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2008-131-Minutes for Meeting January 02,2008 Recorded 3/13/2008COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS CJ 2006-i3! COMMISSIONERS' JOURNAL 03/1312008 08:50;23 AM 11111111111111111111111 IIII III .Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page , Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JANUARY 2, 2008 Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy Baney. Also present, for a portion of the meeting, were Erik Kropp, Deputy County Administrator; David Inbody, Assistant to the Administrator; David Givans, Internal Auditor; Dan Peddycord, Health Department; Ronda Connor and Debbie Legg, Personnel; Tom Anderson, Chris Bedsaul, Catherine Morrow, Will Groves and Kristen Maze, Community Development; Laurie Craghead and Mark Pilliod, Legal Counsel; Anna Johnson, Communications. Also in attendance were Gordon Dukes, retired County employee; citizens Rex Auker and Liz Fancher; and media representative Hillary Borrud of The Bulletin. Chair Luke opened the meeting at 1: 30 p. m. 1. NeighborImpact Presentation regarding a CDGB Grant for South County. Corky Senecal gave an overview of the programs offered by NeighborImpact through CDGB grants; these address home rehabilitation for low-income residents in regard to health and safety issues, roofing, septic systems, ADA requirements, and other projects. (A handout was provided at this time.) The amount is $400,000 for the region. The repayment of the loans to these citizens is deferred for thirty years or upon the sale of the property. Tom Anderson said that he endorsees the program since some people simply have no resources to correct a problem. These people often ask for a fee waiver. Ms. Senecal said that the maximum to an applicant is $25,000, and about 44 people have requested this; obviously, the maximum cannot be awarded to all of them. The resident finds the contractor and NeighborImpact handles the negotiations. There is also $750,000 currently being used to operate this program. The grant can be requested annually; it is federal money handled through the State. NeighborImpact gets 4% for handling the program locally. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 1 of 7 Pages BANEY: Move support of the grant application DALY: Second. VOTE: BANEY: Yes. DALY: Yes. LUKE: Chair votes yes. 2. Discussion of EBAC Recommendation regarding the "Living Well" Program. Dan Peddycord explained that this program involves patient self-management of chronic disease, and EBAC has endorsed it as a benefit. The return on investment can be significant. Kelly Moore, the Chronic Disease Coordinator for the Department, gave an overview of the program. The cost would be $60 per employee, which would cover instructor fees and the cost of materials. The employee would be reimbursed upon completion of the program. Some people may not sign up right away, so it will be ongoing. There will be new employees with new conditions, and current employees who may develop conditions. Mr. Peddycord added that HIPAA does not apply since it would be voluntary participation. Also, St. Charles Medical Center offers this program and the County can do some partnering with them. The program is estimated to cost about $30,000 the first year, but that figure may be high. BANEY: Move approval of adding this to the employee benefit program. DALY: Second. VOTE: BANEY: Yes. DALY: Yes. LUKE: Chair votes yes. 3. EBAC Membership Recommendation. Ronda Connor stated that EBAC discussed adding another voting member, and there was one vote against this. Gordon Dukes has brought up whether retirees should have a vote. There are about sixty to seventy retirees at this time who pay premiums, and they would like a formal voice. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 2 of 7 Pages Dave Kanner noted that the retiree population as a group has a different set of needs and concerns, and he feels the program would be for employees. Once an employee retires, he or she should accept whatever it is the County offers. The other concern is if the employee had been in a union, this would be a disproportionate number. Commissioner Baney said that they would no longer be in the union at that point; Mr. Kanner pointed out that he feels the union mindset would still be relevant. Commissioner Luke said that EBAC is advisory, and he is usually supportive of their proposals. The retired employees take an active part and provide a lot of input. Current employees are much more likely to try to design a program for their personal needs. Most retirees do not have full benefits anyway. Mr. Dukes stated that he is invested in the program and pays monthly towards the cost. The cost for a single person is $451 per month, and with the spouse is $971. Debbie Legg pointed out that if the employee had been with Deschutes County for fifteen or more years, the County pays more of the premium. Ms. Connor said that eligibility ends when Medicare starts. PERS offers a Medicare supplement plan at $60 per month. However, many people opt for the Clear Choice plan. She added that 42% of employees are age 50 or older; the workforce is aging. BANEY: Move that a retiree be added as a voting member. LUKE: Second. VOTE: BANEY: Yes. DALY: Yes. LUKE: Chair votes yes. Ms. Legg pointed out that there is a vacancy on the management side of EBAC at this time. Mr. Kanner will put out a call for a volunteer. This person needs to be management, a department head or an elected official. 4. Discussion of Discontinuing the Fraud and Abuse Program Outsourced to HCI by EBMS. Ronda Connor explained that EBMS is checking claims for duplicates and fraudulent activities in the program. This program was not active when the County was with Administrators West, but the County had EBMS put this into place for a fee. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 3 of 7 Pages Approximately $51,000 during the past year was found to be potentially fraudulent. This could potentially be handled in house, but a fair amount of time and expertise is needed. It will be tried for six months to see how it goes. 5. Work Session on Amateur Radio Transmission Tower Text Amendment. Laurie Craghead explained that this is not a public hearing; the record has been closed. All of the information previously submitted is part of the public record. Kristen Maze gave an overview of the information received by December 10, the deadline, after the November 22 hearing. She then went over the main points of the Code and findings. (See attached table and testimony) Ms. Craghead explained the federal definition of wireless telecommunications, which is not subject to the Act of 1996. County Code can be interpreted in a couple of different ways and findings are needed. The group discussed the currently allowed height of the towers, provided they are not in a landscape management zone. They are considered structures, so setbacks have to be considered. The Hearings Officer determined that the guy wires are a part of the structure. Commissioner Luke said that he does not want to complicate things, but feels that they should at least let the neighbors know what is being put up and where. Ms. Maze replied that the Planning Commission recommended notifying the neighbors through some kind of meeting, showing the site plan and what is proposed. Ms. Maze stated that a building permit is needed for the structure, and there is some question as to whether the engineer needs to be licensed in Oregon. If the tower is 70 feet or taller, it would require a neighborhood meeting, a building permit, a distance requirement for notice, and a site plan provided to the neighbors. If there were an objection, it would go to the Hearings Officer. New Code would have to be adopted to handle Planning Commission recommendations for towers over 70 feet. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 4 of 7 Pages Commissioners Luke and Daly stated that they don't want the applicant to have to pay a Hearings Officer fee if there has been a community meeting. Staff could review the site plan and decide if the tower can be over 70 feet if the setback requirements are met. Tom Anderson said that they have discretion whether to send things to the Hearings Officer now. There are certain tools used to assess whether an issue is controversial. If comments come in, the file is flagged. The fee for appellants is set at $250 per the State. At this time, the group discussed the proposed criteria. After a brief discussion regarding proposed criteria, exceptions, fees and other aspects, it was decided this will addressed further at the Monday, January 9 work session. 6. Discussion of a De Novo Hearing on a Proposed Zone Change, Property Located Northeast of McGrath Road (Applicant: Reid). Will Groves referred to an oversized map, noting that the farmland zoning cuts the property in half. The owners would like to be in one zone or another to be able to utilize their irrigation rights. The Hearings Officer supports this, and there was no opposition. 7. Discussion of a De Novo Hearing on Proposed Comprehensive Plan and Zone Map Changes to Change the Harris Kimble Property from Surface Mine (SM) to Rural Residential 10 (RR-10). Chris Bedsaul gave an overview of the item, referring to an oversized map. He said that a small parcel should have been rezoned years ago. The applicant has provided all the information necessary regarding this exception. There has been some organized opposition to the application, which the Hearings Officer considered. No one has filed an appeal. A hearing is required, however. Portions of the property have been mined and reclaimed, but there is not sufficient material left to mine at this point and the property should go back to the underlying zone. The opposition came from both sides of the property in the rural residential area. Most of it is directed at the previous surface mining operational plan regarding the timely completion of the reclamation. The Hearings Officer felt that it has been completed. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 5 of 7 Pages Commissioner Luke asked if DOGAMI has signed off. Mr. Bedsaul said that they did; the applicant needed to establish a water rights use and it has been done as well. The Hearings Office said the land is not suitable for farming and does not meet the criteria for agricultural use. Catherine Morrow added that findings have to be made that the resource has been used and reclamation is done. Mr. Bedsaul said that it was determined that the soils are too deep and mining would not be productive. Ms. Morrow said it is her understanding that the Board wants quasi-judicial UGB amendments related to Bend to be brought to them. If it is prior to a Hearings Officer's hearing, it can be routed in the Board's reading file. If there is an appeal, it would come to the Board anyway. 8. Other Items. • Executive Session under ORS 192.660(2)(h), Litigation The Board went into executive session at 4: 00 p.m. No action was deemed necessary. Executive session adjourned at 4:25 p. m., at which time the Board continued the work session. Mr. Kanner said that the consulting firm wants to begin making calls for the citizen survey. Commissioner Baney said that she would like to pull the questions regarding funding for 9-1-1 and the jail, since those are policy questions. The public won't have enough information on these at this point and the results could be used in a negative way. The survey is meant to assess customer service. Commissioner Baney said that Joni Hammond from the DEQ requested that a Commissioner sit in on any meetings of the DEQ and DLCD regarding the South County groundwater issue. The Board feels that Dave Kanner attending to represent the Board is adequate. Commissioner Baney noted that she is not pleased that some La Pine citizens keep grilling staff on comments that might have been made a year ago. It is not fair to expect them to remember everything they have ever said on this issue and perhaps take it out of context. Board business meetings are taped and they are welcome to ask for copies of those. Minutes of Administrative Work Session Wednesday, January 2, 2008 Page 6 of 7 Pages Being no further discussion, the meeting adjourned at 5:05 p.m. DATED this 2"d Day of January 2008 for the Deschutes County Board of Commissioners. ATTEST: 671~ 6AM- Recording Secretary ~~17 Dennis R. Luke, Chair Minutes of Administrative Work Session Page 7 of 7 Pages Wednesday, January 2, 2008 Tammy Baney, Vice Ch Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, JANUARY 2, 2008 1. NeighborImpact Presentation regarding a CDGB Grant for South County - Corky Senecal 2. Discussion of EBAC Recommendation regarding the "Living Well" Program - Dan Peddycord, Ronda Connor and Kelly McDonald 3. EBAC Membership Recommendation 4. Discussion of Discontinuing the Fraud and Abuse Program Outsourced to HCI by EBMS - Ronda Connor 5. Work Session on Amateur Radio Transmission Tower Text Amendment - Kristen Maze 6. Discussion of a De Novo Hearing on a Proposed Zone Change, Property Located Northeast of McGrath Road (Applicant: Reid) - Will Groves 7. Discussion of a De Novo Hearing on Proposed Comprehensive Plan and Zone Map Changes to Change the Harris Kimble Property from Surface Mine (SM) to Rural Residential 10 (RR-10) - Chris Bedsaul 8. Other Items . Executive Session under ORS 192.660(2)(h), Litigation PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. NeighbOrlmpact TO: Deschutes County Board of Commissioners FROM: Corky Senecal, Director Housing and Emergency Services NeighborImpact RE: Funding Opportunity Home Rehabilitation Loan Program for Low Income Homeowners DATE: January 2, 2008 The State of Oregon administers the Community Development Block Grant Home Rehabilitation Program for "balance of state" communities. The tri-county area of Deschutes (excluding the City of Bend), Crook and Jefferson counties qualifies for funding from this source. NeighborImpact has consistently applied for and received funding to provide this program to low-income residents of Central Oregon. The funding requirement is that a local jurisdiction must be the applicant entity and then enter into a sub-recipient agreement with the local service provider. NeighborImpact has been the sub-recipient for each of the grants with different local jurisdictions throughout the service area being the direct applicant. In 2003 Deschutes County was the recipient and since then we have worked with the City of Bend, Crook County, Jefferson County and the City of Madras. We are asking Deschutes County to submit the application to the State of Oregon for $400,000 in CDBG Home Rehabilitation funding for the years 2009 and 2010. The funding is categorical and not competitive with any other CDBG funding Deschutes County is eligible to receive. As the applicant Deschutes County need only identify a staff person as a liaison between NeighborImpact and the Oregon Housing and Community Services Rehabilitation Program office and staff. NeighborImpact is responsible for preparing the application, facilitating the processes required to receive and administer funding, and implement the program. We see this as a unique opportunity for the partnership between Deschutes County and NeighborImpact. While the funding will serve low-income residents in all three counties, the funding cycle on this particular grant may help to serve residents of South Deschutes County in the "Ground Water Protection Project". Currently our home rehabilitation program wait-list has 44 applicants, 22 are in Deschutes County and 10 are in South Deschutes County. Clearly, this program will benefit a number of Deschutes County residents. The deadline for submission to Oregon Housing and Community Services is February 28, 2008. We are asking the Board of Commissioners for authorization to prepare the application with Deschutes County as the applicant entity. OREGON HOUSING AND COMMUNITY SERVICES 2007 INCOME LIMITS Effective March 20, 2007 U.S. Department of Housing and Urban Development (HUD) "Low Income" and "Moderate Income" are defined in the federal Housing and Community Development Act of 1974, as amended. A Low -Income person is a member of a family with a gross income of no more than 50 percent of the area median income. A Moderate-Income person is a member of a family with a gross income of no more then 80 percent of the area median income. The "area" is either the county or the non- metropolitan portion of the state, whichever has the higher median income. The 2007 estimated median family income for non-metropolitan counties in Oregon is $47,596. MSA / County %MFI 1Pers 2Pers 3Pers 4Pers 5Pers 6Pers 7Pers 8Pers Deschutes FY 2007 MFI: Low 20600 23500 26450 29400 31750 34100 36450 38800 58,700 Moderate 32950 37650 42350 47050 50800 54600 58350 62100 Crook FY 2007 MFI: Low 17300 19750 22250 24700 26700 28650 30650 32600 46,700 Moderate 27650 31600 35550 39500 42650 45800 49000 52150 Jefferson FY 2007 MFI: Low 16900 19300 21750 24150 26100 28000 29950 31900 44,500 Moderate 27050 30900 34800 38650 41750 44850 47950 51000 Neighboril pact NeighborImpact's Housing Rehabilitation Program The Housing Rehab Program is designed to assist homeowners in maintaining the upkeep of their home, be it roof repair/replacement, plumbing & electrical repairs to exterior paint and septic problems. To qualify for this program you must own your own home and the land it is on, and you also must fall at 80% of the area median income or lower (see attachment for income qualifications). NeighborImpact will conduct a site visit to interested homeowners once they have met the income requirements. A representative will take an application to them and make a short visit to ensure the type of repairs the homeowner is interested in making fall within our program guidelines. The loan maximum is $25,000 and depending on the household annual income the interest rate is anywhere from 1%-4%. These loans are deferred for 30 years, in other words no monthly payment is required. The loan is paid back at the sale or refinance of the home, or in 30 years the entire loan comes due. The homeowner is responsible for hiring an Oregon licensed General Contractor to do the work, however NeighborImpact can assist them in this process if need be. NeighborImpact writes grants on an annual basis to apply for funds through Oregon Housing & Community Services, this is how the program is funded. Once loans are paid back to NeighborImpact, they are pooled in a revolving loan fund and lent back out in the community for housing repairs in the same manner. For questions or to apply to the program, contact Karen Orme at NeighborImpact: 541-548-2380. extension 111. Page 1 of 1 Bonnie Baker From: Corky Senecal [corkys@neighborimpact.org] Sent: Thursday, December 20, 2007 11:34 AM To: Bonnie Baker Cc: Dave Kanner; Karen Orme Subject: preliminary information Importance: High Attachments: Funding Opportunity.doc; IncomeGuidelines2.doc; RehabOverviewB.doc Hi Bonnie - Attached are 3 documents for your review - if you think they are fine as is please pass them on to the Commissioners. However, if there are changes that could be made feel free to make suggestions prior to submitting to the Board. I'll be out of the office until the 27th and am definitely planning to be at the Board meeting on the 2nd I don't know the protocol but, because the timeline is short, we would very much appreciate it if the Commissioners could give us the green-light to make application at the session on the 2nd Call me with questions or recommendations - I look forward to working with you. corky Corky Senecal Housing and Emergency Services Director Ne ghborimpact 2303 SW First Street Redmond, OR 97756 (541) 548-2380 x.101 www._n...eighborimpact.org CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged, confidential information belonging to the sender. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. If you have received this electronic mail in error, please contact sender and delete all copies. 12/21/2007 What is the Chronic Disease Self-Management Program? (Known in Oregon as Living Well with Chronic Conditions) The Chronic Disease Self-Management Program is a workshop given two and a half hours, once a week, for six weeks, in community settings such as senior centers, churches, libraries and hospitals. People with different chronic health problems attend together. Workshops are facilitated by two trained leaders, one or both of whom are non-health professionals with a chronic diseases themselves. Subjects covered include: 1) techniques to deal with problems such as frustration, fatigue, pain and isolation, 2) appropriate exercise for maintaining and improving strength, flexibility, and endurance, 3) appropriate use of medications, 4) communicating effectively with family, friends, and health professionals, 5) nutrition, and, 6) how to evaluate new treatments. Each participant in the workshop receives a copy of the companion book, Living a Healthy Life With Chronic Conditions, 4:h Edition. It is the process in which the program is taught that makes it effective. Classes are highly participative, where mutual support and success build the participants' confidence in their ability to manage their health and maintain active and fulfilling lives. Does the Program replace existing programs and treatments? The Self-Management Program will not conflict with existing programs or treatment. It is designed to enhance regular treatment and disease-specific education such as Better Breathers, cardiac rehabilitation, or diabetes instruction. In addition, many people have more than one chronic condition. The program is especially helpful for these people, as it gives them the skills to coordinate all the things needed to manage their health, as well as to help them keep active in their lives. How was the Program developed? The Division of Family and Community Medicine in the School of Medicine at Stanford University received a five-year research grant from the federal Agency for Health Care Research and Policy and the State of California Tobacco-Related Diseases office. The purpose of the research was to develop and evaluate, through a randomized controlled trial, a community-based self-management program that assists people with chronic illness. The study was completed in 1996. The research project had several investigators: Halsted Holman, M.D., Stanford Professor of Medicine; Kate Lorig, Dr. P.H., Stanford Professor of Medicine; David Sobel, M.D., Regional Director of Patient Education for the Northern California Kaiser Permanente Medical Care Program; Albert Bandura, Ph.D., Stanford Professor of Psychology; and Byron Brown, Jr., Ph.D., Stanford Professor of Health Research and Policy. The Program was written by Dr. Lorig, Virginia Gonzalez, M.P.H., and Diana Laurent, M.P.H., all of the Stanford Patient Education Research Center. Ms. Gonzalez and Ms. Laurent also served as integral members of the research team. The process of the program was based on the experience of the investigators and others with self-efficacy, the confidence one has that he or she can master a new skill or affect one's own health. The content of the workshop was the result of focus groups with people with chronic disease, in which the participants discussed which content areas were the most important for them. How was the Program evaluated? Over 1,000 people with heart disease, lung disease, stroke or arthritis participated in a randomized, controlled test of the Program, and were followed for up to three years. We looked for changes in many areas: health status (disability, social/role limitations, pain and physical discomfort, energy/fatigue, shortness of breath, psychological well-being/distress, depression, health distress, self-rated general health), health care utilization (visits to physicians, visits to emergency department, hospital stays, and nights in hospital), self-efficacy (confidence to perform self- management behaviors, confidence to manage disease in general, confidence to achieve outcomes), and self-management behaviors (exercise, cognitive symptom management, mental stress management/relaxation, use of community resources, communication with physician, and advance directives). What were the results? Subjects who took the Program, when compared to those who did not, demonstrated significant improvements in exercise, cognitive symptom management, communication with physicians, self-reported general health, health distress, fatigue, disability, and social/role activities limitations. They also spent fewer days in the hospital, and there was also a trend toward fewer outpatient visits and hospitalizations. These data yield a cost to savings ratio of approximately 1:10. Many of these results persist for as long as three years. For more information on the Living Well with Chronic Conditions program in Oregon, please contact Laura Saddler or Jennifer Mead at (971) 673-0984 or email livine.well(a~state.or.us. Living Well with Chronic Conditions - cost breakdown Cost per 6-week class: $15/hour per instructor (3 hours/class for 6 classes, 2 instructors) $540 Materials $20 Books $50 Total $600 Costs are covered at 10 participants per class, if the fee is $60/class. Ideal class sizes are between 10-15 participants. Participants in the Living Well Program demonstrated significant improvements in exercise, cognitive symptom management, communication with physicians, self-reported general health, health distress, fatigue, disability, and social/role activities limitations. They also spent fewer days in the hospital, and there was a trend toward fewer outpatient visits and hospitalizations. These data yield a cost to savings ratio of approximately 1:10. Many of these results persist for as long as three years. NOTE: If the program saves just one physician visit or one sick day used for each participant, it more than pays for itself. Monday, March 05, 2007 To: Whom It May Concern My spouse and partner Ann and I were recently blessed with the opportunity of taking the "Living Well With Chronic Conditions" class offered for six weeks at Samaritan Pacific Communities Hospital in Newport. It was offered jointly by Lincoln County Health & Human Services in cooperation with Samaritan Health Services. The class sessions were offered to individuals (and/or their care providers) to empower those living with chronic disease or ongoing illnesses; to enable them to more effectively deal with these conditions; and lead a more normal life through improved self management of day to day activities. Topics covered included: Importance and wise use of exercise Nutrition-eating wisely and well Informed use and management of physician prescribed medications Effective communication with health care professionals, family and friends Dealing with depression and managing stress caused by chronic conditions Learning methods to control pain Setting and meeting improvement goals and objectives How to fight fatigue and frustration Learning relaxation therapy Solving problems related to chronic conditions Health care providers, and others dealing with individuals and patients struggling to live with these additional life burdens, should strive to become better informed about these classes. They should essentially become "outspoken missionaries" encouraging the many seniors and others struggling with these conditions in the surrounding areas to become involved and take advantage of this vital life improving resource. These classes offer a wealth of vital information to assist those struggling with the frustration, fatigue, pain, depression and isolation accompanying chronic conditions. Yet there seems to be an apparent and almost unbelievable lack of information and apathy within the health care community which essentially denies this vitally needed information and training to those so much in need. Lincoln County is home to many seniors. There are many of them, and others, who struggle with chronic burdens. All one needs to do is look around at your neighbors and you can see so many who would substantially benefit from this training. It is really time to "wake up" the medical and health care community of Lincoln County to spread the word and get involved. Help a neighbor and/or friend and pass the word. We would be remiss with this letter if we did not also recognize the high quality of leadership and training exhibited by the two lady facilitators. They were both exemplary as they provided the leadership directing class participants toward desired learning goals. In our case the facilitators were Kathleen Dougherty of the Lincoln County staff who was very ably assisted by Molly MacMahon. We could not have been more pleased or felt more inspired and motivated toward implementing principles set before us. The textbook and audio/visual training materials were also very appropriate and well prepared to provide the desired learning objectives. All in all, what a shame these resources are not more supported, more well known by health care providers, and especially more thoroughly utilized by those who need them to make their lives more comfortable and complete. Al & Ann Mills Otter Rock, OR Oregon Living Well/CDSMP Success Stories Success Stories From & About Oregon Participants: A 65-year-old woman said, "I have changed so many things in my life since I started the workshop 6 weeks ago, I am more positive and will continue with my goals I made for the rest of my life." "On the last day, "Looking Back" and sharing individual successes and positive outcomes included: • Being able to share with each other • Meeting all the participants • Laughing (finally)" "`Lin' is an elderly Vietnamese woman. When she started the Living Well program, she was very attentive to information but very quiet. Towards the end she was one of the only group member who felt comfortable sharing with the group on a regular basis. She had enhanced her exercise program, increased her water intake and decreased the amount of rice (carbohydrates and sodium) in her diet." "Because of this class, I now have the confidence to believe that I can continue to do the exercises that the physical therapist assigned to help with the persistent back pain. I have even set up a reasonable plan to address the excess weight that hampers my physical well-being and have the confidence to begin my journey in this direction." "One woman, the last day of class divulged that she has begun a manuscript, which she hadn't told her family or friends yet. This was a big step forward!" "As I was encouraged to set manageable goals each week, I found benefit in the positive sense of accomplishment/empowerment that resulted from accomplishing the plan. I also appreciated the resulting notion that positive, forward progress in easing my condition was possible." "This class helped me to realize the need of working personally with a counselor and having the courage to find one." This page last updated April 10, 2007. "I personally found that there is power in making small life changes, that is, that one does not have to make a huge life changes to feel powerful. I also found that I don't have to do it all myself. There is power in asking and receiving help." "One gentleman was feeling very discouraged. He has multiple chronic health conditions and is 79 years old. He stated at session 4 how much program is helping. He finds the book and group support very helpful ...priceless!! This is why I love this program." "One participant, a 58-year-old woman with four chronic conditions had dropped out of life - homebound. The class was her first attempt to re-enter the community. She attended five classes - contributing greatly to the group - and learned to smile again. She made action plans to take back what she had lost." "Since going through the program I have been able to lower my blood sugar to below 140. I exercise 3 times a week and feel much better." "A participant reported in the first Tomando Control de su Salud session that he was eating 3 dozen tortillas per day plus 1-2 beers. He was a field worker and did not exercise. At the end of 6 weeks he had cut down to 12 tortillas per day spread out over 3 meals, stopped drinking beer and was walking 30 minutes per day and reported he felt better, his diabetes was better controlled and he had experienced significant weight loss." "I was diagnosed with fibromyalgia (FM) in 1991 after suffering from pain for 3 years. Was not told I had FM but told I needed meds and exercise for I had a `chronic' condition. I was finally handed the full diagnosis in Oct 1999. In 2003 I went back to school to obtain a Master's in Public Health and then returned to work in research. I still have FM and deal daily with pain, fatigue but now I am making a difference in my community." "At the first session, `Joe' was depressed and anxious about losing his job because he kept falling asleep at his desk. Six weeks later he was smiling and had roses in his cheeks. He was using his positive pressure (CPAP) machine again for his sleep apnea, and was making positive changes in his eating and exercise habits. He said, "My medical problems were running my life. I've got a long way to go, but I've realized that I can take control and get my life back." This page last updated April 10, 2007. From Oregon Organizations & Communities "We had a wonderful husband/wife team (husband with the chronic conditions) who jointly wrote a WONDERFUL letter about the LW program they participated in. This letter was submitted as a "Letter to the Editor" which was recently published in the county newspaper! A nice way to promote and support the program in our community!" "Loaves and Fishes is very pleased to be expanding Living Well in Multnomah County. The response from our seniors and community has been very positive and we're looking forward to jump-starting the program in our area to positively impact the health and well-being of anyone wanting to self-manage." From Oregon Leaders & Master Trainers "Wonderful support for each other within our first group! Very positive results were evident by the end of the 6 weeks." "I am one of those people who looks very healthy on the outside, but I have to take really good care of myself to manage life with an anxiety disorder and chronic pain. If I want to feel good, I have to stay on top of things. Being a leader for Living Well has helped reinforce my own skills and self-confidence to do this. It gives me a new perspective on my own life when participants share their health- related struggles, and it's tremendously rewarding to see people start taking charge of things for themselves." "I was a caregiver for over 23 years - the last 3 were pretty much 24/7 for my husband with multiple chronic medical needs. I also cared for aged mother. I had gone into chronic, deep depression and was not aware of it till I was in an auto accident 2 Y2 years ago. I was informed by my medical provider. I signed up for the class to help my husband and I during his care - he however passed away before that happened - but I was encouraged to take it anyway. I am coming along and am now a volunteer leader." "These workshops are so inspirational to lead." - Carole Kment, Samaritan Health Services This page last updated April 10, 2007. From Oregon Organizations & Communities "We had a wonderful husband/wife team (husband with the chronic conditions) who jointly wrote a WONDERFUL letter about the LW program they participated in. This letter was submitted as a "Letter to the Editor" which was recently published in the county newspaper! A nice way to promote and support the program in our community!" "Loaves and Fishes is very pleased to be expanding Living Well in Multnomah County. The response from our seniors and community has been very positive and we're looking forward to jump-starting the program in our area to positively impact the health and well-being of anyone wanting to self-manage." From Oregon Leaders & Master Trainers "Wonderful support for each other within our first group! Very positive results were evident by the end of the 6 weeks." "I am one of those people who looks very healthy on the outside, but I have to take really good care of myself to manage life with an anxiety disorder and chronic pain. If I want to feel good, I have to stay on top of things. Being a leader for Living Well has helped reinforce my own skills and self-confidence to do this. It gives me a new perspective on my own life when participants share their health- related struggles, and it's tremendously rewarding to see people start taking charge of things for themselves." "I was a caregiver for over 23 years - the last 3 were pretty much 24/7 for my husband with multiple chronic medical needs. I also cared for aged mother. I had gone into chronic, deep depression and was not aware of it till I was in an auto accident 2 Y2 years ago. I was informed by my medical provider. I signed up for the class to help my husband and me during his care - he however passed away before that happened - but I was encouraged to take it anyway. I am coming along and am now a volunteer leader." 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U o .o O 'o L y w C v E"' , a, c~ Sr' r i L n O U L .o c L C o °L' Lrf" .o C r' v Q 8 c u E' = y w o L C C~ 'O o } m 3 Q O .c O ai > o u a u > " S1 04 ~ O O C - Cti r.+ r + CK r O CS L vo, ~A c 06 2) . 4 o L .C C cet ti "CS v, ti cl y u C p p L y ^C C C c O C: C 1n C L° L 42 C u C w U N _ C EA RS y •d eT j) 2 y, C L , L 6~ N :J L C iU! U G G y U vi ~ v, O p G) ~ U C Q. O Go~ Y~ F•+ L C C~ rw O 6i Cb3a ~ on 'o • h c L e~ y ev 4i W Gj L C~ L 6> vOi V O -4.4 i O ow a V ~ C~u0 o y ~ a ~ ~ ~ L ~ 'v Q ~.-,o C ri w E•o O E on~~w y C E C G~ bA C C y " CC po 4- p d ]'y C L y y H L U 00 A ~ L O Q U 2) r.+ L - i0.+ y V C + M ' v ~ O ~ .d > C~ v L .C y .O C C7 C Q m t" O C ai +p+ O RS L O p m ~ y O Q w tf) HENDRIX, BRINICH W BERTALAN, LLA 716 NW Harriman St. Bend, Oregon 97701 541.382.4980 541.382.9060 fax ATTORNEYS AT LAW www.hxbri.com Greg Hendrix, P.C. Ken Brinich, P.C.* Lisa N. Bertalan, P.C. *admitted Oregon & U.S. Patent Bar December 5, 2007 Our File: 3301.1 Deschutes County Board of County Commissioners 1300 NW Wall St. STE200 Bend, OR 97701-1960 RE: Text Amendment TA-06-10 Dear Commissioners: I represent Robert Swaney. I write to provide additional testimony in the matter of the above referenced text amendment proceeding. Federal law restricts the authority of local jurisdictions to regulate amateur radio facilities. County regulation must accommodate amateur radio operations and must represent the least restrictive means to meet the County's legitimate purpose. The County's legitimate purpose is stated in the "Purpose" section for each zone subchapter of chapter 18 of the County code. These subchapters establish regulations for the several zones in Deschutes County. The "purpose" varies from zone to zone. For example, maintenance and enhancement of scenic vistas and natural landscapes is identified as a purpose of the Landscape Management overlay zone. The purpose section of the Multiple Use Agricultural (MUA), the Open Space and Conservation zone (OS & C), and the Flood Plain (FP) zones provide that conservation, protection or preservation of scenic resources is a purpose of the zone. In the Flood plain zone the purpose language also provides that public interests be balanced with individual property owners' interests. Other than the Landscape Management zone, no zone has as its purpose the preservation of scenic vistas. Scenic vistas in the LM zone can be maintained and preserved by limiting the number of towers per unit of land area and requiring placement as far from scenic rivers and roads as is practicable, while still accommodating the needs of the amateur radio operator. No height limitation is required. In other zones that seek some protection of scenic resources, it is the public scenic resource that is protected, not private individual's view from their homes. With so few licensed amateur radio operators, and the fraction of those who have the resources to build towers over 100 feet Board of County Commissioners Page 2 of 2 December 5, 2007 in height, the impact of the amateur radio community pales in comparison to the impact of electric power transmission towers. In the MUA, OS & C, and FP zones, the effect on public scenic resources is de minimus. While a private individual may, from time to time, feel that their view is diminished because of an amateur radio facility, no impact on the public welfare has been identified. It is not the County's responsibility to enact regulations that serve only to preserve private property owner's view sheds. The absence of an identified legitimate purpose in zones other than the LM zone leads to the conclusion that County regulation of amateur facility height is preempted by federal law. Kristen Maze pointed out at last week's hearing that the height limit exception for radio towers was "omitted" from the code in 2001. Until then there had been no code enforcement actions against amateur radio operators. It was only after the "omission" that Robert Swaney was issued a Notice of Violation. Not only was there no regulation of the facilities, there was no need to consider regulation. Private individuals who want an unobstructed view can purchase a view. They have several options, including protecting the view by buying adjacent land, buying a view easement, or buying land in a development with CCRs that restrict view obstructions. The County's duty is consider the public welfare, not create private property rights that others must pay for from their pocketbooks. The proposed regulations and process are a solution in search of a problem. The legal, practical, and fair approach to this issue is to confirm that the height exception omitted in 2001 was never lawfully deleted from the code. The amateur radio community is a responsible group, capable of self regulating its activities. Imposition of height regulations or expensive land use application processes should be rejected. Reg rds, Ken h c: Kristen Maze client 3 . DEC D 6 200 C f RE 3`l. rED Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200 Bend, OR 97701 - 1900 SUBJECT: Recent Hearing regarding Amateur Radio Facilities Dear Sirs and Madam; DEC 1 0 2007 UEltlVEP A number of people gave oral testimony during your hearing on November 26, 2007. Most of the testimony was cogent and to the point but a small amount was either erroneous or misleading in some way or another.. I am a member of the Communications Team of the Deschutes County Sheriffs Search and Rescue Unit (DCSSAR), I am a Radio Amateur with the highest level license (Amateur Extra), I am a former Platoon and Company Commander in a US Army Corps Signal Battalion. I am also a member of the Deschutes County Amateur Radio Emergency Services (ARES) and a member of the Oregon State Fire Marshall Overhead Communications Team. I believe I can speak with some knowledge of the issues. I would like to take this opportunity to clarify or correct some of the oral testimony that you heard. With respect to testimony given by the Military Amateur Radio Service (MARS) member, the impression he may have given about the use of Near Vertical Incident Skywave (NVIS) propagation, I believe its use on Search and Rescue missions would be highly problematical. At Fire Marshall training sessions and on readiness tests of ARES this method has been used or demonstrated. It requires relatively high power and a stationary station. Its use would not be feasible for SAR units in the field, who carry lightweight, portable, low power hand transceivers. It would be folly for us to rely on this mode of communication. Our little private joke has been that this method together with a cell phone works well. I fear the testimony may have given a wrong impression regarding the reliability and usefulness of this mode. Mr. Ken Rennick, the attorney for Mr. Swiney, made a point that may not have been given proper emphasis. This was with respect to the ruling regarding a lawsuit in which a plaintiff complained the construction of a barn had blocked his or her view of the mountains. The ruling of the court was that absent deed restrictions on Exclusive Farm Use (EFU) land, there is no particular "right" to an existing view. This is a particularly germane point to the issue under review. One of you Commissioners asked a question regarding how range of reception of a groundwave signal is related to antenna height. The answer given, that range depended upon a number of factors, including differences in soil, presence of mountains, trees, lakes etc., is correct. However, the most immediate dependency, at least to a first approximation, is that the range of a signal is proportional to the square root of the antenna height and the other factors are of secondary importance. Thus, if one doubles the antenna height, the range can be expected to increase by the square root of two, or 1.4 times. It would be nice if there were a better mathematical relationship, but this is the physical reality, and one cannot `argue with Mother Nature'; it is still much more advantageous to heighten antennas than to increase the transmission power. I believe most of the people in the room were sympathetic to the plight of the neighbors, however it's difficult at this point to remedy the situation, since none is available. On two different properties that we own or once owned my wife and I have experienced the same frustration over the loss of a view after something similar was done. Unfortunately for us, there was no redress available either. Very truly yours. John W. Barton 2406 NW Summerhill Drive Bend, OR 97701 Rex A. Auker 62575 Stenkamp Road Bend, Oregon 97701 December 10, 2007 Deschutes County Board of Commissioners 1300 NW Wall Street Bend, Oregon 97701-1960 Dear Commissioners: R'- UIVED BY.. DEC 1 0 2007 ®Et,~!/E®BY: The purpose of this letter is to respond to Community Development Department memorandum of November 29, 2007 (December 5, 2007), Subject: Amateur Radio Text Amendment TA-06-10 Record (Enclosure 1). That memorandum addresses three important issues. 1. First Issue: Does the wireless telecommunications code apply to amateur radio? a. We must be careful to use words accurately, precisely and in the appropriate context. The definition of a wireless telecommunications facility that appears in DCC 18.04.030 does not attempt to address the general field of wireless telecommunications or wireless telecommunications services. Its aim is limited to the regulation of the physical structures and equipment that are used in wireless telecommunications. b. The CDD memo addresses the topic "(46) Telecommunications service" and makes reference to "amateur radio services", "personal wireless services facilities", "commercial radio mobile services", etc. We must be careful to observe the distinction between a "service" and a "facility". DCC 18.04.030 and the related codes concerning wireless telecommunications facilities make no attempt to regulate telecommunications "services", rather their aim is to regulate telecommunications "facilities". c. The CDD memo refers to the DCC 18.04.030 definition of wireless telecommunications facility and declares, the federal definition of "telecommunications services' is not applicable for interpreting the County code for all telecommunications facilities." I concur. d. The CDD memo addresses the term "unstaffed" as it appears in the DCC 18.04.030 definition of wireless telecommunications facility. I also addressed that issue in my letter to the Board of Commissioners dated December 3, 2007. Allow me to review and amplify: 1) 47 CFR Section 97.5(a) states that an amateur station apparatus must be under the physical control of a licensed operator before the station may transmit on any amateur service frequency from any place that is within 50 km of the surface of the earth and under the jurisdiction of the United States and the FCC. (Enclosure 2) This federal regulation can be used to shed light on the meaning of the word "unstaffed" in the Deschutes County Code, but it does not determine the county code definition of "unstaffed". 2) If the Board of Commissioners determines that the concept of a "staffed" facility in the county code is equivalent to the phrase "under the physical control of in the federal code, then an amateur radio station in Deschutes County may be regarded as "staffed" only when it is energized and transmitting. At all other times, the amateur radio station should be regarded as "unstaffed". 3) The CDD memo states "Another interpretation of the definition [of a wireless telecommunications facility] might be that it does not include amateur radio facilities because the towers are not `unstaffed' in that the towers are located on the same property as the users." Such an interpretation is possible but problematic. What does `on the same property as the users' mean? Mr. Swaney's 120-foot tower is located on a piece of rental property that is a separate tax lot from his residence. It is my understanding that his receiver, transmitter, and microphone, etc. are located in his residence. In Mr. Swaney's case, the rental property is adjacent to his residence property, but what if an amateur operator decides to erect an antenna structure on a rental property far removed from his/her residence and operate it remotely from the residence? The provisions of 47 CFR Section 97.5(a) regarding the location of an amateur radio station are not relevant to Deschutes County Code except to affirm that amateur radio stations in Deschutes County are subject to regulation by the FCC. With regard to the county code, the location of a particular radio antenna structure is only relevant in determining whether it is to be classified as a Tier I, II or III wireless telecommunications facility. 4) It is important to make a distinction between the amateur radio station as a whole and the various components of the amateur radio station. A complete amateur radio station will normally consist of a microphone or telegraph key, a set of speakers or headphones, a transmitter, a receiver, a tuner, a power source/transformer, an antenna, and a variety of enclosures and support structures. These components can all be housed in one small enclosure - even as small as the plastic case of a hand-held "walkie-talkie"- or they can be housed in large separate enclosures - even separate buildings far distant from one another. 5) The language of the DCC 18.04.030 definition of a wireless telecommunications facility does not correlate to the definition of a complete amateur radio station. Rather, it aims primarily at regulating the radio frequency transmission and reception equipment that is located externally to structures that are regulated by other portions of the county code. For instance, the county code that addresses Tier I facilities, regulates an antenna structure on the roof of a private residence or a free-standing antenna structure in the backyard of a private residence, but it does not regulate the microphone, transmitter, receiver, etc. that may be located in a room inside the private residence. Neither does it regulate the private residence itself. The county code sections that address Tier III wireless telecommunications facilities regulate free-standing radio frequency transmission/reception structures and their associated cabinets or sheds, but only if the radio apparatus is external to other structures, such as barns and workshops, that are regulated by some other part of the county code. 6) The county code sections concerning wireless telecommunications facilities regulate associated equipment cabinets and sheds, but not the equipment within the cabinets and sheds. However, if the equipment shed is large enough to require its own building permit, it will be regulated as a separate structure apart from the other components of the wireless telecommunications facility. 2. Second Issue: Aesthetic Findings a. The CDD memo cites numerous references in the Deschutes County - Comprehensive Plan that identify the preservation of the scenic value and rural character of county lands as legitimate county government purposes. Do those references constitute "clearly defined health, safety or aesthetic objective(s)" as defined in state and federal statutes? Perhaps not in themselves, but when combined with the specific language of the code sections that address wireless telecommunications facilities, I would judge the county's aesthetic objectives to be clearly defined. 3. Third Issue: State Statute Compliance. a. The minutes of the meetings of the Deschutes County Planning Board during 2000 and 2001 provide substantial evidence that the matter of amateur radio stations was considered and decided at that time. It was the intention of the Planning Commission at that time to include amateur radio equipment under the definition of wireless telecommunications facilities. There is also evidence that the federal and state statutes regarding amateur radio were considered when the language of the current code was adopted. Conclusion: The language of the current code is not perfect, but taken as a whole, I believe that the county's existing regulations regarding wireless telecommunications facilities are well conceived and well written. When properly interpreted and judiciously enforced, I believe they will achieve the legitimate purposes of county government and also make reasonable accommodation for amateur radio operations. There is no need for new text amendments. Sincerely, G Rex A. Auker r Gt~c-L `6J +.s+F f ~ 11 . ez f .J F J t . Community Development Department PAantiing pivision. Building Safety DiWsion . Egvirenrrienta1 Health :Division 11 NVIi Lafayette Avenue - bend Oregon 977111-19:25 (541)3$8'557: FAX (541)385- 764 http;//-www co.deeschutes.-orms/.ed4l Memorandum TO: Deschutes County Board of County Commission FROM: Kristen Maze, Laurie Craghead DATE: / SUBJECT: Amateur Radio Text Amendment TA-06-10 Record Purpose The following issues were identified at the November 26, 2007 public hearing before the Board of County Commissioner's ("Board"). Staff would like to address these issues for the Board's review and include them into the amateur radio text amendment record. Issues 1. Does the wireless telecommunications code apply to amateur radio facilities Does the definition of Wireless Telecommunications include amateur radio as a personal wireless communication service? The FCC determined in 1999 that amateur radio facilities are not regulated by Section 704 of the Federal Wireless Telecommunications Act of 1996. That FCC order is included in the record. Section 704 is the section of that act that limits local governments' ability to regulation "personal wireless services." That 1999 FCC ruling, which interpreted 1985 FCC ruling (PRB-1), found that section of the Act to not apply to use of amateur radio facilities because that use does not fit the definition of "personal wireless services" because that amateur use is not for a fee. The definition of "Telecommunications Service" found in 47 USC §153(46) is: (46) Telecommunications service The term "telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." (Emphasis added). Therefore, amateur radio services are not telecommunication services and not covered by the Federal Telecommunications Act. nitnrlifit Car-74ncc Rorfrwmajrl -rn3t1r 1344J., The federal telecommunications law does not define general "telecommunications facility" and only defines a "personal wireless services facility", which is a facility that provides "commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services." Nonetheless, one can apply the definition of "telecommunications service" to the term "telecommunications facility" and determine that the term does not apply to amateur radio towers under the federal law. The County Code definition of "wireless telecommunications facility," however, could be interpreted as including amateur radio facilities. That definition is as follows: "Wireless telecommunications facility" means an unstaffed facility for the transmission or reception of radio frequency (RF) signals usually consisting of an equipment shelter, cabinet or other enclosed structure containing electronic equipment, a support structure such as a self-supporting monopole or lattice tower, antennas, microwave dishes or other transmission and reception devices. This definition includes "personal wireless services facilities" as defined under the Telecommunications Act of 9996. That definition includes "personal wireless services facilities" as merely a subset of what is a wireless telecommunications facility. Thus, the federal definition of "telecommunications services" is not applicable for interpreting the County Code for all telecommunications facilities. "Another interpretation of the definition might be that it does not include amateur radio facilities because the towers are not "unstaffed" in that the towers are located on the same property as the users. If the Board chooses not to adopt any new amateur radio tower regulations and to interpret the current County Code, contrary to staff's interpretation, to include amateur radio facilities as a "wireless telecommunications facilities", then those facilities would be regulated by the, provisions in Deschutes County.Code (DCC) Section 18.116.250. The Tier 3 facility, which would be the type of facility that would be most likely requested by the many amateur radio tower owners that testified at the hearing, requires the application of DCC 18.128.340, which lists the conditional use criteria objected to by those same tower owners. If the Board interprets DCC 18.116.250 Wireless Telecommunications Facilities as applicable to amateur radio towers, the Board will need to make findings as to why those regulations are the "minimum practicable regulation" necessary to accomplish the purpose of the county." ORS 221.295 and 47 C.F.R. 97.15 (the federal regulations adds "legitimate" to "purpose."). No findings were attached to the previous ordinances that resulted in DCC 18.116.250 that explained how the county's wireless telecommunications regulations fit within those guidelines. If the Board decides to adopt new amateur radio facility regulations, the Board will have to adopt similar findings. The Board will have to make findings that clearly articulate the county's legitimate purposes and why the new regulations are the minimum practicable regulations to achieve those purposes. ~vt~lcoG c1.~'-~ J 2 2. Aesthetic Findings Public testimony pointed out that the Deschutes County Code Zoning Purpose statement does not list scenic/open space value for all zoning districts. It was claimed that the County cannot make aesthetic (scenic vista) findings for amateur radio facilities for those zones in which the purpose statements do not include an aesthetic purpose. The following Deschutes County Comprehensive Plan statements clearly identify scenic value throughout the County: • Chapter 23.24.020 Rural Development clearly states Goal A. "To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County." • Chapter 23.88 Agricultural Lands states "Agriculture also provides secondary benefits such as open space and scenic appearance...." • Chapter 23.92 Forest Lands also refers to "the 'beauty' in Deschutes County is directly related to the large expanse of forestland." • Chapter 23.96 Open Spaces, Areas of Special Concern, and Environmental Quality states in Goal 1:"To conserve open spaces and areas of historic, natural or scenic resources." The policies section identifies the Landscape Management Combining zone. Specifically, Policy 6 states "Its primary purpose is to require site plan review to maintain structures compatible with the site and existing scenic vistas, rather than establish arbitrary standards for appearance or to otherwise restrict construction of appropriate structures." Aesthetic findings for the preservation of scenic values and appearances throughout rural Deschutes County could be made by the "Board" based on these Comprehensive Plan statements. 3. State Statute Compliance Do the two proposals meet the intent of the State Statute ORS 221.295? Notwithstanding ORS chapters 215 and 227, a city or county ordinance based on health, safety or aesthetic considerations that regulate the placement, screening or height of the antennas or antenna support structures of amateur radio operators must reasonably accommodate amateur radio communications and must represent the minimum practicable regulation necessary to accomplish the purpose of the city or county. However, a city or county may not restrict antennas or antenna support structures of amateur radio operators to heights of 70 feet or lower unless the restriction is necessary to achieve a clearly defined health, safety or aesthetic objective of the city or county. [1999 c.507 §1] Streamline Proposal meets the intent of State Statute 221.295 and PRB-1 based on the following: • This proposal does not place a limit on the height of the amateur radio facilities • At this time health issues have not been identified with amateur radio facilities and federal administrative rulings and case laws have found that federal laws preempts any potential regulations based on radio frequencies. 4- nc.(o r. 3 Safety issues are addressed with the requirement of a building permit and provide proof of Federal Communications Commission, Federal Aviation Administration and Oregon Department of Aviation licenses. Aesthetic concerns have been addressed with design criteria such as, applying galvanized non-reflective metal, the prohibition of the placement of any signs or light upon the amateur radio facility, and the requirement of yard setbacks for antenna structures. Planning Commission Recommendation is more restrictive than state statute. This proposal requires neighborhood site plan review for facilities over 75 feet. • The "Board" must make aesthetic or safety findings based 'on the Deschutes County Comprehensive Plan and Zoning Code which clearly identify the preservation of scenic views and open space identified in the Chapters listed above. • The "Board" must also clearly identify the aesthetic or safety objectives of Deschutes County that represent the minimum practicable regulation. 4 F.q § 97.5 (11) W. Watts. (c) The following terms are used in this part to indicate emission types. Refer to §2.201 of the FCC Rules, Emis- sion, modulation and transmission char- acteristics, for information on emission type designators. (1) CW. International Morse code te- legraphy emissions having designators with A, C, H, J or R as the first symbol; 1 as the second symbol; A or B as the third symbol; and emissions J2A and J2B. (2) Data. Telemetry, telecommand and computer communications emis- sions having designators with A, C, D, F, G, H, J or R as the first symbol; 1 as the second symbol; D as the third sym- bol; and emission J2D. Only a digital code of a type specifically authorized in this part may be transmitted. (3) Image. Facsimile and television emissions having designators with A, C, D, F, G, H, J or R as the first sym- bol; 1, 2 or 3 as the second symbol; C or F as the third symbol; and emissions having B as the first symbol; 7, 8 or 9 as the second symbol; W as the third symbol. (4) MCW. Tone-modulated inter- national Morse code telegraphy emis- sions having designators with A, C, D, F, G, H or R as the first symbol; 2 as the second symbol; A or B as the third symbol. (5) Phone. Speech and other sound emissions having designators with A, C, D, F, G, H, J or R as the first sym- bol; 1, 2 or 3 as the second symbol; E as the third symbol. Also speech emis- sions having B as the first symbol; 7, 8 or 9 as the second symbol; E as the third symbol. MCW for the purpose of performing the station identification procedure, or for providing telegraphy practice interspersed with speech.Inci- dental tones for the purpose of selec- tive calling or alerting or to control the level of a demodulated signal may also be considered phone. (6) Pulse. Emissions having designa- tors with K, L, M, P, Q, V or W as the first symbol; 0, 1, 2, 3, 7, 8, 9 or X as the second symbol; A, B, C, D, E, F, N, W or X as the third symbol. (7) RTTY. Narrow-band direct-print- ing telegraphy emissions having des- ignators with A, C, D, F, G, H, J or R as the first symbol; 1 as the second 47 CFR Ch. 1 (10-1-06 Edition) symbol; B as the third symbol; and emission J2B. Only a digital code of a type specifically authorized in this part may be transmitted. (8) SS. Spread spectrum emissions using bandwidth-expansion modulation emissions having designators with A, C, D, F, G, H, J or R as the first sym- bol; X as the second symbol; X as the third symbol. (9) Test. Emissions containing no in- formation having the designators with N as the third symbol. Test does not include pulse emissions with no infor- mation or modulation unless pulse emissions are also authorized in the frequency band. [54 FR 25857, June 20, 1989, as amended at 56 FR 29, Jan. 2, 1991; 56 FR 56171, Nov. 1, 1991; 59 FR 18975, Apr. 21, 1994; 60 FR 7460, F'eb. 8, 1995; 62 FR 17567, Apr. 10, 1997; 63 FR 68977, Dec. 14, 1998; 64 FR 51471, Sept. 23, 1999; 66 FR 20752, Apr. 25, 2001; 69 FR 24997, May 5, 2004; 71 FR 25982, May 3, 2006] § 97.5 Station license required. (a) The station apparatus must be under the physical control of a person named in an amateur station license grant on the ULS consolidated license database or a person authorized for alien reciprocal operation by §97.107 of this part, before the station may trans- mit on any amateur service frequency from any place that is: (1) Within 50 km of the Earth's sur- face and at a place where the amateur service is regulated by the FCC; (2) Within 50 km of the Earth's sur- face and aboard any vessel or craft that is documented or registered in the United States; or (3) More than 50 km above thO Earth's surface aboard any craft that is documented or registered in the United States. (b) The types of station license grants are: (1) An operator/primary station li- cense grant. One, but only one, oper- ator/primary station license grant may be held by any one person. The primary station license is granted together with the amateur operator license. Except for a representative of a foreign gov- ernment, any person who qualifies by examination is eligible to apply for an operator/primary station license grant. 572 4, (o5,vr" lye re A Federal Communications Commission (2) A club station license grant. A club station license grant may be held only by the person who is the license trustee designated by an officer of the club. The trustee must be a person who holds an Amateur Extra, Advanced, General, Technician Plus, or Techni- cian operator license grant. The club must be composed of at least four per- sons and must have a name, a docu- ment of organization, management, and a primary purpose devoted to ama- teur service activities consistent with this part. (3) A military recreation station li- cense grant. A military recreation sta- tion license grant may be held only by the person who is the license custodian designated by the official in charge of the United States military recreational premises where the station is situated. The person must not be a representa- tive of a foreign government. The per- son need not hold an amateur operator license grant. (4) A RACES station license grant. A RACES station license grant may be held only by the person who is the li- cense custodian designated by the offi- cial responsible for the governmental agency served by that civil defense or- ganization. The custodian must be the civil defense official responsible for co- ordination of all civil defense activities in the area concerned. The custodian must not be a representative of a for- eign government. The custodian need not hold an amateur operator license grant. (c) The person named in the station license grant or who is authorized for alien reciprocal operation by §97.107 of this part may use, in accordance with the applicable rules of this part, the transmitting apparatus under the physical control of the person at places where the amateur service is regulated by the FCC. (d) A CEPT radio-amateur license is issued to the person by the country of which the person is a citizen. The per- son must not: (1) Be a resident alien or citizen of the United States, regardless of any other citizenship also held; (2) Hold an FCC-issued amateur oper- ator license nor reciprocal permit for alien amateur licensee; § 97.9 (3) Be a prior amateur service li- censee whose FCC-issued license was revoked, suspended for less than the balance of the license term and the sus- pension is still in effect, suspended for the balance of the license term and re- licensing has not taken place, or sur- rendered for cancellation following no- tice of revocation, suspension or mone- tary forfeiture proceedings; or (4) Be the subject of a cease and de- sist order that relates to amateur serv- ice operation and which is still in ef- fect. (e) An IARP is issued to the person by the country of which the person is a citizen. The person must not: (1) Be a resident alien or citizen of the United States, regardless of any other citizenship also held; (2) Hold an FCC-issued amateur oper- ator license nor reciprocal permit for alien amateur licensee; (3) Be a prior amateur service li- censee whose FCC-issued license was revoked, suspended for less than the balance of the license term and the sus- pension is still in effect, suspended for the balance of the license term and re- licensing has not taken place, or sur- rendered for cancellation following no- tice of revocation, suspension or mone- tary forfeiture proceedings; or (4) Be the subject of a cease and de- sist order that relates to amateur serv- ice operation and which is still in ef- fect. [59 FR 54831, Nov. 2, 1994, as amended at 62 FR 17567, Apr. 10, 1997; 63 FR 68977, Dec. 14, 1998] § 97.7 Control operation required. When transmitting, each amateur station must have a control operator. The control operator must be a person: (a) For whom an amateur operator/ primary station license grant appears on the ULS consolidated licensee data- base, or (b) Who is authorized for alien recip- rocal operation by §97.107 of this part. [63 FR 68978, Dec. 14, 1998] § 97.9 Operator license grant. (a) The classes of amateur operator license grants are: Novice, Technician, Technician Plus (until such licenses 573 p - 7i BY: R Eli/ED ROBERT SWANEY DEC 1 0 2007 DE "IV 4!EF) FY: December 10, 2007 Deschutes County Board of Commissioners 1300 NW Wall Street, Suite 200 Bend, Oregon 97701 Re: Proposed Text Amendment TA-06-10 Dear Commissioners: Here is the last sentence of an email message from a senior staff member of the Community Development Department on May 26, 2006 to my attorney, regarding the regulation of amateur radio antennas and towers, after they had noticed me for having "several structures over 30' in height" on my property: "Is your client willing to pay you to research the matter? " I provided the necessary research and met with staff to discuss the results of my research. From the start (delivery of a violation notice to me in April 2006), I have attempted to persuade the Planning Department and the Building Safety Division that they lacked authority to regulate amateur radio antennas and towers. Yet they put CODXC and me through a hellish, expensive, frustrating process as we attempted to educate them on state and federal amateur radio tower regular pre-emption law, the history of amateur radio antenna regulation in this County, and the flaws in the rewrite of the County Code in 2000-2001. Over the past 15 months, by any standard, I've spent a vast amount of money for legal costs related to this, including putting forth the necessary legal research from competent attorneys experienced in this area of the law. This research has been submitted in good form at various points throughout the process of applying for a building permit and supporting the passage of a simple text amendment that would bring the Deschutes County Code into the same form as many large and small municipalities have done over the past few years. Staff has not rebutted CODXC's legal authorities. I question whether the submitted information has been read let alone understood by the actual decision-makers. "Reasonable" Accommodation of Amateur Radio As you consider regulating amateur radio towers or antennas, the important conclusion from the immense volume of rational, coherent information the CODXC and our attorneys have provided to the Planning Department, the Planning Commission, and the Board of Commissioners is: amateur radio is a large collection of sub-hobbies, and ALL must be reasonably accommodated. The forms of regulation that are to be employed to achieve the county's objective must represent the least restrictive means to achieve the purpose of the County. 62515 Stenkamp Road s Bend, Oregon 97701 4 (541) 330-1953 Federal Communications Commission Order DA99-2569, issued in November 1999, contains the key words that clarified how the original FCC order (commonly called "PRB-1") was intended to be interpreted. It says: "PRB-I's guidelines brings to a local zoning board's awareness that the very least regulation necessary for the welfare of the community must be the aim of its regulations so that such regulations will not impinge on the needs of amateur operators to engage in amateur communications. " Note that the FCC Order doesn't say, "engage in emergency communications." It says, "engage in amateur communications." Your Planning Commission spent a lot of time in discussions similar to what I witnessed at your meeting on November 26th, as our opponents attempted to persuade you that you simply need to accommodate some form of minimal emergency communications capability. I explained why this line of thinking is irrelevant via a letter to the Planning Commission, dated April 29, 2007: `To accommodate' amateur radio does not mean trying to create a set of restrictions to make it possible to communicate in a way that would be useful in certain emergency scenarios. It means allowing all aspects of the hobby so that the pool of competent, active amateur radio operators is as large and diverse as possible. Most of us are involved in emergency communications training and preparedness in some form, but that's not why we are amateur radio operators. " The Proposed Ordinance from the Planning Commission The Planning Department's staff memo dated July 2, 2007, regarding the Planning Commission's recommended ordinance states: "The Planning Commission's recommendation is more restrictive than State Statute. " What does this mean? It means the Planning Commission's proposed ordinance is not legal. As you read the memorandum submitted by my attorney prior to the November 26th hearing, note that on pages 8-11, every element of the proposed regulation that has been "borrowed" from the Wireless Telecommunications Facilities regulations are unreasonable as they clearly represent something other than the "least restrictive" means. There is no compromise possible that includes any elements of the Wireless Telecommunications Facilities regulations that would not put the County in the position of defending an illegal ordinance. You should not attempt to "rewrite" the ordinance at this point. It is a very complex matter, and despite many meetings and submission of a very large volume of written material by the amateur community, most of the Planning Commissioners never fully understood the issues or the law. If you find it politically unpalatable to pass our originally proposed ordinance, the best course of action would be to do nothing. Passing an Ordinance to Solve a Neighborhood Dispute? At your November 26th meeting, I was heartened to hear Commissioner Luke state, if my memory is correct, that he felt that it was a bad idea to try to solve a code enforcement issue with a text 62515 Ctenkamp Road + Ben d', Oregon 011, 7 011 - (5541) 330-1953 amendment. I agree. I was instrumental in getting the CODXC to originally pursue this at the suggestion of the County Planning Department on the assurances that it would be the fastest, easiest, and least expensive way to resolve the problem. I was also in favor of getting it withdrawn when it was obvious that the discussions before the County Commission wouldn't be any more fruitful than the Planning Commission discussions and probably would lead to passage of an illegal and extremely restrictive ordinance. I chose to take the issue to a venue where facts and the law matter: the Courts. I do not contest that the County can regulate these items for safety (by requiring building permits) in the zoning that I live in. My building permit applications, submitted long ago, have been reviewed and approved, and await a decision that will come from the Courts. My case is the only case that has ever come up in this county, and probably will be the last. Neighbor Involvement The positions taken by my neighbor, Rex Auker, throughout this case illustrate why the amateur community has worked so diligently at the Federal and State levels over the past 15 years to pass pre-emption laws for amateur radio. No citizen wants to sit in a public meeting (or read in the newspaper) and be pilloried in a process that encourages demagoguery, exaggeration, fact selection, and speculation. I'd be happy to explain to any government official or collection of neighbors why I placed my tower where it is placed, and I'll bet they would agree that given the numerous constraints involved, it's the best place for that tower to be placed. During the first eight months of this process, I had no idea that Mr. Auker was the source of the code complaint that inspired the CODXC text amendment proposal. The County maintained his anonymity under their normal procedures, and Mr. Auker never informed me of the concerns he had with my pursuit of amateur radio. I became aware of his identity when he chose to testify in opposition to the CODXC's text amendment application, as the sole opposition to a sensible amateur radio tower ordinance that he felt was the only way the tower would be "legitimized" and allowed to remain. At that point, he could not withdraw his code complaint. At that point explaining to him why the tower was placed in that location would have no effect on the County's code enforcement process. He is utterly mistaken in his belief that derailing the passage of an amateur radio tower ordinance that comports with the federal and state pre-emption laws will affect the placement or status of that tower, and we have so stated that in writing to the Planning Commission. But he apparently does not read any of the materials our side submits, nor does he understand the meaning of the Planning Department staff reports. My goal throughout the past 18 months has been to defend basic legal principles that are vital to the health of amateur radio. I will not be deterred by a neighbor apparently unwilling to confront me directly about my antennas, but willing to say just about anything to as large an audience as possible. Another quote from my April 29, 2007 letter to the Planning Commission: "And finally, 1 paid the building permit fees and submitted all of the required engineering and site information for the offending tower nearly nine months ago [now nearly 16 months ago]. The design was reviewed and approved within a week and my building permit request has been sitting on Planning 62515 Stenkamp Road • Bend; Oregon 97701 • (541) 330-1953 Department hold ever since. The design and construction of that tower is better than 99.9% of all amateur towers, and is far safer than any of the AM radio station towers standing today in this County..... The conduit and metal boxes referred to by Mr. Auker are required for the low-voltage wiring and lightning protection equipment and simply reflect good engineering practice in conformance with the NEC [National Electrical Code]. There is no hidden, yet-to-be-revealed purpose for the tower other than to support my amateur radio antennas. " Fees And finally, it's not the fees - it's the process AND the fees. The Planning Department staff memo issued in late April 2007 said that the fees alone made the idea of site planning and conditional use permits unreasonable. In the CODXC reply dated May I Otn, which is part of the record of this matter, it was pointed out that it wasn't just the fees that made it unreasonable. Both the fees and the proposed processes do not represent the "least restrictive" forms of regulation as required by the state and federal pre-emption laws. However, if you are concerned about the cost burden placed on the average amateur radio operator by any proposed regulation, I would suggest that you consider finding a way to waive the County's current requirement for engineering information that is submitted in support of a building permit application (for even the simplest, least expensive tower) to be "wet-stamped" by an Oregon engineer, when the manufacturer's engineering calculations ("dry-stamped" by a P.E. of another state) would suffice for the County's purposes. That would save about $500 in costs for the smallest, simplest installations using conventional "off-the-shelf' manufactured towers. Sincerely, Robert D. Swaney Cc: Kristen Maze 62515 Stenkamp Road + Bend, Oregon 97701 - (541) 330-1953 RECEIVED 9Y: nti~ Rex A. Auker 62575 Stenkamp Road Bend, Oregon 97701 December 3, 2007 Deschutes County Board of Commissioners 1300 NW Wall Street Bend, Oregon 97701-1960 Dear Commissioners: DEC 0 7 2007 MIVREDO IY: I want to suggest a solution to the amateur radio antenna problem that requires no legislative action, only administrative action, on the part of the county commissioners. It is a solution that leaves current county codes intact, protects our scenic vistas, and demonstrates good will and reasonable accommodation to amateur radio operators. It encourages the use of telescoping antennas and would require those who want to construct large fixed-height antennas to consult with their neighbors before beginning construction. DESCRIPTION: I will begin by briefly describing the recommended administrative actions. Later, I will explain their benefits and rationale: 1. First Administrative Action: Establish an internal policy that clarifies the meaning of "unstaffed" in the Title 18 definition of Wireless Telecommunication Facility as it applies to amateur radio stations. An amateur radio station should be regarded as "unstaffed" whenever it is not energized and not under the physical control of a licensed operator. During those times, the amateur station must comply with the Tier I, II, or III height requirements for the zone in which it is located. An amateur radio station should be regarded as "staffed", however, when it is energized and under the physical control of a licensed operator. During those times, the amateur station may exceed the Tier I, II, or III height requirements for the zone in which it is located. 2. Second Administrative Action: Establish an internal policy that allows the support structure for an amateur radio antenna to be a manufactured telescoping mechanism (without guy wires) rather than a wood monopole as is normally required for Tier I and II wireless telecommunications facilities. This policy should specify that the structure must be painted in flat natural-looking colors that blend with surrounding structures and vegetation. 3. Third Administrative Action: Establish an internal policy that reinforces the premise that all applicable requirements for construction and land use permits for amateur radio stations shall be enforced but the fees for those permits shall be waived or reduced in appreciation for the valuable public service that amateur radio operators provide. 4. Fourth Administrative Action: Establish an internal policy that clarifies that all language applicable to wireless telecommunications facilities that refers to leases or leased property shall be adapted and applied in a similar manner to purchase agreements or privately owned property. BENEFITS AND RATIONALE: The following describes the rationale and benefits of the recommended administrative actions. 1. First Administrative Action: Clearly Define "unstaffed" and "staffed" The county attorney has told me that amateur radio stations do not fit the definition of wireless telecommunications facilities because she regards them as "staffed" facilities, rather than "unstaffed" facilities, as specified in the Title 18 definition. She has apparently been influenced by Robert Swaney's line of reasoning which appeared in the first version of the Proposed Text Amendment to Title 18 of the Deschutes County Code. Mr. Swaney argued that an amateur radio station does not meet the definition of a wireless telecommunications facility because: "As defined by the FCC, an amateur station is `staffed' (the station must be under the physical control of a licensed amateur radio operator, and the amateur station is generally located in the operator's home.)" (Enclosure 1) Mr. Swaney's comment sounds reasonable until we read the text of the regulation to which he refers. 47 CFR 97.5 (a) reads: "The station apparatus must be under the physical control of a person named in an amateur station license grant before the station may transmit on any amateur service frequency (Enclosure 2). Upon close examination we see that the regulation to which Mr. Swaney refers declares that a station must be under the control of a licensed operator only when it is transmitting. Thus, an amateur radio station is "staffed" only when it is energized and transmitting. When it is turned off and the licensed operator is away from the radio console, the station is "unstaffed". How does this affect amateur radio antenna structure in Deschutes County? Some structures such as Mr. Swaney's 120 foot antenna structure clearly meet the definition of a wireless telecommunication facility when they are not energized and not under the control of a licensed operator - during those times they are "unstaffed". Since amateur radio is a hobby and not an occupation, it is reasonable to assume that the vast majority of amateur radio stations in Deschutes County are "unstaffed" for the vast majority of the time. Therefore it is reasonable to regulate them as "unstaffed" facilities for the vast majority of the time. 2. Second Administrative Action: Allow amateur radio station antenna structures to be manufactured telescoping structures rather than wood monopoles. Currently, county code requires Tier I and II free-standing antenna support structures to be wood monopoles. The county can make reasonable accommodation for amateur radio by establishing an administrative policy that allows licensed amateur operators to use manufactured telescoping antenna support structures instead of wood monopoles. For permit and land use purposes, the telescoping antennae should be measured at their retracted height, when, presumably they will be "unstaffed" (i.e. not energized and not under the physical control of a licensed operator). But when the licensed operator wants to actually energize and transmit/receive from the amateur station, it will then be regarded as a "staffed" station and the antenna may be extended to its full height which may exceed the established Tier I and II height limits. The retractable antennae with which I am familiar are capable of reaching a fully extended height which is nearly three times their retracted height. Thus, the policy I am suggesting would allow for a 45-foot telescoping antenna to be classified as a Tier I structure at its retracted height, yet it would be allowed to actually operate at heights in excess of 100 feet. The currently proposed text amendments have not adequately accounted for the effect of telescoping antennae. The amendment that county staff has recommended, which is patterned after the Beaverton ordinance, allows for a retracted height up to 75 feet and requires antenna structures to be retracted when not in use. Conceivably this would allow for antenna heights of 150 feet or more when the antenna is actually in use. The local ordinance from Gresham restricts antenna height to 100 feet and makes no allowance for telescoping antenna to exceed that height, whether retracted or extended. My proposal would make it possible for an amateur radio operator to erect a telescoping antenna in any zone as long as the retracted height did not exceed 45 feet, but when actually in use, that same antenna could be extended as high as its design characteristics allowed. ORS 221.295 declares that a county may not regulate antenna below 70 feet in height except to meet a clearly defined health, safety or aesthetic objective. The statute appears to focus on the operational height of the antenna and makes no specific mention of telescoping antennae. The administrative action I am proposing places no specific restrictions on the operational height of the antenna, only the retracted height; therefore it is not likely to be judged to be in conflict with the state statute. 3. Third Administrative Action: Require permits but waive or reduce the fees. Building, electrical and land use permits are designed to ensure that county residents and visitors enjoy an environment that is healthy, safe, aesthetically pleasing, and economically viable. All individuals, businesses and government agencies are held accountable to these requirements because they provide protection and benefit to the community at large. I can see no rationale for exempting amateur radio operators from these reasonable responsibilities of citizenship! However, as an act of good will and an expression of appreciation for the valuable community service that amateur radio provides, I believe it is reasonable to reduce or waive the fees that are exclusively attributable to the construction of an amateur radio station. County staff must be careful, however, that this privilege is not abused. It would be reasonable, for example, to waive the fees for the construction of a ham radio antenna on the top of a personal residence and the fees for the electrical branch which is devoted to the operation of the station. But it would not be reasonable to waive the building and electrical permit fees associated with the construction of the residence in general. Another benefit of reducing or waiving the fees is that if an amateur radio operator ever challenged other aspects of the code, the county could point to the waiver of fees as evidence of its genuine effort to make reasonable accommodation for amateur radio. 4. Fourth Administrative Action: Treating purchase agreements and previously owned land similarly to leases and leased land. The language of DCC Title 18.128.340 makes reference to leases and leased land but makes no specific reference to purchase agreements or land that is already owned by the permit applicant. (See enclosure 3). Some amateur radio enthusiasts might try to argue that the requirements of that section cannot be applied to an amateur radio operator because the land in question is privately owned rather than leased. This potential snag can be avoided if an internal administrative instruction clarifies that the requirements applied to leases and leased land should also be applied in a similar manner to purchase agreements and land that is already owned by the applicant. A Real-Life Example If the Board of Commissioners takes the administrative actions that I have suggested, this is how they would be applied to the antennae that were the object of the complaint that gave rise to the proposed county code text amendments: Mr. Swaney's 120 foot lattice work antennae, with nine guy wires and a gray metal cabinet at its base, clearly fits the Title 18 definition of a Tier III wireless telecommunications facility at all times that it is not actually energized and under the physical control of a licensed amateur operator. Since Mr. Swaney's work takes him away from his home for days at a time, and since he operates his radio as a hobby, rather than a full-time occupation, I would estimate that his station is "staffed" on average, no more than three hours a day, at best. During the other twenty-one hours of each day, on average, the antenna structure is in clear violation of DCC 18.128.340 because it was constructed on irrigated land, without appropriate permits, without consultation with the neighbors, without appropriate screening, without consideration of its impact on neighbors' scenic views, etc. Therefore, the county Code Enforcement Officer should be instructed to proceed with prosecution of the code violation complaints I submitted. Hopefully, this would result in the antenna's disassembly and removal. Mr. Swaney has also constructed two telescoping antenna on his property. They too probably meet the definition of a wireless telecommunications facility when not energized and in use. When retracted, these antennae reach heights of approximately 30 and 45 feet. (See enclosure 4) They are located on non-irrigable rock outcroppings in the midst of numerous mature juniper trees. While I would never regard them as aesthetically attractive, when retracted they are not excessively obtrusive and they present no impediment to the scenic views of his neighbors. Except for the fact that they are constructed of metal tubing and latticework, rather than being a wood monopole, in the retracted position these antennae would probably meet the criteria of a Tier I wireless telecommunication facility, which is permitted outright in any zone. When extended they reach heights of approximately 60 and 80 feet, which likely provide for excellent radio transmission and reception (See enclosure 5). These antennae were built without the required building permits, but beyond that, they do not appear to be in violation of any other county code. Therefore, if the changes I have suggested were implemented, no enforcement action would need to be taken against these antenna structures except to inspect the construction for compliance with building and electrical codes and to collect the appropriate fees and penalties. CONCLUSION: I believe the administrative actions I have presented will resolve the amateur radio issue and satisfy the vast majority of Deschutes County residents. There will no doubt be one segment of the population who will regard them as too permissive and another segment who will challenge them as too restrictive. I believe, however, they make reasonable accommodation for amateur radio operations and also protect the natural beauty of Deschutes County. Beyond that, I think my proposals are legally defensible, and since they are administrative interpretations of code requirements that have been in place since 2001, it will be difficult for the owners of recently erected structures to argue that those structures should be "grandfathered". Sincerely, s - Arff % Rex A. Auker Enclosures: (1) Page 16 of 19, Proposed Amendment to Title 18 of the Deschutes County Code (2) Excerpt from 47 CFR 97.5 (3) Excerpt from DCC 18.128.340 (4) Photos showing Robert Swaney's larger telescoping antenna in retracted position. (5) Photo showing Robert Swaney's 120-foot fixed-height antenna and larger telescoping antenna in extended position. (6) Amplifying information It would appear, from reviewing the current City of Portland fee schedule, that the review fees and building permit fees would be under $300 for even the most complex amateur radio tower/antenna installation. The City of Gresham's regulation on amateur radio antennas was adopted in 1988 and revised in 1999. If the antennas are to be located in a residential area, and the support structures themselves could not be considered a "structure" under the definition of Oregon's Uniform Building Code, no development permit is required. Gresham's regulations are more specific and detailed than any other in Oregon, but are not onerous, and are simple to interpret since they were obviously developed with amateur radio installations in mind. Some of the details include: maximum height of newly constructed antenna support structures of 100 feet, non-reflective finish or paint on existing towers between 55 and 200 feet in height (for aesthetic reasons) - this does not appear to apply to the antennas themselves. Current Deschutes County Code Nothing in the Deschutes County Code (DCC) speaks specifically to amateur radio towers or antennas, or provides directly applicable definitionsb or guidance. There have been attempts to modify the DCC to define amateur radio, and how it would, or would not, be regulated. A proposed ordinance was apparently passed by the Planning Commission in late 2000, but was never passed by the County Commission. The only applicable exemption that might apply to amateur radio was apparently repealed in 2001 (it was in DCC Chapter 18.120.040 and stated that "radio and other similar projections" 6 were exempt from height limitations elsewhere in the Code). Amateur radio towers have been discussed at County Commission meetings rarely, and only in reference to the potential effect from proposed regulation of radio towers used for commercial applications. These discussions reveal that (in the past) Community Development Department staff has been aware of the difference between amateur radio and other telecommunications services, and the need to take into account federal and state laws when crafting regulations over amateur radio towers. Recently, as some amateurs have found in dealing with CDD, Planning has interpreted amateur radio antennas and towers as subject to the height limitations of structures. Regulation of tower/antenna height at general structure height limits is, per se, e The code definition of Wireless telecommunications facility does not include amateur radio facilities. DCC 18.04.030 provides: "Wireless telecommunications facility" means an uastaffed facility for the transmission or reception of radio frequency (RF) signals usually consisting of an equipment shelter, cabinet or other enclosed structure containing electronic equipment, a support structure such as a self- supporting monopole or lattice tower, antennas, microwave dishes or other transmission and reception devices. This definition includes "personal wireless services facilities" as defined under the Telecommunications Act of 1996." As defined by the FCC, an amateur station is "staffed" (the station must be under the control of a licensed amateur radio operator, and the amateur station is generally located in the operator's home). Page 16 of 19, Proposed Amendment to Title 18 of the Deschutes County Code (Relating to Amateur Radio Antennas and Support Structures) t.-~,~,/, `1 § 97.5 (11) W. Watts. (c) The following terms are used in this part to indicate emission types. Refer to §2.201 of the FCC Rules, Emis- sion, modulation and transmission char- acteristics, for information on emission type designators. (1) CW. International Morse code te- legraphy emissions having designators with A, C, H, J or R as the first symbol; 1 as the second symbol; A or B as the third symbol; and emissions J2A and J2B. (2) Data. Telemetry, telecommand and computer communications emis- sions having designators with A, C, D, F, G, H, J or R as the first symbol; 1 as the second symbol; D as the third sym- bol; and emission J2D. Only a digital code of a type specifically authorized in this part may be transmitted. (3) Image. Facsimile and television emissions having designators with A. C, D, F, G, H, J or R as the first sym- bol; 1, 2 or 3 as the second symbol; C or F as the third symbol; and emissions having B as the first symbol; 7, 8 or 9 as the second symbol; W as the third symbol. (4) MCW. Tone-modulated inter- national Morse code telegraphy emis- sions having designators with A, C, D, F, G, H or R as the first symbol; 2 as the second symbol; A or B as the third symbol. (5) Phone. Speech and other sound emissions having designators with A, C, D, F, G, H, J or R as the first sym- bol; 1, 2 or 3 as the second symbol; E as the third symbol. Also speech emis- sions having B as the first symbol; 7, 8 or 9 as the second symbol; E as the third symbol. MOW for the purpose of performing the station identification procedure, or for providing telegraphy practice interspersed with speech. Inci- dental tones for the purpose of selec- tive calling or alerting or to control the level of a demodulated signal may also be considered phone. (6) Pulse. Emissions having designa- tors with K, L, M, P, Q, V or W as the first symbol; 0, 1, 2, 3, 7, 8, 9 or X as the second symbol; A, B, C, D, E, F, N, W or X as the third symbol. (7) RTTY. Narrow-band direct-print- ing telegraphy emissions having des- ignators with A, C, D, F, G, H, J or R as the first symbol; 1 as the second 47 CFR Ch. 1 (10-1-W Edition) symbol; B as the third symbol; and emission J2B. Only a digital code of a type specifically authorized in this part may be transmitted. (8) SS. Spread spectrum emissions using bandwidth-expansion modulation emissions having designators with A, C, D, F, G, H, J or R as the first sym- bol; X as the second symbol; X as the third symbol. (9) Test. Emissions containing no in- formation having the designators with N as the third symbol. Test does not include pulse emissions with no infor- mation or modulation unless pulse emissions are also authorized in the frequency band. (54 FR 25857, June 20, 1989, as amended at 56 FR 29, Jan. 2,1991; 56 FR 56171, Nov. 1, 1991; 59 FR 18975, Apr. 21, 1994; 60 FR 7460, Feb. 8, 1995; 62 FR 17567, Apr. 10, 1997; 63 FR 68977, Dec. 14,1998; 64 FR 51471, Sept. 23,1999; 66 FR 20752, Apr. 25, 2001; 69 FR 24997, May 5, 2004; 71 FR 25982, May 3, 20061 497.5 Station license required. (a) The station apparatus must be under the physical control of a person named in an amateur station license grant on the ULS consolidated license database or a person authorized for alien reciprocal operation by § 97.107 of this part, before the station may trans- mit on any amateur service frequency from any place that is: (1) Within 50 km of the Earth's - face and at a place where the amateur service is regulated by the FCC; (2) Within 50 km of the Earth's sur- face and aboard any vessel or craft that is documented or registered in the United States; or (3) More than 50 km above the Earth's surface aboard any craft that is documented or registered in the United States. (b) The types of station license grants are: (1) An operator/primary station li- cense grant. One, but only one, oper- ator/primary station license grant may be held by any one person. The primary station license is granted together with the amateur operator license. Except for a representative of a foreign gov- ernment, any person who qualifies by examination is eligible to apply for an operator/primary station license grant. 572 44~~ CZ r- vcc o~urL 18.128330. Microwave and radio communication towers in the SM zone. A conditional use permit for siting of a microwave or radio communication tower and accessory equipment structures in the SM Zone shall be subject to the criteria of DCC 18.128340 and the following criteria: A. Towers shall be limited to monopole towers of under 150 feet and lighted only as prescribed by aviation safety regulations. B. Towers and accessory equipment structures shall be located only on portions of an SM-Zoned site that do not overlay economically viable mineral or aggregate deposits and that minimize conflicts with mining operations at the site. C. Such facilities proposed in an SM Zone where the underlying or surrounding comprehensive plan designation is for forest use must demonstrate compliance with the criteria set forth in DCC 18.36.040. D. No new parcels or lots shall be created for siting of the proposed tower. E. Such facilities must not conflict with any site plan which has been previously approved by the County. (Ord. 97-017 § 8, 1997; Ord 95-075 § 1, 1995; Ord. 95-046 § 3, 1995) 18.128.340. Wireless Telecommunications Facilities. An application for a conditional use permit for a wireless telecommunications facility or its equivalent in the EFU, Forest, or Surface Mining Zones shall comply with the applicable standards, setbacks and criteria of the base zone and any combining zone and the following requirements. Site plan review under DCC 18.124 including site plan review for a use that would otherwise require site plan review under DCC 18.84 shall not be required. A. Application Requirements. An application for a wireless telecommunications facility shall comply with the following meeting, notice, and submittal requirements: 1. Neighborhood Meeting. Prior to scheduling a pre-application conference with Planning Division staff, the applicant shall provide notice of and hold a meeting with interested owners of property nearby to a potential facility location. Notice shall be in writing and shall be mailed no less than 10 days prior to the date set for the meeting to owners of record of property within: a. One thousand three hundred twenty feet for a tower or monopole no greater than 100 feet in height, and b. Two thousand feet for a tower or monopole at least 100 feet and no higher than 150 feet in height. Such notice shall not take the place of notice required by DCC Title 22. 2. Pre-Application Conference. Applicant shall attend a scheduled pre-application conference prior to submission of a land use application. An application for a wireless telecommunications facility permit will not be deemed complete until the applicant has had a pre-application conference with Planning Division staff: 3_ Submittal Requirements. An application for a conditional use permit for a wireless telecommunications facility shall include: a. A copy of the blank i= form. b. A copy of the applicant's Federal Communications Commission license. c. A map that shows the applicant's search ring for the proposed site and the properties within the search ring, including locations of existing telecommunications towers or monopoles. d. A copy of the written notice of the required neighborhood meeting and a certificate of mailing showing that the notice was mailed to the list of property owners falling within the notice area designated under DCC 18.128340(A)(1). e. A written summary of the neighborhood meeting detailing the substance of the meeting, the time, 0 'e'tl !'t. (3 F date and location of the meeting and a list of meeting attendees. f. A site plan showing the location of the proposed facility and its components. The site plan shall also identify the location of existing and proposed landscaping, any equipment shelters, utility connections, and any fencing proposed to enclose the facility. g. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facility. h. An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape. L A copy of a letter of determination from the Federal Aviation Administration or the Oregon Department of Transportation - Aeronautics Division as to whether or not aviation lighting would be required for the proposed facility. B. Approval Criteria: An application for a wireless telecommunication facility will be approved upon findings that: 1. The facility will not be located on irrigated land, as defined by DCC 18.04.030. 2. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co-location within the area to be served. 3. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility from view of nearby residences. 4. A tower or monopole located in an LM Zone is no taller than 30 feet. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. 6. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. 7. Any required aviation lighting is shielded to the maximum extent allowed by FAA and/or ODOT-Aeronautics regulations. 8. The form of lease for the site does not prevent the possibility of co-location of additional wireless telecommunication facilities at the site. 9. Any tower or monopole shall be designed in a manner that it can carry the antennas of at least one additional wireless carrier. This criterion may be satisfied by submitting the statement of a licensed structural engineer licensed in Oregon that the monopole or tower "has been designed with sufficient strength to carry such an additional antenna array and by elevation drawings of the proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. 10. Any approval of a wireless telecommunication facility shall include a condition that if the facility is left unused or is abandoned by all wireless providers located on the facility for more than one G .1 j~C, year the facility shall be removed by the landowner. (Ord. 2000-019 § 2, 2000; Ord. 97-063 § 2, 1997; Ord. 97-017 § 8, 1997) 18.128350. Guest lodge. A. The exterior of the building shall maintain a residential appearance. B. One off-street parking space shall be provided for each guest room in addition to parking to serve the residents. C. The lodge shall be operated in a way that will protect neighbors from unreasonable disturbance from noise, dust, traffic or trespass. D. Occupancies for individuals shall be limited to not more than 30 consecutive days. E. Meals shall be served to registered overnight lodge guests only and shall not be provided to the public at large. (Ord. 97-029 § 3, 1997) 18.128.360. Guest ranch. A guest ranch established under DCC 18.128.360 shall meet the following conditions: A. Except as provided in DCC 18.1283600, the lodge, bunkhouses or cottages cumulatively shall: 1. Include not less than four nor more than 10 overnight guest rooms exclusive of kitchen areas, rest rooms, storage and other shared indoor facilities, and, 2. Not exceed a total of 12,000 square feet in floor area. B. The guest ranch shall be located on a lawfully created parcel that is: 1. At least 160 acres in size; 2. The majority of the lot or parcel is not within 10 air miles of an urban growth boundary containing a population greater than 50,000; 3. The parcel containing the dwelling of the person conducting the livestock opera- tion; and 4. Not classified as high value farmland as defined in DCC 18.04.030. C. For each doubling of the initial 160 acres required under DCC 18.128360(B), up to five additional overnight guest rooms and 3,000 square feet of floor area may be added to the guest ranch for a total of not more than 25 guest rooms and 21,000 square feet of floor area D. A guest ranch may provide recreational activities in conjunction with the livestock operation's natural setting, including but not limited to hunting, fishing, hr3cing, biking, horseback riding or swimming. Intensively developed recreational facilities such as a golf course or campground as defined in DCC Title 18, shall not be allowed in conjunction with a guest ranch, and a guest ranch shall not be allowed in conjunction with an existing golf course or with an existing campground. E. Food services shall be incidental to the operation of the guest ranch and shall be provided only for the guests of the guest ranch. The cost of meals provided to the guests shall be included as part of the fee to visit or stay at the guest ranch. The sale of individual meals to persons who are not guests of the guest ranch shall not be allowed. F. The exterior of the buildings shall maintain a residential appearance. G. To promote privacy and preserve the integrity of the natural setting, guest ranches shall retain existing vegetation around the guest lodging structure. H. All lighting shall be shielded and directed downward in accordance with DCC 15.10, Outdoor Lighting Control. I. Signage shall be restricted to one sign no greater than 20 square feet, nonilluminated and posted at the entrance to the property. J. Occupancies shall be limited to not more than 30 days. K. The guest ranch shall be operated in a way that will protect neighbors from unreasonable disturbance from noise, dust, traffic or trespass. C3~ oorly o, rz- t : .:t 00 lnin 'S yY 4}1 +,i1.1y~~y3g 1},~ PL fly Amplifying Information: As a group, amateur radio operators are responsible citizens who are considerate of their neighbors and quick to volunteer their communications experience and equipment in service to their community. However, it appears that there is also a small segment of the amateur radio community whose aim is to practice their avocation without regard for its. impact on their neighbors and to challenge any restriction that local authorities may place on their equipment and activities. PRB-1 and later regulations established that the federal government had an interest in encouraging amateur radio as an important national asset. It established a policy of limited federal preemption of local government authority. The FCC declined to specify any particular height limitation below which a local government may not regulate. Instead it directed that state or local regulation must "reasonably accommodate" amateur radio communications so as to constitute "minimum practicable regulation to accomplish the local authority's legitimate purpose." 47 CFR 97.15(b) Since 1985, when PRB-1 was instituted, amateur radio organizations have repeatedly attempted to expand its scope. In particular they have petitioned the FCC to apply federal preemption to the Codes, Covenants and Restrictions that are commonly established in housing developments and communities. The FCC has repeatedly refused to preempt CC&R's, arguing that they are private contracts which are voluntarily accepted by home buyers at the time of purchase. In 2000, the FCC gave amplifying information concerning what it considered to be reasonable accommodation of amateur radio in local land use and zoning regulations. (See attached document) The text reviewed a variety of antenna types, sizes and uses and took particular note of the fact that some amateur radio antenna can be large and out of character with the surrounding community. Then the FCC suggested a policy that might be called "consistency" concerning various types and uses of antennae. Referring specifically to a residential community, it opined that if a community allowed television antenna of a particular size and type, then it should also allow amateur radio antenna of similar size and type. On the other hand, the FCC suggested that it would go beyond reasonable accommodation to allow a particular amateur radio antenna in a residential zone if other antenna of that size and type were normally allowed only in an industrial zone. Thus, according to the FCC, it is reasonably accommodating to allow amateur radio antenna in a particular zone if those antenna are "consistent" in type and size with other antennae that are allowed in the zone. But it goes beyond reasonable accommodation if amateur radio antennae are allowed to be larger, higher or more visually imposing than any other antennae in a given zone. ORS 221.295 restates the principles of "reasonable accommodation" and "minimum practicable regulation", but adds specific language concerning antennae lower than 70 feet in height. It says that "a city or county may not restrict antennas or antenna support structures of amateur radio operators to heights of 70 feet or lower unless the restriction C ,-c LCv ,,1 " is necessary to achieve a clearly defined health, safety, or aesthetic objective of the city or county." It is important to note that the state statute does not prohibit regulation of antenna of heights below 70 feet. It merely requires that the local government have a clearly defined reason to do so. What constitutes "clearly defined"? That question is not answered. With regard to the code violation complaint that gave rise to the current proposed amendments to the county code, Mr. Robert Swaney appears to be among that segment of the amateur radio community that is intent on challenging any restriction that local authorities might attempt to place on his hobby. County policies require that those who build large free-standing antenna structures must obtain building and, in many cases, electrical permits. Mr. Swaney repeatedly ignored county authority, by erecting three large permanently installed antennae without once apply' ts. When sub'ected to a complaint and code enforcement Mr. Swaney declare e,county code ~S unreasonable and contrary to federal and state policies. In an attempt to resolve the code violation complaint, Mr. Swaney proposed revisions to the code that place virtually no restraints on amateur radio antenna construction. Now, if a new code is instituted, I suspect he will claim that his illegally-constructed antenna should be grandfathered. At one of the public hearings before the planning commission, he actually verbalized that he would consider filing a Measure 37 claim if code revisions did not suit him. As I have stated previously, I believe the existing code concerning wireless telecommunications facilities was intended to apply to a wide variety of radio antenna structures, including amateur radio antenna, thereby treating all applicants in a consistent and even-handed way. Because of this consistent and equitable approach, I believe the current code meets the federal and state requirements to make reasonable accommodation for amateur radio operations. The language of the code needs clarification, however, but that could easily be accomplished by administrative, rather than legislative, action. Attached: PRB-1 (2000 - Reconsideration). Paragraph 8 provides FCC amplification of the meaning of "reasonable accommodation". rk-%-: W 1reless aervices: AM=LLr icauw 3ervlce: tceieases: rich-i rage 1 01 FCC Home Search Updates E-Filing Initiatives For Consumers Find People Amateur Radio Service FCC > WTB > Services > Amateur Home > Releases > PRB-1 Search: PRB-1 (2000 - Reconsideration) Help - Advanced ► Introduction and Executive Summary Background Amateur Home ` Discussion Conclusion About Amateur Ordering Clause Communications & Operations International Adopted 11/13/2000 Arrangements Released 11/15/2000 Operator Class ORDER ON RECONSIDERATION (RM 8763) Reciprocal In the Matter of Modification and Clarification of Arrangements Policies and Procedures Governing Siting and Call Sign Maintenance of Amateur Radio Antennas and Systems Support Structures, and Amendment of Section Sequential 97.15 of the Commission's Rules Governing the Amateur Radio Service Special Event Before the Federal Communications Commission Vani Washington, D.C. 20554 36149 Amateur By the Deputy Chief, Wireless Telecommunications Licensing Bureau. Club Stations Common Filing Return To Ton Tasks Examinations Military Introduction and Executive Summary Recreation Volunteer 1. In this Order on Reconsideration, we address Petitions Examiners for Reconsideration (ARRL Petition) filed by the American VECs Radio Relay League, Inc. (ARRL), and by Barry N. Releases Gorodetzer and Kathy Conard-Gorodetzer (Gorodetzer PRB-1 Petition) (collectively "Petitioners"). The Petitions seek reconsideration of a Wireless Telecommunications Bureau Amateur Site (Bureau) Order, released November 19, 1999, denying Map the petition for rule making filed by ARRL on February 7, 1996. For the reasons given herein, we deny the subject petitions for reconsideration. Related Sites Return To Top Forms & Fees Rules Background Wireless Rules & __-..._Regulations (Title 47) 2. In its 1985 PRB-1 decision, the Commission established a policy of limited preemption of state and local UPS regulations governing amateur station facilities, including Universal antennas and support structures. However, the Licensing Commission expressly decided not to extend its limited System preemption policy to covenants, conditions and FCC Site Ma PRB-1 (1985) PRB-1(1999) PRB-1 (2000 - Reconsideration) PRB-1 (20013 http://wireless.fcc.gov/services/index.htm?job=prb-1 &id=amateur&page=3 12/3/2007 P UU: Wireless Services: Amateur KaQ1o Service: Keleases: YKD-1 rage L UI J WTB Wireless restrictions (CC&Rs) in deeds and in condominium by- Telecom municatic laws. Bureau 3. On February 7, 1996, ARRL filed a petition for rule making seeking a review of the Commission's limited preemption policy. ARRL requested, inter alia, that limited preemption be extended to CC&Rs. In an Order, released November 19, 1999, we denied the petition for rule making. We concluded that specific rule provisions bringing private restrictive covenants within the ambit of PRB-1 were not necessary or appropriate. On reconsideration, the petitioners reiterate the request that the Commission's limited preemption policy be extended to CC&Rs. ARRL also seeks a declaratory ruling that the imposition of unreasonable or excessive costs in obtaining a land use permit for an amateur antenna, or fulfilling a condition in such a permit, would be contrary to the Commission's limited preemption policy enunciated in PRB-1. Return To Top Discussion 4. In PRB-1, the Commission stated that CC&Rs restricting amateur operations were not a matter of concern to it, because "[s]uch agreements are voluntarily entered into by the buyer or tenant when the agreement is executed," and "[p]urchasers or lessees are free to choose whether they wish to reside where such restrictions on amateur antennas are in effect or settle elsewhere." ARRL directed much of its rulemaking petition, and the bulk of its petition for Reconsideration, to arguing that the Commission has authority to preempt CC&Rs that restrict amateur operations. In the Order, we declined to address this argument because we were not persuaded that such action, even if authorized, is "necessary or appropriate at this time." 5. The Petitioners contend, however, that the Telecommunications Act of 1996 provided the Commission with the authority to address CC&Rs, and, further, that the Commission has acknowledged this authority. ARRL further argues that restrictive covenants in deeds "have never been the equivalent of private contracts." Moreover, ARRL states that the purchaser of land, in modern transactions, "never actually agrees, and very seldom even understands when he or she buys property subject to deed restrictions that amateur antennas are not permitted." 6. Assuming, without deciding, that the Commission has authority to address CC&Rs in the context of amateur radio facilities, this alone does not necessarily warrant revisiting the exclusion of CC&Rs from the Commission's limited preemption policy in this context. Unlike over-the- air reception devices (OTARDs), which are very limited in size in residential areas, amateur station antennas may vary widely in size and shape. Amateur station antenna configurations depend on a variety of parameters, http://wireless.fcc.gov/services/index.httn?job=prb-1 &id=amateur&page=3 12/3/2007 ruu: wireless services: IMULeur nauiu aCMUC. IWICaScS: r11--n-1 rapc 3 Ui including the types of communications that the amateur operator desires to engage in, the intended distance of the communications, and the frequency band. Amateur station antennas, in order to achieve the particular objectives of the amateur radio operator, can be a whip attached to an automobile, mounted on a structure hundreds of feet in height, or a wire hundreds (or even more than a thousand) of feet in length. They can be constructed of various materials occupying completely an area the size of a typical backyard. In addition, there can be an array of different types of antennas. Regardless of the extent of our discretion with respect to CC&Rs generally, we are not persuaded by ARRL's arguments that it is appropriate at this time to consider exercising such discretion with respect to amateur station antenna preemption. Moreover, we do not believe that ARRL has demonstrated that there has been a significant change in the underlying rationale of the PRB-1 decision, or that the facts and circumstances in support thereof, that would necessitate revisiting the issue. In the absence of such showing, we believe that the PRB-1 ruling correctly reflects the Commission's preemption policy in the amateur radio context. 7. In PRB-1, the Commission held that "local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." The ARRL's second request in its Petition concerns imposition of excessive costs for, or the inclusion of burdensome conditions in, permits or variances needed prior to installation of an outdoor antenna. As it did in its petition for rule making, ARRL requests a ruling from the Commission that imposition of unreasonable or excessive costs levied by a municipality for a land use permit, or unreasonable costs to fulfill conditions appended to such permit, violates PRB-1. In our Order, we concluded that the current standards in PRB-1 of reasonable accommodation and minimum practicable regulation are sufficiently specific to cover any concerns related to unreasonable fees or onerous conditions. With these guidelines in place, an amateur operator may apprise a zoning authority that a permit fee is too high, and therefore unreasonable, or that a condition is more than minimum regulation, and, therefore, impracticable to comply with. 8. We take this opportunity to amplify upon the meaning of 'reasonable accommodation' of amateur communications in the context of local land use and zoning regulations. The Commission adopted a limited preemption policy for amateur communications because there is a strong federal interest in promoting amateur communications. We do not believe that a zoning regulation that provides extreme or excessive prohibition of amateur communications could be deemed to be a reasonable accommodation. For example, we believe that a regulation that would restrict amateur communications using small dish antennas, antennas that do not present any safety or health hazard, or antennas that are similar http://wireless.fcc.gov/services/index.htm?job=prb-1 &id=amateur&page=3 12/3/2007 Puu: wireless services: L mateur icauio aervice: tceieases: r"-1 rage Ui J Licensing, Technical Support and Website Issues to those normally permitted for viewing television, either locally or by satellite, is not a reasonable accommodation or the minimum practicable regulation. On the other hand, we recognize that a local community that wants to preserve residential areas as livable neighborhoods may adopt zoning regulations that forbid the construction and installation in a residential neighborhood of the type of antenna that is commonly and universally associated with those that one finds in a factory area or an industrialized complex. Although such a regulation could constrain amateur communications, we do not view it as failing to provide reasonable accommodation to amateur communications. 9. In his comments supporting the ARRL Petition, Duane Mantick states that the Commission's rules regarding radio frequency (RF) safety and the actions of local authorities are inconsistent because to comply with the RF safety requirements an antenna must be a certain height in order to keep 2 meter and 10 meter radio signals away from the general public. According to Mr. Mantick, this is in direct conflict with the local zoning regulations and covenant provisions which are designed to keep the height of the antenna structure as low as possible. Mr. Mantick argues that the amateur operator must, in order to comply with safety requirements, reduce output power to 50 watts or less and thus sacrifice transmission effectiveness, and due to a low antenna, sacrifice reception effectiveness as well. It appears that Mr. Mantick's comments overstate the situation that an amateur operator faces. An environmental evaluation needs to be made only if the power on 10 meters exceeds 50 watts. Further, if more power is employed at the station and measures are required to prevent human exposure to RF electromagnetic fields, then adjustments can be made at the amateur station regarding the amount of power used, the duty cycle employed, and the antenna configuration. Thus, it is feasible for an amateur operator to comply with the Commission's safety requirements relating to human exposure to RF radiation, and at the same time to comply with local zoning regulations that govern antenna height. In sum, while we appreciate that the two considerations discussed above, that is, safety requirements vis-...-vis zoning regulations, might present a challenge to the amateur operator, we do not believe that the safety of individuals should be compromised to address such challenge. Moreover, we continue to believe that we should not specify precise height limitations below which a community may not regulate, given the varying circumstances that may occur, as a response to this challenge. Return To Top Conclusion 10. Accordingly, we conclude that the Petitions for Reconsideration filed by the ARRL and Barry and Kathy Conard-Gorodetzer should be partially granted insofar as we have provided clarification herein, but in all other http://wireless.fcc.gov/services/index.htm?job=prb-1 &id=amateur&page=3 12/3/2007 Puu: wireless cervices: Amateur xaaio bervice: xeieases: r"-i respects should be denied. Return To Top Ordering Clause 11. IT IS ORDERED THAT, pursuant to Sections (4)(i) and 405(a) of the Communications Act of 1934, as amended, 47 U.S.C. - 154(i), 405(a), and Section 1.106 of the Commission's Rules, 47 C.F.R. - 1.106, the Petitions for Reconsideration of the American Radio Relay League, Inc., filed on December 20, 1999, and Barry and Kathy Conard-Gorodetzer, filed on December 17, 1999, ARE PARTIALLY GRANTED to the extent clarification has been provided herein, but in all other respects ARE DENIED. This action is taken under delegated authority contained in Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R. - 0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau Return To Top Last reviewed/updated on 2/19/2002 rage z) or Licensing, Technical Support and Website Issues - Forgot Your Password? - Submit eSupport request Federal Communications Commission 445 12th Street SW Washington, DC 20554 More FCC Contact Information... Phone: 1-877-480-3201 TTY: 1-717-338-2824 Phone: 1-888-CALL-FCC (1-888- 225-5322) TTY: 1-888-TELL-FCC (1-888- 835-5322) Fax: 1-866-418-0232 E-Mail: fccinfo -fcc.gov - Privacy Policy - Website Policies & Notices - Required Browser Plug-ins - Freedom of Information Act http://wireless.fcc.gov/services/index.htm?job=prb-1 &id=amateur&page=3 12/3/2007 1932 SE Arborwood Ave. Bend, Or. 97702 December 10, 2007 RE: Proposed Amateur Radio Tower Ordinance TA-06-10 Kristen Maze, Tammy Baney, Dennis Luke, Mike Daly Deschutes County Community Development Department 117 NW Lafayette Bend, Or. Dear Kristen Maze, Tammy Baney, Dennis Luke, Mike Daly, On behalf of the High Desert Amateur Radio Group, its 60 members, and myself I would like to make a few brief comments on the proposed ordinance referenced above. The subject of radio communication is far to complicated for most ham radio operators, let alone the Deschutes County Commissioners, to fully understand. In order to come up with a comprehensive plan that meets the needs of everyone, the county would need to consult a technical advisor and spend many hours and days learning about what makes for effective radio communication. Only then could you possibly have a chance to make a fully informed decision about how tall a radio tower should be. This would be a tremendous waste of taxpayer's money. Simply stated, antennas for radio communication are most effective, least intrusive to other electronic devices, and least harmful to living things, when they are as high above the ground as possible. As others have mentioned, most amateur radio operators will take the cc&rs, city, and county codes into consideration prior to purchasing property. This assures them of being able to pursue their hobby to the extent that they choose. Likewise, when a non-radio operator purchases property, they also have the opportunity to do their homework and purchase property that restricts things they do not wish to see in their neighborhood. Personally, I would like to restrict offensive paint schemes in my neighborhood. I would like my neighbors to control their dandelions and mow their yards regularly. I don't like looking at these things, but my subdivisions cc&rs do not address those issues. 1 will have to learn to live with my neighbors, or move somewhere else. I will not attempt to restrict the freedom of others simply because I have not done my homework. Unless a person lives in a special land use zone specifying such, "scenic vista" is not protected. The idea that ham radio towers should be regulated by the same restrictions as cellular phone towers is preposterous. The FCC is very specific about the differences between the commercial service and the amateur service, just read the information. We don't do this for money. The benefits of ham radio operators to the community in the event of an emergency are well documented, and I think, understood and appreciated by the commissioners. Most ham operators will never even erect a tower or mast. Fewer still will erect one that stands taller than 40 feet. It is however the ham operator with that rare tower, that will be able to render the most effective service to the public when called upon. The Federal and State laws already in place, as well as the precedence set by the City of Beaverton, have already paved the way for an easy decision by the commissioners. Please take advantage of the work that has been done for you. Either adopt the same guidelines established by the City of Beaverton, or do nothing. • Page 2 Regards, David Stucky President High Desert Amateur Radio Group (HiDARG) December 10, 2007 Page 1 of 1 Kristen Maze From: equinoxslw@aol.com Sent: Sunday, December 09, 2007 10:56 PM To: Kristen Maze Subject: Proposed Changes on Building Height Execeptions Attention Kristen Maze- We are responding to the proposed changes reguarding amateur radio facilities. We live 1 mile down Stenkamp Rd from Mr. Swaney's "ham" tower that appeared this year. It came as quite a surprize to see the unsightly antenna withour screening in our rual area twice a day commuting to work. We realized that antenna could be our new neighbor or we could be the neighbor across the street or next door that faced it every daylight hour. We attended the Deschutes County Board of Commissioners meeting on November 26, 2007 and read about the proposed changes. We would like to voice support for the Planning Commission recommendations. We feel very strongly about requiring a building permit, the screening of facility using trees, vegetation and topography from neighbors, plus requiring neighbor notification and neighborhood meeting. (Although it is unclear what meeting results would determine denying the construction of antenna) We believe an unsightly antenna does lower the surounding property values. It is my hope that with the accepting of the Planning Commission's recommendation that Mr. Swaney's antenna will be under those rules. We realize the value of the community service that the amatureteur radio operators offer the greater Central Oregon area but that should not exempt them from reasonable rules. Sincerely, Steve and Linda Williams 62760 Dixon Loop Bend, Oregon 97701 More new features than ever. Check out the new AOL Mail! 12/10/2007 Page 1 of 1 ` Kristen Maze From: ks6u [ks6u@bendbroadband.com] Sent: Friday, December 07, 2007 8:51 AM To: Kristen Maze Subject: towers Hams do a lot of public service and should not be restricted.with hight of towers, Leonard Premselaar 12/10/2007 Page 1 of 1 Kristen Maze From: Dick Frey - K4XU [k4xu@arrl.net] Sent: Friday, December 07, 2007 10:08 PM To: bulletin@bendbulletin.com; Kristen Maze; codxc@codxc.org Subject: Amareur Radio Antennas At the November 26 County Board meeting, commissioner Luke said something to the effect that 'settling a dispute between two neighbors by rewriting the Deschutes County Code is not the proper solution to the problem'. He is right. This is a "tempest in a teapot" and a complete waste of the taxpayers' money. There are no more than 50 ham towers over 30 feet in the whole county, and only one or two are over 75 feet high. Nor is there a probability of that number increasing. If the Planning Commission's proposal were enacted, in terms of lines of DCC per effected parties, Amateur Radio would become the most severely regulated institution in the County. The cost of compliance alone will simply prevent effective pursuit this hobby within Deschutes County. Before 2000 it was exempt. The County has failed to read the testimony and legal research submitted or heed the advice of its own legal council. The facts and precedents are in there. Read them and stop this circus. Write a less restrictive proposal, or do nothing that's a decision too. Some day Bend, like Vernonia, will need these radio operators and their facilities. Sincerely, Dick Frey - K4XU President, Central Oregon DX Club 61255 Ferguson Rd. Bend, OR 97702 Email: k4xu@arrl.net Web page: www.codxc.org 12/10/2007 December 5, 2007 Kristen Maze Community Development Department 117 Lafayette Ave. Bend, OR 97701 Dear Ms. Maze, For three reasons I support the installation of amateur radio antennas. 1. As a citizen concerned about the safety of others I support the efforts of Deschutes County Amateur Radio Operators. Please read the attached article. What if this happened in our County our local Hams would be there to help in any way possible! 2. I am of the opinion that a fee for amateur radio antennas similar to the current fee for commercial interests is unfair. It is necessary for Hams to incur out-of pocket expenses to volunteer their skills, use of their equipment and their time to help the community. They are not a business nor do they generate any income from it. 3. A rural view is not protected in an area zoned farmland. I ask for your consideration of Amateur Operators and request a decision that does not prohibit Hams from participation in emergency services. Sincerely, Karen M. Perkins 2142 NW Nickernut Ave. Redmond, OR 97756 THE BULLETIN - Wednesday, December 5, 2007 C1' State emergency officials say ham radio operators are storm's unsung heroes By Sarah Skidmore The Associated Press PORTLAND - When parts of Oregon were overwhelmed by wind and water during the recent storm, vital communi- cation often was lacking, with trees down and across phone lines and cell coverage limited. Even the state police had difficulty in reaching some of their own troops. But ham radio worked. In fact, amateur radio. op- erators were heralded by state emergency officials as heroes. Ham radio is more than just a hobby to some. It can set up networks for government and. emergency officials to commu- ' nicate when other communica- tion services fail. "One of the problems in this is always communication," Gov. Ted Kulongoski said af- ter a visit'Mesday to Vernonia " and a'fly-over there and other affected areas. "I'm going to tell you who the heroes were from the very beginning of this the ham radio operators. These people just came in and actually provided a tremen, dous communication link to us." A network of at least 60 Vol- ` unteer amateurradio operators working along the coast and inland helped from keep cru- cial systems such as 911 calls, American Red Cross and hos- pital services connected. They relayed information about pa- tient care and relayed lists of supplies needed in areas cut off by water.. In addition to getting an FCC license to operate, certain groups of operators are cleared by the federal government to work as emergency responders. "You are amateur in name only," said Steve Sanders, a spokesman for District One of the Amateur Radio Emergency Service, which helped in several key counties hit by the storm The Oregon Office of Emer- gency Management said the radio operators were tireless in their efforts to keep the systems connected. It was ham radio that kept New York City agencies in touch with each other after their command center was destroyed on Sept. 11, 2001, according to the National Association for Amateur Radio. When hurricanes like Katrina hit, amateur radio helped provide life- and-death communication servic- es when everything else failed. Amateur radio works on a set of radio frequencies known as "am- ateur bands" ju,t above the AM broadcast band all the way up to high microwave frequencies. Op- erators use their own equipment to communicate with other op- erators, using different equipment and frequencies than emergency responders. Page T of 3 Sher Buckner From: Kristen Maze Sent: Wednesday, December 05, 2007 5:02 PM To: Sher Buckner Subject: FW: Written Comment on TA-06-10 From: Dan Tucker [mailto:w7dux@bendbroadband.com] Sent: Wednesday, December 05, 2007 4:35 PM To: Kristen Maze Subject: Written Comment on TA-06-10 To: Deschutes County Commissioners Fr: Dan Tucker (69219 Harness, Sisters OR) Re: Further Comment regarding TA-06-10 Commissioners, The following article is from KATU in Portland and is arguably the best and most timely reason to avoid impacting the amateur radio service by creating am restriction that would impair its use. The education for tower heights is complex and attempting to equate it with the same things other agencies use in there operations is a mistake. At the public hearing Army MARS stated 300-1200 miles, with a vertical launch, is useful for them it is not for HAMS! Hams talk to people locally as well as all around the world and the need for height in an antenna both makes that possible while at the same time, limits the interference to neighbors. Most amateurs will not go out and put up a tower even if you did nothing with the rules. I would suspect that over the years, you would probably not see much difference in the ratio of towers per capita that there is currently and there likely could be even less. The impact they have now is absolutely minimal. This was demonstrated at the public hearing when the question of how many there currently are was asked. You see, most people pay no particular attention to it unless it causes a personal problem. Even if there is a problem, most Hams would simply help fix that problem because that's who they are. Please read the Article below and my further comment after: Oregon emergency officials say ham radio 12/5/2007 Page 2 of 3 operators were heroes Document Reproduces Poorly (Archived) A pizza store in Vernonia is surrounded by flood waters Tuesday Dec. 4, 2007. (AP Photo/The Oregonian, Brent Wojahn) Story Published: Dec 4, 2007 at 7:28 PM PST Story Updated: Dec 4, 2007 at 7:30 PM PST By Associated Press a. Video PORTLAND, Ore. (AP) - With communications down in much of the state smacked by the recent storm, state emergency officials are calling ham radio operators heroes. When even state police had difficulty reaching some of their own troops, ham radio worked, setting up networks so emergency officials could communicate and relaying lists of supplies needed in stricken areas. A network of at least 60 volunteer amateur radio operators working along the coast and inland helped from keep crucial systems such as 911 calls, American Red Cross and hospital services connected. Amateur radio works on a set of radio frequencies above the AM broadcast band. Operators use their own equipment to communicate with other operators, using different equipment and frequencies than emergency responders. Sometimes it takes creativity and a lot of leg work, such as setting up a new link on the top of a mountain when no other options are available. Steve Sanders, a spokesman for District One of the Amateur Radio Emergency Service, said the storm was a "poster child" for what his group does. (Copyright 2007 by The Associated Press. All Rights Reserved.) 12/5/2007 Page 3 -of 3 - As Mr. Sanders of ARES said "the storm was a "poster child" for what his group does". The above statement cannot be repeated enough for you. We have the potential for devastation to occur anywhere and anytime. While many Hams put up a wire antenna and use it to communicate to many places far away, it is those that put up a tower at a significant height and use antennas that they can point in specific directions that will pick out the call for help when no one else can hear them. It is also the local folks, like Search & Rescue, that need to use a repeater or an individual station to relay/request important information via VHF frequencies locally. They also need that repeater or individual antenna to be high enough to communicate with when they are in areas where they have no other options. In closing, I ask that if your going to place something in written regulation, do so very carefully and with the best information possible. If you are not experienced with its technical side, you could do more harm than good. Dan Tucker W7DUX Sisters Repeater 146.9oo- PL 123.0 IRLP Node 3o89 147.420 12/5/2007