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Jerome Lidz' - 4 - AuguSt 23, 2004 q°mrnunications. As a result, .we request and recommend that the City e~'minate this provision from itsProposed amendments to/ts w/re/ess ordinance. ' ' (9) Variance. (c) The city may grant a variance to the setback requirements of .. subsectZon O')(cl)l a#d2 onlyIfthe applicant demonstrates to the city'~ satis£action= 1,. That the applicant ia ' unable to Provide service to a substantial · port/on o£ the city andalso comply with the setback requirements! and · 2. That the requestedsetback variance complies as closely aa possible with the requiredsetback requirements £or location or any other location In the city ~rom which It possible to provide comparable service, A T-I'~IS Comment.~; · A/though we acknowledge' that variances are genera[~ designedto be ~'f~cult to obtain, the amendments proposedin this section make obtaining a variance effectiveiy impossible. Wireless service is ~ypicaliyprovided through'a network of interconnected and overlaPPing wireless communication facilities.. No single facilityproVides service to a "substantial portion of the City';' it may, however, be critical'to provi~'ng service to a part/cu, lar area of the City. As a result, we request andrecommend that the City change the language o£ proposed subsection (g)(c)(f) to read as fo/lows: 'hat it is notpossibie for the proposed wireless facility to satis~ its function within the applicant's wireless network and also comply with the setback requirements." · Furthermore, the standardofproof- "to the city's satisfaction ". effective~Ynegates the eftTcacy of this variance provision. Without some parameters on the City's discretion, the City could deny any request for a Variance under this subsection, lea~'ng to unnecessary ~'sputes and litigation. The secondphase in proposedsubsection (9)(c)(~, Which provides" ., · · the city from which it is possible to provide comparable service, "is unnecessariJy confusing as dra~ed. We assume the intent of this subsection is to k'mit the variance from the setback standards to the minimum neCessarY to ensure the functioning of the proposed wireless facility within the applicant's wireless netwol~. We request andrecommend that the City modify the language to make this intent c/ear (e.g., "any variance granted under this sect/on shal{ be I/rn/ted to the m/n/mum necessary to ensure that the proposed wireless facility sat/sEes i~ £unct/on w/thin the applicant's wireless network"). (d) The cIty may~,rant a variance to;the setbackand undergrounding requirem nts of subsections (7)(d)$. 4. Sand6. or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. Y:\WP~,'I'~EUGENI~COMMENT LTR 082304.D~C TV-4 8