Caam partnership, llc



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DECISION of the SNOHOMISH

COUNTY HEARING EXAMINER

DATE OF DECISION: October 15, 2008

PLAT/PROJECT NAME: CAAM PARTNERSHIP, LLC
APPLICANT/

LANDOWNER: CAAM Partnership, LLC


FILE NO.: 07-109195-000-00-LU
TYPE OF REQUEST: Major Revision to a Conditional Use Permit (CUP)
DECISION (SUMMARY): DENIED

BASIC INFORMATION

GENERAL LOCATION: 11304 132nd Street SE. At the SW corner of the intersection of Short School Road and 132nd Street SE, in the NE ¼ Sec:31 Twp: 28 Rge: 6


ACREAGE: 39.75 acres
ZONING: Agriculture-10 Acre (A-10)

COMPREHENSIVE PLAN DESIGNATION:


General Policy Plan Designation: Riverway Commercial Farmland
UTILITIES:

Water: N/A

Sewer: N/A
SCHOOL DISTRICT: Snohomish SD No. 201
FIRE DISTRICT: No. 4
PDS STAFF RECOMMENDATION: Approve with conditions

INTRODUCTION
The applicant filed the Master Application on July 31, 2007. (Exhibit 1)
The Department of Planning and Development Services (PDS) gave proper public notice of the open record hearing as required by the county code. Exhibit 15 (Affidavit of Mailing); Exhibit 16 (Affidavit of Notification by Publication); Exhibit 17 (Posting Verification).
PDS adopted the environmental documents on September 12, 2007 from the original CUP proceeding with an addendum.

Deputy Examiner Ed Good held open record hearings on October 30, November 1, and November 2, 2007 on the major revision, and the undersigned Examiner held further hearings limited to evidence and argument concerning the cumulative health effects of the electromagnetic radiation from the six towers on April 1, 2, and 3, 2008. Witnesses were sworn, testimony was presented, and exhibits were entered at the hearing.

NOTE: The oral transcript is hereby made a part of the record in this matter. For a full and complete record, a verbatim recording of the hearing is available in the Office of the Hearing Examiner. Copies of verbatim transcripts are also exhibits in this matter.
This is a request for a major revision to a CUP. The criteria are exactly the same as an application for an original application for a CUP. SCC 30.42.110(1)(b). They are:

1. The hearing examiner may approve, approve with conditions, or deny a conditional use permit only when all the following criteria are met:

(a) The proposal is consistent with the comprehensive plan;

(b) The proposal complies with applicable requirements of this title;

(c) The proposal will not be materially detrimental to uses or property in the immediate vicinity; and

(d) The proposal is compatible with and incorporates specific features, conditions, or revisions that ensure it responds appropriately to the existing or intended character, appearance, quality of development, and physical characteristics of the site and surrounding property.

2. As a condition of approval, the hearing examiner may:

(a) Increase requirements in the standards, criteria, or policies established by this title;

(b) Stipulate the exact location as a means of minimizing hazards to life, limb, property damage, erosion, landslides, or traffic;

(c) Require structural features or equipment essential to serve the same purpose set forth in 30.42C.100 (2)(b);

(d) Impose conditions similar to those set forth in items 30.42C.100 (2)(b) and 30.42C.100 (2)(c) as may be deemed necessary to establish parity with uses permitted in the same zone in their freedom from nuisance generating features in matters of noise, odors, air pollution, wastes, vibration, traffic, physical hazards, and similar matters.  The hearing examiner may not in connection with action on a conditional use permit, reduce the requirements specified by this title as pertaining to any use nor otherwise reduce the requirements of this title in matters for which a variance is the remedy provided;

(e) Assure that the degree of compatibility with the purpose of this title shall be maintained with respect to the particular use on the particular site and in consideration of other existing and potential uses, within the general area in which the use is proposed to be located;

(f) Recognize and compensate for variations and degree of technological processes and equipment as related to the factors of noise, smoke, dust, fumes, vibration, odors, and hazard  or public need;

(g) Require the posting of construction and maintenance bonds or other security sufficient to secure to the county the estimated cost of construction and/or installation and maintenance of required improvements; and

(h) Impose any requirement that will protect the public health, safety, and welfare.

SCC 30.42C.100.
PROCEDURAL RULING
1. The Applicant filed a motion to strike an attachment to the Day’s brief and all references in the Day’s brief related to it. Exhibit 450. The motion is granted.
2. The Examiner takes official notice of the final decision by the Federal Communications Commission (FCC) in In Re KRKO (AM), Finding of No Significant Impacts informal objection, DA 08-1272 (May 30, 2008), as requested by Applicant.

FINDINGS OF FACT

Based on all of the evidence of record, the following Findings of Fact are entered.


I. Background
1. The master list of exhibits and witnesses which is a part of this file and which exhibits were considered by the Examiner is hereby made a part of this file as if set forth in full herein.
2. Summary of Proposal: The applicant, CAAM Partnership LLC, is requesting approval of a major revision to approved CUP 00-107495 LU to add two 199-foot tall Medium Wave AM Radio Antennas to the currently approved facility. The existing CUP is for operation of four AM radio antennas (KRKO), the tallest of which is 349 feet. The other three are 199 feet. Per FAA regulations the antennas are not required to have warning lights. The antennas will be a dull gray in color. The antennas will be elevated approximately sixteen (16) feet in the air, to be above the 100 year base flood elevation. The overall antenna height includes the height required to elevate the antenna above the 100 year base flood elevation. The project site is illustrated at Exhibit 13.38. (Exhibit 81)

The antenna will be serviced by the equipment building that was approved in the original CUP. There is no new or additional equipment building associated with this project. The antennas will be supported by foundations which will sit on piles that are driven into the ground down to bearing. Ground wires will be placed up to 18 inches below the ground, in a circular pattern around each antenna, similar to the spokes of a bicycle wheel. (Exhibit 81) Although the applicant stated that 99% of the site would be available fro agricultural production, there is no requirement or specific plans indicated in the record that it would be placed in agricultural production. (Exhibit 451, TR. Vol. 1 p.15-16 (10/30/07); Exhibit 451, TR. Vol. 1 p.86-87 (10/30/07)).

In the United States, no Medium Wave or AM station may operate with antenna input powers exceeding 50,000 watts. (Exhibit 13.69. p.1) Thus, each of the two stations that would exist if the requested revision is granted would operate at the maximum power authorized by federal law.
3. Site Description: The site is located in the Upper Snohomish River Valley (the Valley) between Fiddler’s Bluff on the west (the Kenwanda neighborhood) and Lords Hill on the east. The site is 39.75 acres and is undeveloped farmland that is currently being developed with the four antennas and equipment building approved under the original S-R Broadcasting CUP (Exhibit 13.5). The topography of the site is generally flat. The site is located slightly east of the Snohomish River. The property between the site and the river is undeveloped and has an earthen berm that extends north and south through and beyond the property borders. (Exhibit 81)

.

4. Adjacent Zoning/Uses. The Valley area around the subject site is zoned A-10 and is made up predominantly of large undeveloped parcels devoted almost exclusively to agricultural use. Mostly agricultural fields, it contains several farm building complexes typical of dairy farms and crop production as well as associated residential dwellings. The Craven Farm lies directly to the southeast across Short School Road. Craven Farm has converted from traditional agriculture to direct marketing efforts, a trend in agriculture also known as agro-tourism and destination agriculture. Some of the uses that Craven Farm offers are a Pumpkin Patch with a corn maze, weddings/receptions, company and organizational retreats and antique sales and shows. (Exhibit 81)

The Zylstra Farm lies further to the south, with the main farm buildings located just prior to the Short School Road meeting up with the Snohomish River’s east bank. There are a couple of separate dwelling/small farm building groups located to the south of the subject property. Several other farm building groups lie to the north where the Valley starts to broaden out into the main Valley. The small property adjacent to the southeast corner of the subject property used to be a Christmas tree farm (Deb’s U-Cut) and the property now appears to be used solely as a single-family residence. The other farms in the Valley and northward to the main Valley are more traditional operations. (Exhibit 81)

The Bob Heirman Wildlife Park (BHWP) is located mostly on the west side of the River south of the subject property. The BHWP is a daytime park that does not allow camping and is used as a wildlife viewing area for recreationists, outdoor education and nature studies and is also used by fishermen for access to the river. The park extends from the wooded lower portions of the steep bank of Fiddler’s Bluff to mostly prairie-like lowlands and channeled gravel bars and islands in the River outside of the dikes. Shadow Lake lies in the west portion below the steep bank. The BHWP has an extensive pedestrian trail system for park users, and a small parking lot and picnic tables on a bench on the west bank. Access is from Connelly Road. (Exhibit 81)
Fiddler’s Bluff is located across the River to the west. The Kenwanda Golf Course and Kenwanda neighborhood are the predominant developments on Fiddler’s Bluff. The Kenwanda neighborhood is on the east side of the bluff and is made up of single-family homes on small lots. The golf course is west of the development on top of the bluff. Lord Hill is to the east and is made up of mainly large parcels with single-family homes and outbuildings. (Exhibit 81)
There are 19 schools within 3.7 miles of the antennas. (Exhibit 437) Valley View Middle School sits upon Fiddler’s Bluff in the Kenwanda neighborhood approximately ¾ of a mile west of the towers. (Exhibit 460, TR Vol. IV p. 321 (4/2/08); Cathcart Elementary (2 miles); Totem Falls Elementary; Snohomish High School (3 miles). (Exhibit 452, TR II at 185-86 (10/30/07)). According to one of the citizens who testified, there are approximately 29,000 citizens who reside within a 3.7 mile radius of the antennas. (Exhibit 464, TR Vol VIII p. 572 (4/2/08)).

5. Historical Chronological Background on the original CUP and SEPA Review for 00-107495 LU

The original CUP and shoreline management permit applications under file number 00-107495 LU & SM were submitted to PDS on October 11, 2000. The original application was for 8 AM antennas and 2 equipment buildings. Phase 1 was to be one equipment building and five 466-foot antennas. Phase 2 was to be the second equipment building and three 425-foot antennas. All antennas were to be supported by guy wires, and have safety lighting and orange and white safety painting. Based on comments received, PDS requested changes and the applicant redesigned the project to eliminate the guy wires by making the antennas self supporting and reducing the five 466-foot antennas to one 425-foot and the 7 other antennas from 425-feet to 199-feet. The 425-foot antenna was still painted orange and white and the 199-foot antennas were painted gray. A SEPA Threshold Determination of Nonsignificance (DNS) was issued on October 18, 2001. Two appeals of the DNS were filed, one by Citizens to Preserve the Upper Snohomish River Valley (CPUSRV) and Pilchuck Audubon Society (PAS) on November 1, 2001 and the other by Kandace A. Harvey dba Harvey Airfield and Harvey Airfield, Inc. (Harvey) on November 5, 2001. By Order issued December 24, 2001, the CPUSRV/PAS appeal was partly accepted for consideration and partly summarily dismissed, with the accepted topical issues specifically delineated. The applicant subsequently reduced the height of the single tall antenna from 425-feet to 349-feet thereby reducing the visual impact and the number of safety lights required. The Harvey appeal was later dismissed by stipulation on March 7, 2002. During the hearing, the applicant orally requested that the CUP and shoreline permit review be limited to Phase 1. However both Phase 1 and Phase 2 continued to be included in the environmental SEPA review. (Exhibit 81)

On July 31, 2002, the Deputy Hearing Examiner (Peter Donahue) issued a decision denying the CUP application1. Concurrently by separate decision the Examiner, affirmed in part, the DNS, thus requiring preparation of a limited scope environmental impact statement2. On December 2, 2002, the applicant, S-R Broadcasting, appealed the denial of the CUP to the Snohomish County Council.

On February 26, 2003 the Snohomish County Council, by unanimous vote (Motion 03-130)3, granted S-R Broadcasting’s appeal in part as follows:
“The council hereby grants the appeal, in part, and the July 31, 2002 decision of the Deputy Hearing Examiner is reversed and the matter is remanded to the Examiner with instruction to grant the Conditional Use Permit, subject to the conditions stated in the PDS Staff Recommendation (Ex. 919), as may be modified by PDS staff to reflect changes in the proposal made by the applicant, and subject to SEPA. Should PDS conclude revisions are needed, the Examiner shall receive and incorporate revised conditions into his decision. Should the Examiner determine it is necessary, the hearing may be reopened for the limited purpose of considering comment on the revised conditions from the representatives of the Appellant/Applicant and CPUSRV before accepting the PDS recommendations.”
On January 30, 2005, PDS issued the Final Environmental Impact Statement (FEIS)4. On February 11, 2005, CPUSRV filed an appeal challenging the adequacy of that FEIS.

On June 14, 2005 (and ending on July 13, 2005) an appeal hearing was held before Deputy Hearing Examiner Ed Good (the Deputy Examiner) on a single issue, the adequacy of the FEIS issued on January 30, 2005. On August 17, 2005 the Deputy Examiner issued an initial decision on this matter. Thereafter, petitions for reconsideration were timely filed by the appellant, the applicant, and Snohomish County. On October 4, 2005 the Deputy Examiner issued a revised decision remanding this matter to the Snohomish County Department of Planning and Development Services for further visual impact analysis with specific consideration of (1) a minimum of 50,000 recreational visitors annually to (2) a river valley of statewide significance.

On February 3, 2006, PDS issued an addendum to the FEIS5 and recommended conditions be added to the approval of the CUP for the facility.
On March 16, 2006 the Deputy Examiner issued a supplemental decision6 determining the adequacy of the FEIS with Addendum, approving the CUP denying the SEPA appeal.7
On March 30, 2006 CPUSRV filed an appeal of the CUP to the Snohomish County Council. A closed record appeal hearing was held on May 15, 2006. On June 7, 2006 the Snohomish County Council issued a decision (Motion 06-248) upholding the CUP approval and denying the appeal.8
On June 9, 2006 PDS issued a new Shoreline Permit PFN 00-107495-001 SM. On June 27, 2006 CPUSRV filed a LUPA appeal in King County Superior Court of the Council’s June 7, 2006 decision approving the CUP and challenging the adequacy of the environmental review and documents i.e. the DNS and FEIS with addendum. On June 27, 2006 CPUSRV also filed an appeal with the State Shorelines Hearing Board challenging the Shoreline Permit and the adequacy of the environmental review and documents i.e. the DNS and FEIS with addendum.
Hearings on the shoreline and environmental appeal were held on October 20, 23, 25, 30, 31 and November 1, 2006. On December 26, 2006 the State Shorelines Hearings Board issued a decision affirming the County’s issuance of the Shoreline Permit and the adequacy of the DNS and FEIS with addendum.9 This decision was appealed to the Washington State Court of Appeals and was subsequently withdrawn by the appellant.

On January 18, 2007 the King County Superior Court issued a decision affirming the Council’s approval of the CUP and denial of CPUSRV’s appeal in the S-R Broadcasting application.10 This decision was appealed to Superior Court and was subsequently withdrawn by the appellant.

On April 6, 2007 permits were issued for the four antennas and the equipment building.
II. Public Comment/Issues of Concern.
6. During preparation of this application for public hearing, PDS received a number of comments and documents from the public. To provide a summary of what occurred in the file, the Examiner will simply quote the staff report (Exhibit 81):

As of the date of this staff report [October 23, 2007] PDS has received 40 comment letters11, of which 23 expressed comments in opposition to and 17 expressed comments in support of the proposed revision to the Conditional Use Permit. Of the 23 comments in opposition 13 were the same letter signed by different people. Of the 17 comments in support 2 were the same letter signed by different people. The issues raised were; the environmental review completed under SEPA12 has been inadequate; the project does not meet the county’s criteria for granting a CUP; health effects from the RF emissions; the Councils appeal decisions were unlawful, impacts to avian species; effects on property values and interference with electronic devices.


Jennifer Dold of Bricklin Newman Dold, LLP, the attorney for the appellants CPUSRV in the original S-R Broadcasting CUP proceedings, submitted comments dated September 4, 2007 (Exhibit 23) with numerous attachments. The following are the five main issues she raised and a brief response to each issue:
1. Both the major modification to the CUP and the Shoreline Substantial Development Permit (SSDP) should be decisions made by the county hearing examiner after a hearing on the merits.

  • PDS RESPONSE: The major revision to the CUP is before the Examiner and the Examiner will make the decision. The SSDP will be issued administratively by PDS and is not before the Examiner.

2. CAAM has the burden to demonstrate it meets all state and County requirements.




  • PDS RESPONSE: PDS concurs with this and believes the applicant has met this burden.

3. Existing SEPA documents do not adequately identify and evaluate all of the significant impacts to be caused by CAAM’s proposal for two additional antennas.




  • PDS RESPONSE: See the Project Chronology/Background section above and the Environmental Policy [in the PDS Staff Report].

4. The applicant does not meet the requirements for a major modification to the existing CUP.




  • It is the position of PDS that the applicant has met its burden and the requirements for approval of the requested major revision to the existing CUP.

5. The CAAM proposal does not meet all county and state requirements to obtain a SSDP.


  • The SSDP will be issued administratively by PDS and is not before the Examiner and therefore no analysis of the SSDP is included in this staff report. Analysis of the SSDP will be in the County’s decision on the SSDP and sent to the Washington State Department of Ecology.

The following are the three main issues raised in the letters submitted and a brief response:




  1. Newly documented, peer-reviewed studies which confirm earlier studies associating radio frequency radiation with increase risk of Leukemia in a radius as large as 6-10 kilometers.
    • PDS RESPONSE: The applicant has demonstrated that the proposed project will meet FCC standards and guidance for protection of human exposure to radio frequency radiation exposure. (Exhibit 13-68). With both KRKO 1380 AM and 1520 AM operating from the co-location facility there are no areas that are accessible from ground level that exceed the FCC exposure guidelines. After construction the site will be measured to assure that the FCC guidelines are met. A condition will be added that requires the applicant to submit, within 3 months of the 1520 facility going operational, the results of a supplemental RF emissions study showing compliance with FCC regulations.


    • PDS RESPONSE: FCC guidance to local governments advises that the “limits in the guidelines are designed to protect the public health with a very large margin of safety. The limits have been endorsed by federal health and safety agencies such as the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA).13

    • PDS RESPONSE: It is the position of PDS that the County defers to the FCC as the agency with expertise in regulations and guidance in the matters of radio frequency radiation. In rebuttal to the information submitted by Angela Day (Exhibit 35) the applicant has submitted evidence, (Exhibit 13-78) by Dr. Linda S Erdreich Ph.D, stating the new studies cited in the Angela Day comments are inconclusive as to the risk of exposure to radio frequency radiation and should not affect appropriate reliance on federal exposure standards.

2. Extensive flooding on the project site and in the Upper Snohomish River Valley in the past year.

  • PDS RESPONSE: PDS is well aware that the site floods. That is the reason it has been designated as a Flood Hazard Area. A Flood Hazard Permit has been issued for the S-R Broadcasting antennas and equipment building and will be required for the proposed antennas. The structures are to be elevated approximately 16-feet above the ground level to be above the flood elevation.

3. Increased numbers of Trumpeter Swans and other avian species in the Upper Snohomish River Valley and new patterns of use – directly in the path of the proposed antenna structures – in the past year.
  • PDS RESPONSE: It is the position of PDS that these arguments are the same made in the S-R Broadcasting CUP hearings before the Examiner, the County Council, Superior Court and the State Shorelines Hearings Board. In these prior hearings and decisions it was demonstrated that the proposed antennas will not present a collision danger to Trumpeter Swans or other avian species.


III. Compliance with Conditional Use Permit Criteria
A. Introduction
One issue is dispositive for the Examiner in this case, and that is in reviewing the third of the CUP criteria, the Examiner finds that the cumulative effects of the antennas are materially detrimental to uses and property in the immediate vicinity. There are no mitigating conditions that can ameliorate the impacts. In weighing the severity of the possible harm to the possible benefit of the project, the Examiner cannot conclude that risking possible adverse health effects to humans, especially children, is worth the potential benefit of another AM radio station. The Examiner recognizes that there may be many sources of radiofrequency radiation that are beyond the jurisdiction of the County, but this one is not. This is a situation where exercise of the precautionary principle is particularly appropriate. It is true that the science is not clear: the Examiner agrees that there is no clear evidence of adverse effects from radio frequency radiation (RFR). On the other hand, even the most skeptical scientist cannot rule them out. A group of credible scientific studies indicates that has been an association with an elevated risk of leukemia within 2-6 kilometers of AM transmitters. Dr. Samuel Milham, an epidemiologist with the Washington State Department of Health (DOH) for over 20 years and author of over 50 peer reviewed articles, recommended denial of the project based on its proximity to schools and residences because of the potential health effects, and suggested that AM transmitters be located a minimum of five kilometers from residences to avoid adverse health effects to humans.


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