2001-431-Minutes for Meeting May 07,2001 Recorded 5/18/2001VOL: CJ2001 PAGE: 431
RECORDED DOCUMENT
STATE OF OREGON
COUNTY OF DESCHUTES
*02001-431 * Vol -Page Piinted: 05/22/2001 11:38:01
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:
May. 18, 2001; 1:02 p.m.
Regular Meeting (CJ)
NUMBER OF PAGES: 5
MARY SUE PENHOLLOW
DESCHUTES COUNTY CLERK
KEUNCH D
MAY 2 2 2001
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,I -ES
C.1aLVJl, y3/
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
Dennis R. Luke
EXCERPT OF MINUTES Mike Daly
OF BOARD WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, MAY 79 2001
Chair Tom De Wolf brought the meeting to order at 10: 00 a. m.
Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also
present were George Read, Tom Anderson, Kevin Harrison and Damian Syrnyk,
Community Development; Rick Isham, Legal Counsel; Jim Bonnarens, Property
Management; Tom Blust and George Kolb, Road Department; Ted Schassberger,
Jenny Scanlon and Susan Mayea Ross, Commissioners' Office; Sue Brewster,
Sheriff's Office; Mike Maier, County Administrator; and media representatives Anne
Aurand of The Bulletin Newspaper and Barney Lerten of bendnet. com. 1Vo other
citizens were present. a
1. Before the Board was Citizen Input. :. CO
No citizen input was offered.'
CD
5. Before the Board was Discussion and Consideration of a Decision L,c�ieduled
for Wednesday, May 9) Whether to Hear a De Novo Appeal (Filed by
Mericom Corporation) of Hearings Officer's Denial of a Conditional Use
Permit for a Wireless Telecommunications Facility in La Pine.
DAMIAN SYRNYK (Community Development Department):
This appeal was received last week from the applicant, Mericom Corporation.
In this situation the Hearings Officer had denied a conditional use permit to
establish a wireless telecommunications facility in the La Pine Sewage
Treatment District; the Board was previously provided with copies of her
decision along with Mericom's appeal.
Excerpt of Minutes of Board Work Session Page 1 of 5 Pages
Monday, May 7, 2001 Quality Services Performed with Pride
SYRNYK:
I have discussed this with Laurie Craghead of Legal Counsel. The applicant
has raised some issues that might be worth the Board considering in terms of
interpreting whether this proposal is actually for a utility facility or just a tower.
This situation is a little different than the previous one with American Tower in
that in this record there is actually evidence of some kind of relationship
between the tower builder, Mericom, and the company that actually would
provide the service, which is Washington -Oregon Wireless, an affiliate of
Sprint.
The conundrum is that the County is running very close to being done with the
150 -day timeline, which ends Thursday, May 10, 2001. When the appeal was
received, the applicant had not proposed to waive the timeline nor did they
agree to restart it. So there are some legitimate things to consider, if the Board
were to decide to hear this.
Right now, there isn't much time. I would like to find out what the Board
thinks about the appeal, and if the Board wants to hear it, would it feel
comfortable with staff contacting the applicant to see if they are willing to
either waive the 150 -day time limit or agree to restart the clock in order to
consider their appeal.
DENNIS LUKE:
(To Rick Isham, Legal Counsel.) In reading their presentation, there was a lot
of reference to violations of the Federal Communications Act, and what the
County is doing is illegal. Have you gone through any opinions on that?
RICK ISHAM (Legal Counsel).-
Laurie
ounsel):Laurie Craghead is more familiar with that, but had a conflicting appointment
this morning. We did go over it briefly, but did not specifically discuss your
question, but I understand they have raised this issue of how the federal law
would affect our ability to act on this. Certainly, outside of the time frame
issue, those are things that can be considered.
The problem as I understood it when talking with Laurie is that she thinks the
recommendation might be not to hear this. Those issues, if they are sufficiently
dealt with in the record, could be considered at LUBA. There may be other
alternative forums where they can pursue their claim. That would not
necessarily result in a land use permit to build a tower.
Excerpt of Minutes of Board Work Session Page 2 of 5 Pages
Monday, May 7, 2001
ISHAM:
If they wanted to waive the 150 -day period and have the Board consider those
issues along with the other issues that were decided in this case, then the Board
could certainly consider those as part of the hearing.
(To Damian Syrnyk.) Are they asking for a de novo hearing?
SYRNYK:
They are.
ISHAM:
What was your take on whether they are entitled to a de novo hearing under the
circumstances?
They raised the issue that in their mind that there would be a significant policy
issues to deal with. I think that would warrant a de novo review in this case,
because we are dealing with something a little bit different than we've dealt
with before with respect to these kinds of applications. To date, they have been
sort of either/or. Either we've got somebody coming in to request a permit to
establish a facility and they are the actual provider of service, or they've been a
company that just builds the infrastructure and they don't have a tenant or don't
provide service.
This is a little different in that we've got somebody who actually is honest and
said that they do just build towers, but has indicated in the record that they have
this relationship with Sprint PCS, and that if they were to build this tower, there
is some apparent likelihood that Spring would locate their antennas and
transmission equipment there.
LUKE:
"Apparent likelihood" - that's a good legal term. Either they have a signed
contract, or they don't.
SYRNYK:
They've got a letter of intent. They don't have a signed contract.
DEWOLF:
In any case, if the Board was to decide not to hear this and upholds the Hearings
Officer's decision, that does establish the fact that the Board feels the Hearings
Officer was correct, and that settles the issue for at least the moment.
Excerpt of Minutes of Board Work Session Page 3 of 5 Pages
Monday, May 7, 2001
SYRNYK:
Staff would recommend the Board not hear this simply because we just don't
have the time to hear the appeal. If the Board wanted to hear it, though, I could
try to contact the applicant to find out if they are willing to entertain giving us
more time to consider this.
DEWOLF:
I read through this, and maybe there is something that I'm not understanding. I
don't agree that this is any different than any other person or company that is
just building towers and leasing space, whether they have a letter of intent or a
signed contract or whatever. They are still not the company that is providing
the service, which is what our ordinance calls for. So, from my perspective,
there is no difference, whether they have a signed contract or a memorandum of
understanding or anything else.
LUKE:
I agree with the Chair. On Wednesday, I'm not going to be favorable to hearing
this. (To Mike Daly.) Mike, are you interested in hearing this?
DALY:
No.
SYRNYK:
I will bring back an Order for your signature on Wednesday, then.
6. Before the Board was Discussion and Consideration of Signature of Order
No. 2001-045, Authorizing the Expenditure of County Road Funds to
Construct and Maintain an Emergency Access Road from Deschutes River
Woods Subdivision to Highway 97.
Tom Blust of the Road Department gave a brief overview of the anticipated cost.
He also said that some of the unused land might be sold to adjacent owners.
LUKE: I move signature of Order No. 2001-045.
DEWOLF: I second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Excerpt of Minutes of Board Work Session Page 4 of 5 Pages
Monday, May 7, 2001
18. Before the Board was Discussion and Consideration of Chair Signature of
an Oregon Liquor Control License Application for the Crooked River
Railroad Company.
LUKE: I move approval.
DEWOLF: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Being no further action taken, Chair Tom De Wolf closed the meeting at 11: 45 a. m.
- End of Excerpt of Minutes -
DATED this 7th Day of May 2001 for the Deschutes County Board of
Commissioners.
':Z� t
Tom Dye f, Chai
Dennis R. Luke, Commissioner
ATTEST:
�,�. 104ZIL
_ Michael M. Da y, C missioner
J C
Recording Secretary
Excerpt of Minutes of Board Work Session Page 5 of 5 Pages
Monday, May 7, 2001