SALT LAKE CITY PLANNING COMMISSION MEETING
In Room 326 of the City & County Building
451 South State Street, Salt Lake City, Utah
Present from the Planning Commission were Chair Prescott Muir, Vice-Chair, Tim Chambless, Bip Daniels, Babs De Lay, John Diamond, Craig Galli, Peggy McDonough, Laurie Noda, Kathy Scott and Jennifer Seelig.
Present from the Planning Staff were Planning Director Louis Zunguze; Deputy Planning Director Brent Wilde, Deputy Planning Director Doug Wheelwright; Senior Planner Joel Paterson, Principal Planner Everett Joyce, Associate Planner Janice Lew; Planning Commission Secretary Kathy Castro; City Property Manager Linda Cordova; and Deputy City Attorney Lynn Pace.
A roll is being kept of all who attended the Planning Commission Meeting. Chair Muir called the meeting to order at 5:45 p.m. Minutes are presented in agenda order and not necessarily as cases were heard by the Planning Commission. Tapes of the meeting will be retained in the Planning Office for a period of one year, after which they will be erased.
Approval of minutes from Wednesday, January 28, 2004
The Planning Commission made revisions to the minutes. Those revisions as stated are reflected in the January 28, 2004 ratified minutes.
Commissioner Noda made a motion to approve the minutes as corrected. Commissioner Scott seconded the motion.
Commissioner Chambless, Commissioner Daniels, Commissioner De Lay, Commissioner Diamond, Commissioner Galli, Commissioner McDonough, Commissioner Noda, Commissioner Scott and Commissioner Seelig voted “Aye”. Prescott Muir as Chair did not vote. All voted in favor, and therefore the motion passed.
REPORT OF THE DIRECTOR
This item was heard at 6:00 p.m.
Mr. Zunguze referred to the memo to the Planning Commission regarding the Envision Utah free training on planning issues. He strongly encouraged them to enroll themselves in the training if they are so inclined to attend.
He also referred to the Planning Commission’s first copy of the annual report and welcomed input regarding the formatting of that document. He said that this is an effort to showcase what the Planning Commission does and to communicate with the City Council.
Initiated Petitions
Mr. Lynn Pace referred to an issue that has come to the City Attorney’s attention as result of an appeal of a Board of Adjustment case. He said that the zoning ordinance language which was contested in that appeal was the language found in section 21A.38.100 describing what constitutes a legal noncomplying lot, more specifically any lot that was in legal existence “prior to” April 12, 1995. He said that the court ruled that the language “prior to” means anytime prior to going as far back to the 1800’s. He said that that certainly was not what was intended by the code at the time it was drafted. He asked the Commission to initiate a petition to review that provision regarding legal noncomplying lots and any other provisions in the code that contain similar language. Chair Muir so initiated the petition.
CONSENT AGENDA – Salt Lake City Property Conveyance Matters:
a. The Church of Jesus Christ of Latter-day Saints and Salt Lake City Corp. – The L.D.S. Church is requesting Salt Lake City to grant a new exclusive-use easement for a sub-surface steam transmission line tunnel structure under West Temple Street mid-block between North Temple and South Temple Streets. The proposed tunnel structure would measure 10-feet by 10-feet and be made of concrete. The proposed easement would be for the new tunnel structure and would be located south of the existing steam pipe tunnel, which is located under the mid-block existing crosswalk on West Temple Street. The proposed compensation to the City for the new easement is relinquishment of the old tunnel easement and acceptable stabilization of the abandoned old tunnel, with any additional compensation amount to be determined as more information is available. The City Street rights-of-way are fee title property and are not classified as zoning districts; however, the surrounding property is zoned Downtown “D-1” and Urban Institutional “U.I.” The property is located in City Council District # 3.
Ms. Linda Cordova, City Property Manager addressed the Commission to give a brief history of the proposed easement. She said that in dealing with this real estate transaction the LDS Church is proposing to construct a new tunnel. In addition to the steam lines through the tunnel, other utility lines such as telecommunication lines that service the Church facilities on Temple Square and the block to the east of it. She noted that there is an existing tunnel which was constructed in 1906 and said that that structure has deteriorated and is compromising the integrity of the street. As part of this project the LDS Church will be filling in and abandoning the old tunnel to City Engineering standards. She noted that a recorded document that gave the LDS Church the right to construct the old tunnel can not be found leading them to believe that it predated the time when the City started to require that easements or permits be issued to allow the types of facilities in City streets. Ms. Cordova said that this new tunnel will be documented with a recordable easement for future reference. She said that this project will have an impact on City sewer and water lines in which the Applicant will enter into an agreement with the Public Utilities that will satisfy their needs as well as clarify the responsibility for maintenance and cost, to ensure that those lines are not compromised.
Commissioner Chambless asked if the maintenance workers will have access for repairs and such as needed. Ms. Cordova replied that for security reasons the Church officials will have control over maintenance of the tunnel, which is why the Public Utilities Division is requesting a guarantee which would allow them to maintain the portion where the sewer line penetrates the tunnel should something happen there.
Commissioner Chambless clarified that the LDS Church officials will be responsible for the cost and maintenance of the tunnel. Ms. Cordova said that that is correct.
Commissioner Chambless inquired if this tunnel will be used as ingress and egress for security purposes.
Mr. Tom Checketts an Attorney with Kirton and McConkie addressed the Commission representing the LDS Church. He said that because the City has vehicles and the experience with maintaining sewer lines, the latest draft of the easement agreement shows the LDS Church indemnifying the City for anything that could go wrong; however, the maintenance will be done by the City on the LDS Church’s nickel, for that ten or twelve foot section of pipe. He addressed the ingress and egress of the tunnel and said that the interior dimensions set forth now are intended to be 8 foot tall by 10 foot wide and will not be a heavily traveled tunnel.
Commissioner McDonough referred to Ms. Cordova’s comment regarding the fact that this had not been recorded as an easement because of its date. She referred to the study boundary of the diagram which includes other areas where the steam tunnel crosses other roads. She asked Ms. Cordova if the study boundary is the boundary of the actual easement or is the section proposed being reviewed because there is work being done there. Ms. Cordova answered that they are reviewing this area because that is where the current work is being done. Commissioner McDonough asked if the other area is slated for work to begin and is there a reason to record an easement for the other locations. Mr. Checketts replied that the tunnel under South Temple is not part of this project and he was unaware of the plans for that area.
Commissioner Scott asked if the cost of rerouting the sewer is the responsibility of the LDS Church. Mr. Checketts replied that all of the costs associated with this project will be borne by the LDS Church. Commissioner Scott referred to Mr. Brad Stewart’s suggestion that the maintenance replacement of the sewer pipe within 20 feet of either side and through the tunnel, and she asked if it would be a smaller distance than 20 feet on either side.
Mr. Michael Tew a project manager with the LDS Church’s special projects division who is managing this project addresses the Commission. He said that the distance of this sewer construction easement is in the neighborhood of 50 feet. He said that this project will encompass the distance on either side of the tunnel as well.
Mr. Wheelwright said that the Public Utilities Division communicated that they will require an agreement to their satisfaction to address all of these issues.
Commissioner De Lay mentioned concern with the question that Commissioner McDonough brought up asking if this is a small easement or a large one. She asked if the Applicant could address the question if they would be back in a year or so requesting another part of this approval. She also mentioned concern with turning over private control of public utilities.
Chair Muir clarified that this is a private utility coming from a central heating plant that just needs to cross a public right-of-way.
Ms. Cordova said that what was given to the Commission was a rendering that she had at the time of the request. She referred to a new drawing which she obtained when she asked the Applicant where the existing tunnel is located in relation to the new one. She described the new diagram, and said that the new tunnel will service the Conference Center across North Temple which is a State road. She said that is the only other easement that she is aware of and that is not an issue.
Commissioner Daniels made a motion to approve the said request for the steam tunnel easement.
Commissioner De Lay seconded the motion.
Commissioner Scott referred to the length of the new tunnel being longer than the old tunnel and asked Ms. Cordova if the compensation will be based on the square footage. Ms. Cordova answered that that is correct.
Commissioner Seelig requested that a copy of the new map that Ms. Cordova presented this evening be submitted as part of the public record.
Commissioner Chambless, Commissioner Daniels, Commissioner De Lay, Commissioner Diamond, Commissioner Galli, Commissioner McDonough, Commissioner Noda, Commissioner Scott and Commissioner Seelig voted “Aye”. Prescott Muir as Chair did not vote. All voted in favor, and therefore the motion passed.
PUBLIC HEARINGS
Petition No. 410-657, by Ken Ament representing the main branch of the Salt Lake City Public Library requesting to amend the previously granted planned development approval (Petition 410-509) for the main branch of the Salt Lake City Public Library at 210 East 400 South to modify zoning ordinance standards to allow certain signs. This site is located in the “PL-2” Public Lands district.
This hearing began at 6:20 p.m.
Senior Planner Joel Paterson presented the petition as written in the staff report. He stated that the Planning Commission granted a planned development approval at 210 East 400 South in December of 2000. He said that this petition specifically addresses signage which has been placed on the block and does not comply with the sign standards for the Public Lands-2 zoning district. The Applicant is requesting that the Planning Commission, through the planned development process modify the sign standards for this project to legalize the non-conforming signs. He described the signs in question as listed in the staff report. Staff respectfully recommends that the Planning Commission modify the standards found in Section 21A.46.120.E.4 Sign Type and Height Standards for the PL, PL-2 and I Districts to allow the signs found on Library Square subject to the conditions as listed in the staff report.
Commissioner Diamond inquired as to the process of implementing the non-conforming signs.
Mr. Ken Ament project manager for the Main Library addressed Commissioner Diamond’s concern saying that the signs were reviewed by the Building and Housing Division. He said that a few signs were changed through the progression of the project and those signs did not go back through the review process with Building and Housing.
Mr. Zunguze stated that when the project was initially reviewed the signs should have been reviewed as well, but they were not, which is why this matter is before the Commission at this time. He said that he has instructed Staff, with regard to projects of this magnitude, to inquire of the Applicants about signage so that that aspect may be handled during the initial review. He said that it is not the typical process for Staff to come in the back end and request that the Commission approve this kind of request.
Commissioner Diamond felt that this request sends a message to the community that you can build what you want and then come before a City entity and deal with it then. He asked Staff what is the proper way of handling this request.
Mr. Zunguze reiterated that in the future the Commission will be receiving a complete sign package when there is a planned development review. He also said this is an unusual case, the Planning Commission should have been given this information to review at the time of the planned development review.
Commissioner Seelig noted that the Police Department did not respond to the request by Staff for Police comments regarding the current request. She referred to the Planning Commission subcommittee which is working on City-wide policy statements to create a more holistic approach to land use planning. She said part of that process involves the individual perspectives of the different City Departments and she felt that it is important to learn from their expertise. She said that it is particularly disturbing to not see a Police response since this project, according to the community council, deals with vandalism and public safety issues. She asked if there is a way to encourage other departments to respond to requests for information to better insure the success of the Planning Commission’s decisions in the future.
Mr. Zunguze stated that Staff is aware of what transpired and apparently the Police did not have comments. In this case they should have responded with a statement that they did not have comments. He said that this has since been communicated to the departments and divisions concerned.
Commissioner Chambless referred to the stop sign located at 500 South exiting the parking garage. He asked why that sign is positioned so high. Mr. Ament replied that the sign is placed high due to the fact that the exit of the parking garage is up an incline to the street.
Commissioner Daniels said that he felt that the stop sign is at the right height to warn drivers that there is a pedestrian walkway.
Commissioner De Lay referred to the pedestrian warning sign along 500 South which has been vandalized. She said that her only concern is with that sign continually being vandalized. Mr. Ament said that he has contacted a contractor to move the sign per the Transportation Division’s request, once weather permits.
Chair Muir referred to Commissioner Diamond’s comments and followed up by saying that a reprimand is in order. He said that there are too many people in the community that have a certain amount of contempt for the zoning ordinance, and the City should be held to a higher standard. He also complimented the Library and said that the signage is tasteful and it distinguishes the Library.
Commissioner Scott inquired if the artistic bike rack which is going to be installed by the restrooms is going to include words as well. Mr. Ament replied that it is going to say “BIKE RACK”, and will be built in the spring.
Chair Muir opened the public hearing.
No one was forthcoming.
Chair Muir closed the public hearing.
Motion
Commissioner De Lay made a motion based on the Staff recommendation and comments heard this evening that the Planning Commission modify the standards found in Section 21A.46.120.E.4 Sign Type and Height Standards for the PL, PL-2 and I Districts to allow the signs found on Library Square subject to the following conditions:
1. That the pedestrian warning signs located at the entrance to the 500 South parking garage be moved to the north side of the sidewalk as recommended by the Transportation Division; and
2. That the Petitioner secures all required permits needed to place signs on Library Square.
Commissioner Chambless seconded the motion.
Commissioner Chambless, Commissioner Daniels, Commissioner De Lay, Commissioner Diamond, Commissioner Galli, Commissioner McDonough, Commissioner Noda, Commissioner Scott and Commissioner Seelig voted “Aye”. Prescott Muir as Chair did not vote. All voted in favor, and therefore the motion passed.
Petition No. 400-03-24, by the Salt Lake City School District, requesting annexation of unincorporated land into Salt Lake City. This annexation will require amending the Northwest Community Master Plan designating the Future Land Use Map for Public Land uses and zoning the property “PL” Public Land. The annexation area is a 12.3 acre site located at the northwest corner of 1700 North Street and Redwood Road. The proposed development on the site is the Northwest Middle School.
This hearing began at 6:40 p.m.
Principal Planner Everett Joyce presented the petition as written in the staff report. He said that this petition is to annex 12.3 acres of unincorporated land into the City to accommodate for the new Northwest Middle School. The City Council has past a resolution to accept the annexation and has forwarded it back to the Planning Commission for review. State statutes require applicable zoning on the property and part of that action is a requirement to amend the Master Plan to include this area. The issues before the Planning Commission are: to amend the Master Plan, designate an appropriate future land use and make a recommendation to City Council on the zoning of the property. Mr. Joyce said that in the review of the proposed development with the Development Review Team they identified public way improvement requirements and connections for utilities. The school district will be subject to meeting the standards for Salt Lake City along 1700 North, and State standards along Redwood Road. He said that the actual construction of the school is exempt from the zoning regulations and site development requirements; however, there is a connection through the public way permits to require certain things such as: avigation and odor easements for the property as well as public way improvements. He referred to an issue that was brought up earlier today that the Engineering Office may need dedication of right-of-way for the design of the public way. He said that the School Board Staff has stated that they have no problem with that dedication. Based on the analysis and findings of fact listed in the staff report Staff recommends that the Planning Commission forward a favorable recommendation to the City Council to: annex the school property; amend the Northwest Community Master Plan to include the proposed annexation property; to designate the property Public / Semi Public on the Northwest Community Master Plan Future Land Use Map; and to zone the property “PL” – Public Lands.
Commissioner De Lay referred to the City’s declaration of intent to annex portions of unincorporated Salt Lake City and noted that the surrounding properties are a part of the City. She asked if this portion was missed in the Master Plan. Mr. Joyce said that the surrounding properties were annexed into the City as they were developed.
Commissioner Scott referred to the statement in the staff report that a traffic signal will not be put in at 1700 North and Redwood Road. She was concerned with the lack of a traffic signal there due to the fact that schools are often a gathering place for the community and there will be an increase of pedestrian traffic.
Mr. Joyce said that the school district conducted a traffic impact analysis of Redwood Road which is State roadway and State controlled as far as a traffic light. There are certain criteria that have to be met to require a traffic light, looking at national standards for schools and anticipated traffic generated by this school would not meet any of the criteria which would require a traffic light. He said that the basic pattern of the pedestrian traffic attending the school will be those coming from the west. Those coming from the east of the school will be in the bussing parameters of the school.
Commissioner Daniels asked if it is reasonable for a pedestrian crossing which would require traffic to slow down during school hours on either side of the school. Mr. Joyce said that the transportation study recommended that the school district consider crosswalks on the west side of Redwood Road on 1700 North and on the west side of Fernleaf Street which is the street that comes into the parking lot furthest to the west on 1700 North.
Chair Muir opened the public hearing.
No one was forthcoming.
Chair Muir closed the public hearing.
Commissioner Diamond asked Mr. Joyce to clarify again the requested action. Mr. Joyce answered that the request is to: annex the school property; amend the Northwest Community Master Plan to include the proposed annexation property; to designate the property Public / Semi Public on the Northwest Community Master Plan Future Land Use Map; and to zone the property “PL” – Public Lands.
Commissioner Chambless referred to the land which is currently vacant and the use is designated for public education, he asked if this site has ever been used historically as a school. Mr. Joyce answered that for the past 10 years it has been vacant and used for agricultural purposes.
Commissioner Scott clarified that if this request is approved by City Council then it will not come back before the City Planning Office or Planning Commission for further review. Mr. Joyce replied that it will come back to the City for public way permits and utility connections, as far as a building permit for the project and site development it would not require further Planning Commission approval because schools are exempt.
Commissioner Chambless asked the Petitioner where the closest middle school to the site is. Mr. John Taylor, Executive Director of Auxiliary Services responsible for new construction addressed the Commission. He said that there is an existing Northwest Middle School on 1000 North. He said that that site does not allow the Salt Lake School District to rebuild a middle school that would accommodate the growth pattern in that area of the City. He said that the square footage of the new middle school will essentially double that of the existing middle school.
Commissioner Scott asked Mr. Taylor how many students the proposed school is being built for. Mr. Taylor replied that the design plan can accommodate 850 students. He added that depending on how the building is used it may accommodate more students. Commissioner Scott referred to the current enrollment and asked how many students they anticipate. Mr. Taylor answered that the current enrollment is around 750 students.
Commissioner Scott asked Mr. Taylor if it is a concern that this site is located on a State road and asked if they anticipate special needs such as a bridge over the road in the future, to ensure the safety of the students traveling to and from the site. Mr. Taylor said that as the project nears completion we may see a need for the traffic patterns to be reevaluated. He said that there will be proper signage and the speed around the school will most likely be limited to 20 miles an hour. He said that the life safety of the students is a top priority for the school and they will be working with UDOT on that point.
Commissioner Scott referred to the placement of the structure in proximity to the street and asked if the noise from the traffic is a concern. Mr. Taylor answered that the Architecture and Engineering of the structure mitigates the noise.
Motion
Commissioner De Lay made a motion based on discussion this evening and analysis and findings as listed in the staff report that the Planning Commission forward a recommendation to the City Council to: annex the school property; amend the Northwest Community Master Plan to include the proposed annexation property; to designate the property Public / Semi Public on the Northwest Community Master Plan Future Land Use Map; and to zone the property “PL” – Public Lands.
Commissioner Noda seconded the motion.
Commissioner Chambless, Commissioner Daniels, Commissioner De Lay, Commissioner Diamond, Commissioner Galli, Commissioner McDonough, Commissioner Noda, Commissioner Scott and Commissioner Seelig voted “Aye”. Prescott Muir as Chair did not vote. All voted in favor, and therefore the motion passed.
Petition No. 410-658, by T-Mobile, represented by Clark Harris requesting conditional use approval to replace a 70-foot high utility pole in a public right-of-way with an 80-foot pole to accommodate wireless telecommunications antennas and the associated electrical equipment. The project is located at approximately 1883 East Hollywood Avenue and in a Single Family Residential “R-1-7000” zoning district. An administrative hearing officer approved the request at a public hearing on January 6, 2004. This decision has been appealed to the Planning Commission for consideration.
This hearing began at 7:07 p.m.
Associate Planner Janice Lew presented the petition as written in the staff report. She said that this request is before the Planning Commission this evening because an appeal of an administrative decision must be forwarded to the Planning Commission for review. She said that Deputy Planning Director Doug Wheelwright granted the conditional use request as the Administrative Hearing Officer on January 6, 2004. Staff determined that the request was for a routine facility which complied with the standards set forth in the ordinance and was no different from other utility facilities approved in the past. She noted the there were three similar approvals in the past year.
Ms. Lew stated that Staff had not received public comment in opposition to the proposal at the time of approval. The administrative decision was then appealed by Ms. Stephanie Marthakis the property owner of 1883 East Hollywood Avenue. Ms. Lew noted that the appeal also included the signatures of 37 people. The appellants contended that the project would have a negative impact on their properties. The City’s noticing policy was also brought up as an issue of concern because several of the names listed on the appeal had not received notice of the hearing due to the fact that they were renters. Ms. Lew noted that all of the property owners listed on the appeal were notified of the administrative hearing as required by the ordinance. In addition the property was posted with a sign for both hearings which serves to provide notice and a contact person to those directly affected by the request.
Ms. Lew stated that the request is to replace a 70 foot high utility pole in the public right-of-way at the corner of Hollywood Avenue and 1900 East with an 80 foot high utility pole. Three six foot high antennas which are eight inches wide will be flush mounted and placed at the top of the pole. The associated electrical equipment is proposed to be installed on the pole as well. The zoning ordinance provides criteria specifically for the evaluation of antennas on utility poles. Utility poles located in the public right-of-way are typically permitted uses provided that they meet the criteria as outlined in the ordinance. Because this request is to replace the utility pole and install antennas with an outside diameter that is greater than 24 inches a conditional use is required. The proposal addresses T-Mobile’s need to provide in house service to the residential customers in the neighborhood.
The Sugarhouse Community Council reviewed the proposal in November of last year; however, Ms. Marthakis asked the community council to reconsider their decision to approve the proposal at their meeting held on February 4, 2004. At that time the community council rescinded their decision, the trustees felt that the neighborhood opposition brought to their attention by the Appellant was new information that had not been presented at the first meeting and was important to take into consideration. Another issue that was brought up at that time was that the Applicant had not contacted the surrounding neighbors of their proposal. This is not required by the City. The City’s view is that the community councils and the public hearing process exist to provide that function. Staff also received a letter from City Council Member Dave Buhler requesting that the Planning Commission seriously consider the appeal and he suggested that the location be moved to a commercial area. There is a commercial node that exists at 2100 South and 2100 East which limits building heights and utility poles to 30 feet in height. In this case the existing utility corridor along 1900 East provides the additional height needed to effectively provide service to the residential neighborhood.
Ms. Lew noted that she had been contacted by a Ms. Nick Thomas as well as Ms. Kathy Weeks who were both requesting information regarding the proposal. Staff position on this request has not changed. Considering the height of the existing utility corridor along 1900 East, that the zoning ordinance specifically identifies utility poles as suitable structures for mounting antennas and the proposal is consistent with the ordinance. Staff recommends the Planning Commission approve the proposed facility subject to the conditions outlined in the staff report. Based upon the comments, analysis and findings of fact as listed in the staff report, Staff recommends the Planning Commission approve the proposed facility subject to the conditions as listed in the staff report.
Commissioner De Lay asked Ms. Lew if there were comments submitted by the public regarding the other three poles which were approved throughout the past year. Ms. Lew answered that Staff did not receive comments in opposition to those projects.
Commissioner De Lay confirmed that the only commercial area near the site is 2100 South and 2100 East. Ms. Lew answered that that is correct. Ms. Lew also noted that the Planning Commission reviewed a flag pole installation on 2100 South which was denied last year.
Commissioner Chambless referred to Highland High School along 2100 South and 1700 East. He asked Ms. Lew if that area would be appropriate for the use proposed. He thought that perhaps a flag pole or light standard could serve this purpose. Ms. Lew answered that light structures have not been used for this type of facility. A flag pole at the school may be an opportunity. She said that carriers have had difficulty with some schools recently as far as getting permission to locate on their property.
Commissioner De Lay wondered if the standard process for cell towers needs to be reviewed. She expected that the telecommunication entities will be continually requesting more of these permits. She wondered if a Master Plan should be established to handle these petitions. Ms. Lew said that there may be other types of facilities that need to be looked at as new options for telecommunication towers; however, at this point the utility pole has been the solution in providing service in residential areas.
Mr. Wilde added that when the ordinance was created to regulate cell towers, there was a Planning Commission subcommittee which met with the community council representatives and members of the cellular industry to develop that ordinance. He said there is always opportunity for change and the subcommittee is still available to review the ordinance. He said that the telecommunication technology continues to change. He noted that a 60 foot high flag pole in Sugar House Park was approved for a cell tower. Mr. Wilde said that in the corridors with many utility lines the justification is that there is already the mass and clutter there so it seems to be a compatible use.
Commissioner De Lay asked when the last telecommunication subcommittee meeting was held. Mr. Wilde replied that the Federal Act was adopted in 1996 which brought on a flurry of activity to adopt an ordinance. That subcommittee was in effect until 2000 and met when there were new proposals or ordinance revisions.
Mr. Wheelwright said that he understood the Commission’s frustration with not being able to predict these sorts of proposals. He said that there will always be multiple companies, technology will always be changing and as they establish their infrastructure and get more customers they will have to densify. Staff has come to realize that there is no way to predict that, each proposal needs to be reviewed as received.
Mr. Wilde said that an antenna at 2100 South and 2100 East would not be likely to satisfy the request. He said that these antennas are very site specific to provide the right coverage for a certain location.
Commissioner Scott clarified that the property owners within 300 feet of the site received the proper notice of 14 days, as well as a posting on the property 10 days prior to the administrative hearing. Ms. Lew answered that that is correct. Commissioner Scott asked if any one came forward. Ms. Lew replied that there was one person who attended the hearing who wanted information regarding the process, as a new resident to the area.
Mr. Clark Harris spoke to the Commission as a representative for T-Mobile. He said that he currently resides at 1571 East Harvard Avenue which is north of the proposed site. He said that T-Mobile’s objective is to provide better coverage to their customers in their vehicles and homes within the general area of 1900 East and Hollywood Avenue. He said that one challenge they face with the Sugar House area is that the mature trees and foliage create physical resistance. He referred to the suggestion of 2100 South and 2100 East as the alternative site and said that there is no existing verticality there, to get the height they need T-Mobile would have to develop a new 100-120 foot tall structure. He referred to the criteria that a wireless company looks for when developing a new facility, first there has to be a need, second they need to find a willing landlord. He said that the Salt Lake City School District has not been a willing landlord, which would rule out the Highland High School as an alternative site.
Mr. Harris described other existing poles in other commercial locations which do not provide coverage for the 1900 East area. He said that the proposed pole is compatible with the surrounding community and the height is proposed to be increased 10 feet. He said that all of the associated equipment will be contained on the pole. He discussed the criteria that Utah Power and Light requires as a willing landlord. Mr. Harris stated that the site will be silent and maintenance will require visits to the site once or twice a month during normal business hours. He referred to the complaint that this facility may bring the surrounding property values down, and said that he has recently bought a home in the area and wireless facilities were never brought up. He said that through the purchase transaction he asked both the seller’s real-estate broker and his broker, both have a minimum of eight years experience in the Sugar House area and have never had this issue brought up.
Mr. Harris referred to the lease negotiations with a willing landlord, Ms. Stephanie Marthakis, which took place in the spring and early summer of 2003. He said that the lease did not materialize so T-Mobile decided to change the design of the equipment in order to locate the entire facility on the pole. T-Mobile feels that this design is compatible with the surrounding community, works well within the requirements of the ordinance and will meet the needs of T-Mobile. He thanked Staff and the Planning Commission and asked that the Commission uphold the decision made to approve this project in January.
Commissioner De Lay asked Mr. Harris to explain why the lease agreement with Ms. Marthakis did not materialize. Mr. Harris said that T-Mobile made the decision not to move forward with the lease due to legal items that changed throughout the negotiations.
Commissioner De Lay asked Mr. Harris if it is more common for T-Mobile to locate the associated equipment on private property. Mr. Harris said that that is correct. This will be the first installation of equipment which is 100 percent on a utility pole. He said that they would have preferred to lease from Ms. Marthakis because that would have allowed larger cabinets which would provide a maximum of 120 calls at any given time.
Commissioner De Lay asked Mr. Harris if there were other property owners that T-Mobile could have leased property from. Mr. Harris said that that is possible; however no other property owners responded.
Commissioner Scott asked if T-Mobile had leased from a property owner would they still need the 10 foot extension on the pole. Mr. Harris answered that they would need the additional verticality. The challenge with the poles is that the Utah Power and Light equipment needs to be separate from the T-Mobile equipment.
Commissioner Scott asked Mr. Harris how far from the pole may the equipment be stored in order to achieve the goal. Mr. Harris said that the preferred solution is for the associated equipment to be located right next to the pole; however, it may be stored up to 150 feet away.
Commissioner Scott commented that it is too bad that a lease agreement could not be met. She felt that the extension of the pole is not the issue, it is all of the equipment that it attached to the pole. She referred to the photographs that were given to the Commission this evening by Ms. Stephanie Marthakis and asked how the proposed pole will compare to the pole on 700 East and 800 South. Mr. Harris said that T-Mobile’s equipment is about 1/3rd smaller in relation to each cabinet seen on the photos but they will have about the same amount of cabinets located on the pole.
Commissioner Chambless referred to the suggestion of Highland High School as an alternative site. He asked Mr. Harris if they have been in negotiations with the school. Mr. Harris said that T-Mobile has not received cooperation from the school staff until recently. There has been curiosity by the staff which is revisiting this issue. He said that he could not say what that means as far as future possibilities.
Commissioner Chambless asked Mr. Harris if a new pole were constructed near 1700 East and 2100 South would that achieve the goal that would be accomplished by the current proposal. Mr. Harris replied that there is that possibility assuming that the school would be a willing landlord. He added that that would probably require a new 100 foot tall pole.
Commissioner Daniels clarified that T-Mobile was in negotiations with the Appellant to place the associated equipment on her property. The negotiations did not materialize as a result T-Mobile has decided to place the equipment on the pole which the Appellant feels is undesirable. He asked Mr. Harris to speak to that issue. Mr. Harris replied that the difference is the design. They would have still needed to replace the pole with a taller one, but they would have housed the associated equipment on Ms. Marthakis’ property. They are now requesting to house all of the equipment on the exact pole they would have used with the lease agreement.
Commissioner Scott asked if T-Mobile would be willing to renegotiate with Ms. Marthakis or another neighboring resident if someone was interested in a lease agreement. Mr. Harris said that they would be open to that; however, it is a lease term which needs to be accommodating to both parties.
Chair Muir opened the public hearing.
Ms. Sarah Carlson representative of the Sugar House Community Council addressed the Commission saying that when T-Mobile originally came before the trustees in November there was no opposition. She felt that there was an issue with the length of time between when this item was discussed at a community council meeting and when it was approved administratively. She said sometimes the community council does not necessarily receive input from the neighbors who would be directly affected by the project when the community council votes on an item.
Chair Muir did not feel that that was true. He said that he receives notification of items that are on his community council agendas. Ms. Carlson replied that that is the case if you are on the mailing list and the Sugar House Community Council has greatly reduced their mailing list and gone strictly to e-mail and posting information on the website.
Ms. Carlson stated that the initial vote in November for the Sugar House Community Council regarding this item was 9 votes in favor and 7 against. The vote taken last week when the item was reheard was 13 votes to deny the proposal and 2 votes to approve the proposal. She noted that there has been a great deal of discussion regarding the fact that this is going to be an ongoing issue and the community is not in favor of these poles cluttering the streets. The Sugar House rescinded their original decision based on new information and voted to deny this conditional use permit.
Commissioner Scott asked Ms. Carlson if the trustees contacted any of the property owners in the area back in November. Ms. Carlson said that they had not.
Mr. Zunguze said that it is important that the role of the community councils be appreciated. He said that he was taken back as the Planning Director to receive correspondence saying the Applicants should be sent to canvas the community members individually. He said that the Planning Office and the City assumes that the community councils are in place to perform that function as a clearing house. He said that if there are things that the community councils need to review to increase notification and coverage to the community then it would be appreciated if those steps were taken. He said that the appearance here is that the Planning Office did not perform and he did not think that was correct.
Commissioner Chambless asked Ms. Carlson if the Sugar House Community Council would look favorably on the Highland High School as an alternative. Ms. Carlson said that she thinks that that would be favorable.
Chair Muir entered into the record that the Planning Commission received a letter from Ms. Stephanie Marthakis this evening dated February 11, 2004.
Mr. Darren Peterson, the domestic partner of Ms. Stephanie Marthakis addressed the Commission. He said that Commissioner De Lay’s comments are appreciated regarding the visual clutter as well as the eight year old ordinance which he felt needs to change. He was opposed to the request and said that they have spent large amounts of money to increase their property value and asked that the Commission to consider the other alternatives for this proposal such as the commercial area along 2100 South and 2100 East or the Highland High School.
Commissioner De Lay said that her interpretation of this issue is that T-Mobile entered into negotiations with Ms. Stephanie Marthakis and Mr. Darren Peterson which did not workout. She said that the appellants are upset and have rallied all of the neighbors to not allow the Applicant to proceed. Mr. Peterson replied that they gave T-Mobile the option to store the associated electrical equipment in a shed inside their property line. He said that they sought legal counsel and were advised to change some items in the lease as well as requesting more money for the lease. He added that his concern is that the site is aesthetically pleasing.
Commissioner De Lay asked Mr. Peterson if the community council would have opposed the request if the Applicant would have stored the equipment in their back yard. Mr. Peterson said that the community council probably would have approved it. He felt that this approval would set a bad precedent for the community.
Commissioner Scott asked Mr. Peterson how large the storage unit would be for the cellular equipment. Mr. Peterson replied that it would be the size of a Tuff Shed. Ms. Marthakis added that T-Mobile said that it would be an 8 foot tall by 10 foot wide concrete pad.
Ms. Stephanie Marthakis addressed the Commission in opposition of the proposal. She said that the impact on the Sugar House neighborhood would be great. She felt that the neighborhood is charming and she has spent time and money to increase here property value. Ms. Marthakis clarified that when she raised the concern of the property value she meant market value of the property. She said that as a licensed realtor she felt that the lease agreement could be a deal breaker due to its location and proximity to her home and how visible it is. She felt that this is not a compatible use as stated in the staff report. She contended that the Applicant had not downsized the facility; she felt that they are visually increasing the size of the facility. Ms. Marthakis urged the Commission to deny the conditional use request.
Ms. Yoko Matsubayashi addressed the commission in opposition of the proposal. She said that she supports the two alternative locations for the pole of 2100 South 2100 East, or Highland High School. She felt that if the antenna is moved one or two blocks from the proposed location it should not make a difference to the Applicant.
Mr. Zunguze asked Ms Marthakis if she received notification of the administrative hearing. Ms. Marthakis said that she did receive notification but she was out of town at the time of the hearing.
Mr. Wade Budge of Snell & Wilmer addressed the Commission as legal council for T-Mobile. He stated several different policy reasons as to why the Planning Commission should uphold the original approval. First he said that there was an opportunity during the administrative hearing for the neighbors to be heard which would have been the appropriate time to bring up their concerns. He said that this is a private lease dispute, and should not be discussed in this forum. Mr. Budge added that as was mentioned by Planning Staff, in 1996 Congress past the Federal Telecommunications Act. This act puts certain restrictions on what cities and states can do. He noted that as someone who has represented T-Mobile across the State he has found that Salt Lake City’s ordinance is one of the most restrictive. He added that T-Mobile has complied with all of the provisions of the ordinance and under the Federal Telecommunications Act public clamor can not be the basis for denial. He stated that Congress has decided that where there are significant gaps in coverage, carriers must be allowed to fill those gaps for safety issues, and people are increasingly relying upon their cell phones as their only way of communication.
Mr. Brent Nelson, a neighboring property owner spoke in opposition of the proposal. He felt that T-Mobile’s equipment must be lacking if they need so many poles within the neighborhoods. He said that he supported the alternative suggestions for this project. He worried that the antennas may interfere with television and radio transmission.
Mr. Shane Gillry, a neighboring resident of the site addressed the Commission requesting information regarding a few issues he had concerns with. He asked that the Applicant address the transmission of the antenna. He was concerned with the radio frequency interference issues. He said that cell phone companies have clever ways of hiding the equipment and wondered if the Commission could impose a condition to do so.
The following comments were read for the record.
Ms. Carol Smith, a neighboring resident of the site stated, there are commercial spots two blocks up that would support this tower.
Mr. Jeff Shuckra requested that the Commission deny the pole or move it to 2100 South.
Mr. Harris addressed the Commission to respond to the public comment. He referred to the community council not noticing the community and felt that that is the responsibility of the community council. Mr. Harris addressed the suggestion to hide the facility. He said that the design that they have presented has the least visible impact. He addressed the lease issues and reiterated that it is the prerogative of the parties engaging in the lease agreement to follow through or withdraw. He said that T-Mobile did not feel that the proposed lease was in their best interest and opted not to follow though. Mr. Harris said that the proposed use is silent and the Federal Law does not allow cellular carriers to interfere with licensed or unlicensed radio channels or spectrums.
Commissioner McDonough asked Mr. Harris to restate his comments regarding the 2100 South and the 2100 East alternative. Mr. Harris replied that Utah Power and Light will not allow a cell tower to locate on a corner pole with “switch gear” which basically allows them to cut power.
Commissioner Scott asked Mr. Harris what is the minimum lease time for an agreement with a private property owner. Mr. Harris answered that the minimum is 15 years.
Chair Muir closed the public hearing.
Commissioner Seelig asked Staff if there are other options such as submitting written comments for participation in an administrative hearing and asked if they were stated on the notice. Mr. Wheelwright replied that that is not stated on the notice; however, the notice does include the statement that if you have any questions or would like to request additional information please call with the contact Staff person.
Commissioner De Lay referred to the recent legislation to eliminate junk food from schools and thought that schools may be more open to telecommunication towers on the schools property. She was concerned with the unpredictability of this issue, and thought that there needs to be a fore-thinking solution in place. She felt that at the proposed location there is a large amount of visual pollution and thought T-Mobile should renegotiate to another location rather than add one more burden to this neighborhood.
Chair Muir said that the issue grows out of the competition of the many different service providers. He said that the more wireless communication is used, we should all take into consideration that we are contributing to the increase of these types of utility poles every time we pick up a cell phone.
Commissioner Scott stated that there is a process for this type of proposal and it was followed. She said that she has a community council background and understands that the community councils need to represent the people, and perhaps something fell through the cracks on this issue; however the people most involved had the opportunity to step forward but they didn’t until they were sure that the negotiations were not working out then everyone realized that they did not want this project in their back yard. She said that the other alternative is to enter into lease agreements, and she did not know if all of the other negotiations have been explored. She wondered if the Applicant could explore other negotiations to avoid the visual clutter and come back at a later date if they can not achieve an agreement.
Chair Muir said that a reasonable proposition would be to ask T-Mobile to come back with efforts to camouflage this pole, but to remand this back to an agreement with the Applicant and a private party would put the Applicant in a difficult situation.
Mr. Pace, Deputy City Attorney, stated that this is not a master plan issue; back three years or more there was a fairly exhaustive process used to develop an ordinance creating a box in a sense, which says that if you can do what is inside the box it is a permitted or conditional use, if you can not then it is not allowed. He said that, as has been mentioned this evening, that the technology is always changing and there are constantly more providers but it is a good ordinance and the industry bought off on it. One concept that is included in the ordinance is that a new pole is more objectionable than using an existing pole. The co-location of placing the proposed type of facility on an existing pole is better than constructing a new pole 100 feet high. He said that the Commission needs to focus their attention on the standards for conditional use approval, because the equipment proposed to be mounted on the pole is acceptable according to the ordinance. He said that it is unacceptable for the Commission to request that the Applicant go to another location such as Highland High School if they do not have a willing property owner. Mr. Pace stated that the City has had to deal with a Federal Act that has mandated that municipalities remove barriers to competition within the telecommunications industry, at the same time the City has legitimate interest in protecting the view and neighborhoods. The fact that the Planning Commission does not review many of these petitions is proof that the process in place works.
Commissioner Chambless asked Mr. Pace if it is appropriate to ask the Applicant to seek negotiations with Highland High School. Mr. Pace replied that the Commission would have to find that a new pole at that location was more desirable and give T-Mobile a window of time to pursue that. He said that there is a grey area as to how long the Applicant can be delayed because the Commission would like something else better. Mr. Chambless said that his effort is to find a creative solution to the problem. Mr. Pace reiterated that the Planning Commission needs to make their decision based on the conditional use standards in front of them this evening.
Commissioner Galli said that he appreciated Mr. Pace’s efforts to help the Commission understand how their jurisdiction is circumscribed but there are clear limits in this case. He said that the City ordinance that governs the Commission does not include alternatives analysis requirements like other laws. He stated that the discussion heard this evening is appreciated; however, when the focus is on the conditional use criteria there has not been any evidence given showing how this petition fails to meet the criteria established by the ordinance. He said that the limits of the Commission’s jurisdiction are pretty clear and he did not feel that the Commission should spend any more time discussing those limits.
Chair Muir asked Mr. Wheelwright how this proposal is distinguished as a conditional use. Mr. Wheelwright said that it is the replacement of the pole, being a maximum of 10 feet higher than the existing pole, as well as the diameter of the antenna at the top which exceeds 24 inches. He added that if the site works with the existing pole and the antenna could be contained to 24 inches then it would be a permitted use and a building permit would be issued over the counter in which there would not be public involvement. Chair Muir clarified that the request is for an increase in diameter of the antenna to 30 inches as oppose to 24 inches.
Mr. Wheelwright stated that the zoning of Highland High School does not allow monopoles, which means that a site there would be restricted to roof or wall antennas mounted on existing buildings or structures. He said that there is not a provision in the ordinance regarding light standards.
Motion
Commissioner Galli made a motion to grant Petition No. 410-658, a request for a conditional use permit, considering the existing height of the utility improvements along the 1900 East line, and that the applicant has downsized the facility to accommodate the equipment boxes on the utility pole, compromises have been made by all parties to provide wireless service for this residential area. Based upon the comments, analysis and findings of fact as listed in the staff report and subject to the following conditions:
1. A professional engineer’s stamp shall be provided on the construction drawings.
2. All cabling leading to antennas shall be placed within a conduit.
3. The utility pole, antennas, mounting and conduit shall be painted a flat color to match existing utility poles.
4. The Petitioner shall meet all applicable City, County, State or Federal requirements.
5. The conditional use approval shall be valid for a one year period unless a building permit is issued and construction is actually begun, or the use commenced within that period, or a longer time is requested and granted by the Planning Commission.
Commissioner Scott seconded the motion.
Commissioner Diamond said that it is evident that the community is concerned, which has a lot of weight on the current proposal. He suggested that the Commission vote against the motion before them and request that the Applicant go back to the community council and neighborhood to resolve the issues brought up this evening and then come back to the Planning Office with a solution that works for everyone.
Commissioner De Lay agreed with Commissioner Diamond.
Commissioner McDonough stated that if Commissioner Diamond’s suggestion occurs the Applicant will likely appeal the decision rather than coming back to the Commission with a more workable solution.
Chair Muir said that it is difficult to presuppose what the Applicant may do.
Commissioner Scott suggested that the Commission may want to encourage the community council, neighbors and T-Mobile to enter into conversation which may have the same result. She said that based on the ordinance in place and process that the conditional use went through the project should be approved.
Commissioner Galli said that he is troubled by the concept that the Commission could either deny or table the request, based on an arms length agreement between a landlord and a user of this facility. He felt that it is arbitrary for the Commission to indicate that they do not like the contractual arrangement that T-Mobile engaged in and send them back to enter into new negotiations. He said that the proposal meets the standards set forth in law.
Chair Muir called for a vote.
Commissioner Daniels, Commissioner Galli, Commissioner McDonough, Commissioner Noda, Commissioner Scott and Commissioner Seelig voted “Aye”. Commissioner Chambless, Commissioner De Lay and Commissioner Diamond voted “Nay”. Prescott Muir as Chair did not vote. Six Commissioners voted in favor, and three Commissioners voted against therefore the motion passed.
UNFINISHED BUSINESS
Mr. Wilde said that Mr. Zunguze had to be excused from the meeting and asked Mr. Wilde to inform the Commission regarding the issue with the pedestrian circulation and traffic controls with the annexation of the school district, Mr. Zunguze would pursue that with the Transportation Division.
There being no other unfinished business to discuss, the Planning Commission meeting adjourned at 8:47 p.m.