American Tower Corp. v. City of Tualatin

A finding that a city council adopted that is not challenged by a petitioner is dispositive, and that finding renders any other errors in other findings that are responsive to the petitioner’s arguments below harmless.

Petitioner appeals a city decision approving a variance to separation distance requirements for a wireless communication facility (WCF). Intervenor applied for architectural review for a 100-foot monopole WCF tower to be located on property zoned Light Manufacturing. Petitioner- operates an existing 130-foot monopole tower (ATC tower) that is located approximately 750 feet from intervenor’s proposed site.

Under Tualatin Development Code (TDC) 73.470(9) the minimum distance between WCFs must be at least 1,500 feet. Intervenor applied for a variance to this requirement under TDC 33.025(1), submitting documentation that the trees surrounding the ATC tower prevented co-location on the ATC tower and that the ATC tower could not be extended in height. Petitioner responded that the ATC tower could be extended in height by 20 to 150 feet to accommodate intervenor’s needs. In response, intervenor submitted a revised usage and facility justification indicating that the ATC tower could not satisfy its coverage and capacity objectives even at the 150-foot level. Concluding that intervenor had documented, as required by TDC 33.025(1)(a)(ii), that the ATC tower could not be modified to accommodate additional facilities, both the planning commission and the city council approved the variance application. This appeal followed.

During the proceedings before the planning commission, petitioner argued that the ATC tower at an increased height could “structurally accommodate” additional antennae. In response, the city council adopted findings that such an increase would require petitioner to obtain a height variance from the city, rejecting petitioner’s argument that federal law preempts the need for such a variance. The city council also adopted findings interpreting TDC 33.025(1)(a)(ii) as not requiring an applicant to consider an existing tower that is not already tall enough, unless an application to increase the height of that existing tower has been submitted when a variance is sought.

In its second assignment of error, petitioner argues the city’s conclusion that intervenor satisfied the requirements of TDC 33.025(1)(a)(ii) improperly construes federal law and is inconsistent with the express language of the provision. The city and intervenor respond, and LUBA agrees, that evidence in the record documented and gave the city council a basis for concluding that intervenor (1) considered whether the existing ATC tower could be modified to accommodate an additional provider even without a pending application for a height variance, and (2) demonstrated that even a modified ATC tower would not satisfy its coverage and capacity needs. Since petitioner did not challenge this finding, LUBA states petitioner’s challenges to the city council’s other findings and interpretations provide no basis for reversal or remand and the city’s decision is therefore AFFIRMED.