1 <br />2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />26 <br />27 <br />28 <br />29 <br />30 <br />noise issue; however, there is nothing in the record that supports this <br />seemingly obvious conclusion. For this reason, the applicant must still <br />demonstrate that a revised proposal must comply with this noise criterion. <br />Thus, it is appropriate to impose a condition of approval requiring the <br />applicant to provide a new noise study. Because this is an application <br />requirement, it will be necessary for the noise study to be reviewed in the <br />same manner as a [PUD] application. The final PUD application process <br />subject to type II process with notice and a comment period is still required, at <br />which time compliance can be confirmed. * * * The hearings official believes <br />that the applicant can comply with this standard." Record 249. <br />The hearings officer then denied the variance to locate the ancillary equipment above <br />ground. He imposed a condition of approval that requires intervenor to produce, prior to <br />final PUD approval, a new noise study for the underground facilities that demonstrates that <br />the noise from the telecommunications facility does not exceed 45 dBa at the property line. <br />In a portion of its third assignment of error, petitioner argues that the city's deferral of <br />a determination of compliance with EC 9.5750(7)(f) to the final PUD approval stage was <br />improper. According to petitioner, the city's decision fails to determine that it is feasible to <br />comply with the standard, and in fact concedes that there is no evidence in the record to show <br />that underground ancillary facilities comply with EC 9.5750(7)(f)'s noise standard. <br />Intervenor responds by arguing that the city's deferral of its determination of <br />compliance with EC 9.5750(7)(f) to the final PUD stage was proper because the final PUD <br />approval process is infused with the same participatory rights as the tentative PUD phase. <br />Further, intervenor argues that the applicant's noise study showing that aboveground <br />ancillary equipment complies with the 45 dba noise standard is substantial evidence that it is <br />"feasible" to install ancillary equipment in compliance with the noise standard. We <br />understand intervenor to argue that even if its noise study was insufficient to establish that <br />above ground ancillary equipment complies with the noise standard, that noise study is <br />nonetheless sufficient evidence to meet the lesser burden of showing that it is "feasible" to <br />meet that standard with additional evidence or measures, such as undergrounding the <br />equipment, and the noise study is therefore sufficient to support deferral. <br />Page 14 <br />