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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 Planning Commission Meeting June 17, 2003 Page 5 of 25 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