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2001-35-Minutes for Meeting December 04,2000 Recorded 1/11/2001VOL: CJ2001 PAGE: 35 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02001-35 * Vol -Page Printed: 01/16/2001 08:54:20 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: Jan. 11, 2001; 4:35 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 12 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK PAICR0 ED JAN 17 2001 SCE N Eli A 1 2001 �20_35 Board of Commissioners 1 130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF JOINT PUBLIC HEARING Mike Daly The Board of County Commissioners and the Community Development Department Regarding Proposed Changes to the Deschutes County Code Regarding Wireless Telecommunications Facilities MONDAY, DECEMBER 4, 2000 Chair Linda Swearingen opened the meeting at 4: 00 p.m. Commissioners present were Linda Swearingen, Dennis Luke and Tom De Wolf. Also in attendance were Commissioner -elect Mike Daly; Damian Syrnyk, Geralyn Haas and Christy Morgan of Community Development; members of the media; and approximately twenty citizens. Chair Linda Swearingen gave a brief* explanation of the reason for delaying the decision on this issue, due to potential impacts of the passage of Measure 7. Measure 7 deals with compensating property owners should their property be downzoned, and it is determined that the property owners should be compensated for a loss of use. Chair Swearingen further explained that no one is quite sure yet where the law would fit into this decision, if at all. She indicated that the Commissioners want to be very certain of the ramifications before they make any permanent changes to the County's Code so that they can avoid potentially very high costs to the County's taxpayers. Commissioner Luke indicated that not all of the Commissioners had reached a decision in any event, and he is interested in hearing all additional relevant public testimony. He further said that Deschutes County is one of the few, and perhaps the only, County in the state that has a cellular tower ordinance, which is a good one; and that the suggestions from the Planning Department would serve only to strengthen that ordinance. Minutes of Joint BOCC/CDD Hearing Page 1 of 12 Telecommunications Towers Monday, December 4, 2000 Quality Services Performed with Pride Commissioner DeWolf stated that the timing that is being considered, which would be February, gives an opportunity for legal counsel and the Attorney General to give direction regarding the impacts of the passage of this Measure. He stated that the Measure is somewhat vaguely written, with even the authors of the Measure unsure about some of its ramifications, and the legislature may have to sort out some of the details. Geralyn Haas, Principal Planner of Community Development, explained the issue before the Board. The two proposed amendments to the Deschutes County Code, Title 18 of Deschutes County's Comprehensive Plan, Title 23, propose adding a narrative in Goals and Policies. She stated that Ordinance No. 2000-027 would amend the Deschutes County Code Title 18; and Ordinance No. 2000-030 would amend Deschutes County Comprehensive Plan Title 23. She said that these items are before the Board of Commissioners based upon a joint public meeting that was held with the Planning Commission on July 10, 2000; at that time the Board of Commissioners and the Planning Commission opted for the Planning Commission to review the existing ordinance. Proper notices were prepared and printed; over 42,000 notices were sent out with the October 2000 tax bill; and the Planning Division published legal notices and display advertisements on two dates. The Planning Commission held seven work sessions, conducted site visits to wireless sites, and held a public hearing on November 16, 2000, with the record left open for written comments until Monday, November 27, 2000. They reconvened on November 28 to formulate their recommendation, which is what is before the Board today. She then gave a brief overview of the exact location of the changes within Title 18. The changes would mean an overall lowering of the maximum height allowed for wireless telecommunications facilities, changing application requirements, changing notification to the public and neighborhood meetings, providing for a crane test to be able to visualize the impact of the proposed facility; screening of the equipment, including camouflage; code enforcement; and the removal of structures that are no longer in service. Ms. Haas further stated for the record that at the time the Board of Commissioners met with the Planning Commission, the Board directed the Planning Commission to look at the height exception process - specifically anything over thirty feet. This issue was noticed at the same time as the wireless facility. The Planning Commission has opted to continue that hearing, which will be held by the Planning Commission on February 22, 2001, at 5:30 p.m. in the Administration Building. Minutes of Joint BOCC/CDD Hearing Page 2 of 12 Telecommunications Towers Monday, December 4, 2000 Damian Syrnyk, Associate Planner of Community Development, then spoke. He gave a brief summary of the changes and Exhibits A, B, C, and D of proposed Ordinance 2000-027. He indicated that he had received a letter from Paul Bianchina dated December 4, 2000 (Mr. Bianchina is the Chair of the County Planning Commission); a letter via fax and e-mail from Kathryn Kimball, Attorney at Law; and an e-mail from Michelle and Tom Grimm dated December 1, 2000. All have been made a part of the record. Mr. Syrnyk explained that some of the items that are to be addressed are power transmission lines, substation towers, amateur radio and similar uses. He then gave a brief overview of proposed Ordinance No. 2000-030, regarding a narrative in Goals. Chair Linda Swearingen then opened the hearing at 4:20 p.m. Ralph Moskowitz then testified. He read a letter from Tom and Michelle Grimm, who were unable to attend (already apart of the record - an e-mail dated December 1, 2000). Linda Moskowitz then read a statement into the record. (This written statement is now a part of the record.) Steven Topp then spoke. He indicated he is a proponent of wireless telecommunications towers, and works for SBA Communications of Portland. He stated that SBA sites and builds cell towers for carriers, leasing out the space to users; and it also acts as a contractor for various carriers to find and build towers specifically for their needs. Chair Linda Swearingen stated that under the current County ordinance they can't build unless they have a particular carrier in mind. Mr. Topp stated that the Telecommunications Act defines cell facilities and cell service providers. He said some recent court actions (in District Court, Connecticut) are still underway, but are leaning toward recognizing that tower builders have the same rights as carriers. Chair Swearingen asked if Mr. Topp understands the Commissioners' reasoning. Mr. Topp replied that he understands the reasoning, but the issue he has the most problem with is the reason for having this at the zoning stage versus the building permit stage. Minutes of Joint BOCC/CDD Hearing Page 3 of 12 Telecommunications Towers Monday, December 4, 2000 He said that what this amounts to is not allowing anyone to even get the zoning application processed through without the carrier already being in place, versus a building permit where if your ultimate goal is not to have something built that's not being used, applied at the building permit stage. He asked why are you not even allowing them go through the zoning stage, when a carrier could come right in and do it. Mr. Topp said that his other concern is dealing with something that ends up in the books but can't be enforced. He feels the process should be deferred to the building permit stage, which would protect the County's interest, so that the County would not open itself up to something that might not be enforceable through the courts later. Chair Swearingen replied that at this point it is enforceable and, having been involved in this process for the past four years, she indicated that her concern is exactly what is happening right now. All of a sudden many antenna operators want to place antennas willy-nilly around the County, and then announce they have a tower and can place carriers on it. This is instead of looking at particular needs and refine what is necessary. Mr. Topp said that he would hope the County would try to avoid antiquated Code provisions, which staff would have to struggle through in the future. He said that he would prefer to see a level playing field for both providers and actual operators, by at least getting the zoning approved, with no building to take place until a carrier is approved and in place. Commissioner Luke stated that if you are looking at any other planning project, except maybe a residence, you have to bring in the type of project you're going to do if you want zoning exceptions. To go through a zone change usually is done when a project is examined. Mr. Topp said he is talking about a use that is permitted within a zone, but the County is saying that if you already have a license and you can do it, but if you don't, you can't. We know we have to have an "anchor tenant" before building. The final result is going to be the same. Commissioner DeWolf stated that these are people who are specifically in the business of providing the service, and that Mr. Topp's company is in the business is providing the structure only. Minutes of Joint BOCC/CDD Hearing Page 4 of 12 Telecommunications Towers Monday, December 4, 2000 Mr. Topp explained that in his opinion there may be unenforceable items in the Code. (He then referred to oversized maps showing different numbers of towers in various locations.) He said that if the maximum height allowed is just above the treeline, it could double or triple the number of towers needed for the same service. Commissioner DeWolf asked what is the function of community aesthetics? The community can decide if they want thousands of them placed on telephone poles, rather than a few tall, lighted towers. Mr. Topp said that in regard to moratoriums, recent court cases were overturned; it took four years and a lot of money and effort. He further said that regarding the environmental impacts that have been brought up, the Telecommunications Act takes this out of the local zoning review process. The Federal Government has already determined that this is a non -issue. (He then brought up a few typographical errors that he noticed in the County's documents. County staff took note of these errors and will make the appropriate changes.) Rick Lyon, the Network Operations Director for Rural Cellular Corporation (doing business as Cellular One, Northwest Region) then testified. He said they have contractors build towers for them, and already have some within Deschutes County. He recommended that if the County is looking at changing the ordinances, the County should go back to a workshop so that current technology can be better understood, as it has become quite involved and very complicated. He said that the time allowed in these hearings makes is very difficult to fully explain the technology, even when taking into account the community meetings held where expert testimony was sought. He said he attended many of the meetings, and at times the Planning Commission did not understand the validity of the statements made and therefore discounted the information. He said that cellular and PCS work very poorly in trees, and to diminish the towers to the height of the trees requires a tremendous amount of towers; an open tower can cover perhaps thirty miles, and one limited to the treeline may cover just a mile. Commissioner DeWolf stated that it is understood that if something is in the way, it won't work as well; but that the community must sometimes decide between service and aesthetics. Minutes of Joint BOCC/CDD Hearing Page 5 of 12 Telecommunications Towers Monday, December 4, 2000 Chair Linda Swearingen said that members of the Planning Commission totally understand what's been said, and have decided that it is more important to take care of the aesthetics of the area instead of the tower operators. There is a value to protecting visual corridors. Mr. Lyon said his company, which is a single provider, realizes what the community is trying to protect, and asked for towers twenty feet above the treeline, not 200 -foot towers. However, he said sites are very expensive, and it becomes cost -prohibitive and therefore service is degraded. Commissioner DeWolf said that the Planning Commission has heard no complaints about service from cellular customers; if the customers want better service, they may be willing to pay more. Mr. Lyon said it doesn't work that way for his company, as his prices are set for a whole region - the rural areas of Washington and Oregon. He said they do get some complaints already about specific locations, and have encouraged those people to get involved in this process if they are sincere about getting better cellular service. He further explained his concerns regarding the safety reasons for the 9-1-1 fire and public safety people. Chair Swearingen said that the Board is hearing from hundreds of people who are more concerned about the cellular towers than better cell phone coverage, and no one has contacted her asking that the cellular companies be allowed to have higher towers for better service. Mr. Lyon said that some statements have been made to limiting towers to 100 feet, and there are some areas where the trees are that high; some statements have indicated towers should go only to the treeline. This appears to be a contradiction in some areas of the County. Damian Syrynk said that the intent was that they would not exceed 100 feet in height. The first standard, not exceeding treeline, would be the more restrictive clause. He said this clause can be refined if the Planning Commission feels it should, and he will discuss this with them. Mr. Lyon said that the FCC has a minimum height requirement for transmit antennas, which is ten meters or approximately thirty feet, due to safety and public health concerns. This would be the bottom of the transmit antenna. Minutes of Joint BOCC/CDD Hearing Page 6 of 12 Telecommunications Towers Monday, December 4, 2000 Randy Windlinx then testified. He said he is a consultant for Cellular One, and oversees permitting and building facilities for them. He explained that years ago 150 -foot monopoles were presented, and there was a knee-jerk reaction from the community. However, the existing ordinance that was developed as a result was a good one and should still serve; and the ordinance as it stands should run its course for a while. He said his is concerned that either the height of the antenna or the height of the tower be clarified. He also said that the new ordinance does not allow lighting on the tower, but most towers do not need to be lighted, per the FAA. He stated that he is concerned the existing ordinance has only been in place for three years, and is working, so why should it be changed now. Different carriers cannot build the same way, but his company has been working with it for years. Commissioner DeWolf asked if Mr. Windlinx feels this is too restrictive in regard to co -location. Mr. Windlinx said you can go too far. He feels that he'd rather see two or three small wood poles on a mountain below the horizon than a proliferation of small, galvanized monopoles strung out every mile. He said that private property rights go both ways; there is no guarantee of a 100% view forever for everyone. People have to take into consideration that they don't own past the edge of their property, trees can grow up, someone can build a house or a barn, and so on. As long as people develop their land in a respectful manner, they have a right to do so. It's the responsibility of the County and the cellular tower companies to maintain both private property ownership and the rights of the person who is leasing the property out to the carrier. He further explained that vertical capacity requires taller towers with a space separation between each carrier's platform, but we aren't prepared as a County to have spec towers. There is a problem with "paralysis by analysis". There are a lot of poles in the area, and there are places where 150 -foot monopoles would be suitable. Kevin Martin of Portland then testified. He said he was on the original committee that worked on the ordinance in 1996, along with Randy Windlinx. He is now a land use consultant, and two of his clients are Qwest Wireless and SBA Towers. He spoke about what he called some of the pragmatic issues of the ordinance that raise some technical and legal difficulties, and some fairness questions. After listening to recent testimony, he feels the ordinance borders on punitive against the wireless carriers for several reasons. Minutes of Joint BOCC/CDD Hearing Page 7 of 12 Telecommunications Towers Monday, December 4, 2000 A technical matter of Oregon's exclusive farm use statutes concerns him, as he feels that the way this issue is being addressed in Deschutes County conflicts with ORS 215, which indicates carriers are being treated differently. The courts have been very clear that ORS 215 must be followed by the counties. You are now imposing a height limit of 100 feet in EFU zones, and that is not allowed per ORS 215. There was also a clarification passed in the last session as to how to determine whether a utility facility is necessary for public service. The courts have ruled that a wireless facility in an EFU zone anywhere in the state is a utility facility necessary for public service. Although these rulings don't fit wireless well, they are still applicable. Another issue regarding fairness has to do with Measure 7. There could be loss of value in property because you can't do something. Also, being able to do something has been so heavily regulated that one can't afford to do it. He indicated he examined what a wireless carrier has to go through to build a tower, and no other type of developer has to do that amount of work. There is the issue of bringing a crane to the sites, which costs a minimum of $500 to $ 1,000 for the crane for one day, plus the cost of the consultant and whatever safety people that are necessary. This accomplishes very little, as this can be done by photo simulation. The other issue is having to reapply every five years. What this means is that if the County dislikes a tower enough, it can go in before the end of five years and amend its code so the tower no longer complies. Commissioner DeWolf asked if Mr. Martin would put all these details in writing and submit it to the County for the review of Legal Counsel. Mr. Martin agreed. Mr. Martin also brought up the alternative sites analysis requirement. This could goon indefinitely. You need to clarify what the alternative sites can be used for; you can't be using it so that you can keep sending someone back to until you get a site where no one complains about it. Chair Linda Swearingen stated that the intent was to find an unobtrusive site; it wasn't to cause people to keep running in a circle. Mr. Martin said he doesn't think this ordinance gets you there. Minutes of Joint BOCC/CDD Hearing Page 8 of 12 Telecommunications Towers Monday, December 4, 2000 Mr. Martin explained the laws of physics indicate that below the tree height level won't work well; and what about areas where there are no trees? Commissioner DeWolf asked how many of these towers are necessary in a county this size. The public is concerned about a row of towers. It would help if the providers got.together and indicated what is truly necessary for the area. The public has it coming at them in a piecemeal fashion by various groups. Mr. Martin said that a lot of communities require that when an application is submitted, the existing service network is shown as well as the proposed network, and how it all fits together. He said the City of Vancouver and other areas have required this. Commissioner DeWolf then asked about the other argument that comes up, which is what will be required ten years from now, if anything? We may all be communicating via satellite. Mr. Martin said he disagreed; satellite carriers are having trouble selling their service; some areas are not responsive to that type of technology; and there are not enough radio frequencies available. (A general discussion occurred regarding wireless Internet servers, frequencies and megahertz.) Mr. Martin said he agrees with Mr. Windlinx in that the existing ordinance has worked quite well, although presenting some difficulties; this change would make it impossible. Larry Lennon then testified. He indicated he was bothered by some of the things that were brought up in tonight's meeting. He noted that the people who are supportive of the towers fall into two categories: they live in another area, or they are in the business. He also suggested that if the towers cost more, the providers can raise their rates and the users should be willing to pay for it. He also said that one of the speakers noted that complaints have been received about a lack of service coverage; but they don't seem to have the time to come down and talk with the County about their concerns. Minutes of Joint BOCC/CDD Hearing Page 9 of 12 Telecommunications Towers Monday, December 4, 2000 Rick Lyon then testified again. He wanted to clarify the question about public health concerns. The ten -meter height is a concern regarding power. The health concerns that everyone seems to bring up has to do with frequencies, and the government has deemed this is not harmful. Mike Schneider then spoke. He said he lives off Plainview Road, and the proposed tower will not be in his line of site. He wanted to encourage leaving the crane test in, as when a balloon test was done in Plainview, the residents only knew about it because of repeated inquiries of the carrier. The balloon test only allows enough time for tower people to go around and take photos, but allows little time for the residents, especially those who are at work all day, to even know about it. Mary Tomjack testified. She wanted to add that she feels diligence is very important, and all legal ramifications of the changes to the code should be considered. She wanted to point out that it is only the cell tower providers and builders that are concerned about the code being tightened. Commissioner Dennis Luke commented that when code changes and land use regulations are passed, people don't understand the ramifications and effects on them until they apply for something themselves. If people are not directly affected, they don't complain. Geralyn Haas stated that she got comments from the industry at work sessions. Community Development wanted a master plan, but this request was not well received by the industry; they did not want to come together on this. Randy Windlinx replied that the industry is too dynamic, with too much ongoing change, especially in regard to population and the number of users. Steve Topp added that really tall towers aren't always necessary, and they would like to promote co -location. There is a disparity in the number of towers needed. Maybe stealth can be used in some instances, but it is very expensive. Commissioner DeWolf stated that perhaps camouflage might allow locating in areas that otherwise would be a problem. There are companies that offer this alternative, and this may be a way to mitigate some of the problems. Geralyn Haas said they would look at crafting additional language that looks at doing the camouflaging for some structures, and a review process for that. She added, however, that some service providers indicated this could cause a loss of coverage. Minutes of Joint BOCC/CDD Hearing Page 10 of 12 Telecommunications Towers Monday, December 4, 2000 Steve Topp went on to explain that there are provisions for the local jurisdiction to require the cell providers to go through a zoning process so that they better fit into the community. However, one of the caveats is that it is exorbitantly expensive. This may be enough for one of the service providers to decide to take it through the court system. Linda Moskowitz testified that she supports stealth technology, but the tower companies just simply want to build and the public does not feel protected as it is. She further said that if there are no trees, there are lots of power poles to co -locate on; or can be placed on poles along the utility corridor. She also stated she prefers the photo crane requirement rather than photo simulations, which fail to get out to the public. She further asked if the Board has considered hiring a consultant to make a list of legal questions for review; someone who is not influenced by the wireless industry. Commissioner Luke said the County has experienced inside counsel and can refer to others in the state for information. Hiring a consultant would add an extra cost to the taxpayer that probably is not necessary. Chair Linda Swearingen added that she does not deny what the industry has said; but if there is a community value involved, customers will pay more for services. Commissioner Luke said there must be a certain known amount of preferred sites deemed necessary in the foreseeable future, but these should be identified somehow. He asked if this is reasonable. Kevin Martin replied that this may be reasonable, but is impossible to implement. The City of Eugene did this, trying to designate areas; but a consultant the City hired determined that this would not work. There are too many needs and too many different kinds of frequency and technical needs. (He then explained the different signal modulations and other information that was considered.) Being no further input offered, Chair Linda Swearingen closed the public hearing until February 7, 2001. She left the written record open for seven days until Monday, December 11, 2000, at 5: 00 p. m.; with all written input to be delivered to Community Development at 117 Lafayette Avenue, Bend, in either a mailed, faxed, e-mailed or hand -delivered format on or before that date and time. Minutes of Joint BOCC/CDD Hearing Page 11 of 12 Telecommunications Towers Monday, December 4, 2000 Being no further discussion, Chair Linda Swearingen adjourned the meeting at 6:10 p. m. Dated this 4t" Day of December 2000 for the Deschutes County Board of Commissioners. hL41 inda L. Sw arin n, Chair ATTEST: If5ennis R. Luke, Commissioner Tom DeWolf, Commissio er Minutes of Joint BOCC/CDD Hearing Page 12 of 12 Telecommunications Towers Monday, December 4, 2000