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2001-93-Minutes for Meeting February 13,2001 Recorded 2/28/2001VOL: CJ2001 PAGE: 93 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02001-93 * Vol -Page Printed: 03/13/2001 10:58:54 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: Feb. 28, 2001; 4:15 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 40 MARY SUE PENHOLLOW K UN Eo DESCHUTES COUNTY CLERK til 13 200*1 trllCROFI MAR Oi 01 FE 28 PIN 4: 15 1'1t.1� it v'la 11- *'t }.i'�i.t'��._l 0lvi C0b!il i l.LL" iiti 'uj Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 - Fax (541) 388-4752 www.deschutes.org Tom De Wolf MINUTES OF PUBLIC HEARING Dennis A. Luke Mike Daly Appeals of Hearings Officer's Denial of a Conditional Use Permit to Establish a Wireless Telecommunications Facility in the Surface Mining Zone (on "Laidlaw Butte") Applicants: Tumalo Irrigation District/Cellular One Tuesday, February 13, 2001 Before the Board was a Public Hearing on Appeals #A-00-15 (Tumalo Irrigation District) and A-00-16 (Cellular One) of Hearings Officer's Denial of Application No. CU -00-92, Regarding a Conditional Use Permit for a Sixty -foot Wireless Telecommunications Facility on Laidlaw Butte. Chair Tom De Wolf called the meeting to order at 5: 30 p.m. Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also present were Mark Amberg, Legal Counsel; Damian Syrnyk, Community Development; members of the media, and approximately 20 citizens (see attached sign-up sheet). Commissioner De Wolf asked that people be considerate about limiting their testimony to a reasonable period of time, and also asked that everyone be respectful to each other. Damian Syrnyk read the opening statement regarding the reason for the appeals, detailing the nature of the appeals and the time matrix of the issue to date. (Attached as Exhibit A.) LUKE: If people testified before the Hearings Officer and do not testify tonight, do they still have a right to appeal? Minutes of Public Hearing Page I of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Quality Services Performed with Pride SYRNYK: Yes, they have a right to do so if their testimony is contained anywhere within the record. Does the Board have any contacts that need to be disclosed at this time? LUKE: Some people testified at the Citizen Input portion of the Board Work Session this week. Is this considered a part of the record? SYRNYK: This is not a part of the record at this point. It can be if the Board so desires. Representatives of both sides of the issue were at that Work Session. LUKE and DEWOLF: These should be made a part of the record. (The citizen input referred to was included in the Minutes of the February 12 Board Meeting, and Mr. Syrnyk has received a copy of those Minutes for the record.) DALY: I've had no personal contact other than e-mails and letters I have received. I have visited the sites and viewed them from every angle. DEWOLF: I have received e-mails and letters as well. LUKE: I also have received e-mails and letters; and I drove by the sites on the way to another area. SYRNYK: Any challenges from the audience? No challenges were received. At this time, Mr. Syrnyk gave an overview of the items contained in the record. He also read a list of the names of those who had sent letters and e-mails and other information regarding this issue. (Attached as Exhibit B.) Minutes of Public Hearing Page 2 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Mr. Syrnyk further explained that the entire record is available for review by citizens. (It was also available in the room at this meeting.) He also gave a brief overview of the notice provisions that were required and met. A general discussion of the transcripts of the minutes of previous hearings occurred. Mr. Syrnyk also said that parties to the application have testified, and they can appeal any decision if they wish to do so. He further explained that testimony would be restricted to these criteria. (An overhead projector was used to detail the criteria for the benefit of the audience) Chair DeWolf read a summary of the four criteria detailing why the applications were denied. He also said that if citizens have written testimony, they should present this to the Recording Secretary and just touch on the high points in their oral testimony; and that it is unnecessary to repeat someone else's testimony if theirs is identical. He also said that the Board would not be making a decision at this point as the Commissioners will want to review any new oral or written testimony that has been received. CHRIS ECK (an attorney representing Tumalo Irrigation District): I submitted a copy of the burden of proof to each Commissioner today. The first criteria at issue is the first criteria Karen Green interpreted in conjunction with a state statute having to do with a County ordinances relating to utility facilities in an EFU zone. There's the potential that the EFU analysis that she applied was correct, because the County did not take a Goal 3 exception to this piece of property. The criteria she used are an issue. If we use the EFU criteria it is very clear that Tumalo Irrigation meets that criteria on one or more basis. The communications towers are by their very nature locationally dependent facilities. They have a unique geographic component and requirements due to the technology. That's one of the criteria under the statute that Karen Green cited. There is an LCDC administrative rule that indicates specifically that communications towers are locationally dependent items. Minutes of Public Hearing Page 3 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: While Ms. Green may have ultimately gotten to the right spot, the State statute really wasn't designed to deal with communications towers; utility facilities are something a little different than what they were trying to address, such as water treatment plants and bigger operations like that in an EFU zone. In our written submission there is written testimony of Rob Russell, who is the radio frequencies expert. His testimony clearly establishes that the alternate sites that had been considered have technical and engineering feasibility issues that eliminate them from consideration. He indicated that this is part of the written record already. LUKE: Was this a part of the original record submitted to Karen Green? ECK: No, it Wasn't. In light of her applying a statute that arguably would apply, we decided to address those criteria even though it may not be directly applicable. The second issue to be considered tonight is corollary, but it is the alternative sites analysis under Deschutes County code. I believe that Karen Green misinterpreted those criteria as indicated in our original testimony, and that she struggled with these criteria. That criterion requires that the applicants show that they have considered alternate sites, and in particular sites that are already developed that can be co -located upon within the search area. These are specifically the issues that Mr. Russell looked at, and came to the conclusion that Laidlaw Butte is the only viable option for Tumalo Irrigation District. You'll hear about or read about different alternative sites that Cellular One use, which makes sense because Cellular One's technology is different from our two- way radio technology. We have different requirements and equipment, and our radio station license allows us to have a single type of antenna at a specific location. It's not a multi -channel cellular type service. LUKE: Is this type of equipment closer to citizen band or ham radio type of use? Minutes of Public Hearing Page 4 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: Yes, it is closer to that. It does have a repeater. When the criteria are properly applied, you'll find that in conjunction with Mr. Russell's testimony that Tumalo Irrigation District satisfies the criteria, and looked at alternative sites and couldn't find any that meet the criteria. The third and fourth issues are related. In my opinion they just take a different vantage point for analyzing the visual impacts. The first takes the viewpoint of nearby residences, that Karen Green found to be two miles; and the other one takes in the impact from protected roadways, the only one in this area being Highway 20. Ms. Green determined that anything within two miles was included as a nearby residence. The facility is sited on Laidlaw Butte and uses the terrain and vegetation to the maximum extent practicable to screen the facility as much as possible from nearby residences and any protected roadways. Ms. Green found that the criteria do not require the facility to be concealed or invisible from view; it requires a balancing. Radio frequency is a line -of -sight technology by its very nature and needs to be above trees. The practicality side of it is that there is going to be some part of the facility that is going to be above the tree line in order to achieve its line -of -sight requirement. I would venture an opinion that if Cellular One weren't a part of this, we would not be here tonight. Most of the visual impact issues relate to their needs. DEWOLF: The pole there right now is visible? ECK: Yes, it is visible from some of the nearby residences. LUKE: You're not on top of the butte, are you? ECK: The butte has a flat top, and it is on that section. Minutes of Public Hearing Page 5 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 LUKE: So it has to be that high to reach the employees who are out in the field. ECK: Yes. The previous height of thirty feet gave us too many dead areas. This information is in the transcript. MATTHEW SUTTON (An attorney representing Cellular One): He introduced Rick Lyon, the Network Associates Director; and Dave Huskey, the radio frequencies engineer, both of Cellular One. At this time he offered into the record the actual original exhibits for the record, Exhibits A through O, as well as the original burden of proof. (He provided these Exhibits to Damian Syrnyk.) He stated that Exhibit O was prepared just today. SUTTON: Now to explain why we're here. There are coverage problems in the Tumalo area, per testimony at the original hearing. The first criterion gets into the public service aspect and the necessity of going to the surface mining zone. Part of this is that there is, in fact, a coverage problem. This is documented in the record already, including letters from businesses and the Sheriff's Office as well. This also impacts the business user, as well as emergency service providers and ordinary citizens. DEWOLF: What if someone doesn't have Cellular One service? RICK LYON: Depending upon which carrier they use, it is possible they would be using Cellular One service through our agreements with those carriers, if the user has roaming service. SUTTON: I would like to refer to a map in the packet, Exhibit E, that shows the coverage problems in the area. (This map is already part of the record.) This is done by a line of sight analysis through a computer program that takes into account terrain and elevation variations. This is a line of sight technology that requires a clear, unobstructed path between the receiver and the antenna. These maps do not reflect the vegetation that also presents obstructions to the line of sight. Minutes of Public Hearing Page 6 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 LUKE: What is the purpose of the circled area? SUTTON: The circled area shows our service area. It's approximately a five -mile diameter area. We are only seeking to cover this particular area. LUKE: I'd like to know how much overlap there is from other antennas. SUTTON: We have considered other sights with less visual impact. We have also considered screening as much as possible. In the first criteria we feel it is necessary to go into the surface mining zone to meet our coverage goals. (He referred to Exhibit Fin the packet given to the Board.) The first reason why is that it is the only place we can co -locate. Contrary to what the Hearings Officer said, we feel you need to look at all the ordinances together. If we don't look at all of the statutes we could get ourselves into a situation where we can't meet the rules. Our responsibility to co -locate puts us into the surface mining zone, as it's the only real place we can co -locate. DEWOLF: Why can't you co -locate on telephone poles along the highway? SUTTON: We tested at a power pole site off Gerking Market Road. Like other sites we tested, basically they all have to overcome Laidlaw Butte. We either have to get on the butte or get over it. We'd have to construct a tower that's several hundred feet high to keep our line of sight where we need it. DEWOLF: What's the point of this particular area? How many users living in this area require better service? You could use telephone pole locations for travelers. SUTTON: The ordinances of Deschutes County do not invite the proliferation of that type of development, with a string of these on telephone poles. There is a cost factor as well. Minutes of Public Hearing Page 7 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DEWOLF: If you're looking at the highway, why not go every fifth pole. SUTTON: (Referred to Exhibit E.) There are intervening trees and other terrain that would be a problem. There are homes that need to receive coverage as well. DEWOLF: So if you add this tower, all the white areas on the map would be covered. How many people live in those areas that need the coverage? SUTTON: In the record there are customer complaints, including calls from the Sheriff's Office — possibly 1,200 to 1,500 calls over the last few years. This is a systematic problem that we are trying to address through these proceedings. Regarding the surface mining criteria, it's the only location we can co -locate. Exhibit I shows similar gaps in coverage. Mr. Huskey has concluded that if we get on the top of Smokey Butte we'd need a 200 -foot tower to meet the coverage needs. That's the only possible co -location place, but we've tested it and the coverage problems are the same. There is an error in the Hearings Officer's information as well. Laidlaw Butte is 3,570 feet in elevation, per topographical maps. Exhibit J and G and H are other test sites we looked at in other zones; however, Laidlaw Butte is still a problem. There are built-in limitations in the zoning ordinance that prevents going into residential rural or farming zones. Other sites have been sought, testing has been done, and going into the surface mining zone appears to be necessary. In the second main point where we disagree with the Hearings Officer's findings, we feel that we satisfied the second criteria regarding evaluating other sites in the area with less visual impact on the surrounding neighborhood. We considered alternate sites and sites for co -location, as she is asking us to look at other sites where we can co -locate, and this is the only location we can do so. No matter what we do or where we go, there will be some objection regarding visual impact. We did consider other sites as required by the ordinances. Some people say that this pole obscures the view of the mountains, but the Hearings Officer was skeptical and did not fully agree with these objections. Minutes of Public Hearing Page 8 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 SUTTON: If we move the tower off Laidlaw Butte, the other alternate sites do not meet our coverage requirements, and do not provide the service that's necessary for our customers. The statute says that we can rule out potential alternate sites if they do not fulfill our coverage requirements, or if the sites are simply not available. LUKE: Were these not submitted to the Hearings Officer? SUTTON: That's right; these are new reports and maps that were drawn up since that time. DEWOLF: What about camouflaging, and why has neither applicant proposed that? SUTTON: We will paint it whatever color best fits in. We've talked about screening, such as something that looks like trees, but it still obstructs line of sight. DEWOLF: I hear this from the industry, but I've received a lot of information on camouflage that says it does not impair the technology. Why the objection, if it didn't cause interference or line of sight problems. DAVE HUSKEY (a Radio Frequency Engineer for Cellular One): There are devices for camouflage, and some have a minimal effect. This is fairly new, and we are concerned that they would accumulate snow that interferes with the signals. We are skeptical because they don't have a track record. Of course, vendors will put the best possible spin on their product. DEWOLF: Is Cellular One testing these? HUSKEY: Not that I'm aware of. Other larger companies may be doing so. SUTTON: Regarding the criteria of using other sites with less visual impact, if you find a co - locate site, you satisfy the criteria. We have also done the alternative site analysis. Minutes of Public Hearing Page 9 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DEWOLF: We have Tumalo Irrigation District with a sixty -foot pole, and you are co -locating. Staff says the sixty -foot pole was erected without a permit, and was thirty feet tall before. SUTTON: When there was a thirty-foot pole there, it was an existing pole. LUKE: Could you co -locate on a thirty-foot pole? Does Exhibit E show what the thirty- foot tower serves? SUTTON: A thirty-foot pole would provide insufficient coverage. DEWOLF: Then, if you don't have each other, you can't win. HUSKEY: The exhibit does not reflect the impact of trees. There are areas that we know are not adequately covered because of the vegetation. The problem with trying to display a large area is that the basis of all tests at all levels is averaged. This means there are always small holes. We refer to coverage within 90% of the area, 90% of the time. LUKE: Is it more like an FM or AM signal? HUSKEY: It's more like FM. (A general discussion of kHz and Megahertz then occurred.) LUKE: Then Exhibit E shows pretty much how the area is served now. HUSKEY: Yes. Minutes of Public Hearing Page 10 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DEWOLF: On page 23 of the Hearings Officer's report, she finds that Cellular One's line of sight evidence and argument does not adequately explain while multiple shorter poles and antennas along Highway 20 could not achieve its coverage objectives. Rather, you are relying upon each other to justify the need for a taller pole. SUTTON: Even if Tumalo Irrigation District never had a thirty-foot pole, our testimony would be the same. We've still done the testing, and we've surveyed the whole area, and there is no other place we could co -locate. Therefore, we'd be in the same position as now. We made a good faith effort to find other sites and to utilize co -location. Putting poles along the highway is considered proliferation, and we don't read your ordinance as this being desirable in the community. DEWOLF: Telephone poles are already there, so why not co -locate on those? SUTTON: We'd have to add more equipment and height to those as well. We have to meet the criteria that are there, which we feel we have done. We don't have to explain why we don't put up a bunch of poles if we comply with the requirements of the ordinances. DEWOLF: If you're meeting 90% of the need — which is probably on that highway — you've got it covered. SUTTON: We're looking at more than just what is on the highway. The ordinance does not require us to put up multiple poles on the highway. HUSKEY: 90% does not refer to volume of calls; it refers to the area served. Some equipment on some of the poles might fix some of the holes in service, but it still won't provide coverage to other areas. Minutes of Public Hearing Page I 1 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: Regarding using each other to meet objectives, Deschutes County staff directed us to combine our efforts and address this as one entity. Tumalo Irrigation District could have submitted an application for a whip antenna and then Cellular One might have come in to co -locate. DEWOLF: Putting up the sixty -foot pole without a permit started this issue. ECK: Regarding the issue of code enforcement, there was nothing illicit about that. There was a new ordinance in effect and a misunderstanding about requiring a permit to change Tumalo Irrigation District's two-way radio communications. When we learned that a permit was required, staff said Cellular One had to be considered at the same time. We are being considered together because we were forced to be. We are two separate appellants with different needs, but it doesn't get you to where the ordinance wants you to go, which is co -location whenever possible. LUKE: What is the 24 -inch microwave dish that looks like it is about 17 feet up? HUSKEY: It's Cellular One's. It links this cell site into our system. I'd like to make one point on the telephone poles. Due to the fact that the telephone poles are relatively short, to provide coverage throughout an expansive area we would have to have cell sites on poles about every '/2 mile, which would be very intrusive. DEWOLF: The community doesn't seem to complain about short, under 50 -foot, obstructions. I recognize it is a cost to business to do this. We want to learn the community's value, cost versus views, and are they willing to pay more to keep the views. SUTTON: The last criteria are minimizing the visual impacts from Highway 20. Our initial application was for a monopole of sixty feet. (He referred to A, B and C photographs). The initial plan was to put in a wide array, but the Hearings Officer suggested flush -mounting the antenna, which we would do. Minutes of Public Hearing Page 12 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 SUTTON: It is our preference to have the sixty -foot height, but we recognize the concerns of the community and are willing to lower the height as shown on exhibit D. Tumalo Irrigation District is also willing to go along with this. Even at the sixty -foot level the visual impacts are minimal. After doing some additional testing, we propose lowering the facility to fifty feet as an accommodation as a part of this application. DEWOLF: Anything above fifty feet? ECK: Just a very small antenna owned by Tumalo Irrigation District. SUTTON: The pole would only come up thirty-five feet, with a narrower fifteen -foot pipe attached. (He referred to Exhibit D.) Flush -mounted antennas would attach to that. We will do this to accommodate the desires of the community. We will also paint the equipment brown to blend in better with the background. LUKE: (He referred to a photo of an antenna near the High Desert Museum.) Is this similar to what you're talking about? There was then a general discussion of width and height of any attachments. SUTTON: Regarding Exhibit K, we have done a line of sight test as well. It is an accommodation and will cut back on some of the coverage, but we cannot go any lower than the fifty -foot height. We prefer sixty feet. LUKE: Regarding Exhibit K, the white is the non -service area. If you got sixty feet, how much of this will be taken care of. HUSKEY: Probably 95%. In Exhibit K, with the 50 -foot height, the white shows what won't be served. There are trees and terrain that block the line of sight. The white is not areas where there is no signal, but they are problem areas. Minutes of Public Hearing Page 13 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 RANDY WINDLINX (a Consultant for Cellular One): Just to clarify, I am a private consultant, and do work for Cellular One and other companies in this area. I was hired to handle the Tumalo Irrigation District application but also did the site work for Cellular One. From a personal perspective, I helped with the adoption of the ordinance and know some of the intent regarding the development of wireless communications. WINDLINX: This facility fulfills what the intent of the committee was. We didn't want to see 150 -foot monopoles; we wanted users to use wood poles. People are used to looking through wood poles at the mountains. In some situations, snow loading would be a problem. Cellular One looked at how the visual impact could be reduced, and how adequate coverage could still be provided. It is now bare bones. It will look as good or better as what is shown in the report. From casual observation, it will be barely noticeable. The top of the pole doesn't seem to be the biggest problem; it's the bulky pole that's the problem, which would be reduced. Painting it to blend in would make it almost disappear. Regarding using telephone poles as co -locations, to get comprehensive coverage it would be absolutely unrealistic. Power poles are usually within the highway right of way, and would be very difficult. There would have to be a small building by each power pole used. I urge the County to allow short wood poles, painted to match, with shelters and microwave facilities out of view. An equipment shelter would be necessary, as power is needed to operate it. The wood poles supplying power to the pole will not go above the tree line, so this is not a visual issue. The right of way has already been cleared. Tumalo Irrigation District previously used solar power, but is switching to true commercial power due to vandalism and other problems with the solar power unit. (There was general discussion occurred regarding where the Central Electric power would be coming from) KATE KIMBALL (Citizen): I represent the Sisters Forest Planning Committee. I previously sent this statement as an e-mail and it is already in the record. (She then read her statement; attached as Exhibit C.) Minutes of Public Hearing Page 14 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 LUKE: How would you address Tumalo Irrigation District's needs? KIMBALL: This gets fuzzy, and I don't know what Tumalo Irrigation District needs solely for its two-way radios. Think Tumalo Irrigation District and Cellular One should be considered apart. LUKE: If Tumalo Irrigation District had not been told to bring this application in together with Cellular One, and if Tumalo Irrigation District had applied alone, would you be protesting today? KIMBALL: If they could not demonstrate that they needed that height, yes. LUKE: It could have been okayed, and then they could have co -located someone on it. KIMBALL: The premise is that it is necessary for TID to have sixty -foot tower for their two- way radios. Maybe forty feet would work. DEWOLF: I would like to get your response to their compromise proposal of fifty feet after you have reviewed the new information submitted today. (There was a general discussion re: providing extra copies of documents and photographs for those attending the meeting.) LINDA MOSKOWITZ (Citizen): My testimony has been previously submitted. (She then read her prepared statement, attached as Exhibit D.) DEWOLF: It's not a "them versus us" situation. We must meet the technological needs of the public as well as the visual. Some people have indicated they want better coverage. If 200 people out of 100,000 objects to something, it is a small percentage. Minutes of Public Hearing Page 15 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 MOSKOWITZ: Most people do not get involved in this type of thing. We let things go until it happens and then complain about it. The ones who do feel strongly are the ones who oppose it. Those who want better service don't bother to show up. DALY: No one has addressed the issue of public safety, and how the cellular industry has increased safety over the years. In previous years when I worked in law enforcement, I came to the conclusion that these services are necessary to public safety. MOSKOWITZ: My point is the poles don't have to be visible to offer this service. Technology is changing and they don't have to be so high. I like and use cellular phones, too, but know that the tall poles aren't necessary. LUKE: You said something about who has the best lawyers or the most money wins. The land use process has become very complicated and often requires the use of attorneys. We like to hear issues locally, as LUBA will only look at whether we followed the law. We have to decide strongly so as to keep things from being tied up in the appeal process. The decision must be based on the law, not on our personal feelings. We have to balance between the law and the emotions involved. DEWOLF: The Hearings Officer does not have the latitude we have. She has to narrowly define, but we can set policy. We can be broader in our interpretations. MOSKOWITZ: Things might have changed since the ordinance was first adopted regarding visual impacts. The public's opinion might be different now. LUKE: You probably realize that the City of Bend does not hear these. People are stuck with going to LUBA. Minutes of Public Hearing Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Page 16 of 31 Pages TOM GRIMM (Citizen): I am asking that this be denied. All the information was not submitted when it should have been. The applicants did not provide all the information at the beginning when the Hearings Officer requested it. They brushed off everyone until now. This stuff may be good, but why was it not provided originally when it was required? They put the tower up without a permit to begin with. They had to file an application at that point, but did not provide all the necessary information at that time. They were denied by the Hearings Officer, as Damian has read to us. Now they have done some of that tonight. GRIMM: Are you going to allow them to play the game at this point? We don't even know if everything they told us is true. Thirty feet is allowed without a conditional use permit. You only found out tonight about the power source that's needed. They took out the ancient growth trees to put in the power poles. And power poles are forty feet long. WINDLINX: Central Electric Cooperative does not require special permission to put in power lines. LUKE: The forty -foot poles are probably going to be put ten feet in the ground. GRIMM: (He quoted the amount of money the applicants have spent for installation, etc) The public wants it out of sight. That pole can be hidden according to the ordinance. Put another pole on the other side. We don't know if Tumalo Irrigation District's new information is accurate. There's no need to let this pole remain. It's a cheap way for them to go. They didn't follow the rules, and to allow them to do this is a breach of faith. They can come down ten more feet. There must be other alternatives. DEWOLF: If they came back in with a fifty -foot pole that is screened, would you force them to come back again? I want to know if this pole is okay with you or are you stating that because they didn't follow the rules, they should be denied on that alone. Minutes of Public Hearing Page 17 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Tumalo Irrigation District had their pole up at thirty feet. Cellular One said we'd like to co -locate and pay Tumalo Irrigation District a monthly fee. There are probably other ways for Tumalo Irrigation District to get their service. Now we'll have to study this new information and figure out if it would work. We don't want to have to suffer by looking at this illegal pole for the rest of our lives. They can come up with alternatives, such as take it down the slope, cut it down to thirty feet and put in another to fill in the holes. Voicestream has thirty- foot poles on Pilot Butte, and they work. DEWOLF: There are going to be three poles on Pilot Butte. If you put in more poles, power would have to be run to them. Trees would have to be removed to provide power, and power poles put in. Is that preferable to you? GRIMM: They were using solar power, now they want electrical. Smart people would want to locate them closer to a power source. IRIVA-3 Is it preferable to you to have additional poles with power running to each across that hill, or having one pole? GRIMM: This is an unfair question. They may not even need more poles. It could be that line of sight is not even necessary. It's cheap and it's in place. At one time they wanted more extensive coverage, and now they say they just want to fill in some holes. They are not even cutting-edge cellular providers. There are alternatives according to what I've read. When they had a neighborhood meeting, it was filled with opponents. (He then submitted to Damian Syrnyk a stack of post cards with signatures of people in the Tumalo area who don't want the pole.) Minutes of Public Hearing Page 18 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DALY: Had the situation be reversed and you were lacking technical information, I would have voted with you for that information to be brought forward. I'd like to have you look at the new proposal they have brought up and tell me in writing what you think. LUKE: If Tumalo Irrigation District had come in and asked for a taller tower for safety reasons, and had applied for it, how would staff have handled this, since there was an existing pole? It might have started with an administrative process. That would have been noticed to 500 feet around the property, which would have hit very few houses. At that point it was before the rules changed regarding an increased level of notice. Even if you hit a few houses, we would have probably done it administratively unless we received written comments. At the point when this was filed, height wasn't as big an issue. It probably would not have been referred to the Hearings Officer unless we received calls or letters. JOHN BELL (Citizen): I have been an emergency physician at St. Charles for twenty-five years, and I am also an advisor to ambulance providers. I am specifically talking about health and safety issues. Not once have they ever raised an issue that they could not communicate with St. Charles. I have not heard any complaints from the police, either. In particular, emergency service providers in Camp Sherman call us for advice. I don't think from my experience there is a health and safety issue. It's there primarily to provide better service for Cellular One users. DEWOLF: I have heard from the Sheriffs Office about poor or no coverage. BELL: I have often talked with the ambulance people all the way into St. Charles from Camp Sherman. Bend is at a higher altitude than Sisters. La Pine, however, needs cellular service. Minutes of Public Hearing Page 19 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Ir INN I have heard from the state police that there are dead areas. I have experienced those dead spots myself. Cellular phones have increased safety, help in reporting drunk drivers and accidents, and are used in medical response situations. BELL: There is no guarantee that being right next to a cellular tower will give you adequate service. DALY: If a person has a heart attack on the highway, how long does he have to live? BELL: This could take seconds or days. MIKE FLOYD (Citizen): I live on Pinehurst Road. This pole is visible from five rooms in my house. It was put up without a permit, and has been up for six or seven months. Does Deschutes County have any enforcement? LUKE: If there is a house or any structure built without a permit, we can't just tear it down. There is a process through the courts we must follow. FLOYD: Tumalo Irrigation District said there is a safety issue for its employees. How does this help them? LUKE: They use repeater radios. FLOYD: We went to the Board of Directors' meeting to discuss lowering the pole and maybe putting up a whip antenna instead. The attorney told them not to talk with us. I've lived here for three years. People from outside the area always wonder what the golf nets are doing there. I tell them it's a monument to our County Planning. Minutes of Public Hearing Page 20 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DAN HARRISON (Citizen): I am an equine veterinarian, and a twenty-year resident. I work a mile from Laidlaw Butte, and my home is on Mock Road. I feel the photograph provided in Exhibit B, page 2 of 2, was doctored; it isn't from where they say it is. Based on page 1 of 2, it's inaccurate; it sticks up more than that. I think the photo was taken from the middle of the plains. Of course, as you get closer to Laidlaw Butte, the pole becomes less visible. I use cellular phones every day; in fact, I use Cellular One. I have no problems with coverage. DEWOLF: I suggest you take a photo from your property and submit it into the record. HARRISON: The interest of Cellular One is strictly financial. It's the same thing with Tumalo Irrigation District. Their Board of Directors works clandestinely and doesn't let users know about things until after the fact. This has been a great injustice as to how public testimony should perform. Tumalo Irrigation District says they need this service, but there are other ways for Tumalo Irrigation District to communicate with others in the field. This was not discussed or explored. I recommended forty feet and they said they didn't know if it would work. LUKE: If Cellular One were only doing this to make money, why would they want to spend so much money on an antenna if service is adequate? HARRISON: If there were no financial gain, they wouldn't do it. DEWOLF: They must think that there is money to be made. There must logically be some need out there or they wouldn't do it. They are talking about that service area. Perhaps you should give them the benefit of the doubt. HARRISON: Tumalo Irrigation District and Cellular One are sleeping together. Minutes of Public Hearing Page 21 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 LUKE: They are not talking bad about you. You've accused their Board of Directors of good old boy stuff and collusion. I don't like that kind of conversation. HARRISON: They rent the space for $700 per month. Then spent $25,000 to get this $700 per month. Tumalo Irrigation District's proposal was dependent upon having a rental. LUKE: If Tumalo Irrigation District had come in by itself and wanted a sixty -foot antenna and it happened, then Cellular One could have co -located. Their biggest problem was maybe listening to staff and coming in together on this. HARRISON: Tumalo Irrigation District may not need a sixty -foot pole. DEWOLF: The evidence shows that Tumalo Irrigation District needs sixty feet to be able to rent to Cellular One. HARRISON: Tumalo Irrigation District should meet the burden of proof that they need a higher pole. The primary applicant should be Tumalo Irrigation District and they should have the burden of proof. Also, is a red light on top necessary? SYRNYK: The FAA recommended it but did not require it. Planes would not normally come that close to the butte. HARRISON: Couldn't they co -locate poles on the power poles going up Laidlaw Butte? PATTY REAN (Citizen): I live on Pinehurst Road. After viewing the photos, I think that's not what the pole looks like from my house. It's a giant slot with a giant pole up the middle of it. There is not a single bush that blocks my view of their pole. Minutes of Public Hearing Page 22 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 BEAN: The thirty-foot pole was not oppressive. They must have cut trees when they erected the new one. Did they get a permit for that? I'm maybe 3/4 mile away. They made no attempt to shelter or disguise this pole. Are you familiar with satellite phones? The old technology may no longer be appropriate. When this becomes obsolete, do we have to pay to take it down? DEWOLF: Yes, it appears so if you are a member of Tumalo Irrigation District. BEAN: I'm not a cellular phone user. Do we want to increase service so more people can use their phones as they drive up and down the highway? It's problematic. Central Oregon is not the streets of New York City. We shouldn't lose our amenities so people can talk on their little phones. Do we want to cater to them, and then in a few years have to pay to take these poles down? If you approve this pole, does it open it up for another facility to co -locate and put on lights? DEWOLF: It means using an existing pole. Another pole or a higher pole requires a new land use application. REAN: I am concerned regarding lights. We don't need any more lights. LUKE: There won't be a light on it. BEAN: There is no proof that this pole is even necessary. There are other options. This is not the only choice. Technology will change and we'll be stuck looking at this thing. I will provide you with a photo from my house. ECK: There have been no clandestine meetings or raising of rates. The search for alternate sites has been reasonable as required. A cellular phone in a truck is not a reasonable alternative to a two-way radio. It's not just for employee safety but for public safety as well. There are specific limited parameters required by the FCC. Minutes of Public Hearing Page 23 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: It's not a tower, just a wood pole. Mr. Grimm wants everyone to follow the rules. The law says you must consider our application as it was filed, not taking into account the new rules that were put into place after that time. Pilot Butte will have to have trenching done so that all of the poles are connected, and they will have to take out vegetation to put in the cable. Is that better? Is that a smaller visual impact? In addition, it is not possible under Tumalo Irrigation District's radio station license. Tumalo Irrigation District has over 600 users in its district. You got back somewhat over 100 cards back from people. You need to keep that in perspective. There are a number of people in the district who do support this. LUKE: How many customers are there in Tumalo Irrigation District? ECK: There are more than six hundred. The opponents would like you to believe you don't need to see these poles; but they have to be accessible and tall enough to provide service. This site does not have seasonal challenges. Mr. McDaniels, the manager, has gone to great lengths to meet with Mr. Grimm and others. I never told him not to meet with them, and in fact I spoke with Mr. Grimm myself about camouflage. Mr. Grimm's negotiation stance is very aggressive, and they are not open to compromise. They want nothing but thirty feet, nothing taller. ECK: We know from experience that thirty feet won't work for Tumalo Irrigation District. There does not seem to be a lot of room to negotiate with these folks. Cellular One has agreed to limit their service to three miles instead of five miles to comply with a lower pole. Karen Green asked why we didn't show her why multiple poles won't work. The criterion doesn't require that. Even if it did, where does it stop? She is not being logical. DEWOLF: If the logical conclusion is to keep it out of the skyline, that is what I interpret. Minutes of Public Hearing Page 24 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: Karen said you lose because you couldn't show us this other configuration. Where do we win? How many do we need to show? By their very nature these things have to be above the trees. The criteria clearly say they don't have to be invisible, they don't have to be concealed; you have to site them to maximize the screening ability of the area. This is not a bad site. A handful of people have complained, but from most areas it is not visible. Please keep this in context. How does an applicant know where to stop? Cellular One spent a lot of money to develop a site, and they do so for a reason, because the demand and need is there. There's no financial incentive for them to do this; it's a cost of doing business for them. Tumalo Irrigation District used professionals to figure out where the best place to be is. No one would ask for a height that will needlessly aggravate people. You require co -location, and that's what we want to do here. DEWOLF: It would help if this could be explained. Why will fifty feet work when sixty feet was the minimum required before? ECK: I think Cellular One is shrinking its service area. DEWOLF: Please demonstrate the need for that height, from Tumalo Irrigation District's perspective. What is required for Tumalo Irrigation District's use? DEWOLF: Please address the Pilot Butte issue, using three smaller poles for your needs. Also, regarding line of sight — if I'm near a metal roof or a building, why does my phone work if there is no direct line of sight to anything? And, regarding the circular argument, you need to demonstrate how high Tumalo Irrigation District's pole needs to be. The opponents need to prove this, too. This will help put the pieces of the puzzle together. Minutes of Public Hearing Page 25 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DEWOLF: I would like to see the two sides work together more closely. Perhaps mediation services at no charge would help you to find common ground. Tumalo Irrigation District should want to meet in some mediated setting. This could save a lot of time for everyone. ECK: Regarding mediation, it was clear that the opponents would not accept anything less than thirty feet. This is based on writings and conversations, and was posted at Board meetings. We know already that thirty feet doesn't work for us. We are open to mediation. However, most of the issues are driven by Cellular One. Regarding multiple poles, we have no ability to put multiple poles under our licensing requirements. We will address this in written form. The Grimms and others say that the key issue is not forbidding the pole; and they think shorter poles will work. We're now at the range that they had recommended, but it is still not acceptable. I ask that you consider whether they are being genuine in their statements to you. We considered all these things in great detail. LUKE: There have been lot of mistakes made all around. Some were not intentional. You say that Karen Green puts in standards that haven't been applied before. ECK: I was previously a Hearings Officer myself. There were very specific issues raised in our appeal. There is a basic unfairness at issue here, and the game changed a little bit. Ms. Green applied, for the very first time, EFU criteria to a wireless facility in this zone. We weren't aware of that. She made some new law and raised some serious policy concerns, leading away from co -location and leading to multiple poles. She then applied this new criteria standard to us. We never contemplated some of the things she raised, and feel we needed the opportunity to address this criteria for the very first time. Minutes of Public Hearing Page 26 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 TOM GRIMM: We responded to a January 91h request before the Board of Directors of the Tumalo Irrigation District about getting together. Mediation is great. We went to this community meeting, and had twenty-five people in that room. We suggested that a thirty-foot pole be put in, extended with a whip antenna. We're objecting to a fat pole that can be seen. That doesn't suit Cellular One. When I am quoted about a 75 -foot pole being better than 150 feet, he is talking about testimony we gave when American Tower Company wanted to come in and put in a 150 -foot pole. We were addressing that pole. We didn't even know they were considering a sixty -foot pole. Any references I made to a very tall pole were regarding American Tower Company issue. DEWOLF: Chris, please address the thirty-foot pole with whip antenna. SUTTON: Why we can't do a forty -foot pole has been repeatedly addressed in our testimony and documents. It is a line -of -sight technology, and the tree line is between thirty- five and forty feet. DEWOLF: Show me the documentation that explains why you can't go down from fifty to forty feet. SUTTON: We will submit documentation addressing that. Also, under this new configuration, the "fat" pole doesn't go over the tree line. Other comments were that we haven't proven that this is the only choice. That's not what the ordinance requires; we simply have to meet the criteria and minimize the impacts. Regarding the circular argument. When you are encouraging people to co -locate, industry people will have to rely upon each other. The goal is to limit the number of towers. We concur that this tower won't have to be lighted. Regarding the fact that mistakes were made, the record is clear about this understanding regarding a permit. We regret it, but it was an innocent process. There was no bad intention on anyone's part. Minutes of Public Hearing Page 27 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 SUTTON: When talking about 150 -foot towers, as proposed by American Title Company, we meant that there will be some bad applications coming in, those that completely disregard visual impacts. Cellular One is at the other end of the spectrum. It is working hard to minimize the impacts. Cellular One has been here for about ten years and wants to work with the community. We feel this proposal is reasonable. HUSKEY: Regarding your question about overlapping coverage. Much of Tumalo is primarily covered by Awbrey Butte now, but it is obstructed and too far away; and Tumalo is a low spot. I have dealt with Pilot Butte configuration in the letter I submitted. Pilot Butte is a unique situation. I have spoken with the engineer from Voicestream, and she indicated that aren't any other buttes like that one, and this scenario can't be applied to other places. We looked at that for Laidlaw Butte. Pilot Butte is smaller on top and has steeper sides, with less tree coverage. Voicestream's longest transmission line will be three hundred feet. When we surveyed Laidlaw Butte, we found they would be at the minimum eight hundred feet, and we'd lose all of our signal before it ever reached the antennas. We would have to build three cell sites and still would not get adequate coverage due to the terrain in the area. One critical factor is that after shrinking the site and coverage area, if we go any shorter we dramatically increase the obstruction of Laidlaw Butte itself. We call this "talking through dirt". When you mention line of sight plots, these are largely used to try to explain radio and TV signals. Cellular phones will work without being in line of sight. This goes into wave theory, which is a kind of light that is refracted. The difference with Laidlaw Butte is that the continuation greatly increases with the depth, kind of like light into a canyon. If obstructions are minor, the signal will still defract. At some point the obstruction is too large. Differences in equipment make an impact, too. Customers used to have three -watt phones with an antenna on their cars. Those phones are going away. The cellular phones are smaller now and more sites are required to provide service. The public demands smaller phones and consequently their power has been reduced. Minutes of Public Hearing Page 28 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 WINDLINX: To clarify, a forty -foot commercial power pole goes about eight feet into the ground. Also, co -location must be two -carrier facility, per the County's requirements. It has to be designed to accommodate the needs of both carriers. Cellular One cannot operate before the tree line; thus, you have to put up a facility that can accommodate another user. It's in the County's rulebook. A seventy-foot pole went unopposed just outside the landscape management zone a few miles west of Laidlaw Butte. It will be about thirty feet above the trees. I understand that Tom Grimm didn't oppose it since he couldn't see it from his area. It was approved administratively. Also, I took the photos with a zoom camera, giving the benefit of the doubt. And, for cellular work, the height of pole has to be above the trees. LUKE: This is one application but two different applicants. Can one applicant be approved and not the other? MARK AMBERG: I would need to research this. SYRNYK: Not if two users are required. LUKE: The point has been made that Tumalo Irrigation District may not have to have as tall a pole. DEWOLF: If Tumalo Irrigation District's needs could be met with a thirty-foot pole plus a thirty-foot whip antenna, excluding Cellular One, can we decide that? SYRNYK: Tumalo Irrigation District would have to demonstrate that it would work for them. Minutes of Public Hearing Page 29 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 DEWOLF: What about this other seventy-foot pole that was approved administratively? SYRNYK: The site is on Bass Lane, outside the landscape management zone. These are ten and twenty acre parcels, in part of a large juniper forest. An outside firm tried to look at one site where the pole would have been be much taller, and after meeting with neighbors they decided to propose a seventy-foot pole. After we sent out notices, we didn't hear from any of the neighbors. As indicated at the neighborhood meeting, the neighbors were pretty comfortable with it, because the tree cover is dense enough to obscure it from view. DEWOLF: There was no hearing required? SYRNYK: This is required only if it is over 100 feet high. Also, there was no adverse testimony from the neighbors. DALY: Is co -location in the rules? WINDLINX: When a carrier applies for a wireless telecommunications facility — the pole, the building, and the use in general — the scope of co -location goes beyond the pole. When you apply, you have to provide testimony by an engineer who states that the facility will accommodate two carriers. WINLINX: The companies that want to put in 150 -foot towers are being denied because they can't get anyone to come in with a lease that can justify that height. This case before you now is being supported by this rule. They are doing what is required, as this is the way the County mandates it be done, and what is done in the industry. You would have to deny the thirty-foot plus a thirty -whip, as it would have to be denied because no one could co -locate on it. DEWOLF: But thirty feet is tier one. Minutes of Public Hearing Page 30 of 31 Pages Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 ECK: The lease has to allow for co -location. We're not considering a single applicant at this time. The pole itself has to be designed for co -location. HARRISON: There's a group of us, not just Mr. Grimm. He wants to mediate or get together. This is a good possible solution. DEWOLF: I am closing this hearing to any more oral testimony. I will allow the record to remain open for new written testimony only, which is to be submitted within seven days - by 5:00 PM, Tuesday, February 20th We will allow an additional seven days for responses to new written testimony - by 5:00 PM, February 271h. The applicants will have seven days after that to submit final arguments - by 5:00 PM, March 6th. This final written argument will not include any new evidence or testimony. The complete written record will be available for review at Community Development. Being no further comments offered, Chair Tom De Wolf adjourned the meeting at 9:15 p.m. DATED this 13th Day of February 2001 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Minutes of Public Hearing Tumalo Irrigation/Cellular One Appeal Tuesday, February 13, 2001 Tombee '` Bennis R. LukeL,-6offilWissioner Michael WDaly, ommissioner Page 31 of 31 Pages Introduction This is a hearing on Appeals A-00-15 and A-00-16, separate appeals of the County Hearings Officer's decision on Conditional Use Permit CU -00-92. The applicant, Tumalo Irrigation District, requested approval of a conditional use permit to establish a wireless telecommunications facility in the Surface Mining Zone. This application was previously considered by the Hearings Officer after a public hearing on October 3, 2000. Evidence and testimony were received at these hearings. The Hearings Officer denied the application for the conditional use permit. Burden of Proof and Applicable Criteria The applicant has the burden of proving that it is entitled to the land use approval sought. The standards applicable to the applications before use are displayed on the overhead. Hearing Procedure The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence, and consider the testimony, evidence, and information submitted into the record of this hearing as well as that evidence constituting the record before the Hearings Officer. The record developed to this point is available for public review at this hearing. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing and listed on the overhead. Testimony may be directed to any other criteria in the comprehensive land use plan of the Deschutes County Comprehensive Plan or land use regulations which any person believes apply to this decision. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. A0015 and A0015 February 13, 2001 Page 1 Order of Presentation The hearing will be conducted in the following order. The staff will give a report of the prior proceedings. The appellants will then have an opportunity to make a presentation and offer testimony and evidence. Opponents will then be given a chance to make a presentation. After both proponents and opponents have made a presentation, the proponents will be allowed to make a rebuttal presentation. At the board's discretion, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. The board may limit the time period for presentations. Questions to and from the chair may be entertained at any time at the board's discretion. Cross-examination of witnesses will not be allowed. However, if any person wishes a question be asked of any person during that person's presentation, please direct such question to the chair after being recognized. The Chair is free to decide whether or not to ask such questions of the witness. Pre -hearing contacts I will now direct a question to other members of the Board of County Commissioners. If any member of the board, including myself, has had any pre -hearing contacts, now is the time to state the substances of those pre -hearing contacts so that all persons present at this hearing can be fully advised of the nature and context of those contacts and with whom contact was made. Are there any contacts that need be disclosed? At this time, do any members of the board need to set forth the substance of any ex parte observations of facts of which this body should take notice concerning these applications? Any person in the audience has the right during the hearings process to rebut the substance of any communication or observation that has been placed in the record. A0015 and A0015 February 13, 2001 Page 2 Challenge for Bias, Prejudgment, or Personal Interest Any party prior to the commencement of the hearing may challenge the qualifications of the Board of County Commissioners or any member thereof of bias, prejudgment or personal interest. This challenge must be documented with specific reasons supported by facts. I will accept any challenges now. Should any board member be challenged, the member may disqualify himself or herself, withdraw from the hearing or make a statement on the record of their capacity to hear the appeal. (Hearing no challenges, I shall proceed) A0015 and A0015 February 13, 2001 Page 3 J4 w- el— G r.4 eni'c . 0Ye1 4*." 7-1 TZ I�z Z 2-Z e 2 Z,3 O� vv GA ryj_, �- - 777-1 !--) 2/3 0/ KATHARINE W. KIMBALL ATTORNEY AT LAW 20325 Sturgeon Rd. Bend, Oregon 97701 OSB #00135 Deschutes Board of County Commissioners 117 NW Lafayette Bend, OR 97701 Ph. 541.382.9878 Fax'541.382.9372 Email: ktkimball@aol.com February 12, 2001 RE: Appeals A-00-15 (Tumalo Irrigation District) and A-00-16 (Cellular One) of the Hearings Officer's denial of CU -00-92 Dear Commissioners: I am writing on behalf of the Sisters Forest Planning Committee to express support for the decision of the Hearings Officer in CU -00-92, in which she denied a conditional use permit application for a 60' wireless telecommunications facility on Laidlaw Butte. The staff report on these appeals cites 4 issues raised on appeal, which I will discuss in the order they appear in the staff memo. Summary The difference between what a telecommunications provider prefers and what is "necessary" under the Deschutes County Code is key. The appellants', understandably, sought the least expensive alternative. Under the Code, however, the interest in cutting costs is balanced against the public interest in protecting our views. As if to underscore the importance of this balance, in several different sections the Code requires the applicant to minimize the impacts of telecommunications facilities on our scenic views. Taller poles are better for providers because it cuts their costs. Shorter or well -screened poles better protect our views. The Deschutes County Code requires that providers keep their facilities as hidden as possible while providing adequate service, even if this means more poles or more costly locations. The burden is on the applicant, not the public, to demonstrate that the least intrusive pole height and location was selected. The problem with the pole on Laidlaw Butte is that neither Tumalo Irrigation District nor Cellular One made this demonstration on the record. Therefore the Hearings Officer o properly denied the applications. Ew(. G�eC Additional telecommunications facilities will be located in Deschutes County. The only question is whether applicants will be required to minimize the impacts of such facilities, as required under the Code and as correctly applied by the Hearings Officer. 1. The Hearings Officer correctly concluded that the applicant failed to satisfy the burden of proof to demonstrate that the telecommunications facility was necessary to be sited in the Surface Mine (SM) zone under DCC Section 18.520.050(A)(5). The issue is whether TID or Cellular One demonstrated on the record that the siting of the monopole was necessary in the SM zone. The Hearings Officer correctly concluded that no such demonstration was made. What the applicants showed was that the 60' wood monopole at that location satisfied their needs, not that alternative sites were found wanting, as the Code requires. There is a difference here between the 2 -way radio communication sought by TID to protect its employees and the 60' wood monopole. TID did not demonstrate that the 60' wood monopole was necessary to be sited in the SM zone in order to provide this 2 -way radio service. None of the commenters on this application have, to my knowledge, questioned the need for TID to provide adequate 2 -way radio service to protect the safety of its employees. What is in question is what exactly TID needs to provide this service. Based on the record to date, it appears that TID needs what Cellular One needs. Yet the technologies (cell phones vs. 2- ways radios) and service areas are very different. The appellants claim that the Hearings Officer improperly recast EFU utility language from ORS.275 into the DCC provisions for siting a telecommunications facility in the SM zone. However, the Hearings Officer states clearly that: "Although these standards do not apply to the applicant's proposal on SM -zoned land, the Hearings Officer finds that they provide guidance in interpreting and applying the "necessity" standard in Sectionl8.52.50(A)(5)." (page 6) The Hearings Officer did what was appropriate: she saw the word "necessary" in the DCC code provision and looked for guidance about how it has been defined or applied. This route is exactly what we hope of our decision -makers: that they avoid inventing a new definition if an existing one can enlighten. What the Hearings Officer found was not a new standard or a surprise to the appellants, but a rational, reasonable interpretation of the word "necessary", which she went to some pains to avoid making up on her own. She provide a reasonable basis for her drawing on the ORS language, that (1) the language is similar, (2) the purpose of the language in both cases is similar, and the (3) regulatory schemes in which they operate are similar. Having clearly stated the basis for making a determination, the Hearings Officer correctly concluded that both the 2 -way radio and the Cellular One facilities provide a "public service" and that neither TID nor Cellular One demonstrated it was necessary to site the facility in an SM zone. 2 2. The Hearings Officer correctly concluded that neither TID nor Cellular One demonstrated they had considered alternative sites with less visual impact under DCC Section 18.128.040(DD)(2)(b). This Code provision requires that the applicant show other sites that better protect views will not work. The Hearings Officer correctly denied the application because "the applicant did not submit any evidence identifying alternative sites or discussing the reasons each alternative site was rejected." (page 20, italics in original) The Hearings Officer concluded that whatever the applicants may have done, they did not demonstrate they considered alternative sites with less visual impact. The fact that the Hearings Officer found some Code language confusing does not render her decision incorrect. She made logical sense out of the provision and her decisions rests firmly on a central aspect of the DCC: that applicants for wireless telecommunications facilities tell the County why they selected that site, which can only be done by demonstrating, as the Code requires, that other sites were considered. The appellants' failure to do so goes to the heart of their application. There is no one choice as to where to locate a pole or how high it is. All the decisions are trade-offs. Telecommunications providers may not like to put their antennae on power lines, but some are doing so because the permitting process is easier for co -locating on an existing facility. It costs more to put up a series of shorter poles rather than one tall one. The Code requires that the analysis be shared so the public and the decision -maker can evaluate how a site or pole height was selected. An application that says in essence "This site works for us" does not conform to the requirements of the existing Code. And such is the case here. 3. The Hearings Officer correctly concluded that the applicants' failed to satisfy the requirements of DCC 18.128.040(DD)(2)(c) because the applicants' did not demonstrate that the facility is screened "to the maximum extent practicable". Yet again the Code requires the impacts to be minimized, this time in regard to screening the proposed facility. The Deschutes County Code requires that telecommunications facilities be screened "to the maximum extent practicable" and the applicants' here failed to provide such screening or make a demonstration on the record that they had done so. There is no vegetative screening available at the site on top of the Butte, which suggests that it is a poor location for a pole. The Hearings Officer concluded that the visual impact of the pole was not great. I disagree. As someone who drives by the location regularly, the pole is obtrusive. As visitors drive into Bend on Highway 20, our new welcome signs seem to be cell towers and golf nets. Poles that compromise our scenery lessen our property values and adversely impact the entire community, particularly when is it not necessary for them to be there. The Hearings Officer correctly concluded that the applicants failed to show they had tried to screen the pole through vegetation or an alternative method, i.e., multiple, shorter poles. 4. The Hearings Officer correctly concluded that the applicants had minimized the impact on scenic views, as required under DCC 18.128.040(2)(e) The last relevant provision requiring that impacts be minimized is the requirement that the facility be screened "to the maximum extent practicable." The Hearings Officer correctly points out the jumble in the applications submitted by TID and Cellular One. Each uses the other to justify an identical conclusion — that a 60' wood monopole on top of Laidlaw Butte is what is needed. They have set themselves a difficult burden of proof by placing a 60' pole on top of a butte without any nearby vegetation. However, the needs of the two applicants are different. Therefore it is difficult to discern within the application where one's needs begin and the other's ends. As noted above in the summary, each applicant should have, but failed to, demonstrate they had minimized the visual impacts of their proposed action. And minimizing the impacts is precisely what the County Code requires. Conclusion The Deschutes County Code provides reasonable requirements for protecting our scenic views. Central Oregon is known for its dramatic scenery: it is what draws tourists and residents here. Clouding the scenery with unnecessary monopoles cheapens our community and is impermissible under the County Code. Other applicants make the effort and have their applications approved. That is not the case here. It is not enough for applicants to state that the proposed location and pole height serves their purpose. Telecommunications applicants, under the Deschutes County Code, are required to demonstrate that they have selected the least intrusive alternative that provides adequate service. This may mean more expense to the telecommunications providers and more monopoles in the region, but this is a compromise that the County endorsed to protect our views. The Hearings Officer properly applied the criterion and came to the correct legal conclusion. For the reasons stated above, I urge you to deny this appeal. Sincerely, &4Qv.wj W. 1�t"WO Katharine W. Kimball OSB #00135 4 ORAL TESTIMONY IN OPPOSITION TO TUMALO IRRIGATION DISTRICT'S 60 -FOOT POLE ON LAIDLAW BUTTE FILE #CU -00-92, A-00-15 AND A-00-16 I realize that there are laws in place that regulate the placement of wireless telecommunication facilities. Even though the current ordinance is currently under review, they are there to protect the public from the visual blight of these facilities while still ensuring the wireless industry their right to build out their communications network in our community. It is very difficult for the general public to understand and address these laws when we do not have the resources nor the access to the technical experts the wireless industry has. Karen Green was restricted to interpreting the law and taking into account how the public (the opponents, in this case) presented their case as it relates to the law. Even though Ms. Green's denial of this application was based solely on the law, I feel she did try and address the public's concerns as much as the law allowed her, and I thank her for her decision. However, here we are before you now facing two appeals to her decision based on her interpretation of the law. So, here's my question to you. What is the purpose of a public hearing, especially this one? Is it just a forum for both sides to present their legal cases before you? The one with the best lawyers and best technical experts win? Or is it also a forum that gives the public an opportunity to directly address their elected officials in the hopes of influencing your decision on this matter so that the uniqueness of our community can be spared the visual blight of cell towers that have marred the beauty of so many other scenic communities around this nation? The people that have elected you have told you they do not want the natural beauty of their community scarred by this type of development. They have told you by speaking out at the three hearings opposing six 150 -foot towers by American Tower. They have told you by speaking out in nor of VoiceStream's compromise for their facility on Pilot Butte. They told you by their participation in and the overwhelming support of the proposed revised cell tower ordinance that anxiously awaits your approval, under which this 60 -foot pole would not be allowed on top of any butte or ridge line. They told you by their overwhelming outrage of the visual impact of the infamous golf nets. And, they have told you by well over 200 people signing petitions and writing letters, plus those that gave oral testimony in opposing this 60 -foot pole at the public hearing in October, and now at this appeal hearing. I'm not aware of any testimony submitted where someone, other than TID, Cellular One, or their representatives, has been in favor of the visual impact this pole has made on our views, and this is without the proposed antenna array. The letters and the 200 signatures on the petitions in the record are from more people than just those that have views of the Cascades, because the scenic beauty of our area is not limited to just the Cascade Mountains. Even though this pole is not on the same scale as the golf nets or a 150 -foot tower, we are relying on you to protect the natural beauty of this community, especially when you hear so many citizens tell you that they consider the impact this 60 -foot pole has on the scenic beauty of the Tumalo area is unacceptable. So after you've read all the letters and heard all the testimony from concerned citizens, I hope you will consider the broadest interpretation of the law when addressing those sections of Title 18 that address the visibility of this pole. From the community's perspective, the trees, vegetation and topography have not been used to "the maximum extent practicable to screen this facility from view" and "in a manner to minimize its impact on scenic views". "Aesthetics" is a subjective term, "visibility" isn't. So, I ask you to please reaffirm Ms. Green's decision by denying these appeals. Thank you. Linda Moskowitz 20195 Winston Loop \ Bend, OR 97701 r