ATT New Evidence Submitted During First Open Record Period

I Opinion by Ryan. 2 NATURE OF THE DECISION 3 Petitioner appeals a decision by the city approving tentative planned unit 4 development and conditional use permit applications to site a cellular communications tower 5 and ancillary facilities on property zoned Low Density Residential/Planned Unit 6 Development (R-1/PD). 7 MOTION TO INTERVENE 8 New Cingular Wireless PCS, LLC (intervenor), the applicant below, moves to 9 intervene on the side of the city. There is no opposition to the motion and it is granted. 10 MOTION TO STRIKE 11 Petitioner moves to strike Appendix I attached to intervenor's response brief. 12 Appendix I is a copy of a 2004 hearings officer's decision on an application for land use 13 review in Deschutes County. Petitioner argues that the document is not a part of the record 14 of this appeal and is not subject to official notice. Intervenor has not cited any legal authority 15 under which we might take official notice of Appendix 1. 16 Petitioner's motion to strike Appendix I is granted. The Board will not consider 17 Appendix 1 or the portion of the Response Brief on page 8 lines 19-27 that quotes a portion 18 of Appendix 1. 19 FACTS 20 Intervenor submitted planned unit development and conditional use permit 21 applications to site a 75-foot tall wireless communications tower on the northern part of a 58- 22 acre private golf course, and also submitted a variance application to locate the ancillary 23 facilities that house the equipment for the tower above ground.' The subject property is ' Eugene Code (EC) 9.5750 contains special siting requirements and procedures for telecommunications facilities. EC 9.5750(8) requires in relevant part that "all ancillary facilities within an R-1, PL, C-1, GO, and PRO zone must be located underground to the maximum extent technology allows, unless a variance is obtained pursuant to the provisions of subsection (9) of this section." Page 2