before the hearings examiner for thurston county · hearings examiner for thurston county alaris...

BEFORE THE HEARINGS EXAMINER FOR THURSTON COUNTY

In the Matter of the Application of ) NO. SUPT/AAPL 020124 ) The Alaris Group for Cingular Wireless ) FINDINGS, CONCLUSIONS ) AND DECISION For Approval of a Special Use Permit, and ) ) In the Matter of the Appeal of ) ) Kendal Keating ) ) Of a Mitigated Determination of Nonsignificance. ) )

SUMMARY OF DECISION 1. The appeal of the September 17, 2002 Mitigated Determination of Nonsignificance is

DENIED. 2. The request for approval of a Special Use Permit to construct and operate a freestanding

wireless communication facility at 5112 Boston Harbor Road NE is DENIED.

SUMMARY OF RECORD Request Justin Abbott of the Alaris Group, LLC on behalf of Cingular Wireless (Applicant) requested approval of a Special Use Permit (SUPT) to construct and operate a freestanding wireless communication facility (WCF) at 5112 Boston Harbor Road NE in Thurston County, Washington. The facility would consist of a 150-foot tall monopole tower mounted with a three-sector antenna array (two antennas per sector) and ground-mounted radio transceiver equipment. The County issued a Mitigated Determination of Nonsignificance (MDNS) for the SUPT application pursuant to its authority under the State Environmental Policy Act (SEPA) on

Findings, Conclusions & Decision Hearings Examiner for Thurston County Alaris Group for Cingular Wireless, SUPT/AAPL 020124

September 17, 2002. Kendal Keating (Appellant) filed an appeal of the MDNS on September 30, 2002. Hearing Date An open record hearing on the SUPT request and SEPA appeal was held before the Hearings Examiner of Thurston County on January 13, 2003 and January 29, 2003. The record closed on February 3, 2003. Testimony At the hearing the following individuals presented testimony under oath: Cindy Wilson, Thurston County Development Services Department Chris Coker Anthony Dean Gary Huff Tom O’Brien Brian McClees Dan Brumsickle Douglas Broach Justin Abbott, The Alaris Group, Applicant Robert Smith, Thurston County Development Services Department Gary Duvall, Thurston County Environmental Health Department John Hunter Sheridan Shaffer Ray Harry Rachel Nicole Chavez Brandee Chavez Eric Brinker Mark Goodin Kelsey Fernkopf Lisa McClees James Keating Diego O’Brien Brenda McKey Ed Murphy Hilary Lewis Nancy Broach Kanina Chavez Susan Ensign Dorothy Lyons Kendal Keating Exhibits At the hearing the following exhibits were admitted as part of the official record:


EXHIBIT 1 Development Services Department Staff Report Attachment a Zoning/Site Map, undated Attachment b Site and Structure Plans Attachment c Special Use Permit Application, received February 15, 2002 Attachment d Project Description (Budd Inlet/WA-537), undated

Attachment e December 6, 2001 Letter from Cingular RF Engineer Concerning Proposed Location

Attachment f January 31, 2002 Letter from John Hunter, Radio Frequency Engineer

for Cingular Wireless, Concerning Proposed Location Attachment g Federal Communications Commission Antenna Structure Registration

– TOWAIR Determination Results

Attachment h Non-Ionizing Electromagnetic Exposure Analysis and Engineering Certification prepared by David J. Pinion, P.E., Hatfield and Dawson Consulting Electrical Engineers, dated January 2002

Attachment i Noise Evaluation Report prepared by Justin Abbott, dated January 31,

2002 Attachment j Report on Balloon Test and Photo Simulations of Proposed Tower

prepared by Jon Welge of Tectra Tech, dated January 29, 2002

Attachment k Mitigated Determination of Nonsignificance issued September 17, 2002

Attachment l April 1, 2002 Comment Letter from Gary Duvall, Thurston County Public Health and Social Services Department

Attachment m April 23, 2002 Comment Memorandum from Faith Perry, Thurston

County Roads and Transportation Services

Attachment n May 7, 2002 Preliminary Approval Recommendation Memorandum from Steven Johnson, Thurston County Roads and Transportation Services

Attachment o Applicant’s Response Letter and Witness List regarding AAPL

020124, dated November 1, 2002


Attachment p April 1, 2002 Letter from Cingular Agreeing to Allow Co-Location of Two Additional WCF Providers.

Attachment q Public Comment Letters

1. Janet and Thomas Balaban, May 15, 2002 2. Dan Brumsickle and Catherine Conzatti, May 16, 2002 3. Anthony Dean and Sheila Dean, May 19, 2002 4. Paul Martin, May 20, 2002 5. Rosemary Whaley, May 16, 2002 6. Kendal Keating, May 20, 2002 7. Dorothy S. Lyons, May 19, 2002 8. Paul and Joan Moody, May 20, 2002 9. Thomas O’Brien, May 21, 2002 10. Eddie and Shirley Root, May 24, 2002 11. Brian and Lea McLees, May 28, 2002 12. Marc Fedou, September 27, 2002 13. Joan and Paul Moody, September 30, 2002 14. Barbara Gross and Blaine Snow, November 4, 2002 15. Mohd and Inaam Ghussein, no date 16. Thomas O’Brien, November 5, 2002

Attachment r Notice of Public Hearing dated November 19, 2002 EXHIBIT 2 Development Services Department Staff Report for the Appeal of the Mitigated

Determination of Nonsignificance with the following Attachments: Attachment a Notice of Public Hearing, dated November 19, 2002 Attachment b Administrative Appeal, dated September 30, 2002

Attachment c Mitigated Determination of Nonsignificance, issued September 17, 2002

Attachment d Site Plans prepared by Cingular Wireless

Attachment e Pre-Hearing Order dated October 9, 2002

Attachment f October 25, 2002 Letter from Kendal Keating identifying List of

Witnesses and Issues of Appeal

Attachment g November 1, 2002 Response Letter and Witness List from Justin Abbott, Cingular Wireless

Attachment h Environmental Checklist, received February 15, 2002


EXHIBIT 3 Appellants Materials with Attachments 1 – 10 1. Mitigated Determination of Nonsignificance SEPA 020124, dated September 17,

2002, with attachment 2. Appeal of the Mitigated Determination of Nonsignificance filed by Kendal

Keating, undated 3. Submission of Sepa Statements Case #020124, submitted by Kendal Keating 4. Comment Letter from Thomas E. O’Brien including photos, dated December 2,

2002 5. Documents provided by Douglas Broach in reference to the proposed Cell Tower 6. Comment Letter from Anthony Dean, dated November 29, 2002 7. Comment Letter from The Boston Harbour Estates Homeowners’ Association,

dated November 22, 2002 8. Comment Letter from Mark and Maria Goodin, dated December 2, 2002 9. Comment Letter from Treasures Real Estate, Trena M. Bradley and Barbara

Morando, dated August 18, 1998 10. Comment Letter from Trena M. Bradley, Barbara Morando, Anita Marriott and

Bojana Foster, dated February 27, 2001 EXHIBIT 4 Public Comment Letters:

1. Avanell & Clyde Wheaton, email dated December 2, 2002 2. Jane Hartough, letter dated November 30, 2002 3. David W. Jamison, email dated November 26, 2002 4. Jill M. Terry, letter dated November 25, 2002 5. James Terry Jr., letter, undated 6. Kirsten Niemi, letter, undated 7. Tyra Lindquist, letter dated December 1, 2002 8. Liz Alberti, letter dated December 1, 2002 9. Jody Smith, letter dated December 1, 2002 10. Patsy A. Quintus, letter dated December 1, 2002 11. Kelsy Smith and Chesna Klimek, letter dated December 1, 2002 12. Gary Anderson, letter dated December 1, 2002 13. Wendy Aggergaard, letter, undated 14. Leslie Cushman, letter dated December 1, 2002 15. Gary Anderson, letter dated December 1, 2002 16. Melanie Aggergaard, letter, undated 17. Melanie Aggergaard, letter, undated including 6 articles and one letter from

John J. Hannahan, undated: EXHIBIT 5 Map of Thurston County, presented by Anthony Dean EXHIBIT 6 Video Tape of Proposed Cell Tower Location, dated November 24, 2002,

Submitted by Anthony Dean EXHIBIT 7 Written Testimony submitted by Brian McClees, undated


EXHIBIT 8 Written Testimony submitted by Mark Neilcen, dated January 9, 2003 EXHIBIT 9 Wetland Assessment and Delineation from Thomas Doran, dated December 18,

2001 EXHIBIT 10 Abbreviated Drainage and Erosion Plan dated October 25, 2001 EXHIBIT 11 NEPA Review, submitted by Justin Abbot, dated August 8, 2002 EXHIBIT 12 Four Propagational Maps: Maps 1, 2 &3 dated December 6, 2001; Map 4 dated

December 10, 2001 EXHIBIT 13 Large Scale Site Plans, Budd Inlet Fire Station #71, site # WA-537-1, dated

October 25, 2001 EXHIBIT 14 Market Analysis by Sheridan M. Shaffer and Associates, dated July 18, 2002 EXHIBIT 15 FCC Report re: Emission Safety, dated June 2, 2000 EXHIBIT 16 Sheridan Shaffer Certification of USPAP Instructor, dated October 25, 2002, and

Resume EXHIBIT 17 Written Testimony from Rachel Nicole Chavez, dated January 13, 2003 EXHIBIT 18 Written Testimony from Brandee Rose Chavez, dated January 13, 2003 EXHIBIT 19 Written Testimony from Eric Brinker, dated January 13, 2003 EXHIBIT 20 Written Testimony from Mark and Maria Goodin, dated December 2, 2002 EXHIBIT 21 Photos and letter submitted by James Keating, undated EXHIBIT 22 Written Testimony from Diego O’Brien, undated EXHIBIT 23 Written Testimony from Brenda McKey, dated January 13, 2003 EXHIBIT 24 Written Testimony from William E. Murphy, dated December 2, 2002, including

3 audio tapes and map of Thurston County EXHIBIT 25 Written Testimony from Serena McLees, undated EXHIBIT 26 Written Testimony from the following:

a Written Testimony from Nancy Broach, undated


b Written Testimony from Dan Brumsickle & Catherine Conzatti, undated

c Written Testimony from Kanina Chavez, dated January 29, 2003

d Written Testimony from Tom O’Brien, undated

e Written Testimony from Susan Ensign, undated

f Written Testimony from Dorothy Lyons, undated

g Written Testimony from Doug Broach, dated January 29, 2003

h Written Testimony from Kendal Keating, undated

i Written Testimony from Mr. Ghusseim, undated

j Written Testimony from Craig Keating, undated EXHIBIT 27 Letter and propagational drive test map from LeRoy Munar, dated January 28,

2003 EXHIBIT 28 Written Testimony from Charlene Anderson, including:

1. Submission of Continuous Coverage Tape, dated December 2, 2002 2. An Open Letter to the North Thurston/Boston Harbor Fire Dist.

Commissioners, dated January 13, 2003 3. Personal Response to the Cell Phone Tower to be Located at the North

Olympia Fire Station, dated December 2, 2002 EXHIBIT 29 Box of written material submitted from Hilary Lewis, undated. Based upon the record developed at the open record hearing, the following Findings of Fact and Conclusions are entered in support of the decision of the Hearings Examiner:

FINDINGS1 1. The Applicant requested approval of a SUPT to construct and operate a freestanding

WCF at 5112 Boston Harbor Road NE in Thurston County, Washington.2 The facility 1 At the open record hearing, which consisted of two days of testimony, numerous witnesses presented testimony under oath or submitted written comments. Because much of the testimony and comments focused on similar issues, some of the facts stated in these Findings could be attributed to numerous individuals. In those cases where there was a large volume of testimony on a single issue, the Hearing Examiner will cite only a few names and exhibit numbers as representative of the testimony and evidence received. The Hearing Examiner will attempt to use the signal “see e.g.” as much as possible when this occurs.


would consist of a 150-foot tall monopole tower mounted with a three-sector antenna array (two antennas per sector) and ground-mounted radio transceiver equipment. Exhibit 1, Staff Report, page 1; Exhibit 1, Attachments b, c & d.

2. The subject property, 3.25 acres in size, is developed with the Thurston County Fire

District No. 7 headquarters building, an old fire station, water tanks and parking lots. These existing structures are located in the western portion of the property adjacent to Boston Harbor Road NE. The proposed WCF would be located within a 1,600-square foot leased area in the north central portion of the property. The WCF would be set back 74.5 feet from the north property line, 203 feet from the east property line, 197 feet from the south property line, and 700 feet from the west property line (Boston Harbor Road NE).3 Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment b.

3. Surrounding land uses consist of rural residences and a home-based automobile repair

business to the north, rural residences to the west, and rural residences and undeveloped parcels to the south and east. The nearest residence is approximately 300 feet from the site. Exhibit 1, Staff Report, page 2; Testimony of Mr. Smith.

4. The subject property is zoned Rural Residential – One Unit Per Two Acres (RR 1/2).

Freestanding WCFs are allowed in the RR 1/2 zone upon approval of a SUPT. Exhibit 1, Staff Report, pages 2-3; Exhibit 1, Attachment a.

5. The Private Utilities chapter of the Thurston County Comprehensive Plan contains goals

and policies that are applicable to the proposal. These goals and policies include using landscaping, buffers and setbacks to minimize aesthetic impacts on surrounding land uses, locating facilities near compatible land uses, and encouraging co-location. Thurston County Comprehensive Plan, Chapter 7, Policies E-1, E-2 and E-3.

6. Wireless communication facilities within Thurston County are subject to the Wireless

Communication Facilities chapter of the Thurston County Code (TCC 20.33). According to TCC 22.33.080, the maximum permitted tower height outside urban growth areas is 180 feet, the minimum permitted building setback is 110% of the tower height, including antennas, and the minimum permitted tower separation is 2,600 feet. The Hearings Examiner may grant up to a 50 percent reduction in the setback requirement if the tower is built to a minimum wind stagnation pressure of one hundred miles per hour and an exposure and gust coefficient factor of C. In addition, the Hearings Examiner may grant

2 The legal description of the property is a portion of the southeast quarter of the northwest quarter and a portion of the northeast quarter of the southwest quarter of Section 25, Township 19 North, Range 2 West, W.M.; known as Tax Parcel Nos. 12925241000, 12925240900, and 12925310100. Exhibit 1, Staff Report, page 1. 3 These measurements, cited by County staff, appear to be from the boundaries of the 3.25-acre site. Because the subject property consists of multiple tax parcels, the distances to the nearest tax parcel lines are shorter. Some of the distances depicted in the project plans (see e.g., Sheet A-1 of Exhibit 1, Attachment b) appear to be based on tax parcel boundaries. The differences in measurement relate to the south and west boundaries. The distance to the west tax parcel boundary is 151 feet, and the distance from the south tax parcel boundary is 64 feet. Exhibit 1, Staff Report; Exhibit 1, Attachment b; Testimony of Mr. Abbott.


a further setback reduction to a minimum of 50 feet “if the applicant can demonstrate that without adding more than minimal screening the alternate location is substantially screened on all sides by existing vegetation, buildings or topography, or that such location better preserves view corridors for adjacent property owners and the public.” TCC 20.33.080(2).

7. The proposed tower would be 150 feet tall. For a 150-foot tower, the minimum building setback is 165 feet. The Applicant proposes a setback of 74.5 feet (45 percent of the required setback) from the north property line. The setbacks from the east, west and south property lines would exceed the minimum setback requirement. The tower would be built to the wind stagnation pressure and gust coefficient factor identified in TCC 20.33.080. The proposed tower location is in a mature stand of evergreen trees. A 50-foot no-cut buffer would be retained around the perimeter of the facility. The 50-foot buffers would be protected through easements until the facility is abandoned. The Applicant submitted that the site was designed to minimize the number of trees to be removed and obtain the highest level of natural screening. There are no freestanding WCFs within 2,600 feet of the site. Exhibit 1, Staff Report, page 4; Exhibit 1, Attachment d; Testimony of Mr. Abbott.

8. As specified in TCC 20.33.080(5)(a), “significant visual impacts of a WCF, from the front and rear of any residence on adjacent properties . . . shall be minimized to the maximum extent feasible through careful siting.” The Applicant proposes to utilize the natural vegetation on site to minimize visual impacts. In addition to natural vegetative screening, the Applicant proposes to minimize the visual impact by painting the portion of the tower below the tree line dark green and the portion above the tree line non-reflective gray. This color scheme is consistent with the standards set forth in TCC 20.33.080(5)(b).4 Testimony of Mr. Abbott.

9. The Applicant conducted a balloon test to determine the visibility of the tower from surrounding areas. The test involved flying a ten-foot diameter helium balloon at the proposed tower height and tower location. The weather was windy at the time of the balloon test, so the balloon was raised to a height of 165 feet to account for it being blown off center (it is not apparent from the photos the extent to which the balloon was blown off center). The Applicant’s representative was present while some of the shots were taken and testified that the pictures were taken when the balloon was upright.5 Testimony of Mr. Abbott.

10. Ten balloon photographs were submitted into the record. The views depicted in the photographs include (1) the view looking east from the Fire Station parking lot (top third

4 TCC 20.33.080(5)(b) reads as follows:

WCF towers and antennas shall have a nonglare finish in a gray, blue, green or other color to blend with the surroundings or horizon unless a different color is required by the FCC or FAA. The finish must be approved by the approval authority.

5 During public testimony various witnesses contended that they were not given notice of the balloon test. The Applicant had no legal duty to provide notice of the test.


visible; (2) the view looking east from Boston Harbor Road NE (top half visible); (3) the view looking east from “near” Boston Harbor Road NE (top half visible); (4) the view looking east from the west Fire Station parking lot (only top visible); (5) the view looking north from Mercantile Lane Northeast, from behind a gas station (top quarter to third visible); (6) the view looking west from Heights Lane Northeast (not visible); (7) the view looking southwest from midway along 53rd Way NE (only top visible); (8) the view looking southwest from 53rd Way NE (not visible); (9) the view looking southeast from the intersection of 53rd Way NE and Boston Harbor Road NE (top third visible); and the view looking southeast from the automotive business on Boston Harbor Road NE (only top visible). Four of these balloon photographs (views 1, 5, 7 and 9) were made into photosimulations in which a digital monopole tower was superimposed over the balloon. Exhibit 1, Attachment j.

11. Some residents objected to the photosimulations because they do not depict views from residences in the immediate vicinity of the site.6 The photosimulations do not depict views from Cushman Road NE, a neighborhood that would be impacted by the development. Exhibit 3, Attachment 4; Exhibit 7; Testimony of Mr. Brumsickle; Testimony of Mr. McClees.

12. The project site is in an area that was donated to the Fire District for community use for recreational purposes. The park has been used for weddings, picnics and family gatherings, and contains recreational amenities such as volleyball court, swings and covered picnic areas. These areas are approximately 150 feet from the site. The lease area is also adjacent to play areas for neighborhood children. Exhibit 3, Attachment 4; Exhibit 4, Letters from Jane Hartough, Patsy Quintus; Testimony of Mr. O’Brien.

13. The Appellants and other residents objected to the proposal on the basis of aesthetic and environmental impacts. The surrounding rural neighborhood enjoys vistas of farmland and Mt. Rainier. One of the primary aesthetic impacts identified by residents is the obstruction of their Mt. Rainier view corridor. Residents submitted that the site is on a migration route for songbirds. The subject property is near the Nisqually National Wildlife Refuge, and there are large conservation parcels to the west and north of the site. The businesses in the neighborhood are family owned and operated. The types of businesses include horse boarding, gardening and auto repair (home-based). The residents are committed to upholding the character of the neighborhood. See e.g., Exhibit 3, Attachment 4; Exhibit 4, Letters from Ms. Cushman, Ms. Hartough and Ms. Alberti; Exhibit 23; Testimony of Mr. O’Brien; Testimony of Mr. Brumsickle; Testimony of Ms. Lyons; Testimony of Mr. Broach.

6 The Appellant’s witnesses submitted their own photosimulations. These were not based on a balloon test. The witnesses admitted that the tower location depicted in their photos was not exact. For example, the tower location depicted in the photosimulation of views from the O’Brien property is closer to the O’Brien property than the actual tower site. Testimony of Mr. O’Brien; Testimony of Mr. Brumsickle.


14. Residents questioned whether the Applicant has attempted to co-locate on existing towers as required by TCC 20.33.070. The Ordinance states that the county “may deny an application to construct new facilities if the applicant has not made a diligent effort to mount the facilities on an existing freestanding or remote WCF or other communication tower. At minimum, this requires an assessment of any existing towers that have the location, as well as the existing or potential height, structural capability and equipment structure area, to serve the applicant’s needs . . ..” Exhibit 4, Jill Terry Letter.

15. The Applicant’s coverage objectives are to have seamless in-vehicle or in-home coverage in the area of the proposed tower. These are company goals, based on customer demand, which are not mandated by any agency. Testimony of Mr. Hunter.

16. There is an AT&T (a competitor of the Applicant) tower approximately two miles from the proposed tower site. Although some types of wireless technology could provide coverage to the area from that tower, the Applicant would not be able to meet its coverage objectives from that tower due to its PCS technology, which uses different radio frequencies. The Applicant could not increase its signal strength to reach the necessary distance. There are no other towers in the vicinity that would provide the level of signal quality desired by the Applicant. Testimony of Mr. Hunter. The Applicant presented various coverage maps depicting the current coverage and the projected coverage (Exhibits 27 and 28). According to the Applicant the proposed site is the most beneficial because it would provide the most broad and effective coverage for the Applicant’s services. Testimony of Mr. Abbott.

17. Although some residents argued that the proposed WCF is to solve a “capacity” issue (see e.g., testimony of Ms. Lewis, testimony of Mr. Murphy), Cingular has a two to three-mile coverage gap in the area of the proposed WCF. Within the gap, there is no in-vehicle or in-home service. Because the signal within that area is difficult to discern to virtually nonexistent, it only provides outdoor service at best. The Applicant submitted plot maps depicting the level of Cingular coverage in the vicinity of the site. These maps do not depict the level of coverage from other carriers in the Boston Harbor Road area. Testimony of Mr. Hunter; Testimony of Mr. Abbott; Exhibit 12.

18. Objections to the proposal included arguments based of the Telecommunications Act of 1996 – that denial of the tower would not constitute a prohibition of service in violation of Section 704 of the Act,7 and that the Act does not mandate seamless coverage as requested by the Applicant. See e.g., Testimony of Ms. Ensign; Exhibit 19. Evidence was also presented that there is already wireless service in the area. This evidence included tapes of phone calls made by a resident from 50 different locations using various service providers, and testimony from the Applicant’s representative that coverage is provided to the area by AT&T. The Applicant submitted that use of the AT&T network is expensive

7 Section 704 of the Act is codified in 42 U.S.C. § 332(c)(7). Section 332(c)(7)(B)(i) reads in relevant part:

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services.


to Cingular, and that Cingular’s goal is to build its own network. Exhibit 24; Testimony of Mr. Abbott.

19. One local resident questioned whether additional carriers could co-locate onto the proposed tower due to the need for the radio signal to clear the surrounding trees. Exhibit 4, Written Statement of Gary Anderson. The proposed facility has sufficient height to allow two co-locators to place their antennas above the tree line while maintaining the minimum vertical separation distance of 15 feet between antennas. See Testimony of Mr. Hunter (minimum vertical separation of 15 feet); Exhibit 1, Attachment b, Sheet A-3 (generally depicting placement of additional antennas, using a vertical separation of ten feet and a tree height of 100 feet); and Exhibit 4 (tree heights range from 60 to 85 feet).

20. As required by TCC 20.33.080(3), the proposed facility could accommodate the co-location of two (2) additional carriers. Exhibit 1, Staff Report, pages 3-4; Exhibit 1, Attachment d; Testimony of Mr. Abbott.

21. Nine significant trees would be removed to develop the WCF site, as well as additional non-significant trees. Although this number of removed trees would be more than that required to construct the WCF (the tower itself and ground equipment would be located in a naturally cleared area), additional clearing is needed to satisfy the County’s co-location and access standards, and the movement of construction equipment on site (a large crane and a truck would be needed). With respect to co-location, TCC 20.33.080(3) specifies that “WCFs shall be designed and constructed to fully accommodate at least two additional WCF providers, including an area for each co-locators equipment near the base of the tower, each comparable in size to the area required by the applicant” (emphasis added). The County Roads and Transportation Services Department requires that the access road be at least 12 feet in width. Exhibit 1, Attachments b, m and n; Testimony of Mr. Abbott.

22. Although the project area is underlain by hydric soils, there are no jurisdictional wetlands within or adjacent to the project area, as defined by the Washington State Wetlands Identification and Delineation Manual. Exhibit 9. Appellants argued that, due to the hydric soils, pollutants from the facility would enter the ground water. See e.g., Exhibit 3, Attachment 5.

23. The proposed facility would generate radiofrequency (RF) electromagnetic fields (EMFs). The Telecommunications Act of 1996, 42 U.S.C. § 332(c)(7)(B)(iv),8 prohibits local governments or instrumentalities of local governments from considering possible health effects from RF emissions, to the extent the facility complies with Federal Communications Commission (FCC) regulations. See Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000) and Illinois RSA No. 3, Inc. v. County of Peoria, 763 F.Supp.

8 “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply the [Federal Communication] Commission’s regulations concerning such emissions.”


732, 745 (C.D.Ill. 1997). Numerous individuals expressed concern regarding the potential health effects of RF exposure, including increased risk of cancer. See e.g., Exhibit 3, Attachment 6; Exhibit 4, Letters from Liz Alberti, Tyra Linquist, Jody Smith, Kelsy Smith and Chesna Klimek; Exhibit 17; and Exhibit 18; Testimony of Ms. Keating. In accordance with federal requirements, the Hearings Examiner did not consider such testimony when rendering a decision.

24. As part of the Applicant’s voluntary National Environmental Policy Act review, the Applicant’s RF engineer certified that the proposed facility would be constructed in compliance with the RF exposure limits established by the FCC for the general public. Exhibit 11.

25. Pursuant to Section 1.1307(b)(1) of the FCC regulations (Title 47 CFR), certain wireless communications facilities are “categorically excluded” from routinely having to determine compliance with federal RF exposure limits. Such facilities are categorically excluded because they are by their nature highly unlikely to cause human exposures in excess of the guideline limits. For a broadband PCS antenna array, a facility is categorically excluded if the total effective radiated power of all channels operated by the licensee at a site (on all channels in any one direction, in the case of sectorized antennas) is 2000 watts or less, or if the facility is not mounted on a building and the lowest point of the antenna is at least ten meters (approximately 33 feet) above ground level. The proposed facility would satisfy the criteria for categorical exclusion because all antennas (including any co-locators) would be more than 33 feet above ground level and the antennas are not mounted on a building. In addition, the maximum effective radiated power of from any sector of the facility with all proposed and planned channels in simultaneous operation would be 600 watts.9 Exhibit 1, Attachment h; Exhibit 15; Exhibit 1, Attachment b.

26. The Applicant’s RF engineer submitted a study to verify that the facility would comply with FCC RF exposure limits. The conclusion was that the maximum predicted RF exposure conditions resulting from the proposed WCF in all habitable and accessible areas would not exceed 0.021% of the general population/uncontrolled environment maximum permissible exposure limit allowed by FCC rules. In addition, the WCF is not expected to cause interference with consumer electronic devices. Exhibit 1, Attachment h. One of the local residents, Mr. Goodin, questioned the assumptions of the Applicant’s study. The witness submitted that additional information is needed to determine whether RF emissions from the facility would comply with federal standards, including support for use of a suppression factor of 50 for downward effective radiated power; verification that 600 watts is the maximum effective radiated power; information on the cumulative impacts of co-locators; the power densities at representative locations near the antenna;

9 This finding is based on the undisputed evidence provided by the Applicant that the exemption would apply. The Hearings Examiner does not have jurisdiction to rule on the applicability of FCC exemptions. Although one witness, (described in Finding No. 26 below) questioned whether the maximum effective radiated power would be 600 watts, he did not dispute that the tower would qualify for the exemption based on height and freestanding design. Exhibit 1, Attachment h; Exhibit 20.


and verification that the maximum RF exposure calculations assumed continuous exposure.10 Exhibit 20.

27. Concern was raised from small business owners (a horse boarding business and an in-home childcare center) and other residents that perceived health effects from the tower would affect their businesses and property values. Two individuals who board horses at the horse boarding business, which is approximately ½ mile from the site, expressed opposition to the proposal. One suggested that she would board her horse elsewhere if the tower were approved. Exhibit 4, Letters from Wendy Aggergaard, Melanie Aggergaard; Kirsten Niemi and Patsy Quintus; Testimony of Mr. Broach; Testimony of Mr. McClees.

28. One resident submitted copies of court decisions, journal articles and news items that recognized that the perceived health effects of EMF can have a negative impact on property values. Some of the articles described cases in which courts held that the reasonableness of the fear was not necessary to establish a compensable loss in eminent domain proceedings.11 Exhibit 4, December 1, 2002 Letter from Gary Anderson and cited authorities. The owner of a nearby home-based auto repair business provided similar information. Exhibit 7.

29. The Applicant hired a licensed real estate appraiser to conduct a comparative market analysis to evaluate the impact that communications towers have on property values in Thurston County. The appraiser studied the Canterbury neighborhood in Thurston County and compared the sales prices of three homes with significant, unobstructed views of a 175-foot communications tower to the adjusted sales prices of homes without views of a communications tower (the sales prices were adjusted to reflect differences in house size, etc.). The residences studied were in semi-rural neighborhoods of four to five-acre lots. The results of the study was that the sales prices of residences with views of a communications tower were within the range of sales prices of residences without views of a communications tower. Exhibit 14; Testimony of Ms. Shaffer.

10 Due to federal preemption on the issue of health effects from RF exposure, the Hearings Examiner’s jurisdiction to make rulings on compliance with FCC RF standards is unclear. However, TCC 20.33.050 lists as an application requirement “technical documentation demonstrating compliance with FCC standards for electromagnetic field strength” and TCC 20.54.040 lists as a SUPT requirement that the proposal “comply with . . . all applicable federal . . . laws or plans.” To the extent the Hearings Examiner has jurisdiction to rule on the issue, the Hearings Examiner finds that the submitted documentation is adequate to demonstrate compliance with FCC RF regulations. Although Mr. Goodin raised important issues with respect to the quality of the Applicant’s RF report, the Hearings Examiner finds that the likelihood that the facility would generate RF in excess of federal standards is so remote that no additional technical information is necessary to render a decision on the SEPA appeal or the SUPT application. The primary evidence for this is the applicability of the categorical exclusion, which in and of itself is recognition that the tower is highly unlikely to exceed RF standards. In addition, a licensed radio engineer prepared the Applicant’s report. The Hearings Examiner finds that there is insufficient evidence of error to require further technical information for purposes of this permit decision. 11 The decisions and articles were not from the state of Washington. The context of the EMF information was high voltage overhead power lines rather than WCFs. This evidence was not used for the dispositive decision.


30. The proposed facility would be unmanned and would not require any public water or sewer service. Exhibit 1, Attachment l; Testimony of Mr. Abbott.

31. The proposed facility would generate a nominal amount of traffic. It is expected that the facility would generate one service trip per month. Testimony of Mr. Abbott.

32. Security measures on site would include a six-foot tall chain link fence with three strands of barbed wire, and anti-climbing devices. Testimony of Mr. Abbott; Exhibit 1, Attachment b, Sheets a-3 and a-4.

33. Noise from the WCF equipment would not exceed the noise standards set forth in WAC 173-60-030. The noise limit from “Class A” (residential zone) noise sources to “Class A” receiving properties at the property line is 55 dBA during daytime hours and 45 dBA between 10:00 p.m. and 7:00 a.m. The noise level approximately 50 feet from the equipment is expected to be 35 dBA. The equipment would be more than 50 feet from all property lines, and would be screened by trees (the 35 dBA noise level assumes that the equipment would be mounted in a “free field” at maximum ambient temperature). The noise levels would be below state standards with no additional mitigation. Exhibit 1, Attachment I; Testimony of Mr. Abbott.

34. Pursuant to the State Environmental Policy Act (SEPA), Thurston County acted as lead agency for review of environmental impacts caused by the proposal. The County issued a Mitigated Determination of Nonsignificance (MDNS) on September 17, 2002. The MDNS contains nine mitigating measures relating to drainage and erosion control, co-location, tree retention, lighting, noise, wildlife protection, and compliance with state and federal regulations. Exhibit 2, Attachment c.

35. Kendall Keating (Appellant) filed an appeal of the MDNS on September 30, 2002. The appeal letter stated six issues, including obstruction of views, impacts to birds, noise from the backup generator, the generator’s compliance with County air quality regulations, consideration of shallow wells and the high ground water table, and impacts to eagles from tree removal. The appeal was timely filed. Exhibit 2, Attachment b.

36. In reaching its SEPA threshold determination, the County conducted an independent environmental review of the proposal and did not rely solely on the environmental checklist submitted by the Applicant. County staff visited the site, reviewed relevant codes and consulted with other agencies, including the Department of Fish and Wildlife, which did not offer any objections to the proposal. Testimony of Ms. Wilson.

37. Appellant’s witnesses testified to the types of wildlife in the area, including hawks, eagles, owls, ducks and numerous other birds and animals. The witnesses submitted that environmental review of impacts to birds and animals was incomplete because of the Applicant’s responses on the environmental checklist. These responses included that with respect to threatened and endangered species there were “none known,” and that it was “not known” whether the site is part of a migration route. There was concern that


removal of nine trees would affect nesting eagles and hawks. Exhibit 3, Attachments 4 and 6; Testimony of Mr. O’Brien; Testimony of Mr. Broach.

38. The Applicant voluntarily had the property reviewed for compliance with the National Environmental Policy Act (NEPA). The Applicant’s consultant for environmental review was a California-based firm called Vertex, who consulted the Washington Department of Fish and Wildlife Habitats and Species Map and the Washington National Heritage Program – Project Report and conducted a site visit to evaluate impacts to biological resources. According to this research no state or federal listed animal species were identified on the site. The report concluded that “the monopole and BTS unit will not impact any of Washington’s rare, threatened, and endangered species of animals, or plants.” Exhibit 11, Appendix C.

39. The evidence the Appellant submitted in support of the bird mortality issue included an August 25, 2002 Petition for National Environmental Policy Act Compliance relating to communications towers in the gulf coast region; a 2001 Audubon article on communications towers and migratory birds (based on a New York study of a 1,000-foot tall television tower); an April 1998 Ornithological Council Towerkill Resolution addressing towers greater than 200 feet in height and containing FAA lighting; a presentation transcript of a May 17, 2001 lecture by Albert M. Manville; and the U.S. Fish and Wildlife Service Interim Guidelines for Recommendations on Communications Tower Siting, Construction, Operation and Decommissioning. All submitted documents link communications towers with bird mortality. However, the documents focus on towers taller than the one proposed and cite the birds’ attraction to light as a factor in the mortality problem. The high mortality events cited in the articles did not occur in the Pacific Northwest. However, the Washington Department of Fish and Wildlife, in a letter dated July 10, 2001, cited the U.S. Fish and Wildlife Guidelines as standards for the siting of a Sprint tower in Thurston County. See Exhibit 3, Attachment 5.

40. The U.S. Fish and Wildlife document, dated September 14, 2000 notes that communications towers are estimated to kill four to five million birds per year, “which violates the spirit and intent of the Migratory Bird Treaty Act.” The document includes twelve guidelines. These guidelines recommend that carriers (1) co-locate on existing structures; (2) construct towers no taller than 199 feet above ground level (FAA lighting threshold) and use construction techniques which do not require guy wires, such as a monopole; (3) consider the cumulative impacts of multiple towers; (4) avoid wetlands, known bird concentration areas, known migratory or daily movement flyways, habitat of threatened or endangered species, or areas with high incidence of fog, mist and low ceilings; (5) use minimum FAA lighting for towers above 199 feet; (6) use daytime visual markers on guy wires in certain areas; (7) minimize the tower footprint (larger footprint preferred to guy wires); (8) relocate to alternate site if significant numbers of breeding, feeding, or roosting birds are known to habitually use the site, or comply with seasons restrictions on construction to avoid disturbance; (9) design towers for at least two additional carriers; (10) down-shield security lighting; (11) allow USFWS personnel


access to the site to evaluate bird use and conduct research on tower impacts to birds; and (12) remove towers within 12 months of cessation of use. Exhibit 3, Attachment 5.

41. The proposed WCF would be 150 feet in height, would not have guy wires or FAA lighting (no lighting is required by the FAA), would be designed for two additional carriers, would have the minimum footprint to accommodate co-locators, and would not have a cumulative impact due to the distance of the site from other WCFs. The MDNS issued for the proposal requires the Applicant to allow WSDFW personnel access to the site and to construct the facility between September 15 and March 30 to avoid disturbance to nesting birds. Testimony of Mr. Abbott; Exhibit 1, Attachment g; Exhibit 2, Attachment c.

42. The Applicant does not propose to have a back-up generator on site. The facility would be equipped with gel cell batteries to provide up to eight hours of power during an outage. A portable back-up generator would be brought to the site in the event of a longer power outage. The back-up generator would be required to comply with the noise standards contained in Chapter 173-60 of the Washington Administrative Code (WAC), as well as the air pollution standards regulated by the Olympic Air Pollution Control Authority (OAPCA). Although some witnesses argued that any temporary back-up generator should be subject to environmental review, the County determined that no review is required for the temporary use, which would be used only in emergencies. SEPA review would be required for a permanent generator. Exhibit 2, Staff Report, page 3; Exhibit 2, Attachment g; Testimony of Mr. McClees; Testimony of Mr. Goodin; Testimony of Mr. Duvall.

43. The Applicant provided credible evidence that the batteries would not be hazardous. They would be enclosed in vandal resistant, weatherproof cabinets. The power levels needed to support the cabinets are low, similar to the power requirements of a HVAC system in a single-family residence. The batteries are small and similar in design and function to a car battery. They are designed to operate in harsh environments to ensure function in times of emergency. The batteries comply with applicable certification standards and are approved as non-hazardous cargo for ground, sea and air transportation. Exhibit 8.

44. One of the Appellant’s witnesses referenced the hydric soils in the project area and a natural drainage course that feeds into Adams Creek, a salmon-bearing stream. There is a salmon fish ladder under Boston Harbor Road. The concern was that the construction of the tower, road and other items, and maintenance of generators or batteries, would have a potential for degradation of the hydric soils and natural drainage to the stream. Testimony of Mr. Dean; Exhibit 3, Attachment 6.

45. The County Environmental Health Department has no concerns regarding impacts to groundwater. The closest water well to the project site is on the subject property. This well is approximately 150 feet from the project site. Testimony of Mr. Duvall; Exhibit 1, Attachment b, Sheet C-1.


46. Notice of the open record hearing was published in The Olympian on November 22, 2002, mailed to property owners within 1,400 feet of site on November 19, 2002, and posted on the property on November 22, 2002. Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment a.

CONCLUSIONS

Jurisdiction The Hearings Examiner is granted jurisdiction to hear and decide SEPA appeals pursuant to RCW Chapter 36.70.970, TCC 2.06.010 and TCC 17.09.160. The Hearings Examiner is granted jurisdiction to hear and decide applications for Special Use Permits for wireless communication facilities pursuant to TCC 20.33.040.

Criteria for Review The Hearings Examiner may approve an application for a Special Use Permit for a wireless communication facility only if the specific standards set forth in TCC 20.33 and the following general standards set forth in TCC 20.54.040 are satisfied: 1. Plans, Regulations, Laws. The proposed use at the specified location shall comply with the

Thurston County Comprehensive Plan and all applicable federal, state, regional, and Thurston County laws or plans.

2. Underlying Zoning District. The proposed use shall comply with the general purpose and

intent of the applicable zoning district regulations and sub-area plans. Open space, lot, setback and bulk requirements shall be no less than that specified for the zoning district in which the proposed use is located unless specifically provided otherwise in this chapter.

3. Location. No application for a special use shall be approved unless a specific finding is made that the proposed special use is appropriate in the location for which it is proposed. This finding shall be based on the following criteria:

a. Impact. The proposed use shall not result in substantial or undue adverse effects on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare. However, if the proposed use is a public facility or utility deemed to be of overriding public benefit, and if measures are taken and conditions imposed to mitigate adverse effects to the extent reasonably possible, the permit may be granted even though said adverse effects may occur.

b. Services. The use will be adequately served by and will not impose an undue burden on any of the improvements, facilities, utilities, or services existing or planned to serve the area.


Conclusions Based on Findings

I. SEPA Appeal 1. The State Environmental Policy Act (Chapter 43.21C RCW or “SEPA”) specifies the

environmental review procedures the County must follow for proposals that may have an impact on the environment. One purpose of the act is to “insure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations.” Every proposal that may impact the environment (unless it is exempt from the act) must undergo some type of environmental review. RCW 43.21C.030 (b).

2. The SEPA threshold determination is a determination as to whether a proposal is "likely

to have a probable significant adverse environmental impact." WAC 197-11-330. If the responsible official determines that a proposal is likely to have a probable, significant adverse environmental impact then a Determination of Significance (DS) is issued and an Environmental Impact Statement (EIS) must be prepared. An MDNS may be issued to mitigate identified probable significant adverse environmental impacts so that an EIS need not be prepared. WAC 197-11-350. As stated in WAC 197-11-794, "'Significant' as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental policy. Significance involves context and intensity and does not lend itself to a formula or quantifiable test." As stated in WAC 197-11-782, “‘Probable’ means likely or reasonably likely to occur . . . . Probable is used to distinguish likely impacts from those that merely have a possibility of occurring, but are remote or speculative.”

3. RCW 43.21C.060 specifies that government action may be conditioned or denied

pursuant to SEPA only if the conditions or denials are “based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans or codes which are formally designated by the agency . . . as possible bases for the exercise of authority pursuant to this chapter.” The action may be conditioned “only to mitigate specific adverse environmental impacts which are identified in the environmental documents prepared under this chapter.” RCW 43.21C.060.

4. Clear error is the standard of review applicable to substantive decisions based on SEPA.

Cougar Mt. Assocs. v. King County, 111 Wn.2d 742, 749, 765 P.2d 264 (1988). Under this standard of review, a reviewing body “does not substitute its judgment for that of the administrative body and may find the decision ‘clearly erroneous’ only when it is ‘left with the definite and firm conviction that a mistake has been committed.’” Id. at 747 (quoting Polygon Corp. v. Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)).

5. “Substantial weight” must be given to the County’s decision to issue an MDNS. Moss v.

City of Bellingham, 109 Wn. App. 6, 14 (1997). The Appellant has the burden of proving that the City's decision was clearly erroneous. Boehm v. City of Vancouver, 111 Wn. App. 711, 718 (2002).


6. The Appellant has not met her burden of proof with respect to impacts to birds. The MDNS issued for the proposal contains mitigation measures that are consistent with the guidelines promulgated by USFWS. Condition No. 5 requires the Applicant to submit a wildlife study if the FAA requires special lighting (the FAA does not require special lighting), Condition No. 7 requires the Applicant to construct the tower between September 15 and March 30 to avoid nesting birds, and Condition No. 8 requires the Applicant and owner to allow Washington State Department of Fish and Wildlife personnel access to the site for research purposes. Due to the relatively low height of the tower (less than 200 feet), the lack of tower features that would warrant heightened review (lights, guy wires), and the lack of evidence regarding bird mortality within Thurston County, the Appellant’s concern regarding bird mortality does not rise to the level of a probable, significant adverse effect on the environment. The concern is too speculative at this time to warrant additional environmental review. Findings of Fact Nos. 35-41.

7. The Appellant has not met her burden of proof with respect to impacts caused by the

back-up generator. There would be no back-up generator stored on site. A portable generator would be brought to the site in the event of a power outage that exceeds eight hours. Any generator brought to the site would have to comply with state noise and air quality regulations. Any impacts from this temporary, emergency use are speculative at this time. Findings of Fact Nos. 35 & 42.

8. The Appellant has not met her burden of proof with respect to impacts to groundwater.

The fact that the site is underlain by hydric soils is insufficient evidence of impact – a pollutant must be identified. The proposed facility is not associated with any kind of waste disposal. The use would be passive, generating virtually no traffic. The batteries, which are considered non-hazardous by the relevant certification organizations, would be stored in weatherproof cabinets. The nearest well to the project site is on the subject property, and is approximately 150 feet away. This distance exceeds the standard 100-foot well protection radius. There is insufficient evidence to conclude that the facility would have a probable, significant adverse effect on groundwater. Findings of Fact Nos. 35, 44 & 45.

9. The Appellant has not met her burden of proof with respect to impacts to eagles or other

threatened/endangered species from the removal of nine trees. The fact that the Applicant failed to identify all birds on the Environmental Checklist does not constitute a probable, significant adverse effect on the environment. Condition No. 7 of the MDNS requires the Applicant to construct the tower between September 15 and March 30 to avoid nesting birds. Because the project site is in a treed area it is unclear how the removal of nine trees would prevent eagles or other birds from nesting. The proposed use is passive in nature, and would not generate light or significant noise. Again, the impact raised by the Appellant does not rise to the level of “probable, significant” based on the evidence submitted. Findings of Fact Nos. 34, 35, 37 & 38.


10. Although the Appellant and other witnesses have identified probable aesthetic impacts, these impacts are more appropriately reviewed under the Special Use Permit criteria as impacts to neighborhood character. Additional environmental review on the issue is not warranted. Findings of Fact Nos. 3, 9-13.

II. Special Use Permit

1. The Applicant requested approval of a SUPT to construct and operate a freestanding WCF at 5112 Boston Harbor Road NE in Thurston County, Washington. The facility would consist of a 150-foot tall monopole tower mounted with a three-sector antenna array (two antennas per sector) and ground-mounted radio transceiver equipment. Finding of Fact No. 1.

2. The proposed use at the specified location would conflict with Thurston County

Comprehensive Plan Private Utilities Policy E-2, which is to “locate private utility facilities near compatible land uses as defined in the County’s Special Use standards.” The proposed WCF would not be compatible with the rural residential and recreational land uses in the vicinity of the site. Local residents provided credible testimony and evidence as to the unique character of the neighborhood. The neighborhood is marked by scenic vistas of farmland and Mt. Rainier – a unique vista, home-based businesses, outdoor recreational opportunities, and abundant wildlife. A 150-foot tall monopole tower would detract from these features. Findings of Fact Nos. 3, 5, 10, 11, 12, 13 & 37.

3. The proposed WCF would not comply with the purpose and intent of the RR 1/2 zoning

district regulations. As stated in TCC 20.10.010, the intent of the RR 1/2 zone is “to enhance and preserve the rural agricultural character in areas where there is currently little development and which are characterized by: (1) farms, forestry activities, and large residential parcels; (2) being distant from the community services necessary to support development of a suburban or urban character; or (3) having substantial areas of moderate to severe physical limitations for development.” The proposed WCF, along with the co-location, would detract from – not enhance – the rural agricultural character of the neighborhood. Findings of Fact Nos. 1, 3, 4, 10, 11, 12 & 13.

4. The proposed WCF would comply with the design standards set forth in TCC 20.33.080.

The 150-foot tower height is within the 180-foot height limit. It is only for towers greater than 180 feet that an applicant has to demonstrate that the height is necessary to provide adequate service. The height proposed would allow the signals of the Applicant and two co-locators to clear the surrounding trees. The tower would comply with all setback requirements. The reduction in the setback from the north property line is consistent with the criteria set forth in TCC 20.33.080(2)(c). The proposed location is a natural clearing that is surrounded by vegetation. There would be sufficient space for two co-locators’ equipment at the base of the tower. The proposed WCF would be more than 2,600 feet from the nearest WCF. The tower would be in a treed area and painted to blend with its surroundings. A 50-foot tree retention buffer would be established as specified in TCC 20.33.080(5)(c). Security measures would be installed. The access road and turnaround


would comply with Thurston County road standards. The FAA does not require lights for the proposed WCF and none are proposed. Outdoor storage is not proposed. The WCF would not exceed the noise standards set forth in Chapter 173-60 WAC or cause electrical interference. Findings of Fact Nos. 1, 2, 6, 7, 8, 19, 20, 21, 26, 32, 34 & 41.

5. The proposed WCF would not be appropriate in the location for which it is proposed.

Based on the credible (and voluminous) testimony and evidence of the surrounding residents, the facility would have an undue adverse effect on neighborhood character. The neighborhood is marked by scenic vistas of farmland and Mt. Rainier, home-based businesses, outdoor recreational opportunities, and abundant wildlife. A 150-foot tall monopole tower would detract from these features and aesthetic environment. Such an effect is “undue” per TCC 20.54.040(3)(a) because the neighborhood is served by wireless services. Although the Applicant provided credible evidence that Cingular has a coverage gap for in-vehicle and in-home service in the area of the proposed WCF, the Applicant did not identify any laws or regulations that would require Thurston County to fill every such coverage gap, particularly when, as here, the facility would detract from the character of a unique neighborhood. No evidence was provided that the FCC mandates seamless in-vehicle or in-home coverage. Even if such coverage were required, the Applicant is not precluded from seeking a more appropriate site from which to provide such coverage. Findings of Fact Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18.

The Hearing Examiner is not basing the decision on any substantial or undue impacts to the public health, safety or welfare. Local governments are prohibited from regulating the placement, construction or modification of a wireless communication facility based on the health effects of radio frequency emissions from the facility, to the extent that such facilities comply with the FCC’s regulations concerning such emissions. 47 U.S.C. sec. 332(c)(7)(B)(iv). The radio frequency emissions from the facility would comply with FCC requirements. With the proposed security devices and compliance with the requirements of the Roads and Transportation Services Department, the proposal would not have an adverse effect on the public health or safety. Findings of Fact Nos. 23, 24, 25 & 26. The Hearing Examiner is not basing the decision on any substantial or undue impacts to the natural environment. The Appellant and other residents did not provide sufficient credible evidence that the proposed WCF would contribute to bird mortality. None of the reports submitted contained statistics or other facts related to the type of facility proposed in the location proposed. The proposed WCF would substantially comply with the guidelines promulgated by the U.S. Fish and Wildlife Service, in that the facility would be significantly shorter than 200 feet tall, would avoid wetlands, would be unlit, would not include guy wires, would be constructed between September 15 and March 30 to avoid disturbing nesting birds, would be designed for two additional carriers, would be accessible by USFWS personnel, and would be removed within 12 months of cessation of use. Only nine significant trees from a densely treed area would be removed to construct the facility. There would be adequate remaining trees for birds to find alternate nesting


sites. The proposed facility would not be constructed during nesting season. The County conducted an independent environmental review of the proposal under the State Environmental Policy Act and issued a Mitigated Determination of Nonsignificance addressing these issues. Findings of Fact Nos. 34, 35, 36, 37, 38, 39, 40 & 41.

6. The use would be adequately served by and would not impose an undue burden on any of the improvements, facilities or utilities existing or planned to serve the area. The facility will be unmanned and would not require water or sewer services. Findings of Fact Nos. 30 & 31.

DECISION Based upon the preceding Findings of Fact and Conclusions, the appeal of the September 17, 2002 Mitigated Determination of Nonsignificance is DENIED, and the request for approval of a Special Use Permit to construct and operate a freestanding wireless communication facility at 5112 Boston Harbor Road NE is DENIED. Decided this 26th day of February 2003. James M. Driscoll Hearings Examiner for Thurston County K:\zoning.lu\DECISION\APPEAL.ADM\020124.decision.doc