2001-676-Minutes for Meeting August 20,2001 Recorded 8/30/2001DESCHUTES COUNTY OFFICIAL RECORDS r} 2oo1676
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MARY SUE PENHOLLOW, COUNTY CLERK1iJVCOMMISSIONERS' JOURNAL 08/30/200!04;35;33 PM
Z Board of Commissioners
1130 N.W. Harriman St., Bend, Oregon 97701-1947
(541) 388-6570 • Fax (541) 388-4752
www.deschutes.org
Tom De Wolf
Dennis R. Luke
EXCERPT OF MINUTES OF WORK SESSION Mike Daly
DESC1 UTES COUNTY BOARD OF COMMISSIONERS
MONDAY, AUGUST 20, 2001
Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also
present were Mike Maier, County Administrator; Sue Brewster, Sheriffs Office;
Ted Schassberger, Jenny Scanlon and Susan Ross, Commissioners' Office. Also
attending were Dave Leslie, Damian Syrnyk, Kevin Harrison, Paul Blikstad and
George Read, Community Development; George Kolb and Tom Blust, Road
Department; Scott Johnson, Commission on Children & Families; media
representative Barney Lerten of bend com; and four citizens.
Chair Tom De Wolf opened the meeting at 10: 00 a. m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was a Presentation of the Deschutes River Mitigation
and Enhancement Committee's Annual Report.
Jim Bussard and Mark Manion of the Oregon Department of Fish & Wildlife
gave a brief presentation of the annual report. Mr. Bussard explained that the
committee was pioneered by County Commissioner Tom Throop, and the
main thrust of the work of the committee is to improve fisheries habitat.
When the committee was established, Central Oregon Irrigation District
agreed to fund the work of the committee in return for being able to build
hydroelectric projects.
Excerpt of Work Session Minutes Page 1 of 11 Pages
Monday, August 20, 2001
Quality Services Performed with Pride
Mr. Bussard explained that COID also receives other funds and pays the bills,
including payments to the Oregon Department of Fish & Wildlife. He also
stated that they are very careful with the money, and leverage financing
whenever possible.
Mr. Manion then gave a brief slide presentation detailing the group's most
current projects on the Deschutes River.
3. Before the Board was a Discussion of a Public Hearing (Scheduled for
Wednesday, August 22), and Consideration of Signature of Order No.
2001-075, Completing the Legalization Procedures regarding the
Realignment of a Portion of Pinehurst Road.
George Kolb stated that he has been contacted by six interested persons, and
that all fourteen property owners affected by this issue have been notified by
mail. He has received no negative comments.
4. Before the Board was Discussion and Consideration of Signature of a
Cooperative Assistance Agreement between Deschutes County, Crook
County and Jefferson County for Mutual Emergency Support.
Sue Brewster explained that this is the continuation of an existing contract with
the two other counties that is meant to provide mutual support during an
emergency situation at no cost to any of the counties for a period of 72 hours.
5. Before the Board was Discussion and Consideration of Signature of a
Written Decision on Appeal #A-01-10 of the Hearings Officer's Decision to
Deny a Variance to the Density and Open Space Standards to Add Lots in
an Existing Planned Unit Development (Odin Falls Ranch).
Paul Blikstad said he and Laurie Craghead of Legal Counsel had previously
provided copies of the final draft of this Findings and Decision to the
Commissioners.
Commissioner Luke then stated that he wished to disclose he received a copy of
a letter from a citizen addressed to Commissioner Daly regarding this issue, but
that he did not read it. (This letter was also received by Commissioner De Wolf,
Legal Counsel and Community Development.)
Excerpt of Work Session Minutes Page 2 of 11 Pages
Monday, August 20, 2001
LUKE: I move approval of the written Findings and Decision on the Odin
Falls Ranch application and appeal, case files no. MC -00-11, RP -00-
2, V-00-14.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
(Commissioner De Wolf was unable to vote on this issue, as he was not present
when the original oral vote was taken on this issue.)
6. DISCUSSION OF A PUBLIC HEARING (Scheduled for 4:00 p.m.,
Wednesday, August 22, 2001) on Appeals Filed by Mericom and SBA
Communications, of Hearings Officer's Denial of Conditional Use Permit
Applications for the Establishment of Wireless Telecommunications
Facilities in Sunriver and La Pine.
Damian Syrnyk gave a brief overview of both appeals.
►
These are on two separate appeals filed by companies that received denials of
permit requests to build communications towers in Deschutes County. One of
them is Mericom, who applied for a conditional use permit to establish a
communications facility, including a tower 125 feet in height, in La Pine at the
La Pine sewage treatment facility property on Reed Road. Their file numbers
are Appeal A-01-11 and conditional use permit CU -00-129.
The other appellant is SBA Communications. They applied to establish a
communications facility in Sunriver, on a property in the Sunriver Business
Park, located at 56866 Enterprise Drive. Their proposal also included a tower,
this one being 120 feet in height.
The Board of Commissioners, at the request of staff and legal counsel, had
decided to hear both of these matters this Wednesday for several reasons. One
is that both appeals address a lot of the same issues regarding whether these
companies that are proposing to establish a tower without having immediate
communications equipment on the tower can get approval under our ordinance.
Excerpt of Work Session Minutes Page 3 of 11 Pages
Monday, August 20, 2001
SYRNYK:
Also, in both cases, the same legal counsel out of Portland is representing them.
It seemed most efficient to deal with both of them at one hearing instead of
holding separate hearings.
I wanted to make sure that the Board received a fairly thick packet of materials
last week. I tried to do a brief staff report, but also included copies of the
appeals filed in each situation, the Hearings Officer's decisions, the staff
reports, and the transcripts for each file. You should have received two
transcripts for the SBA appeal. This was originally scheduled for a hearing on
February 20, 2001, and the applicant had requested a continuance to a date
certain, which was April 17. You should have a fairly short transcript of the
February 20 hearing and a somewhat longer one for a hearing that was held on
April 17.
(The Commissioners indicated they had the information detailed above.)
SYRNYK:
One of the things I wanted to point out is that the Mericom appeal is on remand
from the Land Use Board of Appeals; so we are under a little bit tighter timeline
than the one from SBA. SBA did grant us an extension of time to hear the
appeal. In both cases, we are going to hear the appeal de novo.
I want to point out, and you'll notice this when you look at the Hearings
Officer's decisions, the Hearings Officer had denied both permits on some
narrow grounds as to whether the proposal put forth by each company fell into
the definition of a wireless telecommunications facility. In both situations, the
Hearings Officer did not go through the rest of the criteria for that kind of a
permit.
So, if after the conclusion of the hearing and if the Board has been convinced
by SBA and Mericom that each has a wireless telecommunications facility
that's proposed, then the next step would be to see whether each application
meets all the criteria for approval under our zoning ordinance.
DEWOLF:
One thing that would be helpful is to have staff s opinion ... I assume the
Hearings Officer was Karen White?
SYRNYK:
In both cases, the Hearings Officer was Tia Lewis.
Excerpt of Work Session Minutes Page 4 of 11 Pages
Monday, August 20, 2001
DEWOLF:
If you could give us staff s opinion on Tia's conclusions, that would be helpful.
SYRNYK:
I could make that part of my staff report on Wednesday.
DALY:
In my reading of these documents, it seems to me that they are attacking our
ordinance. If our ordinance were in conflict with the Federal Telecommunications
Act, I would also like our legal staff to give us an opinion on that.
DEWOLF:
We haven't ever actually been challenged in court on the merits of the
ordinance, have we?
SYRNYK:
We have not. Actually, these two appeals that you'll be hearing on Wednesday
will be the first time that you'll be dealing with this issue of a proposal for a
communications tower that would support antennas and other transmission
equipment, and whether that would follow the definition of a wireless
telecommunications facility. Depending upon your interpretation there,
whether or not the Board believes that might be in conflict with the Federal
Telecommunications Act. Both legal counsel and I have been doing some
research to address those questions.
DEWOLF:
So we'll have answers from both CDD staff as well as legal, correct?
SYRNYK:
Correct. Laurie (Craghead) has done quite a bit of research, and I've been
doing some myself to prepare for the hearing on Wednesday.
DEWOLF:
So are we going to do this blind on Wednesday? Are we going to have any
time to go through this information prior to then?
SYRNYK:
That depends on how soon we can get it to you. I do have some materials that I
can get to you later this morning. There are some cases that the attorney for
SBA and Mericom has cited in her appeal documents, and I can get those to
you.
Excerpt of Work Session Minutes Page 5 of 11 Pages
Monday, August 20, 2001
DALY:
You are going to get the cases to us, or the summary?
SYRNYK:
I can get you copies of the cases if you want.
DEWOLF:
I don't need copies of the cases, personally. I'd like yours and Laurie's
conclusions based on your readings.
LUKE:
Staff could meet with individual Commissioners and just discuss it with them,
as long as we don't meet as a group of two or more. It might be a lot easier, too.
DALY:
If we were to determine, based on staff and conversations with legal counsel,
that it does conflict with the Telecommunications Act and that our ordinance is
Q'f: NF
LUKE:
That's the kind of question you probably need to discuss with legal counsel in
private, and not on the record. I would expect that Damian can't answer this.
DALY:
Are we then going to have to decide the rest of the issue, or will those come up
later?
SYRNYK:
That's a good question. I may have to defer answering it until we get on the
record at the hearing on Wednesday.
LUKE:
We can't refer things back to the Hearings Officer for a new hearing. It would
be a new application, wouldn't it?
SYRNYK:
What I'm saying is, I may have to wait until Wednesday to answer your
question, at the hearing before the Board.
LUKE:
That was the whole problem. We wanted to send other things back to the
Hearings Officer and couldn't.
Excerpt of Work Session Minutes Page 6 of 11 Pages
Monday, August 20, 2001
DALY:
It seems to me there are two issues. The one issue we talked about. The other
issue is, if we find one way or another, then we have to address this second issue.
SYRNYK:
Even if the Board finds that in each case what is proposed by the applicants is a
wireless telecommunications facility, that's not an automatic guarantee that they
are going to get approved. In each case, the Board will have to make findings
on all the criteria and make its own determination whether they've met or can
meet all the criteria.
DEWOLF:
Which is exactly what Tia had to go through.
SYRNYK:
In both of her decisions, she stopped at where she found they didn't fit the
definition of a wireless telecommunications facility, according to her opinion of
reading our code.
DEWOLF:
If we came to that same conclusion, we would also not have to go through those
criteria. If we reach a different conclusion on the original question, then we
would have to follow through on each of the criteria.
LUKE:
Or would you send it back through the application process? We don't have the
expertise that the Hearings Officer does on law and those kinds of things.
DALY:
That would be my question, too.
GEORGE READ:
We would ask that you address those criteria. We have a staff report, and we
would be moving forward with the other criteria to address them. Let's assume
that we get there. We would brief you. We have past Hearings Officer's
decisions, and we have the staff report. We would be making a
recommendation based on those things. There would be some advice offered in
keeping with what we've done in the past.
DEWOLF:
Are we going to have to deal with each one of these separately within the one
hearing?
Excerpt of Work Session Minutes Page 7 of 11 Pages
Monday, August 20, 2001
I think the Board could open up the hearing on both matters, then let people
testify, either or both cases depending upon what their preference is.
DEWOLF:
The first part is the presentation of the case. Is there going to be one case being
made for both Mericom and SBA, or are we giving each its own specified time
within the opening of the hearing to make their case? What would you
recommend?
SYRNYK:
I will get in touch with their counsel to see what they propose to do.
DEWOLF:
The thing that I want to do is have a time limit on their opening statements so
that we do have the opportunity for people to testify and still get home for
dinner sometime that night. What I'm thinking is a ballpark time of an hour for
opening statements. If they want to do two thirty -minute openings, or one
sixty -minute opening that covers both, I'd leave it up to their counsel. If you
could toss that idea at them, I'd appreciate it.
SYRNYK:
I can do that.
LUKE:
Mr. Chair, regarding receiving public testimony, are you going to restrict it to
the County's ordinance? It's a de novo hearing on not whether the tower should
go there; to me, it's a de novo hearing on the Hearings Officer's decision that
this violates the County's ordinance. Isn't that the first thing we've got to
determine?
SYRNYK:
In a de novo hearing, people can address everything as new.
LUKE:
We could have some folks come in and say, "We don't want towers here, here,
here and here"?
SYRNYK:
You might have some folks show up to do that.
Excerpt of Work Session Minutes Page 8 of 11 Pages
Monday, August 20, 2001
LUKE:
I'm sure we will. That's why I'm wondering, if we do this in two parts, if we
determine that the County ordinance is in violation of federal act, do we then set
another hearing to talk about the towers themselves?
DEWOLF:
What are our time constraints on Mericom?
SYRNYK:
I believe we have until a date in September; I'll have to check the remand order
from LUBA, and the agreement between the County and Mericom. I know
with SBA it was a date in October.
LUKE:
You're not going to get done in two hours if you are throwing this open to a de
novo hearing as to whether there should be cell towers anywhere.
DEWOLF:
It's just these two locations.
SYRNYK:
One of the things we do in our hearings before a Hearings Officer is to prepare
an overhead and hand it out to people to focus their attention on what the
criteria area. That's so that they are not making general statements about
whether we should have towers in Deschutes County. We give them copies of
the staff report, the appeal and the criteria, so they can direct their testimony.
The Chair can say, "Please direct your comments and testimony to the criteria
that we are going to be using for making a decision".
DEWOLF:
We'll just see how many people show up.
SYRNYK:
We had a really small number at the Mericom hearing. We also had a small
number at the Sunriver hearing.
DEWOLF:
It seems to me that a lot of this comes down to the location when it pertains to how
many people would show up. It doesn't change the merits of the case. In La Pine,
it strikes me, if I remember correctly, it's not all that close to residential areas.
Excerpt of Work Session Minutes Page 9 of 11 Pages
Monday, August 20, 2001
LUKE:
They wanted it down there because they got rent off of it. They wanted this
tower in La Pine.
SYRNYK:
The tower in La Pine is proposed to be on the La Pine sewage treatment facility.
It is a good distance from the highway, and is also a good distance from any
residential area. The tower in Sunriver is a little bit closer. It's in the southeast
corner of the business park at the end of Enterprise Drive, I think right across
the street from the post office property.
LUKE:
Sunriver didn't like the summit lift on Mt. Bachelor because they could see that.
Can you imagine what they think about the one right next to their property?
��
There were more opponents testifying against SBA's proposal for the Sunriver
facility.
DEWOLF:
Any information that you can provide us in terms of your conclusions of the
law related to the Federal Act would be helpful. I ask that we receive the
information in advance so we have a chance to review it in plenty of time.
8. Before the Board was Discussion and Consideration of Signature of an
Intergovernmental Agreement between Deschutes County and the Oregon
Commission on Children & Families for the Healthy Start Program.
Scott Johnson explained that 40% of funding comes from the State Commission
on Children & Families, and that this particular agreement details the "Ready
Set Go" program, which has been recently moved from Central Oregon
Community College to the Educational Service District. Some COCC
employees stayed with the program, which has already been expanded into the
La Pine area.
LUKE: I move approval, subject to legal review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Excerpt of Work Session Minutes Page 10 of 11 Pages
Monday, August 20, 2001
9. Before the Board was Discussion and Consideration of Signature of a
Grant Agreement between Deschutes County and the Oregon Commission
on Children & Families for Various Programs.
Scott Johnson stated that this is the basic biennial agreement with the State.
LUKE: I move approval, subject to legal review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
13. Before the Board was a Drawing from Entries for County Fair Prizes.
The Board and Jenny Scanlon conducted the drawing at this time, and the
winners were:
■ Lunch with the Commissioners: Mark Butler, Bend; and Phil Prodehl, Bend
■ Free Flu Vaccination: Sondra Anderson, Redmond; Georgie Hanson, Bend
■ Free Dog License or Pet ID: Cathy Del Nero, Bend; Gean Kellis, Crooked
River Ranch; Don Kliewer, Bend
■ Free Skid Car Training: Patti Ludwig, Redmond
Being no further items brought before the Board, Chair Tom De Wolf adjourned the
meeting at 11: 00 a.m.
DATED this 20th Day of August 2001 for the Deschutes County Bo rd of
Commissioners.
ATTEST:
Recording Secretary
Excerpt of Work Session Minutes
Monday, August 20, 2001
��W'A
Tom De elf, Chair
a�y
Dennis R. Luke, Commissioner
Michael M. Daly, Co"Jiiissioner
Page 11 of 11 Pages