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2000-852-Minutes for Meeting August 09,2000 Recorded 8/24/2000
VOL: CJ2000 PAGE: 852 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-852 * Vol -Page Printed: 08/24/2000 14:36:08 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Aug. 24, 2000; 8:04 a.m. Public Hearing (CJ) NUMBER OF PAGES: 108 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK KEY P 'NCHE AU 00 ETES ,� �%tiMR�� C00,01' �j 11 �?" 00 j5�q Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.co.deschutes.or.us Linda L. Swearingen Dennis R. Luke MINUTES OF PUBLIC HEARING Tom DeWolf ON PROPOSED ORDINANCE NO. 2000-019 AN AMENDMENT TO TITLE 18 OF THE DESCHUTES COUNTY CODE AND ZONING ORDINANCE TO AMEND REGULATIONS FOR WIRELESS TELECOMMUNICATIONS FACILITIES i o C) c BOARD OF COMMISSIONERS MEETING WEDNESDAY, AUGUST 9, 2000 `- r 1130 NW Harriman Street, Bend, Oregon � r co Building 4' Chair Linda Swearingen opened the meeting at 5:30 p.m. Commissioners present were Linda Swearingen, Dennis Luke and Tom DeWolf. Also present were Damian Syrnyk, Sandy Ringer, Chris Schmoyer and George Read of the Community Development Department; representatives of the media; and approximately sixty citizens. S WEARINGEN: The purpose of the meeting is to consider a summary of proposed changes to wireless telecommunications facility regulations. Damian Syrnyk will be giving an outline of the items to be addressed, and that the purpose is not to talk about specific cell towers. There are five specific things to be addressed tonight; and other items may be discussed at some future date. She then introduced Damian Syrnyk of Community Development. DAMIAN SYRNYK: The purpose of the hearing is to take testimony on a proposed ordinance (Ordinance No. 2000-019) that would amend Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, to amend the regulations for wireless telecommunications facilities (County File No. TA -00-8). Minutes of Public Hearing on Wireless Telecommunications Facilities Page 1 of 23 Pages Wednesday, August 9, 2000 Quality Services Performed with Pride On the table are two documents — a staff report dated August 2, which includes a copy of the proposed ordinance and two exhibits; and a one-page summary of what we're addressing tonight. (Documents attached as Exhibit I and Exhibit 2.) The two Exhibits, A and B, include the actual text of the current regulations for wireless communication facilities; and within the text of each document are the proposed changes. Testimony should be directed to the proposed changes; if the members of the audience want to present issues to the Board that are beyond the scope of this hearing, a list will be kept and some of those questions will be referred to the Deschutes County Planning Commission. This started a few weeks ago when the Board of Commissioners and the Planning Commission had a joint meeting on July 10 to look at our existing regulations for wireless telecommunications facilities. We came out of that meeting with two directions; one is looking to shore up some unclear language; and also to look at referring certain things to the Planning Commission. This would include how to regulate ham radio towers, and possibly some design standards for towers when looking at multiple carriers locating on one tower. If you have issues you'd like to bring up tonight that aren't related to that, you may want to make sure they are in writing for the Board or the Planning Commission to read. Several documents have been presented, and will be distributed to the Board by the Recording Secretary. I will recommend that the Board keep the written record open for a week after tonight, so further testimony can be presented in writing. (He gave a brief overview and history of the development of current ordinance.) The County started working on these ordinances in late 1997. In 1996 we went through three applications for wireless communications facilities that were very controversial; all three went to the Deschutes County hearings officer, and all were ultimately appealed to the Board of Commissioners. After the Board had considered all three of the matters on appeal, they directed our planning division and legal counsel to first draft an interim ordinance that would regulate the location and construction of these kinds of facilities. They also directed us to form a committee to look at writing a more permanent ordinance. The County adopted its first ordinance in March 1997, Ordinance No. 97-017. It included some very simple standards that we could use in conjunction for issuing a permit for these types of facilities. During that time the requests that we were getting were usually for fairly large vertical structures - towers that were about 100 feet in height. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 2 of 23 Pages Wednesday, August 9, 2000 In April of that same year we formed a committee that included nine individuals, consisting of two planning commissioners, four at -large citizens - two of whom had testified in opposition of these facilities - and three members of the wireless industry. This committee met about every two weeks between April and August of 1997. The committee used the interim ordinance as a base to develop a set of regulations for these kinds of facilities. This was ultimately forwarded to the Planning Commission, which then conducted its own hearing audit and forwarded it to the Board of County Commissioners for adoption. The original ordinance was Ordinance No. 97-063. The first exhibit, Exhibit A, contains a new section that we added to the Code that specifically addresses wireless communication facilities. This section has three tiers or categories of facilities. (See Exhibit 1, attached). Syrnyk then went into detail on the existing and proposed changes to the Code as detailed in the documents. LUKE: Can you address what you found out in examining the types of ordinances other counties have? SYRNYK: What I found is that very few counties have specific regulations in their zoning regulations for wireless communications facilities. I looked at some language from Marion County that is somewhat similar to ours, but they don't really have a tiered system of review. When we drafted our original ordinance we looked at some existing ordinances from the City of Eugene and the City of Tualatin, but there weren't many jurisdictions, either cities or counties, that had regulations to address these kinds of situations. The need arose after Congress passed the Telecommunications Act of 1996. As a result of passage of this Act, the provision of wireless services is much more competitive; so we are not dealing with one or two companies that are licensed to service the area, but several that are either providing cellular or personal communications services. LUKE: What is the main objective of our ordinance, specifically relating to co -locating? Minutes of Public Hearing on Wireless Telecommunications Facilities Page 3 of 23 Pages Wednesday, August 9, 2000 SYRNYK: One of the main objectives is to encourage and create incentives for establishing communications sites without a tower. We created Tier 1 and Tier 2 mainly to be an incentive for a communications company to establish a network of sites without relying heavily upon tall towers. Tier 3 was created to regulation situations where we would get a request for a tower. If you look at our ordinance, the burden of proof increases once you look at a communications site that includes a tall tower. We require a conditional use permit, there is a lot of public involvement and scrutiny, and we have very strict criteria. LUKE: How high can the actual antenna be above the pole, or for instance a church steeple? SYRNYK: With our current ordinance, under tier one the antenna could not go more than fifteen feet above the height of the steeple. There is also technology available whereby the carrier might be able to locate the antenna inside the steeple. ANDY ANDREWS: Brought up questions about the area and number of people to be notified. (Not on tape - did not use the microphone.) DEWOLF: What we have is an ordinance that, through the work of this committee and our Planning Commission, is a very good ordinance. We are concerned about a couple of loopholes that we want to close up, and that's the essential thing we are trying to do tonight. We are trying to clarify the language in this ordinance to make sure that, for instance, we can define what "existing" means. By clarifying the language, we will have a very clear intent on what it is that we are requiring when someone makes application. We are very sensitive to issues of height. Not only did we expand the area of notification, but anything having to do with height automatically goes to a public hearing. Anytime this happens, we require our staff to give us notification so we can contact the media. We want people who make application to know that there are two things at work here. One is, we who are all using cellular phones are driving the need for higher technology that is creating the business opportunities; but we also have the beauty of this area and the need to protect our skyline. minutes or Public Hearing on Wireless Telecommunications Facilities Page 4 of 23 Pages Wednesday, August 9, 2000 So we're trying to balance these things, and that's why we're here tonight. I believe we are going way beyond anything that has ever been done before, and certainly further than any other county in Oregon in trying to protect what is beautiful in Central Oregon. Tightening up this ordinance is this step. We have no appeals before us, and we have no applications in front of this Board, so we can't take testimony on whether we should have these sorts of things. That is something for the hearings officer. So if people have thoughts on these five issues, that's what we want to hear so we can tighten up these ordinances. LUKE: And if you have testimony on any applications that might come before the Board, we can't hear it at this time. S WEARINGEN: We are precluding that at a later point in time we won't make additional changes. We're just taking testimony on the above document. We don't want people to get sidetracked on things that we can't do anything about tonight. GEORGE READ: I'm George Read of Community Development. There's a really important reason why we can't expand the scope of this hearing. Under Ballot Measure 56 passed by Oregon voters, we cannot make things more restrictive without notifying everyone whose property might be affected. What we are doing here is clarifying the ordinance. To have other things done at this hearing is not possible. We would have to send notice to everyone whose property might be affected by the zoning change. You can do clarification, but to make it more restrictive we would have to send notice to everyone in the County where towers might be allowed. PAUL BIANCHINA: I am a member of the Deschutes Planning Commission, and an original member of the committee. The course of that committee took in a lot of diverse viewpoints. We had some wireless people, some people who had spoken out against cell towers, and two people from the Planning Commission. As we discussed, we felt the ordinance was pretty strong and inclusive, but had a few loopholes in it. One of the big things that I hope people realize is that we are limited on how far notification can go. We hope that by expanding that notification from the point of where the tower would be to the whole property, that would expand it out far enough to reach more people. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 5 of 23 Pages Wednesday, August 9, 2000 LUKE: This also deals with repeaters for police and fire, radio and television antennas, and so on; and not just cell towers. UNIDENTIFIED AUDIENCE MEMBER: (Had a question about tower height. Did not use microphone.) S WEARINGEN: I was involved in those meetings as well. That was a maximum, not an automatic. I have heard that some cell tower companies feel that they have an automatic 150 feet. It was never intended to be that. In certain circumstances in certain areas it might be possible, but it was never intended that each of these cell towers could be 100 feet or even sixty feet. It just depends on the circumstances. BIANCHINA: We started out with almost nothing to go on from other communities. We looked at all kinds of poles. Cell tower companies said that 100 feet was all that would ever be needed in any case. Chair Linda Swearingen opened the public hearing at 6.-00 p.m. MARY TOMJACK: I would like to address two points. The first would be about contacting residents in the area. We live in an EFU-40 zone, and I thought the area surrounding was 1,320 feet from a proposed tower. In our area, when you do that in an EFU-40 zone, you would only notify a few owners. I propose that you contact at least ten and up to twenty-five homeowners, not necessarily depending upon the feet from a proposed tower; I think it should go by numbers rather than by feet. DEWOLF: George, do we have that authority? (Response from George Read was not audible, but applause was noted from audience.) TOMJACK: Also, who came up with a height of 150 feet? How was that determined? Damian sent me a list, and it appears the people in my area are looking at seven proposed towers in the Plainview area, four of which are proposed at 150 feet. What criteria can you use to limit them to less than that? Minutes of Public Hearing on Wireless Telecommunications Facilities Page 6 of 23 Pages Wednesday, August 9, 2000 SYRNYK: We have seven pending applications in that Area right now. DEWOLF: I'd like to refer to the approval criteria on Page 2 of the staff report's Exhibit B regarding vegetative screening. TOMJACK: There are no 150 -foot junipers in this area. Can they ask for this tall a tower anyway? S WEARINGEN: They can ask, but that doesn't mean they will get it. TOMJACK: If it could be proven that a tower below the treetops is effective, just that more would have to be built, is there criteria in the code addressing this? DEWOLF: There is. However, we can only react to what is applied for. They would have to submit applications with their exact requests. One of the purposes of the neighborhood meetings is when they do this, and when you show up and give them alternatives, is this the whole idea. After the neighborhood meetings there are public hearings before us and others. LUKE: When an application is submitted, notice is sent out to those in the immediate area at the planning stage before it goes to a hearing officer. So you have an opportunity to submit verbal and written comments at that point, before it even gets to the hearings officer. DEWOLF: Every step along the way is an opportunity for public input. TOMJACK: We are part-time residents here, and we travel often so aren't always here. How do I get contacted? Many of us aren't around all the time. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 7 of 23 Pages Wednesday, August 9, 2000 DEWOLF: All we can do is notify residents according to law and alert the media. People who are concerned about this issue need to remain informed. (Ms. Tomjack submitted a letter plus attachment from her and T.J. Tomjack for the record -part of Attachment 3.) DARRELL PIEPER: I live in the Plainview area. For existing structures, the wording only applies to Tier 1 facilities? SYRNYK: That's correct. There is no existing definition for Tier 2 or Tier 3 yet. So far we haven't received any applications for anything under Tier 2. If we were to get a request to locate antennas on an existing communications tower, that would be looked at under Tier 1. PIEPER: Then my comment may apply. If someone comes in with a new monopole, puts it in and gets it approved, the ordinance as I interpret it means it is by code not an existing structure and therefore can't be used. My other comment is that towers proposed over 150 feet high should have a greater notification distance. We can see a red light on Awbrey Butte clearly 20 miles away. Maybe a number would work, too, but I suggest ten miles for notification. SWEARINGEN: It would be extremely expensive to notify that many people, so we rely on the media to keep people informed. DEWOLF: We also have to follow state law in terms of the distances that we can use for this kind of notification. PIEPER: Sometimes the media doesn't know what's going on either. We do our own news releases and notices in paper, and they are good about putting those in. (Mr. Pieper submitted a letter for the record - part of Attachment 3.) Minutes of Public Hearing on Wireless Telecommunications Facilities Page 8 of 23 Pages Wednesday, August 9, 2000 RAY SEIDLER: My comments have to do with notification aS well. My wife and I are new in the area and just moved into our new house about five days ago, and I thought the balloon I saw was a novel kind of activity; then other members of the community advised us of what it represents. This balloon was just down the road, and we received no notification on that event. I understand that the person who allowed this has already signed a contract with a cellular tower company. I think there is something wrong with the notification system here. (Mr. Seidler submitted a letter for the record -part of Attachment 3.) KATHLEEN LEPPERT: I live at 61345 Brosterhous Road. I noticed that cellular tower proposed for our neighborhood has not been applied for yet, but it is being surveyed now. This is right next door. LUKE: A lot of preparation work is done before they apply. LEPPERT: This tower would be 120 feet from my front door. It will possibly be a distance equal to the height of the monopole. I have checked for information on possible health hazards of cellular towers, and I want to ask why there is nothing in the documents regarding potential health hazards. S WEARINGEN: That would be something that the planning commission will address this further. We aren't taking testimony on this issue tonight. LUKE: The record will be left open and you are welcome to submit written testimony on that issue. The Planning Commission will take of that. LEPPERT: I noted that Damian has been seeking information from other communities on cellular towers; and there are many around the world even if there aren't many in Oregon. (Ms. Leppert submitted a letter in fax format for the record - part of Attachment 3.) Minutes of Public Hearing on Wireless Telecommunications Facilities Page 9 of 23 Pages Wednesday, August 9, 2000 PAT CREEDICAN: I decline at this point; my comments have alPeady been covered. UNIDENTIFIED AUDIENCE MEMBER (not on microphone): I'd like to make a quick comment. I am by training a research scientist interested in the health affects of this industry. I have given you information tonight. For the record, this week there have been three press releases, two by U.S. Food and Drug Administration, and one by a team of scientists in cellular industry, indicating concerns over health effects. It appears the system is not as safe as we thought it was at one time. (Documents were presented to Syrnyk.) SUSAN AND DAVID PARADINE: I think our comments have already been addressed. NANCY KEATING: I think you have already covered my comments. BILL KEATING: I am a homeowner in the Plainview area. I feel notification from the property line as opposed to notification from the tower expansion is a step in the right direction. It can expand the number of people who are notified. But people who can see these things for miles won't get much good out of it. But if you use the property line as opposed to the tower, it may not work in our area. We are. in a view corridor. I wonder if using the property line instead of the tower itself can be instrumental in determining other criteria. (Mr. Keating submitted a letter plus a color photo for the record -part of Attachment 3.) NANCY DANELKE: This is in reference to what Bill said. We are directly in line with a thirty-foot regulation in height for what we can put on our property, because we are in the scenic view area. This proposed tower is much more visible from Highway 20 than anything we would ever build, even though it is farther away from the highway. Are you considering the effect to the scenic view? DEWOLF: Yes. That's already built into the ordinance. The approval criteria on Page 2 takes up two full columns, relating to the visual corridor affect. It is very specific. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 10 of 23 Pages Wednesday, August 9, 2000 S WEARINGEN: They can be denied if they adversely affect the neighborhood or a visual corridor. DENNIS DANELKE: You have covered my question. BARBARA MCAUGLAND: I am a member of the Friends of Bend, representing them tonight. I have a few observations to make. We appreciate the amount of work that has been done; we think you are ahead of the curve, which is nice for a chance. I don't believe the C City is as firmed up on this as you are. In the City of Bend you may not have any extra antenna or structures that exist the beyond the existing building height limit. The existing limit happens to be 45 feet. For instance, Voicestream has asked for and may be approved for a seven -foot antenna on a thirty-foot house, which is well within the 45 -foot limit. Having been a member of the committee that worked on the design review ordinance, we found that if you demand better design, you will get it. We dealt with Voicestream and were able to convince them to redesign and come back with shorter monopoles - three thirty-foot monopoles. These will be about a third of the way down Pilot Butte and will work just as well as the three 45 -foot poles they intended to put on top of Pilot Butte in everyone's view. You can, in your position, demand better design work. You're heading in the right direction, but stating 150 feet looks suspiciously like you're aiming at one carrier. Is there a difference in dealing with a proper carrier, such as Voicestream that is providing a service, as opposed to the company that is putting up a structure but does not provide service except secondarily to the carriers? S WEARINGEN: I was here when the ordinance was first created. We asked the industry what the maximum height they would ever need; not believing that anyone who ever applied for it would automatically get it. We didn't specify or give any preference to whether they were an antenna farm or a cellular company. This was in 1997, before the golf poles were constructed. LUKE: In the city, this is also part of this ordinance. That's Tier 1, encouraging people to use the existing structures. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 11 of 23 Pages Wednesday, August 9, 2000 MCAUGLAND: It seems to be that this 150 -foot tower is a rather antediluvian device; it is a dinosaur. Surely something will be coming along that will work a great deal better. I think we all agree that three 30 -ft. towers will work beautifully if they are hidden. Is there any kind of proviso that a company must be responsible for its removal when better technology comes along and it is no longer needed? Or is it the responsibility of the landowner? SYRNYK: Yes, we do. It is a condition of approval that if it is abandoned for a period of one year, it has to be removed by the landowner. LUKE: The landowner is making money off the site being there. They are responsible for making sure that removal happens. SYRNYK: It is a common clause in a lease to remove structure over a specific period of time. DEWOLF: The landowner would have the authority through contract negotiations to make that necessary; but we hold the property owner responsible because the ground is here. The City has an ordinance to keep property up; if this is not done, the City does it and puts a lien against it. LUKE: I was in Douglas County yesterday, and couldn't help notice that there are no trees on the tops of the hills but there are sure antennas there. Most counties don't regulate this. We are ahead of the curve there. LINDA MOSKOWITZ: I had much to say, but will stick just to the five points. I feel neighborhood notification would be better by numbers than by distance. DEWOLF: Using both a minimum number of people and a minimum distance might be the way to go. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 12 of 23 Pages Wednesday, August 9, 2000 MOSKOWITZ: The ordinance seems to fall into problems with Laidlaw Butte. You say you feel these are strong ordinances, but the internet research I've done shows that they aren't all that strong if they go to court. You are putting much of the responsibility on the public for all applications that come in, but these towers are often interrelated. I would have to rely on current people in office to keep this up. Do you know when the tall towers in Redmond got installed? SYRNYK: One was established in 1995 and the other in 1998. MOSKOWITZ: So this failed at that time, after the ordinances, with no trees around and highly visible. It appears not many people got involved in that one. You are leaving this at 150 feet, but should limit it to the height of trees and existing structures; otherwise it is too subjective. What is the definition of "to the maximum extent possible"? Also, you say that there are incentive in Tiers 1 and 2, by co -locating on existing structures. Then why all are these applications coming in for new towers and poles? Technology is changing all the time, too. I think these ordinances need to be tightened up even more. We live in unique area, and it does not matter what the allowed height is, we need to consider screening from view in any case. (Ms. Moskowitz submitted a letter plus attachments for the record - part of Attachment 3.) CHARLES BROWN: It has already been said. ANDY ANDREWS: I live in the Alfalfa area. In past year the City of Bend has done a study and a survey done by Portland State University, and no where do the results of the survey state that we have poor communications and need more communication towers. The two top priorities have been traffic and maintaining open space. My question is that if no one is mentioning this, who is initiating these towers? The answer is that we are dealing with out of state businesses. You were elected to represent the people of the County. I don't think there has been an onslaught of people asking for better communications. This is something you need to think about when you make these decisions. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 13 of 23 Pages Wednesday, August 9, 2000 TIM PIPES: I live in the Sunriver area. My father is a vice president of a company that makes communication towers into trees. We hear a lot of comments on these trees being a joke. But if you have a choice, it's better to have this. Even a 30 -foot tree on Pilot Butte would be more aesthetically pleasing than a 30 -foot pole behind shrubs. This area has been compared with Vail and other areas with nice views, and you don't want to open yourself up to a scarring view. Disguising a tower as a church tower or light pole or in some way that it blends in naturally would help. I suggest blending it in the code; height requirements alone don't do it. Other communities have disguised poles and towers, and these regulations do seem to work. A camouflage option could be used in some cases. Should be incorporated into the code and should be a part of the review of any pole or tower. DEWOLF: We did get some information on camouflage companies. PIPES: The bottom line is that I live here. I'm asking that you don't overlook this option, as may work in some instances. MICHELLE GRIMM: I'll let my husband speak for both of us. TOM GRIMM: We live on Pinehurst Road in Bend. I do commend the Commissioners for their interest in this issue, and I commend Damian for his work with the public on a first -person basis. My wife and I have been involved in this issue since American Tower's first neighborhood meeting in March. I wanted to ask about the third item on the agenda tonight — adoption. Will this still be done? LUKE: This will not happen tonight. GRIMM: (Handed in a six-page document, part of Exhibit 3.) I do not think County's document is sufficient. (He then read information detailed in the documents.) Damian has been trying to keep up with all of this, which is a huge job. You may have to hire him some help. Once it's up, it will never come down. This starts a trend. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 14 of 23 Pages Wednesday, August 9, 2000 Perhaps a short-term moratorium should be considered. Neighborhood meetings are a good thing, but notification is the probldm. They don't notify any more people than they need to. Developers of tall towers seek to site in large acreages, so just a few people are notified; these limits need to be expanded. Cellular tower companies will only do what's required. Applicants should have to pay for expanded notification, too. I also feel an environmental impact statement should be included as well. Birds collide with these towers, and there are health issues recently discovered. We need protection now for people later on. DEWOLF: In the Sunriver area, three applications were submitted, and after detailed review, two withdrew and one was declined. LUKE: Thanks for your kind words toward Damian. We appreciate it. Many times we don't hear about the good work our staff is doing. BETSY MENNESSON: I've lived forty years in Tumalo. Regarding the years down the line, we don't want to have to deal with that kind of shocker. I have a question — why did you only look at Oregon counties? Deschutes County is unique, so you should consider those counties that are similar to this area even if they are outside of Oregon. LUKE: We must look within the state first, with the same ORS affecting all counties — we must look at Oregon court cases first, and existing law. SYRNYK: It is easier to look at local counties, and we get information more quickly. LUKE: Jefferson County does not have any regulations, and that's why there is a big tower there now. MENNES SON: Please set this up so people in other areas will look to Deschutes County for direction. How do we change that 150 -foot height limit? People will make application when they see the 150 -foot limit shown. Damian doing a great job, but you should change this wording. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 15 of 23 Pages Wednesday, August 9, 2000 S WEARINGEN: When we created the ordinance, we did not invision all of these 150 -foot towers. We thought that there may be instances in some areas, such a Millican or a heavily treed area, it would be appropriate for that use. People are assuming that we are going to carte blanche approve all these; that's not going to happen. MENNESSON: I want to note that regarding the flippancy we deal with from outsiders, we don't like it but understand that we must support commerce. People who live here understand that we care more about the visual impact. JOHN BLACKHURST: I am a lawyer for U.S. Cellular. I have nothing additional to add, but ask that the record be kept open for seven days so we can respond to the written material submitted tonight. LUKE: Is 150 feet a necessary height? BLACKHURST: From my experience, it depends on where you are and the coverage needed. We typically ask for 100 feet, but it depends on the situation. DAVE MOUSELLE: (Did not respond when called.) FRANK IZO: (Not on microphone.) I agree with all that has been said. I'm a general aviation pilot, and we are affected by 100 -ft tall obstacles. LUKE: How does this affect ham radio antennas? DAMIAN: It is covered by some federal regulations and the telecommunications act. There was a bill passed recently by the legislature that gives local governments the authority to regulate these types of facilities, but we have to have clear policy, directive or intent in order to do so. The comprehensive plan does not have that now. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 16 of 23 Pages Wednesday, August 9, 2000 GEORGE READ: They can be 70 feet high now, under federal regulations. DON LARSON: I am a representative with American Tower. I help the community and the telecommunications industry to come to a meeting of the minds on the installation of towers. There is a meeting scheduled for August 15 at 1:30 with Multnomah County; they have drafted an ordinance that is even more restrictive than yours. We have worked with Clackamas County, and they have adopted a new ordinance that is fairly restrictive; and the cities of Sherwood and Cornelius are also working on this issue. SWEARINGEN: What you are hearing today is height is the big issue here. LARSON: When we go into a jurisdiction, we play by the local rules. Sometimes 150 feet is not necessary. American Tower is in the business of co -location. We can cover the entire county with thirteen of these. S WEARINGEN: The maximum is 150 feet, but it can't adversely affect a visual corridor. Were you the one who was quoted, saying blame your elected officials for the 150 -foot height maximum? If so, you have really misunderstood the ordinance. You have to meet all portions of the ordinance. LARSON: We make applications based on the local ordinance. Under the 150 -foot limit, we use co -location; we want to cover the area with as few as possible. Our original plan was 13 towers utilizing your 150 -foot standard. If they are inappropriate, I'm sure you'll let us know. Again, you also realize in some places it is appropriate, and we want to play by the rules. S WEARINGEN: You're only playing by the rules on two of the three goals. LARSON: Two out of three. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 17 of 23 Pages Wednesday, August 9, 2000 S WEARINGEN: I would hope that what you have heard tonight really sinks in. This is reflective of the feelings of the citizens of Deschutes County. The third one, the visual corridor restriction, is very important. The most contentious issues have been over the height of objects. If you affect a visual corridor, I'm going to tell you right now that it's a "no" from me, and I'll bet it will be a "no" for the other two Commissioners. Don't assume that you'll get these 150 -foot towers. LARSON: We are not coming in here naively thinking that we can just blast these things across the landscape. The applications to come before you will be crafted. They are not taken lightly, as these are not cookie cutter sites. LUKE: In Multnomah and Clackamas Counties, is there a height restriction? LARSON: Clackamas has 60 feet limitation, with heights over that requiring a variance. Multnomah, inside the City is okay; and they are working on height restriction in their rural area now. They have a similar tier requirement. We do participate actively to try to resolve these issues in the community. Regarding Exhibit A, Section A-2, it seems a little unclear regarding pole location on the public right of way. It appears out of context; I think you need a section 2(a). Also, why are wood poles indicated and not colored steel poles? Wood poles degrade and break down. On Page 2, Exhibit A, Section B regarding setbacks, the second sentence says equal to the height of the monopole. What if the landlord wants to have a tower next to his house? S WEARINGEN: Please put all these in writing, as we are not addressing other changes to the ordinance at this time. We are just looking at the underlined areas in the document that would be changed. CRAIG PAOLI: (Did not respond when called.) Minutes of Public Hearing on Wireless Telecommunications Facilities Page 18 of 23 Pages Wednesday, August 9, 2000 NEIL MCKEE: Amateur radio towers not limited to 70 feet — the taller the tower, the less interference and health hazard you will have. The FCC has no limit. I've been an operator for many years. The poor cellular coverage in the Tumalo area affects law enforcement, fire, and other emergency services. LUKE: Are ham radio operators covered by this ordinance? GEORGE READ: I understand after reading federal law that the County cannot regulate federal towers 70 feet and under since the new state law passed last session, there is a question if these are covered by the ordinance. By federal law, we can't regulate them. LUKE: Can anyone put up a 70 -foot tower for ham operations? READ: It is unclear at this time. TOM LUERSEN: (Did not respond when called.) TOM KEITH: (Did not respond when called.) MICHAEL AND BETSY SNYDER: (Only Michael spoke.) I have three observations. The notification process is exhausting. Keeping up with all the applications even if you are trying to keep up with it is difficult for citizens. When you ask cellular companies about their failure to try to locate on BLM land, they dismiss it, saying the BLM won't cooperate. I have an FCC fact sheet that says federal agencies will work with them. S WEARINGEN: We talked extensively about that when the original was drafted. We hoped that they would look at locating on federal land first. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 19 of 23 Pages Wednesday, August 9, 2000 lRO 114 Keep in mind, if they do locate on federal or other BLM land, our regulations may not cover them. SYRNYK: This is an open question. We have agreements that they will consider but we have no guarantee they will follow it. SCHNEIDER: "Service provider" is a strange name. Why not call them wireless companies. ED AND BRIGITTE GAGER: (Did not respond when called.) BILL AND JAN PERKINS: (Did not respond when called.) RENEE TILHISTA: (Did not respond when called.) MARY DEMPSY: (Did not respond when called.) TRAVIS PERKINS: (Did not respond when called.) NUNZI GOOLD: I live at 1145 NW Cumberland in Bend. Regarding Item 2-D, Page 2 of Exhibit B, "proposed tower or monopole does not exceed a height of 150 feet from existing grade to the highest point of the support structure or any transmission equipment." I think w need to add some language regarding the disguising of poles, not the painting of the poles. (She showed a photo of a monopole tower that she indicates has four wireless leases, generating $160,000 annually, located in New Jersey on a major parkway on state-owned land.). As much as there have been legal threats to take the County to court to uphold the guidelines and FCC licenses that American towers has been granted, the County is in the driver's seat. People want disguising of actual monopoles and towers. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 20 of 23 Pages Wednesday, August 9, 2000 We have several large transmission poles between Redmond and Sisters, and some south of town, and they are very ugly and a detriment to the community. We also have the technology to put power lines underground for cosmetic reasons; also telephone lines. A precedent has been set in the court system granting these utilities the right to exist. If these organizations do go to court, they will win. I am glad you are reviewing your ordinance, and by adding language in that section regarding disguising, it would actually make the tower blend within the landscape. JOSEPH HEAD: (Did not respond when called.) BIANCHINA: I suggest we consider periodic review of this ordinance to keep pace with changes in technology. Can this be written into the ordinance? Perhaps a standing committee could examine this. RALPH MOSCOWITZ: We have a system where it's one application at a time. Aren't all these cellular tower companies tied together? SYRNYK: We have been receiving individual applications. MOSCOWITZ: Can't these companies turn in some kind of master plan? This would enable you to review the entire system. A lot depends on where they want to put them. SYRNYK: We can see if that's possible. I don't know if this can be done under current land use laws. ANDY ANDREWS: I have a comment regarding what the Commissioners can do on this. Are you considering dropping the height to 70 feet or so? LUKE: The Planning Commission will meet again and make a recommendation. It does not take direction from the Commissioners; and it develops its own work plan. We have to do things in a democratic manner. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 21 of 23 Pages Wednesday, August 9, 2000 UNIDENTIFIED AUDIENCE MEMBER: What about property values? S WEARINGEN: Sometimes people have the right to do things that impact other people. LUKE: A property owner can also appeal to tax assessor if their property value is affected. S WEARINGEN: There are limits to what we can do to allow or disallow uses. MICHELLE GRIMM: What about the affect on local buttes? You should consider protecting ridgelines and buttes. S WEARINGEN: The ordinance does consider this. LINDA MOSCOWITZ: Don Larson said he consults with county governments. I would urge the County to consult mainly with people who know the industry but who are not paid by tower or cellular people. (Further information is in her written document, Exhibit 3.) DEWOLF: We work with and for Deschutes County citizens. We take in information from all parties, and get information from any sources we can to address the issues. JOSEPH HEAD: I'm from Vancouver, and I build cell towers. We usually stay away from neighborhoods, and try to go into light industrial areas. It's line of sight technology, so height is needed. If you have shorter towers, you need more of them. The reason you have a lot of applications is that you have a lot of cellular phone users here. We have a tower in central Sisters, but you can hardly see it. We try to leave a screen of trees, and just peek over the top of them. The antenna goes on top of that. A 150 -foot tower might be better than a shorter tower in town. We are committed to using stealth and repeater technologies as they develop. Before you arbitrarily say 150 feet is bad, I think you need to look specifically at the area. Minutes of Public Hearing on Wireless Telecommunications Facilities Page 22 of 23 Pages Wednesday, August 9, 2000 UNIDENTIFIED AUDIENCE MEMBER: I want to testify, but wish to remain anonymous in the interest of protecting my professional position. S WEARINGEN: If you don't feel strongly enough about your testimony to identify yourself, we prefer not to take your testimony. This is public testimony, and we have to have your name. You can submit anonymous testimony in writing if you'd like. Being no other testimony offered, Chair Linda Swearingen stated that the record would remain open for seven days, until S: 00 p.m., August 16, 2000. She then closed the hearing at 7:50 p.m. Dated this 9th Day of August 2000 for the Deschutes County Board of Commissioners. _ a inda L. Chair ATTEST: Dgnnis R. Luke, Commissioner Tom DeWolf, CAMiudsioner Minutes of Public Hearing on Wireless Telecommunications Facilities Page 23 of 23 Pages Wednesday, August 9, 2000 \-� E S n ' a a � _4' Community Development Department 03 Auk A 4A, Planning Division - Building Safety Division - Environmental Health Division 117 NW Lafayette Avenue • Bend, Oregon - 97701.1925 (541) 388.6575 - FAX (541) 385-1764 http:/'./newberry.deschutes.org STAFF REPORT TO: Board of County Commissioners Interested Parties CC: George Read, Community Development Director Geralyn Haas, Kevin Harrison, Principal Planners Bruce White, Deputy County Counsel FROM: Damian Syrnyk, Associate Planner DATE: August 2, 2000 SUBJECT: Ordinance 2000-19, an ordinance amending Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, to amend the regulations for wireless telecommunications facilities (County File No. TA -00-8). STAFF RECOMMENDATION Staff recommends the Board of County Commissioners take the following actions: 1. Conduct a public hearing on August 9, 2000 on the proposed amendment. 2. Consider testimony received on this proposal submitted at the hearing and before the close of the record. 3. Adopt the proposed amendment with revisions based on issues raised or changes proposed through public testimony. PROPOSED AMENDMENT This ordinance amends the County Zoning Ordinance regulations for wireless - telecommunications facilities in Sections 18.116.250 and 18.128.040 of the Zoning Ordinance. The ordinance is attached to this report along with two exhibits. Exhibit A includes the complete text of Section 18.116.250 and the proposed amendments to this section. Exhibit B includes the complete text of subsection 18.128.040(DD) and includes the proposed amendments to this section. The following outlines and summarizes the proposed amendments: Qrralitu Services Perforrned with Pride 1. Use of Existing Structures. Staff proposes amending DCC 18.116.250(A)(2) and (3) by adding language that clarifies the term "existing' to mean existing on the date of adoption of Ordinance 97-063. Through this ordinance, the County adopted changes to this section of the Zoning Ordinance to regulate wireless telecommunications facilities under three categories or tiers of standards. The date of adoption was November 12, 1997. The purpose behind this proposal is to ensure that an existing vertical structure is not replaced with a new structure that exceeds the height of the existing structure and then used as a support structure for a wireless telecommunications facility. The Board can also consider language that would allow a pole that was established after November 12, 1997, but that replaces a wood pole, could be used for a Tier 1 facility provided the replacement structure did not exceed the height of the previous structure. 2. Legally Existing structures. Related to the issue under (1) above, Staff further proposes to amend DCC 18.116.250(A)(2), and (3) to clarify that a support structure must be lawfully established before it can be considered as a Tier 1 facility. The purpose of this is to ensure that a wireless communications facility established under this portion of the ordinance is not established illegally by using a vertical structure or a building that was established without the necessary County building and/or land use permits. 3. Determinations of Status. Staff proposes amending DCC 18.116.250(C) to require a written request for a determination from the county whether a proposed facility falls within the parameters of a Tier 1 or a Tier 2 facility. This amendment includes two parts. Subsection (1) addresses situations in which an applicant makes a request in writing, accompanied by a site plan, schematics, or any other documentation that would be useful, to the County. If the county can make a determination without making an interpretation or by exercising policy or legal judgement, then the County would respond to the applicant in writing. Subsection (2) addresses situations in which an applicant makes a similar request to the county that does involve an interpretation of the code and/or exercising policy or legal judgement. In these cases the county would respond to such a request through a declaratory ruling under Chapter 22.40 of the County Procedures Ordinance. 4. Clarifications of Tower Height. Staff proposes amending Section 18.128.040(DD) to clearly state that any tower or monopole used to support transmission equipment cannot exceed a height of 150 feet from existing grade to the highest point of the support structure or any transmission equipment. 5. Notice for Neighborhood Meeting. Staff proposes adding language to DCC 18.128.040(DD)(A)(1)(a) that clarifies the distances used for mailing notice of a neighborhood meeting are measured from the boundary of the property on which the applicant proposes to establish a facility, not from the location of a proposed tower or monopole. BACKGROUND Staff developed the proposed amendment following the Board's joint meeting with the Deschutes County Planning Commission on July 10, 2000. The purpose of the amendment is to clarify certain sections of the ordinance and not to rewrite the ordinance. The Board may receive testimony from potential applicants, providers of personal wireless services, tower companies, and interested citizens of Deschutes County who have followed the County's actions on towers and wireless telecommunications facilities. Additional issues may be raised in testimony that would be useful to include the proposed amendment. Staff mailed notice of this proposed hearing to 31 interested parties on July 18, 2000. The mailing list included those citizens of Deschutes County who requested notice of an application on a wireless telecommunications facility and members of the wireless industry who have made contact with the County on submitting an application for review. Notice was also published in the Bend Bulletin newspaper on July 23, 2000. Staff posted notice of the hearing in three different locations, as required by DCC Chapter 22.12, on July 31, 2000. Please do not hesitate to contact me at extension 1709 (direct line 385-1709) or by electronic mail at dam ians@deschutes.or.us if you have any questions before the hearing. Attachments: 1. Ordinance 2000-19 2. Exhibit A to Ordinance 2000-19 3. Exhibit B to Ordinance 2000-19 /DPS BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance amending Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, to amend the Regulations for Wireless Telecommunications Facilities. ORDINANCE NO. 2000-019 WHEREAS, the Deschutes County Board of Commissioners and the Deschutes County Planning Commission held a joint work session on July 10, 2000 to consider making changes to the County Zoning Ordinance regulation for wireless telecommunications facilities; and WHEREAS, after notice was given and hearing conducted on August 9, 2000 before the Board of County Commissioners in accordance with applicable law, and the Board of County Commissioners has considered the proposed amendments; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY. OREGON, ORDAINS as follows: Section 1. AMENDMENT. Section 18.116.250 of the Deschutes County Zoning Ordinance is mended to read as set forth in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined and deleted language shown in s4r-iked4;eugh. Section 2. AMENDMENT. Section 18.128.040(DD) of the Deschutes County Zoning Ordinance is amended to read as set forth in Exhibit "B.- attached hereto and by this reference incorporated herein. with new language underlined and deleted language shown in DATED this day of August, 2000. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, Commissioner Recording Secretary PAGE 1 OF I - ORDINANCE NO. 2000-019 (8/9/00) TOM DEWOLF, Commissioner EXHIBIT "A" A. Tier 1 Facilities. Wireless 20 feet back from the pole location'. telecommunications facilities that do not Any necessary road right-of-way require aviation lighting, that utilize Permits shall be obtained from the natural wood colors or muted tones from Deschutes County Road Department. amongst colors approved by Ordinance Equipment cabinets shall be subject 97-017, that utilize a radio equipment only to the road right-of-way setback cabinet or shelter that is less than 120 requirements. square feet in area and less than 10 feet in 3. Facilities that are established by height, and that meet the following attaching or placing an antenna or set standards are allowed outright in any of antennas on an existing building zone other than the Exclusive Farm Use, not designated as an historic the Surface Mining Zone, and the Forest structure, where the antenna array Zones and shall not be subject to any does not exceed the height of the other provision of the zone: building by more than 15 feet. All 1. Facilities established by colocating equipment shall be stored inside a an additional set of antennas on an building. For the purposes of this existing wireless telecommunications subsection, a building exists if it was tower or monopole that do not constructed after receiving all exceed the County -approved height required land use and/or building of the tower or monopole, and do not permits and occupied on or before add ground based equipment outside November 12, 1997, the date of the existing lease area. adoption for Ordinance 97-063. Notwithstanding any provision of 4. Facilities that include installation of a subsection (A) of this section, new wood monopole that does not facilities established under this exceed the height limit of the paragraph are permitted outright in underlying zone, and does not exceed any zoning district. 45 feet in height. All equipment 2. Facilities that make use of existing shall be stored in a building that has vertical structures, including but not a roof area that does not exceed 120 limited to power or telephone utility square feet in area or ten feet in poles or towers, parking lot or street height. The monopole, and any lighting standards or flagpoles. For building, shall be set back from the purpose of this subsection, a adjacent property lines according to vertical structure is "existing" if it the setbacks of the underlying zone. was constructed after receiving all Any microwave dishes installed on required land use and/or building the monopole shall not exceed a permits on or before. November 12, diameter of three feet. No more than 1997, the date of adoption of two dishes shall be installed on a Ordinance 97-063. A pole location monopole or tower. The perimeter in a public right-of-way shall not be of a lease area for a facility fenced. Antennas established'on an established under this subsection existing vertical structure shall be shall be landscaped with shrubs eight installed so that they do not exceed feet in height and planted a the height of the existing vertical maximum of 24 inches on center. structure by more than 15 feet. New B. Tier 2 Facilities. Wireless structures in this category are limited telecommunications facilities that do not to equipment shelters that do not require aviation lighting, that utilize a require a building permit. Walk-in wood monopole for supporting antennas equipment shelters shall be set back and/or microwave dishes and that meet out of any road right-of-way at least the criteria in this section are allowed PAGE 1 OF 2 — ORDINANCE NO. 2000-019 EXHIBIT "A" outright, subject to site plan review under amongst those colors approved with this subsection (and not section Ordinance 97-063. Such colors shall 18.124.060) in the following zones: La be non -reflective and neutral. Pine Commercial District (LPCD), La f. Fences. A sight -obscuring fence, as Pine Industrial District (LPID), Rural defined by this title, shall be installed Industrial (RI), Rural Service Center around the perimeter of the lease (RSC), Rural Service Center-Wickiup area. The sight -obscuring fence shall Junction (RSC-WJ), Tenrebonne surround the monopole and the Commercial District (TeQ, and Tumalo equipm-mt shelter. Commercial District (TuC). Lattice C. Tier 3 Facilities. Wireless towers or - metal monopoles are not permitted with a Tier 2 facility. telecommunications facilities (or their I. An application for site plan review equivalent uses described in the EFU, for a Tier 2 wireless Forest, and SM Zones) not qualifying as telecommunications facility shall either a Tier I or 2 facility may be meet the following criteria: approved in all zones, subject to the a. Maximum Monopole Height. In the applicable criteria set forth in subsections LPCD, LPID, RSC, RSC-WJ, TeC, 18.128.040(CC) and (DD). and TuC zones, the maximum height 1. A request for a written determination of a monopole that supports antennas from the county as to whetter a and/or microwave dishes for a proposed facility falls within Tiers 1 wireless telecommunications facility or 2 of this section shall be submitted shall be 60 feet from finished grade. to the county in writing and In the RI Zone, the maximum height accompanied by a site plan and of a monopole that supports antennas proposed schematics of the facility. and/or microwave dishes for a If the county can issued a written wireless telecommunications facility determination without the exercise of shall be 75 feet from finished grade. discretion, or by making a land use b. Setbacks. All equipment shelters decision as defined under ORS shall be set back from property lines 197.015(10), the County shall according to the required setbacks of respond to the request in writing. the underlying zone. A monopole " A request for a written determination shall be set back from any adjacent from the county as to whether a dwelling a distance equal to the proposed facility falls within Tiers 1 height of the monopole from finished or 2 of this section that involves the grade, or according to the setbacks of use of discretion or the exercise of the underlying zone, whichever is policy or legal judgement shall be greater. submitted and acted upon as a c. Shelters. Any equipment shelter request for a declaratory ruling under shall be finished with natural Chapter 22.40 of the County Code. aggregate materials or from colors (Ord. 97-063 § 1, 1997; Ord. 97-017 § 7, approved with Ordinance 97-017. 1997) d. Landscaping. The perimeter of a lease area shall be landscaped with plant materials appropriate for its location. The lessee shall continuously maintain all installed landscaping and any existing landscaping used to screen a facility. e. Cabinets. Any equipment cabinets shall be finished with colors from PAGE 2 OF 2 — ORDINANCE NO. 2000-0 19 INS- EXHIBIT "1319 DD. Wireless Telecommunications Facilities. of notice required by title 22 of this An application for a conditional use code. b. Pre -Application Conference. permit for a wireless telecommunications Applicant shall attend a scheduled facility or its equivalent in the EFU, pre -application conference prior to Forest, or Surface Mining Zones shall submission of a land use application. comply with the applicable standards, An application for a wireless setbacks and criteria of the base zone and telecommunications facility permit any combining zone and the following will not be deemed complete untilthe requirements. Site plan review under applicant has had a pre - chapter 18.124 of this title including site application conference with Planning plan review for a use that would Division staff. otherwise require site plan review under c. Submittal Requirements. An chapter 18.84 of this title shall not be application for a conditional use required. 1. Application Requirements. An permit for a wireless application for a wireless telecommunications facility shall telecommunications facility shall include: i. A copy of the blank lease form. comply with the following meeting, ii. A copy of the applicant's Federal notice, and submittal requirements: Communications Commission a. Neighborhood Meeting. Prior to license. scheduling a pre -application iii, li map that shows the applicant's conference with Planning Division search ring for the proposed site staff, the applicant shall provide and the properties within the notice of and hold a meeting with search ring, including locations interested owners of property nearby of existing telecommunications to a potential facility location. towers or monopoles. Notice shall be in writing and shall iv. A copy of the written notice of be mailed no less than 10 days prior the required neighborhood to the date set for the meeting to meeting and a certificate of owners of record of property within mailing showing that the notice a) 1.320 feet of the boundary of the was mailed to the list of property property on which the applicant owners falling within the notice proposes to establish €s; a tower or area designated under monopole no greater than 100 feet in subparagraph (1 xa) of this height, and b) 2,000 feet of the boundary of the property on which section. v. A written summary of the the applicant proposes to establish neighborhood meeting detailing fQw-a tower or monopole at least 100 the substance of the meeting, the feet and no higher than 150 feet in time, date and location of the height. For the purpose of this meeting and a list of meeting section, the property on which an attendees. applicant proposes to establish a vi. A site plan showing the location wireless telecommunications facility of the proposed facility and itscomponents. includes the lot of record on which The site plan shall the applicant will locate the facility also identify the location of and all contiguous lots of record held existing and proposed in common ownership. The applicant shall also provide a copy of landscaping, any equipment this notice to the Planning Division. shelters, utility connections, and Such notice shall not take the place any fencing proposed to enclose the facility. Page 1 of 3 — EXHIBIT "B" TO ORDINANCE NO. 2000-019 �- EXHIBIT `B" 2. a. C. vii. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facility. viii.An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape. ix. A copy of a letter of determination from the Federal Aviation Administration or the Oregon Department of Transportation - Aeronautics Division as to whether or not aviation lighting would be required for the proposed facility. Approval Criteria: An application for a wireless telecommunication facility will be approved upon findings that: The facility will not be located on irrigated land, as defined by section 18.04.605 of this title. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith a ort to co -locate its antennas on existing monopol,.:s in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co -location within the area to be served. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility from view of nearby residences. d. A proposed tower or monopole does not exceed a height of 150 feet from existing grade to the highest point of the support structure or any transmission equipment. A tower or monpole located in an LM Zone is no taller than 30 feet. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. e. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. f. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. g. Any required aviation lighting is shielded to the maximum extent allowed by FAA and/or ODOT- Aeronautics regulations. h. The form of lease for the site does not prevent the possibility of co - location of additional wireless telecommunication facilities at the site. L Any tower or monopole shall be designed in a manner that it can carry the antennas of at least one additional wireless carrier. This criterion may be satisfied by submitting the statement of a licensed structural engineer licensed in Oregon that the monopole or tower has been designed with sufficient strength to carry such an additional antenna array and by elevation drawings of the proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. Page 2 of 3 — EXHIBIT `B" TO ORDINANCE NO. 2000-019 EXHIBIT "B" j. Any approval of a wireless telecommunication facility shall include a condition that if the facility is left unused or is abandoned by all wireless providers located on the facility for more than one year the facility shall be removed by the landowner. Page 3 of 3 — EXHIBIT "B" TO ORDINANCE NO. 2000-019 Summary of Proposed Changes to Wireless Telecommunications Facility Regulations. 1. Use of Existing Structures • Adds language that clarifies that the term "existing" means existing on November 12, 1997, the date of adoption of Ordinance 97-063. • Ordinance 97-063 amended the County Zoning Ordinance to add the current regulations on wireless telecommunications facilities. 2. Legally Existing structures. • Adds language that requires existing structures and buildings referred to under (1) above must have been established after obtaining all required County building and land use permits. This change applies to both vertical structures and buildings. 3. Determinations of Status. Adds language that requires request for written determination whether proposed facility would fall under Tiers 1 or 2 of Section 18.116.250 Requires County to respond to request in writing if proposal can be evaluated against clear and objective standards. Requires an application for a declaratory ruling if responding to the proposal will require exercising discretion or judgment. 4. Clarifications of Tower Height. • Adds language that clarifies that any tower or monopole used to support transmission equipment cannot exceed a height of 150 feet as measured from existing grade to the highest point of the support structure or any transmission equipment. • Current ordinance refers to a tower height of 150 feet under the requirements for a neighborhood meeting. 5. Notice for Neighborhood Meeting. • Clarifies existing language by stating that the distances used for mailing notice of a neighborhood meeting are measured from the boundary of the tract on which the applicant proposes to establish a facility, not from the location of a proposed tower or monopole. • Measures distance from boundary of ownership if the property on which an applicant proposes to establish a facility consists of multiple lots of record in common ownership. n 1 WRITTEN TESTIMONY RECEIVED AT PUBLIC HEARING AUGUST 9, 2000 PROPOSED AMENDMENT TO ZONING ORDINANCE REGARDING WIRELESS TELECOMMUNICATIONS FACILITIES Linda Moskowitz - Letter plus attachments Glenn Lavery of Larson Utility Camouflage Co. - Copy of faxed information � Dr. Ray Seidler - Letter Katharine W. Kimball - Letter plus attachment TJ and Mary Tomjack - Letter plus attachment John D. MacArthur, Jr. - Letter Harriet and Abdul Anani - Letter Kathleen Leppert - Letter (in -fax format) Richard Sadler - Letter `% Michele and Tom Grimm - Letter ` Bill and Nancy Keating - Letter plus color photo Darrell Pieper - Letter Also attached: Copy of Sign-up Sheets (2 pages) Linda Moskowitz 20195 Winston Loop Bend, OR 97701 541-389-4468 E-mail: rlmosk@aol.cc-„ August 9, 2000 � , dAdAnda dya,thowlex Board of County Commissioners 20195 Winston Loop Deschutes County Bend, OR 97701-8990 1130 NW Harriman Phone: (541) 389-4468 Email: rlmosk@aol.eom Bend, OR 97701 Re: Proposed Amendment to the Zoning Ordinance Regulating Wireless Telecommunications Facilities - rA -00 -J Dear Commissioners: In the past few months since I've gotten involved in this issue, an issue I knew nothing about, I have learned a lot. I've learned how much of a negative impact these towers and poles have had across our country and how other communities have been caught unaware and ill-prepared and are trying to fight them - sometimes in the courts. I've learned that if local governments don't have adequate laws regulating these facilities, the tower companies and carriers will do what's most economical for themselves without any regard as to how it affects our community. I've learned that when you talk with the people of the community about the total impact these towers will have on our scenic beauty, people are overwhelmingly against having these towers visible. And over these past few months I've also learned that the laws that Deschutes County currently has for regulating the wireless telecommunication facilities - laws that I once thought were somewhat adequate - I now feel are wholly inadequate. The ordinance amendment the Deschutes County staff is proposing for wireless telecommunications facilities seems to mainly address the closing of the loop hole that led to a controversial 60 foot pole being erected on Laidlaw Butte in Tumalo without a permit or notification of neighbors. The staffs proposal to remedy this problem is all well and good, but it sure falls extremdy short of what is needed to protect our overall scenic views. The report states that "the purpose of the amendment is to clarify certain sections of the ordinance and not to rewrite the ordinance." Since none of the proposals the staff offered addresses the core problem with the ordinance, I feel the ordinance does need to be rewritten and I strongly recommend that the existing ordinances be given to a professional and legal consultant that does nothing but consult FOR local governments and communities on tower issues and do NOT work for the wireless industry or their consultants. I'm including a list of suggested changes to each section of the ordinance that I feel needs to be addressed along with some additional information I got off the Internet and from a California consulting firm. In summarizing the list of changes, the current laws continually put the burden on the community to be constantly on the lookout for the next proposed tower or antenna. The law should be turned around 180 degrees. Why should the citizens of this community have to work so hard to insure their views are protected? That's what we elect you for. Notices of neighborhood meetings required by the ordinance are extremely insufficient to notify all the people that are affected by the proposed "towers", especially if the proposed site is in an area with large acreage yet highly visible to many people. Public hearing notices given out by the county are also insufficient. An announcement in the back of the want ad section of The Bulletin that is published for only one day is easily missed and NEVER seen if people don't even know that that is where the notices are published. I didn't until I got involved with this issue earlier this year. A great example is the golf nets north of town that we all have come to know and love. We're all well aware of the outrage by the community when these nets were erected. Why was that? Most people (including me) didn't even know they were going up until it happened. I can only wonder how many people were notified compared to how many of us have to now look at it everyday? Just because it may not be in my backyard or in your backyard doesn't mean the whole community is not affected by it, not to mention the 4 - 5 million tourists we get every year. And how is the community notified when no public hearing is required? Who decides when a public hearing is necessary? I didn't see it mentioned in the ordinance. The ordinances should be written so that ALL poles and towers, no matter the height, should be no taller than the trees or other structures that surround them. They should ALL be built in a "stealthy" manner - hidden within trees and camouflaged as one of the trees, screened from view, and built off summits so as not to break the skyline. In other words, they should be virtually invisible. This is being done in other parts of the country. The carriers may say this is too expensive for them to do. I say there is plenty of competition in the wireless industry that if one company says its too expensive another one will come along quick enough and meet our requirements. The solution to the proposed antenna on top of Pilot Butte that was reached between VoiceStream, the State Parks Dept., and the community shows that this alternative can work for everyone. Let's. make it the law. I'm not a lawyer, a radio frequency engineer, a politician, or even a college graduate. But I don't think it takes a college graduate to figure out why so many people choose to live in Central Oregon. And I don't think it takes a college graduate to realize the existing ordinance doesn't do enough to protect our views. This is a very unique area with dramatic and mostly unobstructed views of the Cascades and the high desert. Visible towers and poles - no matter what the height - will only degrade the natural scenic beauty we all love. Today's innovative technology allows for welcoming the wireless companies to our community and still keep the towers and antennas out of sight. This is a great opportunity for you as leaders of this community to get ahead of the game and present Central Oregon as a model community as to how this technology can be welcomed and protect everyone's beautiful views of the natural landscape at the same time. Enact laws NOW that will insure our scenic landscape will be protected by requiring ALL towers and antennas be constructed "stealthily". Thank you. Sincerely, X � Linda Moskowitz Enclosures: Suggested Changes to County Ordinances PlanWireless Newsletter - July, 2000 Issue Information from Kreines & Kreines, Consulting Firm in Tiburon, CA Information from Law Offices of Kirk R. Wines, Seattle, WA "More Tower Companies" - From PlanWireless Web Site "Seamless? Not Very Likely" - From PlanWireless Web Site "Co -location Is Not Your Friend" - from PlanWireless Web Site Suggested Changes to County Ordinances for Wireless Telecommunication Facilities Related To Existing Ordinances 1. Chapter 18.116.250.A.4. - Tier 1 Facilities: A 45' wood monopole can be allowed outright and yet can still be offensive to look at if it breaks the skyline in a scenic area, especially with antennas and microwave dishes attached. Require that all poles be camouflaged and/or screened from view so as to blend in with their surroundings. New poles of any kind should not be allowed outright. All property owners affected by this pole should be notified of the application, not just those that live within a few feet. 2. Chapter 18.116.250.B.1.a - Tier 2 Facilities: Again, no new poles of any kind should be allowed outright. All property owners affected by this pole should be notified of the application. If it were required that the pole be constructed "stealthily", screened from view or camouflaged, then less people or no one at all would have to be notified. The maximum height of a pole or tower in the zones mentioned (60 feet and 75 feet) can still affect views, especially with antennas and microwave dishes attached. Just because the poles are in commercial, industrial, or service areas doesn't mean they won't affect the views of tourists, residences, etc. Check out the view from Honker's deck looking toward Mt. Bachelor. This tower is also highly visible from sections of Colorado Ave. ALL poles and towers should be screened from view and/or camouflaged, and limited to the height of the trees or structures that surround them or help screen them from view. With today's technology, there is no reason not to have these structures built stealthy. 3. Chapter 18.128.040.CC: Section. 1. Instead of limiting the height to under 150 feet, be more specific. Limit the height to the tree level they are located within or keep them equivalent to surrounding building heights. Require them to also be built "stealthily", camouflaged and/or screened from view so as to blend in with the surrounding landscape or structures. This, I'm sure, would eliminate a lot of necessity for aviation lighting and conflicts with the public. 4. Chapter 18.128.040.DD: Section La. Neighborhood Meeting: Not enough property owners are being notified for a 100 or 150 -foot tower. These tall towers (and even shorter ones - Note controversy over the 60 foot pole on top of Laidlaw Butte that affects more than just the 4 owners notified) affects a lot more property owners than just those that live within 1320 or 2000 feet of it. Many times those that live closest won't even see it when those that live farther have their views affected more. 10 days is also not enough notification time. There should be at least 30 days. Section I.c: Submittal Requirements: The applicant should be required to submit a master plan of placement of future antennas or towers in the county. This will give the community an idea of how many towers will need to be placed and where the company will want to place them. If the company is honest in its estimate of future needs, the information may open people's eyes to the fact that it's not just one tower that they're voting on, but that dozens of antennas or towers will need to be erected county wide. Their plan should also be updated annually. Right now each site application is handled individually. Most towers and antennas proposed by each company are interdependent on one another. Each site for the 13 towers American Tower Corp. is proposing for Deschutes County alone is related to the next site. If one site is approved it will be more difficult to deny the next site for whatever reason may be applicable. The various governments (city, county, forest service, etc.) should look at the overall plan of these companies and work together to evaluate the full impact the proposals will have on the community. The applicant should be required to submit at least 2 alternatives for each proposal. There are always alternatives. Subsection viii states, "An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape." A 100 or 150 -foot tower will never fit into our beautiful landscape. Section 2 - Approval Criteria: Subsection b - This is really wide open to interpretation. "Less visual impact as viewed from nearby residences" is very subjective. What's the definition of "less visual impact" and "nearby residences"? If poles and towers were required to not break the skyline, made "stealthy", and camouflaged and/or screened from view, then the public wouldn't have to worry about seeing these poles/towers popping up all over the place. The applicant should also have to prove that more shorter poles (that can be more easily hidden) vs. one tall polettower won't provide the coverage necessary to serve the public's needs. A statement from a qualified engineer that the applicant hires may be biased towards the applicant. The county should hire their own independent engineer. Subsection c: Again, very subjective. Example: A butte with only 20-30 foot junipers will never screen a 100-150 tower placed on the summit from view of nearby residences or residences that are a few miles away. Require the towers to be no higher than the tree that they are hidden in, camouflage them, and keep the towers off the summit. Subsection d: Even in a LM Zone, a 30 foot pole is unsightly if not required to be camouflaged or screened from view. Subsection e: Same comment as for Subsection c above. Subsection f: Painting a pole or tower - no matter what size- will not help it blend in if it is sited on a summit or isn't camouflaged or screened from view. A pole painted brown or green to blend in with the surrounding trees will still stand out against the sky or the snow fields of the Cascades. Subsection g: If height is restricted more there would be less need for any aviation lighting. Let's help keep our skies dark. Subsection is Co -location is not always a good thing. First, just because you require the structure to allow for co -location doesn't mean a carrier will co -locate. Second, co -location poles are built taller and become highly visible when fully loaded. Plus, Tier 1 of the current ordinances states that if a carrier co -locates (except in EFU, SM and Forest Zones) that it is allowed outright. The county needs to ask itself if they are losing revenue in permit fees, taxes, and lease fees (if land is county owned) every time a carrier co -locates. Subsection j: What if the landowner can't afford to remove the facility? If it is in the lease between the landowner and the tower company that the tower company will remove the tower, what guarantee is there? What if the tower company is no longer in business? Maybe a bond should be posted before construction begins to cover the cost of subsequent upkeep and removal. 1. If not already done, the county should have a GIS map made of all existing structures where Tier One facilities could be approved, showing clearly that' less intrusive' alternatives exist county wide. A county -wide inventory of existing structures suitable for use as antenna support platforms, such as communications towers, buildings, water tanks and inactive chimneys, should be made. As part of the inventory, also identify existing or planned public facilities and lands upon which antennas might be mounted or towers constructed. Maintain a central data base and map of the inventoried existing structures. 2. The county should not rely solely on the evidence submitted by the applicant. They should hire their own independent radio frequency engineer, the cost, of which, can be recovered by charging an additional permit fee. 3. If laws were enacted to require towers or poles to be camouflaged, then there should also be a provision to insure the camouflage material be maintained and not allowed to become unsightly or lose its ability to camouflage the tower. A bond could be posted to insure the facilities are maintained in a proper manner. A Newsletter Reporting to Local Government about the Vol. 5, No. 7 yes of Personal Wireless Service Facilit PlanWireless The Strictest Wireless Ordinance in the personal wireless service facilities regulations. United States Examples include: A city in the Midwest has just passed an ordinance (written by Kreines & Kreines, Inc.) that PlanWireless believes is the strictest in the U.S. Consider just a few of these highlights: • The ordinance strongly discourages co -location. After finding that some "towers" and most additions to towers lacked permits (as they do in many jurisdictions), co -location was seen as a problem rather a solution. Solution: Any existing "tower" seeking a permit must first bring everything on the tower into compliance with the new ordinance. Second, any new attachment to the "tower" must bring the tower height down at least 25%. • Legally approved damaged or destroyed facilities must reapply under the new ordinance if the rebuilding of the damaged facility will cost more than 10% of the total facility's value. The ordinance uses a tiering approach for permitting personal wireless service facilities. Tier One applications are for facilities attached to city -owned streetlights and need only an administrative zoning review to be signed off by the Public Works Department. Tier Two applications are for facilities attached to existing structures (except for "towers") and they are approved administratively with a site plan. Tier Three applications for ground -mounted facilities are subject to a lengthy special use permit process. • Heights of all Tier Three facilities are limited to 10 feet above the trees they are located within or must be kept equivalent to surrounding building heights. • Tier Two heights can extend to existing building heights or as high as the existing structure, whichever is higher. • Fall zones preclude all buildings and human congregation within them. This ordinance is based upon fact-finding and principles not usually found in conjunction with July 200( • Alternatives - All applicants must submit at least two alternatives for each proposal. • GIS Maps - The city has mapped all existing structures where Tier Two facilities, and all new opportunities for Tier One facilities, could be approved, showing clearly that "less intrusive" alternatives exist city-wide. If the applicant doesn't show two alternatives, or even if the applicant does, city officials can go to the maps for "less intrusive" alternatives. Streetlights Are the Answer The city was convinced that most carriers would eventually mount their personal wireless service facilities on streetlights in five to ten years, anyway. Why not hasten the day when facilities acceptable to the residents of the city could be deployed? Towers are only helpful to the industry in the early stages of deployment and they pose problems because: • They provide height, which must be reduced over time. • They attract tower builders who have no rights under Section 704 of the Telecommunications Act, �j some who commonly install facilities without permits, some who avoid paying underlying landowners additional rent for each attachment and some who slip under the tax assessment radar. With streetlights, control is shared between the city and the carrier. Revenue for the city is obtained three ways: Dedication of the pole and lamp, if new, to the city. Payment of an annual right-of-way management fee. Payment of a monthly lease rate (nominal) to the city for use of the streetlight. " The future is small, not big. Big cities may find this approach daunting to administer. But residents in big cities don't object to tall towers as much as people who live in small towns for a reason ... they don't want blighting influences. No word from the industry ... yet. PlanWireless will keep its readers advised. Published by Kreines b Kreines, Inc., Consultants to Cities 6 Countles on W/rieless Planning W Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax &,mail.• mail@planwire/ess.com - web site: http:/Mvww.planwireless.com No, It Was Not a Typo! Readers are asking whether PlanWireless goofed in the May 2000 issue where, on page 1, we stated the following: According to the Court, the Telecommunications Act does require that wireless services provide 100% coverage and that federal regulations contemplate the existence of dead spots, defined in 47 C.F.R. § 22.99 as "small areas within a service area where the field strength is lower than the minimum level for reliable service. " PlanWireless was reporting on the U.S. Court of Appeals, Fourth Circuit decision in 3600 Communications Company of Charlottesville V. the Board of Supervisors of Albemarle County. While the Court may have reported "100% coverage," PlanWireless respectfully corrected this commonly -field myth in the June 2000 issue. This myth may have its origins in Federal Communications Commission Administrative Law which was first described in evidence [Draft Environmental Impact Statement (DEIS), Personal Communications System (PCS) Cell Site, Meisenzahl Property] submitted by Sprint Spectrum in litigation over Section 704 of the Telecommunications Act in the Sprint Spectrum v. Town of Ontario case, as follows: It is noted that the FCC defines a cellular service area and reliable service area in its regulations (47 CFR Part 22.903 and 22.504) in terms of a power level of 39 dBu, equivalent to approximately -100 dBm. This is almost identical to Sprint PCS -99 dBm specification. It is noted that this definition is utilized to establish the limits of coverage and the potential for interference with other base stations. These same regulations establish the requirement of "100% coverage." The fallacious application of cellular requirements (which date back to the 1980s) to PCS requirements (set in the 1990s) was later admitted by Sprint Spectrum's consultants in the [Final Environmental Impact Statement (FEIS), Personal Communications System (PCS) Cell Site, Meisenzahl Property]: The reference in the DEIS to the 39 dBu contour applies only to cellular service and not PCS. Its use in the DEIS was intended only to show that Sprint's defined minimum signal level for coverage conform to sound engineering practices in wireless communications and are comparable to those used in cellular applications. As PlanWireless noted in June 2000, Cellular requirements are different than PCS requirements. The Court correctly quoted a cellular requirement (from the 1980s) in 360a Communications Company of Charlottesz,ille V. the Board of Supervisors of Albemarle County but this mandate was not a result of the Telecommunications Act, which was signed into law in 1996. Moral of the story: Do not allow PCS carriers' lawyers to cite Cellular requirements. PCS licenses need only serve two-thirds of their market population as a mandate of their license. Cellular carriers must serve 100% of their market population. Antennas Are Going on the Roof, and Lease Rates are Going Through the Roof Kreines & Kreines, Inc. tells its clients: prepare a plan for all your rooftops (public and private). They are resources for hidden antennas at a time when space on rooftops is becoming rarer and rarer. The June 26, 2000 issue of Fortune notes that New York City buildings charging $40.00 per square foot for office space rent, are charging $100,00 per square foot for rooftop space rent. Our readers might say: "that's New York, it'll never happen here." Actually, it may be worse in your city or town than in New York, since your jurisdictions have fewer tall buildings and much less rooftop space. Once MMDS and LMDS come to town, the pressure for more "towers" will become intense. Part of the reason will be: "there's no more space available on rooftops." PlanWireless will publish articles on MMDS and LMDS next month. Many jurisdictions approach rooftops with a good dose of pragmatism: "roofs are so much better than 'towers' that we really don't want to regulate them very much. If we can get the carrier to go on rooftops, we make our lives so much easier." Good pragmatism, perhaps. ' Good planning, no: A visit to an overloaded roof may find three things: chaos, non-compliance with FCC Radio Frequency Radiation Guidelines and non-compliance with local regulations. Shall we wait for the first accident to happen and then express surprise? From the Sublime to the Ridiculous ... You Make the Call PlanWireless gets many messages; some of them make us laugh and others make us wonder where this wireless world is headed. We think our readers can make their own choices. The next two pages are meant to bring comic relief for those who find wireless a boring subject. Published by Krolnes 6 Kre/nes, Inc., Consultants to Cities d Counties on Wireless Planning 58 Paseo Mimsol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax U)1Amt fflj Do You Want to Continue Receiving PlanWireless? ®gen Cities and counties that have not received a free subscription in the past can receive a free subscription to PlanWireless. Cities and counties that have received free subscriptions in the past can subscribe for $30 for 6 issues. Private companies & individuals can subscribe for $60 for 6 issues. If you would like to receive a subscription to PlanWireless, please send the following information to Kreines & Kreines, Inc. by mail (58 Paseo Mirasol, Tiburon, CA 94920), phone (415-435-9214), fax (415-435-1522), or e-mail (wireless.update®worldnet.att.net): Name/Title: Jurisdiction/Company:StaI21P YoLr Mailing Address: City, State, Zip Code: Back Issues ($10 each): Please let us know the back issues you wish to order (March 1996 to June 2000). This newsletter is designed to provide information about planning for personal wireless service facilities. It is sold and distributed free with the understanding that PlanWireless is not providing legal, planning or any other professional advice or services with this newsletter. Please contact Kreines & Kreines, Inc. if you would like to obtain professional planning services. If legal or other expert assistance is required, the services of a competent professional should be obtained. Sublime or Ridiculous? For the young at heart, the Wall Street Journal published some racy stories about cell phone love lives, including one about a young lady making out in the front seat of a car. "In mid -tussle, she jostled the cell phone in her purse and, without realizing it, she triggered speed dial Number 2, which rang up her ex- boyfriend." The poor guy listened to sweet nothings and long pauses for 22 minutes before he realized he has been there and done that. The young lady had an immaculate reception to the news when she found out about it and said: He didn't have to sit there and listen to it. Wendy Pans Her Peter Pans The young woman above didn't have it nearly as bad as poor Wendy, who decided to accept a date's invitation to a swanky island weekend on the East Coast. She took the ferry, called her date by cell phone, put the damn thing in her purse and then sat down to "truth or dare" with her roommate, who was on her way to her own date on the island. During the ferry ride, Wendy not only detailed the faults of her date, but her past relationship with a "kinky doctor." All of which would have been fine, except Wendy accidentally hit "recall" and "send" very early in the conversation and her date heard it all on his answering machine. For those of you who think we make these things up, the article appeared on 5/30/00 on page A-1 of the Wall Street Journal. Here Are Four Bullets For Your Damn Tower and One More for Your SUV All that the Culp family did was rent a patch in their raspberry farm to a tower builder. The neighbors on Coalman Road outside of Sandy, Oregon were not happy about the possibility of a tower in their neighborhood. One disgruntled person fired five shots from a.357 Magnum into the Culp residence. One shot missed and lodged in the Culp's Ford Bronco. The tower isn't up yet and no one was hurt. But the Culp's mother is negotiating to lease space for another 250 -foot tower nearby. An agent of the Coalman Road Neighborhood, which took responsibility for the shooting, left the following note: Your lives are in danger unless the cell tower is stormed. Welcome to America where the right to bear arms and property rights are rubbing up against state - defined regulation of land use and criminal behavior. That Ought to Stop Those Darn Bike Thieves Kreines & Kreines, Inc. made a visit to a regional economic development agency where the talk turned to the future: wireless, of course. The director of the agency told Ted Kreines, AICP that wireless research in that region had come up with an amazing application of wireless technology. Children's bicycles will someday soon have a gizmo that will recognize the bike's owner. If anyone other than the owner starts riding the bike, the gizmo takes the thief s photograph. The gizmo then transmits the photograph wirelessly to the local police department, whereupon something happens. This sounds like a lot of technology to stop Published by Kreines & Krolnes, Inc., Consultants to C1Nes 6 Counties on Wireless Planning 58 Paseo Miresol, 77buron, C4 94920. (415) 435-9214 nhnnn and r41!il Kreines & Kreines, Inc. Consultants to Cities & Counties on Planning for Personal Wireless Service Facilities 58 Paseo Mirasol Tiburon, CA 94920 Visit our web site at www.planwireless.com bike thieves; but then, commercial wireless rates will be who attend Kreines & Kreines, Inc. workshops have less than a penny per minute. Meanwhile, stay off other seen a similar product by Ericsson. Carriers have people's bikes. known about these products and have been installing God (or Somebody) Save the Queen them in "special circumstances" for several years. We've always known that England is a more dignified country, but consider Queen Elizabeth's diplomacy when she discovered that a "stealth" tree (a wireless monopole with fake branches and pine needles) was planned outside Windsor Castle. She asked a royal aide to write a letter to the local planning board, branding the whole scheme as "ridiculous." The Queen could have ordered the monopole removed, if she wanted. Actually, it wasn't up yet, so it might have been easy to stop by royal decree. Instead she issued a mild request, which could easily be ignored. No word yet on the disposition of this matter, but PlanWireless reminds Great Britain that we responded to a call for help in World War II and we can easily do so again. No Thanks, We're British PlanWireless has learned that a London stage version of "The Graduate" prefaces each performance with this announcement: We remind you that this production is set in the year 1963, before the invention of the cellular telephone. See, didn't we tell you the English were more dignified? Seeing is Believing (Not Seeing is Not Believing) Kreines & Kreines, Inc. has been telling its clients for almost three years about "a little black box" that can substitute for a "tower." So, it's a little difficult to understand why a "new" product called "SPICE" by a company called Littlefeet, was introduced in San Diego amidst much fanfare last month. "SPICE" is a small box that hangs on a utility pole, much like "PrimeSite" by Nokia, a product PlanWireless featured in the October 1997 issue. And those of you What caught our attention in the San Diego Union - Tribune article was that these "SPICE" boxes: Emit radio waves at such a low frequency that they don't require federal licensing, the company says. PlanWireless cautions the reader that everyone's cell phone responds to either Cellular, PCS or Nextel's frequencies and these frequencies are all licensed. What the San Diego Union -Tribune writer, Mike Drummond, may have intended to say was that SPICE has "lower power" rather than "low frequency," thereby causing less radio frequency radiation than conventional cell sites. Littlefeet would do well to note that FCC Guidelines cover all base stations, regardless of frequency transmitted or power level. The San Diego Union -Tribune article goes on to say that a test is being conducted in the San Diego County City of Poway. Poway officials have allowed Littlefeet to put up dummy (non-functional) SPICE boxes on utility poles to see if the public can detect them. One can assume that, if the public doesn't see them, then it's acceptable to just require a building permit (no zoning) for each cell site. Editor's Note: The reasons that local governments issue zoning permits for cell sites go well beyond visibility and whether they can be seen or not. How cynical can we be to believe that what can't be seen doesn't need to be cleared for radio frequency radiation impacts? The good City of Poway might want to reconsider their "out of sight, out of mind" approach when the parents of children come forth to say "Not in my front yard" and "Next time, at least send me a notice, OK?" PlanWireless thinks "a cell site is a cell site is a cell site." ruousnea Dy Krelnes & Kreines, Inc., Consultants to Cities d Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax e-mail. mail@planMmiess.com - web site: httpJMnwv.planwireless.com Kreines & Kreines A California Corp. Phone 415 435-9214 ' Linda Moskowitz Fax 415 435-1522 `20195 Winston Loop I\ANW, Bend, OR 97701-8990 I I \I/ August 2 gu , 2000 58 Paseo Mirasol Dear Ms. Moskowitz: Tiburon, CA 94920 Thank you for your subscription to P1anWireless. The July 2000 issue is enclosed. Kreines & Kreines, Inc. is a wireless planning consulting firm working only for cities, towns, counties and public agencies. We do not work for the wireless industry or their consultants. The types of services we provide include: • Wireless planning workshops on wireless communication facilities for public officials/citizens. • Training for public agency staff in wireless communication facilities. • Preparation and review of ordinances regulating wireless communication facilities. • Preparation of wireless master plans/ telecommunications plans. • Review of wireless communication facility applications and application procedures. • Alternative site analysis including RF engineering. • Programs for leasing public property for wireless communication facilities. • Identification of taxable assets at wireless communications sites, including "towers." • Reconciliation of wireless databases among planning departments, building departments and assessor/ appraiser's departments. A city, town or county can recover all of the funds paid to Kreines & Kreines for the above types of services by charging application fees to the wireless industry applicants before that local government. Attached please find a statement of qualifications and a fact sheet. Sincerely, Ted Kreines, AICP President enclosure www.planwirelose.com Facts About Personal Wireless Service Facilities The following are some facts about personal wireless service facilities that the wireless carriers may not be telling you. • Personal wireless service facilities can be provided in your community without the use of "towers." Kreines & Kreines, Inc. can tell you how personal wireless service facilities can be deployed in your community without tall "towers." • The Federal Communications Commission (FCC) has licensed hundreds of carriers to provide personal wireless service facilities in the U.S. through an auction process that raised billions of dollars for the federal government. The FCC has plans for many more auctions. Kreines & Kreines, Inc. can estimate how many of these carriers may want to install personal wireless service facilities in your community. • The Telecommunications Act of 1996 preserved local zoning authority for cities and counties throughout the U.S. Kreines & Kreines, Inc. will show you how your city or county can plan for (and profit from) the coming revolution in personal wireless service facilities. • The Telecommunications Act of 1996 required the FCC to prepare guidelines for radio frequency radiation (RFR). Kreines & Kreines, Inc. will show you how your community can ensure that the personal wireless service facilities in your community will meet these guidelines. • Cities and counties can deal with health and safety issues resulting from personal wireless service facilities. The FCC does not pre-empt you from obtaining data and Kreines & Kreines, Inc. can show you how. • Your city or county can enact a moratorium on the approval of personal wireless service facilities to give your community time to plan. Call Kreines & Kreines, Inc. to find out about moratoria. • Your city or county can deny an application for personal wireless service facilities. Kreines & Kreines, Inc. can show you what is required for a denial. Most successful carrier lawsuits are over improper denials. • Your city or county can recover all of the money it spends on planning for and permitting personal wireless service facilities in your community (including the cost of consultants). Kreines & Kreines, Inc. prepares cost recovery plans that show your jurisdiction how it can be reimbursed. Kreines & Kreines, Inc. can provide your jurisdiction or agency with the information necessary to start planning (and stop reacting). 191 Kreines & Kreines, Inc., 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 e-mail: mail -Planwireless.com - web site: http:/rWww.planwireless.com Qualifications of Kreines & Kreines, Inc. The following is a list of telecommunications projects currently underway or recently completed by Kreines & Kreines, Inc. Preparation of Wireless Master Plans & Other Wireless Planning Documents • Wireless Guidance Package, City of Detroit, Michigan. • Wireless Guidance Package, Mid-America Regional Council (MARC), Kansas City, Missouri (a regional agency composed of 114 cities and 8 counties). • Wireless Master Plan, Alachua County, Florida. • Wireless Master Plan, City of Brentwood, Tennessee. • Wireless Master Plan, City of Irving, Texas. • Wireless Master Plan, City of Lakeland, Florida. • Wireless Master Plan, City of Wichita/Sedgwick County, Kansas. • Wireless Master Plan, Town of Smithtown, New York. • Wireless Planning Report, City of Bothell, Washington. • Wireless Planning Report, City of Santa Monica, California. • Wireless Policy, Village of Morton, Illinois. • Wireless Strategy, Village of Winnetka, Illinois. • Wireless Telecommunications Facility Business Plan, City of Fridley, Minnesota. • Wireless Telecommunications Policy, Albemarle County, Virginia. • Draft Wireless Master Plan, City of Medina, Washington. • Comprehensive Study of Suitable Sites for Personal Wireless Service Facilities, Town of Durham, New Hampshire. • Guidelines for Review & Approval of Antenna Arrays on Monopoles, City of Scottsdale, Arizona. • Siting Criteria, Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • Siting Criteria, City of Gloucester, Massachusetts. Preparation &Review of Telecommunications Ordinances • Alachua County, Florida • City of Altamonte Springs, Florida • City of Bothell, Washington • City of Gloucester, Massachusetts • City of Houston, Texas • City of Kissimmee, Florida • City of Ocoee, Florida • City of Pacifica, California • City of Paradise Valley, Arizona • City of Port Townsend, Washington • City of Puyallup, Washington • City of Shoreline, Washington • City of West University Place, Texas • Fauquier County, Virginia (for the Piedmont Environmental Council) Kreines & Kreines, Inc., 58 Paseo Miresol, Tiburon, CA 94920, (415) 435-9214 e-mail., maiMplanwireless.com - web site: http://Www.planwi 1ess.com • James City/County, York County and the City of Williamsburg, Virginia (in + association with an engineering firm) • Johnson County, Kansas • Model Bylaw (Ordinance) Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • San Juan County, Washington • Santa Barbara County, California • Town of Durham, New Hampshire • Town of Smithtown, New York • Village of Waite Hill, Ohio Expert Witness • For the Town of Durham, New Hampshire in Sprint Spectrum v. T071m of Durham. • For the Town of Sturbridge, Massachusetts in Sprint Spectrum v. Town of Sturbridge. • For`the Town of Reading, Massachusetts in Sprint Spectrum v. TOum of Reading. • For the Town of Douglas, Massachusetts in Bell Atlantic v. Toum of Douglas. • For the Village of Ridgewood, New Jersey in Sprint Spectrum v. Village of Ridgez000d. Preparation of Telecommunication Facilities Applications, Review of Telecommunications Facilities Applications & Alternatives Analysis • Preparation of application for a co -located personal wireless service facility on a water tank for the Town of Durham, New Hampshire. • Review of AirTouch Application for the City of Scottsdale, Arizona. • Review of CellNet AMR system to be deployed by Puget Sound Energy, a public utility, for the City of Puyallup, Washington. • Review of Cellular & PCS Applications for the City of Medina, Washington. • Review of Cellular One Application for the Village of Oak Brook, Illinois. • Review of ESMR Cell Site for Johnson County, Kansas. • Review of Orange County, California 800 MHz trunked public safety system. City of Cerritos, California. • Review of Ram Mobile Data Cell Site for the Wheaton Park District, Illinois. • Review of US Cellular Application for the Town of Dublin, New Hampshire. • Review of US West New Vector application for the City of Lacey, Washington. Workshops & Training for Cities, Counties, State Agencies & Regional Agencies on Planning for Telecommunications • Alachua County, Florida. • Albemarle County, Virginia. • Appalachian Trail Conference (an organization responsible for management and protection of the Appalachian Trail, extending 2,100 miles from Maine to Georgia). • Astoria, Oregon • Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • City of Bothell, Washington. • City of Brentwood, Tennessee. • City of Daly City, California. • City of Dana Point, California. Kreines & Kreines, Inc., 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 e-mail: maila-planwireless.com - web site: http:/Mvww.planwireless.com • City of Detroit, Michigan. • City of Gloucester, Massachusetts. • City of Houston, Texas. • City of Irving, Texas. • City of Lake Forest, California. • City of Lakeland, Florida. • City of Pacifica, California. • City of Paradise Valley, Arizona. • City of Port Townsend, Washington. • City of West University Place, Texas. • City of Wichita/Sedgwick County, Kansas. • Hernando County, Florida • Indian River County, Florida. • James City/County, York County and the City of Williamsburg, Virginia. • King County, Washington. • Lake County Council of Governments, Painesville, Ohio (a regional agency composed of 11 jurisdictions). • Miami Valley Cable Council (a regional agency composed of 9 cities and 16 affiliates). • Mid-America Regional Council (MARC), Kansas City, Missouri (a regional agency composed of 114 cities and 8 counties). • Pennsylvania Planning Association. • Piedmont Environmental Council, Virginia. • San Juan County, Washington. • State of New Hampshire, Office of State Planning. • Town of East Hampton, New York. • Town of Smithtown, New York. • Town of Weston, Massachusetts. Review of Personal Wireless Service Facility Leases • Puyallup Water District, Washington. Franchising & Revenue Potential from Telecommunications • Alachua County, Florida. • City of Ocoee, Florida. • City of Puyallup, Washington • Town of East Hampton, New York Speaker/Moderator on Telecommunications Planning for Cities & Counties at Major Conferences Ted Kreines, AICP, President of Kreines & Kreines, Inc. has presented at the following conferences: • Virginia Local Government Attorneys, Fall 2000 Conference (September 2000). • National PCIA, Site Owners and Managers Association conference in San Antonio in San Antonio, 1999. • National CTIA (Cellular Telecommunications Industry Association) conference in Atlanta, 1998. ® Kreines & Kreines, Inc., 58 Paseo Miresol, Tiburon, CA 94920, (415) 435-9214 e-mail. maidDolanwireless. com -- web site: http:/tivww.planwireless.com • NATOA (National Association of Telecommunications Officials and Administrators) conferences in St. Louis and Tacoma, 1997. • TATOA (Texas Association of Telecommunications Officials and Administrators) conference in San Antonio, 1997. • State of New Hampshire Planning and Zoning Conference, 1997. • "Wireless Buildout" conferences in San Diego, Chicago, Colorado Springs, San Antonio and San Francisco, 1996-97. • North Central Texas Council of Governments (NCTCOG) in Dallas, 1996. • CTIA (Cellular Telecommunications Industry Association) conference in New Orleans, 1996. Telecommuting Studies • Telecommuting Study, San Diego Association of Governments (SANDAG), San Diego County, California. Other Telecommunications Projects • Publisher of PlanWireless (formerly Wireless Update), a monthly newsletter sent free to thousands of cities and counties throughout the United States on telecommunications planning. Articles on Telecommunications Planning for National or Statewide Publications Kreines & Kreines, Inc. has provided articles on wireless planning for magazines published by the following organizations: • New York State Association of Towns. • League of Oregon Cities. • Missouri Municipal League. • West Virginia Municipal League. • Kansas Municipal League. • American Planning Association. • International City/County Managers Association. Awards for Telecommunications Projects • The City of Lakeland Wireless Master Plan has received an Award for Excellence from the Florida American Planning Association. • The Siting Criteria and Model Bylaw (Ordinance) prepared for the Cape Cod Commission have been nominated for an American Planning Association award at the national level and an American Planning Association award from the State of Massachusetts. Kreines & Kreines, Inc., 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 e-mail. mail-planwireless.com - web site: http:/Avww.planwireless.com Kreines & Kreines, Inc. Wireless Planning Clients Counties, Cities & Arizona. Cities of Paradise Valley & Scottsdale. Towns California. Cities of Cerritos, Daly City, Dana Point, Lake Forest, Pacifica, Santa Monica & County of Santa Barbara. Florida. Cities of Altamonte Springs, Ocoee, Lakeland & Kissimmee. Counties of Alachua, Hernando & Indian River. Illinois. Villages of Morton, Winnetka & Oak Brook. Kansas. City of Wichita, Sedgwick County & Johnson County. Massachusetts. Town of Weston & City of Gloucester. Michigan. City of Detroit. Minnesota. City of Fridley. New Hampshire. Towns of Dublin & Durham. New York. Town of East Hampton & Town of Smithtown. Ohio. Village of Waite Hill. Oregon. City of Astoria. Tennessee. City of Brentwood. Texas. Cities of Houston, Irving & West University Place. Virginia. City of Williamsburg. Counties of Albemarle, James City/County & York. Washington. Cities of Port Townsend, Lacey, Shoreline, Medina, Bothell & Puyallup. Counties of King & San Juan. National, State & Appalachian Trail Conference. The Appalachian Trail Conference is Regional an organization responsible for management and protection of the Agencies Appalachian Trail, extending from Maine to Georgia. Kansas & Missouri. Mid-America Regional Council (composed of 114 cities and 8 counties). Massachusetts. Cape Cod Commission (composed of 15 towns). National Association of Telecommunications Officials and Administrators. New Hampshire. Office of State Planning. Ohio. Miami Valley Cable Council (composed of nine cities and 16 affiliates) & Lake County Council of Governments (composed of 11 jurisdictions). Pennsylvania. Pennsylvania Planning Association. Texas. Texas Association of Telecommunications Officials and Administrators & North Central Texas Council of Governments. Virginia. Piedmont Environmental Council & Citizens for Fauquier County. Special Districts Illinois. Wheaton Park District. Washington. Puyallup Wafter District. Kreines 6 Kreines, Inc., 58 Paseo Miresol, Tiburon, CA 94920, (415) 435-9214 e-mail. mail(cDolanwireless.com - web site: http:/Mvww.planwireless.com Here are some letters of recommendation from Kreines & Kreines, Inc. clients. TOWN OF DURHAM `} 15 NEWA44RKET ROAD DURHAM, NH 03824-2898 Tel: 6031868.5571 Far: 603/868-5572 Laurence Shaft Town Administrator Bruce R Brapdon Town Conrail Chair Town of Durham 15 Newmarket Road Durham, NH 03824 Mardi 17. 190 Mr. Ted Krol es, President Krenes 8 Krieres 58 Paseo Mirssci Tiburon, Ca 94920 Dear Ted Thanks for your note. Larry and I wanted to write a nols to thank you for all the fine work you haw done for the tam. lisping the Planning Board write the telecommunication ordinance and providing all the anc lorry Momation was a feat itself, but you ran several public reformation meetings and were mkfmp available In between. Getting approval of the Planning Board. Town Cound and the pudic was no easy task Than your two with tie suit was equally as da(altlrlp. The guidance You Saw was crucial in helping us push back at the appropyla *no$ with SpW. Finally. your continued anon to hoo pet the necessary, approvals for the asoond site to settle to sill have been fist rite. Vhen we clad In • sght park oar needed plans when you were away at a c nlaranos, you had us tax Sre data to you which You n tum updated and gct the ergs Bens in GHomfa to return the updated plans back to us the next morning. That type of continuous avallabWly, b nvalwble. To sun 6p, thanks. Your performance on al levels hes saved what was internally and exlemaly a disaster, and tuned it into a functional solution. gnoelsy,.. , B R Brapdcrr own Could Chat S AdnkiNstraw FRIDLEY MUNICIPAL CENTER • 6171 VNTVE SITY AVE N.E FRIDLEY. MN 53173 • (612) 571-3150 • FAX (612) 771.1767 October 22, 1998 To Whom it May Concern: Kreines and Kral es, Inc., was retained by the Cly of Fridley in September 1997, to research potential sites for wifeless fadlias and to research the feasibility of a Yslecommuni, k oufhorly' for wireless services. The Krolnes form also retained two other consultants es sub4onlrodors. I found"work completed by qts consulting firm It, be exemplary. The consultant team. lid by Ted Krelres, made a consorted effort to team everything about the community and the wwyelen nlrastnrclure in the Min espolls/SL Paul area. They completed a thorough review of all Nes and Wervlewed appropriate municipal staff. They also mat with local providers and established a good workup relationship with them. Ted Krenes especially was extremely helpful and available during the course of the contract. NI written material was prepared on a tknely basis and Ted was salable for questions at any time. The task that was set out for Krebs was unusual. Krolnes was proactive and kfentlled options for the Cly lo consider In order to gel the Job done as opposed to saying 'no you can't do it K another issue aroes regarding the telsoommunication issue, I would not hesitate in retaining the Krakes and Krelnes firm span to assist the City of Fridley. I highly mcormend they servlow and am available b speak directly to those who are Interested In fetankg them. Sincerely. Barbara Dacy, NCP Community Development Director (612) 572-3590 Please let us know if you would like copies of additional letters of recommendation. k- ell Slayer I rlvllle Nage 1 of l r,.. • _ Vora bog Kirk Wines has been the Medina City Attorney for over twenty-five years. As ��'�� �} such, he was unwittingly drawn into his first cell tower disputes. The first case filed under the Telecommunications Act of 1996 was against the City of Medina, Washington for passing a moratorium on cell sites within the city. Kirk successfully defended that action and a subsequent series of actions filed in Federal Court by Sprint Spectrum alleging that the city was obligated to allow Sprint to erect a 100 foot monopole tower with a ring of panel antennas at the top within the midst of a densely developed neighborhood For more information on this particular case, see The Medina Experience. As a result of the successful conclusion of the above referenced matters, Kirk has represented a number of private citizens and neighborhood groups fighting to protect their property values by keeping unsightly cell towers -out of their neighborhoods. He has participated as a witness and an attorney before hearing examiners throughout the Greater Seattle / King County area. He has spoken at seminars for city officials, city attorneys, attorneys in general practice and at a convention for one of the major provider's siting employees. He has represented neighborhood groups in state courts. He has also testified and/or lobbied on wireless issues before the King County Council and the Washington State Legislature. The Law Offices of Kirk R. Wines 210 Crockett Street, Seattle WA 981091 ph: 206/301-95581 fax: 206/213-0021 email: kidwAgellslaver.00m Ilttp.// W W W.CCllsluycl.. WIII/ a/ //VV A FEW LESSONS LEARNED ALONG THE WAY City Attorney Involvement In my opinion, you must be involved. Without your help, your citizens will not be playing on a even playing field. All of the carriers have full time staff and/or consultants working on siting their facilities. I attended one of the major carrier's convention this June. People who were already well trained received two days of intense training. Local Jurisdictions across the country are losing cases in Federal Court due to their failure to support denials with an adequate record. Your citizens cannot prepare an adequate record without coaching from some source. Prepare an Adequate Record When the provider comes to the hearing, the show that it puts on is designed to do more than to convince�the hearing examiner or city board making the decisions. They are building a record. Typically they will submit a study from a qualified appraiser stating that a 152 foot tower will have absolutely no negative.impact on property values in the neighborhood. If your record consists of the testimony of concerned neighbors that they believe this tower will affect property values, you will not be able to support a denial. Fortunately, we knew In Medina that a 100 foot lattice tower was never going to be approved and we knew that Sprint was going to sue us when we denied their request for it. We alerted our citizens on the need for an adequate record. They presented testimony, primarily that of realtors who were active within the City, that the proposed tower would have a profoundly negative affect on the values of properties In the Immediate vicinity. Some of these concerned citizens were attomeys. At our suggestion, they critiqued the appraisal report which had been submitted it Sprint. One of our citizens visited every comparable cited by the appraiser and was able to testify that you could not see a tower from any of these properties. Run a Proper Hearing Unless you are fortunate enough to be using hearing examiners, you need to coach the decision making body. Have them do a comprehensive conflict of interest analysis on the record and invite the audience to make challenges. After consulting with MRSC, we advised the Planning Commission members that the fact that they may own shares of telecommunications stocks in their retirement funds or in mutual funds would not constitute a conflict of interest. We put this on the record too. Swear in your witnesses and tell people that they have the right to cross examine witnesses. Of Recordings and Off= -hand Remarks It never hurts to remind your council and your commissions that their meetings are recorded, that these records are public documents and that anyone can obtain copies. As I mentioned earlier, Sprint was obtaining copies of all of our council meetings and transcribing them. Fortunately, the only really stupid remarks they caught were made by the City Attorney. Although it was a little embarrassing to see some of this stuff in print, I was able to point out that I was not the decision maker and what I thought didn't matter. They even quoted from one my epistles that MRSC put on the Internet. Any of the federal judges who do not believe in the TCA's preservation of local zoning authority will rely on off -hand statements by decision makers such as "I do not know why we have to deal with any more of these applications." Forget Common Sense To your citizens, to your decisions makers and to me, it is only common sense that a 100 foot lattice tower which is 80 feet from the nearest residence and which is visible from the principal living areas of scores of houses which enjoy magnificent views of Lake Washington or Mount Rainier is going to negatively affect property values and the enjoyment of life. Unfortunately, many Federal District Court judges have proven that they have no respect for common sense. They are sufficiently enamored with the Importance of developing a wireless Infrastructure that they will accept the Inherently unbelievable testimony of the Industry paid experts that, because they are going to paint this lattice tower blue, you will not even notice it when you are looking at the sunset. Fortunately, we have one of the best Federal benches in the nation. Some of the things happening in other states is down right scary. Do Not Accept the Providers' Statements of Their Needs or Capabilities At Face Value The providers told Medina that they could not put their support cabinets underground because of the water table. When we approved a second site for Sprint but limited it to 35 feet in overall height, it decided to go across the street and obtain a taller facility in Clyde Hill. Among your materials is a picture of the top of a mostly underground vault for their support equipment. Even after Sprint had launched its system, it continued to maintain that it needed a 100 foot tower in order to serve Medina City Hall. They did not get the tower and the reception at City Hall is just fine. Get Informed and Develop Resources If your city does not receive Ted Kreines' publication, "Plan Wireless" call him at (415)435-9214. In addition to talking about some of the more significant litigation on wireless issues, Ted talks about planning strategies and does his best to keep us up to date on the developing technology. Consider hiring a radio frequency engineer, if you can find one that is not already working for the industry. We use one to test actual radio frequency emissions for compliance with the FCC's standards. We will probably use one in the future to help us analyze applications. There is a lot of useful information on the Internet. In addition to the MRSC site, try . This site has a built -In search engine for its own articles and even for articles in other publications. Get To Know the Technology But Do Not Let It Dictate the Decisions Included in your packets are examples of stealth technology which we will discuss later. Among the materials that were handed out today there is a copy of photographs of a Nokia unit. It is a self-contained rec T-Tng —ndTra ssmit(ing antenna which can be mounteT2`Qfieefup on a�e_ep_ one pole or closer to the grow . f ana others -like iffiavethie capachy, of eliminating the need for towers. The Industry will argue vociferously witFi*ttiTs—ecause it R a"iot easier for them to put a 150 foot monopole up every 5 to_ 10 _ -- miles th 11 _milesrtha11 it t.5 to p M e-otth8W—W v ry 2 m es. ven ougFi iffs fun, the -bottom line is that we need to get the message across fli-at we doni care a the Industry's technological desires. Our job is to preserve our communities and their job is to design a way of meeting their requirements that allows us to do that. Industry Myths Information - The Real Revolution There is a true revolution underway In the information industry. More and more people are accessing the Internet. The amount of information, and misinformation, available is almost incomprehensible. Due to the amount of interest, traditional information service providers are entering a field once occupied solely by "geeks". AT&T has purchased TCI Cablevision. It is my understanding that AT&T is not particularly interested in providing cable television services. It has spent a small fortune in order to have a line into many of our residences whereby it can provide high speed Internet access and, potentially, other information services. In an upscale local neighborhood where they are fighting an ugly wireless monopole, about half of the homes are using Digital Subscriber Line technology which is supplied through the regular telephone line. They are all using this to access the Internet. The Digital Subscriber Lines are capable of handling information at speeds greater than currently available modems can handle. Many of the residents of this neighborhood telecommute. One of them, a Microsoft employee, tells me that he can access the Internet more quiokiy from home than from the Microsoft campus, because he does not have to share access with his fellow employees. Soon new hardwired services will be introduced. This technology will further increase the speed at which the Internet can be accessed and the speed with which satellite or home computers can access central computers any place. The Federal Telecommunications Act of 1996 (TCA) did more than unleash a bevy of tower hungry wireless providers on the nation. TCA promoted competition among Information providers. For example, the local telephone company will be required to provide access to competing telephone companies, giving us all a greater selection of service providers. Wireless - The Pseudo Revolution Wireless telephones are great. They are convenient and fun. With the new digital technology, the quality is comparable to any hardwired telephone. For just a few dollars more, you can receive faxes and text messages. If you are associated with a business that avails itself of such services, you can call your fellow employees at the touch of a button. Your wireless telephone would be invaluable if you broke down on a lonely stretch of road. What wireless is not, is revolutionary. The process of "educating" lawmakers at all levels, the wireless industry has done a tremendous job of convincing them that it is the cure for most modem day plagues. In response, some jurisdictions, such as King County, Washington are allowing the erection of towers in pristine, rural environments without so much as the opportunity to explore mitigation measures previously available through the Conditional Use Permit process. Unfortunately, what the wireless Industry will provide, in return for dominating our landscape with towers, is mere convenience. Myth #1- Reduction of the Federal Deficit. On the Federal level, our lawmakers were sold on the idea that through auctioning slices of the radio frequency spectrum, they would raise billions of dollars to reduce the federal deficit. Although billions of dollars were bid, only a small percentage of the amounts bid have actually been paid in. The providers appear to have now convinced at least the administrators of the program that their services are so essential to a strong economy the government is better off letting them use their limited funds for deployment. Myth #2 - Telecommuting. Somehow the wireless providers have convinced lawmakers on all levels that wireless telephones promote telecommuting, thereby decreasing congestion and wear and tear on roadways. To suggest that wireless telephones promote telecommuting and the utilization of home offices, however, flies in the face of logic. Cellular phones have as their primary purpose allowing people to use their vehicles while still being able to carry on voice communications. All of the new PCS providers are concentrating their initial deployment antennas on major transportation corridors. Providers are flocking to Medina, Hunts Point and Clyde Hill in order to serve the 520 traffic. They know they will get more usage by the people who are trapped on the 520 Bridge calling home to delay dinner than by the people who stayed home and worked in their office all day. Hardly anyone In a home or home office uses their wireless phone instead of a regular phone. It is just too expensive. Ask me. I have been there. At one time I had an entirely wireless home office. My PC had (and still does have) a wireless modem. I relied entirely on a Sprint PCS phone that I had purchased originally to prove that Sprint had coverage throughout Medina without the need for a 100 foot tower. I broke down and bought a hardwired phone when my monthly payments to Sprint started to exceed the amount of rent that 1 was paying. Myth #3 - Seamless Coverage. The industry providers all speak of their federal mandate to provide seamless coverage. How else can they justify wanting to raise a 150 foot, industrial appearing, monopole with a ring of panel antennas in the middle of a rural residential neighborhood? In fact, the licenses which they have obtained set coverage goals that are much more realistic and much less burdensome than the industry would have you believe. Although there are some variations, a typical license requires a provider to supply one-third of the population in a major trading with coverage within five years, another one-third within ten years and most of the population within fifteen years. Based on recent history, even these objectives are unlikely to be enforced by the FCC. What federal agency would dare to revoke a PCS providers license when It is providing an essential service to the residents of the Greater Seattle Area merely a few hundred homes in the Cascade foothills do not have the same service. Myth #4 - Tall Towers. Many local jurisdictions, i.e. King County, assume that if a provider says it needs a 150 foot tower and submits coverage maps in support of its contention, this is the truth. For some reason they continue to believe this despite overwhelming evidence to the contrary. Two examples should suffice. On Vashon Island, Sprint Spectrum said It had to have a 150 foot tower with a ring of panel antennas at the top in order to provide services to the people in south Vashon. In order to "soften" the industrial appearance of this tower in a neighborhood where no other industrial uses had been or would be allowed, the county required Sprint to relocate the tower closer to the center of the property where it would be further from the neighbors and sheltered by additional trees. Since this would put the tower near the co -applicant landowner's residence where he would have to suffer from its effects, he refused to agree. Neighborhood residents appealed the decision to allow the 152 foot tower -anywhere on the property. Sprint appealed the requirement to move the tower to the Interior. On the day that the appeals were scheduled to be heard by a hearing examiner, Sprint came in and said that it could create the same "softening" by reducing the height of the tower from 152 to 120 feet. No one from the County had the temerity to ask whether, since they had apparently not needed all 152 feet they originally said was essential, some adequate level of service could be provided at 100, 80 or even 50 feet. Sprint now has a 120 foot tower which dominates the landscape. In Medina, sprint stated that it needed a 100 foot lattice work tower in the midst of a densely developed residential neighborhood. Its stated objective was to serve the residents of the City. When the Medina Planning Commission said no, Sprint submitted a request for reconsideration. Suddenly, It could provide adequate service at a 70 foot level. We demanded testing at the 50 and 60 foot level. Lo and behold, adequate service could be provided as low as 50 feet but Sprint would not modify its application to this level. When the Planning Commission again said no, Sprint appealed the denial to the City Council. As part of its appeal documents, It stated that it was now back to demanding the 100 foot level. While the appeal to the Council was awaiting Its hearing, Sprint also filed an action In Federal Court stating that the City's failure to allow It a 100 foot lattice work tower was delaying completion of its seamless web of coverage and its ability to launch services at all In the Seattle major trading area. The court file Is loaded with declarations from Sprint property managers, engineers and others that this site was absolutely essential and that Sprint was losing millions of dollars per month by not being able to launch its service. Fortunately, before the matter went to court, Sprint did launch its service. I bought my first cell phone the next day and took it to Medina and then spent several hours driving from one end of the City to the other calling all my friends and telling them what a wonderful service Sprint had and how nice it was that there was coverage everywhere in the City of Medina. A few weeks after I filed a declaration to this effect, Sprint withdrew Its lawsuit. Providers like tall towers for initial deployment. At high power levels, they cover a lot of territory. They are referred to as "coverage" towers. Eventually, however, new "capacity" towers will need to be added because the tall, high power towers will try to communicate with two or more towers at one time, causing dropped calls. To avoid this, the providers must either lower the antennas or reduce the power. Why not demand that they put in more shorter towers now, rather than later? Myth #S - We Can't Collocate. In most situations, collocation would seem to make sense for everyone concerned. Adding antennas to an existing monopole must surely be less expensive than erecting your own monopole. The permitting process ought to be easier. Even though adding additional antennas to an existing monopole increases Its visual impact, it is still of less impact than having two towers side by side or in the same neighborhood. For some reason however, the amount of collocation applications is exceedingly small. It Is becoming common to see in an application for a new tower a statement to the effect that we tried to collocate but we could not. We could not because the existing tower owner did not want us. We could not because the existing tower is not tall enough. We could not because the existing tower is a half -mile away from our ideal site, etc. In fact, all of the major wireless providers have collocation agreements with all the other major providers. The essence of these agreements Is if we collocate at one of your sites, we will let you collocate at one of our sites. When a wireless provider seeks to develop its system, it generates search rings up to one or two miles in diameter. It is only after it finds a willing landowner somewhere within the search ring that this becomes the only site that will work. Myth #6 - No Negative Affect On Property Values. �i Representatives of the industry generally come to public hearings with reports, from bona fide appraisal firms, to substantiate their claim that cell towers have no negative affect on property values. They have won many cases in Federal court because they have submitted reports from experts while opponents to the site have testified, as Individuals, that they are afraid that the towers will bring down their property values. The attorneys for the industry have had little difficulty in convincing most courts that the opponents' testimony is pure speculation and does not provide the evidence necessary to support a decision denying the tower. In Medina, when we were opposing the 100 foot Sprint tower, we retained a local appraisal firm to conduct a study to show that property values were adversely affected. At the last moment, the company backed out of the contract due to conflict of interest. They told us that one of their appraisers was doing a study for the industry. It turned out to be a study commissioned by Sprint Spectrum to be submitted In the record before Medina's Planning Commission. Sure enough -- it showed no decrease in property values. Since it involved a currently existing lattice tower in Medina used for a microwave dish, we were able to send one of concerned citizens to all of the homes used as comparables and she testified at the hearing that you could not even see the tower from any of these homes. Because it was too late to commission another study, we brought In all of the real estate agents and brokers who were active in the community to testify that a 100 foot lattice tower would have a negative affect on surrounding property values. In addition, the Planning Commission made a finding that just common sense dictated that a home with a beautiful view of Mt. Rainier and Lake Washington would be adversely affected by imposing any significant portion of a lattice tower on this7view. Hopefully, non -industry appraisals will be available in the near future showing that tall towers have a negative affect on property values. In the meantime, until you have clients with sufficient resources, you may have to go to extra lengths to qualify local home owners as experts to as to the value of their property and you may have to call real estate agents whose testimony will largely be based on their experience in trying to sell homes located next to other objectionable facilities, such as high voltage power lines. -- Myth #7 - We All Need Our Own Towers. j Cellular providers are more than capable today of moving traffic along each other's tra8ic. Cellular phones work not suprisingly based upon a system of cells. They hand the traffic from one cell to the next as your car moves in and out of the cell's range. Existing wireless phone companies already have agreements amongst each other to cover the other's traffic. In other words, if you move out of one carrier's area but into an area where another carrier has coverage, your call can be handed off and carried by the other carrier until you move back into the initial carrier's range. Why not seek to meet growth and future services demand without having to build unnecessary towers by fostering a dialog among the cellular providers and encouraging, or requiring, them to share in these handoffs. This will probably happen at some time in the future. Why not make it happen now before every residence has a cell tower in its back yard. The Law Offices of Kirk R Wines 210 Crockett Street, Seattle WA 98109 1 ph: 206/301-9558 1 fax: 206/213-0021 Case Studies No effort has been made to assemble all of the cases citing the Telecommunications Act relating to wireless antenna facilities. Most of the decisions have come out of federal district courts throughout the country. A few of the most interesting ones follow: Sprint Spectrum LP. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash, 1996). My favorite case. Basically decided that a moratorium was a reasonable land use tool which did not violate any of the prohibitions set forth in Section 704 of TCA (47 USC Section 332(c)(7)), including prohibitions against discriminating g providers of functionally equivalent service and the prohibition of personal wireless services. As far as I know, this was the first case filed and the first decision issued under TCA. AT&T Wireless PCS v. City Council of the City of Virginia Beach (Citation unavailable, a copy of the entire decision can be located at www.millervaneaton.com). The U.S. Fourth Circuit Court of Appeals overruled a district court decision which had ordered Virginia Beach to approve applications for two 135 -foot cell towers. The court held that the city did not discriminate amongst functionally equivalent service providers because the tower applications involved four providers, two digital and two analog, and the denial of the application affected everyone the same. The court held that the carriers were not entitled to any relief from any incidental discrimination because the denial rested on traditional bases of zoning regulations, preserving the character of a neighborhood and avoiding aesthetic blight and that such a denial was reasonable. The court was willing to overlook a remark from one Council person that residents were satisfied with current wireless service. As the court pointed out, no one testified that they like analog service better than digital, merely that they thought 135 foot towers should be in the nearby commercial zone and not in the midst of a residential area. The court held that the denial did not violate the TCA mandate that regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." It held this mandate only applies to blanket prohibitions and general bans or policies, not to individual zoning decisions. The Fourth Circuit also disagreed with the applicants' contention that the decision was not "in writing and supported by substantial evidence contained in a written record," as TCA Section 704 requires. The court found that the writing requirement was satisfied by the condensed minutes of the meeting and by stamping a letter from the planning commission describing the application with the word "DENIED." The court did not agree that a written decision required findings of fact and an explanation of the decision. The court held that there was sufficient evidence in the record to support the decision based upon testimony of various residents opposed to the facilities and several petitions opposing the location. Although the court held that the providers may have produced the best evidence, expert testimony of the need for the facilities and the minimal impact on the community, the testimony in opposition provided far more than a mere scintilla of evidence. Especially interesting was the court's observation that since the decision was made by a legislative body, it was only natural and appropriate to assume that the legislators would give great weight to the opinions of their constituents. Despite the holding in this case that it Is not necessary, I wouldst ill recommend that any jurisdiction denying a permit prepare a written decision. This is an excellent opportunity to show that our legislative bodies make their decisions based on reason and not emotion and to show why the applicants' evidence missed the mark. Another interesting although irrelevant fact deriving from the decision is that the two towers were going to be paying a local church a combined rent of $60,000 per year. BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923 (N.D. Ga. 19%). This case Is an interesting lesson in how not to conduct a public hearing. The county commissioners gave the proponents and opponents five minutes each to explain their positions, then they summarily denied the tower. (Reading between the lines, the application was so unreasonable the commissioners did not feel it justified much consideration.) You have to realize that wireless siting professionals are well schooled in what they do. I attended a conference put on by one of the providers in New Orleans last year. They brought in their siting people from around the country and spent several days discussing cases like Gwinnett County and training their people how to prepare a record. In Gwinnett County the provider was able to build a complete record during its five minutes because everything it needed to support its position was in writing. The opponent had one spokesperson talk about his fears that this ugly tower would reduce property values. The district court took one look at the expert testimony on one side and the conjecture on the other and ordered the county to issue the permit. It 0d not even consider remanding the matter to the county to give it the opportunity to develop a proper record and/or appropriate written decision. Many federal district courts around the country have followed Gwinnett County, including the summary form of relief which was granted. I am only aware of one decision, by Judge Zilly of the local federal district court, which remanded a decision to a board of county commissioners to allow the board the opportunity to supplement an otherwise inadequate decision. Cellco Partnership v. Haywood County, (Citation not available, Federal District Court for the Western District of North Carolina). This decision issued in June 1998, flies in the face of a frequently made industry assertion that Sprint v. Medina is no longer good law. The district court upheld the County's moratorium even though it was not adopted until 16 months after passage of The Telecommunications Act. It relied on the fact that, like in the City of Medina, the moratorium was a good faith effort to temporarily suspend issuance of permits while writing an adequate ordinance. The court cited the lack of any comprehensive ordinances in the county dealing with wireless facilities and the fact that the county worked with the providers in preparing a new ordinance. This is of Importance to many smaller cities throughout the country who may have heard rumors about what is going on but will not be approached by providers until they have first built out the major metropolitan areas. Century Cellunet v. Ferrysburg,1997 U.S. Dist. LEXIS 20553 (W.D. Mich.). In this case a federal district court affirmed the decision of a small city not to allow a 230 -foot tower. It agreed that there was an unreasonable "topple" danger because the tower was higher than the dimensions of the lot on which it sat. It also agreed that a 230 -foot tower with white flashing lights during the day and red lights at the top and middle was not in harmony with the existing city. Sprint Spectrum v. Town of Ontario Planning Board, (Citation unavailable, 1998 decision in U.S. District Court for New York). Sprint sued Ontario, New York, for denying three 150 foot towers. After nine hearings and preparation of an environmental Impact statement, the town found that the proposed towers would have a measurable and significant impact on property values and that the visual impact would be visible over a wide area. Sprint argued that It needed the three towers to provide the level of service that It deemed appropriate and that the town could not deny its application on the basis that a single tower could provide adequate service. The court disagreed citing the TCA's broad preservation of the local zoning authority, it stated that such zoning authority was paramount to Sprint's desired coverage levels. In other words, the desires of the industry do not supersede a community's ability_ to preserve its dare er. This is a fascinating field. Much remains to be done by municipal authorities and municipal attorneys and by interested citizens and their attorneys if we are to preserve the character of our neighborhoods. In addition to the court actions, the Industry is making every effort to obtain favorable legislation at the federal, state and local levels. It has petitioned the FCC to take away local zoning authority. It has asked ,! our state legislature to open up all rights-of-way to all telecommunications providers, potentially including wireless providers. This Is a very aggressive Industry. Although the investment in infrastructure by the industry is tremendous, so are the expected returns. Every effort needs to be made to work with the Industry, and to oppose it where necessary, in order to require the Industry to develop an infrastructure which does not necessarily impact property values or the quality of life. The Law Offices of Kirk R Wines 210 Crockett Street, Seattle WA 981091 ph: 206/301-96581 fax: 206/213-0021 More Tower Companies... ( You Can.Say."No"_to These Guys I[ Is "Adequate Service" An Adequate Standard?] [ Coverage. Problems Are Not Capacity. Problems ] [ Cell Sites.Earn More Than You Think) [ You Can Make Them Fit ] ( More Tower Companies... ] [ CoJocation Is Not Your Friend ] [ Don't Let PCS Carriers' Lawyers Cite Cellular Requirements ] Home Good News (Maybe)... Issues Thesa.mor4 than According to an article in the 9/20/99 issue of RCR, John Kelly, Chairman of the gel�u..laf Site Owner's and Manufacturer's Alliance (SOMA) went to Congress to "dispel Thit: ts.nat.�.kout notions that the number of towers will increase as the FCC licenses more Gar.phones Auel�tlo�lna.the wireless carriers ... " tnd�lnry �t,° Traukl�.wlth As P1anWireless reported back in its Aril 1999 issue, carriers are selling their p P S Wwwtt; "towers" to tower companies in order to raise much needed cash. The tower What Can Be companies, according to the RCR article, "have a built-in economic incentive to Done co -locate as many antennas as possible on towers." Since carriers aren't as fond News of building towers for co -location (or so the argument goes), the tower companies, are actually reducing the number of towers needed in the future by Newsletter consolidating carriers on new "build -to -suit" facilities. In the best case, this is About us counter -intuitive; in the worst case, it's nonsense. Companies don't start up to Contents build less of what they specialize in, they start up so they can build more. Search There are just a couple of flaws with Mr. Kelly's argument. First, as more and more tower companies enter the field, the number of "spec towers" increases. A spec tower is approved without carriers on it, but the builders don't worry. "If you build it, they will come," say the tower builders. However, most of the demand for new cell sites is not going to be where there are "towers" now or where local government is likely to allow them: most of the demand will be in or near residential areas. So, we're likely to see many new applications for towers in two kinds of places: either where we don't need them or near residential areas where homeowners don't want them. Mr. Kelly's assumption, it seems to PlanWireless, is that his expanding industry is going to be content with their existing inventories and maybe with building a few more towers in the rural areas to allow for growth. The fact is, once successful with all those assets, what's a company to do but build more of them? Now let's examine some of the reasons why tower companies are so successful that aren't being mentioned to Members of Congress: 11ttp://WWW.p1tt11W11eLC�J.tSUIIUIIIUIC_IUWCI L:UIIltUl1C� II1Ct1I1 1CWCI 1:a11U1t11_LUWCI�_�IlUtl),I11I11 //LO/VV Most of the tower companies' growth comes from new towers, not new space available on their existing assets. (See related story on "The Sky's the Limit. ") When a carrier with a brand name applies for a permit to build a tower, it may make immediate enemies among neighbors who oppose the tower. These "enemies" talk to others, go to neighborhood gatherings and make small talk at work, not to mention getting on the Internet and "flaming" the carrier wherever they can ... this is bad public relations for the carrier selling wireless services. Instead, the carriers hire tower companies to build the towers. Carriers will tell you that they can achieve capacity by adding equipment to an existing tower. But in the same issue of RCR, another industry expert opines "Without new wireless sites, carriers won't be able to ... meet the growing demand for their services." Greg Sweet, who consults to "build -to - suit" tower companies, says that his clients "are willing to build new networks and add to existing ones with little to no up -front costs to carriers." In other words, entire companies are devoted to building out entire networks, so should we expect a few more "towers," or should we expect a lot more? A tower is a cash cow four times over: First, new colocatees (later additions to existing towers) are considered "gravy" or "frosting" because they were not calculated in the original pro forma and are sometimes added without a permit (no approvals costs); second, improvements made without permits are often not taxed (how else would the assessor know if no permit is issued?); third, many times the lessor of the land lease for the tower has no idea of the new colocatees, so there is no sharing the wealth; fourth, a tower is a low-cost asset (minor depreciation) with rapidly increasing cash flow (new colocatees at much higher returns). Wall Street loves these companies because their earnings potential far exceeds their capital cost requirements. Now comes word that two large corporations are buying up the licenses of MADS (Multi -channel Multipoint Distribution Services). Those two giants are Sprint and MCI WorldCom and, in keeping with the merger mania of the day, these two will merge into the biggest provider of MMDS in the nation. Is it coincidence or do they know something that we don't? The answer is that NIlVDIDS will be used to bring broadband capabilities to residential users of Sprint's wireless (and other companies') services. At 2 -plus Gigahertz, the signal is not too far removed from PCS (1.9 GHz) and capable of traveling up to 30 miles ... if it is sent or received by a "tower." So, here comes the 'last mile" for getting into the single family house, but how many towers will be needed? Anyone who thinks that a house 30 miles from a tower can receive a dependable X vIDS signal would be dreaming: too much "clutter" including trees. But MMDS will need towers — a lot of them — and unless there's space on existing towers near residential areas, the tower companies have ten to 20 years 1111p://WWW.PidlIWII'CICJS.0UIIUIIlU1"C—tUWCI'—UUIIIdILLCS—Illt=I 1CWCT UCIIUItIl--IUWCI-� kllUfl),Iltlll //LO/VV of frantic growth ahead of them. Bottom line: if you think companies are flocking to the tower business because the nation will be building fewer towers, then P1anWireless has a bridge to sell you. PlanWireless believes the opposite will be the case: many more towers, many more local controversies, and many more cities and counties calling Kreines & Kreines, Inc. to ask "what can our local government do to work with these tower companies?" To learn_inure,. Subscribe to the Plurd3_ reless newslett;e>___: Ak Top of page [ Home ] [ Issues ] [ This Is More Than Cellular ) [ This Is Not About Car Phones ] [ The Troublo. With.'Towers" ] [ Lawsul{s ] [ Questioning the Industry) [What Can. Be pone) [ Nevr; ] [ Newsletter ] (About Ids I [ Srf?I]ta0tfl ] [ $eargh ] Kreines & Kreines, Inc. 58 Paseo Mirasol, Tiburon, CA 94920 Phone: (415) 435-9214 Fax: (415) 435-1522 e-mail: mail(&&;�la/r► 4reless.com 11LLP://WWW.PIUIIWII'CICSS.L:UI11/11101'C_LOWCI_UOIIIdIUCJ_IIICiUI LCWC1 UCIIUltll LOWC1'5 kltUll),IILIII //LO/VV Can We Deity Cellular Tbivers? Where the Courts are Leading Us, We Have No Choice... Never underestimate the power of myth. It drove the Greeks, who built the first democracies. It drove the discovery, and expansion of, America. And it drives the federal courts today in the way they decide cases dealing with Section 704 of the Telecommunications Act. Seamless? Not Very Likely The first paragraph of APT Pittsburgh Limited Parmership v. Pettit Township, one of the five or six really important Section 704 cases to date, reads as follows: APT holds a license from the Federal Communications Commission ("FCC") to provide wireless PCS service in the Pittsburgh Major Trading Area ("PMTA" ), which includes Penn Township. APT's FCC license requires it to provide "seamless" coverage in the PMTA. PCS systems are arranged around service "cells" that are anchored upon a communications facility that transmits and receives signals from PCS users traveling within the cell. The cells are arranged in a "honeycomb" pattern, each bordering the next so that users are passed between facilities as they travel. Communications facilities are essentially antennae mounted upon existing structures, new communications towers, and even include smaller units placed upon telephone and power line poles. Transmissions between communications facilities and mobile users operate on a "line of sight basis." As a result, antennae height becomes a crucial factor in areas with hilly or mountainous terrain and other physical obstructions. There are numerous errors in this opening salvo. Beginning from height is no more a crucial factor in hilly or mountainous terrain tl countrvs-3e. Go to Florida or proof. PCS is not a "line of sight" tee', see the antenna and vice versa, It is a "broadcast" more than a radio needs to see the wide The handset does not have to M or FM broadcast tower. Communications facilities are not "essentially antennae mounted upon" etc. PlanWireless uses "antennas" as the plural form of the conductor of radio frequency waves. The equipment at the base of the personal wireless service facility (the term used in the Telecommunications Act) is more important -than-'the- antennas because equipment limits capacity. As far as the "honeycomb" pattern is concerned, cells do not "fit" together neatly, they overlap. They must overlap to hand off the signal. PCS users do travel, and the main rationale for deploying cell sites along trafficways is for mobility. But, the real intent of PCS is to provide stationary service. And that stationary place more than any other is the home. The residential market is the real market for PCS. Finally, PCS licenses are not for "seamless" coverage. PCS licenses are for ten years and the FCC has two time -sensitive requirements: A PCS carrier must serve 1/3 of its market population by the end of five years from the date a license is issued. (For most A and B band carriers, that date will occur this month.) Illlp://WWW.pIIUlW1ICICS5.I:UIIUtilt: WUIIStUIU_8IUUIIUS LU UCIIy_l:CllUlttl_IUWOM ILIA //L.NVU • A PCS carrier must serve 2/3 of its market population by the end of ten years. That's it. There's nothing about geography, continuity or contiguity. A signal can start, stop, start up again, etc. as you travel along and there's no requirement against that. At the end of ten years, a PCS carrier can have up to 1/3 of its trade area population (not geographic area) unserved. So, when only 2/3 of a population must be served, there will be holes, deserts, wilderness, wastelands and otherwise unserved areas. Seamlessness, it would seem, is not a legal issue. It could be a corporate issue, because subscribers do not like dropped calls; but "seamless" is a myth bought into by the federal court. So why are judges falling for myth? Perhaps they get their information from the same sources most of us do: the wireless industry. Coverage. Don't Even Use the Word Most of us have seen a coverage map that carriers publish for their own market areas. Outside their market areas, the carriers rely on their licenses in other market areas or roaming agreements and alliances with other carriers in their coverage areas. It's important to know where the carrier has "coverage," because that's why you are buying that carrier's service. The greater a carrier's coverage, the more places there are that the carrier "covers" and so, the more people will have service, wouldn't you think? Under such a simplistic model, we can easily see why a carrier's coverage area grows from without; that is, adding one cell site at time on the fringe of the coverage area.- This is true for some cell sites, but most PCS sites are now being added within the coverage area. That's right: coverage areas tend to grow from within, where "coverage" already exists. That's because "coverage" does not mean "service," it just means there's a signal there ... someplace. The concept of coverage is so distorted that one would be led to believe that anyone trying to use his or her handset in "coverage" would have "service." In fact, most of the dropped calls, blocked calls, static and interference problems occur in "coverage," yet these are measures of poor service. There are many reasons why service isn't available in coverage, but the most common is lack of capacity. If too many people are demanding the signal, some will be disappointed. So coverage merely means: "there should be a signal there and maybe you'll have an opportunity to access it." "Coverage" means that there is a probability of service, but no guarantee. It means that a signal is offered or provided, but not that you can access it. Places outside of coverage could be called "holes" or "gaps," but very often small holes or insignificant gaps occur within coverage. Are you confused yet? All you need to remember is that "coverage" is not required by the FCC or any other government agency. Carriers have represented to courts that FCC administrative law requires that they provide "reliable coverage," but no one has offered a test for reliability that the courts have adopted. The reason that testing is difficult is that measurement depends on definition, and Iflip://WWW.p1aI1W1ICIC�J.I:UIIVIIIC WUII� tUl(l_,gIUUIIU�_lU_UCIIy_l:Cll laI'_LUWCI'�.I1IIIl //LJ/VV "coverage" is about as hard to define as "quality of life." (The question of whether one can have "quality of life" without "coverage" will be left for someone else to answer.) Significant Gap The one test regarding service levels that seems to have taken hold (in at least three Circuits of the US Court of Appeals) is the need to close a "significant gap." According the U.S. Court of Appeals for the Second Circuit in Sprint Spectrum v. Town of Ontario Planning Board, a local government may be prohibiting service under the following conditions: We hold only that the Act's ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land -lines. It's bad enough for the carrier that "significant gaps" only occur at the fringe of coverage areas (holes or dead spots within coverage areas are "insignificant gaps"), but the three judge panel in the U.S. Court of Appeals for the Second Circuit in Sprint Spectrum v. Town of Ontario Planning Board went on to opine: Furthermore, once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader: State and local governments may deny subsequent applications without thereby violating subsection B(i)(II). So now the courts seem to be saying that if some other carrier is already there, there is no significant gap. And, further, they seem to be saying that a local government may deny a carrier trying to extend its "coverage" without violating the subsection that forbids prohibition of service. The U.S. Court of Appeals for the Third Circuit picked up this ball and ran with it. In the same Penn Tox,nship case, they found: First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network. In this context, the relevant gap, if any, is a gap in the service available to remote users. Not all gaps in a particular provider's service will involve a gap in the service available to remote users. The provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider. There aren't too many areas in the U.S. (outside of Montana and North Dakota, perhaps) that could meet the "significant gap" test, particularly for PCS denials. That's because Cellular has probably already been there (or is close enough to have a signal, however weak) so that some other carrier is already providing service. When another personal wireless service exists, weak signal or not, then the "significant gap" argument goes away for the litigious PCS carrier. �K Least Intrusive Even if there is a significant gap, a local government can deny a "cellular tower," according to U.S. Court of Appeals for the Second and Third Circuits, if it isn't the "least intrusive means" available of closing the "significant gap." In order to prohibit service, according to those U.S. Appellate Courts (and possibly the Fourth Circuit), the local government would have had to deny the least intrusive llttp://WWW.PIUIIWII'CICSS.WIIULIIC UUUI.tJ dllll_j�roullus_to uClly_ce11Ulal_LUWC1.s.11tlll //LXVV means to close a significant gap. PlanWireless thinks that three short masts are less intrusive than one tall tower. But six dictionary - sized units on existing utility poles, such as PCS carriers are deploying in California, are even less intrusive. In 360" Communications Company of Charlottesville v. the Board of Supervisors of Albemarle County, the carrier noted that, in order to replicate the kind of service provided by the one tower it wanted to build, they would need to build either six towers on the flank of the mountain or 24 poles along the highway below the mountain instead of one tower on the top of the mountain. PlanWireless thinks that those would be less intrusive means, but the carrier never intended these as real alternatives. Unfortunately, the three-judge panel saw them as alternatives, whether they were less intrusive or not. Which brings up the question: who gets to decide what a "less intrusive" and ultimately, what the "least intrusive means" is? As we discussed in the May 2000 issue of PlanWireless; it really doesn't matter where the burden of proof lies. A town, village, borough, city or county should be able to deny an application because it is not the least intrusive means of closing a significant gap. A carrier should be prepared to offer alternatives or suffer the consequences of a denial. PlanWireless believes that it would be almost impossible for a carrier to justify a "tower" as the least intrusive means of deploying its services, particularly if those services are PCS. llllp.11 W W W.pltulWll.eiess.coill/ 111e_Wul-lS_allU—W-UUIIUJ_lU_UelIy_1:e11U1a1-_LUWCI'S.I11I11 11L31 VV Co -location Is Not Your Friend [ You Can Say"No"_tq_These Guys) ( Is "Adequate Service" An Adequate Standard?) ( Coverage Problems Are Not CapecOy_Problem.s ] [ Cell Sites Earn.More Than.You..T.hink ] [ You Can Make Them Fit ] ( More Tower C.ompaniea.:,. ] [ Co -location Is Not Your Friend ] ( Don't Let PCS Carriers Lavivers Cite Cellular Requirements ] Home Here's one of the greatest myths of all time: "if we just put all these antennas Issues on one tower, we'll concentrate the problem and be done with it." Ladies and This.1.s.mveAhm Gentlemen, personal wireless services are not adult entertainment uses. Your ce1lu141.r community can't put them all in one zone and expect to solve the "tower Thls.ls.nat.albatPA C.Af.phQ.n problem." The facilities must be ubiquitous, particularly in residential Qusst►gninalb-o neighborhoods, and there will be one on every block ... and they won't be Industry towers. Tha.Tcquttle.Nckh •Tower.:.,, I..weuns The typical community's approach to the personal wireless service facility What Can Be challenge is to encourage co -location. In fact,.some cities and counties draft an Done ordinance that requires co -location be pursued before any new "towers" can be .News built. In comes a speculative tower builder (not a personal wireless service facility carrier), after which an approval for a co -location "tower" is obtained Newsletter and, when a licensed personal wireless service facility carrier representative About us comes to the zoning counter, he or she is told: `you've got to locate on the Contents speculative tower. No new approvals until the co -location tower is filled." This Search kind of thinking gets everyone in trouble: The carrier loses when it would rather be elsewhere. The speculative tower builder loses because some carriers will just past that community by. (Contrary to conventional wisdom, wireless coverage need not be "seamless" and carriers can "leapfrog" if it's in their interest.) The local government loses because co -locations are built taller; become highly visible when fully loaded; and rarely return to the public coffers the fees from added permits, the taxes from increased value and the lease rents from new co-locatees. Remember, Section 704 addresses local zoning authority over "personal wireless services," not "towers." Once a "tower" is permitted, your responsibility has only just begun. Each personal wireless semce facility added to the tower should have its own permit, whether it is co -located or the first to apply. Many services (whether personal wireless services or not) need a building permit when they attach to an existing tower. "Midnight deployment" facilities (facilities deployed without benefit of permits) are illegal in many jurisdictions. If the facility is installed without the required permits, it may also not be paying llttp://WWW.pltUlWil-CIOSS.WIIUW-IUUULIUII 1S IIUI_YUUI-_llleIlU.IILIII //LO/VV its fair share of taxes to the jurisdiction. The true `value" of a co -location is not the cost of the "tower;" it's in the equipment on or below the tower. Co -locations increase tremendously in value every time a new tenant is added. Are these additional facilities reported to the building official or the assessor? Is the value of the additional facilities taxed? Does your jurisdiction require periodic reporting of new co-locatees? If the answer is "no" to any of these questions, co -location is not your friend. If your jurisdiction would like information on how to find out if the personal wireless service facilities in your community have permits and are paying their fair share of taxes, give Kreines & Kreines, Inc. a call. A Tale of Two States: Ohio & New Hampshire If P1anWireless is giving its readers the impression that municipal regulation of personal wireless service facilities is gaining strength, let us quote from Porgy and Bess: "It Ain't Necessarily So." While the relevant Section of the Telecommunications Act is becoming clarified.(by no means crystal clear) in the federal courts, states are going their separate ways on this topic. A recent Ohio Supreme Court case, AT&T Wireless PCS, Inc. v. Beavercreek Township Zoning Appeals, et al. reversed a lower court decision that upheld a township zoning restriction of "towers" because the Agriculture zoning district permits residential development. Apparently, Beavercreek Township believes that: - Personal wireless service facilities and housing can't co -exist. - Townships have similar powers as cities and villages in Ohio. Not so, according to the Ohio Supreme Court. Townships, which govern unincorporated areas in Ohio, can only exclude personal wireless service facilities (called by the Court "telecommunications towers") in Residential zoning districts. So, look for a stream of applications in rural Ohio, regardless of nearby dwellings, where the zoning district in a township is not residential. We thank our Ohio readers for alerting us to this decision and, if we can obtain a copy of it, we will analyze it in depth in a future issue. The State of New Hampshire appears to be going in the opposite direction. The New Hampshire House Committee on Science, Technology and Energy has recommended legislation (HB733) which will accomplish the following: Urge the carriers to consider lower antenna mounts which do not protrude as far above the surrounding tree canopies. llllp://WWW.plallwll-eless.coilvW-iouallUIl 1s IIUIyouI'_111CI1U.Il1II1 //LO/VV Require wireless carriers to provide a copy of their license from the FCC. Require wireless carriers to provide upon request, detailed maps showing all of the carrier's current externally visible tower and monopole personal wireless service facility locations in the state within a 20 -mile radius, both active and inactive. Provide that any municipality or state authority or agency which receives an application to construct a personal wireless service facility which will be visible from any other New Hampshire municipality within a 20 -mile radius shall provide written notification of such application and pending action to such other municipality. New Hampshire is a state with considerable history in personal wireless service facilities, including the site of the Omnipoint v. Town Zoning Board of Amherst case discussed in the May 1999 issue of P1anWireless. The small state's defiant attitude over "towers" warranted a recent article in the trade journal Wireless Week entitled "Live Free or Cry." To learn more, subscribe to the PlanlVireless newsletter AL Top o' PaUe [ Horne ] ( Issue ] ( This Is More Then Cellular ] ( This is Not About Car Phones ] ( The Trouble With "Towers" ] (l.;lwsuit� ] [ Questioning the Industry ] ( What Can Be Done ] ( NM ] t Newsletter ] [ About U ] ( Contents ] ( Search ] Kreines & Kreines, Inc. 58 Paseo Mirasol, Tiburon, CA 94920 Phone: (415) 435-9214 Fax: (415) 435-1522 e-mail. mail, &vlanwireless. com llttp://WWW.P1tUlWIl'OLOSS.UUIII/UU-lUCULIUII—iS IIUI_YUUI_lllCIIU.IILIII //LO/UV L14RSOMO CREATORS OF THEMED ENVIRONMENTS FAX COVER SHEET From the desk of Glenn Lavery Date: 8/7/00 To: DAMPEN GO TEM PIPES. Fax No: (541) 383-1764 Phone: Subleet: ordinance verbage Number of Pages (including this cover page):2 . Glenn Lave Director of Zperations Larson Utility Camouflage 11 M. I ne Lison Voffpwv 6701 S. Midvale Park Rd Tuolan, Aftm 86746 Fulaw + W I" WM7414-AW LaveryOLwnon.u".00m RECEIVED AUG - 9 2000 DESCHUTEP U NTYCD[ FAX 541-536-5267 To Tun Pipes Dear Tim, Here am some excerpts from some ordinances throughout the country. Besides these examples, there is a model ordinance put out by a Big Shot New York City Law Firm that is very pro -neighborhood and tough on tower companies and carriers. If Bend is interested the contact is: Jobn Pestle Va:num, Riddering Schmidt and Howlett. You might ask the planners to call the guy. The firm only charges S200 for it. It might be well worth it. The model ordinance offers the carriers incentives to Bide the antennas. Here are some examples Tucson --"does not require a public hearing for new towers camouflaged to blend into the surroundings." Hayward California—"Antennas mounted on poles, towers, roofs, facades, or the ground are to incorporate "stealth" or camouflage designs to make them as inconspicuous as possible" Greensboro, NC --"In residential districts new towers shall be unobtrusive. To the maximum extent possible, antennas and poles shall be camouflaged in an effort to conceal them from public view." 08/09/2000 15:28 5207413488 LARSON COMMERCIAL PAGE 02 FAX 541-536-5267 To Tim Pipes Dear Tim, Here are some excerpts from some ordinances throughout the country. Besides these examples, there is a model ordinance put out by a Big Shot Now York City Law Firm that is very pro -neighborhood and tough on tower companies and carriers. If Bend is interested the contact is: John Pestle Varnum, Riddering Schmidt and Howlett. You might ask the planners to call the guy. The firm only oharges 5200 for it. It might be well worth it. Tho model ordinance offer8 the carriers incentives to hide the antennas. Here are some examples Tucson --"does not require a public hearing for new towers camouflaged to blend into the surroundings." Hayward California—"Antennas mounted on poles, towers, roofs, facades, or the ground are to incorporate "stealth" or camouflage designs to make them as inconspicuous as possible" Greensboro, NC --"In residential districts new towers shall be unobtrusive. To the maximum extent possible, antennas and poles shall be camouflaged in an effort to conceal them from public view." August 9, 2000 Deschutes County Commissioners Planning Staff My name is Dr. Ray Seidler. I live at 18600 Plainview Rd. My wife and I just moved into our new house this week to retire in this beautiful region. I am very dismayed this morning to look out our view windows to see a balloon in our face, apparently signaling the location of a cell tower. I understand there may now be as many as 4 or 5 of these towers to look at in our little microenvironment around highway 20/Plainview/ Fryrear Roads. What a remarkable turn of events for this area. What a ruination of the beauty. This county needs to establish hard core policies to protect the beauty of this area so that others taxpayers like ourselves, will know we have county support to protect this unique region. We all need to know what the "rules" are before towers are sited and the various risks associated with siting these towers. There are several specific matters that concern me over the placement of these cell towers. I do not believe the current county rules on tower placement sufficiently protect the interests and health of taxpayers living in the Fryrear Road/Plainview Road areas. 1. The county has a rule concerning the prohibition of outside lights to protect the beauty of the sky; why do we now have to look at red lights on top of towers. Is this consistent ruling? The county also has rules about protecting the beauty of the region. What specifically do those rules mean and how are they applied to the cell tower siting issues? 2. 1 am a technical scientist and I follow the status of major human health issues. This very week there have been three press releases describing the uncertainty over the safety of microwave technology used by the cell phone industry. I have attached them to my letter. One study is funded by the cell phone industry itself and their scientists state, "the legitimate questions about safety that have arisen from recent studies make claims of absolute safety no longer supportable". There is sufficient research to raise serious questions about the neurological safety_ of the devices, the panel of experts reported, The second release indicates that the health concerns are sufficient to have duiorreauency exposures from cell phone use The third release indicates again the legal risks from using cell phones are high. I am certain that future law suits will come based on health risks over the siting of towers where radiofrequency receivers and emitters are much more concentrated compared to a single cell phone. The possible health effects associated with radiofrequency emissions from cell towers is literally not studied and is unknown. What happens when concentrated electromagnetic fields seep deep into the body is anyone's guess. I certainly would not what any of my loved ones living close to a cell tower because of the concentrated radiofrequency emitters and receivers. Shouldn't the county advise its citizens of these possible health risks if a citizen wishes to locate a tower on their property? Doesn't this county have a "public health department"? I Wireless communications technology is evolving quickly. Soon satellite communication will surpass the need for crude cell towers. Who will take out these relics and who will pay for it? What if the personal property owner cannot afford the tens of thousands of dollars estimated to remove and dispose of a tower? Will the public (eg, the county) have to come forward to remove them? Why doesn't the county now establish rules over who is responsible for tower removal so that the private land owner better realizes both the health risks and the financial burden associated with siting a tower on their property? We need the help and support of the county (our elected officials) to minimize the impact of these companies in our concentrated area around Plainview Rd. There are health reasons, legal reasons, and financial reasons why the county must do a better job in regulating the siting of these towers. The citizens of this area will benefit from knowing there are specific, clear and tight regulations and the industry will benefit once they know that they are unable to easily impact the well being of others and the beauty of this region. Thank you for any support in these matters. Sincerely yours, Dr. Ray Seidler Today on Medscape [Reuters Medical News - for the Professional] Health Risks of Wireless Phones Cannot Be Ruled Out WESTPORT, Aug 01 (Reuters Health) - Currently, there is not enough evidence to link wireless phones to brain cancer, but there is sufficient research to raise serious questions about the Neurology safety of the devices, a panel of experts reports. The report was based on research conducted by the Wireless Technology Research (WTR) program, which is funded by the wireless phone industry. The authors are Dr. George L. Carlo and Rebecca Steffens Jenrow, both of the WTR. "The legitimate questions about safety that have arisen from recent studies make claims of absolute safety no longer supportable," the authors write in the report, which was released Monday in the online journal Medscape General Medicine. According to the report, the results of one WTR study fail to prove that radiofrequency radiation is strong enough to break DNA. However, the results of another WTR study indicate that such radiation can cause genetic changes in blood. "WTR-sponsored epidemiology studies do raise some questions about health risks associated with cellular phone usage," Dr. Carlo and Jenrow write. In one such study, brain cancer mortality was more than three times higher in users of car cell phones, which have car -mounted antennas, than in users of hand-held devices. The researchers also cite a case -control study that found that people who used cellular phones for more than 6 years had an elevated risk of acoustic neuroma. "Taken together, the WTR research findings are not conclusive with respect to an increased risk of brain cancer or benign tumors associated with wireless phone usage," the authors write. However, consumers should be made aware of potential risks of wireless phones so that they can make their own decision about using the devices, the researchers conclude. The experts make several recommendations, including the implementation of a reporting system to track health problems of wireless phone users, as well as continued follow-up of short-term studies. And they call for studies of digital phones, which were not widely in use at the time the reviewed studies were conducted. The authors also recommend studies of the impact of wireless phones on children, whose brains may be more susceptible to radiation, as well as on pregnant women and fetuses. According to the report, ways to reduce exposure to radiation include using headsets or a hands-free phone or by communicating through two-way pagers. The authors note that wireless phone manufacturers are developing shields designed to block radiation. But they point out that the health benefits of using these and other such devices have not been proven scientifically. "Moving the antenna beyond the distance threshold of 2 to 3 inches away from the body is the only science -based recommendation that can be supported by existing data," they conclude. Cell Phone Health Risks Are Target of Studies Planned by FDA, Industry --------------------------------------------------- By Laura Gilcrest WASHINGTON, Aug 02 (Reuters Health) - Amid concerns about potential adverse effects associated with cell phone use, the US Food and Drug Administration (FDA) is turning to outside experts to help the agency assess if the use of such phones poses a health risk through radiation exposure. At a radiofrequency (RF) workshop in Gaithersburg, Maryland, on Monday, officials from the FDA's Center for Devices and Radiologic Health (CDRH) met with scientific and technological leaders to begin to develop an approach for putting the troubling theory about cell phones to the test. Whatever the experiments ultimately show about the dangers of regular cell phone use, experts agree that the potential adverse health risks from the ubiquitous devices and other forms of wireless communications are fast becoming everyone's problem. "[We are] moving to a situation where everyone will be exposed to radiation because of [the use of] wireless communication," noted Dr. Gregory Lotz of the National Institute for Occupational Safety and Heath. "We now have large populations exposed to low levels of radiofrequency." Cell phone use is of particular concern, Lotz stressed, because of the device's close proximity to the brain. While it is hard to escape the current media blitz warning of the cell phone's increasing role as a highway hazard, surprisingly little is known about the adverse effects the device may cause when portions of its electromagnetic field seep into the body. Thus, the FDA is collaborating with industry in an attempt to fill in the current knowledge gaps through a series of studies. One factor giving rise to concerns that cell phones may pose grave health risks is the capacity of devices emitting RF to heat tissue, including brain cells, as such thermal action is known to have genetic effects and lead to tumor growth. Existing data on cell phones' tissue -heating properties, however, is encouraging. Studies done in the last few years using animal models and tissue samples suggest that the RF emitted by cell phones, typically 800 to 1500 megahertz (MHz), is too weak to have a thermal effect on tissue. In fact, a recent in vitro study done in Europe showed that cell phone RF caused only "minimal" cellular heating, of only .2 degrees Celsius, Eduardo Moros, associate professor at Washington University, St. Louis, Missouri, observed. Another study conducted in Japan yielded similar findings. Despite some cause for optimism, the health consequences of cell phone use over time remain a mystery. "We don't have data on long-term exposure to [RF]," Lotz noted. While some studies on long-term cell phone use are underway, he said, "very few" have been completed and published. Still, a number of experts theorize that cell phones may interfere with cells' DNA mechanisms, despite the devices' minimal tissue heating effect. Thus, experiments planned by the FDA and industry will evaluate RF's effect on tissue at varying doses, or specific absorption rates (SAR) and varying exposure times, while keeping cell temperature as constant as possible. One way in which RF's damage to cells is apparent is by the formation of micronuclei, which are clusters of "lost" chromosomes or chromosome fragments that were "left behind" after the cell's chromosomes sustained damage through radiation. In the case of cell phones, the SAR is highest at the "hot spot" where the cell phone is held to the user's ear. The Federal Communications Commission (FCC) has imposed an SAR limit of 1.6 watts per kilogram on currently marketed cell phones. The August workshop was held as a part of a cooperative agreement between the FDA and the Cellular Telephone Industry Association (CTIA). [Reuters Medical News - for the Professional] Physician's Suit Claims Cell Phone Use Caused Brain Tumor BALTIMORE, Aug 04 (Reuters) - A Maryland neurologist has filed an $800 million lawsuit against the world's No. 2 cellular phone maker, Motorola Inc., as well as eight other telecommunications companies and organizations, claiming that his use of cell phones caused a malignant brain tumor. Dr. Christopher Newman, 41, said in the lawsuit filed on Tuesday in Baltimore City Circuit Court that his years of using wireless handheld telephones led to his brain cancer. Newman named Verizon Communications, Bell Atlantic Corp., Bell Atlantic Mobile Inc., Southwestern Bell Mobile Systems Inc., Washington/Baltimore Cellular Ltd., SBC Communications Inc., the Cellular Telecommunication Industry Association, and the Telecommunication Industry Association in the suit. He claimed compensatory damages in excess of $100 million and punitive damages in excess of $700 million. Katharine W. Kimball 20325 Sturgeon Road Bend, Oregon 97701 541-382-9878 Damian Syrnyk, A.I.C.P Community Development Department Deschutes County 117 NW Lafayette Bend, OR 97701 RE: TA -008 Dear Damian: RECEIVE BY: AUG 0 9 2000 DELIVERED BY: A / IZC_ 4 �y August 9, 2000 These are comments I am submitting on behalf of the Sisters Forest Planning Committee regarding the proposed text amendment on cell towers, or wireless telecommunications facilities. In general, the proposed changes are an improvement over the current ordinance. One area that is addressed, but needs amplification, is notice to affected residents. The proposed changes in distances required for notification of a town meeting clarify the ordinance, but the changes are inadequate to address a serious shortfall in notification. Most land use actions involve real property and buildings. In the case of cell towers, however, the visual impacts far exceed the 1,320 to 2,000 feet requirement in the existing ordinance, DCC 18.128.040(DD)(A)(1)(a). For this reason, Jefferson County is considering ordinance language that includes notice to all those visually affected by the proposed cell tower. If there are concerns that it would be cumbersome to determine who has a visual impact of the towers, then consider the reverse proposition: that towers are being approved without knowing who is impacted. It is reasonable for the public to expect their local government to assess impacts before approving applications. For example, in the City of Bend, notice for a cell tower on Pilot Butte included no residents because no one lived within 100 feet of the proposed site. However, the visual impact of the original application was much more broad and many residents became involved to modify the proposal. Similarly, for example, a proposed cell tower on Laidlaw Butte in the county will have affect far more people than will be notified. Evidence of this is in the land use application records where many people showed up for a neighborhood meeting who were not notified. Central Oregon is an area of outstanding views and residents are understandably protective of them, as was made quite clear in the debate over the golf nets. Cell towers can be just as disturbing to homeowners because their views may be permanently altered by such towers, particularly for those towers tall enough to require lighting under Federal Aviation Administration rules. Balloon tests in the daylight do not approximate the nighttime impacts. Democracy relies on participation and participation depends on notice. Residents are entitled to be informed of a proposed land use action that impacts them, which is why our state and local requirements are replete with notice provisions. The notification requirements in current zoning ordinances are designed to provide reasonable notice to affected residents. The Deschutes County Code already recognizes the differences in providing different notice for different types of land use actions. In the case of cell towers, the existing notice requirements are simply inadequate and need to be changed. The costs of providing notices to more residents should be borne by the applicant. If more robust notifications are relied on, citizens will be able to participate in discussions in a timely way. The result could be less controversy and less time- consuming discussions with citizens concerned that their interests were not considered. Attachment A is my proposal for modification of the relevant wireless telecommunications code provisions. If there is hesitation about adding substantive changes to the code as part of a clarification procedure, I ask that the staff be directed to prepare a text amendment to require notification to all affected parties of proposed cell towers. Thank you for this opportunity to present these comments. Sincerely, �n�w-�tP Katharine W. Kimball Attorney, OSB #00135 ATTACHMENT A Proposed amendments to DCC 18.128.040(DD)(A)(1)(a) a. Neighborhood Meeting. Prior to scheduling a pre -application conference with Planning Division staff, the applicant shall provide notice of and hold a meeting with interested owners of property nearby or visually affected by a potential facility location. Notice shall be in writing and shall be mailed no less than 10 days prior to the date set for the meeting to owners of record of property within a) 1,320 feet for a tower or monopole no greater than 100 feet in height, and b) 2,000 feet for a tower or monopole at least 100 feet and no higher than 150 feet in height. Notice shall also be provided to all residents visually affected by the proposed facility. Such notice shall not take the place of notice required by title 22 of this code." To: Board of County Commissioners Interested patties From: Mr. and Mrs. TJ Tomjack 18920 E. Plainview Rd Bend, Or. 87701 Subject: Wireless telecommunications facilities We in Deschutes County are faced with the fact that telecommunication towers/monopoles are going to be a pert of our community We are residents on 50 acres in the Plainview area, about equal -distance between Bend and Sisters. Our access is Scenic Highway 20. and Fryrear Rd. We are gifted with a view of eight of the Cascades Mountains. We are zoned EFU 40. In the past two weeks we have attended two neighborhood meetings organized by VoiceStream and Merieom. Each company is seeking approval of a monopole .... an 80ft and a 60 R. respectively, at the intersection of Fryrear Rd. and Highway 20. An approval has already been granted for a 30ft. tower for VoiceStream at that same intersection. A 1501 tower is proposed just south of Highway 20, on Plainview Rd. This would be the property of "Tower Landlord", American Tower. In a nutshell..... that is 4 telecommunications facilities at one location. These are four of the seven proposed monopoles /towers proposed for the Tbmulo to Sisters corridor. You cannot allow this to happen to us. There has to be a better way.I I It seems to us that this has become a case of "the tail wagging the dog". You, as the representatives of the voices in our community have the responsibility to initiate a code that protects our community. We were here first! I We need to establish a code that controls those who wish to do business with us. We as a community need to be telling the telecommunications companies what is acceptable to us in Deschutes County.. Listening to VoiceStream and Merioom in the past two weeks; tell us what they are going to do is not an option for us any longer. You will be presented with information by Mr. Grimm that shows that towers/monopoles do NOT have to exceed tree tops. Yes, it means that VoiceStream, Mericom, US Cellular, American Tower Corp. will have to spend more money and build more towers/monopoles ........ but that is THEIR business. OUR business as a community is to respect each other and our way of life here. VoioeStream, Merioom, American Tower seem to be in a great hurry to obtain permits and start building. They can actually be quoted as saying so. We suggest a moratorium on all permits, etc. until we, as a community, agree on what we will accept from any company or venture making application for business in out area. This is OUR community. Doing business with us is a privilege. We can be protected No more "tail wagging the dog". Thank you for your consideration. TJ and Mary Tmock _ Please see enclosed "map" and table. . Winless Application Treddng List (Active Files) FNS No. Address nca APPni • • Het t Uh CU -00-70 70425 Nater Drive. U.S. Cellular 50 test CU -0047 Sisters 9020 S Hwy 97, Redmond W& Pacft for 150 feet American Tower C Woods VSH Padit for 150 feet Anwrian Tower W40-69 16315 Hwy 128, Redmond Volcestream 30f" CU40-92 Laidlaw Butts Tumeb Irripatbn 001eet District CU4)0-94 19300 Tumab Reservoir W&H Pedft for 1501est RoedjWsO -CU-40-95 7955 Pla inview Road, WE Puff for 150 feet BondAnnerican T August 5, 2000 T N Plainview Plainview © Snow Creek a- Mericom Corp 80 Am. Tower Voices tam neighborhood mtg 150' 30' approv scheduled Aug 15 application made 0 VolceStream 80' neighborhood mtg held N RE: File Number: TA -00-8 Amending the Deschutes County ordinance on telecommunication towers COMMENTS: Regulating wireless telecommunication facilities primarily according to height and other visual considerations -is like objecting to secondhand cigarette smoke only because it .interferes with your view — and ignoring the very serious health consequences .of -inhaled tobacco smoke. Cell phone _towers are not inert structures. Their transmission equipment produces electromagnetic -fields whose long-term, Low=dose radiofrequency radiation -interacts with the human brain and -body in -crucial ways that we --axe only just -beginning to understand. The best information regarding -exposure limits -tomes -from the 'Salzburg Resolution on Mobile Telecommunication Base Stations" June 8, 2000). It recommends that the total of —all—high—frequency imadiation at any one Location not be greater -than 10 mierowatts-per square centimeter. It is short-sighted .to ignore health .considerations when revising regulations for telecommunications facilities. -Deschutes County .must -consider public safety now, before numerous small antennas are _allowed to -crop -up in residential areas, at the workplace, and in schools. SUBMITTED BY: John D. MacArthur, Jr. 443 NW Congress St. Bend, OR 97701 `J� �• �"��'� _ ___August 9, 2000 August 9, 2000 Dear Commissioners of Deschutes County It is with regret that we are unable to be here in person to give you our feedback and seek your help and suggestions about the erection of towers in and near our neighborhood. We are residents located on seven acres on Plainview Road in Deschutes County Oregon. We purchased this serene piece of property approximately 11 months ago. As a native Texan, and 25 year resident of Oregon, we were attracted to Central Oregon for our retirement years and because it is about as close to Texas as one can get and stay in the Pacific Northwest. We were attracted to the relative privacy, the low-key environment, the clear azure spacious skies of daylight and the starlit nights of darkness. We are not the typical outdoor enthusiasts but we also love the mountains and inland lakes and rivers. We believe we have selected a site that will meet our needs for years to come. We anticipate that it will not become a development of tract homes or become more densely populated, and we have great neighbors, many who had similar expectations for the future. Our home happens to have a Southern view of the Cascades; however that was a serendipitous outcome as it was all the other advantages that were so attractive. Every way we look out across our property is breathtaking. It is uncluttered, natural farmland with minimal habitation and much native vegetation. There is a lot of natural diversity all around. We are surrounded by only a limited number of neighbors, most would agree that we are here because we want to enjoy this beautiful spot and we are serious caretakers of this land for future generations. Although we expect growth and change; I'm quite sure that we did not expect the erection of numerous transmitter towers in our immediate and nearby line of site, whether or not we have "views". During the last three months we have found out, mostly by accident, regarding the likely placement of four cell towers in our immediate vicinity. We have tried to attend public hearings or neighborhood meetings when possible if we are aware of such. Part of our dismay is centered around the fact that these events seem to be poorly publicized and are held with only a very short time. We, like many of my immediate neighbors are relatively new to our neighborhood, and we have not had an opportunity to become politically involved or informed about local land use changes other than those required to build their home. As a result of a neighborhood meeting held about a week ago in Sisters I, like most attendees, discovered that the county code describing the process applying for communication and cellular towers is extra ordinerily vague and rather poorly constructed. It gives the local residents little opportunity for involvement and even less recourse to present another point of view. It is as if we do not exist and as if these towers would not impact our environment and the aesthetics of this beautiful part of the state. Having relocated here from (GULP) Portland; (except for the towers, he) we have been blessed with leadership over the past thirty years which took risks and planned carefully for the impact that enormous growth would have on the region. Leaders with vision. Obviously Deschutes County has not been so fortunate and all of a sudden this county is faced with growth and expansion concerns that seem to be growing exponentially. So, we believe it is sometimes necessary to learn as we go and to learn from mistakes. It is not too late to stop this senseless hyperspeed approach to solving a long-term problem which will have ugly outcomes, both literally and figuratively. For example providing a very brief opportunity for some wealthy business person to get dangerously distracted while using a cell phone and driving their luxury automobile too fast through our scenic corridor. Or perhaps they are planning another rendezvous while on one of our numerous scenic golf courses. believe almost all cell phone users would agree that some type of tower is needed at the Santiam Pass, that is where a real need or emergency would exist, but convience for big cell time users in our scenic corridor is only about money and nothing else. For a universally accepted approach to be identified, it will be necessary to listen to the people who care, pay taxes, and elect officials. I am sure all of you take the same pride in Central Oregon as most of us. So as not to be disappointed in yet another democratic process, it is our expectation that you will listen and assist us, the occupants of "tower alley", to be involved in the process of revising and updating the tower code provisions so that we the residents of this county and the tower companies will all be satisfied. I am sure some compromising will be expected and it will take work and it will take time; but it is essential not only for the moment but for the impact that these towers will have on this special place as we grow and develop. As a group some of us would be so happy to be associated with a group of county officials, residents, cell phone users, and cell phone providers to structure a revision that would allow for the digital technology and similar advancements that will not rape our environment or tread on our individual rights and concerns as land owners. It is important to me, that we are able to work collectively to meet and survive this important challenge as verbal/emotional or physical attacks are senseless, threatening, and does not foster positive outcome. I implore you to CONSIDER A MORATORIUM ON THESE TOWER PLACEMENT APPLICATIONS until we as citizens, you as policy makers, and the capitalistic engineers can be given an opportunity to resolve all concerns. With respect and thanks, Harriet and Abdul Anani 18285 Plainview Rd. Bend, OR 97701 SENT VIA FACSIMILE #385-5804 The Bulletin Re: Cell Tower Moratorium To Whom It May Concern: n-*er / Cj-' loo June 12, 2000 917 My husband and I read the article by Beth Britton in last Friday's edition of The Bulletin on the Cell Tower Moratorium. I would like to first mention that the proposed "Reed Market" tower actually turns out to be on Brosterhous Road, and more specifically less than 120 feet from my front door on the property adjacent to me. I am writing to you because I believe what I have to say may interest you. You may, or may not, know that there is a lot of controversy over the effects of EMF/BMR on the health of people living in close proximity to sources of its output. At low doses, it has been proven to have cancer causing effects. However, because our modern economy depends on technology that puts out EMF/EMR as a byproduct (such as cell towers), our government is implementing necessary guidelines to work with large industry to allow EMF/EMR in our communities. Countries in Europe however are implementing much stricter guidelines than the U.S., with Switzerland as the prime example. It is believed by the Swiss that the health of a nation is of the utmost importance. Dr. Stefan Joss of BUWAL stated it best, "Our task is to protect the public not only from agents that are known to be harmful, but also from agents that might prove to be harmful." This is where my husband, Bill, comes into the picture. He is a survivor of cancer. In 1986 he was diagnosed with Hodgkin's disease. We believe that his prior employment as an industrial radiographer caused the disease. The radiographic isotopes he worked with were Iridium 192 and Cobalt 60. Fortunately, Bill survived the cancer. Since that time, he has done whatever is necessary to protect his health. He eats all the right foods, exercises rigorously and avoids anything that can be linked to cancer. To look at him, you would never know that he fought such a deadly battle. Now, we have just found out that a danger to his health, and our health, is being proposed. It is unbelievable that a cell tower can be considered so close to anyone's residence, let alone ours. Our first reaction is, it must be an error. The Bulletin June 12, 2000 Page 2 I would appreciate it if someone from The Bulletin would come out and take a look at where it is proposed. As I mentioned in the beginning, it is within 120 of our front door, and approximately 60 feet from our property line. We live in a nice, little home in a neighborhood zoned single family residential. It seems preposterous that with all the open land in Central Oregon someone would think to plop a cell tower in the middle of a quiet residential neighborhood. Thank you for taking the time to read this. If you would like to speak with me, please feel free to contact me at my home number 330-1515 after 5:OOPK or leave a message on the answering machine. Sin ely, thleen Leppert 61345 Brosterhous Rd. Bend, OR 97702 ivlit,KU W A v L iNL w J, switzerlan(IAaopts Jtrict 1,imits for Leff lowers MICT)n NAVE NEWS Page 1 of l Switzerland Adopts Strict Limits for Cell Towers and Power Lines 10 mG Standard for New Sources of EMFs The Swiss government has adopted stringent new standards for public exposures from power lines and from towers used for mobile communications and radio and TV broadcasting. The new rules, which took effect on February 1, are similar to those in Russia and in China and are among the toughest in the world. Both new and existing mobile phone towers must meet a 4 pW/cm2 standard at 900 MHz. Other sources of electromagnetic fields and radiation (EMF -EMR) are allowed considerable administrative discretion to meet their respective limits as long as specified steps are taken to reduce exposures. The new limits are "oriented to the future," the Federal Agency for Environment, Forests and Landscape (known as BUWAL) explains in a commentary accompanying the new rules. "Our task is to protect the public not only from agents that are known to be harmful, but also from agents that might prove to be harmful," Dr. Stefan Joss told Microwave News.Joss is with BUWAL's non -ionizing radiation unit in Bern. Joss explained that the rules are an application of the precautionary principle. The Swiss Environmental Protection Law, he said, "gives a clear, pragmatic framework for precautionary measures: Keep exposures as low as is technically feasible and economically sustainable." The need for caution is prompted by "credible indications" that chronic, low- level exposures may be harmful. The strict EMF and EMR limits apply in all "areas with sensitive uses" —that is, where people are likely to be for extended periods of time, including homes, schools, playgrounds and hospitals. In these locations, the ordinance requires, radiation from each individual source must be kept below a specified level. (story continues) I I Publications I I Other Net Resources I I I Home http://www.microwavenews.com/strictlimits.html 6/10/00 tkato as o� Pari Nmet 0 Or d o V y �p° al. u �`lti Ou M701 K S FoY Cep T7701 C a .. . . _ � .� �--- � �� — � 1�"• t° � Vis. �.. F'F'•�. t._. � ,,,„ �'`' CL T7701 August 9, 2000 To: Deschutes County Board of Commissioners — Linda Swearingen, Tom DeWolf, and Dennis Luke; and the Deschutes County Community Development Department From: Michele & Tom Grimm, Deschutes County residents (19315 Pinehurst Rd., Bend, OR 97701) Subject: Our public testimony at the Public Hearing on August 9, 2000, regarding Ordinance 2000-19 amending Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance regulations for Wireless Communications facilities, in Sections 18.116.250 and 18.128.040. The August 2, 2000, staff report of the Planning Division of the Community Development Department recommends: 3. Adopt the proposed amendment with revisions based on issues raised or changes proposed through public testimony. As Deschutes County citizens, we are concerned with the impending proliferation of unsightly wireless communications towers that will forever ruin the unique scenic beauty of our county. Our testimony will raise specific issues and propose specific changes to the current zoning ordinances regarding wireless communications facilities. Because our point -by -point changes to the current ordinances require detailed study, we are preceding them with a more readable summary. 1) The main concern voiced by us and other county residents, as well many visitors, is that tall wireless communications towers and their antenna arrays will stick up indiscriminately in the skyline and destroy the natural beauty of our mountain views and high desert scenery. Furthermore, tall towers require steady or flashing warning lights for aircraft, which ruin the tranquillity and star -filled beauty of our skies at nighttime. In order to preserve what we now enjoy, the county code should be revised with this simple statement: No wireless communications tower or pole, including its antenna(s), shall appear taller than the surrounding tree tops. Because the tower or pole and its antenna(s) can be built no higher than tree -top level, no warning lights for aircraft would be required. Cell phone technology allows placement of antennas in trees; the providers' statement that "line of sight" is required doesn't not mean an unobstructed path is needed between antenna and cell phone. A series of shorter towers below the tree tops will provide the cell phone coverage desired; the main argument by the providers is that it costs them more money to install several shorter towers than a single tall tower. But that is not our community's problem; the providers will endure the cost of shorter towers if they want to amass the potential profits from cell phone service in our county. Page 2 - Testimony by Michele & Tom Grimm - 8/9/00 - Ordinance 2000-19 2) Deschutes County is experiencing a proliferation of wireless communications poles and towers, some of which are permitted outright by current county codes, while others require application for a conditional use permit. This "cell tower rush" is placing an unrelenting and unfair burden on the county's code enforcement officer, the Planning Division, and citizens who are trying keep tabs on the growing number of towers. In order for the county and its citizens to be better able to judge and control the aggregate impact of all poles, towers and antennas, the county code should be revised with this important requirement: Before any pole or tower with antennas can be erected. the FCC -licensed wireless communications provider must describe, and show the location on a map of Builders of towers who are not FCC -licensed providers, such as the American Tower Corporation (ATC), should not be allowed by the county to apply for conditional use permits to construct towers on "spec," which is currently the case with ATC regarding its four applications that were recently submitted. 3) Many citizens are concerned about the effects on people and animals of electro- magnetic radiation (EMR) from a wireless communications facility, either from the antennas or electronic equipment housed at the site. Furthermore, a recent study by the American Bird Conservancy found that thousands of birds, including 52 rare or declining species, are being killed in collisions with communications towers or their support wires. In order to safeguard ourselves and other species, and avoid future lawsuits against the county should wireless communication facilities be proven harmful, the following requirement should be added to the county code: An environmental impact report must be submitted as to any and all hazards imposed on humans, animals, and wildlife by the proposed wireless communications facility, including. but not limited to, its pole or tower, antennas, electronic and operating equipment, service access road, and electrical power supply. 4) The current county code requires an applicant for a conditional use permit to erect a pole or tower to provide certain technical details, including a map showing the applicant's `search ring" for a tower site, whether alternative sites could or could not provide the coverage they seek, and whether they could or could not co -locate on an existing tower or pole. In order to keep the applicant from making false or misleading statements regarding technical details, which the county may otherwise simply accept at face value, the code should be revised with this requirement: Page 3 - Testimony by Michele & Tom Grimm - 8/9/00 - Ordinance 2000-19 The county's Planning Division shall hire, at the applicant's expense, an independent wireless communications expert or experts, such as, but not limited to, a radio frequency engineer, to verify or to challenge the technical statements or exhibits included in the application. Although Ordinance 2000-19 that is under discussion clarifies some points in the current county code, we feel that the patient requires an operation rather than a bandage — a thorough overhaul of the regulations is required immediately. The rules now in place were adopted less than three years ago in November, 1997, but the wireless communications industry has been advancing at lightning speed. The county needs to catch up quickly, or else we'll suddenly be surrounded by tall towers that are devastating to the scenic views and starry skies we all now enjoy. We are therefore requesting the Board of County Commissioners immediately establish a short-term moratorium until the county code can be brought up to date on the outright allowing of Tier 1 and Tier 2 wireless communications facilities and on the granting of conditional use permits for Tier 3 facilities. This would not preclude the providers from submitting applications for site plan review or for conditional use permits, although they should be warned that revised regulations would subsequently be in effect when the moratorium is lifted and their applications may have to be re -filed in order to comply with any new rules. We suggest the county establish a committee as soon as possible to draft up-to-date regulations for approval by the County Commissioners. It should consist of concerned citizens as well as professional planners. Furthermore, we recommend that the county hire a legal or consulting firm that specializes in advising counties and cities as to the most effective regulations for keeping control of wireless communications companies and their antenna tower sites. Among those firms recognized as leaders in these matters is Kreines & Kreines, Inc., of Tiburon, CA, which operates a website, www.planwireless.com, that the county's Planning Division regularly monitors. Another firm to consider is The Law Offices of Kirk R. Wines, of Seattle, WA. It has a website, www.celislayer.com, that the Planning Division would find very helpful. The cost of such professional advice could be paid from future conditional use permit (CUP) application fees, which could be increased. Currently the county's application for a CUP for a wireless communications facility is $1,300; the City of Bend's CUP fee is $1,700. Page 4 - Testimony by Michele & Tom Grimm - 8/9/00 - Ordinance 2000-19 Finally, before presenting detailed changes to Ordinance 2000-19 in regard to current regulations, we wish to advise that if the County Commissioners do not feel a short- term moratorium is necessary at this time to forestall the onslaught of tall towers a number of very concerned citizens are prepared to take legal action to end the installation of wireless communications poles towers and antennas until more restrictive rules are established to protect our right to the beautiful and unblighted vistas in our community. Specific Changes We Propose to Existing Ordinances. Our insertions are underlined. Chapter 18.116.250. A. Tier 1 Facilities Section 4. - Facilities that include installation of a new wood monopole that does not exceed the height limit of the underlying zone and does not exceed 45 feet in height, including antennas. The monopole must be screened from view or camouflaged in order to blend with the surroundings The monopole requires review by the county; it will not be permitted outright. Neighbors within a half -mile radius of the antenna site must be notified with a description of the antenna pole and its location at least 30 days in advance of the pole being erected. (Change sentence to read) Any microwave dishes, or other types or clusters of antennas, installed on the monopole must not exceed a diameter, or a total expanse in width, of three feet. B. Tier 2 Facilities - (Add at end of introductory paragraph) All Tier 2 wood monopoles, whether or not reaching the maximum allowable heights of 60 or 75 feet including their antennps. must be screened from view or camouflaged in order to blend with the surroundings. In all cases, they must be no taller than the surrounding tree tops. These mono of s re uire review by the coun • they will not be permitted outright. Neighbors wdthin a half -mile radius of the antenna site must be notified with a description of the antenna pole and its location at least 30 days in advance of the pole being erected. Chapter 18.128.040.CC: (THERE IS NO EXHIBIT IN ORDINANCE 2000-19 FOR Chapter 18.128.040.CC.) Section 1. - Towers, including the highest point of their antenna(s), shall be limited to monopole towers no taller than the surrounding tree tops, and lighted only (strike 'by" and insert) if prescribed by aviation safety regulations. Page 5 - Testimony by Michele & Tom Grimm - 8/9/00 - Ordinance 2000-19 Chapter 18.128.040.DD: (Insert at end of introductory text) No wireless communications tower or pole, including its antenna(s), shall appear taller than the surrounding tree tops. Section 1. a. - Neighborhood Meeting: Notice in writing shall be mailed no less than (strike "10" and insert) 30 days prior to the date set for the meeting to owners of record of property within (strike a. & b. and insert) one mile of the boundary of the property on which the applicant proposes to establish a tower. Section 1. c. - Submittal Requirements: Subsection v. - (Insert at beginning) An audio tape recording shall be made of the neighborhood meeting and submitted with the application. Subjection ix. - A copy of a letter of determination from both the Federal Aviation Administration (strike "or" and insert) and the Oregon Department of Transportation - Aeronautics Division as to whether or not aviation lighting would be required for the proposed facility. If aviation lighting is required, the letters should describe the specific type of lighting_ ADD Subsection x. - A written description, accompanied by a county map showing locations of all current proposed and future -planned poles or towers or other antenna sites intended for the provider's overall communications service in the county. ADD Subsection A. - An environmental impact report describing any and all hazards imposed on humans animals and wildlife by the proposed wireless communications facility, including but not limited to its pole or tower antennas electronic and operating equipment, service access road, and electrical power supply. Section 2 - Approval Criteria: Subsection b. - The applicant has considered other sites in its search area that would have less visual impact as viewed from (strike "nearby" and insert) area residences, roads, and highways than the site proposed and has determined that less intrusive sites are either unavailable or do not provide the communications coverage (strike "necessary" and insert) desired. A list must be submitted with addresses, names of owners and descriptions of such sites that were considered and determined to be unavailable or to be unable to provide the communications coverage desired. (Strike "To meet this criterion") The applicant must (strike "demonstrate" and insert) document that it has made a good faith effort to co -locate its antennas on existing monopoles in the area to be served. (Strike remainder of subsection and insert) The county's Planning Division shall hire at the applicant's expense an independent wireless communications expert or experts such as but not limited to a radio freguency engineer, to verify or to challenge the technical statements or exhibits included in the application. Page 6 - Testimony by Michele & Tom Grimm - 8/9/00 - Ordinance 2000-19 Subsection c. - The facility is sited using trees, vegetation, and topography (strike "to the maximum extent practical") to screen the facility from the view of (strike "nearby" and insert) area residences, roads, and highways. Subsection d. - A tower or monopole located in a Landscape Management (LM) Zone is no taller than (strike "30 feet" and insert) the surrounding tree tops. Subsection e. - In all cases, the applicant shall site the facility in a manner (strike "to minimize its impact on" and insert) that does not impact scenic views and shall site the facility using trees, vegetation, and topography in order to screen it (strike "to the maximum extent practicable") from view from (strike "protected" and insert) roads and highways. Subsection j: - (Insert at end) Prior to any construction of the facility, the landowner and/or wireless communications providers located on the tower must provide a bond sufficient to cover the cost of removing the tower and related facilities and restoring the leased area to a natural appearance. END County Ordinance 2000-19 To: The Deschutes County Commissioners RE: Ordinance 2000-19 From: Bill and Nancy Keating 17845 Plainview Road Bend OR 97701 Date: August 7, 2000 These changes are not enough to matter. How about a short term moratorium? Anyone having driven across Texas lately can tell you what happens when tower companies are allowed to put these things Willy Nilly all over the place. Twenty-two states are now proposing legislation to make cellular phone use unlawful while operating a motor vehicle. In addition, researchers are beginning to find an association between certain types of brain tumors and overuse of cell phones. This tower business Is a "GOLD RUSH" mentality. With satellite technology Just around the corner, these things may achieve extinction before completion; If not shortly thereafter. "GET 'EM UP AND GET OUT BEFORE THEY SEE WHAT WE'VE DONE" has been the "Modus Operandi". Deschutes County attracts visitors from nearly everywhere to witness the natural high desert beauty, spectacular vistas of the Cascades, and magnificent night skies full of stars. We (Deschutes County) seem to have been dropped right in the middle of the tower controversy at a critical point In time. Wouldn't "NOW" be an opportune time to Instrument a short term moratorium, giving some time to consider the effects of allowing these people to put these monstrosities In our backyards and in the vlewscapes of our tourists ---------and wondering who let them do It? It's time to step up to the plate. -Page 1 of 3 - County Ordinance 2000-19 "Plainview Tower" I will use the "Plainview Tower" as an example since it appears to be in the most flagrant disregard of nature's beauty and displays a most inconsiderate and irresponsible attitude that American Tower has toward the residents of this small community and others that may be affected. Barely a mile west of the highway 20 viewpoint, which offers motorists a chance to get off the highway and experience a breathtaking view of seven of the Cascades, lies the small and loosely packed community of Plainview. A balloon test determined that proceeding westward toward Sisters would offer motorists a view of an ugly 150' tower passing about 9,000 ft. level in front of all three of the Sisters and then barely clearing the top of Broken Top. Now imagine sunset, twilight, or later evening where flashing aviation warning lights become part of the picture. When I approached American Tower representatives with these realities the best I could get was a shoulder shrug which I took to mean ------- "IT'S BUSINESS AS USUAL. DOLLARS ARE MORE IMPORTANT THAN MOUNTAINS. WE DON'T LIVE HERE AND WE'LL BE GONE!" Considering the Intent and purpose of the Deschutes County Code (Title 18 - Chapter 18.128 -DD -2-e), American Tower will NEVER be in compliance with a monopole at this location. One concern is if semantics or litigation would qualify a lilac bush as SCREENING. Perhaps some AMENDING may be necessary in this area in order to preserve the design Intent. You can't conceal a 150' tower with 40' Junipers. This eyesore is visible for 2 1/2 miles or more and will affect the hundreds of people living In the Plainview area. It's right in everyone's face! We've held the meetings and we've heard the rhetoric. NOBODY wants these things; especially In their backyards, mountain views, sunrises, and moonrises, This Is our county. Surely there must be something we can do to stop these 150' monsters from appearing and desecrating the landscape. Sincerely, Bill and Nancy Keating -Page 2 of 3 - This picture was 1 aken from the Plainview - Highway 20 intersection with a Valmont tower interposed. we� WOO 1,my2 :'Y�t J• DARRELL R. PIEPER 18560 Plainview Road I appreciate the opportunity to address the Commissioners on the subject of amending the regulations for wireless communications facilities in Deschutes County. It is a positive move that the Board realizes a need for changing the existing code. However, after careful study of the proposed changes I must state that these amendments do not go far enough to protect the natural beauty and grandeur of the Bend/Sisters area, nor does it protect the property owners in EFU zones. • As now written, 150 foot tall wireless structures are allowed everywhere in EFU zones, except in "view corridors." View corridors, (LM zoning) are defined as 'A mile swaths either side of major highways, such as Highways 20, 126 and 97. Within these zones, a 30 foot height limit is placed on towers/poles, provid- ing good view protection for all motorists, both resident and transient, whether they are county taxpayers or not. Beyond the "view corridors" towers/poles of 150 feet are allowed, offering no mountain view protec- tion for the guaranteed taxpayers, (landowners). Translation... by ordinance, vehicle drivers have greater view protection than property owners. This is unfair and should be changed to allow equal protection for EFU property owners. • The current ordinances do not limit tower proliferation. At the intersection of Fryrear Rd. and Hwy. 20 there is one authorized monopole and three others at various stages of application for a total of FOUR towers in a very small area. • One 80 -footer proposed by VoiceStream for the butte just south of Fryrear Rd. and Hwy. 20 has completed the neighborhood meeting phase. • A second 80 -footer is proposed by Mericam (Sprint) on private property at 18195 Plainview, approx. 2000' east of Fryrear and 1800' north of Hwy 20. A neighborhood meeting as de- fined by the code is scheduled for Tues. Aug. 15th. • A third tower/monopole, proposed by American Tower Corp for a height of 150 feet is located approx. 3/4 mile west of the Fryrear/20 intersection. The county, last week, received the official application for this site, after the applicant complied with all the prescribed code requirements. • Another VoiceStream pole, a 30 -footer has already been approved for the corner of Hwy. 20 and Fryrear Rd. Why does VoiceStream have two in the same area? This list is a good example of over -saturation and does not include unauthorized monopoles such as the 80 -footer at Gist and Cloverdale in an area where a height of 30 feet governs. • The unfortunate part of the current code is that if the applicant for a new tower/monopole finds a party willing to allow the tower/pole on his/her property, and complies with all requirements as now codified, the application is approved. It doesn't matter that affected, adjacent landowners disapprove. This is a vote of one landowner in collaboration with a large, wireless affiliated corporation outvoting the majority. This is not democratic. All involved should have equal votes. It is extremely important that the code help the majority of taxpaying landowners in the county. There should be a codified procedure where alternative sites (including no -build) proposed by affected landowners be considered. Allowing one neighbor to obstruct the views of the natural scenic area with these tower eyesores is an affront to our sensibilities and may affect our property values, which translates to reduced tax dollars for the County itself. cont'd 2 Darrell R. Pieper, cont'r1 , • The ordinance as written requires, where possible, that applicants co -locate antennas on existing mono- poles in the area to be served. "Existing" is defined, or proposed to be defined, as those structures existing since Nov. 12, 1997. Since I am not a lawyer, I can only assume that any new wireless monopoles/towers constructed after Nov. 12, 1997 are not "existing" by code and therefore new applicants do not have to try to locate on these "nonexisting" (by code) structures. If my interpretation is correct, this is a gross oversight and must be corrected. • Notification requirements are totally inadequate in EFU zones. Only those landowners within 1/4 mile of the applicants' land boundary must currently be notified of monopole/tower proposals. In EFU areas where properties are large, this distance is meaningless, resulting in perhaps only one or two "neighbors" being notified, if that. I suggest that the notification distance for establishing a tower/monopole 100 feet or less in height be 5,280 feet, (one mile), and for those over 100 feet, a notification distance of 10 miles be required. This distance is based on the fact that a disturbing, blinking red light on Aubrey Butte is quite visible on Plainview Road, a distance of almost 20 miles. • Recommendations to be considered: 1. Establish a moratorium on any additional applications, to allow time for thorough study of all aspects of the code and potential solutions. There must be a comprehensive plan that satisfies both the residents and the wireless companies. Published reports indicate that 85% of the land in Deschutes County is government owned. So far, government entities have not consented to allow these wireless facilities on the government managed lands. This effectively excludes 85% of the land in Deschutes County and places a tremendous burden on the private landowner. If government lands were found to be the best solution in some instances, then that location should be pursued through the appropri- ate channels instead of being automatically excluded. Private property should not have to bear the complete onslaught of these communications facilities. We must find a win/win solution to this prob- lem. Right now, these wireless companies are hurrying to get in before any codes are tightened. They know there is public concern about these towers. Acting hastily may overlook details that we will regret in the future, as the wireless world expands. 2. An area map be developed and published on the County web site and in local papers, indicating existing and proposed wireless tower sites. 3. Restrict wireless towers and monopoles in EFU zones to 30 feet, thereby giving landowners the same protection of "view corridor" as is now afforded vehicle drivers. Otherwise consideration of the following additional recommendations is requested: 4. Increase notification distances to one and ten miles. 5. Limit the number of wireless towers/monopoles in an area to one per ten square miles. 6. For the first approved wireless tower/monopole in an area, require all other applicants to use this structure. 7. Require a vote by landowners in the "area." The application is denied if a majority disapprove. If a landowner does not vote, this constitutes an approval vote. (If people really care, they will vote.) 8. Prior to the "neighborhood" meeting, require the prospective applicant to fly on site, a fluores- cent red helium balloon at the height of the proposed pole, for no less than 24 hours. 9. Require the wireless affiliate to post bond equal in value to the construction costs, to be used if the tower/monopole is to be removed because of nonuse. Current code requires the landowner to be responsible for the removal of said structure when necessary. Thank you for your time. P A N O R A M A R A N C H ^IP'"` VARRELL R. PIEPER PO Box 2 1"10 Slaters, OR 9'7'159 541-31'1,4623 Fax: 541-31 1-501 1 email: drpopanoramaranch.com Panorama ��. 4enGh From Highway 20 turn north on Fryrear Road. �. Take second right,'Plalnvlew Road'. Follow road to 16560. Enter thru main gate. Stay left thru second gate to Barn ! 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