the applicant did not comply with this standard, The Hearings official noted that he had two <br />choices in responding to this issue. He could deny the entire application, or he could deny the <br />variance request thereby requiring the equipment to be placed underground. He went ~on to <br />notethat placingtheequipmentundergroundwouldalmostcertainlyresolvethenoiseissue, <br />but there was nothing in the record to support this seemingly obvious conclusion. As a result, <br />he found it appropriate to impose a condition see Condition 6 of the decision} requiring a new <br />noise study to confirm compliance with EC 9.57507}~f}, based on a proposal that does not <br />include a varianceto undergrounding requirements pursuantto EC9.5750~9}~c}, The Hearings <br />official also included a related condition see Condition 1 of the decision} requiring the <br />applicant tosubmita newsite plan and anynecessarynarrativeforplacingtheequipment <br />underground. <br />The appellant assertsthatthe Hearings Official should have denied the application and required <br />a new proposal, also noting that conditioning is only proper if the record has evidence showing <br />that the standard can bemetwiththecondition. The appellant further asserts that the <br />undergrounding is too big of a change to accomplish by a condition, amending the application <br />so substantially that it results in a different use than what was originally applied for. <br />While the proposed telecommunications~use would certainly remain the same, the uncertainty <br />with respect to impacts from resulting design changes warrants further review and <br />consideration by the Planning Commission on appeal. The Hearings Official may have erred <br />with respectto properconditioning inthis instance, based on at least some evidence showing <br />that it would be feasibleto meetthe standard with underground equipment, as conditioned. <br />To the extent that relevant statutes and case law may direct a proper determination on this <br />issue, additional inputfromtheCityAttorneywiil beprovided. <br />By denying the variance and thus requiring that ancillary equipment be provided underground, <br />the application may have been so substantially altered that a new application should be <br />required to address all of the new issuesthat might arisewith respectto otherapplicable <br />standards. The Hearings official's condition requiring the new site plans and narrative even <br />implies the large magnitude of change, noting that the "applicant should carefully review the <br />findings inthisdecision and develop a planthatcomplieswith allthefindingsandconclusions" <br />see Condition 1 of the decision}. This maybe more properly accomplished as part of a new <br />application that would then allow full. review and public testimony to address the revised <br />proposal's compliance with all applicable PUD and CUP approval criteria. Such a determination <br />would also appear to address New Cingular's Appeal Issue 1, as it would allow the applicant to <br />come up with a new proposal that can address the noise concerns and for that matter, possibly <br />reapply to request a variance hand provide relevant evidence that might support such a <br />request} if they so choose. <br />Staff recommends that Planning Commission consider this question closely, including possible <br />reversal of the Hearings official's approval based upon Northgreen Property Appeal Issue 3. As <br />the feasibility of meetingsuch acondition isnot addressed byevidence in the record, <br />undergroundi•ngofthe ancillaryfacilities mayalterthe current proposal sosubstantiallythata <br />new application is necessarytofullyand properlyaddress all applicable PUD and CUP approval <br />criteria. Alternatively, if the Planning Commission determinesthatthe denial of thevariance ~ . <br />4 <br />PC Agenda -Page 4 <br />