Planning Commission <br />August 15, X011 <br />Page 2 <br />relevant part: "The amount of the fee shall be reasonable and shall be no mere than the average cost <br />of such appeals or the actual cost of the appeal; excluding the cost of preparation of ~ a written - <br />transcript." - <br />The 50% appeal fee is set by Administrative Rule of the City Manager, Administrative <br />Order No. 53-10-OS-F Oct. l S, 2010},page 6 of the Fee Schedule. The Administrative Order does <br />not set the appeal fee based on the average or actual cost. There is no evidentiarybasis to support the <br />conclusion that the appeal fee is either reasonable or not more than the actual or average cost of <br />processing the appeal. <br />In further support of this position, we ask the Planning Commission, under the authority of <br />EC 9.70951}(a}, to take official notice of the City Attorney's public records response dated , <br />September 2 1, ZO10, admitting that the City has no public records supporting or justifying the appeal <br />fee being 50% of the application fee. A copy of the September 21 letter is attached. <br />The HO Decision addressed this issue at page 5, but the H0 Decision did not resolve it. The <br />Planning Commission should hold that the appeal fee violates state law, may not be applied, and <br />therefore should be refunded. <br />In this case, the appeal fee to be paid by Northgreen is $12,x45.05. This issue was raised by <br />Bill Kloos, the attorney for Melissa Brotz and the Oakway Neighbors Association, The City has not <br />shown that the appeal fee is based on the actual or average cast ofthe appeal or that the appeal fee is <br />reasonable. <br />Telecom Sitin Standard for Noise EC 9.5750 7 Error in Irate retin Standard <br />The HO Decision misread the plain language of the noise standard of EC 9.5750(7}~~. <br />Decision at 35. The HO Decision erroneously concluded that the 45 dBa noise limit applies only to <br />telecom Horse measured at the receiving property line, rather than all noise. The plain language of <br />the EC requires that the use cannot be approved if the noise level at the receiving property line <br />cannot meet the 45 dBa standard. The EC does not impose a 45 dBa limit in additional sources of <br />noise, but on all noise from any and all sources received at the receiving property line. <br />3. Telecom Sitin-~ Standard, for Noise =,.EC 9.5750 ,7~~~ -Improper Use of Conditioning <br />The HO Decision correctly found that the applicant failed to prove that the 45 dBa noise <br />standard of EC 9.57507}fit} could be met. The ~ HO Decision should have been to deny the <br />Application, The applicant would then be free to submit a new proposal. Instead of denying the <br />Application, the HO Decision conditioned the Application to require a new site plan to bury the <br />ancillary equipment, Decision at 38, 40; Condition 1. The HO Decision also required a new noise <br />study Condition 6} to show that the use will meet the noise standard with the. ancillary equipment . <br />PC Agenda -Page 20 <br />