VALDEZ PLANNING AND ZONING COMMISSION Valdez City Council Chambers Wednesday October 10, 2012
REGULAR AGENDA - 7:00 PM I. CALL TO ORDER II. ROLL CALL III. APPROVAL OF MINUTES 1. Regular Meeting of September 12, 2012 IV. PUBLIC APPEARANCES V. PUBLIC BUSINESS FROM THE FLOOR VI. PUBLIC HEARINGS VII. UNFINISHED BUSINESS VIII. NEW BUSINESS 1. Approval of Recommendation to City Council to Approve Gravel Lease Renewal for Haltness Construction, Inc. 2. Approval of Recommendation to City Council to Lease Lot 2B, Block 2, Airport Industrial Subdivision to AutoCAT Recycling of Alaska IX. REPORTS 1. E-Notes 2. Staff Reports (Verbal at meeting) 3. Abatement Report (Verbal at meeting) 4. T-Mobile v. Township of West Bloomfield Report X. COMMISSION BUSINESS FROM THE FLOOR XI. ADJOURNMENT
VALDEZ PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012
I. CALL TO ORDER
The regular meeting of the Valdez Planning and Zoning Commission was called to order at 7:00pm by Chairman Delozier.
II. ROLL CALL
Chairman Delozier, Commissioners Haase, Ragan, and Fannin were present; Commissioners Malone, Hogarth and Swierk were absent and excused.
Staff present included Lisa Von Bargen, Director; Janine Vadeboncoeur, Planning Technician and Wendy Farlin, Senior Office Assistant of the Community & Economic Development Department.
Lindsay Hobson attorney at Walker and Richards, Wayne Haerer of GCI, Bonnie Cudnohufsky, Nita Street, Jacob Focht, Frank Cook, David Daniels and Chris and Rebecca Walker were in the audience.
III. ELECTION OF CHAIR PRO TEMPORE
Chairman Delozier stated that at the previous meeting, Chairman Malone stepped down as the Chair. As Chair Pro Tempore, Commissioner Delozier is now the Chairman, requiring an election for a new Chair Pro Tempore. Commissioner Fannin volunteered until the end of the year and Commissioner Haase moved to close nominations.
VOTE ON THE MOTION: 4 Yeas, 3 absent and excused (Commissioners Malone, Hogarth and Swierk); motion carried to elect Commissioner Fannin as the new Chair Pro Tempore.
IV. APPROVAL OF MINUTES – August 22, 2012 Regular Meeting Minutes
MOTION: Commissioner Haase moved and Commissioner Fannin seconded approval of the August 22, 2012 regular meeting minutes.
VOTE ON THE MOTION: 4 Yeas, 3 absent and excused (Commissioners Malone, Hogarth and Swierk); motion carried.
V. PUBLIC BUSINESS FROM THE FLOOR - None
VI. PUBLIC APPEARANCES - None
VII. PUBLIC HEARINGS
1) (VAR # 12-04) Variance for a 184 Foot Communications Tower on Lot 1, Bock 4, Robe Lake Subdivision. Applicant: GCI
Lisa Von Bargen stated that the City attorney has determined that no height variance or any other type of requirement is necessary. A tower can be constructed without City PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012 Page 2
approval. A tower is considered a utility installation, which is a permitted principal use in the Rural Residential zoning district and there is a section of the code that exempts towers from height restrictions. This means that no public hearing and no approval from the City is required. Since the public hearing had already been published, staff determined that the public hearing would still be held for public input.
Wayne Haerer, Acquisition Real Estate Representative for GCI, thanked staff for their help and assistance throughout the course of the project. Wayne stated that the proposed tower will be a 184 foot self-support lattice tower. GCI is proposing an exact replica of the Copper Valley Telecom tower on West Egan and has spent a considerable amount of time researching possible areas. The proposed site gives the maximum optimization of signal and propagation strength as you come out of the Canyon all the way to town. In addition, it will reach the current antennae on the grain elevator which will alleviate dropped calls and provide for a microwave signal. Wayne further stated they are sensitive to the concerns to the extent they can be, but the future is not just phone service anymore; it’s 4G communication signal for tablets, smart phones and laptops as well as access to E-911 calls and internet research for students, which residents in the 10 mile area have expressed interest.
Valdez resident Chris Walker stated that he and his wife own two lots on Deep Lake Drive on the hill above where the proposed tower would be and bought them primarily because they were more rural and didn’t have cell towers. Chris further stated that while no one is going to argue that 4G speed and cell phones are the wave of the future, whether or not it is true, there is a perceived danger in the radio frequency (RF) emitted. Chris felt his property value would decrease if the tower were erected in the proposed location and encouraged GCI to co-locate on Copper Valley Telecom’s (CVT) tower. Chris felt that it wasn’t fair that property owners on the road shoulder the burden of a tower to serve everyone while GCI makes money. Chris was also concerned with possible warning lights placed at the top of the tower and felt they would not be necessary as the tower is below the 200 feet that the FAA requires. In addition, the road supplying Deep Lake Drive is privately owned and if GCI goes through with erecting a tower, Chris hoped they would contribute to road maintenance. Chris thanked the Planning and Zoning Commission for allowing public comment even though it is now a moot point and asked that the code be looked at to avoid future towers being erected.
Valdez resident Frank Cook stated that he owns the two lots next to the proposed site on Deep Lake Drive and feels that his view will be substantially blocked by the tower. He felt that at 184 feet the tower does need a light because of low flying aircraft. Frank felt that co-location would be a good idea; but felt an even better location would be across the river. Across the river would be away from residents and could have a flashing light that wouldn’t affect anyone.
Valdez resident Jacob Focht spoke on behalf of his brother Jason and said he agrees with what the others have said and stated that there has to be other options.
Valdez resident Bonnie Cudnohufsky spoke on behalf of her son Henry Cook. Bonnie stated that Henry is a young man who saved to buy property with a beautiful view and PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012 Page 3
build his first home and was distressed to learn that a 184 foot tower would be erected. Bonnie encouraged CGI to look at other properties.
Wayne Haerer from GCI stated that he spoke with Chris Mishmash, representative of CVT, on several occasions regarding possible co-location on the CVT tower in town. GCI asked CVT to submit a quote for placing GCI antennas on the tower. The quote was not cost effective, which led GCI to contract with AT & T. In addition, the TV tower location is remote, requiring equipment to be brought in by helicopter which would be cost prohibitive and not effective as GCI needs to have direct access.
Wayne also stated that he’s not speaking on behalf of any of the other carriers, but the GCI tower would afford the ability of co-location to the other carriers. Wayne stated that if a person could step away from the concern of this particular tower, the concern of many towers could be eliminated by co-locating on this tower. This tower is designed to accommodate three more carriers.
Wayne stated that there will not be lights on the tower, as the FAA doesn’t require them at that height. As an alternative, GCI has installed reflectors in lieu of lights on other towers and that could be an option. Wayne also stated that he had done a five year property value study in Kenai approximately four years ago and found that there was no reduction in value by the AT & T tower to the residential areas nor was there any obstruction of the view shed to the Kenai River. In addition, GCI had two appraisals done on a piece of property in the Juneau area and they indicated no valuation affect to the property because of a tower.
Wayne stated that he will not say there won’t be some concern, but as far as obstruction of view, the tower tapers off dramatically after 60 feet and would be similar to looking at a pen at any distance so the concern of blocking out mountains is not true. Additionally, Wayne took pictures from Mr. Bennett’s driveway at 5990 Deep Lake Drive and doesn’t believe the impact will be too great.
Wayne thanked the residents for their input and indicated that he will bring their comments back to the Chief Engineer and Vice Presidents of GCI for discussion. Wayne further stated that they understand that they no longer have to go through the public hearing process but will still stay sensitive to the concerns.
Commissioner Fannin asked if GCI had a certificate of convenience or is considered an agency which is a requirement of qualifying under a utility installation under 17.04.1510. Lisa responded that that was her understanding and asked Lindsay Hobson, attorney at Walker and Richards, to speak to the question. Lindsay stated that she believes that GCI falls into the utility installation under city code 17.04.1510 and qualifies for an exemption. Wayne Haerer of CGI responded that they do have a certificate of convenience.
Wayne reiterated that GCI went through the process of due diligence in asking for a variance and even though it’s been declared moot, GCI still wants to work with staff and report their findings and what they are proposing. In addition, as stated previously there PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012 Page 4
will not be any lights; and if something comes up GCI will try to work with the City in good faith if they go forward with the project.
Chairman Delozier asked Wayne if the tower had the capability of handling more than one companies’ antennae and Wayne responded yes, that it can handle up to three more carriers, which could potentially eliminate the need for more towers to be erected.
VIII. UNFINISHED BUSINESS - None
IX. NEW BUSINESS
1) (EXCPT # 12-03) Approval of Exception for an Existing 14.3 Foot Encroachment of the Carport into the 20 Foot Front Yard Setback on a Lot 7A, Block 7, Mineral Creek Subdivision. Applicant: Bonnie Cudnohufsky.
MOTION: Commissioner Haase moved and Commissioner Fannin seconded approval of the Exception for an Existing 14.3 Foot Encroachment of the Carport into the 20 Foot Front Yard Setback on a Lot 7A, Block 7, Mineral Creek Subdivision.
Bonnie Cudnohufsky stated that she was present to support her request. There was no discussion.
VOTE ON THE MOTION: 4 Yeas, 3 absent and excused (Commissioners Malone, Hogarth and Swierk); motion carried.
2) Discussion Item: Mobile Home to be Retained as a Storage Building on Light Industrial Zoned Lot at Lot 1, Parcel B, USS 3682 (Loop Road)
Lisa stated that Mr. Daniels was present on behalf of his parents who are building a new home and have asked to have their existing mobile home remain on the property as a storage unit. The Daniels are willing to do whatever is necessary to make the mobile home uninhabitable. Lisa stated that the code deals with mobile homes on residential lots but does not address them on light industrial zoned lots so it is a gray area. Therefore, staff directed the Daniels to remove the mobile home as the code states that a property cannot have more than one dwelling unit. The discussion before the Commission is whether or not the mobile home, if made uninhabitable, can be considered a storage unit and therefore able to remain on the property. Commissioner Haase asked if there was a size limit on storage units without a permanent foundation and Lisa responded that if it is less than 200 feet then it doesn’t require a permanent foundation, but mobile homes are allowed without a permanent foundation because they have a chassis. Lisa is concerned that the precedent will be set that anyone can move a mobile home onto a piece of property and call it a storage unit. Commissioner Haase agreed that the precedent would be set; however, connexes are brought in all the time and have not come before the Commission. Commissioner Fannin confirmed that a chassis is something on wheels and recited the portion of the code that states a mobile home must be suitable for long term habitation, having complete living facilities. Commissioner Fannin stated that if you rip PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012 Page 5
all of that out then it’s no longer a mobile home and would be considered a trailer. Commissioner Fannin further stated that the issue will be that anyone driving by will see a mobile home; they will not know that it has been made uninhabitable.
Lisa stated that because the issue is coming before Planning & Zoning, the Commission has the ability to place stipulations on the request and/or record it to the property. Commissioner Haase stated that the Commission would be granting an exception to an oversized storage shed that is not on a permanent foundation and asked if that would be a correct assessment. Lisa responded that it wouldn’t necessarily be an exception, even though there isn’t a provision for it in the code, it would be something that is allowed because of the reasonableness of the request. Lisa agreed with Commissioner Fannin that it becomes an appearance issue. Commissioner Fannin stated that the best course of action would be to call it storage of a mobile home unit and leave it at that. Lisa responded that she would work with Lindsay Hobsen to make sure everything is in order.
David Daniels spoke on behalf of his parents. His father has had a small stroke and David appreciates the Commission allowing him to speak on their behalf and is willing to do whatever is asked in order to allow the mobile home to remain as a storage unit. Lisa responded that staff would work with Mr. Daniels to do what needs to be done.
3) Approval to Go into Executive Session Regarding Abatement Litigation a) Lot 11, Block 11, Robe River Subdivision b) Lots 4 & 5, Block 1, Robe Lake Subdivision
MOTION: Commissioner Haase moved and Commissioner Ragan seconded approval to Go into Executive Session Regarding Abatement Litigation c) Lot 11, Block 11, Robe River Subdivision d) Lots 4 & 5, Block 1, Robe Lake Subdivision
VOTE ON THE MOTION: 4 Yeas, 3 absent and excused (Commissioners Malone, Hogarth and Swierk); motion carried.
X. REPORTS
1) E-Notes
There were no additions to the E-Notes.
2) Staff Report – Verbal at Meeting
Lisa reported that the Alaska Planning Association Conference will be hosted November 11-13, 2012 in Anchorage and if anyone is interested in attending please contact Lisa as money is set aside for travel by Commissioners.
3) Abatement Report – Deferred to Executive Session
4) Non-Conforming Use v. Exception Report PLANNING AND ZONING COMMISSION REGULAR MEETING SEPTEMBER 12, 2012 Page 6
Lisa stated that she reviewed the code regarding non-conforming uses and exceptions and agreed with Commissioner Fannin that non-conforming use should be the condition applied and will be used for future requests where something was built prior to 1983. Lisa further stated that the big difference between the two is, in a non-conforming use agreement if more that 50% of the original structure is damaged then it has to be re-built in compliance with current codes. In an exception, that isn’t necessarily the case.
XI. COMMISSION BUSINESS FROM THE FLOOR
Commissioner Haase stated that he would like to discuss towers at a future meeting.
Chairperson Ragan stated that there is a good chance she will miss the September 26th meeting and will not be present for the October 10th meeting.
Commissioner Fannin asked if the construction on Rich Long’s property by Mark’s Repair had the proper permits. Staff reported that construction is being done without permits. Rusty Hansen, the Building Inspector, did an inspection and asked that the permits be submitted, along with State Fire Marshal approval since it is on commercial property. Commissioner Fannin stated that when these types of situations arise, a stop work order needs to be applied and enforced rather than allowing construction to continue and trying to “make it fit” after the fact. In addition, it sets a precedence which needs to be avoided.
Chairman Delozier stated that he will also not be present for the September 26th meeting. Chairman Delozier further stated that he had just gotten off the plane from attending the Alaska Seismic Safety Hazards meeting and reported that it was very intense and enlightening and will share more information when he’s gathered his thoughts. There were several items that will be of interest to the Commission, but one item in particular is the recommendation that professional engineers and surveyors be required to have continuing credits on seismic training. This item will be brought back to the Commission for their input.
Lisa stated that she will also be absent at the September 26th meeting.
XII. EXECUTIVE SESSION
The Commission adjourned at 8:48pm to go into executive session.
XIII. RETURN FROM EXECUTIVE SESSION
XIV. ADJOURNMENT
There being no further items, the meeting adjourned at 9:08 pm. PLANNING & ZONING AGENDA STATEMENT
AGENDA ITEM NO. VIII.1 MEETING DATE: October 10, 2012
ITEM TITLE: SUBMITTED BY: Janine Vadeboncoeur, Approval of Recommendation to Council to Planning Technician Approve Gravel Lease Renewal for Haltness Construction, Inc. DIRECTOR: Community & Economic Development
REVIEWED BY: Other Commission: Finance: Other:
EXHIBITS ATTACHED:
Resolution ___ Ordinance___ Plan ___ Map _X_ Report ___ Minutes ___ Plat: ____ Other:
RECOMMENDATION: Approve recommendation to Council to approve the gravel lease renewal with Haltness Construction, Inc.
SUMMARY STATEMENT: In 1992 Haltness Construction, Inc. entered into a twenty (20) year lease with the City of Valdez for Lots 1, 2 and 3, Block 3 and Lots 1 and 2, Block 4, Gravel Lease Subdivision, recorded in the Valdez Recording District as Plat No. 92-5, for an area of 50 acres.
On November 18, 2002 Lease Amendment No. 1 was approved by the Valdez City Council for the assignment of a 10-acre parcel (Ness Survey) from Harris Sand & Gravel to Haltness Construction, Inc. on October 21, 2002. The expiration date on the Harris Sand & Gravel lease expired in 2016. The Lessor recommended that the expiration date of the new 60-acre parcel retain the current expiration date of 2012 which is on the Lesee’s 50-acre lease. Council approved this new expiration date in Amendment No. 1.
The Haltness Construction, Inc. gravel lease expires on October 5, 2012. Staff received an email September 4, 2012 from Erik Haltness requesting the renewal of his gravel lease. Staff is working on drawing up a new lease which will be for a ten (10) year period expiring October 5, 2022. The rent will remain at $3,000 per year plus $.60 per cubic yard over 5,000 cubic yards extracted annually, which is due April 1st of each year.
The other major terms and conditions of the lease will remain in full force and effect in this renewal.
This item was originally on the agenda for action on September 26th but that meeting had to be cancelled due to lack of a quorum. Council will take action on this item on October 15th. 645 5 2 2 550 600 640 670 4 540 2B 1 645 3 1 2A 2
121 120 119 118 673 117 116 115
114 Glacier View Trailer113 Ct 1 112 6 2 555 615 670 5 4 693
TRACT A 525 3
800 851 4 1 853 801 2 855 ASLS 79-116 1 803 4 Landfill 751 3 3 NESS 3 SURVEY 805 720 3 753 5 701 2 755 2 703 651 2 4 4 705 200 1 3C 653 2 601 6 1 3 1 655 2581 603 5 2 605 1 3 Valdez Glacier
Stream 2801 3033 3031
8 7 3035 2901 6 3032 5 3037 11 OLD ALPETCO ROAD TRAIL - DOT LEVEE 4A Mendenhall St 10 3039 3 4 3036 3045 3035 2 3042 3 Corbin Creek 6 6 3051 3036 3044
Subdivision Old Trap Range 3041 5 8 1 3057 3033 5 7 3042 Fairweather St 3046 3047 2800 30366 3037 4 2 3001 6 3063 4 3048 3053 DOT Pit 30416 7 3 3042 5 5 3 3059 1 MS 71-1-1-012-5 3054 Childs3047 St 2 4 2 3048 3065 0 500 1,000 2,000 3,000 4,0003053 3060 Feet PLANNING & ZONING AGENDA STATEMENT
AGENDA ITEM NO. VIII.2 MEETING DATE: October 10, 2012
ITEM TITLE: SUBMITTED BY: Janine Vadeboncoeur, Approval of Recommendation To City Planning Technician Council to Lease Lot 2B, Block 2, Airport Industrial Subdivision to Autocat Recycling of Alaska DIRECTOR: Community & Economic Development
REVIEWED BY: Other Commission: Finance: Other:
EXHIBITS ATTACHED:
Resolution ___ Ordinance___ Plan ___ Map __ Report ___ Minutes ___ Plat: __X__ Other: 1) Land Lease Application 2) Appraisal 3) SOA 4) CBR
RECOMMENDATION:
Approve recommendation to City Council to Lease Lot 2B, Block 2, Airport Industrial Subdivision to AutoCAT Recycling of Alaska.
SUMMARY STATEMENT: Autocat Recycling of Alaska first approached staff requesting to know what land was available that allowed stockpiling metal for recycling. They stated they were intent on setting up business on the East side of Alaska and wanted to stockpile metal from Valdez all the way up to Delta here and use our container terminal to ship recycled metal on barges down to their partners in the Lower 48. The only readily available Heavy Industrial land is at Airport subdivision, and the only suitable parcel that has current access and is not being abated is on Lot 2B, Block 2. AutoCAT recycling felt that parcel would be perfect but they do not have adequate cash reserves readily available for such a substantial purchase. They asked if they could lease it until they were able to stockpile enough metal to load a barge. With a barge shipment done, AutoCAT feels confident they will have enough available capital to then purchase the land. Therefore, they are asking for a Lease with the Option to Purchase. Lot 2B, Block 2, Airport Industrial Subdivision has already been approved for sale Over the Counter (it went out for an Outcry Auction August 30, 2003 and had no bids). It has been available for sale over the counter since that time.
When leases with an Option to Purchase go before Council, they are essentially treated as a Sale by Negotiation. This land has been available over the counter for anyone to purchase for the last 9 years and there has been some interest but no takers. Removing it from Over the Counter and essentially allowing someone t lease the property with an option to purchase, is not, in staff’s opinion, contradictory to the intent of selling land Over the Counter.
There is another metal recycler stockpiling metal materials two parcels down from Lot 2B, so stockpiling is an established use in the area and the use is in conformance with the Heavy Industrial zoning. Additionally, the City does lease the parcel directly across the road from Lot 2B to Harold Blehm, so leases in the area are also an established practice. Because the applicant needs capital in order to purchase the land, and because the applicant can’t build good capital without first having land to stockpile, a lease with the Option to Purchase does seem to make the most sense to staff.
With the lot being appraised at $100,000 the annual rental rate (at 10% of the appraised value) is $10,000. Autocat Recycling of Alaska is requesting quarterly payments on the lease which would result in a payment of $2,500 each quarter for the year.
This agenda item will be going before the City Council on October 15th, 2012 if the Planning & Zoning Commission approves a recommendation to Council.
MacSwain Associates LLC 4401 Business Park Boulevard, Suite 22, Anchorage, Alaska 99503
SUMMARY APPRAISAL REPORT 7.62-Acre Industrial Lot Lot 2B, Block 2, Airport Industrial Subdivision, Alaska
N
Subject
Atigun Drive
File No. 12-2387 Effective Appraisal Date: May 8, 2012
Submitted To: Laura Robertson Planning/GIS Technician City of Valdez P.O. Box 307 Valdez, Alaska 99686 MacSwain Associates LLC 4401 Business Park Blvd., Suite 22 Anchorage, Alaska 99503 Ph 907.561.1965 Fax 907.561.1955
May 18, 2012
Laura Robertson Planning/GIS Technician City of Valdez P.O. Box 307 Valdez, Alaska 99686
Re: Lot 2B, Block 2, Airport Industrial Subdivision 7.62-Acre Industrial Lot
Dear Ms. Robertson:
We have prepared a Summary appraisal report that analyzes 7.62-acre industrial lot located near the Valdez Airport in Valdez, Alaska. The type of value estimated is market value and the property rights appraised is the fee simple interest. The report is prepared in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).
Based on the result of our investigation and analysis, the estimated market value of the subject land, as May 18, 2012, is as follows.
Market Value of Subject Land $100,000
Your attention is directed to the Assumptions and Limiting Conditions of this report. We hope the appraisal report assists your evaluation of the property. If you have any questions regarding this report, please contact our office.
Steve MacSwain, MAI Trevor Lund State of Alaska Certificate No. 42 State of Alaska Certificate No. 705
MacSwain Associates LLC
Appraiser Certification
The undersigned certifies that to the best of his knowledge and belief:
The statements of fact contained in this report are true and correct.
The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are our personal, impartial, and unbiased professional analyses, opinions, and conclusions.
We have no present or prospective interest in the property that is the subject of this report, and no personal interest with respect to the parties involved.
We have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment.
Our engagement in this assignment was not contingent upon developing or reporting predetermined results.
Our compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal.
The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute.
The reported analyses, opinion, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP).
The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives.
Trevor Lund inspected the appraised property on May 8, 2012.
No one provided real property appraisal assistance to the persons signing this certification.
MacSwain Associates LLC has not performed any appraisal services on the subject property in the last three years.
As of the date of this report, Steve MacSwain, MAI, has completed the continuing education program of the Appraisal Institute. Steve MacSwain, No. 42 is a certified General Real Estate Appraisers in the State of Alaska.
5/18/2012 Steve MacSwain, MAI Trevor Lund Date State of Alaska Certificate No. 42 State of Alaska Certificate No. 705
MacSwain Associates LLC
Table of Contents
Title Page Transmittal Letter Appraiser Certification Table of Contents
Appraisal Summary 1
Chapter 1: Premise of the Appraisal Problem 2
Chapter 2: Valdez and Neighborhood Description 6
Chapter 3: Parcel Description and Analysis 9 Property Photographs 11
Chapter 4: Highest and Best Use Analysis 14
Chapter 5: Land Valuation - Sales Comparison Approach 16
Addenda Assumptions and Limiting Conditions Appraiser Qualifications
MacSwain Associates LLC
Appraisal Summary
Purpose of Appraisal: Estimate market value
Property Type: Vacant land
Property Interest Appraised: Fee simple interest
Location: The subject property fronts north side of Atigun Drive, just west of Rudolph Street in Valdez, Alaska.
Legal Description: Lot 2B, Block 2, Airport Industrial Subdivision
Tax ID No: 7096002-002-1
Property Owner: City of Valdez
Land Area: 7.62-acres or 331,927± square feet
Access: Atigun Drive, a gravel secondary road
Frontage: 620±-feet of Atigun Drive frontage and 620±-feet of Hobart Road frontage (not improved).
Topography: Generally level and at grade with surrounding properties.
Zoning: (HI) Heavy Industrial District; The HI district is intended for industrial development, including heavy manufacturing, shipping terminals, natural resource extraction and other processes
Utilities: Electricity and telephone
Highest and Best Use: Industrial
Date of Inspection: May 8, 2012
Effective Appraisal Date: May 8, 2012
Date of Report: May 18, 2012
Market Value: $100,000 ($0.30± per square foot)
12-2387: Lot 2B, Block 2, Airport Industrial Subdivision, Valdez, Alaska 1
MacSwain Associates LLC
Chapter 1: Premise of the Appraisal Problem
We prepare a Summary appraisal report that analyzes a 7.62-acre lot Overview located near the Valdez Airport in Valdez, Alaska. The report is intended to comply with the requirements of the Uniform Standards of Professional Appraisal Practice (USPAP).
Value Type Market value
City of Valdez Client
The intended use of this appraisal report is to assist the client with Intended Use of the negotiating a sale of the subject property. Appraisal Report
City of Valdez Intended Users of the Appraisal Report
May 8, 2012 Date of Property Inspection
May 8, 2012 Effective Appraisal Date
May 18, 2012 Date of Report
The subject property fronts north side of Atigun Drive, just west of Identification of Real Rudolph Street in Valdez, Alaska. Estate Appraised
12-2387: Lot 2B, Block 2, Air port Industrial Subdivision, Valdez, Alaska 2
MacSwain Associates LLC
The subject is legally defined as: Legal Description Lot 2B, Block 2, Airport Industrial Subdivision (Plat 2005-1), Copper River Meridian, Valdez Recording District, Alaska.
Definition of The market value definition that follows represents the basis of this Market Value analysis and valuation.
The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: a. buyer and seller are typically motivated; b. both parties are well informed or well advised, and each acting in what he or she considers his or hers own best interest; c. a reasonable time is allowed for exposure in the open market; d. payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and e. the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.1
The property rights appraised is the fee simple interest, which is defined Property Rights as follows. Appraised Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat.2
1 Appraisal of Real Estate, Thirteenth Edition (2008), by The Appraisal Institute, pp. 24-25. 2 Appraisal of Real Estate, Thirteenth Edition (2008), by The Appraisal Institute, p. 114.
12-2387: Lot 2B, Block 2, Air port Industrial Subdivision, Valdez, Alaska 3
MacSwain Associates LLC
Per State of Alaska Recorder’s Office documents, the owner of the Property Owner subject lot is the City of Valdez.
The table below summarizes the 2012 City of Valdez real property Assessed assessments for the appraised property. Value 2012 Assessed Value (7096002-002-1) Year Land Improvements Total Mill Rate RE Taxes 2012 $100,116 ($0.30/SF) $0 $100,116 20.0 Exempt
Due to the City of Valdez ownership, the subject lot is tax exempt. There are no other known assessments.
There are no known transactions involving the subject over the past three Three-Year Sale years. The City of Valdez currently has the subject lot listed for History $100,000 or $0.30 per square foot. According the City of Valdez, there is an interested party, but an appraisal is required before a transaction occurs.
The scope of the appraisal is summarized as follows. Scope of Appraisal Discussed the appraised property with Laura Robertson with the City of Valdez; Gathered data from the State of Alaska Recorder’s Office regarding ownership and general property information; Reviewed land use patterns in the neighborhood; Interviewed various real estate brokers, buyer, sellers, and appraisers in South-central Alaska regarding the real estate market; Gathered and confirmed information on comparable land sales; and Applied the sales comparison approach to arrive at an indication of market value.
The objective of this engagement is to prepare a Summary appraisal that complies with the Uniform Standards of Professional Appraisal Practice (USPAP). We employ the sales comparison approach to estimate the market value of the appraised property. Neither the cost nor the income capitalization approach reflects market behavior for this type of property.
12-2387: Lot 2B, Block 2, Air port Industrial Subdivision, Valdez, Alaska 4
MacSwain Associates LLC
We use qualitative techniques to measure differences between the comparable sales and the subject. A relative comparison analysis rates various elements of the comparable sales as superior, inferior, or similar to the subject land. As part of the appraisal process, we have made independent investigations and analysis including consultations with local developers, real estate professionals, property owners, and investors. The investigation and analyses culminates in an estimate of the subject’s market value.
We have completed numerous appraisal assignments of similar land Statement of throughout Valdez and South-central Alaska. A summary of the Competency appraisers’ appraisal experience and professional qualifications are located in the addenda. We have the knowledge and experience to competently complete this assignment credibly.
We have collected and analyzed market and economic data that projects Exposure Time real estate trends and activity. Discussions with knowledgeable individuals in the area and analysis of property sales indicate an exposure period of one-year is a reasonable expectation for the appraised property.
12-2387: Lot 2B, Block 2, Air port Industrial Subdivision, Valdez, Alaska 5
MacSwain Associates LLC
Chapter 2: Valdez and Neighborhood Analysis
Valdez is located in South-central Alaska on the north shore of Port Overview Valdez, a deep-water fjord in Prince William Sound lying 120± air miles east of Anchorage, or 305± road miles via the Richardson and Glenn Highways. With its ice-free port, southern terminus of the Trans-Alaska oil pipeline, and access to the Alaska Highway system, Valdez has emerged as a major seaport for tourism and resource transport. A summary of the Valdez area and neighborhood follows.
Location Map
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Valdez Anchorage
Prince William Sound
Valdez was incorporated as a city in 1901, but is not an organized Government borough. Valdez has one of the highest municipal tax bases in Alaska as the southern terminus and loading point of oil extracted from the North Slope. Alyeska Pipeline Service Company, the pipeline operator employs 300± people and accounts for 90±% of the city’s local tax base. The current property mill rate is 20.0 mills per $1,000 of property value.
Due to oil taxation reserves, the city offers a variety of quality services and recreation. There is a 2,000-seat convention center and there are four schools for nearly 1,000 students. There is also the Prince William Sound Community College (PWSCC), a small State-funded college affiliated with the University of Alaska.
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MacSwain Associates LLC
Valdez Area Map
Valdez Townsite N Valdez Airport
Subject
Valdez Arm
Richardson Valdez Marine Highway Terminal
Valdez is well known as the southern terminus of the Trans-Alaska oil Socioeconomic pipeline, stretching some 800 miles from the North Slope on the Arctic Data Ocean. Major private employers in Valdez are oil companies, oil support, and transportation services. Local, state, and federal agencies represent nearly one-third of the Valdez workforce. Seasonal commercial fishing and tourism have spurred the retail and service sectors.
The current population is estimated to be 4,500±. The original townsite was developed in the early 1900s as Valdez became a supply center to the interior gold mines. A tsunamis generated by the 1964 Earthquake destroyed the original city and a new community was rebuilt. During the 1970’s, construction of the oil pipeline terminal and other cargo transportation facilities brought rapid growth to the re-located Valdez townsite.
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MacSwain Associates LLC
The Richardson Highway connects Valdez to Anchorage, Fairbanks, and Transportation the Alaska Highway. The Alaska State ferry system provides Systems transportation to Whittier, Cordova, Kodiak, Seward and Homer in the summer; winter transport is limited to Cordova. The City of Valdez also owns the largest floating concrete dock in the world, which accommodates numerous cargo and container operations. There a $48 million dollar cargo and container facility and a small boat harbor accommodate 550± commercial and recreation vessels. In addition, there is a 6,500-foot long by 150-foot wide, state-operated airport with an instrument landing system and control tower. Robe Lake serves as the local seaplane base.
Diversification is the primary economic goal of Valdez. However, this Economic Trends objective has been difficult to attain due to the economic strength wielded by the oil industry and government sector. However, seasonal tourism has exerted itself as a key component of the Valdez economy. Moderate tourism growth is projected; and considerable effort is being spent on promoting winter tourism. Commercial fishing remains an important sector of the Valdez economy, but the state of this industry remains volatile.
Tourism is considered a balancing economic force that has a direct Tourism impact on the subject property. Although tourism has recorded modest growth over the past decade, near-term growth is anticipated to increase. Winter visitation is increasing with the popularity of the skiing, snowboarding, and snow machining events held in Valdez as well as increased tours and packages.
Over the past 20 years and excluding a period after the 1989 Exxon Real Estate Trends Valdez Oil Spill (EVOS), property values have been generally stable and Future Outlook within the Valdez market. Residential property values have recorded modest increases, but available supply remains in balance with demand. Commercial property values are currently less than their construction cost new and lease rates will have to increase significantly to stimulate speculative-type development. Owner-occupied development is expected to be the primary source of new commercial development. Demand for office and retail space is less than available supply. Thus, lease rates should remain constant until there is an increase in market demand.
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MacSwain Associates LLC
Neighborhood Aerial Map
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Valdez Airport Airport Road
Salcha Way
Atigun Drive Subject
Richardson Highway
The immediate neighborhood is a mixed use light industrial and Neighborhood commercial area adjacent to the Valdez Airport. Generally speaking, the Summary neighborhood is east of the Richardson Highway, four miles east of the Downtown Valdez commercial core, and 9.5± miles northeast of the Valdez Maine Terminal. Zoning within the neighborhood is both light and heavy industrial with mixed land uses consisting of general aviation, light industrial, commercial, and residential properties. Neighborhood land ownership includes the State of Alaska, City of Valdez, and private.
Since Valdez is the southern terminus of the oil pipeline and a deep-water Conclusion port with direct access to the state highway system (road and marine); there is opportunity for economic growth. The outlook for the neighborhood is favorable with continued diversification and stability in the Valdez economy. In addition, proposed construction of the natural gas pipeline is a source of economic and market optimism. The subject land is well-located within the Valdez’s Airport neighborhood.
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MacSwain Associates LLC
Chapter 3: Parcel Description and Analysis
Analysis of land describes characteristics that enhance or detract from its Overview utility or marketability, and then compares its neighborhood alternatives. The reader’s attention is directed to the plat map below. A description and analysis of the subject land follows.
Plat Map
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Atigun Drive
Location: North side of Atigun Drive between Salcha Way Site Description and Rudolph Street near the Valdez Airport, Valdez, Alaska Land Area: 7.62-acres or 331,927± SF
Shape: Rectangular-shaped
Access: Atigun Drive, gravel secondary road. The road is paved approximately 100-feet west of the subject.
Frontage: 620±-feet of Atigun Drive frontage and 620±- feet of Hobart Road frontage (not improved).
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MacSwain Associates LLC
Topography: Generally level and at grade with surrounding properties.
Utilities: Electricity and telephone; water and sewer are 952-feet and 1,300-feet, respectively, to the west. According to the City of Valdez, on-site water and septic systems are allowable.
Zoning: (HI) Heavy Industrial District. The HI district is intended for industrial development, including heavy manufacturing, shipping terminals, natural resource extraction and other processes or operations which involve one or more of the following; employs large number of workers, heavy truck traffic, significant environmental effects or large volume public water or sewer service or storage of hazardous materials under a conditional use permit.
Easements and The plat map indicates no easements or Restrictions: restrictions.
Soil and Subsurface A geotechnical report was not provided to the Conditions: appraisers. Based on discussions with City of Valdez representatives, soils in the general neighborhood are sand and gravel-based typical of glacial till. Overall, soil and subsurface conditions are considered good.
Environmental An environmental risk assessment was not Assessment: provided. Therefore, we do not know if the subject is affected by hazardous substances, petroleum products, or buried tanks and the like. Thus, the value conclusion assumes that the property is free of environmental and hazardous contaminants.
Site Utility The lot fronts Atigun Drive a secondary road just south of the Valdez Airport. The subject’s location, access, and size support industrial type uses.
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MacSwain Associates LLC
Parcel Photographs
Date: May 8, 2012 Taken by: TAL
North view of subject lot
Northwest view of subject lot
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MacSwain Associates LLC
Parcel Photographs
Date: May 8, 2012 Taken by: TAL
East view of Atigun Drive frontage (subject on left)
West view of Atigun Drive frontage (subject on right)
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MacSwain Associates LLC
Chapter 4: Highest and Best Use Analysis
Highest and best use is a market-driven concept rather than a subjective Overview conclusion based on the appraisers’ experience or property owner’s wishes. An understanding of economic theory and its effect on market behavior is crucial in analyzing a property’s highest and best use.
Highest and best use is defined as follows.
The reasonably probable and legal use of vacant land or an improved property that is legally permissible, physically possible, appropriately supported, financially feasible, and that results in the highest value.3
Legally Permissible: Fundamental to the appraisal process is that the Highest and Best Use highest and best use of the parcel be legally permitted. The subject is As Vacant zoned HI, heavy industrial district. The zoning district is intended for industrial development including manufacturing, processing, warehousing, storage, wholesale and distribution operations, and similar processes and operations. Limited commercial uses are also allowed. We are not aware of any known deed restrictions that would limit the type or scale of development. Overall, the subject land is suitable for most legal uses permitted by zoning.
Physically Possible: Location and arterial frontage encourage industrial development. Moreover, land area (size), topography, utilities available, and soil conditions are positive physical characteristics. Overall, physical aspects of the subject site are comparable to neighborhood alternatives and suitable for most legal uses of the land. Based on surrounding neighborhood land use patterns, physically possible development include primarily industrial uses.
Financially Feasible and Maximally Productive: We consider financial feasibility and maximally productive potential together. Speculative industrial and commercial development opportunities do not exist in the Valdez market due to market and economic conditions. However, commercial and industrial type development has occurred on an owner- occupied on a build-to-suit basis. Regardless of the investment alternative selected, industrial development maximizes return.
3 Appraisal of Real Estate, Thirteenth Edition, by the Appraisal Institute, p. 278.
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MacSwain Associates LLC
Highest and Best Use Conclusion: Based on the foregoing, the legally permissible and physically possible alternative that provides financial opportunity is industrial. In conclusion, industrial is the highest and best use as vacant.
Highest and Best Use As Vacant Industrial
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MacSwain Associates LLC
Chapter 5: Land Valuation – Sales Comparison Approach
This chapter analyzes land sales identified as primary price indicators. Overview We perform comparative analysis of each land sale to the subject, but rely upon the secondary indicators as market support. Although industrial land sales with similar location, physical, and legal character are scarce, we found adequate data to develop a credible comparative analysis. An explanation of the sales comparison methodology follows.
The sales comparison approach is a market-based analysis premised on Sales Comparison price behavior for land that offers similar physical, legal, and economic Methodology character as subject. After a comprehensive search, we analyzed four primary land sales each with a similar highest and best use despite location and physical differences. Regarding the comparative analysis, qualitative adjustments are used to measure differences between the land sales and the subject. Qualitative adjustments use a technique known as relative comparison analysis, which represents a study of market relationships without recourse to quantification. By analyzing and interpreting market behavior, we rate various elements of comparison that influence price as superior, inferior, or similar.
The first step of the market analysis is to determine the elements of Elements of comparison that cause sale prices to vary. We found that location, Comparison physical characteristics, and use (zoning) have the greatest influence on the price paid for industrial land in Valdez. In contrast, real property rights conveyed, financing terms, conditions of sale, expenditures made after purchase, market conditions, location, economic character, and non- realty components of value had no significant affect on price behavior.
Four primary land sales are relied in comparative analysis. Land Sale Comparable Land Nos. 1 and 3 were sold by the City of Valdez via over-the-counter Sale Analysis purchases. Based on discussions with the City of Valdez and other real estate professionals and market participants, the sales are market-based and reflective of typical price behavior.
The table on the next page summarizes the primary land sales with a map depicting location below. The sales were negotiated on a price per square foot basis; therefore, we use this per unit indicator as a comparative base. Details of these transactions are retained on file.
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MacSwain Associates LLC
Land Sale Summary No. Location Sale Date Sale Price Land Area (SF) $/SF 1 Northwest corner of Hobart Street and 10/08 $41,300 163,350 $0.25 Rudolph Street, Valdez 2 East side of Richardson Highway, 8/08 $150,000 910,404 $0.16 north of Chitna Avenue, Valdez 3 North side of Hobart Street, west of 10/07 $28,800 108,900 $0.26 Rudolph Street, Valdez 4 Northeast corner of Richardson 5/07 $49,500 73,181 $0.68 Highway and Alaska Avenue, Valdez North side of Atigun Drive, just west -- -- 331,927 -- of Rudolph Street (Subject)
Land Sale Map
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Valdez Airport Valdez Townsite 2
1 3
4 Subject
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MacSwain Associates LLC
Land Sale No. 1 Summary: This is the October 2008 sale of a 163,350 square foot parcel located in the subject’s immediate neighborhood and within Airport Industrial Subdivision. Parcel topography is generally level and near grade with surrounding properties. Legal access is available from Hobart Street and Rudolph Street; however, the roadways are un-improved. The lot was sold with the understanding subdivision roads would be improved by the City of Valdez. The rectangular-shaped lot has public electric and telephone service available; soil conditions are sand and gravel-based. Zoning is HI, heavy industrial which offers similar land use potential as the subject. The October 2008 sale price of $41,300 indicates a unit value of $0.26 per square foot.
Comparative Analysis: When compared to the subject, smaller size is superior and requires downward adjustment. In contrast, the parcel lacks primary road frontage and access, which is inferior. Overall, Land Sale No. 1 is rated inferior indicating a unit value greater than $0.26 per square foot for the subject.
Land Sale No. 2 Summary: Land Sale No. 2 is a 20.9-acre (910,404 square foot) parcel located just east of the Valdez townsite in an area known as the Duck Flats. The triangular-shaped parcel fronts the east side of Richardson Highway, north of Chitna Avenue. Topography is generally level and about eight feet below road grade; the parcel has Richardson Highway frontage. Public water, sewer, electricity, and telephone are available. Classified as wetlands (100%), the parcel also is within the tidal flats and 100-year floodplain. The parcel is zoned C, General commercial permitting a variety of commercial use. The sale price of $150,000 indicates $0.16 per square foot.
Comparative Analysis: When compared to the subject, proximity to the Valdez townsite is considered a superior location. Moreover, commercial zoning is rated superior. In contrast, wetlands/floodplain and soil conditions are inferior. Overall, the extent of wetlands/floodplain and soil conditions adversely affect potential development and Land Sale No. 2 is rated inferior. Thus, a unit value greater than $0.16 per square foot is indicated for the subject.
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MacSwain Associates LLC
Land Sale No. 3 Summary: Land Sale No. 3 is the October 2007 sale of a 108,900 square foot parcel located immediately north of the subject in Airport Industrial Subdivision. The interior lot fronts the north side of Hobart Street, just west of Randolph Street. Topography is generally level and near grade with surrounding properties; the site is cleared with gravel/sand based soils. Legal access is via Hobart Street, which is un-improved. The lot was sold with the understanding subdivision roads would be improved by the City of Valdez. The rectangular-shaped lot has public electric and telephone service available. Zoning is HI, heavy industrial which offers similar land use potential as the subject. The sale price of $28,800 indicates a unit value of $0.26 per square foot.
Comparative Analysis: When compared to the subject, smaller size is superior. In contrast, the parcel lacks primary road frontage and access, which is inferior. Overall, Land Sale No. 3 is rated inferior indicating a unit value greater than $0.26 per square foot for the subject.
Land Sale No. 4 Summary: Land Sale No. 4 is the May 2007 sale of a 73,181 square foot parcel located south of the subject fronting the Richardson Highway. Specifically, the site is located at the northeast corner of Richardson Highway and Alaska Avenue. Topography is generally level and slightly below grade; soil conditions are sand and gravel based. At the time of sale, the parcel was heavily wooded. Direct access is provided by the Richardson Highway and Alaska Avenue. Public utilities available include electric and telephone and zoning is LI, light industrial. The sale price of $49,500 indicates a unit value of $0.68 per square foot.
Comparative Analysis: By comparison, location and smaller size are superior. Land Sale No. 4 is rated superior indicating a unit value less than $0.68 per square foot for the subject.
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MacSwain Associates LLC
Reconciliation of The adjustment grid below summarizes our comparative land sale Comparative analysis. Analysis Comparable Adjustment Grid
Land Sale No. Subject Sale No. 1 Sale No. 2 Sale No. 3 Sale No. 4 CE Sale Price ($/SF) -- -- $0.25 $0.16 $0.26 $0.68 Market Conditions 5/12 10/08 8/08 10/07 5/07 (Date of value) ------
Adjusted $/SF -- -- $0.25 $0.16 $0.26 $0.68
Location Valdez Airport Valdez Airport Valdez Valdez Airport Valdez Airport Neighborhood -- -- Twnste. ------Superior- Physical Characteristics Size 331,927 SF 163,350 SF 910,404 SF 108,900 SF 73,181 SF -Superior------Superior- -Superior- Access / Frontage Atigun Drive Un-improved Highway Un-improved Highway -Inferior- -Superior- -Inferior- -Superior- Soil Conditions Good (sand and Good Tidal flats Good Good gravel-based) -- -- -Inferior------Utilities Electricity and -- -- All available ------telephone -Superior- Use (Zoning) HI, heavy HI C HI L-I industrial district -- -- -Superior------
Land Value ($/SF) -- -- $0.25 $0.16 $0.26 $0.68 -Slightly -Inferior- -Slightly -Superior- Inferior- Inferior-
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We relied upon four primary land sales to estimate the market value of the appraised land. Land Sale No. 2 is inferior indicating a value greater than $0.16 per square foot. We rate Land Sale Nos. 1 and 3 slightly inferior indicating a unit value greater than $0.25 per square foot. In contrast, Land Sale No. 4 is superior indicating a value less than $0.68 per square foot. We array the comparable land sales on an overall basis as follows based on our comparative analysis.
Land Sale $/SF Overall Rank Net Adjustment 4 $0.68 Superior Subject ------3 $0.26 Slightly Inferior 1 $0.25 Slightly Inferior 2 $0.16 Inferior
Based on the foregoing, a unit value range from $0.25 to $0.35 per square foot is market-supported for the appraised land and develops the following.
331,927 SF × $0.25/SF = $82,982 331,927 SF × $0.35/SF = $116,174
Based on the preceding analysis, the fee simple land value of the 7.62- Land Value acre parcel, as of May 8, 2012, is reconciled at $100,000. Conclusion
Market Value (7.62-Acre Parcel) $100,000
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Assumptions and Limiting Conditions
This appraisal is subject to the following general assumptions and limiting conditions.
No responsibility is assumed for the legal description provided or for matters pertaining to legal or title considerations. Title to the property is assumed to be marketable unless otherwise stated.
The property is appraised free and clear of all liens or encumbrances unless otherwise stated.
The information furnished by others is believed to be reliable, but no warranty is given for its accuracy.
All engineering studies are assumed correct. All maps, plot plans, and other illustrative material are believed to be accurate, but are included only to help the reader visualize the property.
It is assumed the property is in full compliance with all applicable federal, state, and local environmental regulations and laws unless the lack of compliance is stated, described, and considered in the appraisal report.
It is assumed the property conforms to all applicable zoning, land use regulations, and platting restrictions unless the nonconformity is identified, described, and considered in the appraisal report.
Possession of this report, or a copy thereof, does not carry with it the right of publication.
Neither all nor any part of the contents of this report shall be disseminated to the public through advertising, public relations, news, sales, or other media without the prior written consent and approval of the appraiser.
The appraiser did not observe any hazardous materials or other type of environmental contamination on the appraised property. Furthermore, the appraiser does not have any knowledge that such substances exist. However, the presence of these substances may affect the property value.
12-2387: Lot 2B, Block 2, Airport Industrial Subdivision, Valdez, Alaska
MacSwain Associates LLC 4401 Business Park Boulevard, Suite 22, Anchorage, Alaska 99503
Appraiser: Trevor Lund State of Alaska, Certified General Real Estate Appraiser No. 705
Professional Experience: 1993 to Present - MacSwain Associates LLC Real estate appraiser of all property types throughout Alaska including commercial, industrial, subdivisions and special-purpose properties. Appraisals have been performed for financing, leasing, investment analysis, and buy- sell decisions.
Education: Bachelor of Business Administration, Finance (1997), University of Alaska Anchorage
Appraisal Education: The following is a list of successfully completed appraisal courses and seminars. 2011 – 7-Hour USPAP Update Course by the Appraisal Institute 2010 – General Appraiser Report Writing and Case Studies by the Appraisal Institute 2009 – Forecasting Revenue by the Appraisal Institute 2009 – 7-Hour USPAP Update Course by William King Associates 2007 – Advanced Applications by the Appraisal Institute 2007 – General Income Part I by the Appraisal Institute 2006 – Business Practice and Ethics by the Appraisal Institute 2006 – USPAP 15-Hour National Course by the Appraisal Institute 2002 – Land Valuation and Assignments Workshop by the Appraisal Institute 2002 – Highest and Best Use and Market Analysis by the Appraisal Institute 2002 – Advanced Sales Comparison and Cost Approaches by the Appraisal Institute 2000 – Basic Capitalization by the Appraisal Institute 1996 - Dynamics of Office Building Valuation by the Appraisal Institute 1996 - Appraisal of Retail Properties by the Appraisal Institute 1994 - Appraisal Principles by the Appraisal Institute
Membership and Organizations: Associate Member, Appraisal Institute
Significant Assignments: Automotive Dealerships Mercedes-Benz of Anchorage, Anchorage, Alaska A&M RV Center, Anchorage, Alaska Hutching Chevrolet, Soldotna, Alaska Glacier Pontiac Buick GMC, Soldotna, Alaska
Special-Purpose Properties Alaska Laser Wash Car Wash Facilities, Anchorage, Alaska Splash and Dash Car Wash, Fairbanks, Alaska Hutchings Auto Spa, Soldotna, Alaska Pink Elephant Car Wash and Gas Station, Anchorage, Alaska Port Graham Cannery and Hatchery, Port Graham, Alaska Eight (8) Convenience Store/Car Wash Facilities located throughout Fairbanks, Alaska Soldotna Tesoro, Soldotna, Alaska Fourth Avenue Theater, Anchorage, Alaska Alaska Memorial Chapel and Crematory, Anchorage and Wasilla, Alaska
Lodging Facilities and Lodge Appraisals Holiday Inn Express, Anchorage, Alaska Mush Inn Motel, Anchorage, Alaska Chelsea Inn, Anchorage, Alaska Inlet Inn Hotel, Anchorage, Alaska Sourdough Inn, Anchorage, Alaska Samovar Inn, Anchorage, Alaska Rodeway Inn, Anchorage, Alaska Black Angus Inn, Anchorage, Alaska Puffin Inn, Anchorage, Alaska Shee Atika Hotel, Sitka, Alaska Best Western/Best Value Inn, Fairbanks, Alaska Guesthouse Inn/Aspen Suites, Valdez, Alaska Land’s End Resort, Homer, Alaska Buskin River Inn, Kodiak, Alaska Whittier Inn Hotel, Whittier, Alaska Aurora Inn, Nome, Alaska Quinnat Landing Hotel, King Salmon, Alaska Kuskokwim Inn, Bethel, Alaska Nullugvik Hotel, Kotzebue, Alaska Katmai Motel, Kenai, Alaska King’s Inn Hotel, Kenai, Alaska
Kenai Fjords Glacier Lodge, Aialik Bay, Alaska Kenai Riverside Lodge, Cooper Landing, Alaska Kenai Back Country Lodge, Cooper Landing, Alaska Homer Floatplane Lodge, Homer, Alaska Tim Berg’s Trophy Lodge, Soldotna, Alaska Glacier Bay Eagles Nest Lodge, Gustavus, Alaska Wood River Lodge, Dillingham, Alaska Unalakleet River Lodge, Unalakleet, Alaska
Remote Property Appraisals Appraisal of 2,645 acres of land in Aialik Bay, Seward, Alaska Appraisal of 4.86 acres of land in Aialik Bay, Seward, Alaska Appraisal of Native Allotments throughout Western and Southwestern, Alaska Appraisal of Tideland Parcels throughout Southcentral, Southwestern, and Western, Alaska Right-of-Way Acquisition Appraisals in several Villages in Western, Alaska
MacSwain Associates LLC 4401 Business Park Boulevard, Suite 22, Anchorage, Alaska 99503
Appraiser: Steve MacSwain, MAI Member of Appraisal Institute - No. 5700 State of Alaska, Certified General Real Estate Appraiser - No. 42
Professional Experience: 1986 to Present - MacSwain Associates LLC 1976 to 1986 - Appraisal Company of Alaska - President 1970 to 1975 - Real Estate Services Corporation – Appraiser 1969 to 1970 - State of Alaska Department of Highways - Right of Way Agent
Real estate appraiser and consultant of all property types throughout Alaska including commercial, industrial, subdivisions and special-purpose properties. Appraisals have been performed for financing, leasing, insurance, condemnation, taxation, property damages, investment analysis, and buy-sell decisions. Appraisals include valuation of both real property and business enterprises. Professional experience totals 40 years.
Education: Bachelor of Business Administration, Finance (1969), University of Alaska Fairbanks
Appraisal Education: The following is a list of completed appraisal courses and seminars. 2011 – Uniform Standards of Professional Appraisal Practice – Update by the Appraisal Institute 2010 – Reviewing Appraisals in Eminent Domain by the International Right of Way Association 2010 – Commercial Appraisal Engagement and Review Seminar for Bankers and Appraisers by the Appraisal Institute 2009 – Uniform Standards of Professional Appraisal Practice – Update by the Appraisal Institute 2009 – The Appraiser as an Expert Witness: Preparation and Testimony by the Appraisal Institute 2009 – Attacking and Defending an Appraisal in Litigation by Whitmer Education 2009 – Uniform Appraisal Standards for Federal Land Acquisitions (Yellow Book) by the Appraisal Institute 2008 – Uniform Standards of Professional Appraisal Practice by the Appraisal Institute 2007 – Business Practices and Ethics by the Appraisal Institute 2007 – Eminent Domain Law for Right of Way Professionals by the International Right of Way Association 2007 – Appraisal Review for Federal Aid Programs by the International Right of Way Association 2007 – Analyzing Operating Expenses by the Appraisal Institute 2007 – Forecasting Revenue by the Appraisal Institute 2007 – Case Studies in Highest and Best Use by the Appraisal Institute 2005 – Uniform Standards of Professional Appraisal Practice by the Appraisal Institute 2002 – Uniform Standards for Federal Land Acquisitions: Practical Applications for Fee Appraisers by the Appraisal Institute 2002 – Legal Aspects of Easements by the International Right of Way Association 2001 – Partial Interest Valuation Undivided by the Appraisal Institute 2001 – Special Purpose Properties Divided by the Appraisal Institute 1969-2000: Numerous appraisal classes pertaining to principles, income capitalization, cost analysis, sale comparison approach, and highest and best use analysis by the Appraisal Institute, Society of Real Estate Appraisers, International Right-of-Way Association, International Association of Assessing Officers, and Marshall Valuation Service Membership and Organizations: Member of Appraisal Institute – No. 5700
Member of International Right of Way Association Member of Building Owners and Managers Association (BOMA), Anchorage
Public Service: Past Chairman of the State Board of Certified Appraisers Past member of Board of Equalization, Municipality of Anchorage Past member of National Experience Review Committee of the Appraisal Institute Past member of Regional Ethics and Counseling Panel of the Appraisal Institute Past president of Alaska Chapter 57 of the Appraisal Institute
Significant Assignments: Appraised Calais Company, Inc., a real estate holding company consisting of 39 commercial parcels in Anchorage. Principal real estate consultant and expert witness for all lands affected by the Exxon Valdez oil spill. Project involved over 2,000,000 acres of remote land and nearly 2,000 private property owners. Appointed as a representative of a three-member panel that analyzed and valued over 1,000,000 acres and 8,000 parcels for the Mental Health Lands Settlement. Contract assessor for the North Slope Borough, Kodiak Island Borough, City of Nome, and the City of Valdez. Represented Seibu Alaska, Inc. (Alyeska Resort and Alyeska Prince Hotel) in preparing of their property tax appeal with the Municipality of Anchorage that resulted in a $65 million reduction in assessed value. Appraised submerged tideland parcels and wetlands parcels located in Womens Bay on Kodiak Island for the purpose of an exchange between Koniag, Inc. and U.S. Fish and Wildlife Service Appraised Common Carrier Pipeline right-of-ways leased and operated by BP Transportation Alaska and ConocoPhillips Alaska. Appraised 3,600 acres consisting of the former Adak Naval Air Station and Submarine Base conveyed to the City of Adak and the State of Alaska. Appraised and/or provided consulting services on properties throughout Alaska including numerous financial institutions, Native corporation lands, and real estate holding companies both public and private.
Expert Witness Experience: Steve MacSwain is qualified as an expert witness in both the United States Federal Court and the State of Alaska Superior Court. Steve has testified as an expert witness in State and Federal courts. In addition, Steve has testified as expert witness in numerous Alaskan municipal tax courts, public hearings, and depositions on matters related to real property.
Arbitrator Experience: Appointed a Master by the Superior Court of Alaska and Municipality of Anchorage to serve as an arbitrator in determining just compensation.
Lisa Von Bargen
From: Lisa Von Bargen Sent: Monday, October 08, 2012 3:45 PM To: 'Haase, Donald J.'; 'Fannin, John D.'; '[email protected]'; '[email protected]'; '[email protected]'; '[email protected]'; 'Mike Congel & Lea Ragan'; 'Scott Malone' Cc: Janine Vadeboncoeur; Wendy Farlin; Laura Robertson; Rusty Hansen Subject: P&Z E-Notes 10-8-12
Good afternoon Commissioners. There will be a regularly scheduled meeting of the Planning & Zoning Commission this coming Wednesday, October 10th at 7pm in the City Council Chambers. There are only two items on the agenda. The first is action on a recommendation to Council to approve a gravel lease renewal with Haltness Construction. The second item is also a recommendation to Council to approve a lease for Lot 2B, Block 2, Airport Industrial Subdivision to AutoCAT Recycling. The recommendation includes an option to purchase in the lease which equates to a negotiated sale. We will have the standard reports on the agenda; and a report on a webinar attended by Lindsay Hobsen (attorney) about the implications for local municipalities on the recent court case regarding cellular communications towers, T‐Mobile v. Township of West Bloomfield.
As a reminder, the September 26th meeting was cancelled due to lack of a quorum. It is important that the business before the Commission be addressed. Please let us know right away if you will be able to attend Wednesday’s meeting. Packets should be ready on‐line by the close of business today. Paper packets will not be ready until tomorrow. Wendy is currently out of state due to a family death. Our thoughts are certainly with her. We look forward to seeing you on Wednesday. Lisa
1 PLANNING & ZONING AGENDA STATEMENT
AGENDA ITEM NO. IX.4 MEETING DATE: October 10, 2012
ITEM TITLE: SUBMITTED BY: Lisa Von Bargen, T-Mobile v. Township of West Bloomfield Director Report
DIRECTOR: Community & Economic Development
REVIEWED BY: Other Commission: Finance: Other:
EXHIBITS ATTACHED:
Resolution ___ Ordinance___ Plan ___ Map __ Report _X__ Minutes ___ Plat: ____ Other:
SUMMARY STATEMENT: At the September 12th meeting the Commission listened to concerns regarding the proposed installation of a cellular communications tower in Robe Lake Subdivision. The tower is a permitted (or by right) use of the property in the zoning district. And, it is exempted from the zoning height restriction because it is a utility tower.
Following the meeting, Commissioners requested the City look at options of ways to “regulate” cellular tower installations, especially in residential neighborhoods. Quite by chance, the City was notified of a webinar regarding a recent court ruling on cell tower installations. The case is T-Mobile v. Township of West Bloomfield. Lindsay Hobsen, attorney for the City of Valdez, participated in the webinar and provided us with some preliminary notes on what she learned. They are very brief, but I wanted the Commission to see them. She has asked if we would like her to begin drafting an ordinance that addresses cellular tower installations. Staff’s opinion is that we should have her move forward but we want concurrence from the Commission – and to find out if the Commission would like additional information before deciding to move forward.
A copy of the summary document that accompanied the webinar is also attached. It describes the practical implications for local municipalities. A successful application for siting a cell tower must show o Gap in coverage/service . In the 9th Circuit, which the City should follow, a provider need only show that there is a gap within its own network. . This is opposed to other circuits where a gap in coverage cannot be shown if there is another carrier in the area (the “one provider rule.”) o Exploration into alternatives . 9th Circuit requires a showing that the proposed tower is “least intrusive means” of providing service. . Opposed to other circuits where a company must show “no viable alternative” If a municipality denies an application: o The denial must be in writing o Must set forth denial based on substantial evidence o T-Mobile v. West Bloomfield tells us that the substantial evidence must be “substantiated” . Cannot be based on generalized grievances from the community to the tune of “not in my backyard” The federal statute – 47 USC Sec 332(c)(7) – sets the floor in terms of a minimum framework that can be employed by a municipality reviewing these types of applications: o No discrimination among providers o Code provisions cannot have the effect of prohibiting service within the area. o Cannot restrict based on perceived RF emissions – FCC has exclusive jurisdiction o Find the statute here: http://www.law.cornell.edu/uscode/text/47/332 A municipality must act upon an application for the siting of a tower within 150 days after receipt of the application – 30 days for collocation application. Must notify applicant within 30 days if application is incomplete.
T-Mobile v. Township of West Bloomfield Practical Implications of the 6th Circuit's Decision September 25, 2012
Practical implications for local governments and for industry
Nicholas P. Miller, Esq. Best Best & Krieger LLP ~ Washington, DC
Nicholas P. Miller, Moderator, is partner in Best Best & Krieger LLP's Municipal and Redevelopment Law practice group in the firm's Washington, D.C. office. Mr. Miller's practice focuses on representing local governments and joint powers authorities across the nation as they serve as landlords, regulators and operators of modern wireline and wireless telecommunications networks. He is well known for his involvement in the policy and the legislative aspects of communications law. He previously served as the U. S. Senate Communications Counsel and as a special consultant to the White House on telephone deregulation issues.
T. Scott Thompson, Esq. Davis Wright Tremaine LLP ~ Washington, DC
T. Scott Thompson, partner at Davis Wright Tremaine LLP, advises, lobbies, negotiates, and litigates on behalf of companies in the wireless and telecommunications industries, including representing clients in the FCC's Wireless Shot Clock proceeding. In addition, he has successfully litigated numerous cases to protect the rights of communications providers to deploy their networks and facilities.
Michael J. Watza, Esq. Kitch Drutchas Law Firm ~ Detroit, MI
Michael J. Watza, principal of Kitch Drutchas Wagner Valitutti & Sherbrook, heads the governmental litigation and affairs practice at the firm. Mr. Watza's areas of concentration include litigated, legislative and administrative solutions on behalf of municipal, non profit and private sector
Page 1 of 14 clients. Mr. Watza represents clients in state and federal trial courts throughout Michigan and has argued in both the State and U.S. Court of Appeals as well as attended to regulatory matters before the Michigan Public Service Commission, Tax Tribunal, Department of Labor and Economic Growth and Federal Communication Commission.
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RECENT DEVELOPMENTS IN FEDERAL WIRELESS SITING RULES1
By: Nicholas Miller &Gail Karish, Best Best Krieger LLP
Wireless antenna siting raises significant political and legal issues that are becoming ever more complex. Local jurisdictions often face heated public opposition to wireless placements and threats of litigation from wireless service providers and tower companies, and must comply a variety of federal laws, Federal Communications Commission (FCC) regulations and orders, state statutes, rules and orders, as well as their local ordinances – all of which can impact the approval process and the proposed deployment. Recent developments at the federal level include an FCC order interpreting the main federal statute concerning wireless siting and a new law adopted in February 2012 governing “collocation” of facilities on existing wireless towers. In addition federal law is constantly subject to change through administrative and judicial action and interpretations. This paper provides guidance on key federal aspects of the legal framework within which local jurisdictions review wireless antenna siting applications. I. Federal Regulatory Framework
In this section, two principal federal statutes that impact local authority over wireless communications facilities are discussed: 47 U.S.C. § 332(c)(7) was adopted as part of the Telecommunications Act of 1996 (1996 Act) and generally preserves local authority over wireless tower placement and sets parameters for local action on applications for placement of wireless facilities.
Section 6409 was adopted as part of the Middle Class Tax Relief and Job Creation Act of 2012, signed into law on February 22, 2012. Section 6409, codified as 47 U.S.C. §1455, addresses the placement and replacement of facilities on existing wireless towers.
A. Section 332(c)(7)
Through Section 332(c)(7), Congress sought to establish a “pro-competitive, deregulatory national policy framework”2 while preserving local zoning/land use authority over personal wireless service facilities.3 “Personal wireless services” are defined in the statute to mean commercial, common carrier, and unlicensed mobile services, including cellular telephone.4 Section 332(c)(7) begins by stating that “except as provided in this paragraph” nothing in the Communications Act “shall limit or affect the authority of a state or local
1 By Nicholas P. Miller and Gail A. Karish of Best Best & Krieger LLP. September 2012 2 H.R. Conf. R. 104-458 at 113 (1996). 3 Id. at 207. 4 47 U.S.C. § 332(c)(7)(C).
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 government “ over “decisions regarding the placement, construction and modification” of “personal wireless service facilities.” The paragraph then: (a) establishes several federal standards which a valid zoning decision must satisfy (discussed below); (b) limits local authority to make zoning decisions based on RF emissions concerns; (c) gives the courts and the FCC concurrent jurisdiction to resolve cases where the denial of an application is based upon RF emissions; and finally (d) gives the courts exclusive jurisdiction to resolve all other siting disputes. The review provision requires a provider to file any court challenge within 30 days of the date a locality acts, or fails to act, on a wireless application, and requires the court to hear the dispute on an expedited basis. When considering the application of the statute, it is important to know the intended use of a proposed facility because the only types of wireless facilities covered by Section 332(c)(7), are those that are “for the provision of personal wireless services.” The term “personal wireless services” is defined in the statute to mean “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.” This definition does not appear to include wireless broadband internet access services. Recent federal district court decisions have adopted the view that siting applications for facilities for the provision of wireless broadband Internet access services are excluded from Section 332(c)(7) where the facilities are only to be used in connection with the provision of Internet access services. If a proposed facility is for commingled uses, Section 332(c)(7) would only apply if the provision of personal wireless services is one of the commingled uses.5 Limitations on Local Authority While the statute preserves local zoning authority over “the placement, construction, and modification of personal wireless service facilities,”6 it subjects this authority to five limitations, namely: • Such regulation shall not unreasonably discriminate among providers of functionally equivalent services; • Such regulation shall not prohibit or have the effect of prohibiting the provision of personal wireless services; • Requests for authorization must be acted on within a reasonable period of time after the request is filed, taking into account the nature and scope of such request; • Decisions to deny a request shall be in writing and supported by substantial evidence contained in a written record; • Such regulation may not be on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC’s regulations concerning such emissions. Below we examine how these five limitations have been interpreted by the courts, highlighting important cases in a variety of circuits. We also discuss a declaratory order issued by the FCC in November 2009 (the Shot Clock Order) asserting that it could
5 Clear Wireless LLC v. Bldg. Dep't of Lynbrook, 2012 U.S. Dist. LEXIS 32126, 14-23 (E.D.N.Y. Mar. 8, 2012). The court cites another court decision that reached a similar conclusion, Arcadia Towers LLC v. Colerain Tp. Bd. of Zoning Appeals, No. 10-CV-585, 2011 WL 2490047, at *2 (S.D. Ohio June 21, 2011).
6 Ibid.
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“implement” Section 332(c)(7), and establish rules to clarify any unclear term in the legislation.7 This Order was challenged in court by local governments. In January 2012, the Court of Appeals for the Fifth Circuit decided that, notwithstanding the statutory language and legislative history, the FCC had authority to implement Section 332 and courts had to defer to the FCC’s interpretation of that provision.8 The ruling is now the subject of a petition for certiorari filed with the U.S. Supreme Court. 1. Unreasonable discrimination among providers of functionally equivalent services
Section 332(c)(7)(B)(i)(I) provides that a local government may not “unreasonably discriminate” in its siting decisions with respect to providers of “functionally equivalent services.” Congress intended to provide local governments with flexibility to apply general zoning requirements while treating facilities that “create different visual, aesthetic, or safety concerns differently.”9 Cases finding unreasonable discrimination are relatively rare. The Ninth Circuit has concluded that discrimination based on “traditional bases of zoning regulation” such as “preserving the character of the neighborhood and avoiding aesthetic blight” are reasonable.10 Courts have looked to whether the facilities in question are “similarly situated in terms of their ‘structure, placement, or cumulative impact’.”11 Unreasonable discrimination has been found, for example, when local authorities have previously allowed identical (or larger) facilities to be placed in similar locations,12 and when local governments have failed to allow providers to “collocate” similar equipment on existing poles.13 2. Prohibitions on the provision of personal wireless services
Section 332(c)(7)(B)(i)(II) provides that a local government “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” In case law decided before the Shot Clock Order, most circuit courts agreed that a local zoning authority potentially runs afoul of this provision if its enforcement of local requirements creates a “significant gap” in service coverage. However, different tests
7 In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd. 13994 (2009), Order on Reconsideration, 48 C.R. 1271(2009) (Shot Clock Order).
8 City of Arlington v. Federal Communications Commission, 668 F.3d 229(2012).
9 H.R. Conf. R. 104-458 at 208 (1996). See Helcher v. Dearborn County, 500 F. Supp. 2d 1100, 1118 (S.D. Ind. 2007). 10 MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 727 (9th Cir. 2005). 11 Id. at 727; Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158 (S.D. Ca. 2000). 12 Ogden Fire Co. No. 1. v. Upper Chichester Twp., 504 F.3d 370, 394 (7th Cir. 2007). 13 Nextel Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187, 1195 (W.D.N.Y. 2003); Nextel West v. Town of Edgewood, 479 F. Supp. 2d 1219, 1232 (D.N.M. 2006).
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 were developed in different circuits. The Second and Third Circuits found there was no significant gap if any single provider offered coverage in the relevant area. This is sometimes called the “one-provider” rule. Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 642–643 (2d Cir. 1999); Nextel West Corp. v. Unity Township, 282 F.3d 257, 265 (3d Cir. 2002). The Ninth Circuit had found a significant gap if the particular provider seeking to install facilities has a gap in its own service network, even if other companies provide service in an area.14 The First Circuit also used this standard, Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 631–33 (1st Cir. 2002). The Fourth Circuit required at least a significant gap. 360 Degrees Communs. v. Bd. of Supervisors of Albermarle Cnty., 211 F.3d 79, 86-87 (4th Cir. 2000). The FCC’s Shot Clock Order established a “prohibition” standard. The FCC declared that “a State or local government that denies an application for personal wireless service facilities siting solely because ‘one or more carriers serve a given geographic market’ has engaged in unlawful regulation that ‘prohibits or has the effect of prohibiting the provision of personal wireless services’.” Several district courts in the Third and Sixth Circuits found that their Circuit’s “one provider” rule was inconsistent with the Shot Clock Order.15 In T-Mobile Cent. v. Twp. of Bloomfield, the Sixth Circuit adopted the approach of the First and Ninth Circuit “in light of the FCC’s endorsement of the standards” used by those Circuits.16 If a court finds that a local restriction creates a “significant gap,” the provider then has to make some showing as to the intrusiveness or necessity of its proposed means of closing the gap.17 The circuits are split as to the required showing. The Second and Third Circuits require the provider to show that “the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.” The First and Seventh Circuits, by contrast, require a showing that there are “no alternative sites which would solve the problem.” The Ninth Circuit adopted the “least intrusive” as opposed to the “no viable alternative test.”18 In T-Mobile Cent. v. Twp. of Bloomfield, the Sixth Circuit adopted the approach of the Second, Third, and Ninth Circuits.
14 MetroPCS, Inc. v. City and County of San Francisco, at 732. 15 T-Mobile Cent. LLC v. City of Fraser, 675 F. Supp. 721, 729 (E.D. Mich. 2009); Clear Wireless LLC v. City of Wilmington, 2010 WL 3463729 at *2 (D. Del. 2010); Liberty Towers, LLC v. Zoning Hearing Bd., 2010 WL 3769102 (E.D. Penn. 2010).
16 T-Mobile Cent., LLC v. Charter Twp. of W. Bloomfield, 2012 U.S. App. LEXIS 17534 (6th Cir. Mich. 2012).
17 MetroPCS, Inc. v. City and County of San Francisco, at 734. 18 Id. at 735. Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 642–643 (2d Cir. 1999); Nextel West Corp. v. Unity Township, 282 F.3d 257, 265 (3d Cir. 2002); Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Tp., 331 F.3d 386, 398, 33 Envtl. L. Rep. 20218 (3d Cir. 2003). The Fourth Circuit recently rejected both tests, in favor of a fact-based, case-specific inquiry: “the application of any specific formula…ultimately would require a broader inquiry whether the denial of a permit for a particular site had the effect of prohibiting wireless services, within the meaning of subsection (B)(i)(II).” T-Mobile Northeast LLC v. Fairfax County Bd. of Supervisors, 2012 U.S. App. LEXIS 4197, 14-15 (4th Cir. Va. Mar. 1, 2012)
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It is an open question whether finding a significant gap in service alone is sufficient to find a “prohibition.” In recognition of growing consumer use of cell phones indoors, at least one circuit (the 10th) and a lower court in California has ruled that “in-building” coverage may be a consideration in the “significant gap” analysis.19 However, courts also appear to recognize that there could be a denial of some applications and that the statute “cannot guarantee 100% coverage”.20 Thus, there is a need to balance the obvious interest in protecting local zoning authority with the concern over establishing prohibitions. 3. Action within a reasonable period of time
Section 332(c)(7)(B)(ii) provides that a local government “shall act on any request for authorization . . . within a reasonable period of time after the request is duly filed . . . taking into account the nature and scope of such request.” Legislative history suggests Congress did not intend to give preferential treatment to the wireless industry, or to subject their requests to any but the generally applicable time frames for zoning decisions.21 No rigid timetables were intended.22 There have been few cases interpreting this reasonableness requirement. Nonetheless, the FCC’s Shot Clock Order established a nationwide standard for a “reasonable period of time” to process wireless applications. The FCC established two time periods: 90 days for action upon a collocation request and 150 days for action upon a new siting application. The time runs from the date a “complete application” is filed. However, in order to toll the time for action on an application, a locality must notify the applicant that an application is incomplete within 30 days of receipt. This notification deadline may be particularly significant in a community that has a bifurcated review process, since an application may be complete for purposes of the first stage of a review,
19 T-Mobile Central, LLC v. Unified Government of Wyandotte County/ Kansas City, Kan., 528 F. Supp. 2d 1128, 1169 (D. Kan. 2007), aff’d in part, 546 F.3d 1299 (10th Cir. 2008); MetroPCS Inc. v. City & County of San Francisco, 2006 U.S. Dist. LEXIS 43985, 28-34 (N.D. Cal. June 16, 2006)( “In so holding, the court is mindful that the TCA does not guarantee MetroPCS seamless coverage in every location within the Richmond district. Indeed, courts have expressly recognized that the presence of ‘dead zones,’ or pockets in which coverage does not exist, are not actionable for purposes of arguing effective prohibition claims under the TCA. See MetroPCS, 400 F.3d at 733 (“the TCA does not guarantee wireless service providers coverage free of small ‘dead spots’”); see also 360 [Degrees] Communs. Co. v. Bd. of Supervisors, 211 F.3d 79, 87 (4th Cir. 2000) (same); Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 631 (1st Cir. 2002) (same). Here, however, MetroPCS has proven that its lack of in-building coverage within the Richmond district is widespread, and qualifies as more than mere ‘dead spots.’”). 20 See T-Mobile Northeast, supra; see also New Cingular Wireless PCS, LLC v. Fairfax County Board of Supervisors, No. 10-2381 (4th Cir., March 19, 2012); MetroPCS Inc. v. City & County of San Francisco, 2006 U.S. Dist. LEXIS 43985, 28-34 (N.D. Cal. June 16, 2006).
21 H.R. Conf. R. 104-458 at 208 (1996). See also Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036, 1040 (W.D. Wash. 1996). 22 Id. at 1040.
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 but incomplete for the later stages of a review. Under the FCC rule, however, the 30-day notification deadline runs from the date the application is filed, not the date it is sent for review to a particular department or board. The FCC ruling provides that a locality that fails to meet the FCC deadlines (unless the provider and the locality agree to extend them) has presumptively failed to act within a reasonable period of time. If a locality fails to meet the deadlines (unless the provider and locality agree to extend them) the provider has 30 days to ask a court to review the local action (or failure to act). The impact of this part of the ruling is difficult to predict because some local jurisdictions are already subject to state or local rules that establish time limits for actions. Acknowledging that existing state and local rules may impose different timelines than are established under the FCC’s shot clock, the FCC clarified that the shot clock was to apply “independent of the operation” of the local rules, as follows: …where the review period in a State statute or local ordinance is shorter than the 90-day or 150-day period, the applicant may pursue any remedies granted under the State or local regulation when the applicable State or local review period has lapsed. However, the applicant must wait until the 90-day or 150-day review period has expired to bring suit for a “failure to act” under Section 332(c)(7)(B)(v). Conversely, if the review period in the State statute or local ordinance is longer than the 90- day or 150-day review period, the applicant may bring suit under Section 332(c)(7)(B)(v) after 90 days or 150 days, subject to the 30-day limitation period on filing, and may consider pursuing any remedies granted under the State or local regulation when that applicable time limit has expired. Of course, the option is also available in these cases to toll the period under Section 332(c)(7) by mutual consent.23
As a result, in processing applications, local jurisdictions must be cognizant of both the timeline imposed by the shot clock rules and any established by applicable local rules.
The Fifth Circuit upheld the “shot clock” established by the FCC, but the court emphasized that the shot clock merely established a “presumption” which could be rebutted by a community facing a court challenge in the same way as any presumption may be rebutted. Once the presumption is rebutted, the court emphasized, the burden of proof shifts to the wireless applicant to prove that the locality had failed to act in a reasonable period of time, and that the local action had otherwise violated Section 332. The FCC’s presumptions no longer have any force once the burden shifts back to the applicant. 4. Denial must be “in writing” and “supported by substantial evidence”
Section 332(c)(7)(B)(iii) specifies that a local government’s decision to deny a request must be “in writing and supported by substantial evidence, contained in a written record.” Courts have addressed both the “substantial evidence” and the “in writing” requirements.
23 Shot Clock Order, ¶50.
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Legislative history suggests Congress intended the test to be the traditional standard used for judicial review of agency actions.24 As noted recently by the Sixth Circuit in T-Mobile Cent. v. Twp. of W. Bloomfield, there is general agreement among all circuits that this is indeed the appropriate standard.25 Courts have evaluated the presence or absence of substantial evidence not against any federal standard, but against substantive standards set by state law or local zoning ordinances.26 As the Ninth Circuit has explained, “[w]e must take applicable state and local regulations as we find them and evaluate the City decision’s evidentiary support (or lack thereof) relative to those regulations.”27 The Sixth Circuit in T-Mobile Cent. v. Twp. of W. Bloomfield, cited the Ninth Circuit authority with approval. However, if local law is preempted by state law, the local law is not controlling, notwithstanding the 1996 Act.28 Courts have applied the “substantial evidence” test to a number of local requirements including “necessity” requirements,29 and visual impact or aesthetic considerations.30 The test is highly deferential to the determinations of zoning authorities. With respect to the “in writing” requirement, the circuits again have taken different approaches. For example, the Fourth Circuit has held that merely placing the word “DENIED” on an application is sufficient to meet this requirement,31 but the First, Sixth and Ninth Circuits require local governments to “issue a written denial separate from the written record” which “contain[s] a sufficient explanation of the reasons for the . . . denial to allow a reviewing court to evaluate the evidence in the record supporting these reasons.”32 5. Regulation on the basis of environmental effects of radio frequency emissions
Section 332(c)(7)(B)(iv) stipulates that no state or local government may regulate cell tower placement based on “the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.”
24 H.R. Conf. R. 104-458 at 208 (1996). 25 Decision at p.5 and FN 2. 26 MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 724 (9th Cir. 2005). 27 Id. at 726. 28 Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge, 448 F.3d 1067, 1071 (9th Cir. 2006), for additional opinion, see, 182 Fed. Appx. 688, 250 Pub. Util. Rep. 4th (PUR) 420 (9th Cir. 2006). 29 Ibid. at 725. 30 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, 1161 (S.D. Cal. 2003) 31 AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 429 (4th Cir. 1998).
32 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F. Supp. 2d at 722; Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 60; (1st Cir. 2001); New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2005).
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A zoning authority’s consideration of health effects evidence, including potential effects on property values due to potential radio frequency emissions, may not serve as “substantial evidence.”33 However, one court has found that in deciding between alternative sites, a local government may “maximize the distance between the monopole and other municipal uses” (such as homes and schools), based, in part, on a policy of “prudent avoidance,” at least when no other factor differentiated two finalists.34 B. Section 6409 – Mandatory Collocation
Section 6409 was adopted in part in response to complaints by the wireless industry that states and localities were refusing to approve even minor modifications to existing towers.35 Whereas Section 332(c)(7) focused primarily on process, Section 6409 purports to mandate a particular result, notwithstanding Section 332(c)(7) or any other provision of law. Section 6409 provides, in the part most relevant to this paper: (a) Facility Modifications.— (1) In general.-- Notwithstanding [47 U.S.C. § 332(c)(7)] or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. (2) Eligible facilities request.-- For purposes of this subsection, the term "eligible facilities request" means any request for modification of an existing wireless tower or base station that involves-- (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment. (3) Applicability of environmental laws.-- Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.36
This new law took effect immediately, and assuming that the federal government may require a local or state government to approve anything – that is, assuming the law is
33 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, 1159 (S.D. Cal. 2003); Id. at 736. 34 New York SMSA Ltd. Partnership v. Town of Clarkstown, 99 F. Supp. 2d 381, 392 (S.D. N.Y. 2000). 35 112 P.L. 96, Sec. 6409.
36 Section 6409 also authorizes federal agencies to grant easements for use of federal property for wireless installations, and provides for the development of a standard federal contract for placement of antennae on federal facilities. This could, of course, affect local communities which contain federal buildings, or which abut or encompass federal lands.
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 constitutional37 - it effectively requires localities to bring existing codes into compliance. The central problem is that it is unclear what, exactly, the new law requires. The new law only applies to existing “wireless towers” and “base stations.” Neither term is defined. Similar terms are used in some FCC orders (including orders adopted in connection with the FCC’s discharge of its responsibilities under the National Historic Preservation Act38 (NHPA)). Under those orders, for example, a “tower” is a facility solely dedicated to supporting a wireless facility, and hence would not include light or utility poles. The new law requires approval of changes to eligible facilities that do not “substantially change” the physical dimensions of either the tower, or of the base station. The term “substantially change” is not defined. The wireless industry will likely take the position that this term is limited to changes that are “substantial” in a quantitative sense. However, it is also possible to read “substantial” in a qualitative sense: e.g. a change that would block sightlines or pedestrian access to an area might be “substantial” even if minor in a quantitative sense. Likewise, a change in the shape of an antenna that creates a physical hazard (because of wind-loading or earthquake issues) could also be “substantial” even if, quantitatively the area occupied were identical. There are FCC orders that address “substantial change,” but it is not clear those orders – which were adopted in connection with the FCC’s discharge of its duties under the NHPA – could or should apply under the new law. The FCC has the authority to define the undefined terms and implement the new law, but it has not commenced a rulemaking to do so. Until it does so, localities must be in a position to apply the law themselves, which means that each locality that wishes to comply with the law will need to define what sorts of installations are subject to the “substantial change” test, and develop processes for reviewing applications where the applicant claims it is entitled to collocate as a matter of law. If the FCC commences a rulemaking, local governments will have a significant interest in participating to protect their interests. Wireless providers are likely to make very broad claims concerning local obligations under the new law. It is worth noting: • The law does not on its face require ministerial approval of applications for modification of existing wireless towers. • It does not on its face prevent localities from requiring submission of an application for a collocation. • It does not on its face give a wireless provider a private right of action against a local government. The law may be of particular significance for existing towers that are “non-conforming uses,” where no further modifications are permitted, and local jurisdictions may need to carefully consider how non-conforming uses can be addressed in light of the new law. 09959.00000\7590451.1
37 Compelling approval, as Section 6409 appears to do, may raise significant issues under Printz v. United States, 521 U.S. 898 (1997) and New York v. United States, 505 U.S. 144 (1992).
38 Public Law 102-575, as amended, codified as 16 USC § 470 et seq.
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6th Circuit Adopts Important Clarifications for Wireless Deployment By: T. Scott Thompson, Davis Wright Tremaine LLP
On Tuesday, Aug. 21, 2012, the U.S. Court of Appeals for the 6th Circuit issued an opinion in T-Mobile Central, LLC v. Township of West Bloomfield, decision found here, affirming that the Township of West Bloomfield, Mich., violated the federal Communications Act when it denied T-Mobile’s application to install a wireless facility in the Township. The 6th Circuit’s decision is important for the wireless industry on a number of issues, most notably, the court adopts the “least intrusive means” standard for “effective prohibition” claims under Section 332 of the Communications Act.
Background The case involves the Township’s denial of T-Mobile’s For More Information: application to construct a new 90-foot wireless facility disguised to T. Scott Thompson look like a pine tree (a “monopine”) at an electric utility site. After Partner the Township denied T-Mobile’s application, T-Mobile filed a 202.973.4208 complaint in U.S. District Court for the Eastern District of [email protected] Michigan, claiming that the Township’s denial violated Section om 332(c)(7) of the Communications Act because it was not supported by substantial evidence and had the “effect of prohibiting the provision of personal wireless services,” as well as asserting a state law claim. The District Court granted T-Mobile’s motion for partial summary judgment on its two federal claims and found the state law claim to be moot. The Township appealed the District Court’s order.
6th Circuit’s analysis For the first time, the 6th Circuit addressed the standard for evaluating a claim that a denial has the “effect of prohibiting the provision of wireless services” in violation of Section 332(c)(7)B)(i)(II) of the Communications Act. The 6th Circuit first determined that the denial of a single application to erect a wireless facility can constitute an effective prohibition upon (1) a showing of a “significant gap” in service and (2) some inquiry into the feasibility of alternative facilities or site locations. In so doing, the court adopted the two-part test set forth by the 9th Circuit in MetroPCS, Inc. v. City and Cnty. Of San Francisco, 400 F.3d 715, 723-24 (9th Cir. 2005), and adopted by the majority of other circuits. In adopting the MetroPCS standard, the 6th Circuit expressly rejected outlying precedent from the 4th Circuit that had held that only “blanket prohibitions” and “general bans or policies” on the construction of new wireless facilities can amount to an effective prohibition.
As to the “significant gap” analysis, the 6th Circuit determined that the analysis focuses on the coverage of the applicant wireless provider and not whether existing service by
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 any other provider is sufficient. In so doing, the 6th Circuit rejected the “one provider” rule followed by the 2nd, 3rd, and 4th Circuits, which have held that no “significant gap” exists if any one provider is able to serve the gap area in question. The 6th Circuit acknowledged that the “one provider” rule was rejected by the FCC in a 2009 Declaratory Ruling (known as the “Shot Clock Order,” advisory found here) in favor of the standard adopted by the 9th and 1st Circuits, which considers whether “a provider is prevented from filling a significant gap in its own service coverage.” MetroPCS, 400 F.3d at 733. With this decision, the 6th Circuit is the first circuit court to follow and apply the FCC’s rejection of the one provider rule. Further of note, the 6th Circuit noted that there is no requirement in federal law that requires a provider to submit evidence of consumer complaints in order to justify the existence of the gap in reliable service. On the question of feasible alternatives, the 6th Circuit again encountered a split among the circuit courts. Notably, the 6th Circuit agreed with the “least intrusive means” standard used by the 9th, 2nd, and 3rd Circuits, which requires a provider to show that the manner in which it proposes to fill the significant gap is the least intrusive on the values that the denial sought to serve. The 6th Circuit also acknowledged that the “least intrusive standard” requires a showing that a “good faith effort” has been made to identify and evaluate less intrusive alternatives. The 6th Circuit found this standard to be more flexible than the “no viable alternatives” standard in the 1st and 7th Circuits, which would require a showing that there are “no alternative sites which would solve the problem.” The 6th Circuit further affirmed the District Court’s holding that the Township’s denial was not supported by substantial evidence, in violation of Section 332(c)(7)B)(iii) of the Communications Act. The 6th Circuit made several statements of import for future substantial evidence cases. For example, the 6th Circuit clarified that local laws cannot allow a municipality to deny an application based on less than substantial evidence, saying “if the terms of a local zoning ordinance allow a board to deny a permit based on less than substantial evidence, or no evidence at all, and a permit is denied on that basis, the record would lack substantial evidence to justify the decision.” This emphasizes that while substantial evidence claims generally take state and local law as it stands, with Section 332(c)(7)(B)(iii) Congress imposed a floor for the amount of evidence required to support a denial, and state or local law cannot authorize denial based on less than substantial evidence. In addition, the 6th Circuit holds that substantial evidence must be “substantiated,” and in particular in this case, even though the local ordinance identified aesthetics as a relevant element, generalized complaints about aesthetics that effectively amount to NIMBY (“not in my backyard”) are not substantial evidence.
Conclusion With this opinion, the 6th Circuit resolved several matters of first impression regarding the standard for evaluating “effective prohibition” claims under the Communications Act. The opinion not only provides significant guidance on such claims for all courts within the 6th Circuit, but also constitutes the first circuit court decision to follow and apply the FCC’s rejection of the one provider rule. Further, the opinion provides additional
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Law Seminars International | T-Mobile v. Township of West Bloomfield | 9/25/12 authority for courts to follow and apply the “least intrusive means” standard. Finally, the 6th Circuit’s holding provides more authority for courts to reject denials issued in response to NIMBY opposition.
Disclaimer This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
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