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. Mr. Jerome lldz - 3 - November 8, 2004 IV. Variance Provisions A~-IRA/$ continues to 13e concerned that the proposed variance language is an inadequate safety valve for the proposed school and residential setfacks. As proposed, a wireless carrier must demonstrate "to the city's satisfaction" that it "is unabie to provide an adequate level of telecommunications services to the proposed service area and also comply with the setback requirements" to obtain a variance. The ambiguous and unsatisfactory nature of this language is demonstrated bythe conflicting opinions of expressed by Planning 5taft and others submitting comments regarding the proposed new language. Wireless opponentS express concern that the proposed variance provisions will become the exception that swallows the rule, while wireless carriers anticipate that the standards will be interpreted strictly, making them virtually unmeetable. The proposed language should be significantly modified to provide greater clarity and less opportunity for the arbitrary use of discretion. Aq-I-VV5 suggests that the City modifY the proposed variance provisions ir~ the following two ways. First, ATTW$ requests that the City consider permitting exceptions from the setback provisions through an administrative adjustment, rather than a variance, process. Second, ATTW5 reiterates its request that the City modify the language of proposed EC 9.570(9)(c)(1) to read as follows: "That it is not possible for the proposed Wireless facility to satisfy its function within the applicant's wireless network and also comply with the setback requirements." This language takes into consideration quality, coverage and capacibj demands. It would also require that the issue be evaluated within the context of the carrier's existing wireless network. ATTWS urges the City to consider these revisions. Without such language, the City exposes itself to litigation not only from wireless carriers asserting that the setbaclcs constitute a prohibition of service, but equally to lawsuitS from anti-wireless citizens who will assert that the City has not applied its vague standards stri~ly enough. Both are likely avoidable +J~rough tighter drafting. V. Third Party Technical Review As I explained in my August 24, 2004 letter, ATTW5 does not object to paying the actual costs incurred by the City to hire an independent consultant to assist the City in reviewing its applications. The qualifications and scope of review for these independent consultants, however, needs to be spelled out more clearly in the wireless code, Specifically, the wireless code should provide that any independent consultant must be a qualified and licensed engineer mutually acceptable to both the City and the wireless applicant. Equally important, the consultant's scope of wo~ should be limited to reviewing and verifying the wireless carrier's technical assertions - e.g., Js there a gap in coverage or insufficient call capacity, and will the proposed facility resolve that issue. Without such specificity, the technical consultant's review can morph from the review of a particular facility and how it fits within the wireless carrier's existing net~vo~, to an analysis of the efficacy the carrier's entire network cJesign. This is not helpful to either th~ tit7 ortho wireless carrier. We are in the process of formulating language addressing this issue and will provide it to you later this week. VI. Other Issues if the City is'committed to amending its wireless code at this time, ATTW$ has several alternative suggestions to those currently proposed. In particular, Aq-f~/V$ requests that the y:~WP~TI-~EUGENE~.ND COMIVlE~T LT~ 11000~.DOC 11/08/04 MON 10:43 [TX/RX NO 8271]