As discussed below, the Planning Commission affirms the Hearings Official's decision to deny the <br />applicant's variance request and modifies the-condition of approval to require a new noise study <br />for underground ancillary facilities. New Cingular's first assignment of error is denied. <br />New Cingular Second Assignment of Error and Northareen Property First Assignment <br />of Error: Appeal Fees <br />New Cingular and Northgreen Property assert that the City's appeal fees are not in compliance with <br />applicable laws. Based on the August 17, 2011, decision of the Oregon Court of Appeals in <br />Willamette Oaks v. City of Eugene, the Planning Commission may not accept new evidence <br />pertaining to this issue. EC 9.7655(2) limits the nature of evidence that the Planning Commission <br />can consider on appeal, as follows: "The record from the proceeding of the Hearings Official or <br />Historic Review Board shall be forwarded to the appeal review authority. No new evidence. <br />pertaining to the appeal issues shall be accepted." Pursuant to this section, the Planning <br />Commission specifically rejects the September 21, 2010 letter relating to a public records request <br />proffered by Northgreen Property as part of its appeal on this issue. <br />EC 9.7655(3) also requires that appeal statements specify how the Hearings Official: (1) failed to <br />properly evaluate the application; or (2) made a decision that was not consistent with the <br />applicable criteria. The appellants do not specify how the imposition of the allegedly unreasonable <br />appeal fee is the result of the Hearings Official's failure to properly evaluate the application or the <br />Hearings Official's decision's inconsistency with an applicable criterion. The Planning Commission's <br />review is limited to whether the Hearings Official: (1) failed to properly evaluate the application; or. <br />.(2) made a decision that was not consistent with the applicable criteria. <br />While the appellant may be raising an important issue, it is not one that the`Planning Commission <br />can substantively address. The Hearings Official's decision did not determine or impose the appeal <br />fee and it would have been beyond the scope of the Hearings Official's authority to do so. Even if <br />the appellant is correct in the assertion that the City's appeal fee structure dictated appeal fees <br />that, in this case, are too high, that determination would not result in a change to the Hearings <br />Official's decision and it does not call the Planning Commission's jurisdiction into question. <br />Whether the City's appeal structure, as applied in this case, is inconsistent with state law is an <br />independent question that is beyond the scope of the Planning Commission's authority. The <br />Planning Commission lacks the authority to allow any deviation from the City's. adopted fee <br />structure. <br />Based on the findings above, and in the absence of a specific criterion or related findings that <br />would serve as a basis for error, Planning Commission denies New Cingular's second assignment.of <br />error and Northgreen Property's first assignment of error. <br />Northareen Property Second Assignment of Error <br />Telecom Siting Standard for Noise - EC 9.5750(7)() - Error in Interpreting Standard <br />The Hearings Official completed a detailed analysis of this issue on pages 3S-38 of his decision. The <br />Hearings Official concluded that without more robust evidentiary detail or detailed requirements in <br />the code that clarify how the applicant was to address EC 9.5750(7)(f), the code does not prohibit <br />new sound when ambient noise levels already exceed 45dBA, but rather limits new devices to <br />Final Order -AT&T Mobility <br />(PDT 10-2 & CU 11-1) October 4, 2011 Page 4 . <br />