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2008-597-Minutes for Meeting February 25,2008 Recorded 5/29/2008DESCHUTES COUNTY OFFICIAL RECORDS Q~~r~! NANCY BLANKENSHIP, COUNTY CLERK C} LO0QQ ! COMMISSIONERS' JOURNAL 1111111 0512912008 08:48:47 AM 2008-597 Do not remove this page from original document. Deschutes County Clerk Certificate Page L 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., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, FEBRUARY 25, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tammy Melton. Also present were Dave Kanner, County Administrator; Laurie Craghead, Legal Counsel; Kristen Maze of Community Development; Connie Thomas and Bonnie Baker, Commissioners' Office; and approximately forty citizens, including several representatives of the media. The purpose of the meeting was to take testimony on a proposed amendment to Deschutes County Code Title 18 relating to amateur radio facilities in the building height exception and definition sections. Chair Luke opened the meeting at 6:00 p.m. The Commissioners introduced themselves to the audience. Kristen Maze then read the preliminary statement to the audience. (A copy is attached as Exhibit A) In regard to bias, personal interest and prejudgment, none of the Commissioner had any to disclose. The Commissioners have had access to the entire record on this issue. No challenges were received from the public. Commissioner Luke stated that seven people have asked to testify, and will be allowed ten minutes each. Ms. Maze gave an overview of the issue. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 1 of 9 Pages Ms. Craghead asked that the Board leave the hearing open for at least seven days since one document was not on the website. Also, because there was extensive testimony in the past about the importance of amateur radio facilities, it would be helpful if those giving testimony to narrow their comments to the specific issue. All of the past testimony is on the record. Commissioner Melton stated that it would be helpful to have specific comments to the actual amendments being considered. Commissioner Daly said it would be good to know of specific areas that area acceptable and what are not. Commissioner Luke added that shortwave is important and they are interested in how the public feels about the issue. The rights of the operators and the rights of their neighbors were considered in trying to craft something that works for both. It is impossible to try to make everyone happy, though. Ken Brinich said he represents Bob Swaney, a member of the Club. He said that it has been a long, frustrating process for Mr. Swaney, who bought property in the country so he could build the towers. He applied for a building permit as required. It is all relevant because the Commissioners need to decide if any regulation is necessary. There are a lot of cases between municipalities and ham radio operators, usually within a city. There are very few cases related to facilities in the country. It is based upon what they want to do. There is a strong federal promotion of amateur radio operators. They change their antenna arrays all the time to see what works best. It is difficult to write regulations that would reasonably apply. When there is an opportunity to not bother people in a densely populated area, it should be encouraged. The law requires that these operators be reasonable accommodated, and the County has to accommodate the need. PRB-1 was adopted in 1985, reviewed in 1999, which reaffirmed the effectiveness of these guidelines (FCC Order in 1999). The least regulation necessary must be the goal, as not to infringe upon the operations of the amateur radio operators. An ordinance should accommodate those needs. Mr. Brinich then went through the proposed Ordinance, Section A2, metal structures - this has been changed to read so that if Federal or State regulations require a particular paint color, the County cannot ask for something else. He said he is not an expert, but thought that if the antennas were painted they may not work properly. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 2 of 9 Pages In regard to compliance with FCC or ODA regulations, no compliance is required, so this is difficult; no rules should apply. If a letter of determination is needed, that may be difficult to get. This doesn't need to be regulated. The County should rely on the goodwill and good faith of the operators. Several references were made to the landowner complying, but the operator may not always be the property owner. Commissioner Luke observed that the property owner has to sign building applications. Mr. Brinich replied that it could be represented to a building official by anyone. There is no need other than in an LM zone to require any type of site plan approval. He suggested because of federal law, County regulations should address public, not private needs. This puts the burden on the other residents as to why the structure should not be built. In some cases, cities have gotten their hands slapped because they didn't hire an expert to prove why the operator didn't need what he said he did. The County doesn't want to have to hire experts to attack an operator's claim. In perspective, scenic values are important, but mostly in the LM zone. In the EFU zone, agricultural uses, nothing much is said about scenic values. The entire County should not be treated the same as the impact is not the same. He emphasized he is not saying concerns are not trivial, but they approach trivial. The County cannot create private property view sheds for neighbors. No one has complained about the tower except the neighbor, and this is not an appropriate reason. Commissioner Luke asked if the interests of the neighbors are truly not important. Mr. Brinich answered that if it is important, they should buy a view shed. It is available but not in EFU land. He suggested that this is a building permit process and not a site plan process. Provisions require ham operators show their specifications for each antenna array. These change often. The proposed Ordinance requires a site plan for over 70 or more feet or more than one on any property; this is not a reasonable accommodation. They could build six 30-foot towers. The problem is that Federal and State courts don't regulate this. If the towers are needed, the municipality has to accommodate it or has to show that it really isn't needed. Commissioner Luke said that the Board discussed about the process to get to that point. There is nothing stated that it would be denied. Mr. Brinich stated that this causes an onerous burden to the operations and is probably not lawful. This is a relatively complex situation and the County has to accommodate the operators. If the neighbors are upset, they should hire an expert to deal with the situation. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 3 of 9 Pages Commissioner Luke said this comes back to the land use permit process, tenant vs. landowner. For the County to allow a tenant to erect any kind of structure on someone else's private property, is in violation of Code. The landowner is not required to go through the process, but can just sign the application that they are okay with what the tenant wants to do. Mr. Brinich said that it is an unusual situation, trying to balance the needs of the ham radio operators and the neighbors. But this is an inappropriate way to deal with it. The operators can do what they want if they need it; they have to be accommodated. They got out of the densely populated area to avoid conflicts. They would have to get the property owners' permission and some people are not licensed in the U.S. and are resident aliens. The FCC also recognizes their rights. (A copy of a letter dated February 19, 2008 is attached for reference as Exhibit C.) Commissioner Daly asked what the basic fee for the permit would be. Ms. Maze stated that the basic fee for an accessory structure is $650 but is not required for anything under 70 feet tall. A building permit may be required. Ms. Craghead stated that the property owner can decide what to do if the tenant wants to build a tower. The owner can sign a letter that a person is their agent and can proceed. Also, it is not just a balancing test. Case law says it is not the only criteria but is considered with the factors of minimum practicality and necessity. Jim Williams stated that he was sorry he wrote his statement before he heard it is supposed to be specific. One area of concern is that he has a repeater for emergency services, and he has to have more than one tower to keep them in service. The issue of one tower is a big item to him and others who do this. Commissioner Luke suggested that one tower may not be a problem depending on the size of the lot. Most of the recommended process is letting the neighbors know and having people talk to each other. Mr. Williams said that from the top of the tower, there is a set of wires going out that may need support on the ends. Those might be called towers. They are copper wires suspended in the air. There is one main tower but something is needed to hold those wires; maybe trees, but that is not always the case. Commissioner Luke asked Ms. Maze to make a note of this. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 4 of 9 Pages Mr. Williams stated that people talk about the legal aspects, but he wants to talk about the human aspect. There has to be consideration of reasonable accommodation and the least intrusive area. Many people live on $30,000 or less annually. Additional fees are a burden on these people. The number of towers going up each year is very small; there is approximately one tower a year that is 70 feet or less, and maybe one every ten years that is taller. They often get taken down from one location and reinstalled in another. They do come and go. The County process and manner of doing it scares away many from this area. He would have moved somewhere else if he had known. Operators make up a large portion of the volunteers in the area, and he hopes that the Commissioners don't take a stand that discourages people from this. Another problem is the lack of a grandfather clause. There is nothing in there that covers him form having his towers remain in place. The County needs to follow the example set in other states and federal law. Ms. Craghead pointed out that there is already a grandfather clause for a non- conforming use. If it was in before 2003 it is probably grandfathered and given an exception. This was eliminated in 2003 and at that time has to meet the 35-foot standard. Commissioner Daly asked if there is a way to know how many towers have gone up. Ms. Maze stated that there is no regulation on them so there is no way.to track this. Commissioner Luke said that perhaps the FCC can advise who got the license, or whether it includes antenna information. Mr. Williams replied that a lot of operators don't have antennas. (A copy of a letter from Mr. Williams dated February 25, 2008 is attached for reference, as Exhibit D). Bill Sawders testified that he has been licensed for 51 years as of May 3, and has an extra class license for forty years. He represents about 15,000 members. He has installed a lot of antennas and taken them down, and experimented with them. He lives in the Homestead subdivision and has not had a single complaint. He is founder of the Central Oregon DX Club and has expended many hours to provide information to help the Board reach an informed decision. He can't understand how a restrictive ordinance came out of this. The Commissioners have ignored federal law and the legal rights of Oregonians. The proposed ordinance is unacceptable and illegal. (Chatter from the audience.) Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 5 of 9 Pages Commissioner Melton said she understands his support for multiple towers, and asked if it is more expensive to purchase four or just one taller one. Mr. Sawder replied that towers support certain size antennas. A four square antenna array is more stable. Depending on the band, it has to be a certain height. Higher is usually better. He hates to see regulations put in place for just a few towers. David Neys read a statement (a copy of which is attached as Exhibit E) regarding changes to the ordinance. Experimentation with antennas is encouraged. The DX group is the expert on long range communications. Solar cycles, seasons, the time of day and the atmosphere, as well as the surrounding ground, have an effect. There is no ultimate height that is best; just the desire to find what works best. He said he supports some sections of the ordinance that are for safety and are legitimate. There is no reason for the rest except to appease those who are offended by the towers. The Board has choices. The operators should not have to pay for the neighbors' visual opinion. Requirements for hearings and reviews are an arbitrary thing. Fees for this are seen as nothing less than a total ban on an important part of the hobby. It is these people and the hobbies they pursue that could be harmed. It is all about dimensions. Operators take this seriously and feel the Board should, too. Some of the suggestions should be reconsidered. He voiced concerns about compliance and licensing, and also about the fee. Ms. Maze said there would be no fee if the tower is under 70 feet, just a building permit. Mr. Neys replied that fees in general are a detriment. He asked that the part where the property owner is to provide information should be removed. In regard to more than one facility at any height, some people have four pieces that could be 15 feet tall to create a loop. They experiment with these. Spacing is also needed to they don't interfere with each other. In regard to a neighborhood meeting, he is not sure of the purpose other than to bring together a group to try to explain the complex reasons for having it to someone who doesn't understand it all. Bob Swaney clarified that there is a small number of these operators who are getting older and the hobby is shrinking. He noted that it is a problem requiring this level of time, expense and controversy. He said they are looking for simple process with a certainty of outcome. It is not so much the fees, but its complexity, and the ultimate cost burden is unknown. It is a hard sell. He doesn't know why operators would accept this when no one else in the country has had to. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 6 of 9 Pages He said that a Beaverton case used a task force of seven people to come up with a simple ordinance. The proposed ordinance is unique form what the rest of the United States has in place. He noted that the Board should realize that this would never hold up in court. He said he has no problem with setbacks. He doesn't mind meeting with neighbors but it can't influence the outcome of a decision. It is a bad precedence to put this into law. There is now deep distrust and it is a hard sell. Code is mind-boggling difficult. The average person cannot deal with it. David Culver of Sisters said that Ms. Melton asked a viable question at the last meeting about height for antennas. (He referred to an oversized chart regarding amateur radio bands) Mr. Culver explained in detail the nature of the types of antennas and which operators use what type. Half the frequency is a good height to be at. All operators operate at multiple frequencies. He is not sure why it is even regulated, as it too complex and isn't regulated in most places. Rex Auker provided a handout (a copy of which is attached as Exhibit F) and expressed concerns about some insinuations that are being made. He has heard over and over that the neighbors would not understand. He is a graduate of the Coast Guard Academy, and was responsible for radio and visual communications, and has studied physics and architecture. He said if the operator had talked with him he might have understood. But three permanent structures were built in violation of County Code without obtaining building permits. He said there are ways to write a good law. The needs of all residents should be considered. That is an established purpose of the land use code. He moved into a farm use zone to get away form gray metal structures. Zoning requires farm use structures unless there is a conditional use process followed. The tower has changed the character of the area. Code must not allow people to come into a zone designed for specific purposes and violate Code, and build structures that are not consistent. Walter Nodle, an operator, commented that he doesn't believe there should be restrictions on the number of antennas, their height or the number of operators in the County. Existing laws regarding health and safety, and CC&R's are the only thing that should count. Much is already covered by FCC regulations. A lot of the testimony on this issue ahs to do with opinions, likes and dislikes. Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 7 of 9 Pages The neighborhood meeting criteria is ill defined. He gets notifications regarding changes in property around him and has not responded as there have been no violations that concern him. There is also a filing fee to object. Government can't legislate good neighbors. Most people do not want to irritate their neighbors. If legal requirements are met, it should be okay. Aesthetics can be very arbitrary. These towers are not normally permanent structures, and operators usually take with them when they move. They are not like a house or barn. There should be a distinction between this type of temporary structure and permanent structures. Fees seem like a de facto prohibition and can be very expensive. Most operators move into EFU zones to get away from residences and have more freedom regarding antennas. He agrees that if someone signs into a place with existing CC&R's, they should abide by those. Commissioner Luke asked staff to look at a different fee structure if this doesn't require the same level of inspection as a dwelling. The written record was left open to 5:00 p.m. on March 12, 2008. Comments should be provided to Community Development. Laurie Craghead stated that the staff report includes information on other public purposes, and those in the audience may want to address more than just the aesthetics. The Commissioners agreed that they would hold another work session on this issue after the record has been closed to written public comment. Being no further discussion, Chair Luke adjourned the meeting at 8:15 p.m. DATED this 25th Day of February 2008 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary De R. Luke, Chair Tammy (Ba ey) elton, Vice Chair Z.~ W,4~1 X* Michael M. Daly, Co issioner Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 8 of 9 Pages Attachments Exhibit A: Preliminary Statement Exhibit B: Sign-in Cards Exhibit C: Letter from Ken Brinich dated February 19, 2008 Exhibit D: Letter from Jim Williams dated February 25, 2008 Exhibit E: Letter from David Neys dated February 25, 2008 Exhibit F: Letter from Rex Auker dated February 25, 2008 Exhibit G: Letter from George Morton dated February 11, 2008 Exhibit H: Notice of Public Hearing dated February 7, 2008 Exhibit I: Staff report dated February 25, 2008 Exhibit J: Copy of Proposed Ordinance No. 2008-007 Minutes of Board of Commissioners' Public Hearing regarding Amateur Radio Facilities Monday, February 25, 2008 Page 9 of 9 Pages PRELIMINARY STATEMENT FOR A LEGISLATIVE PUBLIC HEARINGS BEFORE THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS This is a public hearing on proposed amendments to the Deschutes County Zoning Code, Title 18 section 18.040.030 and section 18.120.040 This is County File Number TA-06-10 This is a legislative matter, meaning the outcome of this process could change the zoning laws of Deschutes County Definitions to include Amateur Radio Facilities and Amateur (Ham) Radio Services and Building Height Exceptions and Supplementary Provisions adding limitations for Amateur Radio Facilities The Board of County Commissioners will hear oral testimony, receive written testimony, and consider the testimony submitted at this hearing. The hearing is also being taped. The Commissioners may make a decision on this matter tonight, continue the public hearing to a date certain, or leave the written record open for a specified period of time. The hearing will be conducted in the following order. The staff will give a report on this issue. We will then open the hearing to all present and ask people to present testimony at one of the tables or at the podium. You can also provide the commission with a copy of written testimony. Questions to and from the chair may be entertained at any time at the chair's discretion. Cross-examination of people testifying will not be allowed. However, if any person wishes ask a question of another person during that person's testimony, please direct your question to the chair after being recognized. The Chair is free to decide whether or not to ask such questions of the person testifying. Prior to the commencement of the hearing any party may challenge the qualifications of any the Commissioners for bias, prejudgment or personal interest. This challenge must be documented with specific reasons supported by facts. Should any Commission member be challenged, the member may disqualify himself or herself, withdraw from the hearing or make a statement on the record of their capacity to hear and decide this issue. At this time, do any members of the Commission need to set forth any information that may be perceived as bias, prejudgment, or personal interest? I will accept any challenges from the public now. (Hearing none, I will open the public hearing). STAFF REPORT S:\CDD\planning\Long Range\Text Amendments\2006\Ham Radio Text Amendment\Board Opening Statement Legislative1.doc Exhibit Page of 1 IF YOU WISH TO TESTIFY Please complete this card & turn it in t a County staff evokiffEson. Name: Mailing Address: j,,,) 14C- _ 1"J . OR 5 Phone #:_3 6 a- 0 E-mail Address: Date: Monday, Feb. 'ff5, 2008 Subject: Amateur Radio Towers IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: Mailing Address: 1G -S rs Phone E-mail Address:,],` re~,l~~ rns~v.~~ Date: /Monday, Feb. 25, 2008 Subject: Amateur Radio Towers IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: )3121 S',4 w,aeg~,A7_1,5- Mailing Address: jsr--ly z .I e Phone rov/ . .F E-mail Address:: Date: /Monday, Feb. 25, 2008 Subject: Amateur Radio Towers U_ I- O Z) O U_ C i ~ a. co ~co ~4-~ `n 0) t v ~ a- V O O M v Q) a E M Q c~ ,~)I C a. o N w O E 4- Exhibit Page / of 2 IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: pb Mailing Address: X24 u- o ~ o qj o LU -0 Phone ~ 3 o - & 2 ZI cV E-mail Address: rs~eh~ be, ~A, cz Date: Monday, Feb. S, 2008 = L Subject: Amateur Radio Towers E~ Z) oo -a 4 o~ 4_J Q v F YOU WISH TO TESTIFY u.. v L 'co • • v Please complete this card & turn o E - it in to a County staff person. Z 2 CL LL' Name:,P,gUxz) fi, Mailing Address: 37D S Phone L ~ v .E-mail Address: Date: Monday, Feb. 25, 2008 `6 N Subject: Amateur ~w •o ~ Radio Towers ca IF YOU WISH TO TESTIFY s a`¢ Please complete this card & turn 2 c 4~ it in to a Co my staff person. °J oc 0) Q3 Name: E -u v Mailing Address: 2 s S- • p ° o %"I C L Q) Phone f- t CL E ca E-mail Address: z iZ w o Date: Monday, Feb. 25, 200 - Subject: Amateur Radio Towers Exhibit Page y of--Z-- HENDRIX, BRINICH W BERTALAN, L.L.P. 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 February 19, 2008 Our File: 3301.1 Kristen Maze Deschutes County Community Development 117 NW Lafayette Ave Bend, OR 97701 P RE: Amateur Radio Tower ordinance, TA-06-10 Dear Kristen: I write to comment on the proposal to establish an ordinance regulating amateur radio towers. I wrote most of this letter prior to the opportunity to review the draft ordinance circulated on February 15, 2008. As the County proceeds with drafting an ordinance it bears repeating that state and federal law1 require the ordinance meet a two pronged test. First, the County must "reasonably accommodate" amateur radio communications. Second, the County's authority to regulate is limited to a least restrictive standard. In the language of ORS 221.295, the ordinance "must represent the minimum practicable regulation necessary to accomplish the purpose of the city or county." There is a strong federal interest in preserving and promoting amateur radio communications. This federal interest lead to the adoption of PRB-1. On November 19, 1999 PB-1 was reaffirmed by Order RM-8763of the FCC. Many states, including Oregon, adopted state statutes that mirror requirements of PRB-1. The requirement of "reasonable accommodation" of amateur radio communications has been interpreted by the federal courts to preempt local jurisdictions' specific height limits, and requires that local jurisdictions negotiate with amateur radio operators to accommodate their needs. ' 47 CFR Sec. 97.15 Station antenna structures. (a) Owners of certain antenna structures more than 60.96 meters (200 feet) above ground level at the site or located near or at a public use airport must notify the Federal Aviation Administration and register with the Commission as required by part 17 of this chapter. (b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. Exhibit C_ Page of Kristen Maze Page 2 February 14, 2008 Amateur radio encompasses a variety of operations. Some ham operators communicate over relatively short distances during daylight hours only. Others communicate globally and operate their equipment at any hour of the day or night. Each amateur's operations have unique equipment requirements. State and federal law requires "reasonable accommodation" of all amateur radio operations. Many amateur radio operators chose to reside in rural locations. The choice of a rural residence rather than urban is a trade off. Rather than live in a close knit neighborhood where their kids can walk to school or to a friend's home, and where access is convenient to stores, work, places of worship, etc., these operators choose remote locations to minimize public impacts. This choice of a rural rather than urban residence is an accommodation by ham operators. Whatever regulatory approach the county adopts, it should acknowledge this accommodation. The County should attempt to reciprocate by making certain tower regulation does not limit siting options. In 1999 the FCC had the opportunity to review PRB-1. The FCC Order RM-8763 reaffirms PRB-1 by stating: We return once again to the position that we have stated earlier in this Order, that is, that the standards of reasonable accommodation" and "minimum practicable regulation" are sufficiently efficacious as guideposts for state, local and municipal authorities. We believe that effectiveness of these guidelines or standards can be gauged by the fact that a local zoning authority would recognize at the outset, when crafting zoning regulations, the potential impact that high antenna towers in heavily-populated urban or suburban locales could have and, thus, would draft their regulations accordingly. In addition, we believe that PRB-1'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 operations." Locations that have little public impact, and present opportunities for long distance amateur radio operations are limited. Amateur radio operators do extensive research to find good locations for operations. Some choose to reside on the high desert because of the low density of public use, and because these locations offer clear horizons, low elevation vegetation, and few manmade structures. Siting in these locations takes advantage of the absence of land based sources of radio wave interference. It is a sensible and reasonable accommodation to place tall towers in rural settings where the public experiences little impact. Whatever regulatory approach is chosen, in order to "reasonably accommodate" amateur radio operations, the ordinance must preserve siting opportunities for tall towers. PRB-1 requires a "site specific, antenna specific, array specific, operations specific, ordinance specific, and (jurisdiction] specific analysis." Snook v. City of Missouri City, Texas No. 03-cv-243, (2003, U.S. Dist. Court for the Southern District r r; Kristen Maze Page 3 February 14, 2008 of Texas). In Snook the federal district court declared that the City's 35 foot height limitation was preempted by PRB-1 because the City failed to reasonably accommodate Snook's amateur radio communication needs. Snook showed that his mode of operations required a tower 114 feet high. His choice of tower site was made, in part, because of the absence of CCRs and the suitability of the site for his mode of operations. The Court rejected a balancing test between the needs of the city and those of the amateur radio operator. The FCC has clarified as well that a balancing of interests approach to regulation is not appropriate 2. The Court stated that PRB-1 must be read to require reasonable accommodation of the operator's needs. See also, Marchand v. Town of Hudson, 147 N.H. 380, 788 A.2d 250 (N.H. 2001). The lesson of these cases is that, notwithstanding contrary language in an ordinance, a licensed operator may construct a tower that meets the needs for his mode of operation. Local jurisdictions must accommodate the licensed operator's needs. The second prong of PRB-1 and ORS 221.295 (minimum practicable regulation necessary to accomplish the jurisdiction's need) is a restriction on the County's authority to regulate. In order to regulate the County must demonstrate that its regulation is necessary to accomplish a legitimate County need. Absolute height limits, as well as expensive or complex land use processes are inconsistent with the standard of minimum practicable regulation. Oregon land use procedures generally place the burden on the applicant to demonstrate compliance with land use criteria. Any regulation adopted by the County should shift this burden to opponents of tower construction. The standard of "minimum practicable regulation" is inconsistent with requiring an operator to demonstrate how his operations, which the County is required to reasonably accommodate, does not conflict with the County's legitimate needs. Placing the costs and burdens on operators is inconsistent with "minimum practicable regulation." A building permit process should require that the operator demonstrate he is licensed, and should require an acknowledgement that the proposed tower is consistent with his mode of operation. The building official's review of construction design would meet standards that address health and safety issues. Siting in a rural zone other than the LM overlay is sufficient to show an absence of public aesthetic issues. This process suffices to establish a prima facie case allowing construction. Regulation is authorized only to the extent necessary to meet a public need. If a tower located in a neighbor's viewshed affects that neighbor's aesthetic values, the neighbor may have a claim under applicable private CCRs. Typically operators avoid CCR problems by choosing locations unencumbered by CCR height restrictions. 2 In re-affirming PRB-1 in FCC Order RM-8763, the FCC rejected a balancing test. The FCC order provides: "In PRB-1, the Commission stated: `Nevertheless, 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.' Given this express Commission language, it is clear that a "balancing of interests" approach is not appropriate in this context. " (emphasis added). Kristen Maze Page 4 February 14, 2008 Neighbors who chose to purchase land not benefitted by CCR height restrictions would have no recourse. That is a just and equitable result as they did not pay a premium associated with property protected by OCRs. They should not expect the County to create a property right in a viewshed that they did not bargain or pay for. Regulation of towers within an area identified as an important public scenic resource may be needed to accomplish a "legitimate public purpose." The landscape management overlay zone is such an area in Deschutes County. Travelers on scenic highways and rivers are members of the public that benefit from preservation of viewsheds. Where the county has not identified aesthetics or preservation of scenic views as a purpose in a particular zone, the determination that aesthetics regulation is necessary is problematic. Preserving viewsheds is unnecessary where, for example, the purpose of the zone is to preserve agricultural uses. And unlike scenic rivers and highways, public use in the EFU zone does not warrant aesthetic regulation of amateur radio facilities. Protection of viewsheds in zones other than the LM overlay zone should be left to CCRs or deed restrictions. Deed records put amateur operators on notice of these restrictions. They can make their own determination whether to purchase land encumbered by CCRs. If the County desires to go down the road of imposing aesthetic regulations, it must demonstrate the regulation is necessary to preserve a public interest rather than to preserve or create private property owners' views. Application of the minimum practicable regulation standard requires consideration of whether no regulation at all is appropriate. With approximately 700 licensed amateurs in Deschutes County the density of operators is extremely low. Of those 700, many licensees operate from fixed bases within cities or solely from mobile bases in vehicles. Deducting these operators from the 700 leaves few operators sited on property within the County's regulatory jurisdiction. The absence of any comments about the effect on the public viewshed (as opposed to complaints from private property owners upset that their private viewshed is affected by a tower going in next door) indicates that regulating amateur radio towers is a non-issue. Regulating in response to a non-issue fails the minimal practicable regulation standard. In summary, the ordinance should be limited to requiring a building permit application, with the following provisions: 1. Proof of a license or authority to operate. 2. A declaration that the applicant's structure is appropriate for his intended operations. 3. No specific height limit. 4. No specific screening requirements. 5. Site plan approval in the LM overlay. R ards en 5rinic c: Laurie Craghead County Commissioners BO ARC OF COMMISSIONERS ADMINISiP,Al'ON February 25, 2008 TO: Deschutes County Commissioners and Planning From Jim Williams (WA7TYD ) 16125 Sparks Dr La Pine, Oregon 97739 536-7493 Subj. Amateur Radio Facilities NO. 2008-007 In reviewing the proposed language that the Deschutes county Planning Department put out for adoption, I have some issues with it. There will be people speaking to the legal aspect of it but I will touch on some of the more human and volunteer effects. First of all, there is no way this plan has taken into consideration what reasonably accommodations and least restrictive means are. Many of your HAM radio operators are retired and live on an income of $30,000 or less a year. Those that are working do not do have a much higher income. With any additional fees that the county tag on would be a burden on many which in its nature would not allow them to have such a facility. When we talk about the numbers of towers going up each year, we are talking of small numbers. There are approximately one tower a year that is installed in the 70 foot class and maybe one tower every ten years that is in the class above 70 feet. The other thing that happens is, many of these towers when taken down from one location will get re-installed in another location. It is not like you are just adding another tower to Deschutes County. Yes, they do come and go! This process that our county has been going through and the manner of doing it has scared many away from our area and would not consider relocating in such an environment. If this had been the case at the time I relocated here, we would not be living here either. The Amateur Radio Operators make up a very large portion of the volunteers in most counties. They are in Search and Rescue, Red Cross, Fire Departments and countless other public and private endeavors. I sure hope that our County Commissioners do not take such a stand that will discourage people from joining the ranks of the HAM Radio World. It is much more than just Deschutes County. We provide a service to our state, country and the world. This is all free of charge. One of the other parts that I have STRONG feelings about is the lack of a Grandfather Clause. What is there to protect us that have been here far before they Exhibit Page of 4 . got started on this issue? If the County Commissioners do anything, put a Grandfather clause into this. Our county and CDD are going through a major budget crises right now and will more than likely get worse down the road in a short time. The Planning Department has spent untold numbers of man-hours and legal fees pursuing this endeavor here. I submit to you that this could have indeed been handled much easer and with far less cost if they would of followed the law already in place. The Federal and State Government have already invented the wheel and it's working. Jim Williams L4~ Deschutes County Board of Commissioners. (February 25, 2008) I have previously testified before you and the Planning Commission stressing how important ham radio is to emergency communications for public agencies. I am here again tonight to explain how this ordinance negatively impacts the amateur radio hobby, and the consequence of such limits. TECHNICAL HOBBY We all recognize that you have heard testimony that may not be easy to understand if not trained and licensed in our hobby. I feel it is extremely important that you rely on those that have the technical expertise needed to assure your decisions are not adversely impacting the radio hobby. ARBITRARY LIMITS To make this decision base on any other non-technical reasons, may feel good to those that have "visual" concerns, but it is not an appropriate decision for the benefit of the public at large. The act of putting "limits" on ideas, innovation, and experimentation can have negative consequence. Suppose they put limits on early flight because the neighbors objected to those things flying over them. Where would flight be today? What if they outlawed cars on public streets back when they were an inventor's hobby? They frighten the horses, make noise, and are just down right offensive say some... Where would we be..... A recent article in the local newspaper told of a gentleman developing a new way to treat cancer using radio. He gained this knowledge of radio waves and their reaction to the human body, through his hobby of amateur radio. Where will we be if everyone prevents others from practicing their hobbies and discover new life saving innovations? Exhibit Page of DXING Amateur radio has many parts that make up the overall activities that encourage experimentation. The federal government recognized this importance of radio and experimentation by putting limits on regulation. The DX group is the expert on long range communications, and the special radio receivers, filters, and antennas needed that take a very weak distant signal and make it usable. DX groups are amateurs that best understand how the solar cycles, the seasons, the time of day, and the atmosphere affect radio. And most importantly for tonight's testimony, they also know the affect the surrounding ground, and the variety of heights above the ground can affect radio communications. There is no ultimate height, only the desire to experiment and find what works the best. THE ORDINANCE I support sections of the proposed ordinance assuring the towers are safe , and the installation is a legitimate licensed amateur radio use. I do not support the added regulation and limits on height "just because".... If there was a public safety reason the added height is not in the public's best interest, I would be supportive. But I see no other reason for the added restrictions than to appease those that are offended when they see them in the air. I am offended by all the houses built on Awbrey Butte the last few decades. I enjoyed it better when it was a tree covered butte. Should we limit building on elevated terrain because I am offended? I think not. If you don't like the view adjacent to your property you have choices. The ham should not be the one that has to pay for the result of a neighbors "visual opinion". Everyone should have the right to safely practice their hobby, especially on their own property. I find requirements to pay for any hearings, notifications, and reviews, in this ordinance nothing more than an arbitrary decision to limit a key part of the amateur radio hobby. The fees in this ordinance alone, that come with the additional restrictions due to antenna heights, are seen as nothing less than a total ban on an important part of ham radio by those that have limited funds or want to practice the DX part of the hobby. I conclude my testimony by quoting text from the "Ham Radio License Manual" from which I teach new hams. It reads: No piece of equipment has, as great an effect, on the performances of a radio station, as the antenna. Experimenting with antennas has been a favorite of hams from the very beginning, contributing greatly to the development of antennas for all radio services. knowledge of antennas is very important for amateurs. Since the beginning of radio, operators strove to make contact over longer and longer distances. Marconi himself started by sending messages across a few hundred yards and gradually built up his capabilities to where he could span the Atlantic Ocean. An enduring and popular past time is to see if you can pull in far away signals from away over the horizon. Its called DX. Pursuing long-distance contacts really hones a ham's technical operating skills. ...one learns many things about propagation, antennas, and the natural environment. The FCC has its own section of rules and regulations explaining the "mission" of amateur radio, and why we are allocated precious RF spectrum, as expressed in the following 5 principles: 1) Recognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communications service, particularly with respect to providing emergency communications. 2)Continuation and extension of the amateur's proven ability to contribute to the advancement of the radio art. r~ Hams have a history of discovering and inventing that continues today. After World War I, hams were given all the "worthless" short wave bands, but soon discovered that they were perfect for long-distance communications against the advice of all the experts. Even with all the communications research going on around the world, hams still invent useful systems and antennas. Ham radio's famous creativity pays back the public's investment of the spectrum many times over. 3)Encouragement and improvement of the amateur service through rules which provide for advancing skills in both the communications and technical phases of the art. Not only do hams tinker with radios, but they train to use them in useful ways 4)Expansion of the existing reservoir of trained operators, technicians, and electronics experts. Having a bunch of folks around that are handy with radios has turned out to be a great idea over the years! and a valuable resource to the public, to the military, and to private industry. S)Continuation and extension of the amateur's unique ability to enhance international goodwill. It has been said that ham radio is an international "Passport to Friendship" s` IN CLOSING It is these people, and the hobby they pursue, that your decision could harm. It is these people, that are the experts on the topic of antenna location and heights. For ham radio it's all about the dimensions. The dimensions of the antenna lengths, widths, thickness,separation distances, and most importantly the antenna "height" at which they need to establish, in order to participate in "all" parts of the Amateur Radio hobby. And as you can see from the attendance at these hearings, the hams take this very seriously and feel you should too. I urge you to go back to the table and reconsider the original compromises the DX Club proposed, and dump the more restrictive language in this ordinance, that fails to be in the best interest of amateur radio and the public. Respectfully, avid Neys Bend, Oregon Rex A. Auker 62575 Stenkamp Road Bend, Oregon 97701 February 25, 2008 Board of Commissioners Deschutes County 117 NW LaFayette Avenue Bend, Oregon 97701 Subj: Amateur Radio Text Amendment TA-06-10 Introduction: I offer my sincere thanks to the Deschutes County Commissioners and staff for the many hours of work and careful consideration that have been dedicated to the matter of clarifying the regulation of amateur radio antennae. In.the following comments I will first state eight general guidelines for the regulation of amateur radio antennae. After that I will explain each guideline in detail and the rationale that supports it. General Guidelines for the Regulation of Amateur Radio Antenna. 1. County code must consider the needs and desires of all county residents. 2. County code must preserve the established purposes of land use zones. 3. County code must preserve valuable resources. 4. County code must place specific and reasonable limits on the definition, construction and location of amateur radio antenna. 5. County code must provide for "reasonable accommodation" of amateur radio. 6. The limits that county code places on the construction and location of amateur radio antenna must be consistent with the limits placed on the construction of radio antenna used for other-than-amateur purposes. 7. County code must be clear and enforceable. 8. New code amendments must not reward those who failed to comply with existing code. 1 County Code must consider the needs and desires of all county residents. a. The under-represented majority. In public hearings before the planning commission and the Board of County Commissioners amateur radio operators have shown themselves to be a vocal, well-organized and apparently well-funded group of Exhibit Page of Deschutes County citizens. We must remember, however, that amateur radio operators compose only a small minority of the citizens who reside in this county. The needs and desires of all Deschutes County residents must be considered. b. Small land parcels. The proposed text amendment allows an amateur radio operator to construct grey metal antenna structures 70 feet high on any sized lot in any land use zone in Deschutes County. There are some areas of Deschutes County where lot sizes are less than 1/8 acre. According to county records there are 67,801 existing parcels in Deschutes County that are less than one acre in size. As an example, the Starwood residential development, is located in unincorporated Deschutes County south of Tumalo Road. Lot sizes there are as small as a quarter acre. In such a development, even a single antenna 70 feet high would severely degrade the aesthetics, safety and livability of the neighborhood. 1) Here is a sampling of residential minimum lot sizes allowed by county code in various zones of unincorporated Deschutes County. Sunriver - 6,000 sq ft. (about 1/8 acre) LaPine - 5,000 sq ft.(less than 1/8 acre) Terrebone Residential (TeR) - 7500 sq ft (about 1/7 acre). Brothers/Hampton/Millican - 2.5 acres. Alfalfa - 5 acres. c. Industrial-type structures. The proposed text amendment specifically allows for tall tubular metal and metal latticework antenna support structures. It addresses structure height, but places no restrictions on antenna components or spars that are oriented horizontally. Neither are there restrictions on the size or number of guy wires or the size of the footprint of the total structure. Conceivably under the proposed text amendment an amateur radio operator could construct a cubical or cylindrical skeleton- like antenna support structure from grey metal components which could reach 70 feet in height and several hundred feet in depth and breadth. The only restriction would be that the structure remained outside the established property line setbacks for the underlying zone. As I understand the current county code, large metal skeleton-like structures are restricted to commercial and industrial zones unless they are constructed within pre- established easements or are necessary for the provision of vital public utilities such as electrical power, gas or water. Even then, those industrial-type structures are subject to extensive site plan review, public hearings and conditional use permits prior to the initiation of construction. In intent and effect the proposed text amendment gives individual amateur radio operators blanket approval to construct big grey metal industrial-type structures in residential, agricultural and forest zones. 2. County code must preserve the purposes of established land use zones. The stated purposes of many zones must be understood to prohibit the construction of big grey metal industrial-type structures. a. Rural Residential Zone - RR-10. "The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character (DCC 18.60.0 10) 2 b. Exclusive Farm Use Zone - EFU. "The purpose of the Exclusive Farm Use Zone is to preserve and maintain agricultural lands and to serve as a sanctuary for farm uses." (DCC 18.16.010). c. The specific language concerning structures in these zones only gives outright permission for industrial-type structures if those structures are necessary for furthering the stated purposes of the zones. Other industrial-type structures are either prohibited or are required to have a conditional use permit. For instance: 1) In Rural Residential Zones - RR-10 the only industrial-type structures permitted outright are "Utility facilities necessary to serve the area including energy facilities, water supply and treatment and sewage disposal and treatment." (DCC 18.60.020 B). 2). In Exclusive Farm Use Zones outright permission is given only for utility facility service lines that serve the parcels in that zone, structures for the mining and processing of energy resources, and structures necessary for the disposal of solid waste if ordered by the Environmental Quality Commission (DCC 18.16.020 N, Q, R 3. County code must preserve valuable resources. The proposed text amendment allows for construction of big grey metal antenna support structures on irrigated land, but it places no restriction on the footprint of those antenna and support structures. My neighbor has constructed at least two ham radio antennas which do not reach high into the air but actually lay on the ground. One such antenna consisted of multiple wires laid directly on the ground which extended out distances of approximately 100 feet in all directions from a center point like the spokes of a wheel. This antenna was constructed on irrigated farm land, but because of the antenna's vulnerability to damage my neighbor neither irrigated the land nor allowed animals to graze there. In effect, his radio antenna made his farmland unusable for its intended purpose and could have eventually led to the loss of irrigation water rights for the property. County code must not give blanket approval for amateur radio operators to convert farm land to non farm uses. Neither should the county code allow amateur radio operators to place the county at risk of losing valuable water rights in the case of a state audit of irrigation. Such unauthorized conversion of land use can be prevented by simply prohibiting the construction of amateur radio antenna on irrigated land. 4. County code must place specific and reasonable limits on the definition, construction and location of amateur radio antenna. Amateur radio antennae come in all shapes and sizes. They can be as small as a 12-inch whip antenna attached to an automobile or large enough to completely fill the space of a normal residential yard. They can be wires that stretch horizontally more than a thousand feet or an array or wires that stretch down and out diagonally in all directions from a tall mast, sort of like a May pole or Christmas tree. Yagi type antenna can sit on top of a single mast, but spread out horizontally for 40 feet. One antenna in Deschutes County resembles a giant pinwheel. Also, because some amateur radio operators devote themselves to experimenting with new types of antenna, there is no way to predict what the antenna of the future may look like. a. Neither the federal regulations nor the state statutes make any statements about the geometric configuration of an amateur radio antenna or antenna structure. That task is left to local government. The authors of the code sections that cover wireless telecommunications facilities addressed the issues of radio antenna size and shape with both clarity and flexibility. Wood monopole antennas and support structures reaching no more than 45 feet in height are allowed outright in any zone (Tier I). Metallic antenna mounted on existing buildings and extending up to 15 feet above the building are permitted outright in all zones (Tier I). Wood monopole antennas and support structures in commercial and industrial zones may reach up to 75 feet in height (Tier II). Structures made of metal or other materials or which exceed 75 feet in height or which vary from monopole geometry require conditional use permits, neighborhood meetings and graphic representations of what the structure will look like before they can be built (Tier III). b. Given the almost limitless possibilities for the size, shape and material composition of a radio antennas and structures, the current code policies concerning wireless telecommunications facilities would certainly meet the criteria of "mimimum practicable restrictions" to achieve the county's legitimate purposes if they were applied to amateur radio facilities. c. According to the proposed text amendment, "'Amateur Radio Facilties' means the external, outdoor structures associated with an operator's amateur radio service. This includes antennae, masts, towers, guy wires, and other antenna support structures that consist of solid tubular or open lattice metal structure not exceeding 25 inches on average in diameter or face width." d. What is the purpose of defining an amateur radio facility in a manner that - - specifically allows for big metal industrial-type structures? 1) According to FCC directives, (PRB-1 2000), it is clearly permissible for a local authority to prohibit the construction of certain types of amateur radio facilities in residential areas if those types of structures, when used for other-than-amateur-radio purposes, are also prohibited in that residential area. So if a county code prohibits or regulates the construction of big metal structures in a residential zone for, say, a commercial radio broadcast antenna, the FCC says it is permissible for the county to regulate amateur radio antennas in the same manner. It is reasonable to assume that the FCC would apply the same logic in the case of rural residential and agricultural zones. By defining amateur radio facilities so as to specifically allow for metal structures, the proposed amendment circumvents the FCC directive. In contrast to FCC directives, which clearly allow for the regulation of big metallic industrial-type amateur radio structures, the proposed text amendment will specifically prohibit the countyfrom 4 regulating big metal industrial-type amateur radio structures in residential, agricultural and forest zones.. 2) The proposed definition of amateur radio facilities also clearly establishes that they cannot be regulated as wireless telecommunication facilities as is currently allowable under the existing county code. a) Evidence from the minutes of the Deschutes County Planning Commission indicates that those who drafted the code requirements for wireless telecommunications facilities clearly intended to include amateur radio facilities under that definition. In November of 2001, George Read, who was then the Director of Community Development, told the planning commission that by definition ham radios were regarded as wireless telecommunication facilities. The minutes also show that the planning commission considered and reiected a proposal to exempt amateur radio from the code requirements that applied to wireless telecommunications facilities. Now seven years later, amateur radio operators are once again seeking exemption from the requirements of existing county code. 3) The proposed definition of amateur radio facilities combined with the color schemes mandated by other sections of the proposed code amendment encourages the proliferation of big grey metal industrial-type structures. The proposed code sections make no mention of support structures constructed of materials other than metal and they mandate that all metal structures will be either galvanized, matte silver or grey in color. The proposed code sections concerning antenna structures over 70 feet in height were modeled after the requirements for Tier III wireless telecommunications facilities which specify that antenna structure must be painted in natural colors which blend with the surrounding environment. Why was this requirement for natural looking colors altered when applied to amateur radio towers? What is it about amateur radio antenna that requires them to be grey or metallic in color? Will their operational characteristics be diminished if they are painted green or brown so as to blend in with surrounding vegetation or rock and soil colors? 5. Countv code must provide for "reasonable accommodation" of amateur radio. The FCC requires that local governments provide for "reasonable accommodation" of amateur radio. What is "reasonable accommodation"? Amateur radio operators would like us to believe that any restriction of the exercise of their hobby is unreasonable, but that is not what the FCC intends. In 2000 the FCC clarified the meanings of "reasonable accommodation" and "minimum practicable restriction". Here is what they said: 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 5 amateur communications using small dish antennas, antennas that do not present any safety or health hazard, or antennas that are similar 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 (Emphasis mine). Although such a regulation could constrain amateur communications, we do not view it as failing to provide reasonable accommodation to amateur communications. a. What does that mean? First, it means that the regulation of amateur telecommunications structures must he consistent with the regulation placed on radio telecommunications structures used for other-than-amateur-radio purposes. Second, it means that local governments are clearly permitted to regulate amateur communications even if that regulation could "constrain" amateur communications. If the county allows antenna of a particular size and type for other-than-amateur-radio purposes, then it must also allow antenna of that size and type for amateur radio purposes. But if the county places restrictions on antenna structures of a particular size and type for other-than-amateur-radio purposes, then the county may also place the same restrictions on antenna structures used for amateur radio. Essentially, amateur radio must be treated even-handedly when compared to other sorts of radio frequency transmission and reception facilities. In Deschutes County this means that the county code cannot place more restrictions on amateur radio than those that exist for wireless telecommunications facilities or radio towers. But the FCC does not require Deschutes County Code to place fewer restrictions on amateur radio than are placed on wireless telecommunications facilities or radio towers. 6. The limits that county code places on the construction and location of amateur radio antenna must be consistent with the limits placed on the construction of radio antenna used for other-than-amateur-radio purposes. a. In oral testimony before the Deschutes County Planning Commission amateur radio enthusiasts argued that it was unreasonable to require of them the same fees and processes that are required of commercial radio facilities. FCC policy does not support such a contention. FCC policy would prohibit fees and processes that appear to be designed to discourage construction of amateur radio facilities when compared to other- than-amateur-radio facilities, but the FCC would not stand in the way of a local government charging reasonable fees that are commensurate with the staff and administrative costs of processing a construction or land use permit for an amateur radio facility. 1) As I recall, Commissioner Luke mentioned in a recent working session that state statute already prohibits a local government from charging unreasonable processing fees for any construction and land use permit. If Deschutes County is in 6 compliance with that statute, then amateur radio operators are already protected from intentionally prohibitive administrative fees and processes. b. With regard to specific construction or height requirements, current Deschutes County Code already regulates both wireless telecommunications facilities and radio towers. When interpreted properly, amateur radio facilities also fall into the code definitions of either of those categories and should be regulated as such. But if the Board of Commissioners chooses to create an entirely new category of structure for amateur radio facilities, then the requirements and restrictions for those facilities may not be more restrictive than those already established for wireless telecommunications facilities and radio towers. On the other hand, there is nothing that prohibits the county from regulating amateur radio facilities in exactly the same manner as wireless telecommunications facilities or radio towers. 7. County code must be clear and enforceable. The current contention about amateur radio facilities has occurred because of a lack of clarity in the language of the existing county code. When there is unnecessary lack of clarity neither the amateur radio operator nor his neighbor are well-served. a. Retractable antenna. Earlier drafts of the proposed text amendment failed to specify whether a retractable antenna was to be measured at full height or retracted height. The current proposed text amendment clearly states that if a retractable antenna is capable of being elevated beyond 70 feet, it will be regarded as higher than 70 feet for purposes of the code. Well done! Compliance with the code and enforcement will be much improved because of that clarity. To ensure clarity in all circumstances I recommend that the following statement be included in the code: "All antenna and antenna structures will be measured at the greatest height, depth and breadth they are capable of reaching." b. Varieties of antennae. Because there is such a wide variety of potential antenna types and structures, it is strategically wise for the code to clearly describe what sort of structure is permitted outright, and then require the conditional use process for proposed structures that deviate from what is clearly defined. The three tier approach used for wireless telecommunications facilities does exactly that. It states clearly that wooden monopole antenna structures up to 45 feet in height are permitted outright in any zone (Tier I). It states clearly that antenna structures of any composition may be mounted on top of existing structures as long as they do not extend more than 15 feet above that structure (Tier I). It states clearly that wood monopole antenna support structures are permitted outright in commercial and industrial zones up to a height of 65 (and in some cases 75) feet (Tier II). All other antenna structures are wisely defined as Tier III structures and are subject to a conditional use process because there are virtually no limits on the variety of shapes, sizes, and material composition of radio antenna and antenna structures. 7 1) If the Board of Commissioners decides against regulating amateur radio facilities as wireless telecommunication facilities, I recommend they adopt a three tier approach as follows: Tier I: Wood monopole antenna structures not exceeding 45 feet in height are permitted outright in all zones. Also, antenna structures made from any material are permitted outright if they are mounted on top of existing structures (such as houses or outbuildings) and do not extend more than 15 feet above that existing structure. Tier II: Wood monopole antenna structures not exceeding 75 feet in height are permitted outright in all commercial and industrial zones. They are also permitted outright in all other zones provided the land parcel on which they are located is larger than 2 acres. Tier III: Tier III amateur radio facilities include all those facilities that do not meet the specifications of Tier I and II. Tier III amateur radio facilities are permitted subject to the same requirements that are applied to Tier III wireless telecommunications facilities. c. Multiple antennae on the same land parcel. It is reasonable to accommodate amateur radio by permitting outright the construction of a single amateur radio antenna provided the size, shape, and color of that antenna structure is consistent with the purposes of the underlying zone. Allowing the construction of multiple antennae, particularly on small parcels of land, goes beyond reasonable accommodation. The proposed code amendment deals with this issue in a clear and manageable manner. The first amateur radio antenna is permitted outright. Additional antennae may be permitted subject to a conditional use process which can consider the wide variety of individual circumstances that are likely to be encountered such as the size of the parcel of land, scenic views of the neighbors, vegetative screening, etc. c. The clarity of the code sections regarding wireless telecommunications facilities enhances the permit and construction process for both the citizens and the county government. When a citizen decides to build a wireless telecommunications facility, he can do so with the confidence that he cannot be legitimately bothered by complaints from his neighbors. The neighbors also can live with the assurance that someone will not be allowed to move into their residential or agricultural locale and erect industrial-type structures. Because the standards are clearly defined the code enforcement officer is also empowered to carry out her duties with confidence and efficiency. In crafting the code amendment for amateur radios, we will all benefit from a thorough understanding of the code sections that deal with wireless telecommunications facilities. They are extremely well-written. Better yet, I recommend that we simply do as the Deschutes County Planning Commission intended in 2001, and accept as truth that by definition ham radios are wireless telecommunications facilities. 8 8. New code amendments must not reward those who failed to comply with existing code. Allow me to speak very personally. I am a retired Naval Officer. Throughout my career of public service I moved from one duty station to another according to the needs of the Coast Guard and the Navy. More often than not my assignments were in large metropolitan areas with shipyards, air stations or major government complexes. After I retired from the Navy, my wife and I looked for a location where we could live out our dream of owning a hobby farm and pursuing my wife's passion for horses. That's when we discovered Deschutes County with its natural beauty and splendid opportunity for a rural lifestyle. We found an affordable home on 17 acres in an exclusive farm use zone where we have raised sheep, cattle, chickens and horses. For 27 years I worked primarily in industrial environments dominated by big grey metal ships, big grey metal aircraft, big grey metal guns, big grey metal antenna structures. When deciding to live in an Exclusive Farm Use zone in Deschutes County I was told that I would be moving to an environment that was intentionally preserved for agricultural purposes and, presumably, inhabited by people who had desires similar to mine, desires for green pastures, scenic vistas, and playful young animals. About two years after we occupied our property, a person who had much different intentions moved in next door. He apparently came to Central Oregon because of its potential for good radio wave propagation, and he envisioned the farmland he purchased not as a resource for agriculture, but as a location for an amateur experimental telecommunications facility. Shortly after moving his family here, even before he began construction on his new home, he erected his first grey metal industrial-type antenna structure which reached approximately 60 feet into the air, far above the height of the tallest of the surrounding trees and, according to the Community Development Department, about 30 feet higher than permitted by extant county code. He did not apply for a building permit before constructing that antenna. A year or two later, he erected a second big grey metal industrial-type antenna structure, about 80 feet high, again in violation of county code and without the required building permit. A couple years later, he began construction on a third big grey metal industrial-type antenna structure, about 120 feet high with 9 guy wires that stretch out 75 feet from its base, again in violation of county code, again without a building permit.. When the third antenna began to rise up in April of 2006, I filed a complaint with the Deschutes County Code Enforcement Officer. The county then ordered a temporary halt in construction and required my neighbor to apply for building permits for all three antenna structures. The county has not yet approved the permits, but they have given my neighbor permission to complete construction and put the newest antenna into full use. Additionally, county officials gave my neighbor the opportunity to draft a change to the county code that would authorize his antennae to remain standing. Recently my neighbor filed civil suit against the county in an attempt to force them to approve building permits for each of the offending antenna structures. The county answered that lawsuit by 9 arguing that the placement of radio antennae involves land use decisions which have not yet been made. I chose my home in an Exclusive Farm Use zone because my wife and I wanted to live a lifestyle consistent with the established purposes of the zone. I have adapted my activities to remain in compliance with those legitimate zoning purposes. I came to Deschutes County to escape constant exposure to structures and lifestyles that are characteristic of urban, commercial and industrial zones. Given the county code that was in effect at the time I moved here, it is entirely reasonable for me to expect some measure of protection from those who would move into an agricultural zone with specific intent to change the character of the zone and to repeatedly violate that zone's construction and land use provisions. Whatever the Board of Commissioners finally determines to be the appropriate requirements for amateur radio facilities, I ask that you ensure that existing non-conforming structures are swiftly compelled to comply. Sincerely, Rex A. Auker 10 2/11/08 Dennis Luke: Comments: Deschutes County Tower Regulation for Amateur Radio Operators 1. There is NO provision in Oregon Real Estate Law for view or scenic easements. 2. Amateur Radio is a hobby. Pecuniary interest is prohibited by FCC rule. 3. Amateur Radio operations are required to be in the "public service" as a primary use, again by FCC rule. 4 Requirements for amateur radio towers to be regulated as commercial antenna support structures is NOT a "reasonable accommodation" Per FCC Order DA99- 2569. 5. A basic application fee of $2,500.00 is again not in the "reasonable accommodation" area and considered excessive and punitive. 6. Regulation of number of antenna support structures and their height is beyond the purview of Deschutes County which should defer to FCC regulation as per order above. 7. Why has this issue become front burner in this county? If the major issue is one of aesthetic appeal and view infringement, see 1. above. 8. Strongly recommend the commission decision to table this item without action. Vern best regards, George H. Morton r}~ ' Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ NOTICE OF PUBLIC HEARING The Deschutes County Board of County Commissioners will hold a Public Hearing on February 25 at 6:00 p.m., on File No. TA-06-10, in the Deschutes County Board of Commissioners' Hearing Room at 1130 Harriman Street in Bend, to take testimony on the following item: - - - - - - - - - APPLICANT: Deschutes County SUBJECT: An amendment to section 18.04.030, Definitions, section 18.120.040, Building Height Exceptions, and add section 18.116.290 Amateur Radio Facilities. Specifically, these code changes include the addition of definitions for Amateur Radio Facilities and Services, and limitations and criteria for construction of amateur radio facilities. STAFF CONTACT: Kristen Maze, Associate Planner, with the County Planning Division at (541) 383-6701 or e-mail kristenm@co.deschutes.or.us ANY INTERESTED PERSON MAY APPEAR, BE REPRESENTED BY COUNSEL, OR SUBMIT WRITTEN SIGNED TESTIMONY. ALL WRITTEN TESTIMONY MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR BE SUBMITTED AT THE HEARING. Seven (7) days prior to the public hearing, copies of the proposed documents and attachments will be available for inspection at no cost at the Deschutes County Community Development Department at 117 NW Lafayette Avenue. Copies of the documents and attachments can be purchased at the office for (25) cents a page. Information is available at the County website, www.deschutes.org/cdd. Click on "Pending Code Amendments." The meeting location is wheelchair accessible. For the deaf or hearing impaired, an interpreter or assistant listening system will be provided with 48 hours' notice. Materials in alternate formats may be made available with 48 hours' notice by dialing 541-388-6621. For other assistance, please dial 7-1-1, State Relay Service. NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Dated this 7th day of February, 2008 Mailed this 7th day of February, 2008 Exhibit Quality Services Performed with Pride Page of 0 14% M! EXHIBIT D Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ STAFF REPORT TO: Deschutes County Board of County Commission FROM: Kristen Maze, Associate Planner DATE: February 25, 2008 SUBJECT: Public Hearing for Amateur Radio Text Amendment TA-06-10 PURPOSE The Deschutes County Board of County Commissioners (Board) held public hearings on the Amateur Radio Facilities text amendment that was withdrawn by the applicant, staff presented this proposed text amendment at three work sessions and a public hearing with the Board as a county initiated amendment that modifies Deschutes County Code (DCC) Section 18.040.030, Definitions, to include Amateur Radio Facilities and Amateur (Ham) Radio Services and amending Section 18.120.040, Building Height Exceptions, adding limitations for Amateur Radio Facilities. BACKGROUND The initial text amendment application was filed by the Central Oregon DX Club (Club) after a county enforcement file was opened for which the owner of the amateur radio facility was issued a Notice of Violation for exceeding the 30 foot height limitation in the Exclusive Farm Use zone. The Planning Commission held four work sessions and two public hearings on the proposed text amendment. The Planning Commission listened to considerable public testimony both for and against proposed regulations for placement of amateur radio facilities. Subsequent to the Planning Commission recommendation, the Club withdrew its application and the proposed text amendment became a Deschutes County Community Development Department ("CDD") staff initiated proposal. The Board initially heard this on November 26, 2007 and after two work sessions, requested that staff arrange and provide notice for an additional hearing on February 27, 2008 in order to receive comments on the Board's draft text amendment. The following is a summary of the background for the current Deschutes County amateur radio facilities regulations. • In 2000-2001 Deschutes County considered adopting regulations for amateur radio antennas. The issue was considered with revisions to regulations of wireless Exhibit D to Ordinance 2008-007 (2/25/08) Exhibit_ Page of Quality Services Performed with Pride telecommunications facilities. However, no ordinance specifically mentioning amateur radio was adopted, in the interim, the county has not regulated amateur radio antennas except as a structure over 30 feet. Additionally, specific exemption to height limitations for radio and other similar projections that was in the DCC, section 18.120.040, was removed at that time (May, 2001). Currently, the Deschutes County Community Development Department applies the general restrictions of building height to the County Code for amateur radio facilities. This would require an amateur radio facility applicant to meet the height exception requirement, generally 30 feet, or fall under the specific zone area height requirements However, state law requires the county to not restrict amateur radio facilities 70 feet or lower unless the county can achieve a clearly defined health, safety or aesthetic objective and regulation is "the minimum practicable regulation necessary to accomplish the purpose of the city or county."(See ORS 221.295 Page 3) APPLICANT PROPOSAL The proposed text amendment initiated by the Club was based originally on the City of Beaverton's amateur radio ordinance. The amendment would: 1. add definitions for "Amateur Radio Facilities" and "Amateur (Ham) Radio Services" to DCC 18.04.030. 2. modify the Building Height Exceptions to allow for all amateur radio facilities in zones other than the Landscape Management Combing zone with a valid building permit if required by the Deschutes County Building Safety Director, including compliance with the Federal Communications Commission (FCC), Federal Aviation Administration (FAA), and Oregon Department of Aviation (ODA), and with proof of a valid FCC Amateur Radio License at the time of building permit application (DCC 18.120.040). Through the Planning Commission work sessions and public hearings the applicant's original proposal was modified with approval by the applicant, to be the "streamline version", which is Exhibit "B" section 18.116.290 (A), attached and incorporated by reference. Because the Planning Commission's ultimate recommendation included more provisions than the streamline version, the applicant withdrew its proposal. PLANNING COMMISSION RECOMMENDATION AND VOTE The Planning Commission identified aesthetic concerns regarding amateur radio facilities over 75 feet in height. These concerns became evident as a result of opposition to the proposed text amendment and site visits by some Planning Commissioners. The Commissioner's voiced their concerns over the unsightly appearance of the amateur radio facilities next door to other residence and the fact that these facilities could interfere with neighbor's views. The Planning Commission voted four to two on the following motion; "Amateur radio facilities greater than 75 feet in height including retractable facilities to less than 75 feet shall be harmonious to the natural environment and existing development, minimize visual impacts and preserve natural features including view and topographical features of the surrounding lands associated with the amateur radio facility and shall include site plan language from DCC 18.128.340 Wireless Telecommunications Facilities". 2 This motion also included aesthetic findings required by state statute. There was some confusion with the proposed motion regarding the inclusion of retractable amateur radio facilities. The Planning Commission's intent was to exclude amateur radio facilities that can be retracted to less than 75 feet in height from the more restrictive site plan requirements of DCC 18.128.340 Wireless Telecommunications Facilities. The recommended language is intended to address neighborhood meetings, site plan review and acknowledgement by the neighbors adjacent to the amateur radio facilities. Specifically, the Planning Commission recommended that the Board include language that would address amateur radio facilities over 75 feet in height with the incorporation of the Wireless Telecommunications Facilities language in DCC 18.128.340 (A) (1) (3) (d-i) and (B) (3,4,5,10). ANALYSIS The state law Deschutes County must follow for setting amateur radio facility standards is established by Oregon Revised Statute (ORS) 221.295. 221.295 Ordinances regulating placement or height of radio antennas. 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 ] This ORS is based on state and federal law, namely the FCC ruling in PRB-1, codified in 47 CFR Part 97, and case law from other states and federal courts since 1985 that restrict regulation of amateur radio towers and antennas by local government authorities. Any limits or restrictions placed on amateur radio facilities must be linked to a clearly defined health, safety, or aesthetic objective. The applicant's proposal as modified in the "streamline version" provides minimum requirements to the amateur radio operator. • The proposal permits outright amateur radio facilities at any height provided the applicant obtains a building permit, a FCC amateur radio license, and satisfies the yard .setbacks and design criteria. The Planning Commission's recommendation is more restrictive than state statute. • This recommendation would add a new Amateur Radio section 18.116 with specific site plan review criteria for amateur radio facilities over 75 feet in height. It is essential that in setting regulations for amateur radio facilities, the Board adhere to the State Statute. ORS 221.295 clearly maintains that regulation of 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 to accomplish the County's' purpose. 3 Staff presented the two proposed text amendments to the Board. Following significant review, the Board determined that a variation of the Planning Commission's recommendation would address health, safety and aesthetic concerns, and best meet the needs of the public with the minimum practicable regulations. Based on the findings listed below the Board is proposing the adoption of the following amateur radio text amendment: ■ Amateur radio facilities 70 feet or less must obtain a building permit, a FCC amateur radio license, and satisfy the yard setbacks and design criteria. • Amateur radio facilities over 70 feet in height, or are retractable facilities that exceed 70 feet at full height, or more than one amateur radio facility of any height on a property must meet specific amateur radio site plan review requirements outline in Exhibit "B" section 18.116.290 (B). The Board also requests that the Planning Director establish a special fee for the administrative decision and site plan review required for amateur radio facilities. This fee will not include a hearings officer deposit. REVIEW CRITERIA The proposed amendment revises the DCC Title 18 to permit amateur radio facilities consistent with ORS 221.295. The proposed amendment is a public policy issue. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative zoning text amendment. However, Deschutes County is required to comply with State and Federal law regarding amateur radio facilities. The parameters for evaluating this text amendment are based on whether there are adequate factual findings that demonstrate consistency with state and federal law, the statewide Planning Goals, the Deschutes County Comprehensive Plan, and Zoning Code. STATEWIDE PLANNING GOALS AND FINDINGS Goal 1 - Citizen Involvement. To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process. Finding: Goal 1 is satisfied through our County text amendment process that includes a Planning Commission work session, followed by a Planning Commission public hearing, completed with County Board of Commissioners work session and public hearing. Goal 2 - Land Use Planning. To establish a land use planning process and policy framework as a basis for all decision and actions related to use of land and to assure an adequate factual base for such decisions and actions. Finding: Deschutes County has established a process and policy framework to assure that decisions rendered by the county on land use applications have an adequate factual basis. No exceptions to the Statewide Planning Goals are requested with this text amendment. The Staff report and accompanying materials contain the necessary facts for adoption of the proposed text amendments. Goal 3 - Agricultural Lands. To preserve and maintain agricultural lands. 4 Finding: Because state and federal laws do not allow for complete prohibition of amateur radio facilities, providing a process that requires a site plan will help insure that such facilities do not interfere with the use of any applicant or neighbors' property for farm use. Goal 4 - Forest Lands. To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture. Finding: Because state and federal laws do not allow for complete prohibition of amateur radio facilities, providing a process that requires a site plan will help insure that such facilities do not interfere with the use of any applicant or neighbors' property for forest use. Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces. To protect natural resources and conserve scenic and historic areas and open spaces. Finding: This text amendment will establish criteria to address concerns for the protection and conservation of individual scenic views for present and future generations in the rural residential areas of Deschutes County. The Landscape Management Combining zone currently has established criteria that limits all structures to a maximum of 30 feet in height along scenic corridors and rivers, and requires site plan review to maintain structures compatible with the site and existing scenic vistas. Because state and federal laws do not allow for complete prohibition of amateur radio facilities, providing a process that requires a site plan will help insure that such facilities do not interfere with County Goal 5 resources. Goal 6: Air, Water and Land Resources Quality. To maintain and improve the quality of the air, water and land resources of the state. Finding: The proposed text amendments will have no effect upon the air, water and land resources quality in Deschutes County because the areas where the facilities will be allow are established residential sites. Goal 7: Areas Subject to Natural Hazards. To protect people and property from natural hazards. Finding: This text amendment establishes criteria through the building permit process to protect people and property from the risks of natural hazards in Deschutes County. Goal 8: Recreation Needs. To satisfy the recreational needs of the citizens of the state and visitors and, where appropriate, to provide for the siting of necessary recreational facilities including destination resorts. Finding: This is not a destination resort or recreational facility therefore this Statewide Planning Goal is not applicable to this text amendment. Goal 9: Economic Development. To provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon's citizens. Finding: This text amendment does not include future development therefore; this Statewide Planning Goal is not applicable to this text amendment. Additionally, the proposed facilities are for amateur radio use, not commercial radio use. Goal 10: Housing. To provide for the housing needs of citizens of the state. Finding: This Statewide Planning Goal is not applicable to this text amendment because this is not a housing use. Goal 11: Public Facilities and Services. To plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a framework for urban and rural development. Finding: As the affected properties are outside of Urban Growth Boundaries and will not be served through extensions of urban services unless they already exist, this Statewide Planning Goal is not applicable to this text amendment. Goal 12: Transportation. To provide and encourage a safe, convenient and economic transportation system. Finding: The proposed text amendments will have no effect on the transportation system. This Statewide Planning Goal is not applicable to this text amendment because they do not involve the use of any transportation system other than the transportation of the equipment and amateur radio facility to the individual properties. Goal 13: Energy Conservation. To conserve energy. Finding: This goal is not affected because this proposed text amendment address amateur radio facilities which large amounts of electricity or any other sources of energy are not required for their use. Goal 14: To provide for an orderly and efficient transition from rural to urban land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities. Finding: This goal is not applicable because this amendment is not a proposal for expansion of an urban growth boundary is not a proposal for the expansion of public facilities. Additionally, state and federal law regarding amateur radio do not allow for complete prohibition of amateur radio facilities. Statewide Planning Goals 15 - 19 are goals that do not apply to Deschutes County Deschutes County Comprehensive Plan: The proposed amendment would satisfy the Deschutes County Comprehensive Plan goals and policies. Aesthetic findings for the preservation of scenic values and appearances throughout rural Deschutes County are based on these Comprehensive Plan statements. • 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 23.16.080 Other states "Increasingly the major environmental damage has been the loss of scenic vistas and sensitive environment areas along highways, rivers and other areas where development has occurred. Often the resources lost have been irreplaceable locally. Fortunately, Deschutes County still has many scenic and natural resources available. Public ownership constitutes over 78 percent of the land in the County. Proper management of both public and private lands can assure the area's primary resource-its natural beauty and diversity-is maintained for future residents. 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." State Statute Based on Deschutes County zoning and comprehensive plan statements the Board finds that scenic values are important throughout the rural lands of the County. This text amendment criterion for site plan review by a neighborhood group will ensure scenic values are reasonably maintained. The amateur radio operators are accommodated to install their communication facilities with minimum practicable regulations that adhere to state and local scenic resource goals and policies PUBLIC NOTICE A public hearing notice was sent to all Deschutes County residents that have participated in both the Planning Commission hearing and the first Board of County Commissioners public hearing. This notice was sent out 10 days prior to the hearing date of February 25, 2008. Additionally, notice of initial hearing before the Planning Commission was sent and published January 28, 2007 and notice to the Board's November 25, 2007 hearing was sent and published November 11, 2007. Attachments: 1. Amateur Radio Draft Ordinance 2008-007 and Exhibits 7 REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 18, of the Deschutes County Code to Regulate Amateur Radio Facilities. ORDINANCE NO. 2008-007 WHEREAS, the Deschutes County Planning Division requested a text amendment to add provisions to regulate amateur radio facilities, and WHEREAS, notice of public hearing before the Board of County Commissioners ("Board") was included in the tax statements and mailed to all property owners within the unincorporated county; and WHEREAS the Planning Commission considered this matter after a public hearings on February 8, 2007 and February 22, 2007 and forward changes to the zoning regulations for amateur radio facilities to the Board; and WHEREAS the Board considered this matter after public hearings was held November 26, 2007 and February 25, 2008 and concluded that the public will benefit from changes to the land use regulations; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC 18.04.030, Definitions is amended to read as described in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in sttikedffetio. Section 2. ADDITION. DCC 18.116.290, Amateur Radio Facilities, is added to read as described in Exhibit "B," attached hereto and by this reference incorporated herein, Section 3. AMENDMENT. DCC 18.120.040, Building Height Exceptions is amended to read as described in Exhibit "C," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in stfikedifeugh PAGE 1 OF 2 - ORDINANCE NO. 2008-007 (2/25/08) Exhibit Page of Section 4. FINDINGS. The Board of Commissioners adopts as it findings in support of this amendment as in Exhibit "D" attached and incorporated by reference herein. Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS OF DESC1 UTES COUNTY, OREGON DENNIS R. LUKE, CHAIR ATTEST: Recording Secretary Date of I" Reading: Date of 2nd Reading: TAMMY MELTON, VICE CHAIR MICHAEL M. DALY, COMMISSIONER day of 12008. day of , 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Dennis R. Luke Tammy Melton Michael M. Daly Effective date: ATTEST: Recording Secretary day of 12008. PAGE 2 OF 2 - ORDINANCE NO. 2008-007 (2/25/08) Denotes section of the Code not amended in Ordinance 2008-007 Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS 18.04.010. Title. 18.04.020. Purpose. 18.04.030. Definitions. 18.04.010. Title. DCC Title 18 shall be known as the Deschutes County Zoning Ordinance of 1979. (Ord. 91-020 § 1, 1991) 18.04.030. Definitions. As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. "Amateur Radio Facilities" means the external outdoor structures associated with an operator's amateur radio service. This includes antennae, masts towers, _bu wires. and other antenna sLippprt structures that consist of solid tubular or open lattice metal structure not exceeding 25 inches on average in diameter or face width. "Amateur ("Ham") Radio Services" means radio communication services including amateur- satellite service and amateur service which are for the purpose of self-training intercommunication and technical investigations carried out by duly licensed amateur radio operators sole]), for personal aims and without pecuniary interest as defined in Title 47, Code of Federal Regulations, Par 97 and regulated there under. (Ord. 2008-007 § 1. 2008) PAGE 1 OF 1 - EXHIBIT "A" TO ORDINANCE 2008-007 (2/25/08) Chapter 18.116. SUPPLEMENTARY PROVISIONS 18.116.010. Authorization of Similar Uses. 18.116.020. Clear Vision Areas. 18.116.030. Off-Street Parking and Loading. 18.116.031. Bicycle Parking. 18.116.035. Bicycle Commuter Facilities. 18.116.040. Accessory Uses. 18.116.050. Manufactured Homes. 18.116.070. Placement Standards for Manufactured Homes. 18.116.080. Manufactured Home or RV as a Temporary Residence on an Individual Lot. 18.116.090. A Manufactured Home as a Temporary Residence for Medical Condition. 18.116.095. Recreational Vehicle as a Temporary Residence on an Individual Lot. 18.116.100. Building Projections. 18.116.200. Repealed. 18.116.120. Fences. 18.116.130. Hydroelectric Facilities. 18.116.140. Electrical Substations. 18.116.150. Endangered Species. 18.116.160. Rimrock Setbacks Outside of LM Combining Zone. 18.116.170. Solar Height Restrictions. 18.116.180. Building Setbacks for the Protection of Solar Access. 18.116.190. Solar Access Permit. 18.116.200. Repealed. 18.116.210. Residential Homes and Residential Facilities. 18.116.215. Family Childcare Provider. 18.116.220. Conservation Easements on Property Adjacent to Rivers and Streams-Prohibitions. 18.116.230. Standards for Class I and 11 Road Projects. 18.116.240. Protection of Historic Sites. 18.116.250. Wireless Telecommunications Facilities. 18.116.260. Rock Crushing Outside the SM Zone. 18.116.270. Conducting Filming Activities in All Zones. 18.116.280. Home Occupations. 18.1.16.290. Amateur Radio Facilities 18.116.290 Amateur Radio Facilities A. Amateur radio facilities that do not exceed 70 feet in height shall meet the following criteria: . Antenna support Structures includinyguy wires and anchors shall be located outside of the required fi-ont rear and side yard setbacks: 2. 's4etal structures shall have a galvanized finish or flat or matte silver, or flat or matte erav in color: 3. Amateur radio facilities shall not include attached signage. symbols, or decorations lighted or otherwise other than required unlighted signage for safety or reaulatory purposes; 4. The property owner shall obtain a valid building permit if required from the Deschutes COUnty Community Development Department Buildinp Safety Division; 5. Compliance with Federal Regulations PAGE 1 OF 3- EXHIBIT "B" TO ORDINANCE 2008-007 a. The property owner shall demonsll•ate compliance with applicable Federal Communications Commission (FCC) Federal Aviation Administration (FAA), and Oregon Department of Aviation (ODA) restrictions b. Compliance may be demonstrated by submitting copies of the FCC's F•AA's, and ODA's written determination to the Deschutes County Community Development Department Building Satety Division at time of application for a building permit: and FCC 1-icense a. The roperty owner shall provide documentation ofa current valid FCC Amateur Radio license for the operation of amateur ("I lam") radio services in the name of property owner. b. Compliance may be demonstrated by submitting a copy of the property owner's Amateur Radio License to the Deschutes County Community Development Department Building Safety Division at time of application for a building permit. B. Amateur radio facilities exceeding 70 feet in height including retractable amateur radio facilities ._that exceed 70 feet at_full.,:height and more than oneamateur ..radio facility- of anyheight on a..preperty_shatl comply wrth.follnwingrequirements: 1. The amateur radio facilities shall comply with the applicable standards setbacks and criteria of the base zone and am combining: 2. Neighborhood Mectinp a. The applicant shall provide written notice and hold a meeting with property owners of record within: 1. One thousand three hundred twentv (1.320) feet fi•om an applicants property lines for a facility, no greater than 100 feet in height and 2. Two thousand (2,000) feet from the applicant's property lines for a facility at least 100 feet _and_hp_highe r_than_:1>Q_feet in.hei_ght.. b., Notice of the neighborhood mccting shall be1n_~~~rtmg_and shall.,be. mailed no less thanlfjdavs_.prior to_the date of the meeting, c. Notice of the neighborhood meeting shall be in addition to the notice required by DCC Title 22. Submittal Requirements An amateur radio facility application shall include: a. A co of the written notice of the required neighborhood meeting, and a cend licate of• mailing showing that the notice was mailed to the list of propgtvoowners_falling within the notice area designated under DCC 18.1 16.290 (13)(1)(a b.Awritten summary of' the neighborhood meeting detailing the substance of the meeting, and a list of meeting attendees c. A site plan drawn to scale showing the setbacks the location of the proposed facili and its components. The site plan shall also identify the location of existing and proposed landscaping any equipment shelters utiliny connections and fencing proposed to enclose the facility. d. A cony of the design specifications including proposed colors and/or elevation of an antenna(s) proposed with the facility e. An elevation drawing of the facility f. A description and photos of topographic and vegetative screening from contiguous properties. g. 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. PAGE 2 OF 3- EXHIBIT "B" TO ORDINANCE 2008-007 4 Approval Criteria: An application for an amateur radio facility shall meet the following criteria: a The facile is sited using trees vegetation and topography to the maximum extent practicable to screen the facility from view of contiguous residential properties. h Any approval of an amateur radio facility shall include a condition that if the facility is left miused or is abandoned for more than one Year, the facility shall be removed by the landgwner. c. Amateur radio facility_ structures .includinig_.gu wires and anchors sliall be located outside of the rzguired frontt.rear and side vard setbacks. d.Metal structures _shall have a alvanized finish. or flat or matte.silver,_or, -rav._color: e. The maximum height of the facility shall not exceed 150 feet. f. Amateur radio facilities shall not include attached signiage, symbols, or decorations, liv,hted or otherwise other than required unlighted signage fbr safety or regulatory purposes. -g-The property owner shall obtain a building permit if required from the Deschutes County Community Development Department, Building Safety Division, h. Compliance with Federal Regulations. 1 The property owner shall demonstrate compliance with applicable Federal Communications Commission (FCC). Federal Aviation Administration (FAA), and Oregon Department of Aviation (ODA) restrictions. 2 Compliance may be demonstrated by submitting copies of the FCC's, FAA's, and ODA's written determination: i. FCC License 1. The property owner has a current, valid FCC Amateur Radio License for the operation of amateur ("Ham") radio services in the name of property owner. 2. Compliance may be demonstrated by submitting a copy of the properly owner's Amateur Radio License, and (Ord. 2008-007 S 2, 2008) Formatted: Indent: Left: 1", Tabs: 1.25", Left + Not at 0.88" PAGE 3 OF 3- EXHIBIT "B" TO ORDINANCE 2008-007 Chapter 18.120. EXCEPTIONS 18.120.010. Nonconforming Uses. 18.120.020. Nonconforming Lot Sizes. 18.120.030. Exceptions to Yard Requirements. 18.120.040. Building Height Exceptions. 18.120.050. Fill and Removal Exceptions. 18.120.040 Building height exceptions. A. The following structures or structural parts are not subject to the building height limitations of DCC Title 18: 1. chimneys, not more than three feet six inches above the highest point of the roof; vertical support structures for telephone and power transmission lines in utility easements or public rights-of-way, not requiring a site plan review as defined in DCC 18.124.060; flagpoles not exceeding 40 feet;, and agricultural structures as defined in DCC 18.04.030 not exceeding 36 feet, and amateur radio facilities as outlined in DCC "Title 18.116.290. This exception does not apply to an Airport Development Zone, Airport Safety Combing Zone or Landscape Management Combining Zone. B. The following structures or structural parts may receive exceptions to the building height limitations of DCC Title 18 if approved as part of a Site Plan Review, as defined in DCC 18.124.060 and subject to the criteria contained therein, public schools, vertical support structures for telephone and power transmission lines requiring a site plan, structures that are necessary for public safety and flagpoles. This exception does not supercede the more restrictive requirements that are found in the Airport Safety Combining Zone or Landscape Management Combining Zone. C. An exception (up to 36 feet) to the building height limitations for structures not otherwise exempted by DCC 18.120.040(A) may be approved upon findings that: 1. The structure is not located in a Landscape Management Zone, except when the structure is a single-family dwelling with an attached hangar located in an unincorporated community and the structure has a maximum height of 35 feet including chimneys, antennas, flagpoles or other projections from the roof of the structure; 2. The structure is not located within 100 feet of any rimrock, as defined in DCC 18.04.030; 3. After consultation with the applicable fire department, the proposed height does not exceed the height limitation of the department's fire fighting equipment, considering the evacuation of the building's occupants and the fire fighting requirements of the department; and 4. The proposed additional height will not adversely impact scenic views from existing nearby residences. 5. The proposed structure shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. D. An exception to building height limitations for agricultural structures may be approved upon findings that the applicant meets the criteria listed in DCC 18.120.040(C)(1) through (3) and demonstrates that the proposed structure is: 1. An agricultural structure as defined in DCC 18.04.030; 2. Located in an EFU or Forest zone; and 3. Necessary to conduct generally accepted farming practices that are typical or customary of Deschutes County farmers who are regularly involved in the proposed type of agriculture. The applicant shall document satisfaction of this criterion by submitting evidence or testimony from an authorized representative of the Deschutes County Farm Bureau. Formatted: Indent: Left: 0.25", Tabs: 0.5", Left + Not at 0.75" PAGE 1 OF 2 - EXHIBIT "C" TO ORDINANCE 2008-007 (Ord. 2008-007 § 3, 2008,Ord. 2001-033 §1, 2001; Ord. 2001-004 §3, 2001; Ord. 98-035 1998; Ord. 96-035 fl, 1996; Ord. 93-043 §20C, 1993; Ord. 92-055 §10, 1992; Ord. 92-036 §J, 1992) PAGE I OF 2 - EXHIBIT "C" TO ORDINANCE 2008-007 t it, 6 cr vl\ 3-7 ~ 3- U tS~l1 ~twde,r S-~~.e Swahe~- lei r i r ► - uo- I- Q(=-K p~ t n, l J a (P-P- 3 /1 Z s p y ~z