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There is no clear, convincing and verifiable evidence submitted in relation to this requirement. Specifically, none of the following has been demonstrated by clear, convincing and verifiable technical evidence: That in this instance, for technical reasons, the asserted gap must be filled from a single facility, to the exclusion of all reasonable alternatives; That the selected location is the only location or combination of locations, to the exclusion of all reasonable alternative locations, that would enable the asserted gap to be filled; That there is no viable alternative to filling the asserted gap and improving overall coverage than by constructing a new tower; That the facility must be 75’ in height. The applicant’s legal counsel responded to the CMS report (see Attachment 18), asserting that CMS mischaracterized the code criteria requirements of EC 9.5750(6)(b)(3) and took exception to CMS stating there was no clear and convincing evidencefrom the applicant showing compliance with this section of the code. They statethat “the balance of the discussion on Page 7 [CMS report, Attachment 2] relies on the erroneously referenced standard of “clear and convincing” evidence, which is not followed in Oregon and should be discarded”. EC 9.5750(6)(b)(3) requires the applicant to provide evidence demonstrating collocation is impractical. Staff agrees with the applicant that CMS mischaracterizes the standard of proof required. Under the Eugene Code and Oregon state law, an applicant is not required to carry its burden to demonstrate compliance with an approval criterion by “clear and convincing” evidence. Specifically, EC 9.7085 requires the decision in this case be based on reliable, probative and substantial evidence. That said, the CMS comments can be read to contend that the technical evidence provided by the applicant is not sufficient, even under that standard. The CMS report describes several areas of the applicant’s evidence that question the validity and clarity of the evidence provided. As pointed out by CMS, the applicant’s statement that, “There [are] no existing buildings of sufficient height that will meet AT&T’s coverage goals” does not support the technical need for the proposed facility. Also, CMS points out that, “both the size and location of the search ring strongly indicate that a single-facility approach was the only option considered”. Since the applicant did not refute this assertion by CMS, staff is unclear if the applicant actually considered other options aside from a single antenna facility at 75 feet in height. CMS’s response to comments from the applicant’s legal counsel (see Attachment 3) state that, “It has not been demonstrated by verifiable technical evidence that the use of one (1) or more existing facilities/structures cannot be attached to, in order to achieve the approximate coverage the proposed facility is intended to provide”. As noted above under subsection 2, the applicant indicates that collocation on EWEB facilities was noted feasible, primarily because EWEB prohibits collocation on poles with live power lines. Staff has requested EWEB to clarify their policies about collocation, and understands that EWEB does not prohibit all poles with live power lines (see Attachment 20). EWEB does prohibit poles with transmission conductors but will consider collocation on many of their poles provided their HO Agenda - Page 28