2010-177-Minutes for Meeting March 15,2010 Recorded 3/29/2010DESCHUTES COUNTY OFFICIAL RECORDS Ind ~~j~~+~~
NANCY BLANKENSHIP, COUNTY CLERK U I +
COMMISSIONERS' JOURNAL
12:02:50 m
I03/29/2010 i
2010-277
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Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, MARCH 15, 2010
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney; also
present were Dave Kanner, County Administrator; Laurie Craghead, County
Counsel; Nick Lelack and Kevin Harrison, Community Development; and three
other citizens.
Chair Luke opened the meeting at 10:00 a.m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was Consideration of Second Reading and Adoption of
Ordinance No. 2010-011, Amending Code regarding Siting of Wireless
Telecommunications Facilities.
Laurie Craghead explained that there were some minor changes made to the
Ordinance, and asked that the second reading be delayed to the Wednesday,
March 17, 2010 Board business meeting. The Board agreed.
3. Before the Board was a Public Hearing on an Appeal of the Hearings
Officer's Denial of a Wireless Telecommunications Facility in the Surface
Mining Zone.
Chair Luke opened the public hearing and read the opening statement (a copy of
which is attached for reference).
Minutes of Board of Commissioners' Business Meeting Monday, March 15, 2010
Page 1 of 3 Pages
In regard to bias, prejudgment or personal interest, none were disclosed. There
was a work session held to discuss this previously.
Kevin Harrison gave an overview of the item. (A copy of the staff report is
attached.)
Commissioner Luke said he is having a hard time understanding where cellular
towers are allowed. It appears that they can't be on EFU or surface mining land
if there is an alternative of using private land that is not within that zoning.
Mr. Harrison stated they are allowed to some degree in all zones. However, an
alternative outside a resource zone has to be considered first.
Commissioner Luke said that land is either F-1 or F-2, EFU, surfacing mining
or RR-10 and MUA-10. The rest is resource land. Mr. Harrison stated that this
mirrors State law. An alternative has to be used if it is available and helps meet
service objectives. The alternative site analysis has to happen first.
Commission Unger stated that he'd like to see a map where new towers can be
located, preferably where others already exist. There are few residents in some
areas.
Ms. Craghead stated that it is not just service to residents that has to be
considered, but for people passing through. When talking about service areas,
an explanation is necessary if the provider feels there are gaps and why a
specific tower is necessary.
Kevin Martin, representing the applicant, asked for a continuance of the
hearing, as they have not been able to get the final RF plots. Two potential
locations on non-resource land were investigated, but he is waiting for the plots
from Verizon and AT&T. Those will show what is needed and what will
provide coverage. He then waived the 120-day time limit and the Board
indicated April 19, 2010 would be the best date for a continuance.
He said that there are only two general. areas that might work, but he will not
have all the information until later in the month. He said in general they are
required to have adequate vegetative coverage, but most of the trees in the area
are junipers that are not very tall.
Minutes of Board of Commissioners' Business Meeting Monday, March 15, 2010
Page 2 of 3 Pages
Cathy Giles, a resident of Eagle Crest, oppose the siting of the cell tower due to
visual concerns. She emphasized that this is a recreational area and she hikes
around there, and it would affect the view from her house. The screening
would not be adequate. The trees are 25 feet tall at the highest, and it seems to
her that there are a lot of other possibilities for placement of the towers, perhaps
on another pole in the area. She has good cell coverage all the way to Sisters.
She said she submitted a letter in writing previously.
The hearing was continued to 10 a.m. on Wednesday, April 19, 2010.
4. Before the Board was the Continuation of a Public Hearing, and
Consideration of First Reading of Ordinance No. 2010-010, a Text
Amendment regarding Bicycle Parking Standards.
Kevin Harrison gave a brief overview of the item. He said over time that they
have learned the bicycle parking standards are part of site plan review, and a lot
of times they end up with isolated uses in the rural county. Because of the
location and type of use, it is not practical or necessary to have the same strict
standards. They wish to relax the standards in these cases.
Ms. Craghead stated that they propose an exception if the criteria applies for a
given location. Commissioner Baney pointed out the information on the
proposed Ordinance and said she supports it.
This will be addressed at the Wednesday, March 17 Board meeting so that
minor changes can be made to the document.
Being no further items addressed, the meeting adjourned at 9:40 a. m.
DATED this 15th Day of March 2010 for the De hutes County Board of
Commissioners.
D nnis R. Luke, Chair
Alan Uxpaer, Vice Chair
ATTEST: '
/III . "&L - L*'~ -
Tammy Baney, Com ssioner
Recording Secretary
Minutes of Board of Commissioners' Business Meeting Monday, March 15, 2010
Page 3 of 3 Pages
J
J-res c
o BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Agenda Ite f Interest:
Name
Address
a
Y
,r
i v'
Phone #s
E-mail address
1-1 In Favor 1-1 Neutral/Undecided Opposed
Submitting written documents as part of testimony? F~ Yes F-] No
If so, please give a copy to the Recording Secretary for the record.
Date: 3 r/~v
PRELIMINARY STATEMENT FOR A
QUASI-JUDICIAL PUBLIC HEARING BEFORE
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
1. INTRODUCTION
A. This is a quasi-judicial hearing on an appeal of the hearing officer's denial of a
proposed wireless telecommunications facility consisting of a 60-foot monopole
and associated ground equipment. The County File Number(s) are CU-09-60 and
A-10-1.
B. In those applications, the applicant requested approval of the wireless
telecommunications facility on a property zoned Surface Mining (SM) located on
the northernmost of the Cline Buttes.
C. The Board takes notice of the record below and includes that record as part of
the record before us.
II. BURDEN OF PROOF AND APPLICABLE CRITERIA
A. The applicants have the burden of proving that they are entitled to the proposal
sought.
B. The standards applicable to the application before us are DCC Chapters 18.52,
18.116, 18.128 and Title 22.
C. Testimony and evidence at this hearing must be directed toward the criteria, as
well as toward any other criteria in the comprehensive land use plan of the County
or land use regulations which any person believes apply to this decision.
D. Failure on the part of any person to raise an issue with sufficient specificity to
afford the Board of County Commissioners and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional or
other issues relating to the approval with sufficient specificity to allow the Board to
respond to the issue precludes an action for damages in circuit court.
1
III. HEARINGS PROCEDURE
A. Evidence to be reviewed by the Board.
The Board's decision on this application will be based upon the record before the
Hearings Officer, the Hearings Officer's decision, the Staff Report and the
testimony and evidence presented at this hearing.
IV. ORDER OF PRESENTATION
A. The hearing will be conducted in the following order.
1. The staff will give a report.
2. The applicant will then have an opportunity to offer testimony and evidence.
3. Proponents of the proposal then the opponents will then be given a chance
to testify and present evidence.
4. The applicants will then be allowed to present rebuttal testimony but may
not present new evidence.
5. At the Board's discretion, if the applicants presented new evidence on
rebuttal, opponents may be recognized for a rebuttal presentation.
6. At the conclusion of this hearing, the staff will be afforded an opportunity to
make any closing comments.
7. The Board may limit the time period for presentations.
B. If anyone wishes to ask a question of a witness, the person may direct the
question to the Chair during that person's testimony, or, if the person has already
testified, after all other witnesses have testified but before the Applicant's rebuttal.
The Chair is free to decide whether or not to ask such questions of the witness.
C. Continuances
1. The grant of a continuance or record extension shall be at the discretion of
the Board.
2. If the Board grants a continuance, it shall continue the public hearing to a
date certain.
3. If, at the conclusion of the hearing, the Board leaves the record open for
additional written evidence or testimony, the record shall be left open to a
2
date certain for submittal of new written evidence or testimony and at least
seven additional days for response to the evidence received while the
record was held open. Written evidence or testimony submitted during the
period the record is held open shall be limited to evidence or testimony that
rebuts previously submitted evidence or testimony.
4. If the hearing is continued or the record left open, the applicant shall also be
allowed a period to a date certain after the record is closed to all other
parties to submit final written arguments but no new evidence in support of
the application.
V. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS
A. Do any of the Commissioners have any ex-parte contacts, prior hearing
observations; biases; or conflicts of interest to declare? If so, please state their
nature and extent.
B. Does any party wish to challenge any Commissioner based on ex-parte contacts,
biases or conflicts of interest?
(Hearing no challenges, I shall proceed.)
(Staff Report)
3
-r- G C-~
Community Development Department
Planning Division Building Safety Division Environmental Health Division
.a,.
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, 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 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.
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., MONDAY, MARCH 15, 2010
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
1. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's
discretion, regarding issues that are not already on the agenda. Citizens who wish to speak
should sign up prior to the beginning of the meeting on the sign-up cards provided. Please
use the microphone and also state your name and address at the time the Board calls on you
to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject
of a public hearing will NOT be included in the record of that hearing.
2. CONSIDERATION of Second Reading and Adoption of Ordinance No.
2010-011, Amending Code regarding Siting of Wireless Telecommunications
Facilities - Anthony Raguine, Community Development
3. A PUBLIC HEARING on an Appeal of the Hearings Officer's Denial of a
Wireless Telecommunications Facility in the Surface Mining Zone - Paul
Blikstad, Community Development
4. CONTINUATION of a Public Hearing, and Consideration of First Reading
of Ordinance No. 2010-010, a Text Amendment regarding Bicycle Parking
Standards - Paul Blikstad, Community Development
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.
Board of Commissioners' Business Meeting Agenda Monday, March 15, 2010
Page 1 of 4 Pages
FUTURE MEETINGS:
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572)
Monday, March 15
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Tuesday, March 16
8:30 a.m. Quarterly Meeting with Health & Human Services
Wednesday. March 17
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, March 22
10:00 a.m. Board of Commissioners' Meeting
Wednesday. March 24
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday,
March 25
9:00 a.m.
Quarterly Meeting with the Fair & Expo
10:00 a.m.
Semi-annual Meeting with the Assessor
11:00 a.m.
Semi-annual Update Meeting with the Clerk
2:00 p.m.
Quarterly Meeting with the Sheriff
3:00 p.m.
Quarterly Meeting with Community Justice
Monday, March 29
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, March 15, 2010
Page 2 of 4 Pages
Wednesday, March 31
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, April 1
8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall
Monday, April 5
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, April 7
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
WednesdayApril 14
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, April 19
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, April 21
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, April 22
11:00 a.m. Quarterly Meeting with the Commission on Children & Families
Monday, April 26
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, March 15, 2010
Page 3 of 4 Pages
Wednesday, April 28
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, Mai
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, May 5
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
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.
Board of Commissioners' Business Meeting Agenda Monday, March 15, 2010
Page 4 of 4 Pages