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litiitY of . NEW BRIGHTON Report Number 12-040 Agenda Section VI-6 the city that works for you Council Meeting Date February, 14, 2012 REQUEST FOR COUNCIL CONSIDERATION ITEM DESCRIPTION: Consider Resolution Appointing a Hearing Officer and Calling for a Hearing to Consider Revocation of a Special Use Permit for Clearwire Communications, LLC Tower at Freedom Park. DEPARTMENT HEAD'S APPROVAL: Grant Fernelius, Community Development Director CAr CITY MANAGER'S APPROVAL: No comments to supplement this report ae,' Comments attached IffRecommendation: Staff recommends City Council approve the attached resolution appointing a hearing officer and calling for a hearing to consider revocation of a Special Use,Permit for Clearwire Communications, LLC Tower at Freedom Park, 2121 14th ST NW. Legislative History: June 28, 2011: The City Council approved a resolution appointing a hearing officer. This individual served as the mediator to a mediation that occurred later that summer and it would be inappropriate for this individual to also serve as the hearing officer for the revocation of the Special Use Permit hearing. Financial Impact: The Minnesota Office of Administrative Hearings charges $165.00 per hour. As was approved previously in 2011, staff recommends charging these expenses to the legal budget 101- 41115-3703. Explanation: City staff has been working with Clearwire over the last year and a half to resolve the telecommunications tower dispute at Freedom Park. The specific issue of contention is the overall width of the tower being much larger than was approved through the special use permit process. To be exact, a 20.5" base plate set on a 3' concrete foundation was approved but a 45" base plate set on a 7' concrete foundation was actually built. Staff started discussions with Clearwire staff and those discussions elevated to mediation last summer. Discussions are ongoing and at this point no resolution has been negotiated between Clearwire and the City. In the event a resolution cannot be negotiated, staff is preserving the option to consider revocation of the special use permit through a quasi judicial hearing, presided over by a hearing officer. This is a process recommended by the City Attorney's office and deemed acceptable by the City Council previously. The Minnesota Office of Administrative Hearings (OAH) has hearing officers available to conduct these hearings. The advantage of using the OAH's office for the hearing officer is that they will handle the actual selection of a neutral hearing officer, making it very difficult for Clearwire to claim any bias with regard to the decision. c 0 Janice Gundlach City Planner I:\COUNCIL\REPORTS\2012\Community Development\2-14-2012\Staff Report CW Hearing Examiner(2012).doe