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2010-112-Minutes for Meeting February 17,2010 Recorded 3/1/2010DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK yd {I COMMISSIONERS' JOURNAL 11111111 oil 03/01/2010 02;00;12 PM 10-11 Do not remove this page from original document. Deschutes County Clerk Certificate. Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded at the request of [give reason] previously recorded in Book _ or as Fee Number to correct and Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, FEBRUARY 17, 2010 Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; and, for a portion of the meeting, Hillary Saraceno, Commission on Children & Families; Ronda Connor, Personnel; Tom Anderson, Nick Lelack and Paul Blikstad, Community Development; and eight other citizens including representatives of the media. Chair Luke opened the meeting at 2: 00 p.m. The meeting started later than usual due to the annual meeting of the Board and Black Butte Ranch Managing Board earlier in the day. 1. Volunteer Center Update. Jim Schell of the Partnership to End Poverty, John McLaughlin of the Commission on Children & Families, and Betsy Warriner of Volunteer Connect, gave an overview of the work they have been doing. They bring fundraising, marketing and business development expertise to various groups. The partnership is interested in Volunteer Connect because a volunteer center concept is overdue in this area. They serve low-income residents, as do most of the nonprofits. The County is woefully short of mentors, and this void can only be filled by volunteers. Also, a couple of demographics will be a focus point - young adults and gated community folks - who have a lot to offer the community. The organization consists of sixty people, and 60,000 people need help in the region. A volunteer center would help to leverage these numbers. Betsy Warriner said that Volunteer Connect went into effect in January, and 300 volunteers from six communities in Central Oregon are now involved. Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 1 of 6 Pages Also, 134 volunteers have referred themselves on line. The formal launch event is planned for February 25, to be held at the Humane Society of Redmond's event center. There are various types of volunteers who can help in a variety of ways. Some volunteers are willing to do work on an ongoing basis. Others are one-time volunteers for special situations. Corporate programs help with programs such as Leadership Bend. Volunteer Insights features the service learning program, which gets students involved. Commissioner Unger asked if they have a space where they handle business. Ms. Warriner said that various governmental agencies are being contacted, and it is likely there will be a number of locations so that the group can better serve the entire region. Hillary Saraceno thanked Ms. Schell and Ms. Warriner for their work. The establishment of a volunteer center is an important part of the Commission on Children & Families' Community Plan. 2. Discussion of Whether to Hear an Appeal on a Conditional Use Permit for a Wireless Facility (Cline Buttes). Paul Blikstad gave an overview of the issue. The application was denied by the Hearings Officer primarily based upon the issue whether two towers in non- resource land would have the same effect as one tower in resource land. This brought up citing criteria in the EFU zone (seepage 5 of the decision). There was some opposition from residents of Eagle Crest. The height of the tower also was reduced from 90 feet to 60 feet. Commissioner Unger asked why it has to be that high if it is on a butte. Mr. Blikstad said that Code encourages co-location. The applicant indicated that the one tower now there is not capable of being an additional provider. Dave Kanner said that federal law does not require co-location, although it is to be encouraged. Mr. Blikstad said that Code review is not required in co-location cases, making it easier for all involved. Mr. Blikstad suggested the Board to hear this because there might be a policy issue to be addressed regarding having two towers on non-resource land versus one on resource land. The applicant feels that the coverage needs to extend further west and that two towers will not do this. (Seepage 12 of the Hearings Officer's decision.) Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 2 of 6 Pages Commissioner Unger feels that resource land is basically other than residential. He thinks there is very little non-resource land in that area, and it is not on a butte. He feels that the tower would be best placed on resource land such as a surface mining site; adding that this might be a better location than next to residential. Laurie Craghead said that the idea is to use resource land for what it was originally intended. Another issue is whether this could have been brought up to the Hearings Officer prior to the record closing. Commissioner Unger asked if specific locations were suggested. Mr. Blikstad said that the response was non-specific, just that there are other places they could consider. Commissioner Unger asked about the coverage issue; it sounds like four towers are already being considered along Highway 97. Mr. Blikstad stated that they may have been talking about the whole system. It is unknown what the coverage might be with two towers. The applicant seems to indicate that they did not know that they were to select two sites, and what the coverage might be. Commissioner Luke said this is a decision that appears to be based on a policy that the County may or may not have. Laurie Craghead said that it is hard to anticipate how much LUBA will weigh in on this, but they could be making a policy decision for the County, based on State law. The Code used by the Hearings Officer indicates that the County would not be given deference by LUBA in this situation. Commissioner Unger is frustrated at the lack of determinations in other areas where this has probably been addressed previously. Ms. Craghead said that the Hearings Officer is very thorough and was not able to find anything having to do with placing and using two towers instead of one. Commissioner Unger stated that they seem to want to have a series of towers that hand off coverage along the road. Ms. Craghead said that if it were appealed to LUBA, that agency would make its own interpretation based on State law. Commissioner Luke stated that it is clear staff would like to have some direction. Commissioner Baney would hear it if it adds value to the issue. Commissioner Unger feels that he would like to hear more about two towers versus one. Ms. Craghead said that this would require a full de novo hearing. Commissioner Luke stated that limited de novo makes it too difficult to ask certain questions. Commissioner Baney would like to be sure that the Board stays focused, however. Commissioner Unger prefers full de novo so that all pertinent information can be obtained. Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 3 of 6 Pages Mr. Blikstad stated that resource versus non-resource land is the main decision point. Commissioner Unger stated that sometimes it would make sense to allow this type of facility on resource land. BANEY: Move approval of hearing this issue full de novo. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 3. Discussion of Benevolent Food Handler Permits. Tom Anderson gave an overview of the program. There are fixed location benevolent groups, such as the Bethlehem Inn, whereby the practice is to waive the fee; and there is a wide variety of groups that set up at various events, and the license fee is discounted for them. Due to the dire financial situation at Community Development, a County subsidy of the discounts was requested and was granted in 2009. The total cost was about $9,000. Mr. Anderson asked for the same consideration last July and the Board agreed to waivers for the fixed locations, but wanted an update on the others before deciding whether to cover that cost. The temporary license amounts fluctuate a little bit each year. Commissioner Luke asked what funded this in the past. Mr. Anderson said it was covered by licensing fees from other restaurants. $3,750 will cover the temporary fees. In July, it would cost about $9,000. Mr. Kanner said that the cost really is borne by the for-profits that pay the entire amount. He said the County has to do the 50% discount anyway. The Board agreed to cover this additional cost since the work is required. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 4 of 6 Pages 4. Update of Commissioners' Meetings and Schedules. The Deschutes Water Alliance met last week; progress is being made, per Commissioner Unger. There are many challenges, and Oregon is one of the few states that does not have an integrated water plan. Commissioner Baney attended the Governor's Forum with representatives of the Department of Human Services, and they had a conversation around how the State can work well with counties to rebalance unfunded mandates, and how to successfully address outcomes and objectives that the State wants the counties to meet. Ultimately, the State wants these issues handled as a region. This concept is foreign to many who have not yet done this before. She felt the conversation was positive, but anticipates the process will take some time. 5. Other Items. Commissioner Baney said that concerning House Bill 3640, sponsored by Senator Chris Telfer, personal property tax liability would be canceled for manufactured structures that are assessed at $12,500 or less. At this time, it covers only counties with a population of 340,000 or more. Senator Telfer stated that this might be amended to include other counties, regardless of population. Commissioner Unger worried that this encourages people to stay in substandard dwellings. Commissioner Baney noted that when people leave these residences, there is no continuum of where they can go next. Commissioner Unger said that this might affect people who are losing their housing due to the sale of mobile home parks. If it passes, it might be amended in the future. Marty Wynne, Finance Director, asked whether the Board might agree to him putting together a special proclamation recognizing a staff person in his department for years of service, to be presented at the February 24 Board meeting. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 5 of 6 Pages Commissioner Baney said that she met with a citizen and Joe Studer regarding issues with wood smoke in the area. A letter has been drafted requesting that the District Forester place a smoke monitor nearby, to be paid by the U.S. Forest Service. There may be no resolution to this problem, considering where this person lives, but the parties seem willing to assist as much as possible. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. At 3:10 p. m., the Board convened as the Governing Body of the 911 County Service District and went into executive session under ORS 192.660(2) (b), to address a personnel issue. No formal action was taken afterwards. Being no further items addressed, the meeting adjourned at 3:45 p.m. DATED this 17th Day of February 2010 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary D nnis R. Luke, Chair -a&., Alan Unger, Vice Chair^ Tammy Baney, Comriiiissioner Minutes of Board of Commissioners' Work Session Wednesday, February 17, 2010 Page 6 of 6 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orl? WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 2:00 P.M., WEDNESDAY, FEBRUARY 17, 2010 PLEASE NOTE LATER TIME! 1. Volunteer Center Update - Jim Schell, John McLaughlin, Jessica Knight 2. Discussion of Whether to Hear an Appeal on a Conditional Use Permit for a Wireless Facility (Cline Buttes) - Paul Blikstad 3. Discussion of Benevolent Food Handler Permits - Tom Anderson 4. Update of Commissioners' Meetings and Schedules 5. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; (2) (h), pending or threatened litigation; (2) (d), labor negotiations, and/or (2) (b), personnel issues. Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. Ifyou have questions regardinga meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. ~ , Eck ~b o E5 N vs ~1 e~ ~ ~ .~jJ E ~ ^F U V H~ I -4- f,A M N~ s ~ r~" ~ ~ tom, \ C~ t 4 J4 , z co d. o w Celebration Feb 25 Grand Launch Celebration ! Dear Elizabeth, Come join Volunteer Connect to celebrate the official opening of our new regional volunteer center, Thursday, February 25th, 5 - 7pm, hosted by the Humane Society of Redmond, one of our community partners. Celebrating Central Ore; Humane Society of Redmond Where & When Von's Communities The Volunteer Connect website has been up and running for one month and currently has generated 125 volunteer referrals to its 52 partner agencies in Crook, Deschutes, and Jefferson Counties. Event Center We invite you to come celebrate this beginning and our Humane Society of expanding future! We will provide food, information, Redmond reflection, fun, and fellowship. 1355 NE Hemlock RSVP by contacting Betsy Warriner Redmond, Oregon betsy@volunteerconnectnow.org 97756 Thursday, February.25, 2010 5:OOPM - 7:OOPM 2/17110 1:30 PM Lead Sponsor http://campaign.constantcontact.com/render7v=001-Z4x8hfWYWJA9-1...06yVvgB19B4Tuip9ZvbHfo5Ja32aPiMtMIQxkKsglPSupgglqGJRitNUQ963D%3D Page 1 of 2 Celebration Feb 25 We would like to thank our lead sponsor BendBroadband for supporting our region's new bendbroadband- volunteer center. we're the local dog. we better be good. Volunteer Connect Volunteer Connect links volunteers with opportunities to serve in 115 NW Oregon, #26 Central Oregon. Bend, Oregon 97701 541-385-8977 v(@-volunteerconnectnow. ores http:a/www.volunteerconnectnow. org Forward email 2/17/10 1:30 PM Email Marketing by CO SafeUnsubsaribe This email was sent to betsy@volunteerconnectnow.org by betsv(cbvolu nteerconnectnow.org. Uodate Profile/Email Address Instant removal with SafeUnsubscribeT" Privacy Policy. QnAiqt~ TRY IT FREE Volunteer Connect 115 NW Oregon Ave. #26 Bend I OR 97701 http://campaign.constantcontact.com/render7v=001-Z4k8hfWYWJA9-1 ...06yyvgB19B4Tuip9ZvbHfo5Ja32aPiMtMIQxkKsglPSupOjglgGJRitNUQ%3D%3D Page 2 of 2 2 Community Development Department O 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/ MEMORANDUM DATE: February 17, 2010 TO: Board of County Commissioners FROM Tom Anderson, Community Development Director SUBJECT: Support for Temporary Benevolent Food Service Licenses Background: State law requires local jurisdictions to charge a reduced fee for food preparation/service licenses for benevolent organizations. The practice in Deschutes County has been to waive the fee entirely for permanent benevolent establishments (see attached list) and charge a deeply reduced fee for temporary licenses (also shown on attachment). In FY 2008-09, in recognition of the difficult financial situation in CDD, the Board elected to cover the cost of providing these waivers and discounts though a transfer to CDD. The cost was approximately $9,000. In June, 2009, the Board elected to cover the cost of fee waivers to permanent benevolent establishments ($5,245) in FY 2009-10, but desired to wait until the second half of the year to decide on covering the cost of the discounted rate for temporary licenses associated with benevolent organizations, in order to assess CDD's financial situation at that time. Development volume and permit activity has not improved in Deschutes County. The financial situation with the respect to the department remains critical. Issue: The estimated cost to CDD of providing the fee discounts for temporary licenses is $3,750, which is the amount requested for transfer. Requested Action: Decide whether to transfer an additional $3,750 in FY 2009-10 to subsidize the discounts provided to benevolent organizations for temporary food preparation/service licenses. Additional Discussion Item: Eric Mone, Supervising Environmental Health Specialist, has been serving on a work group convened by the State Department of Human Services to examine to cost of temporary food service license fees. Eric will attend the work session to provide an update on those discussions. Quality Services Performed with Pride I a 2008-09 EXEMPT FACILITIES NAME OF FACILITY Bend Community Center Bethlehem Inn City Center Foursquare La Pine Community Kitchen La Pine Senior Center Redmond Senior Center Sisters Senior Center TOTAL EXEMPT AMOUNT NUMBER FEE FEE IF NOT OF SEATS CHARGED EXEMPT 250 0 $865.00 50 0 $650.00 25 0 $650.00 75 0 $770.00 140 0 $770.00 100 0 $770.00 80 0 770.00 $5,245.00 1 cc) Cflto~coioO~D0000coco~~~~~~vvvvv v-4-4 v•4v ID CJl W OAO W 0G7 W OtG~-~O OOC11~1N OCntnA AA W CA W W W N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N m O O O O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 OD OD co 000 OD OOD 000 OD coo 000 000 000 OD 000 000 OD OD OOD 000 OD coo OD 000 000 OD 000 007 OD 000 OD 'vmcoco) SS;acaom 0 <90>coca coCorrrW CDCOSSS9 s w m c w m m m m w° m a c .y ?w w w m m " w m e w > Crw n° ° 3 --coam n (D~ MvMao W~ cna.m CL CL Wfl ~ o ot@ 0) o c m tai m m'rn'm ?3 S x .0 cfl m C -u>> O m o ~nno~ (DD O W DSao< -n i m Oo :3 :r (D ~3Cmc~CD 3'wco°aNCO~.n 00 CL 0 ?m3yC 3ccD no0 o m Cl) ~CD cRD r M@o~ CD D tOp cc cT cT > ° m 3 ° o v~ w N a m ? 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Initially the citizen was convinced the smoke was coming from the Forest Service prescribed fires but after some dialog and looking at pictures it was clear that her concerns came from all contributors of smoke and not just actions by a single agency. Representatives from the Forest Service and the Deschutes County Forester were present at the meeting and we discussed the types of activities which contributed to smoke in the area along with the inversions typical in fall, winter and spring which trap smoke. The citizen was surprised at all the contributors of smoke and had a keen interest in treating fuels for biomass, compost or other recycling methods and now has the information about the magnitude (acres) that need to be treated to prevent catastrophic wildland fires. One area of agreement was that we really don't have metrics to measure air quality during periods of prescribed burning and other contributors such as door yard and industrial burning on private lands, and smoke from wood burning stoves. Consequently we have a request for Oregon Department of Forestry (ODF) to assist with that information. The Deschutes County Board of Commissioners request ODF contact the Oregon Department of Environmental Quality to begin monitoring air quality during peak times of smoke from prescribed burning and other burning activities. We believe those time periods are late fall, winter and early spring when activities along with inversions may cause air quality issues particularly to those citizens who are sensitive to smoke. We ask that your agency coordinate those times with the federal agencies, permitted burning on state protected lands and the local fire district in the Sisters area. We would also ask to be briefed on the findings of the monitoring activities and work together for a communication strategy for the public during these time periods. Deschutes County Forester Joe Stutler will be our point of contact for this issue and we look forward to any assistance you can provide. Sincerely, Deschutes County Board of Commissioners Dennis R. Luke, Chair Alan Unger, Commissioner Tammy Baney, Commissioner Cc John Allen, Forest Supervisor Deschutes National Forest Bill Anthony, District Ranger, Sisters Ranger District Debbie Norton, District Manager, Prineville BLM Tay Robertson, Chief, Sisters Camp Sherman Fire District Thad Olson, Chief Cloverdale Fire District Chris Hoff, Chief COFMS Eileen Stein, Sisters City Manager BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PROCLAMATION Whereas: It is a countywide goal to ensure fiscal responsibility in all aspects of county operations; Whereas: It is the mission of Deschutes County's Finance Department to provide timely and comprehensive financial services of the highest quality in a cost-effective manner while adhering to the highest ethical standards; Whereas: A knowledgeable and experienced Finance staff is critical to the Finance Department's mission; Whereas: It is important to recognize dedicated and hard-working staff that have made significant contributions in ensuring fiscal responsibility in the County; Whereas: It is especially important to recognize staff that have been dedicated and hard-working over a long period of time; Now, Therefore, We, the Board of Commissioners of Deschutes County, hereby proclaim that Cheryl Circle is, and has been for approximately 35 years, a very dedicated and hard-working employee of Deschutes County and that her commitment and devotion to providing excellent financial services to the citizens of Deschutes County and Deschutes County departments is greatly appreciated. DATED this day of ATTEST: Recording Secretary 2010. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, Chair ALAN UNGER, Vice Chair TAMMY BANEY, Commissioner rrociamation - Cheryl Circle Page 1 of 1 Wednesday, February 24, 2010 ~ JAES c Q %1 ~~rn w 2~ O { 1 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora AGENDA REQUEST & STAFF REPORT For Board Business Meeting of Monday, February 22, 2010 Please see directions for completing this document on the next page. DATE: February 3, 2010 FROM: Paul Blikstad Department CDD Phone #6554 TITLE OF AGENDA ITEM: Determination of whether to hear an appeal of the Hearings Officer's decision denying a wireless telecommunications facility in the Surface Mining Zone. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: The County Hearings Officer denied application no. CU-09-60, a Conditional Use Permit for a wireless telecommunications facility consisting of a 60-foot monopole and associated ground equipment in the Surface Mining Zone. The proposed site is located at the top of the North Cline Butte near Eagle Cast. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REOUESTED: Staff recommends that the Board hear the appeal. ATTENDANCE: Paul Blikstad, CDD DISTRIBUTION OF DOCUMENTS: Planning staff will mail an order once the Board decides whether or not to hear the appeal. - - 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/ MEMORANDUM DATE: February 3, 2010 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Appeal of Hearings Officer's decision on CU-09-60 BACKGROUND KBARD LLC submitted an application for a conditional use permit for a wireless telecommunications monopole (with associated ground equipment) in the Surface Mining Zone. This particular telecommunications site is on the top of the northerly Cline Buttes butte (there are three buttes that make up Cline Buttes). The proposal was originally for a 90-foot tall monopole, and the applicant amended the application to reduce it to a 60-foot monopole to try and address the concerns of the opponents, who were essentially all Eagle Crest property owners. Additionally, with the reduced height, the number of carriers the facility could accommodate was also reduced from 4 to 3. A public hearing on the application was originally scheduled before the County Hearings Officer on October 13, 2009. The applicant requested a continuance of the hearing, which was granted to November 10, 2007. The written record was left open until November 25, 2009 for additional written testimony. The applicant submitted an email message on December 2, 2009, indicating that he would not be submitting any additional information. The Hearings Officer issued her written decision on January 15, 2010, denying the application. The applicant appealed the denial within the 12-day appeal period. The County Code and State law also require a maximum 150-day review period for land use proceedings with the County. The Hearings Officer found that the 150-day review period will end on April 12, 2010. There appears to be adequate time to hear the appeal. DECISION The Hearings Officer denied the application based on her findings that "the applicant failed to demonstrate that AT & T must site its proposed wireless telecommunications facility on the SM- zoned property because there are no feasible or available alternative sites on non-resource land - i.e. RR-10 zoned land in AT & T's desired service area." The findings for this are on pages 6- 14 of her decision. Because the Surface Mining zone is considered a "resource" zone, the applicant is required to show an alternatives analysis for demonstrating why siting the wireless Quality Services Performed with Pride telecommunications on resource land is necessary, as outlined under ORS 215.275 and Deschutes County Code 18.16.038(A). Staff notes that the Hearings Officer addressed all applicable criteria after the findings on the alternatives analysis, with the statement on page 14: "Nevertheless, because this decision may be appealed to the Board of County Commissioners, I include in this decision findings on the remaining approval criteria." APPEAL The applicant appealed the decision. The notice of appeal states: "The Hearings Officer concluded that the applicant met all of the approval criteria except one. The single instance that the Hearings Officer concluded the applicant did not meet a criterion is summarized on page 12 of the decision: Accordingly, l find the applicant has failed to demonstrate that a wireless telecommunications facility consisting of two towers on RR-10 zoned land within the desired service area would not be suitable or available for siting of AT & T's proposed BD57 facility. In reaching this conclusion, the Hearings Officer failed to consider one of the coverage objectives outlined in the application - west toward Sisters along Highway 126. The applicant clearly stated in the application, and the Hearings Officer quoted on page 9 of the decision that if forced to use Rural Residential land, at least two towers would be needed, neither of which would extend coverage very far west along Highway 126." The applicant has requested a de novo hearing "in order to supply additional information that no sites in the Rural Residential zone will provide AT & T the signal coverage they are trying to obtain, especially along Highway 126." 1 am submitting for your review the following: ■ The applicant's notice of appeal ■ Hearings Officer's decision ■ Vicinity map showing the location of the proposed telecommunications facility Please contact me at your convenience if you have any questions. I have scheduled a discussion on this appeal for Wednesday, February 17, 2010, for the Board to decide whether to hear the appeal. Community Development Department 117 &w e„ mod. OR 977®1-1925 [541) 35 75 -l=aic t541) 985-17114 ham:// dcsch _org/c dd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal, 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): KBARD LLC Phone: (503) 469-0234 Mailing Address: 2495 NW 121 st Place City/State/Zip: Portland OR 97229 Land Use Application Being Appealed: CU-09-60 Property Description: Township 15 Range 12 Section Tax Lot 4700 Appellant's Signature: / , Z V s, EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR JP HEARING OR, FOR ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRIT ES. JAN ~ ~ 210 (over) J T/ 7/09 NOTICE OF APPEAL The Hearings Officer concluded that the applicant met all of the approval criteria except one. The singie instance that the Hearings Officer concluded the applicant did not meet a criterion is summarized on page 12 of the decision: "Accordingly I find the applicant has failed to demonstrate that a wireless telecommunications facility consisting of two towers on RR-10 zoned land within the desired service area would not be suitable or available for the siting of ATVs proposed BD57 facility." In reaching this conclusion the Hearings Officer failed to consider one of the coverage objectives outlined in the application - west towards Sisters along Highway 126. The applicant clearly stated in the application and the Hearings officer quoted on page 9 of the decision that"... if forced to use Rural Residential land at least two towers would be needed neither of which would extend coverage very far to west along Highway 26." The applicant requests a de novo hearing in order to supply additional information documenting that no sites in the Rural Residential zone will provide AT&T the signal coverage they are trying to obtain, especially along Highway 126. Print Map Page 1 of 1 ICI/,& No. r,,B.,J t~~ d (vo?S 85 Cll;wmo F611s Road, ~"~o+ 16o.12, 4voc lob 4700 http://lava5.deschutes.org/mox5/indexintranet.cfm?action=mox52_view )rintablemap 8/25/2009 EXHIBIT C DECISION OF DESCHUTES COUNTY HEARINGS OC FILE NUMBER: CU-09-60 APPLICANT: KBARD, LLC' c/o Kevin M artin i 0 m 2495 N.W. 121St Place ~ i Portland, Oregon 97229 PROPERTY OWNER: Trail Crossing Revocable Trust sz 16450 S.W. Trail Crossing Road Terrebonne, Oregon 97760 REQUEST: The applicant requests conditional use approval to establish a wireless telecommunications facility consisting of a 60-foot cellular monopole, antennas and ground equipment within a fenced compound on a parcel zoned SM and located on the northernmost of the three Cline Buttes southwest of Redmond. STAFF REVIEWER: Paul Blikstad, Senior Planner HEARING DATES: October 13 and November 10, 2009 RECORD CLOSED: December 2, 2009 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.52, Surface Mining Zone (SM) * Section 18.52.050, Conditional Uses Permitted * Section 18.52.060, Dimensional Standards 2. Chapter 18.116, Supplementary Provisions * Section 18.116.250, Wireless Telecommunications Facilities 3. Chapter 18.128, Conditional Use 1 The applicant's burden of proof states it submitted the application on behalf of New Cingular Wireless PCS, LLC/AT&T Mobility. KBARD CU-09-60 Page_1 of 30...... * Section 18.128.015, General Standards Govcrning Conditional Uses * Section 18.128.3309 Microwave and Radio Communication Towers in the SM Zone * Section 18.128.340, Wireless Telecommunications Facilities B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances andi Record Extensions II. FINDINGS OF FACT: i A. Location: The subject property is located at 67585 Cline Falls Road, Redmond, and is further identified as Tax Lot 4700 on Deschutes, County Assessors Map 15-12. B. Zoning and Plan Designation: The subject property is zoned Surface Mining (SM) and is designated SM and Agriculture on the Deschutes County Comprehensive Plan Map. C. Site Description: The subject property is approximately 159 acres in size and irregular in shape. It occupies most of the upper portion of the northernmost of the three Cline Buttes (hereafter "north butte.") The north butte has relatively steep topography as well as relatively level areas at the top. The subject property currently is developed with a surface mine (SM Site 252) located on 60 acres near the southeast corner of the property. The mining site has access from an existing paved and gravel road extending northwest from Cline Falls Road. The un-mined portions of the subject property have a moderate cover of juniper trees and native brush and grasses. In addition, a high-voltage electric transmission line owned and operated by Central Electric Cooperative (CEC), and consisting of poles and metal conductors, crosses the north butte along its eastern and northern slopes. D. Surrounding Zoning and Land Uses: Most of the surrounding property is zoned EFU and is in both public (BLM) and private ownership. On the west and north the subject property also abuts portions of Phase 3 of the Eagle Crest destination resort that are developed primarily with residential uses. E. Procedural History: The record indicates there has been mining activity on the north butte since at least 1973. The record includes a site plan drawing showing the mining areas. In 1990 the county added the subject property to its inventory of significant mineral and aggregate resources as SM Site 252. In May of 2001 the county approved a surface mining site plan for a storage area and two storage buildings (SP-0I-16). The subject conditional use application was submitted on August 21, 2009 and was accepted by the county as complete on September 21, 2009. Therefore, the 150-day period for issuance of a final local land use decision under ORS 215.427 would have expired on February 18, 2010. A public hearing on the application was scheduled for KBARD CU-09-60 Page-2-o - October 13, 2009. By an electronic mail message dated October 12, 2009 the applicant's representative Kevin Martin requested a continuance of the hearing. Because the continuance request was submitted after notice of the public hearing was published, the Hearings Officer opened the hearing on October 13, 2009, received testimony and evidence, and continued the hearing to November 10, 2009. On November 10, 2009 the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Senior Planner Paul Blikstad. At the continued public hearing on November 10, 2009, the Hearings Officer disclosed her observations and impressions from the site visit. In addition, the applicant revised its proposal by reducing the height of the proposed monopole from 90 to 60 feet and reducing the number of carriers the facility could accommodate from four to three. The Hearings Officer determined at the hearing that the applicant's proposed revision did not constitute a modification requiring a modification application, and received testimony and evidence on the revised proposal. The Hearings Officer left the written evidentiary record open through November 25, 2009, and allowed the applicant through December 4, 2009 to submit final argument pursuant to ORS 197.763. On December 2, 2009 Mr. Martin submitted an electronic mail message stating he would not be submitting any additional information, and the record closed on that date.2 Because the applicant requested a continuance of the public hearing from October 13 to November 10 (a period of 28 days) and agreed to extend the written record from November 10 through December 2, 2009 (a period of 22 days), under Section 22.24.140 of the county's land use procedures ordinance the 150-day period was extended for 50 days and now expires on April 12, 2010.3 As of the date of this decision there remain 88 days in the 150-day period. F. Proposal: The applicant requests conditional use approval to establish a wireless telecommunications facility, referred to by the applicant as site "BD57," on a two-acre leased area at the top of the north butte. The facility site would consist of a 64-foot- square compound enclosed with a 6-foot-tall perimeter cyclone fence, within which would be installed a 60-foot-tall free-standing steel monopole with three cellular telephone antenna arrays at various heights, microwave dishes two to three feet in diameter, and a 12-foot by 26-foot concrete pad on which would be installed several equipment cabinets. As discussed in the findings above, the applicant's original proposal was for a 90-foot-tall monopole that would have accommodated antennas for four wireless telecommunications. providers. The applicant's revised proposal for a 60-foot- tall monopole would accommodate three carriers, each with the basic configuration of 12 cellular telephone antennas and one microwave dish. The applicant's antenna installation would occupy the 60-foot level of the tower with up to 12 cellular telephone antennas at that level and one microwave dish at the 15-foot level. The proposed facility would have underground electrical service provided by Central 2 The applicant's representative submitted an electronic mail message dated December 3, 2009 that included additional evidence. However, because the evidentiary record closed on November 25, 2009 the Hearings Officer cannot consider this evidence. 3 The extended 150'h day falls on Saturday, April 10, 2010. KBARD CU-09-60 _____P_age_.3 -.of .30 Electric Cooperative (CEC) and telephone service through a microwave dish installed on the monopole. Because the facility would not be manned, no water or sewage facilities would be provided on the site. Most of the facility components would be constructed of non-combustible materials. The facility would not be lighted. Access to the facility would be from an extension of the private paved and gravel roadway leading from Cline Falls Road to and through the existing surface miming site. Following construction of the facility vehicle traffic would consist of 1-2 trips per month by AT&T staff for routine maintenance. G. Public/Private Agency Comments: The Plannil g Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Assessor's Office, Building Division, and Senior Transportation Planner: the City of Redmond Fire Department; the Oregon Department of Transportation-Aeronautics (ODOT-Aeronautics) and the Oregon Department of Aviation; the US Bureau of Land Management;(BLM); Pacific Power; and CEC. These comments are set forth verbatim at pages 2-4 of the staff report and are included in the record. The following agencies did not respond to the request for comments: the Deschutes County Road Department and Property Address Coordinator; the Oregon Department of Water Resources, Watermaster District 11; the Oregon Department of Environmental Quality; and Qwest. Agency comments are addressed below. H. Public Notice and Comments: The Planning Division mailed individual written notice .of the applicant's proposal and the initial public hearing to the owners of record of all property located within 2,250 feet of the subject property. The notice area was increased from 500 to 2,250 feet because of the 90-foot height of the original proposed monopole. In addition, notice of the public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received 26 letters from the public in response to these notices. In addition, four members of the public testified at the public hearing. Public comments are addressed in the findings below. 1. Lot of Record: The subject property constitutes a legal lot of record in conjunction with Tax Lot 4701 on Assessor's Map 15-12 based on a lot-of-record determination included in the decision in SP-O1-16 that approved the subject property's surface mining site plan. III. CONCLUSIONS OF LAW: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining (SM) Zone a. Section 18.52.030, Conditional Uses Permitted A. The following uses are permitted subject to the conditions set forth in DCC 18.128: i KBARD CU-09-60 - Page_4 of.30-. 5. Wireless telecommunications facilities that are necessary to be sited in the SM Zone for the public service to be provided. FINDINGS: The applicant proposes to establish a wireless telecommunications facility as part of the existing New Cingular Wireless PCS/AT&T Mobility cellular telephone network. Wireless telecommunications facilities are allowed in the SM Zone if they are "necessary to be sited in the SM Zone for the public service to be provided." This language is similar to the language in Section 18.16.025 allowing "utility facilities necessary for public service" in the EFU Zone. In two previous decisions, the county's hearings officers have held the above-quoted language in the SM Zone essentially replicates the EFU Zone "utility facility" approval standards inasmuch as the SM Zone also is a "resource zone." AT&T Mobility (CU-08-79); AT&T Mobility (CU-09-18). The Hearings Officer agrees with this holding and applies it here. However, neither of these decisions discusses what, if any, effect the language in Section 18.16.025 requiring site plan review for "utility facilities necessary for public service" has on wireless telecommunications facilities on SM-zoned land. In several previous decisions, the county's hearings officers have held that under Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995) and T-Mobile USA v. Yamhill County, 55 Or LUBA 83 (2007), the county cannot require either site plan review or conditional use approval for wireless telecommunications facilities in the EFU zones because Sections 18.16.025 and 18.16.038 were adopted to implement the provisions of ORS 215.283 and 215.275, respectively, which establish the exclusive approval standards for transmission facilities in the EFU Zones. However, because Brentmar applies only to utility facilities in the EFU Zone, the Hearings Officer finds, as the county's other hearings officers implicitly found, that the only EFU Zone "utility facility" approval standards applicable to wireless telecommunications facilities in the SM Zone are those set forth in Section 18.16.038(A). That is because those standards use "necessary for public service" language very similar to the language in Section 18.52.030(A)(5) of the SM Zone. Section 18.16.038(A) states: A. A utility facility necessary for public use allowed under DCC 18.16.025 shall be one that is necessary to be situated in an agricultural zone in order for service to be provided. To demonstrate that a utility facility is necessary, an applicant must show that reasonable alternatives have been considered and that the facility must be sited in an exclusive farm use zone due to one or more of the following factors: 1. Technical and engineering feasibility; 2. The proposed facility is locationally dependent. A utility facility is locationally dependent if it must cross land in one or more areas zoned for exclusive farm use in order to achieve a reasonably direct route or to meet unique geographical needs that cannot be satisfied on other lands; KBARD CU-09-60 ...Page.5 of 30 3. Lack of available urban and nonresource lands; 4. Availability of existing rights of way; 5. Public health and safety; and 6. Other requirements of state and federal agencies. 7. Costs associated with any of the factors listed in 1-6 above may be considered, but cost alone may not be the only consideration in determining that a utility facility is necessary for public service. Land costs shall not be included when considering alternative locations for substantially similar utility facilities that are not substantially similar. (Underscored emphasis added.) The Hearings Officer finds that applying these standards to the proposed facility on SM-zoned land, the applicant must demonstrate that: • it considered reasonable alternatives to siting the facility on SM-zoned property; and • the proposed facility must be located on the SM-zoned subject property because of at least one of the locational factors set forth above. 1. Interpretation of Statutory Requirements. The meaning of the EFU Zone approval criteria for utility facilities in ORS 215.275, implemented by Section 18.16.038(A), has been the subject of several LUBA and court decisions. The most comprehensive discussion is found in Sprint PCS v. Washington County, 42 Or LUBA 512 (2002), and the Court of Appeal's decision affirming LUBA's decision (186 Or App 470, 63 P.M 1261 (2003)). LUBA remanded the county's decision denying an application for a wireless telecommunications facility on EFU land. On appeal, after a lengthy discussion of the text, context and legislative history of the statutory language, the court held the term "reasonable alternative" refers to a site not on EFU land that achieves the applicant's service objectives, and that when deciding whether it is necessary to site a public utility facility on EFU-zoned land local governments must analyze any alternative sites based on the factors in ORS 215.275. In Sprint the court also considered whether and to what extent local governments may defer to the applicant's stated service objectives in determining whether there are reasonable alternatives to siting the proposed facility on EFU-zoned land. The court held that local governments may consider the utility applicant's objectives in evaluating the reasonableness of alternative sites, and that there is nothing in ORS 215.275 that requires a utility applicant to consider a different methodology for providing the utility service in order to place its facility on non-EFU land. However, the court also held that ORS 215.275 implies an obligation on the part of a utility to consider different facility designs in order to adapt the applicant's chosen methodology to non- EFU alternative sites. The court agreed with LUBA that at some point the difference between the applicant's proposed design and an alternative design that would permit siting on non-EFU land could become so great that a non-EFU site could not; be considered a "reasonable alternative." KBARD CU-09-60 Page .6 of30._ Finally, the court held that in determining what constitutes a "reasonable alternative" site, local governments should be guided by the overarching statutory goal i.e., the provision of necessary public utility service - and if the utility's objectives can be met by siting a facility with a different design on non-EFU land, the local government cannot find the proposed facility must be sited on EFU-zoned land to provide the utility service. Because the Hearings Officer has concluded the approval standards in Sections 18.52.030(A)(5) and 18.16.038(A) are so similarly worded, I find it is appropriate for me to follow these statutory interpretations in applying the EFU Zone "utility facility" approval standards to the applicant's proposed wireless telecommunications facility on the SM-zoned subject property. 2. AT&T Mobility's Obiectives. In Sprint, the court held that "reasonable alternatives" are sites that: (1) achieve the applicant's service objectives: and (2) provide telecommunications services to the public. The applicant's burden of proof describes AT&T's service objectives in pertinent part as follows: "KBARD LLC is proposing to construct a tower to accommodate New Cingular Wireless PCS LLCIAT&T Mobility (AT&T), one of the largest domestic providers of wireless Personal Communications Services (PCS) and data transfer services. They are currently upgrading and expanding upon their existing network in Central Oregon. As part of this upgrade their engineering department has determined the need for additional cell sites in the Redmond area. In this _particular instance the identified need is alon the he Highway 126 corridor west towards Sisters and the rural areas north of Cline Butte and east of Redmond New Cingular Wireless PCS, LLC/AT&T Mobility (AT&T) holds a license from the FCC for digital operations in this area. AT&T Mobility's system is similar to other wireless carriers in that calls are handed off from one facility to another as the caller moves through the area, allowing for reuse of a finite number of channels per frequency. The wavelength of the signal in systems such as those used by AT&T (and most other wireless carriers) requires that cell sites be spaced closer together as voice and data volume increases. Due to technical constraints and the need for additional coverage in the Redmond area, the Cline Butte site was chosen based on the topography of the area, the routing of Highway 126, and the proximity of other existing or proposed AT&T sites. AT&T Mobility determined through radio frequency modeling and testing that the Cline Buttes site (BD57) is needed in order to provide continuous coverage service along the Highway 126 corridor west towards Sisters and the rural areas north of Cline Buttes and east of Redmond. " (Emphasis added.) Exhibit E to the applicant's burden of proof includes two color-coded "radio frequency KBARD CU-09-60 Page 7-of.3p i propagation maps" depicting AT&T's existing Redmond area wireless network. Both maps show the location of seven existing or proposed AT&T wireless facilities: BD41 in Terrebonne;4 BD 51 along Highway 97 between Terrebonne and Redmond; BD52, 53 and 55 located in Redmond; BD22 located west of Highway 97 between Bend and Redmond; and BD23 located along Highway 20 northwest of Bend. In addition, both maps show the location of the BD57, the proposed Cline Butte facility. The applicant's burden of proof describes these maps as follows: "Figure 1 of Exhibit E shows coverage without the proposed BD57 site. Green represents a strong signal that will provide reliable service within buildings as well as inside vehicles. Yellow represents signal strength that will provide good coverage inside vehicles, but less reliable coverage in buildings. The signal strength represented by red is weak and will provide marginal in-vehicle coverage and no in-building coverage. Blue indicates no usable signal. There is a significant lack of good coverage in the area along Highway 126 and rural areas north and west of the Cline Buttes site, as noted by the extensive presence of red and blue rather than green and yellow. Figure 2 of Exhibit E shows the improvement of service signal provided by the Cline Buttes site by the greatly increase areas covered by green and yellow. " Based on the evidence set forth above, the Hearings Officer finds AT&T's service objective is to provide a strong and reliable signal for both in-building and in-vehicle wireless coverage for its customers traveling on Highway 126 west of Redmond as well as for its customers located in the rural areas north and west of Cline Buttes. 3. Reasonable Alternatives Analysis. In Getz v. Deschutes County, - Or LUBA _ (LUBA No. 2008- 192, April 7, 2009), LUBA stated with regard to the required "alternative site analysis" under ORS 215.275: "Our cases concerning ORS 215.275(2) have held that the statute `requires that an applicant make a reasonable effort to 'identify feasible non-EFU-zoned alternative utilityfacility sites, and where another party `identifies an alternative site with reasonable specificity to suggest that it is a feasible alternative, ' that site must also be considered.' Van Nalts v. Benton County, 42 Or LUBA 497, 499 (2002) (quotingfrom Jordan v. Douglas County., 40 Or LUBA 192 (2001)). " In addition, LUBA held the feasibility of alternative' sites must be evaluated considering the factors listed in ORS 215.275 and Section 18.16.038(A). This record does not include a map specifically depicting the "search ring" used by AT&T to determine suitable facility locations that would achieve its desired signal strength and coverage described above. In this Hearings Officer's previous decision in AT&T Mobility (Sisters) (MA- 09-5/AD-09-2) I found a "search ring" is the geographic area in which the applicant conducted a search for wireless facility sites that would meet the applicant's service objectives. In Getz, a This Hearings Officer approved the Terrebonne facility in ;October of 2009 (CU-09-53). KBARD CU-09-60 Page-8 of 30. opponents argued the applicant in that case - US Cellular had not sufficiently documented the parameters of its search ring. In finding US Cellular had provided adequate information, LUBA held: "Although petitioners appear to be correct that the record does not include a map that shows the precise boundaries of the search ring, the record does include a map showing the areas that the proposed facility is designed to serve. Record 654. We conclude that map is sufficient to identify the general area where the new cell tower needs to be located. " Exhibit E to the applicant's burden of proof - the two signal propagation maps in Figures 1 and 2 - depicts AT&T's desired service area to be served by BD57. Based on LUBA's holding in Getz, the Hearings Officer finds this map is adequate for purposes of identifying the area in which the applicant was required to conduct an alternative sites analysis. The applicant's burden of proof does not include a detailed description of AT&T's alternative site search process. Its discussion is limited to the following: "Most of the intended coverage area is zoned either rural residential or EFU (Exhibit D). In addition, a large portion of the EFU zoned coverage area is managed by BLM. Rural Residential lands are small parcels, usually with a dwelling on them. These do not readily lend themselves to locating a suitable tower structure. In addition, if forced to use Rural Residential land, at least two towers would be needed, neither of which would extend coverage very far to the west along Highway 126 Federal BLM land is not readily available for tower siting. Furthermore, most of this area lacks ready access to electric service, and is zoned EFU which requires a necessity test to locate there. In summary, there is a lack of suitably zoned sites to locate a new wireless facility making it necessary to locate on SMzoned land. " The Hearings Officer understands this general description to mean that AT&T considered and rejected the following potential alternative facility sites within the service area depicted on the signal propagation maps in Exhibit E. m Sites on BLM Land Much of the land surrounding the subject property, including both the middle and south Cline Buttes, is owned and managed by the BLM. In his November 25, 2009 submission, the applicant's representative Kevin Martin stated the following with respect to potential sites on BLM land: * * [I]t was noted at the hearing that it is the policy of federal agencies not to issue permits for new communication towers unless there are no sites available that are on privately owned property. Since the applicant, KBARD, is proposing a tower on private property owned by the family, a permit for a new tower on the BLM site [the middle Cline Butte] would violate their own policy. The applicant has relied on this longstanding federal policy as a basis for submitting an application on their own private land. KBARD CU-09-60 Page 9_0£30 _ Another issue of concern is the ongoing public review of the BLM master plan in the area, which includes the middle butte and existing tower site. Polices within this document would seem to discourage additional development on BLM-owned land. * * " In addition, in her September 9, 2009 comments on the applicant's proposal, Molly Brown, Deschutes Field Manager for the Prineville BLM District, stated in pertinent part: "Representatives from the Deschutes County Planning Department, as well as dozens of other interested persons throughout the area assisted the Prineville District Bureau of Land Management (BLM) in development of our Upper Deschutes Resource Management Plan (RMP), which was finalized in 2005. This RMP designated public lands on Cline Buttes as VRM Class 2, with the management objective: To retain the existing character of the landscape. The level of change to the characteristic landscape should be low. Management activities may be seen, but should not attract the attention of the casual observer. Any changes must repeat the basic elements of form, line, color and texture found in the predominant natural features of the characteristic landscape.; More recently, the Prineville BLM developed the Cline Buttes Recreation Area (CBRA) plan, which will be sent out for public 'review in October 2009. This plan covers 30, 000 acres of public land in the Cline Buttes area, and includes over 25 miles of mountain bike trail, 25 miles of equestrian trail, and approximately 10 miles of pedestrian trail on the buttes (BLM administered lands between Cline Falls Highway and Barr Road). During the intensely collaborative planning process for this recreation area, trail use on the buttes received statewide and significant out of state comments. The trail system on the buttes is a rare commodity in Central Oregon, allowing winter season hiking, running, mountain biking and equestrian use on challenging trails with spectacular views. The positive benefits of these trails, and the viewing experience for the public should be considered when assessing the proposed project. There is a high degree of public interest in the project area, and a high degree of recreational use, both on BLM administered lands and the adjacent resort developments and state land. In addition to the recreational use and trails on BLM lands previously mentioned, there is a designated hiking trail on Eagle Crest resort west of the proposed project. " i The Hearings Officer finds these comments suggest that under the BLM's Upper Deschutes RMP and CBRA, development of wireless communication facilities on BLM land on or near Cline Buttes would be discouraged. However, the record indicates the BLM has in fact permitted broadcast and wireless telecommunications facilities on both the middle and south Cline Buttes, and has pending before it an application for construction of another transmission tower on the middle butte. Nevertheless, as discussed in detail in the findings below, the record indicates it is farm from certain the applicant would be able to site the proposed facility on either the middle or KBARD CU-09-60 _Page.10 of 30 south Cline Buttes, and therefore I find it was not unreasonable for the applicant to conclude that BLM lands on and surrounding Cline Buttes were not available for the siting of its proposed BD57 facility. b. Sites Zoned EFU. Much of the private land surrounding the subject property is zoned EFU. As discussed in the findings above, in order to site a wireless communications facility on EFU- zoned land the applicant must meet the "utility facility necessary for public service" approval criteria set forth in Sections 18.16.025 and 18.16.038 - including demonstrating that the facility must be sited on EFU-zoned land because there are no available or suitable non-resource lands. Where, as here, the proposed facility site is on resource land - i.e., within an SM Zone - choosing an EFU-zoned site as an alternative would not achieve the statutory objective of protecting EFU-zoned land. Therefore, the Hearings Officer finds the applicant was justified in concluding that EFU-zoned land within the desired service area was not available for the siting of its BD57 facility. c. Sites Zoned Rural Residential (RR-10.) A map included in the record as Exhibit D to the applicant's burden of proof shows there is a large amount of land zoned RR-10 located north of the subject property on both sides of Highway 126. The RR-10 Zone is a residential exception area not considered resource land. The applicant's burden of proof and subsequent submissions state AT&T rejected siting its facility on RR-10 zoned lands in part because of its belief that such a facility would not be compatible with residential uses. And the topographic maps included in the record show the RR-10 zoned lands are located at much lower elevations than the top of the north butte. However, it appears from the applicant's burden of proof that the primary reason the applicant rejected sites on RR-10 zoned land was because more than one tower would be required. As discussed in the findings above, the applicant's burden of proof states that if AT&T were "forced to use Rural Residential land, at least two towers would be needed, neither of which would extend coverage very far to the west along Highway 126." In AT&T Mobility (Sisters), AT&T rejected siting a wireless communications facility on RR-10 zoned in favor of a higher-elevation site on EFU-zoned land on the basis that an additional tower would be required to provide the desired signal coverage and strength. The applicant argued a two-tower solution would be against its business objective of providing wireless communications services with the fewest towers, and would have greater visual impact than a single "monopine" tower on the preferred EFU-zoned site. Opponents in that case argued, and the Hearings Officer agreed, that under the Court of Appeals' decision in Sprint, if the applicant can provide the desired signal coverage and strength with two towers on non-EFU zoned land it must do so. Specifically, the court stated: * * [I]it is clear that a utility provider has a considerable amount of discretion in choosing the general type of facility or solution to providing a utility service. The utility provider also has some discretion in defining the essential features of the chosen facility type, for example, to provide telecommunication services to a defined coverage corridor or area. The utility provider and local government are not required to consider under either Dayton Prairie [Dayton Prairie Water Assn. v. Yamhill Co., 170 Or App 6, 11 P3d 671 (2000)] or ORS 215.275(2) any alternative that requires a different type offacility (e.g., groundwater wells versus KBARD CU-09-60 - Page 11 of 30 accommodate additional antennas. Ms. Hutchinson replied that a needs analysis was not required because the BLM was already aware that existing tenants on the tower were unable to expand their facilities because of the lack of structural capacity. i Based on the above information, the applicant !has to conclude that there is not existing capacityfor AT&T's antennas on the middle Cline Butte and there is no assurance that additional capacity will be available any time soon. Therefore, the Western Radio site cannot be considered a potential alternative. " The record includes an electronic mail message dated October 13, 2009 from Bill Dean, Assistant Field Manager for the Deschutes Resource Area of the Prineville BLM District, confirming that Western Radio's application for permission to construct a second tower on the middle butte has been put on hold. The Hearings Officer finds Mr. Oberdorfer's claims that AT&T could site its proposed BD57 facility on the middle butte are convincingly refuted by the testimony presented by Mr. Martin and Mr. Dean. Therefore, I find the middle Cline Butte is not a suitable or available alternative site for AT&T's proposed facility. c. Other Trail Crossing Trust Property. Several opponents argue AT&T should site its proposed facility on other property owned by the Trail Crossing Trust and located west of Cline Buttes. The record includes a map provided by planning staff showing a large amount of property owned by "Thornburgh" which the Hearings Officer understands is the name of the Trail Crossing Trust's predecessor in interest. I also am aware that much of this property has been mapped and has received preliminary approval for development with a destination resort. Opponents have not identified with a legal description or map and tax lot number the Trail Crossing Property they believe would provide a suitable alternative facility site. The Hearings Officer finds that in the absence of more specific property identification, neither the applicant nor I am required to consider or evaluate this property, in the alternative sites analysis. T-Mobile USA v. Yamhill County, 55 Or LUBA 83 (2007). For the foregoing reasons, the Hearings Officer finds the applicant has failed to demonstrate that AT&T must site its proposed wireless telecommunications facility on the SM-zoned subject property because there are no feasible or available alternative sites on non-resource land - i.e., RR-10 zoned land in AT&T's desired service area. Therefore, I find the applicant's proposal does not satisfy all applicable approval criteria in Section 18.52.030(A)(5) and cannot be approved. Nevertheless, because this decision may be appealed to the Board of County Commissioners; (hereafter "board"), I include in this decision findings on the remaining approval criteria. b. Section 18.52.060, Dimensional Standards In the SM Zone, no existing !parcel shall be reduced in size and no additional parcels shall be created by partition, subdivision or KBARD CU-09-60 _ Page 14 of 30 otherwise. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant is not proposing any land division or property line adjustment. 2. Chapter 18.116, Supplementary Provisions a. Section 18.116.250, Wireless Telecommunications Facilities C. Tier 3 Facilities. Wireless telecommunications facilities (or their equivalent uses described in the EFU, Forest and SM Zones) not qualifying as either a Tier 1 or 2 facility may be approved in all zones, subject to the applicable criteria set forth in DCC 18.128.330 and 18.128.340. 1. A request for a written determination from the County as to whether a proposed facility falls within Tiers 1 or 2 of DCC 18.116.250 shall be submitted to the County in writing and accompanied by a site plan and proposed schematics of the facility. If the County can issue a written determination without exercising discretion or by making a land use decision as defined under ORS 197.015(10), the County shall respond to the request in writing. 2. A request for a written determination from the County as to whether a proposed facility falls within Tiers 1 or 2 of DCC 18.116.250 that involves exercising discretion or making a land use decision shall be submitted and acted upon as a request for a declaratory ruling under DCC 22.40. FINDINGS: The applicant requests approval to establish a wireless telecommunication facility including a 60-foot tall monopole on land zoned SM. The Hearings Officer finds the applicant's proposal is a "Tier 3" facility because it does not constitute either a "Tier 1" or "Tier 2" facility under Section 18.116.250(A) and (B). Therefore, the proposed facility is subject to the conditional use approval criteria discussed in the findings below. 3. Chapter 18.128, Conditional Use a. Section 18.128.015, General Standards Governing Conditional Uses Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards K13ARD CU-09-60 Page 15 of 30, in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDINGS: The proposed wireless telecommunications facility would consist of a 60-foot-tall monopole that would support up to three sets of antennas and microwave dishes. The monopole and equipment cabinets would be located within a 64-foot-square fenced area on a 2-acre leased site on the top of the middle butte. Electricity to the site would be installed underground. Access to the site would be via an extension of the existing private paved/gravel road from Cline Falls Road to and through the existing surface mining site on the subject property. The proposed facility would function as part of AT&T's existing wireless network in the Redmond area, depicted on the applicant's submitted signal propagation maps. The record indicates Cline Buttes are the highest elevation points between Redmond and Sisters. The north butte has relatively steep sides and a relatively level top. The existing surface mining site occupies approximately 60 acres of the subject property. The un-mined areas of the property have a light to moderate cover of juniper trees and native brush and grasses. Opponents argue the subject property and the facility site are not suitable for the proposed facility because of the butte's steep topography. They expressed concern that because of this topography, construction and use of the new access road from the surface mining site to the top of the butte would cause erosion and run-off onto nearby residential properties in the Eagle Crest development. The applicant's submitted site plan includes on page A-1 a drawing of the proposed access drive route and shows that portions of the road above the mining site would be located adjacent to the southern and western property boundaries. Based on the Hearings Officer's site visit observations and the topographic maps in the record, I find this road will cross very steep terrain and therefore has the potential to create erosion and surface water ran-off onto adjacent properties. For these reasons, I find that if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to the Planning Division a written erosion' control plan prepared by a registered professional engineer demonstrating there will be no surface water runoff from the road onto adjacent properties. For the foregoing reasons, and with imposition of the recommended condition of approval described above, the Hearings Officer finds the subject; property will be suitable for the proposed use considering the facility's site, design and operating!characteristics. 2. Adequacy of transportation access to the site; and FINDINGS: The applicant proposes to provide access !to the facility site through an extension of the existing private paved/gravel road that leads from; Cline Falls Road to and through surface mining site. The record indicates this road is paved road for a short distance off of Cline Falls KBARD CU-09-60 Page 16-of 3.0 . Road and then consists of a gravel surface to the mining site. The record indicates this road currently provides access to passenger vehicles and to heavy trucks and equipment associated with the mining operation. The staff report estimates, and based on the Hearings Officer's site visit observations I agree, that the paved portion of the access road is approximately 22 feet wide and the gravel portion is approximately 24 feet wide. As discussed above, I have found that if the applicant's proposal is approved by the board on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to the Planning Division a written erosion control plan prepared by a registered professional engineer demonstrating there will be no surface water runoff from the road onto adjacent properties. And to assure adequate access for emergency vehicles from the surface mine to the wireless facility site, I find the approval should be subject to a condition of approval requiring the applicant to design and construct this road segment to satisfy the minimum emergency access road standards of the Redmond Fire Department, set forth in its August 28, 2009 comments in the record, including not less than 20 feet of unobstructed all-weather road surface capable of supporting a 70,000-pound vehicle. The proposed wireless telecommunications facility will not be manned, and after facility construction the only vehicular traffic will be one or two monthly visits for routine maintenance. In his comments on the applicant's proposal, the county's Senior Transportation Planner Peter Russell stated in relevant part: "The site is not in any Airport Safety (AS) zone. The proposed use will generate less than 50 new weekday trips, so under DCC 17.16.115(C)(4) no traffic analysis is required. As the use will not consume any capacity of the road system, no transportation system development charges (SDC's) will be assessed. " The staff report states, and the Hearings Officer concurs, that with such a low volume of traffic, and with the recommended condition of approval discussed above addressing the design and construction of the road, the proposed access road will be adequate for the proposed use. Therefore, I find the subject property is suitable for the proposed wireless telecommunications facility considering transportation access. 3. The natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. FINDINGS: The middle Cline Butte is steep sided but has a relatively level top on which the applicant proposes to site a wireless telecommunications facility. The natural and physical features of the site include steep topography and a light to moderate cover of juniper trees and native brush and grasses. The record does not indicate any known natural hazards on the property or the proposed facility site. The applicant's burden of proof notes that construction of the proposed facility may require the removal of a few existing trees. All other trees and native vegetation would be retained on the site. The applicant proposes to enclose the facility site with a 6-foot-tall cyclone fence. The Hearings Officer observed during my site visit that the access road into the mining site is gated at its entrance. Therefore, I find the proposed wireless facility site will be secured at two locations. For the foregoing reasons, I find the subject property is suitable KBARD CU-09-60 Page 17 of 30 for the proposed facility considering the natural and physical features of the site.6 B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. FINDINGS: The subject property's western and northern boundaries abut portions of Phase 3 of the Eagle Crest Destination resort which is developed primarily with residential uses at varying densities. The staff report states this part of Eagle Crest is not yet fully built out and so will have further development in the future. The subject property's southern and eastern boundaries abut land that is owned and managed by the BLM and, as discussed in the findings above, is subject to the Deschutes Resource Management Plan (RMP) and the Cline Butte Recreation Area Plan (CBRA). These lands have been and will continue to be used for public recreation, open space and wildlife habitat. In addition, the staff report notes the area surrounding the subject property also includes large tracts owned by the Trail Crossing Trust that have been mapped and have received preliminary approval for development a another destination resort which would include the development of residential and recreation uses. Opponents who live and/or own property within Eagle Crest assert the proposed wireless telecommunications facility will not be compatible with their residences because of its visual impact. In addition, opponents expressed concern that the appearance of the monopole would be incompatible with the BLM's aforementioned plans for the Cline Buttes area. In her comments on the applicant's proposal, Molly Brown of the Prineville BLM District stated in relevant part: "While the County is of course not bound to the objectives in the RMP and CBRA plan, I hope your role as a neighbor and a participant both of the above described planning processes, and your interest in the needs of private landowners and local recreationists will allow you to direct the applicant to minimize negative effects to recreation, scenery, and soil stability in the area. Some suggestions: Require low visual contrast in tower design. The application does not contain enough information to comment fully on the proposal. The application contains a detail drawing of a lattice tower, but the application states that a monopole will be used. What diameter will the monopole be at'the base and top of the structure? Is it likely that a monopole structure will introduce greater levels of contrast and be more visible than a lattice structure? Does the height of the structure allow for additional leases/uses on the tower? I i Limit new road construction. How will the tower location be accessed? To BLM's knowledge, there is no road access to the top;of the northern butte. Would the i i e Although historic and cultural resources are not addressed in this approval criterion, the applicant submitted into the record a letter dated September 1, 2009 from Beth Belanger with Adapt Engineering, Inc., stating that a "Section 106" review of the subject property - required by the National Historic Preservation Act, 16 USC 740, and the federal administrative rules in 36 CFR Part 800 had been completed and a determination made that the proposed facility on the middle butte "would have no adverse impacts on any local historical resources." KBARD CU-09-60 Page. 18 of 30 Cline Buttes Rock Pit Road be used to access this site? If so, what additional road construction would the applicant need to gain access to the site? If the applicant needs a right-of-way across BLM managed public land, or if the existing road across BLM land does not meet their needs, they will need to contact the BLM. The road construction may cause greater visual impacts than the tower itself, and may cumulatively increase the tower's visibility. Further, there are currently serious issues with drainage and erosion in the area of the Cline Buttes Rock Pit Road that are affecting public land resources and causing damage to Eagle Crest resort. New road construction on steep slopes in this area needs to be carefully considered as they may exacerbate existing conditions. Cluster new developments in the same location as existing developments. As you know, the southern and middle buttes (both BLM administered lands) currently have developments on them: an FAA navigation facility on the southern butte, and a radio communication site on the middle butte. There is a current application pending for an additional radio tower on the middle butte. " In response to concerns about visual impacts from the proposed monopole, the applicant revised its application to reduce the monopole's height from 90 to 60 feet, thereby reducing the number of carriers and antenna arrays it can accommodate from four to three. As discussed in the findings above, the pending application for a new tower on the middle Cline Butte to which Ms. Brown refers has been put on hold and therefore is not an available alternative. And the Hearings Officer has found that if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring the applicant to submit to, and obtain approval from, the road department for the road design and erosion control plan. The applicant submitted into the record as Attachment E to its November 11, 2009 memorandum photo simulations showing how a 90-foot monopole and a 60-foot monopole would appear on the top of the north butte from various viewpoints, including from nearby Eagle Crest neighborhoods. Based on the Hearings Officer's site visit observations, I find these photo simulations are accurate representations of the appearance of these two towers as viewed from several locations surrounding the subject property. The Hearings Officer finds the photo simulations show that a 60-foot monopole would have minimal visual impacts from most viewpoints.for several reasons. First, its small mass relative to the mass of the north butte would make it appear relatively small. Second, because there are mature juniper trees on and around the wireless facility site, some of which are 15 to 20 feet tall, at most only the upper approximately 40 to 45 feet of the monopole would be visible, as the lower level of the monopole would be screened by the trees. In addition, because of the steep topography of the north butte, combined with the vegetative screening, even the upper levels of the monopole and antennas will not be visible from some nearby neighborhoods and from adjacent BLM lands. The monopole will not be lighted and so will not be visible at night. Finally, as discussed in the findings above, the middle and south Cline Buttes already are developed with transmission and broadcast facilities on towers, and one of CEC's high-voltage electric transmission lines already crosses the north butte along its north side. I find the applicant's proposed 60-foot-tall monopole will be considerably shorter than the 130-foot-tall KBARD CU-09-60 Page 19 of 30 Western Radio tower on the middle butte, and will have less mass than the electric transmission lines which include many towers and lines. For the foregoing reasons, the Hearings Officer finds the proposed wireless telecommunications facility will be compatible with existing and projected uses on surrounding properties. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that he standard will be met.] FINDINGS: As discussed elsewhere in this decision,1 the Hearings Officer has recommended that if the applicant's proposal is approved by the board on appeal, such approval should be subject to conditions of approval designed to assure compliance with all applicable approval standards. i b. Section 18.128.040, Specific Us Standards i A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in DCC 18.128.045 through 18.128.370: FINDINGS: The proposal's compliance with the SM Zone standards is discussed in the findings above. The applicable conditional use approval criteria are discussed in the findings below. C. Section 18.128.330, Microwave and Radio Communication Towers in the SM Zone A conditional use permit for siting of a microwave or radio communication tower and accessory equipment structures in the SM Zone shall be subject to the criteria of DCC 18.128.340 and the following criteria: A. Towers shall be limited to monopole towers of under 150 feet and lighted only as prescribed by aviation safety regulations. FINDINGS: The applicant's revised proposal includes a 60-foot-tall monopole that will not be lighted, therefore satisfying this criterion. B. Towers and accessory, equipment structures shall be located only on portions of an SM-Zone site that do not overlay economically viable mineral or aggregate deposits and that minimize conflicts with; mining operations at the site. FINDINGS: The proposed facility would be located] at the top of the north butte. The record includes a copy of the 1973 surface mining site plan for SM Site 252 that shows the mining areas are located on the lower elevations of the butte and not on or near the top. For this reason, the KBARD CU-09-60 Page 20 of 30 with interested owners of property nearby to a potential facility location. Notice shall be in writing and shall be mailed no less than 10 days prior to the date set for the meeting to owners of record of property within a. One thousand three hundred twenty feet for a tower or monopole no greater than 100 feet in height, and b. Two thousand feet for a tower or monopole at least 100 feet and no higher than 150 feet in height. Such notice shall not take the place of notice required by DCC Title 22. FINDINGS: The applicant's burden of proof includes as part of Exhibit H a copy of a neighborhood meeting notice dated July 21, 2009 for a neighborhood meeting to be held on August 3, 2009. In addition, the record includes as Attachment D to the applicant's November 10, 2009 submission an affidavit of Kevin Martin dated! November 8, 2009 stating he mailed this notice on July 23, 2009, at least 10 days prior to the meeting date. The burden of proof indicates the applicant mailed the neighborhood meeting notice; to the owners of record of all property located within 1,320 feet of the subject property, and includes as part of Exhibit H a list of all persons and entities to whom the notice was mailed. Therefore, the Hearings Officer finds the applicant satisfied the requirements in this subsection. 2. Pre-Application Conference. Applicant shall attend a scheduled pre-application conference prior to submission of a land use application. An application for a wireless telecommunications facility permit will not be deemed complete until the applicant has had a pre- application conference with Planning Division staff. FINDINGS: The record indicates the applicant had a pre-application meeting with planning staff on June 19, 2009 via electronic mail communication. 3. Submittal' Requirements. An application for a conditional . use permit for a wireless telecommunications facility shall include: a. A copy of the blank lease form. i FINDINGS: A blank lease form is attached to the applicant's burden of proof as Exhibit F. r b. A copy of the applicant's Federal Communications Commission license. FINDINGS: A copy of AT&T's Federal Communications Commission (FCC) license is KBARD CU-09-60 j Page 22 of.30 f - I attached to the applicant's burden of proof as Exhibit G. C. A map that shows the applicant's search ring for the proposed site and the properties within the search ring, including locations of existing telecommunications towers or monopoles. FINDINGS: As discussed in the findings above, the applicant's burden of proof does not include a map or diagram specifically labeled "search ring." The Hearings Officer has found the applicant's signal propagation maps attached as Exhibit E to the burden of proof identify the desired service area and therefore suffice as a "search ring" map. In addition, attached to the burden of proof as Exhibit B is a letter dated August 13, 2009 from Karen Sullivan, one of AT&T's radio frequency engineers, stating in part: .."We have researched other sites in the area for the co-location of our required cellular and microwave antenna needs and there are no other towers or structures suitable for co-location that will meet the coverage objective for the area as well as this. " Based on this information, the Hearings Officer finds the applicant's proposal satisfies the requirement in this paragraph. d. A copy of the written notice of the required neighborhood meeting and a certificate of mailing showing that the notice was mailed to the list of property owners falling within the notice area designated under DCC 18.128.340(A)(1). FINDINGS: As discussed above, a copy of the notice of neighborhood meeting is included as part of Exhibit H to the applicant's burden of proof, and the record includes an affidavit dated November 8, 2009 from Kevin Martin stating he mailed the notice on July 23, 2009, as well as a list of the owners of record of property falling within the notice area.. Therefore, the Hearings Officer finds the applicant has demonstrated compliance with the requirement in this paragraph. e. A written summary of the neighborhood meeting detailing the substance of the meeting, the time, date and location of the meeting and a list of meeting attendees. FINDINGS: Attached to the applicant's burden of proof as part of Exhibit H are a written summary of the neighborhood meeting and a sign-up sheet for the meeting showing that one person was in attendance. Therefore, the Hearings Officer finds the applicant has demonstrated compliance with the requirement in this paragraph. KBARD CU-09-60 Page 23 of 30 C A site plan showing the location of the proposed facility and its components. The site plan shall also identify the location of existing and proposed landscaping, any equipment shelters, utility connections, and any fencing proposed to enclose the facility. FINDINGS: Attached to the applicant's burden of proof as Exhibit A is a detailed site plan that shows the lease area and fenced facility site, the proposed locations of all ground equipment including equipment cabinets and the base of the monopole, and the proposed perimeter fence and gate. As discussed above, the applicant revised its proposal to lower the height of the monopole from 90 to 60 feet, and submitted a revised elevation drawing showing a 60-foot-tall monopole and three antenna arrays. The applicant does, not propose any landscaping in addition to the existing native vegetation. The Hearings Officer finds the applicant's original and revised site plans satisfy the requirements in this paragraph. g. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facility. FINDINGS: The applicant's original site plan is attached to the burden of proof as Exhibit A. The applicant's revised site plan materials contain the same detailed design specifications for the proposed wireless telecommunications facility as were submitted with the burden of proof, but include revised elevation drawings for a 60-foot-tall !monopole with antenna arrays for three wireless carriers. The revised drawing labeled "A-1.27 states that "[a]ll exposed antennas, coax & mounting hardware shall be painted dark green to match adjacent trees." However, the applicant's burden of proof and November 11, 2009 submission state the applicant believes the proposed monopole would be less visible if it were painted a grey color to reduce its visibility against the sky. Through Ordinance No. 97-017 the board approved specific colors for monopoles, at least two of which are shades of grey. Therefore, the applicant can paint the monopole grey and still comply with the ordinance. h. An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape. FINDINGS: As discussed above, the applicant's revised site plan materials include an elevation drawing of the proposed 60-foot-tall monopole and antenna arrays, labeled "A.2." In addition, attached to his November 11, 2009 memorandum the applicant's representative Kevin Martin submitted a set of photo simulations of the proposed facility showing both the 60- and 90-foot- tall monopoles. Based on the Hearings Officer's site visit observations, I have found these photo simulations are accurate representations of the appearance of these two towers as viewed from several locations surrounding the subject property. KBARD CU-09-60 Page 24 of 30 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. FINDINGS: In its comments on the applicant's proposal, the ODOT-Aeronautics Division noted the proposed facility location is near two airports in Deschutes County Roberts Field in Redmond and the Cline Falls Airpark which is a private airstrip north of Highway 126 and west of Redmond. ODOT recommended the applicant be required to submit a 7460 to the Oregon Department of Aviation (ODA) for review and a "determination of no hazard." The record includes a letter dated November 30, 2009 from Melinda Fahey, Aviation Planning Analyst for the Oregon Department of Aviation stating in pertinent part: "The Oregon Department of Aviation (ODA) has conducted a preliminary aeronautical study of this proposed new structure and has determined that it does not exceed any standard of OAR [Oregon Administrative Rules] 738-70-0100, would not be a hazard to air navigation and notice to the FAA [Federal Aviation Administration] (and ODA) is not required. Marking and/or Lighting Recommendation Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory Circular AC7017460-IK Change 2. "(Bold emphasis in original.) This letter was submitted after the evidentiary record closed on November 25, 2009 and therefore the Hearings Officer cannot consider it. However, I find that re-submission of this letter can be made a condition of approval for the proposed wireless communications facility in the event the board approves the applicant's proposal on appeal. B. Approval Criteria: An application for a wireless telecommunication facility will be approved upon findings that: 1. The facility will not be located on irrigated land, as defined by section 18.04.605 of this title. FINDINGS: Although comments in the record from the Assessor's office indicate the subject property currently is under farm tax deferral, the record also indicates the top of the north butte is not and never has been irrigated as defined in Section 18.04.605, and the property is not located within an irrigation district. Therefore, the Hearings Officer finds the applicant's proposal KBARD CU-09-60 Page 25 of 30 satisfies this criterion.' 2. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co-location within the area to be served. FINDINGS: As discussed above, the record includes as Exhibit B to the applicant's burden of proof a letter from Karen Sullivan, one of AUT's radio frequency engineers, stating "there are no other existing towers or structures suitable for co location that will achieve the necessary coverage object for the area as well as this location." As also discussed above, the record indicates the existing 130-foot-tall Western Radio lattice tower on the middle Cline Butte is at capacity structurally and is not capable of accommodating the applicant's proposed BD57 facility. The Hearings Officer also has found the applicant evaluated other alternative facility sites within the desired service area, and that the applicant properly rejected most of these alternative sites. However, I also have found the applicant was not justified in rejecting the alternative of providing service through installation! of two towers on RR-10 zoned land. Nevertheless, because the specific sites for these two towers were not identified by the applicant, I cannot find that they would have "less visual impact as viewed from nearby residences" than the proposed facility on the top of the north butte. Therefore, I find the applicant's proposal satisfies this criterion. 3. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility from view of nearby residences. FINDINGS: As discussed above, the primary compatibility issue raised by opponents is the proposed monopole's visual impact on both residences in Eagle Crest and on nearby BLM land on Cline Buttes. Based on the Hearings Officer's site visit observations and my review of the photo simulations submitted by the applicant, I find the proposed 60-foot-tall monopole will be visible from the nearby residences in Eagle Crest. However, because the juniper trees on the top of the north butte are 15 to 20 feet tall, the proposed ground equipment including the equipment cabinets, tower base, perimeter fence and microwave; dishes mounted at or below the 20-foot This section defines "irrigated" as "watered by an artificial or controlled means, such as sprinklers, furrows, ditches or spreader dikes." This definition goes on to state that an area or tract is "irrigated" if it is "currently watered or has established rights to use water for irrigation from a water or irrigation district or other provider." KBARD CU-09-60 Page 26 of 30 j height on the monopole likely would be fully screened from view of neighboring residences. The Hearings Officer has found that due to the height of the juniper trees on and around the top of the north butte, the upper 35 to 40 feet of the monopole and the antennas above the 20-foot monopole level will not be screened by the trees. Nevertheless, as discussed in the findings above, I have found the visual impact from the proposed facility on nearby residences will be minimal because, at the most, only 40 to 45 feet of the monopole will be visible, the monopole will be shorter than the existing Western Radio tower on the middle Cline Butte, the monopole will not be lighted, and the photo simulations demonstrate the monopole and antennas will appear very small relative to the size and scale of the north butte. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. 4. A tower or monopole located in an LM Zone is no taller than 30 feet. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. FINDINGS: The record indicates the subject property is not within an LM Zone. However, under Section 23.096.030 of the Deschutes County Comprehensive Plan, the segment of Highway 126 between the Redmond and Sisters urban growth boundary lines is a designated LM corridor. I find at least the upper portion of the proposed monopole likely will be visible from some points along Highway 126 west of Cline Buttes. Nevertheless, I find the combination of the steep topography, existing vegetation, and small scale of the proposed monopole relative to the size of the north butte will minimize visual impacts from Highway 126 to the maximum extent practical. And as discussed in the findings above, the lower portion of the monopole as well as all of the ground equipment will be screened by existing trees. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. 6. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. FINDINGS: The applicant's burden of proof states the monopole will be painted in a color approved under Ordinance 97-017. 7. Any required aviation lighting is shielded to the KBARD CU-09-60 Page 27 of 30 maximum extent allowed by FAA and/or ODOT- Aeronautics regulations. FINDINGS: As discussed above, the ODA has determined no lighting of the monopole is required, and the applicant does not propose any lighting. 8. The form of lease for the site does not prevent the possibility of co-location of additional wireless telecommunication facilities at the site. FINDINGS: The Hearings Officer has reviewed the lease agreement form submitted as Exhibit F to the applicant's burden of proof and finds it does not prevent future co-location. In addition, as discussed in the findings above, the proposed monopole has been designed to accommodate three wireless telecommunications providers. 9. Any tower or monopole shall be designed in a manner that it can carry the antennas of at least one additional wireless carrier: This criterion may be satisfied by submitting the statement of a licensed structural engineer licensed in Oregon-that the monopole or tower has been designed with sufficient strength to carry such an additional antenna array and by elevation drawings of the proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. FINDINGS: The applicant's revised elevation drawings for the 60-foot monopole show it can accommodate antenna arrays for three wireless providers. However, the application does not contain a statement from a licensed structural engineer confirming that the monopole has been designed with sufficient strength to carry additional antenna arrays. The applicant has requested that submission of this statement at the time of a building permit application be required as a condition of approval. Because the Hearings Officer has found I cannot approve the applicant's proposal, I recommend that the applicant submit the required engineer's statement prior to or in conjunction with any appeal to the board, and/or that the board make any approval of the applicant's proposal subject to a condition of approval requiring submission of the engineer's statement prior to the applicant applying for a building; permit for the proposed facility. 10. Any approval for a wireless telecommunications facility shall include a condition that if the facility is left unused or is abandoned by all wireless providers located on the facility for more than one year the facility shall be removed by the landowner. FINDINGS: The Hearings Officer finds that if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring the applicant to comply with the requirements of this subsection. KBARD CU-09-60 Page 28 of 30 IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the applicant's proposed wireless telecommunications facility. If this decision is appealed to the Board of County Commissioners and the board approves the application on appeal, the Hearings Officer RECOMMENDS SUCH APPROVAL BE SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. This approval is based on the applicant's submitted burden of proof, original and revised site plan and supplemental materials, and written and oral testimony. Any substantial change to the approved facility will require a new land use application and approval. 2. This decision approves a wireless telecommunications facility consisting of the following: a. a two-acre leased area with a 64-foot by 64-foot fenced area at the top of the north Cline Butte enclosed by a 6-foot-tall cyclone perimeter security fence; b. three equipment cabinets; C. a 60-foot-tall galvanized steel monopole; and d. three wireless panel antenna arrays and microwave dishes mounted on the monopole. PRIOR TO OBTAINING A BUILDING PERMIT: 3. The applicant/owner shall submit to the Planning Division a statement by a registered professional engineer that the approved 60-foot-tall monopole has been designed to carry the antenna arrays of up to three wireless telecommunications providers. 4. The applicant/owner shall re-submit to the Planning Division the letter dated November 30, 2009 from Melinda Fahey, Aviation Planning Analyst for the Oregon Department of Aviation, concerning ODA's determination that the approved facility will not create a hazard to air navigation. PRIOR TO COMMENCING CONSTRUCTION OF THE APPROVED FACILITY: 5. The applicant/owner shall submit to the Planning Division a written erosion control plan for the private access road from SM Site 252 to the approved wireless facility site, prepared by a registered professional engineer, and demonstrating there will be no erosion or surface water runoff from the road onto adjacent properties. The applicant/owner shall design and construct the private access road from SM Site 252 to the wireless telecommunications facility site to meet the minimum standards of the Redmond Fire Department for emergency vehicle access, including a minimum 20-foot- wide unobstructed all-weather surface capable of carrying a 70,000-pound vehicle. 7. The applicant/owner shall obtain all required construction permits from the Deschutes KBARD CU-09-60 Page 29 of 30 County Building Division. WITH CONSTRUCTION OF THE APPROVED FACILITY: 8. The applicant/owner shall install a monopole with a non-reflective finish in a color approved under Ordinance No. 97-017. AT ALL TIMES: 9. If the facility approved by this decision is left unused or is abandoned by all wireless providers located on the facility for more than one year, the applicant/owner shall remove the facility from the subject property. 10. The applicant/owncr shall comply with all requirements of the Redmond Fire Department. DURATION OF APPROVAL: 11. The applicant/owner shall comply with all conditions of approval and submit an application for a building permit for the approved wireless telecommunication facility within two (2) years from the date this decision becomes final, or shall obtain an extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this approval shall be void. Dated this ,J~ day of January, 2010. Mailed this day of January, 2010. YZ, e 4--.. - Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE' DAYS AFTER MAILING UNLESS TIMELY APPEALED. KBARD CU-09-60 Page 30 of 30