Planning Commission . <br />August 15, 2011 ~ . <br />Page 3 <br />buried, after making a finding that the retard did not have any evidence to show that burying the <br />equipment would solve the noise issues, Decision at 38. Conditioning is only proper if the record <br />has evidence showing that the standard can be met with the condition. Here, the HO Decision found <br />that there was no such evidence, but it imposed the condition anyway, The Application should have <br />been denied on this basis, Allowing for a new site plan and a new noise study in connection with the <br />. final P[TD process mixes up the review processes. However, the noise standard i,s not a final PUD <br />standard, It is a telcom siting standard that is part of the CUP process, which isnot amulti-stage <br />process, Additionally, conditioning may not be used to dramatically change the proposal. The <br />applicant took a gamble and proposed above ground ancillary facilities, asking for a variance to the <br />undergrounding requirement. The HO Decision denied the variance, Requiring undergrounding is <br />too big a change to accomplish by acondition - it amends the Application so substantially that it <br />effectively results in a different use than what was originally applied for. Anew application is needed. <br />4, Telecom Siting. Standards for, variance to Under r~ ding - EC 9,5750 9~(c? <br />Erroneous Irate retation <br />The standard for getting a variance to undergrounding of ancillary facilities is: <br />"The city may grant a variance to the setback and undergrounding requirements of . <br />subsections ~7}~d} or ~S} upon finding ~ that stealth design, proposed landscaping, <br />configuration of the site, or the presence of mature trees obviates the need for <br />compliance." <br />The HO Decision misinterpreted what the EC requires to "obviate" the need for <br />undergrounding and allow a variance, Undergrounding of ancillary facilities is what the EC requires <br />in Residential zones. The HO Decision adopted the staff position and said that if the facilities can be <br />placed above ground and meet the 45 dBa noise standard at the property line, then the need for . <br />undergrounding with respect to noise is.abviated, and the variance can be granted. Decision at 40- <br />41. "[O]bviates~the need for compliance" does not mean that the ancillary equipment will be no <br />more noisy ~4S dBa} than in zones where undergrounding is not required, Undergrounding is <br />required to avoid noise impacts inresidentialareas -any noise impacts. To "obviate" the need for <br />undergrounding means to obviate the noise. That means making the noise go away, Although the <br />HO Decision denied the variance, this issue could be criticat in this or in future proceedings, <br />whether in its appeal of the HO Decision, or in a new application, the applicant could assert that it is <br />entitled to a variance allowing it to aboveground its facilities so long as it meets the 45 dBa <br />standard, This would be erroneous. Underground'is the standard. If applicant wants a variance, to <br />put its noisy equipment above ground, it needs to obviate all its noise, not just meet the 45 dBa level. <br />5, PUD Standards for Screening - EC 9.5320 3~aked Top Third of Monopole is Not <br />"Ade uate Screenin " <br />The screening standard for the PUD is; <br />. PC Agenda -Page 21 <br />