and adding the condition was an appropriate remedy after evaluating all the available evidence, <br />it is noted thatthe City's Final PUD approval process requires publicnotice and opportunityfor <br />the parties to testify and submit evidence as to whether the applicant has met the condition of <br />approval, and provides a local appeal process inthe eventaf a challengetothe Planning <br />Director's decision, <br />North~reen Property Appeal Issue 4 <br />Telecom Siting Standards for Variance to Undergrounding - EC 9.575o~9~~c~ -Erroneous <br />Interpretation <br />The Hearings official addresses this issue on pages 40-41 of the decision pages SO-81 of the <br />record. The appellant assertsthatthe Hearings Official misinterpreted whatthecode requires <br />to "obviate" the need for undergrounding. The appellant goes on to assert that <br />undergrounding is required to avoid noise impacts, which requires that the noise go away <br />entirely. <br />The Hearings Official found that while there is a tenuous link, a variance may be obtained upon <br />finding thatthe noisestandard is met with the facilities aboveground andthen explainsthe link <br />in the code for that reading. The Hearings Official further explains that in order for variance to <br />be granted it also needsto meetthe other factors, including stealth design, landscaping and <br />site configuration or presence of mature trees. The Hearings Official noted that in this case, the . <br />configuration ofthe site, in part, createsthe needfor undergrounding. <br />Both the appellant's argument and Hearing Official's interpretation appear to have merit and <br />The appellant's interpretation thatto "obviate" means "go away" is not weaknesses. <br />necessarily correct in all situations. As in this case, there has been no evidence presented <br />demonstrating how much noise would be generated with the equipment underground. <br />Depending on the noise levels generated from underground equipment, a similar level of dBA <br />from aboveground equipment could be considered to evaluate what it meansto "obviate" the <br />need for compliance in this instance. Additionally, some sites could be located such that sound <br />is not an issue. It could well be that noise from above ground equipment could also meet the <br />standards using design techniques that are not addressed in this situation. On this point, the <br />Hearings Official states the following at the top of page 41 in his decision: "Although the <br />criteriaforavariancedo notexpresslystatethatan applicantmayobtainavarianceupon <br />finding that the applicant can meet the noise standard with facilities above ground, the hearing <br />official believes this is a permissible reading of the subsection ~9~~c~." . <br />Staff concurswith the Hearings Officialthstthe standard was not adequately met based on <br />available evidence in this case, and recommends that the Planning Commission affirm the <br />Hearings Official's decision with regard to Northgreen Property Appeal Issue 4. In doing so, the <br />Planning Commission should specifically reject the appellant's over-reaching interpretation that <br />absolutely all noise mustbeeliminatedtocomply. <br />5 <br />PC Agenda -Page 5 <br />