection (f) — Required Submittals — This section is long. He covers some
highlights. The required submittals include — The applicant must submit:
1) (4) The applicant must provide a signed statement agreeing that it would negotiate
in good faith with other wireless providers to provide co- location. [This is a
requirement that the applicant proposing to build a facility (most likely a tower),
states to the City upfront in writing that they will allow co- location if technically
feasible. The City then has it on record that this facility will allow co- location.]
2) (12) The applicant must provide an agreement with the City that it will remove
obsolete or abandoned facilities.
3) (13) The applicant must submit a technical report demonstrating a need for the
facility proposed at the location proposed. [This is a fairly strenuous technical
document that demonstrates technical need for the facility at the location
proposed.]
4) (14) The applicant must submit an alternative sites report. This report is similar to
the technical report. The applicant must demonstrate that they have investigated
other potential locations for the facility that are listed on the priority locations later
in the ordinance.
5) (15) This section establishes that disputes regarding the technical reports
(technical report demonstrating need /location, and technical report demonstrating
priority location investigation) can be resolved by a third party, agreeable to both
the applicant and the City (paid for by the applicant).
Subsection (g) Co- Location on Type I and Type II towers. Mr. Rogerson explains the
difference between Type I and Type 11 towers. Type I towers are the smaller towers (60
feet or less in height). Type II towers are 60 feet or more. This section covers them both
and establishes standards and requirements related to replacing of additional antenna
arrays on existing towers, so- called co- location. It sets a requirement that all newly
constructed towers be designed to allow co- location of at least two additional antenna
arrays.
It establishes that the additional tower heights designed for that future co- location be the
minimum necessary. [He gave a bit of history — The group was concerned that if we
required co- location it would essentially drive the applicant to build a taller tower to
provide for additional co- locations. This is true. Ultimately, the group's decision was that
on balance it is preferable to have slightly taller towers that provide for co- location than to
have additional towers proliferated around the community. So, this was a balancing act.
It was felt that co- locations, even if it drove slightly taller towers were preferable to
Planning Commission Meeting June 17, 2003 Page 11 of 25
multiplying towers in the community.] In an effort to minimize the impact that would
have and the drive toward taller towers, this section also says that the additional height of
a tower designed to created the potential for co- location should be the minimum
necessary. That is defined as based on a 15 foot maximum, 15 foot separation between
antenna array locations. That 15 foot separation is an industry standard required to avoid
signal interference between antenna arrays. It is the minimum for them, maximum under
the ordinance.
Finally, this subsection (g) provides that the application may provide a report
demonstrating that co- location is not technically feasible. This is something we almost
have to do because there may be technical reasons that the co- location won't work. But
they would have to demonstrate to the City the technical rational for that or co- location is
assumed. The last thing in this section is that the City may retain and expert acceptable to
both the applicant and the city, to review a feasibility report that disputes the feasibility of
co- location.
Subsection (h) — Co- location on Support Structures other than Type I and Type II Towers.
This provides standards for locating antenna arrays on support structures other than
towers. These structures are defined in the definition section. They may include such
things as: existing buildings, existing utility poles, water tanks, etc. This subsection
establishes maximum heights for various types of antennas (i.e. 15 feet for a whip antenna,
10 feet for a panel antenna) and it also establishes the proportion of building roof area and
proportion of building facade that could be covered by a co- located antenna array or
facility. In addition, this subsection establishes that when antenna arrays are located on
light standards or electrical towers, water tanks and existing utility poles — the associated
equipment enclosures, if any, cannot be located in the front yard AND that such co-
locations shall not exceed the height of nearby existing utility poles by more than 20 feet.
The applicant will need a side yard or rear yard to locate that equipment enclosure. In
addition, while using an existing utility pole you cannot increase the overall height of the
pole by more than 20 feet. This is to ensure that we do not get many towers all down the
street. The intent is to avoid "super poles" that look like a telephone pole at the bottom
but when you look up it is 60 feet tall and for all intents and purposes, it is a cell tower.
Subsection (i) — Priority of Locations and Consideration Process. This is a list of priority
locations which says that when an applicant is preparing a submittal package, he has to do
a priority locations report. In the report he must demonstrates that he has considered all
the locations types on that list in reasonable proximity. And that he is either going to be
locating on a type of property on the list or can demonstrate the technical reason why he
cannot. This is in priority order — he must check for: 1) public property; 2) business park
and industrial zones; 3) co- locating on existing structures; 4) zones other than business
park and industrial zones — zones that do not adversely impact residential zones. Until this
has been done, the application cannot be processed on any other type of property. This is
a technical report that is part of his submittal package. Mr. Rogerson then reminded the
group that we will have the ability to hire an expert to review these technical reports.
Subsection (i) — Abandonment or Discontinuation of Use. This subsection requires that if
a provider decides to abandon use of the facility, they need to let the City know 30 days
before the abandonment occurs. Then the facility must be removed within 180 days after
abandonment. There are some definitions about what abandonment means and some
Planning Commission Meeting June 17, 2003 Page 12 of 25
requirements about removal of a facility completely from the City so that it doesn't
become a code enforcement issue for us (like a stack of parts somewhere).
Mr. Rogerson reminded the group once again that we are working under a moratorium that
expires on July 23, 2003. The City Council is scheduled to hear this ordinance by June
25, 2003; with the second reading scheduled to occur on July 9, 2003; adoption would
then occur on July 22, 2003 — one day before the moratorium expires. The SEPA
determination on this ordinance is pending — we will release it to the newspapers as soon
as we understand the pleasure of this commission.
Commissioner Kennedy asked if the Commission can proceed on the ordinance if the
SEPA is pending. Mr. Rogerson answered that from his experience working in other
jurisdictions, it can be done either way on a legislative, non - project action. In fact, the
tradition was to wait on SEPA until after recommendations were made by Planning
Commission or equivalent board. He said he was aware of discussions in the City about
this issue.
Mr. Hugo stated that he has had the same experience as Mr. Rogerson. He said that right
now we have a very conservative SEPA planner on staff. He said that he listens to her
very closely and that we have taken other actions in the past two years — in advance of the
SEPA Declaration. If something were revealed, we would come back to the Commission.
As a legislative, non - project action — nothing is going to come out of the SEPA
Determination. Mr. Rogerson stated that he had reviewed this issue with our SEPA
planner in the last day or two and she said the same thing Mr. Hugo is saying now. For a
non -proj ect action we are good to go.
Commissioner Kennedy then asked if there were any questions from the Commission for
staff.
Commissioner Wood asked a question about the height ratio (1.5 or 3 times), and if it
were related to electro- magnetic field (EMF) issues. Mr. Rogerson stated that it clearly
was NOT an EMF issue. It is an issue of how the community feels. It is a matter of what
came out of the discussion. There were opinions within the committee that ranged from
1.5 times being adequate in all situations to 500 feet being preferable. Three times the
height is going to be between 180 and 200 feet.
Commissioner Kosusko asked if staff could talk a little about the Telecommunications
Act regarding the EMS. Mr. Rogerson stated that the Federal Telecommunications Act
of 1996 made it real clear that jurisdictions cannot consider the affects of EMS radiation in
regulating wireless telecommunications facilities. The underlying logic is that it is the
purview of the federal government under FCC and they have determined at a higher level
that those impacts are not an issue.
Commissioner Wood asked about flag poles. She said that near the fairgrounds there are
very large towers that look like flagpoles but they have antennas on them. She was
wondering if someone says they are putting up a flagpole could they bypass this ordinance
and put cell tower equipment inside it. Mr. Rogerson discussed how the proposed
ordinance treated the subject of camouflage. He stated there was lots of discussion in the
committee and little confidence that the stealth and camouflage techniques really
accomplished their goals.
Planning Commission Meeting June 17, 2003 Page 13 of 25
Mr. Hugo said the answer is no. They could not circumvent our procedures. We would
look at the situation described as a cell tower installation. It doesn't matter what it looks
like. They wouldn't be putting up the flagpole if it wasn't for the interest of having a cell
tower in it. So we would look at that as being a camouflaged cell tower — not a flagpole
that just incidentally has a cell tower facility inside. He said it was an instance of
something looking like a duck. If it walks like a duck, quacks like a duck — it's a duck.
We are pretty good at spotting ducks.
Commissioner Nelson had further questions about the Telecommunications Act. He said
that he reviewed it and said that it is pretty broad. Even though staff has reviewed
ordinances from other jurisdictions, the act says that as a community we cannot
discriminate or prevent cell towers from locating here (based on EMF). His concern about
this ordinance is that it has not tested. How have such ordinances stood up in court cases.?
He asked for staff s opinion, after reviewing this ordinance and those from other
jurisdictions — do you feel we are pretty safe?
Mr. Rogerson said this is the third cell tower ordinance he has drafted, so he has had a lot
of exposure to the case law and research. Also, there is nothing in this ordinance that has
not been patterned after ordinances from other jurisdictions, so these are tried and tested
methods. They are not new inventions for the City of Bremerton. Also, the City Attorney
has reviewed the ordinance and came back with almost no changes to what the committee
drafted — he said it was a very good ordinance in his experience.
Mr. Hugo spoke to the issue of the setback. Regarding the zone, setback requirements
stretch the ability of the zone to accommodate these facilities. If you took that analogy
another step to the issue of adult entertainment, court cases have said that you cannot use a
set of standards which once combined, essentially excludes the use from the community
all together. In this case, just listening to the standards drafted, that it does not exclude
these from our environment. He thinks that the industry can find locations in residential
and non - residential areas that will meet these standards. It is most critical that there is the
ability to accommodate the network and the environment. You can do so with reasonable
locational and design conditions imposed. This ordinance seems to do this pretty well.
Commissioner Buckingham added that when the committee started this process one of
the first things they did was look at existing ordinances from other cities that proved to be
functional and workable. They specifically looked at an ordinance from east King County
that ran into some serious legal issues. They really made a point of steering away from
the issues that would come back to haunt us.
Commissioner Kennedy then asked if there were any more questions from the
Commission. Seeing none, she moved opened the floor to public comment.
Loui Mitchell of 2333 10 Street, Bremerton. He stated that he was one of the citizens
involved. He said there were many issues he wanted to talk about but acknowledge the
lateness of the hour. He said that it is complicated and he would make it as simple as
possible. He stated that Andy and Scott (Commissioners Kosusko and Buckingham)
knows he was very serious about certain points of view. He said that he was still
dismayed and unsatisfied. Mr. Mitchell stated that the committee had been meeting
regularly at 1:00 on Fridays and that he had made them aware that because of other
Planning Commission Meeting June 17, 2003 Page 14 of 25
scheduling problems he was only available after 1:00. There was advanced notice at the
end of a 480 word e -mail sent by Paul (Mr. Rogerson). In the second to the last sentence
of that 480 word e -mail stated `By the way, we are changing the time from 1:00 to 10:00."
He said he didn't read the whole e -mail because it said, "These are excerpts of the rough
draft. However, I have attached the entire draft if you want to read it." So he went
straight to the attachment. He missed the meeting. He said that he was the arm - twister
that Paul mentioned, the guy that said 500 foot setback.
But it's funny, out of all the input that came from various citizens and Commissioners, he
said that he was the only individual that was asked to backup my 500 foot
recommendation with published research that I needed to find on my own. The 1.5 times
or the 3 times that you see were simply values put out there and agreed to without type of
similar request.
The reason he was on the committee is because he was a vocal citizen, as Chris (Mr.
Hugo) remembers, leading a large group of citizens against the installation of a cell tower
on 6 th Avenue. They had worked on it for over a year and had participated in two public
hearing processes. They submitted federal case law bolstering their point of view where
federal courts have ruled in favor of municipalities all over the country. He said that as
long as you have aesthetic and property value impacts stated in your zoning lots, they will
back that up. He submitted a published report from the Appraisal Institute of America of
Chicago, Illinois. It is an environmental source when you are looking at buying, renting
or living in homes. 50 Things To Avoid — number 45 is Radio Communications and Cell
Towers. He quoted, "The proximity to RC, radio or cellular towers can devalue a
residential property, due to the concerns over visual impacts the pool of potential buyers
for properties visually impacted by RC towers may be reduced. Studies by real estate
appraisers and other experts have shown property devaluations from proximity to RC
towers. The amount of the devaluation is difficult to predict. One study shows a decline
between three and twelve percent." This was on record and has been part of public
hearing presentations that I mentioned. The hearing examiner rejected this because I was
not a professional.
Because reading a published report was not the same as having an expert testify. He
stated that he had been in contact with the University of Texas. They have a report that is
not published — but he referred to an e -mail. The report (e -mail) states that they found
three to five percent devaluation as much as .5 kilometers (1,600 feet) next to a home. So
the 1.5 times or 3 times can be disputed. Has been disputed but has not been listened to.
In tonight's staff report, under decision criteria — it states the 1995 City of Bremerton
Comprehensive Plan. But in minutes of the Planning Commission from the meeting of
December 17, 2002, he read testimony from Paul under recommendations stating,
"The regulations in this area, like all others, must be consistent with the Comp
Plan. At this current juncture the 1995 is undergoing complete rewrite. For this
reason it is illogical to base development of new or amended complete rewrite
regulations on the 1995 Comp Plan. Rather, any amended or new regulations
must be compared and related to the goals, policies and maps currently being
developed for the updated plan..." and it continues.
Planning Commission Meeting June 17, 2003 Page 15 of 25
So, he says, he is a little confused as to what the criteria is. How we are able to take 1.5
times as gospel without any type of request for published research? Where he, who has
done research and represented citizens have suggested 500 feet setback and he was asked
to come up with the research and did — and still was not listened to.
The Telecommunications Act, yes there are restrictions on EMF frequencies because RC
towers reach 1,800 megahertz, which is close to microwave. So, they have to operate at a
much reduced power level because of that higher threshold. But what the
telecommunications act states is that you cannot use it when talking about health. It
doesn't say anything about fear. There are court cases that say people don't want to buy a
house because they are afraid of the unknown. They can read reports saying that it is safe
until the cows come home. But if they are afraid and fear is in the marketplace, they are
going to overlook that house and look at another house. It may result in the low end (3 %),
it may result in the high end (12 %). You don't know because there are other factors.
He stated that he could go on and on, but he won't. He said there were a lot of thing he
wanted to say but thought he had made his point. There are lots of quotes from Chris,
Commissioner Dingfield, and City Council in approving this from the Council meeting
July 24, 2002 — which approved the moratorium. All statements about protecting
residential property. This ordinance, if you read it, only gives a provider steps to walk
through on the way to your house. It does not restrict in any way, shape, or form someone
from putting a 60 foot tower, 160 feet from your property or 1.5 times. It gives you a few
more hoops to jump through. If you put a certain setback, as he suggested, 500 feet — you
cut out all those hoops. You just say, "500 feet away from a house and you are off limits.
We are a big city and can find other ways." And if we can get television signals and other
types of signals without having a television tower in my back yard, we sure we can get a
cell phone signal just as easily. He then asked if the group had questions for him.
Commissioner Kennedy called point of order. Public are not asked questions.
Mr. Mitchell asked if he would be allowed to rebut or would this be his only opportunity.
Commissioner Kennedy stated that this was his only opportunity.
Mr. Mitchell stated that there were some quotes he wanted in the record.
1) Chris Hugo — Planning Commission minutes, July 24, 2002. "There is a need for
wireless communications facilities ordinance both to give applicants some
predictability in the permitting process and to protect the public interest in
protecting aesthetics of community, because in many cases the public feels that
these facilities are unsightly. The question is how to accommodate the industry
without impacting property values."
2) City Council minutes — July 2002. "Potential impacts from the health, safety,
economics, hazards, and aesthetics of these facilities imposed on neighboring
properties and the community as a whole."
3) As far as being under the gun because of the ending of the moratorium —
December 17, 2002, Paul Rogerson. `By simply holding an additional public
hearing and re- adopting or adopting new findings of fact [which he says he
presented tonight], the City Council can extend the moratoria for another six
months." Mr. Rogerson continued, "Recommendation of a workgroup so the
outcome of the process can be consistent with the Comp Plan." [Mr. Mitchell
Planning Commission Meeting June 17, 2003 Page 16 of 25
says that he presumes he is referring to the new Comprehensive Plan, which he
mentioned earlier and not the old one which was mentioned tonight.]
Mr. Mitchell summarized by saying that as Paul mentioned, it has to be consistent with
the new Comprehensive Plan as was discussed by the City Council in their approval for
this ordinance. Commissioner Dingfield mentioned that both of these things (billboards
and cell towers) do have visual impacts to the city.
He said there were a couple of things in the ordinance he wanted to speak to. Subsection
(f) Requirements and submittals, #8. "Antenna usage will not interfere with other
adjacent neighboring transmission and reception functions." His question was — What if
it does interfere? What is the recourse for citizens? For example, if you have it near a
rest home or medical facility where it may be interfering with hearing devices or pace
makers or other type of equipment — what is our recourse? How do we address that?
Item #13 A demonstrated need for proposed facility. His questions was — What level of
service constitutes a need? In the public hearing process Qwest said that they needed to
have a cell tower here — even though they have transmission and people are able to make
calls here. They wanted a level that would penetrate any building, any where, any
basement (skin level). When is enough, enough? If you have service in the area, is that
enough? How do we address that?
Subsection (g) Co- location. It should read, "We WILL deny new cell towers if they are
not co- located." Are we going to request that co- location be part of the law or are we
going to say that we rp efer co- location but if for some reason you can't have it we won't
do it. He said he thinks this needs to be addressed. He said that he didn't read anything
in there about clustering. So, if we are not going to allow co- location, does that mean
that we are going to allow another tower adjacent to an existing tower to minimize the
impact? He said that should be addressed also.
Three of the things that he reiterates, in closing:
1) Restricting the locations near medical facilities because of sensitivity to medical
equipment;
2) 500 foot setback, which he believes he has backed up with on- the - record
documentation;
3) Attractive nuisance, which occurs when you put a facility near somewhere that
becomes an attraction to kids. We have a public property requirements that
requests that providers site these cell towers in publicly owned property first —
which is correct. The telecommunications act requires that you look at federal
property first and then you go down the ladder before looking at private property.
Schools are public property. You set one near a playground, in front of a school or
behind a school — which this seems to suggest we do. What happens when a kid
starts climbing up that and injures himself? Where does the attractive nuisance
liability fall? Is it with the City? Is it with the telecommunications provider? Or is
it with the School?
He said that he didn't believe that any of these issues are adequately covered in this
ordinance. Mr. Mitchell said that he and Paul had a good conversation a week or two
ago. He then requested that his name be removed from the work group. He said that as
someone who has researched this issue more than anyone in the room — he doesn't feel
Planning Commission Meeting June 17, 2003 Page 17 of 25
that any of the suggestions he made were listened to or heeded. He then repeated that he
wanted his name removed from the work group and asked that the Commission consider
his comments.
Commissioner Kennedy then asked if there was any further comment from the public.
Seeing none, she closed the public hearing portion. She then asked Mr. Rogerson if he
would like to respond to the public comments.
Mr. Rogerson stated that he wanted to answer the process issues that Mr. Mitchell
mentioned.
1) Mr. Mitchell said that he had a meeting time slip by him because of the last line of a
400 word e -mail. Mr. Rogerson said that he wanted to correct the record. The
decision to move the meeting time from 1:00 to 10:00 on the Friday he referred to,
occurred at the previous meeting and he was there. He was aware of the meeting
time change. What came with the e -mail was only a reminder.
2) Mr. Mitchell states that he advocated for a 500 foot setback — which is true. He then
approached me either at the conclusion of a meeting or on the phone — in person at
the counter several days after the meeting. He asked if he brought in some
documentation from sources (Mr. Rogerson said he believes the Appraisal
Association's report) that talk about setbacks — if the information could be forwarded
to the rest of the committee so they could consider his plea for a 500 foot setback
more seriously. Mr. Rogerson told him yes, provide me with the documentation.
However, Mr. Rogerson said that he never received the information and still does
not have it. He did call later and said that he didn't have time or there was some
other problem, but the information was never received.
3) References to the 1995 Comprehensive Plan versus the update. It is true that Mr.
Rogerson did mention early on in the process (last December) that it is a real
difficulty in comparing compliance or consistency on this issue with the
Comprehensive Plan whose days are numbered. And that we should, more logically,
look to the coming Comprehensive Plan. As the issue unfolded and we arrive at this
juncture — the updated 2003 Comprehensive Plan is still not adopted. He said that he
anticipated that it would be.
4) Regarding the affect on medical equipment or medical facilities. It is true. Mr.
Mitchell did bring this up during the discussions. It is not reflected and certainly
could be put in there. He said that it should probably be tied to the technical reports
of some sort so that the issue is addressed adequately in our view.
5) References that the priority that lists public property as a top priority might direct a
facility into a schoolyard or adjacent to a school — he doesn't believe this to be
possible. Because the public entity that controls those properties still have the ability
to say yes or no. All the applicant has to do is mention in their report that "They said
we couldn't put it in the 1 st grade class room." Then that issue is addressed. It is not
a commandment that they MUST go on public property, simply that the issue must
be addressed and disposed of
Mr. Hugo asked Mr. Rogerson to speak to the 500 foot radius, based on his work with
the Comprehensive Plan and the analysis of the various land use districts. He asked if a
500 foot radius were applied to the residential planned properties in the city, and
knowing what the city's expectations are for how residentially planned areas will be
developed (at what densities), could you site a tower in any residential part of the city?
Planning Commission Meeting June 17, 2003 Page 18 of 25
Mr. Rogerson stated that without doing the mapping, he could not make an absolute
statement about that. The difficulty he anticipates is that the majority of the city still
going to be in single - family neighborhoods (and there would be a real radius problem
there). However, a great majority of the remaining designations would be mixed use in
some nature, in which residential uses, will be mixed in with other uses. This is the
change that the Comprehensive Plan update would install in our planning paradigm.
With mixed uses now being the model in many of the other zones and the setback from
residential would start applying more broadly in the community. It could potentially
increase our difficulty in siting one of these facilities.
Commissioner Buckingham wanted to comment on his recollection of the meetings.
He said the he recognizes that Mr. Mitchell has an obvious concern and the Commission
doesn't want to minimize those concerns. He further said that he could agree and can
understand the impact it could have to property value, which is very important. He said
that he didn't have any heartburn over 500 feet. However, with mixed use concepts we
ran into problems with this issue. He couldn't remember what the group's outcome was
on the issue but he remembers that they discussed the percentage of residential use in the
mixed use zones and using that as a criteria.
Mr. Rogerson said that he believed the discussion Commissioner Buckingham was
describing happened during the last meeting. The group recognized that with mixed use
being the model in the vast majority of the zones in the future then this radius issue
would become a much larger problem. Then he recalls Commissioner Buckingham
suggested some kind of calculation based on the mix of uses. The outcome of that
discussion was that it was just administratively very difficult to address. He said he was
confident that there was no consensus to do anything like that because it was so
operationally difficult. We did have that conversation.
Commissioner Nelson apologized to the Chair for being out of order earlier. He then
stated that after hearing public testimony and having reviewed the material over the last
few days, we are in the middle of technology that could all change tomorrow. Cell
towers could become smaller, they could be every three or four blocks, they could be
any number of things. With regard to different types of technology (satellites, etc.) all
this could change. His concern is that we are not going to get rid of cell towers. So all
these issues to try to figure out ways to not have them can take up a lot of time. It
appears that we have done a lot of work. The committee has done good work. He said
that having this ordinance in hand answers and addresses most of his concerns. There
are three areas of concern: 1) Aesthetics — how they look. We cannot get around that.
To provide incentives for people to camouflage them is something he would like to see
happen; 2) Tower sharing or co- location; 3) This city should be fair with companies
who are trying to provide us with technology that allows us to use our cell phones and
wireless laptops, etc. This is important to him personally. He is concerned that we will
be discussing the extension of the moratorium for another six months — not the right
approach.
Commissioner Buckingham stated that he agrees with Commissioner Nelson that this
issue needs to be put to bed. He further stated that on the one hand, we have the
property values being negatively impacted and on the other hand — who really wants to
buy a house in a city where they cannot get cell service. This is the balance that we need
Planning Commission Meeting June 17, 2003 Page 19 of 25
to create. Certainly, the cell companies would love to inundate us with towers but he
thinks we've made a good effort to address all the concerns. He then recommended that
we make a 500 foot setback in purely residential zones. Otherwise, we fall back to the
existing setbacks in non - residential or even mixed use zones. He reminded the group
that the setback is only an issue for Type I and Type II towers, not for smaller co- located
facilities which are most likely NOT a visual impact to begin with. He also
recommended that in the review process or application process — add some line
regarding a study. The applicant should demonstrate that they have contacted any
medical facilities within a certain range regarding impacts. Commissioner Buckingham
then commented positively on the co- location incentives. He said that he doesn't think
it needs to be changed and cannot be strengthened — it is very clear.
Commissioner Nelson asked if we had considered doing a "pre- siting" map that would
show the zones or areas that meet the siting requirements. He thought that with all the
current mapping being done for the Comprehensive Plan, perhaps this is something we
could consider.
Mr. Hugo said that he wanted to speak to the 500 foot setback. In residential zones, if
we say 500 feet, there will not be any in residential zones. Our idea of having
residential land uses isn't out in the suburbs or rural areas. He said that he cannot
imagine a place in the city where you are going to have any sites that are not within 500
feet of a residence. He said that he didn't know where that would be.
Commissioner Buckingham stated that from the committee discussions, what Mr.
Hugo just said would not necessarily be a bad thing. However, he was talking about
strictly residential use zones. Not mixed use zones. Mr. Hugo stated that we choose to
do that, it is a trick. We would then have a provision in the code that says you can do
this — but it is impossible to do it. Courts don't like that. He said that there are large
areas of the city that are low density — he was considering all residential densities. You
will not find a site that does not have residents within 500 feet. If this is what we want
to do — we just need to say that and see if that stands up.
Commissioner Buckingham said that in all of the discussion the committee had, we
were trying to minimize to the point of not having Type I and Type II towers in
residential areas. This may not be necessary technologically.
Mr. Hugo said that no, it may not. But we should just say that. The idea of setting up
something where there is the appearance of the ability to do something — this goes back
to the adult entertainment cases. They set up standards which give the appearance to site
one of these businesses but when you actually do the mapping — it's not there. They
have struck those down every time.
Commissioner Buckingham stated that he could not remember industry representatives
insisting on Type I or Type II towers insisting that they had to be able to site Type I and
Type II towers in residential areas.
Commissioner Kosusko stated that they actually spoke of the alternatives in those
areas. The utility pole thing, which he finds is just a tower with electrical wires going
across it. They spoke of other alternatives like that. He then stated that he was taken
aback at the statement that the committee didn't listen to this 500 foot argument. To
Planning Commission Meeting June 17, 2003 Page 20 of 25
him was somewhat personal because in the committee they were all working together
and he take affront to that statement that they were somehow not listening.
Commissioner Kennedy called point of order as Mr. Mitchell began to respond to
Commissioner Kosusko's statement.
Commissioner Kosusko continued by saying that the other reason he took affront is
that he is a design professional, who is trained in aesthetic things. For him to talk about
setback means something to him. Mr. Mitchell brought up an example from a group in
Texas regarding devaluation. The distance was half a kilometer. If that is the case, why
are we not talking about half a kilometer? Where did 500 feet come from? Continuing
on, he said that there are many things that affect property values (i.e., the 7 -11 down the
street, the rental house down the street that is not taken care of). Many things affect
your personal property value. If we are talking about three percent because there is a
cell tower 250 feet away, so be it. That is the price you pay for living in a city where all
kinds of stuff fit together. We need to determine how much affect we can accept in our
city from things like a cell tower or a 7 -11 or a run -down house, etc. He continued by
saying that we've talked about the school issue and the medical issue. He then said that
he remembers (from the Telecommunications Act) that affect on medical facilities was
probably paid attention to pretty hard by the federal regulations.
Mr. Hugo asked the committee members and staff if they looked at they horn array type
of antennas (the antlers versus the flush - mount) and if you discriminated on
environments? For example if you are in a residential then if has to be a flush - mount?
Was that reviewed?
Mr. Rogerson answered the question by saying the no. There was then a brief
discussion about the different types of antennas and environments. The committee did
start off discussing these but dropped it because it was a further layer of complication.
The consensus of the group was that cell towers are not going away — we need to allow
for them, maybe even in residential areas. The only problem is that people can see
them.
Commissioner Kosusko stated that he understood that the different types of arrays are
used for different distances and uses. In listening to the industry representatives, it is not
likely that we're going to get some monstrous array in a valley in a residential area. The
whole idea of a specific setback affecting the aesthetics is a little dubious in this case.
He referred to the Texas report (quoted by Mr. Mitchell). There is a difference in the
topography between Bremerton and Texas. He thought that to set a specific distance
which is unrelated to the height doesn't seem to answer that issue as well as setting a
ratio.
Commissioner Kennedy stated that she agreed with Commissioner Kosusko regarding
the ratio. She said that she believes that the committee had come up with
recommendations that balances out all the needs. She said she didn't see a need to
change it because all the issues have been hammered out by the committee. She said
that she would be willing to entertain a motion.
Commissioner Kosusko had one more comment. He said that he was still struggling
with a comment made by Commissioner Buckingham regarding allowing a tower in a
Planning Commission Meeting June 17, 2003 Page 21 of 25
residential zone. He said that he would like to see that struck (Type I tower in a
residential zone). He then suggested that it read, "Type I tower in a single - family
residential zone" or more of a neighborhood zone. He said that he doesn't think that a
60 foot tower, in any case, is aesthetically an option in a single - family zone. Setback
three times or 1 '/z times or 500 feet if we decide that. There was then a short decision
about which tower, if any, should be allowed in a single - family residential zone.
Commissioner Buckingham stated that it is important to remember that as this
ordinance is laid out now, nowhere does it allow — anywhere, the concept of a Type I or
Type II tower in a single - family residential zone. The setback requirement is not within
a single - family residential zone. This is in a non - single - family residential zone. With
the setback then, where the residential zone and the single - family residential zone starts
across the street or wherever — there is enough space that people don't feel that it is
literally sitting in their back yard. He then spoke specifically about the tower on 6th
Street. We are not suggesting that we are going to have 60 -80 -100 foot towers in
regular, low- density, residential neighborhoods.
Mr. Rogerson asked the group for clarification about exactly what language they want
changed. There was a discussion on the issue. After some discussion, Mr. Rogerson
suggested that the change be made to Section (c) General Provisions — add a new
subsection which addresses prohibited uses.
Commissioner Buckingham suggested that we consider addressing the issue of medical
facilities since we are not sure how the FCC or the federal government regulates the
distance from medical facilities. He said that we need to have something that ensures us
that the application has considered it.
Mr. Rogerson then proposed the change be made as follows:
(c) General provisions. (Bottom of page 3)
(4) Prohibited Uses.
(i) Type I and Type II towers in a single - family residential zone.
The group agreed on this change. Commissioner Nelson showed some concern about
the change. Commissioner Buckingham reassured Commissioner Nelson that the
change is consistent with the intent of the committee, it was simply an oversight. It was
never the intent to allow those kinds of towers in single - family residential zones.
Commissioner Nelson asked where the incentives are mentioned in the draft ordinance.
Mr. Rogerson answered by saying that the incentives are created by allowing less
intense type of facilities to go through simpler permitting processes. Other incentives
are indirectly attained by taking advantage of co- location. Some of the incentives are
implied and are woven throughout the document.
Commissioner Kosusko stated that there was one area of concern during the committee
discussions. Having additional requirements that the application had to prove as part of
the Special Use Permit (SUP) — an additional list of hardships and why they should be
allowed to proceed through an SUP. He then asked if there was an addition list or
reference to such a list.
Planning Commission Meeting June 17, 2003 Page 22 of 25
Mr. Rogerson answered by stating there is not an additional list that an SUP applicant
would have to satisfy. They would have to satisfy the same list, it is the strenuousness
of the process. Remember that an SUP also has to go through this threshold set of
requirements that speaks to impacts to adjacent properties, etc. In that sense, there is
some additional requirements once you enter the arena of a Special Use Permits.
Specific to cell towers? No — it is the same list for all three processes. Public hearing is
an additional level of strenuousness for an applicant to go through.
Mr. Hugo asked if this would change or prohibit the addition of antenna on public
facilities like water reservoirs or such that could end up in residential zones in the city.
Mr. Rogerson answered that he didn't think so because of the exemption. Antennas
that are on water tanks that are for public safety, for fire and police response.... Mr.
Hugo interrupted by clarifying that he meant the ability to put a private antenna on a city
facility in a single - family zone. Commissioner Kosusko stated that we specifically said
Type I and Type II towers will be prohibited in single - family residential zones.
Commissioner Buckingham said that if they wanted to place an array that was smaller
than a Type I or Type II tower, that could be an acceptable use in a single - family
residential zone. That is the type of co- location we are really trying to encourage. Mr.
Rogerson stated that the place where that is most noticeable is in the table under Type I
administrative decisions. The second point is that co- location of antennas on existing
support structures in any zone, only has to go through a Type I process.
Commissioner Kennedy asked the group how the medical issue should be dealt with.
Mr. Rogerson referred the group to the submittal requirements. The eighth current
submittal requirements reads, "Certification that the antenna usage will not interfere
with other adjacent or neighboring transmission functions." There was then a short
discussion about how to include the medical issue. The consensus of the group was to
handle it by adding a new subsection under submittal requirements addressing medical
facilities /instruments
Mr. Rogerson stated that one of the concerns he heard from Mr. Mitchell in public
testimony was that, if you have that kind of requirement and it turns out that it is
violated — then is there any recourse? He wanted to clarify that he had heard that
testimony. Mr. Hugo stated that would be a legal case at that point. He explained that
if they have answered the stipulation then they would have had some kind of statement
from the facility. That makes it their private, civil issue from that point on.
Mr. Rogerson then summarized that staff has been directed to add a new subsection
addressing medical instruments and a new subsection under general provisions that lists
towers in a single - family residential neighborhood as prohibited.
Commissioner Kennedy closed the discussion on this item and asked for a motion. A
motion was made by Commissioner Kosusko and seconded by Commissioner Wood
to recommend approval of PL03 -0027 — adding a new section 21.02.350 to the BMC
entitled "Wireless Telecommunications Facilities," with two changes [add a
subsection under general provisions listing prohibited uses as Type I and Type II
towers in single - family residential zones and adding a new subsection under
submittal requirements (f), addressing medical facilities and equipment.] to the
City Council. Called for a vote: Buckingham: yes; Kosusko: yes; Nelson: yes; Wood:
yes; and Kennedy: yes. Motion carries.
Planning Commission Meeting June 17, 2003 Page 23 of 25
2. Workshops:
a. None.
VI. BUSINESS MEETING
A. Chair Report: None.
B. Director Report: Chris Hugo.
CDBG Advisory Members — Mr. Hugo informed the group that we are setting up a new
process for our Community Development Block Grant (CDBG) allocations this year. We
are amending the annual plan. We are proposing two committees: 1) Capital Committee,
who will look at all the capital projects in the Block Grant program as apposed to the
community service projects. The structure that is being set up is a review committee that
has one Council member and one Planning Commission member added to another group
of more technical people. This committee would consider $600,000.00 (or whatever
portion of the CDBG is for capital projects), going through the process of reviewing the
applications, scoring them, and making recommendations. We are looking for an
appointment or volunteer. The appointment should be completed and approved by
Council by August 13, 2003. This could be decided at the next meeting. Commissioner
Kosusko nominated Angela Wood. There was a short discussion about the committee and
who could be called for further information. This issue will be decided at the next
regularly scheduled meeting.
2. Presentations & Invitation — Mr. Hugo informed the group that he made a presentation to
the Downtown Rotary and will be presenting to the Central Lions Club. He has a
PowerPoint presentation which includes maps, photos, and some number items. There is
not as much specific detail from the plan [Comprehensive Plan]. We are working on it.
He suggested that if the members of the Commission had clubs or groups that would
benefit from the presentation to let staff know. He spoke to some of the reactions from the
Rotary, which were favorable.
KRCC Status Report — Commissioner Kosusko wanted to know what the status of the
KRCC process. Mr. Hugo responded by saying that it is still working out. The new
director, Kamuron Gurol has a delicate balancing act to play with the three
commissioners. He is working hard. Chris gave a briefing about some of the concerns of
the group and stated that progress is reasonable. He said that Kitsap Alliance of Property
Owners is the tail wagging the dog. It represents about one percent of the county but has
about sixty percent influence right now.
C. Old Business:
None.
D. New Business: None.
1. Mr. Rogerson — Comprehensive Plan Public Hearing. The public hearing on the
Comprehensive Plan did not happen this evening. We are still dedicated to having that
public hearing at your next meeting (July 15, 2003). He then asked the Commission to
review their personal schedules for the next month and be prepared to continue that
Planning Commission Meeting June 17, 2003 Page 24 of 25
hearing to subsequent evenings — one week out, each time. Commissioner Kennedy
wanted the staff to please have the "timing" lights working prior to that public hearing.
Commissioner Kennedy asked what the progress was on the Transportation Element.
Mr. Rogerson answered by saying that he met with the consultants, Parametrix, two
weeks ago. That meeting was a follow -up on a conversation in which he was told that it
would take three more months to complete the Transportation Element. They were told
that this was unacceptable and they negotiated. By the end of this month, they will
provide us with modeling numbers. They will also provide project lists and estimated
costs for projects that respond to level of servie deficiencies by mid -July. He suggested
that the Transportation Element not be reviewed at the first hearing. We will have the
crucial pieces under the Growth Management Act [Capital Facilities that respond to the
level of service issues].
2. Liaison With City Council — Commissioner Buckingham spoke briefly about creating
more of a relationship with the City Council regarding items being forwarded to them.
According to the by -laws, it is the duty of the Vice Chair to be a liaison to the City
Council. He stated that he would happy to fill that function. There was a short discussion
of the group with suggestions of how that could be done effectively. Mr. Hugo said that
staff would work with Commissioner Buckingham toward a protocol to make this function
effective.
VII. Adjournment
Meeting was adjourned at 8:05 p.m. The next regular meeting is scheduled for July 15, 2003.
Respectfully submitted by:
Executive Secretary
Approved by:
Jessica Kennedy, Chairman
Planning Commission Meeting June 17, 2003 Page 25 of 25