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2016-358-Minutes for Meeting February 11,1997 Recorded 7/8/2016DESCH TES COUNTY FICIAL NANCYUBLANKENSHIP,FCOUNTY CLERK 1�J 2016.35 COMMISSIONERS' JOURNAL 07/08/2016 11:17:13 AM IIIIIJllIIIIIIIIIIIII38) III III 2016-3 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 and Page to correct MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS Tuesday, February 11, 1997 7:00 p.m. Chair Nancy Pope Schlangen called the meeting to order at 7:02 p.m. County Commissioners present were Nancy Pope Schlangen, Robert L. Nipper, and Linda L. Swearingen. Also in attendance were Damian Syrnyk, Bruce White, This was to hear an appeal of a conditional use permit The Hearings Officer approved the applicants request. The applicant has the burden of proof that it has met the criteria sought. Staff report on prior proceedings. Hearing procedures will be to hear testimony from the applicant first, the opponents will then be given a chance to make a presentation, the applicant may then provide rebuttal. Prehearing contacts: NPS asked if any member of the board had prehearing contacts. RLN - none. LLS - none. NPS - none. Any person in the audience wish to challenge the qualifications of the BOCC of being biased, prejudiced - no challenges came from the audience. Damian Syrnyk reported this was an A-97-2, an appeal of the Hearings Officer's decision of CU 97-5. Damian reviewed the information he had provided to the Board. Damian state the property was located 22901 East Hwy. 20 on the south side on the Powell Butte Highway and Dodds Road. Damian reviewed the applicable criteria with the Board. Damian Nancy Pope Schlangen asked if telephone cellular poles required a building permit. Damian stated that if a public transmission pole is within public right-of-way Bruce White discussed the aspects of the pole regarding the building permit for the pole. He felt there were more control through the LM zone than there would be in the EFU zone. Chair Nancy Pope Schlangen opened the public hearing. Mike Canfield testified on behalf of the applicant. He reviewed Western PCS (personal communication services) history with the Board. Western PCS provides digital services. Western has a system in the Portland metro area from Washington down to Salem. They are ready to launch service in Eugene and Bend (the greater CO area). They have been working with the planning staff for about six months. They are here to provide a cellular system and services to their customers. He discussed (copy of their objection to the way the appeal was handled provided to BOCC) their objections. He stated the statute permits this on exclusive farm use land. Mike Canfield stated the appellant had raised five issues. They are not included in the definition of utility facility as defined. They must be located in the EFU Zone to provide this service. They also raised the applicant did not demonstrate that this was not the least desireable spot on the land. The applicant proposes a structure that was beyond the limit allowed in the zone. Exhibit #1 photo of Photo #2 closer structures allowed in the LM Zone #3 shows a side scale of the structures over 30 feet tall. #4 shows a number of structures that did not satisfy a number of criteria for the LM Zone #5 & 6 another photo of the substations #7 show utility lines an pole Issue #4 criteria could not apply to them as a part of the natural environment. They had located the pole 250 feet off of highway 20 and 200 feet from Issue #5 applicant did not demonstrate how it would be compatible with the surrounding area. This would not be heard, no airborne emissions, no traffic, no sewer, it would only have a visuable impact which has been minimized as much as possible. Linda Swearingen asked he had met with Dr. Hill - Yes he had met with him. LLS asked he had met with any other of the neighbors. He stated he had not because it was not required. He stated they felt it was not very productive to meet with neighbors. Linda Swearingen comments regarding how people felt about being asked and/or talked to about what was happening in their neighborhood. Bruce White Mike Canfield stated most people use their phones when they are in their cars so therefore they want to be close to the highways. The further back they are from the highway the less service they can provide to their customer which sometimes means additional sites. Bruce White asked if they would try to provide 30 foot towers if they were required. He felt it would not be cost effective to have to develop a system with 30 foot sites because they would have to provide too many towers. Bruce White asked re: the conditional use standards for the LM Zone. Austin Roberts why on this land - the areas designed by him He designed the tower height of 150 feet to be able to provide better service (copy of a memo provided). This memo gives some explanation as to how a site was developed and how the development team chooses that site. 33% more coverage radius when the height was increased 50 feet. When you pull away from the highway it reduces quality. 30 foot tower - he has never built one that short - the shortest he had built was 45 feet - tree clutter at 30 feet would cause reduction in coverage range - Bruce White stated this was the next site out past 20 and 27th, and Austin Roberts stated this would reduce the range and result in another search for another location. Opponents: Jim Hill, lives on Harmony Lane, thanked the Board for hearing the appeal. He stated the attempt by Western PCS to squash the appeal was one reason they were here. He didn't like to way it was done. He stated that looking back on Mr. Eck's finding, page 14 #4, refers to a wood pole (which was what he approved) . He had talked with Mike Canfield from Western PCS. He stated he didn't object to Western PCS no matter what, but how intrusive they were going to be. Impacts mountains views. He wondered if they tested at heights other than 150 feet. Linda Swearingen responded that the Board had test results at 100 and 150 feet. He wondered if low levels of radiation would be a problem. He discussed an article from Arizona because of complaints of noise and a pulsating which was not there before the cell tower. He wondered if it wouldn't be in the best interest to put forth the proposal on the table to see the impact rather than do one area at a time. Burden of proof on the EFU Zone goes beyond tonight, he disagreed with the findings of the Supreme Court. He didn't object to technology and advancement, but he felt there was a point that negative impact starts to effect an area. He stated they had originally thought this tower had lights on it. He realized they were trying to run a business for profit but did not feel that they could come in and run this any way that they wanted. He felt a precedent needed to be set now before more cell towers are proposed. He felt what it came down to the applicant was money, but not necessarily the landowners problem. He felt the towers could be short but take advantage of the natural elevation of the land and place maybe one more tower out there to fit their needs. He stated that if they cannot meet their needs with a shorter tower, they should rethink their plan and go to Plan "B". Sue Stoneman Commissioner Nipper asked if Mr. Hill felt the tower was placed west would it be less obtrusive. Mr. Hill stated "no" but a shorter tower would be better. Bruce White asked what height of tower would be acceptable. Mr. Hill stated a 50 foot tower would be better. Commissioner Nipper asked about the height of tower. Austin Roberts stated the closer you are to clutter (trees) Dick Van Ausdale stated they had approached him originally about putting the tower on his property. He stated there were 5 or 6 ridges with no houses close by where he felt the tower could be located. The site had .78 acre of water on it, and the only reason that soil isn't growing anything was because it had no water put on it.. He felt there were enough cell companies in Bend already as he had seen 3 ads in tonights paper. Sue Stoneman testified in opposition. Sue stated this neighborhood was pretty much houses on 5 & 10 acre parcels. Ordinances were adopted prior to cell towers and may be it should be looked at how the ordinances are applied to this issue. She felt independent studies should be provided here. Bob Hoar testified in opposition. He stated that if you were trying to build a house in the EFU Zone it would be quite a problem. He stated there were 13 neighbors so this was a residential area even though it was not zoned that way. He stated most of the poles in the photos were only about 60-70 feet tall which would be a lot shorter than the proposed cellular pole. He felt there would be other companies which would be using this pole. He felt there was some kind of compromise which could be reached by planning ahead. John Stockton testified in opposition to the tower. He stated that in order to do a business you have to obey the laws that are in effect here. He had a tough time getting a sign which was along the road. He reported a radio tower to serve a 3 mile area like that, how many are there going to be. He felt even though they said there would be no lights on this tower now, he felt eventually it would be a requirement because of the height of the tower and the close proximity of the airport. Dick Van Ausdale stated this tower was originally going to be wood and now it was going to be metal, and wondered if they really needed a 150 foot lightening rod out in the middle of their pasture. He felt 5 feet for every foot of height was a good idea. Mike Canfield Nancy Pope Schlangen asked a question regarding whether there was ever any irrigation on this soil. Damian stated there was a letter from COID indicating the property was being assessed .78 of an acre of water rights. The water right would be south/southwest of the pole. Nancy asked about any crops or grazing. Damian stated he had not seen any sign of either but also did not have information saying that had never happened. Mike Canfield stated this was not pasture land, as it was in the center of bitter brush, etc. NPS asked if there had been studies done on noise, etc. Mike Canfield stated there were industry studies. On the issue of noise, there was federal standard that deals with this issue. The proposed facility was below the federal standards. He mentioned that this was one of the area that the local jurisdictions cannot deny them. There was a cooling unit on the pole which does produce some noise and felt that neighbors would not be able to hear that. NPS asked whether they had looked at public lands. He stated that in all cases they look to site on public lands. He stated they have a number of site being discussed for location on Forest Service, BLM, Bureau of Indian Affairs, Awbrey Butte, City of Bend water tower. LLS stated the County was interested in locating cellular towers on their land. Mike Canfield responded to questions asked by opponents. Interferring with the mountain view - this site was selected because the site was north of the majority of the houses in the area. They are also looking a locating sites on the north side of Highway 20 farther out. He wasn't sure how close they were to Mr. Van Ausdale, he felt the tower was located 1200 feet from a residence. He stated one additional site at the cost of $500,000 could make a difference between profit or not. Originally they had addressed lighting which may be required and if it was required, the lighting would be screened. He stated the leasing agents have one interest which was to see who would allow them to place a cell site on their property which allows them to know at the very beginning as to who would or would not be interested. Leasing agent has no control over the height of the pole and he wasn't sure what the leasing agent would have told the neighbors regarding the height of the pole. Commissioner Nipper asked if Western PCS operated on a higher frequency than other companies. Mike Canfield stated they operate at a higher megahertz which means they can't broadcast out as far and not through trees or hills as well without being higher. Commissioner Nipper asked re: high value farmland. Damian responded regarding soil types and high value. Mike Canfield discussed whether they had proposed a wood or metal pole. The proposal has always been for a metal pole. The system was grounded and meets all uniform building code standards. He felt the county would not be overwhelmed with requests for 150 foot poles. He discussed whether or not the ordinance deals with cell towers, he felt the definition did include communication companies. Antenna photos show what the facilities will look like when they are put in place. The antennas were 2 x 4. This technology operates on a separate band width and would not interfere with televisions or radios . There site looks different than Cell One's site because of the different band width. Bruce White asked about the other potential sites. He stated there was a plan which was looked at by staff but it was not left with the staff and Bruce felt they would like to look at that proposal for the potential sites. Mike Canfield stated he would be able to provide that for the staff. Bruce White asked about leasing agents. Do you listen to suggestions made by neighbors. Mike Canfield stated they did listen and they did move in an area that would get them away from the houses. Bruce asked if there was any consideration give to the park owned parcel. Mike Canfield stated they did not go look at that particular parcel. When comments are received, do you encourage they comments given back to you. Mike Canfield stated he did encourage them to do that, but not all comments were reported. Damian reported there was no waiver of the 120th day. The last day for the County to take action was March 6th by which to make a decision. NPS asked regarding Goal 5 LM Zone. Does the Board need to leave this open in order for the applicant can respond. Bruce White stated when an applicant asked for a continuance, it does not count against the 120 day time clock. The Board could grant holding the record open for 7 days. Commissioner Nipper Bruce White NPS stated we can leave the record open for 7 days and the clock would not be ticking for those 7 days. Bruce White asked what the applicant wished for the continuance. Staff recommendation be to hold the time period open for written response only, but not another public hearing. Mike Canfield the request to leave the record open as a conditional request. Bruce White recommended Commissioner Nipper Bruce White Board discussion interpretative issues. Commissioner Nipper asked that in defining public utility was it a use by the multitude or by the contract user. Bruce White stated the definition says public utitlity for public use. This definition states public utility which could be a more narrow definition for the purpose of the building code. Mike Canfield stated they were told this would not apply to them as it would only apply to something requiring a building permit. They did this based on staff's advice to them. He felt that if there was a new interpretation of this standard and he would need time to look into it and address it. Bruce White stated the previous Mike Canfield felt this applying a new standard at a rather late stage in the process. RLN asked for a Mike Canfield to address the definition of high value soil. Mike Canfield reported State law does not list 58C soil as high value soil. Damian Syrnyk Bruce White asked how much time was needed. Mike Canfield requested a 7 day 5:00 p.m. on February 18th by the applicant 5:00 p.m. on the February 25th for opponents. Board would have to make a decision written, signed, and in the mail by March 6. The Board could make a verbal decision Austin Roberts responded to RLN regarding service between Bend and Sunriver. Written response from applicants until 5:00 p.m. Feb. 18th Written response from opponents until 5:00 p.m. Feb. 25th Board would meet on the Feb. 26th for work session with decision made the following with decision put in writing and mailed to all appropriate parties. Bruce White felt there was a continuance. Mike Canfield said yes. The timeline has been layed out. Chair Schlangen closed the public hearing, except for written responses as outlined above. I certify that the above is a Word document in the Board of Commissioners' files of a meeting of the Deschutes County Board of Commissioners held on February 11, 1997. This document was completed as shown subsequent to the presiding Deschutes County Board of Commissioners' tenure. Bonnie Baker Executive Secretary July 6, 2016