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2001-690-Minutes for Meeting August 22,2001 Recorded 9/14/2001DESC COUNTY OFFICIAL J- -ESC MARYHSUESPENHOLLOW, COUNTYCLERKCJ 2W1.690 ��. O� COMMISSIONERS' JOURNAL 09/14/200103:24:38 PM 2� Board of Commissioners 0 u A 4,4t 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 MINUTES OF PUBLIC HEARING Mike Daly DESCHUTES COUNTY BOARD Of' COMMISSIONERS WEDNESDAY, AUGUST 22, 2001 The purpose of the public hearing was to hear two appeals: Application by Mericom to Site a Wireless Telecommunications Facility at the La Pine Special Sewer District Sewage Treatment Facility, File #CU -00-129. Application by SBA Communications to Site a Wireless Telecommunications Facility in the Sunriver Business Park District, File # CU -00-139. Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also present were Damian Syrnyk, Community Development; Laurie Craghead, County Legal Counsel; representatives of the applicants; and several citizens. Chair Tom De Wolf opened the meeting at 4: 03 p.m. TOM DEWOLF: This is a hearing on Appeal A-01-11, an appeal of the County Hearings Officer's decision on Conditional Use Permit CU -00-129. Aren't there two appeals? DAMIAN SYRNYK: Yes. DEWOLF: This only lists one. SYRNYK: We're doing this one first, and then we discussed closing the hearing on the Mericom matter and then opening up the hearing on the SBA matter. The second one is File No. CU -00-139. Minutes of Public Hearing Page 1 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Quality Services Performed with Pride DEWOLF: Be absolutely assured I'm not reading through this statement twice today. LAURIE CRAGHEAD: This is acceptable as long as no one else comes into the hearing room at the time of the second hearing. You can put it on the record, saying that no one else has entered the room, and therefore waive the second reading. DEWOLF: If everyone doesn't know, the way we are going to handle this today is that we're going to do these two hearings back-to-back. We're going to handle the Mericom appeal in its entirety, and then we'll handle the SBA issue in its entirety, as opposed to handling them either as one appeal or having the applicant for both speak and then do their rebuttal, or what have you. We're just going to work our way through this. The applicant, Mericom Corporation, requested approval of a conditional use permit to establish a wireless telecommunications facility in the La Pine sewage treatment district. This application was previously considered by the Hearings Officer after a public hearing on January 23, 2001. Evidence and testimony were received at the hearing. The Hearings Officer denied the application for the conditional use permit. The applicant has the burden of proving it is entitled to the land use approval that is sought. Standards applicable to the applications before you are displayed in the overhead (referring to the overhead projection - attached as Exhibit A). Here are our procedures. The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony, evidence and information submitted into the record of this hearing, as well as that evidence constituting the record before the Hearings Officer. The record developed to this point is available for public review at this hearing, and is also available at the Community Development Department office. DEWOLF: Testimony in evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing and listed on the overhead. Testimony may be directed to any other criteria in the comprehensive land use plan of Deschutes County or land use regulations that any person believes apply to this decision. Minutes of Public Hearing Page 2 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: 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. The hearing will be conducted in this order. Staff will give a report of the prior proceedings. The appellant will then have an opportunity to make a presentation and offer testimony and evidence. And, what we've agreed is that between these two presentations, there's a total of an hour available to the appellants. If they want to use ten minutes on the first one, they would have fifty minutes available for the second one. If they want to use forty-five minutes on the first, they'll have fifteen minutes for the second one. There's a total of an hour between the two appeals. Opponents will then be given a chance to make a presentation, and the only restriction there is if we end up by 4:30 having 200 people in here, then we would put a restriction on the time for them as well. We'd all like to get home for dinner with our loved ones while it's still the 22nd of August. After both proponents and opponents have made presentations, the proponents will be allowed to make a rebuttal presentation. At the Board's discretion, opponents may be recognized for a further rebuttal presentation. At the conclusion of this hearing, staff will be afforded an opportunity to make any closing comments, and the Board may limit the time for presentations. Questions to and from the Chair may be entertained at any time at the Board's discretion. Cross-examination of witnesses will not be allowed. What that means is, the Board can interrupt anybody to try to get clarification, but people from the audience need to direct things to the Chair and not to each other. If any person wishes a question to be asked of any other person during that person's presentation, please direct such questions to me, and then I'll decide whether to ask the question of the witness. I'll now direct a question to the other members of the Board of County Commissioners. If any member of the Board, including me, has had any pre - hearing contacts, now is the time to state the substances of those pre -hearing contacts so that all persons present at this hearing can be fully advised of the nature and context of those contacts, and with whom contact was made. Are there any contacts that need to be disclosed? Minutes of Public Hearing Page 3 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DALY: I don't have any. LUKE: There were discussions at public meetings, and information has been received from staff; but I've had no conversations since the appeals were filed. DEWOLF: And I have not had any. At this time do any members of the Board need to set forth the substance of any ex parte observation of facts of which this body should take notice concerning these applications? DALY: No. LUKE: No. DEWOLF: "No" here as well. DEWOLF: Any person in the audience has the right during the hearings process to rebut the substance of any communication or observation that has been placed into the record. Anyone want to throw any of us out? No response from the audience was offered. DEWOLF: Any party, prior to the commencement of the hearing, may challenge the qualifications of the Board of County Commissioners or any member thereof of bias, prejudgment or personal interest. This challenge must be documented with specific reasons supported by the facts. I will accept any challenges at this point. No response from the audience was offered. DEWOLF: We will now proceed. • �0 For the record, I am Damian Syrnyk with the Deschutes County Planning Division. The matter before you is an appeal of a Hearings Officer's decision denying an application for a conditional use permit to establish a wireless telecommunications facility in the La Pine Sewage Treatment District. I'd like to point out that the Board is hearing this appeal on voluntary remand from the Land Use Board of Appeals. I will address that shortly. Minutes of Public Hearing Page 4 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: The property that is the subject of this application and the appeal is located on Reed Road in La Pine, between Highway 97 at the west and the Burlington Northern railroad tracks and rights of way to the east. This property does not have an assigned street address, but it has been identified in the record as the location of the La Pine special sewer district treatment facility. It is also identified on Deschutes County Assessor's Map No. 22-10-00, which is shown on the index map as tax lot No. 107. Criteria that are applicable to review and action on this permit are listed on the overhead. For the record, I'd like to point out that this information is also listed in a handout that's located on the table near the entrance. These include criteria that are also listed verbatim in the staff report. Last week we had mailed out a copy of a staff report that you have, including a cover memorandum; a copy of the appeal filed by Mericom, the appellant; a copy of the Hearings Officer's decision on the application; and also a copy of the staff report. The Hearings Officer's decision does cite some of the applicable criteria, but they are also listed entirely verbatim in the staff report. LUKE: How large was your mailing? How wide an area for this hearing? SYRNYK: This was mailed to the parties who had participated before the Hearings Officer, either making an oral presentation and/or submitting a letter in writing. When we held the original hearing back in January, we had used the standard hearings procedures for a property that is located outside of an urban growth boundary. Our normal distance for mailing is 250 feet from the boundary of the site. When we are dealing with structures over a height limit of thirty feet, we multiple that notice area by increments of thirty. I believe that since we were dealing with a tower of 125 feet, we multiplied that distance of normally 250 feet by four or five. So, I think we notified folks that are within 1,000 feet of the sewage treatment facility. Probably just shy of 1/4 mile. DEWOLF: Didn't we amend our ordinance so that we'd make sure it encompasses a certain number of property owners? Minutes of Public Hearing Page 5 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: That was for the neighborhood meeting. When someone is doing a notice of a neighborhood meeting before submitting an application, the Board adopted an ordinance last summer that amended those requirements so that a potential applicant would have to notify a certain number of owners of record of property of a public meeting. This is so they would have an opportunity to attend that meeting. DEWOLF: So these folks have already been through that process. SYRNYK: I believe so. They may also have been made aware of the application after notice was given, or they might have heard it through the media, or possibly by contacting me after hearing something. The proposal that's under this application includes construction of a steel monopole tower, with four platforms designed to house radio transmitting antennas. It is also proposed to a height of 125 feet. The record indicates that one potential tenant is Washington -Oregon Wireless, which is a Sprint PCS affiliate. And I believe the appellants made mention that Washington -Oregon Wireless may have a new name, Alamosa PCS. After the January 23 hearing, the Hearings Officer did leave the record open for a period of time. She had requested some additional information from the applicant. After receiving that information, she made a written decision and denied the request. What I am going to do is summarize the points she had raised in her decision and the basis of her denial. First, the Hearings Officer concluded that the proposed use did not fall into the definition of a utility facility, which is defined in the Deschutes County Code in Section 18.04.13.15. The Hearings Officer had concluded that the proposal did not demonstrate the necessity of siting the facility in the La Pine sewage treatment district in order to provide wireless telecommunications services. For the record, the significance of that is, that, while the zoning is for the sewage treatment district in La Pine, its planned designation is still agriculture. This is property that was included within the boundaries of what is known as the La Pine urban unincorporated community several years ago. Minutes of Public Hearing Page 6 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: It is primarily engaged in growing hay as part of the sewage treatment operation. When the County was amending its comprehensive plan and zoning ordinance to deal with La Pine, it gave it a sewage treatment zoning designation just to recognize what was occurring on the property, but left the plan designation for agriculture. In areas that are planned and designated under Statewide Planning Goal 3, agricultural lands, there are certain uses that may be allowed in those areas, including a use that is called a utility facility. One of the things that goes along with trying to get approval for that kind of a use in an agricultural zone is that the applicant must demonstrate, and the County must find, that it is necessary to site this facility in such a zone in order to provide the service that the facility is intended to provide. The Hearings Officer had also concluded that the proposal did not show that the use was a permitted use in this zone, even if it might be allowed under the definition of a wireless telecommunications facility. The Hearings Officer concluded that the record developed up to that point hadn't demonstrated that. The applicant subsequently filed a timely appeal. If you recall, the Board had declined review of their appeal. After that, Mericom had filed a notice of intent to appeal with the Land Use Board of Appeals. First the County had proposed offering additional time for the Board to consider this matter, if they were to grant an extension of time. So, I'd like to make part of the record the agreement that was reached between Deschutes County and the Mericom Corporation dated June 8, 2001. One of the purposes for bringing this matter to the Board was that, in going to LUBA, the County had only an interpretation of the decision of the Hearings Officer. Bringing this matter before you gives the Board the opportunity to make its own interpretation of the ordinance, and to consider the Hearings Officer's interpretation of this matter. The appellant has raised several issues on appeal. I'm going to briefly summarize those. Those were brought forward to you in the notice of appeal, of which you have a copy. We also received yesterday by facsimile a letter and a document dated August 21, 2001, which is a memorandum submitted by Michelle Mudd, attorney for the appellant, that goes to the issues they raised in their appeal. There are three primary issues that they have broken down, so I'll try to summarize those, and will let the appellant go through them in more detail. Minutes of Public Hearing Page 7 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: The appellant is arguing that the proposed use is a utility facility, and they provided some arguments that show that the proposal would fall within the County's definition of a utility facility under the County's zoning ordinance. The appellant has argued that the Hearings Officer's determination may violate the Federal Telecommunications Act of 1996, and that the same determination may violate portions of statute; in this case, Oregon Revised Statute Section 197.522. This deals with the issue of imposing conditions on a land use permit to ensure that they might meet the applicable criteria of the zoning ordinance. Finally, the appellant has also provided some arguments to show that the proposed utility facility is necessary for a public service. They have several arguments under that to show that there is a need for the facility, and they have also requested the opportunity to provide some additional evidence in making their argument. I also wanted to point out for the record that I provided the Board with a copy of a memorandum dated August 22, 2001 - today. It lists issues that staff and County Counsel believe the Board must address in its findings, regardless whether the Board decides to ultimately uphold the Hearings Officer's decision to deny the permit, or overturn the decision and approve the permit. First, it did not fall into designation of utility facility. This document has been included in the record as well. This concludes my presentation; unless the Board has questions it would like to ask me at this time. LUKE: You said the tower height would be 125 feet. At the last hearing we did regarding a tower, we had maps that showed the coverage areas, what would be blank, what wouldn't be blank, and so on, depending on the height of the tower. I assume the Hearings Officer didn't even get to that point because she determined that it was in violation of Code. SYRNYK: I believe that is correct. We did receive some documentation from the applicant dealing with cellular and wireless telecommunications coverage in the La Pine area along Highway 97. From reading the Hearings Officer's decision, I don't believe that she considered that, since she concluded that because the proposed use was not allowed, she didn't get that far. Minutes of Public Hearing Page 8 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: So, if we were to find that the tower is allowed under our Code, we could then consider additional testimony as to whether it needs to be that high. SYRNYK: That's correct. LUKE: At the original hearing on this, before the Hearings Officer, was there much public input or opposition? I believe we had at least two folks testifying in opposition to the application. I did not receive much in the way of written comment or contacts from folks in La Pine over this tower. One of the things you'll notice when you read the staff report and the Hearings Officer's decision is that the La Pine sewage treatment facility is in an area that is primarily non-residential in character. It's fairly isolated, and is adjacent to some areas zoned for industrial purposes, and it's also adjacent to forest land to the north and east. LUKE: Was there much public input in favor of the tower? SYRNYK: If I remember correctly, I think a member of the La Pine sewer district might have testified in favor of it. (To Legal Counsel.) If the proponents believe this is a violation of the Federal Communications Act, would a challenge to any adverse decision by this Commission be in federal court or state court? LAURIE CRAGHEAD: Federal. MIKE DALY: Damian, I have a question. Some of this stuff refers to attached drawings showing coverage areas, but I've never seen any of that stuff. Minutes of Public Hearing Page 9 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: That's in the original file, right here. LUKE: From my standpoint, if this thing is approved, if we find that it is viable under our ordinance, I think that you may be looking at another hearing to figure out the other stuff. SYRNYK: That's certainly your prerogative. Alluding to the next hearing with SBA, you do have a copy of that record. This is one where, since we started going to the Land Use Board of Appeals, we had not assembled the record yet. Depending on where you want to go with this after the hearing this evening, we could leave the original file with you, or we could have our office make a copy for you to review, including all the documentation that was submitted by the applicant. You mentioned, if I heard you right, that cellular towers are not permitted on agricultural ground. Is that a Deschutes County ordinance? Because clearly the one in Jefferson County is right in the middle of agricultural ground. SYRNYK: In areas that are designated for agriculture, whether they are zoned exclusive farm use or like the La Pine sewage treatment facility, the Court of Appeals has found that a communications facility, like a wireless communications facility, may be allowed under this category of use called "utility facilities necessary for public service". That's a fairly broad category that has included things like sewage treatment facilities, and I believe I cited a couple of cases in my staff report, such as McCaw Communications versus Polk County, and McCaw Communications versus another County. Those cases lead to the legislature adopting a standard as part of statute that if a County is considering a proposal to establish a utility facility in an EFU zone, they must find, and the applicant must demonstrate, that it there is a necessity to site this facility in the EFU zone in order to provide the service the facility is meant to provide. LUKE: To clarify; is the fact that it is not permitted in an agricultural zone a County -by - County restriction, or a state restriction? Minutes of Public Hearing Page 10 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: It's a state restriction that we've incorporated into the County's zoning ordinance. DEWOLF: Are there any time constraints on this application that we need to be aware of? SYRNYK: The agreement between Mericom and the County did have a deadline for the County to make a decision. CRAGHEAD: It was 180 days from the date of the agreement; that's 180 days from June 8. DEWOLF: Somewhere around the beginning of December. What about SBA? Do we have the same type of time restrictions there? SYRNYK: I was going to deal with that when we get to it tonight. At this time, the representatives of Mericom made their presentation. Michelle Rudd, Attorney with Stoel Rives LLC, 900 SW Srh Avenue, Portland, OR 97204, then testified. MICHELLE RUDD: I am joined today by Heidi Oakley, who is with Mericom; Steven Topp, with SBA; and Kevin Martin, with Green Drake Engineering. They are involved in the second appeal. Heidi and I are going to do the formal presentation on the Mericom matter, and we encourage you to ask us any questions you may have. As Damian stated, there is ORS 197.522, which is mentioned throughout the papers we filed, requiring that the County approve us if we are consistent with the applicable criteria, or can be made consistent through conditions. So if there are conditions that occur to you, please field them out and give us an opportunity to respond to them. In terms of background, Damian has gone through that. We do thank you for pulling us back from LUBA, because we appreciate the opportunity to be here and discuss this in person. Minutes of Public Hearing Page 11 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals RUDD: The Mericom facility is proposed in the La Pine sewer treatment zone. That zone allows us a permitted use of utility facilities necessary for public service. In terms of narrowing it on the definition of what is a utility facility necessary for public service, I think you first have to look at the fact that the Code is regulating uses, and the Code defines a use as including intended uses of the property. It's not tied to the applicant; it's what you intend to do with the property. The intent that the use is tied to what you are going to do with the property, rather than to the applicant, is also reinforced by Section 22.36.050 of your Code. This says, "A land use action is deemed to run with the land, and is transferable to the applicant's successors and interests". It's not tied to Mericom or to SBA; it's tied to that piece of land. We believe we're a utility facility. As Damian mentioned, under case law, cellular facilities are considered utility facilities. We also believe we fall into the County's definition of a utility facility. Your own Code references telecommunications facilities, and the material that we submitted shows that we do plan to provide the necessary equipment to make sure that we the antennas and equipment are provided at this site. We have also indicated that we have no problem with the conditions of approval that would require us to not pull a building permit and not actually construct that tower until we submit to you a signed lease with the provider. The goal is to absolve any concern you may have that you could end up with a tower that wouldn't have the service actually provided. We also fall under your definition of utility facility as a wireless telecommunications facility. First, your definition says that it usually consists of certain equipment; it doesn't say it has to consist of all that. Still, we do plan on providing that equipment. In addition, the last line of that definition expressly incorporates the Federal Telecommunications Act's definition, and says it includes personal wireless service facilities. The federal government has defined personal wireless service facilities quite broadly, and says that it is facilities for the provision of cellular service. In order to provide PCS, you have to have sufficient height for the equipment. So, the monopole is necessary to provide the service. DEWOLF: And you're going to prove to us why 125 feet is necessary? Minutes of Public Hearing Page 12 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Heidi will discuss how we came up with narrowing to this site and the height. Part of the goal here, in addition to providing a site for perhaps one provider, is to provide a co -location opportunity. One of the cases we site, which is very recent out of LUBA, says that is also a use that is considered here. Our use is not just providing PCS, it's also providing for a co -location opportunity. Your Code requires us to be able to accommodate at least one other provider. In terms of determining the height, some consideration needs to be given to co -location opportunities as well. DEWOLF: I would like clarification on that. My understanding is that it's not the requirement of the original applicant; it's other people's responsibility to look at opportunities for co -location. Let's say that this is okay and they had one provider, we would not be allowed to deny this based on the fact that they don't have two providers. SYRNYK: I understand your question. I think you're correct. What our Code requires is that when someone is proposing a support structure, for their antennas or microwave dishes as part of the facility, they have to demonstrate that the same support structure could support the additional transmission equipment of a second provider of wireless service. DEWOLF: Okay. LUKE: The base of the pole itself, and the structure; not necessarily the platform. Correct. What we look at with the initial application is that the support structure that's going to support the transmission equipment which is the subject of that application could also support the equipment of another provider if they chose to co -locate on that tower. CRAGHEAD: Although there is one provision in what is now 18.128.340 [which was 040(d)(d)(b)(9)], which says that any tower or monopole shall be designed in a manner that can carry the antennas of at each one additional wireless carrier. Minutes of Public Hearing Page 13 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: How tall are the trees around there? SYRNYK: That's a good question. They are primarily lodgepole pine and some ponderosa pines. So, whether or not you actually have to have the additional height at this time, the Code does show some recognition of the benefits of co -location, and we believe that's something that should be considered when you are evaluating the appropriate height for this structure. To further show that our intent is actually to have providers out there, we have submitted letters of interest, indicating that WOW/Alamosa and Verizon are interested in locating on that tower. Verizon is interested in 125 feet, and the other at 105 feet. We have additional drawings that we will submit. DEWOLF: Do you have contracts or just letters? RUDD: We have letters. DALY: We just have one letter. RUDD: The other would be in the record, as it was submitted previously. The Verizon letter is new. Again, we have no problem with actually being able to build this tower until we have the lease. The problem is that the providers generally want us to have an approval before they enter into a lease. So, we're in this sort of catch-22 situation. Again, we'll take that condition without any argument restricting that. Also, for all the reasons I discussed and that are set forth in detail in our memo, we don't believe that it's necessary under your Code. If you look at the submittal requirements and you tie that into the approval criteria, there's no requirement that the applicant be a service provider. Minutes of Public Hearing Page 14 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Even if it were in your Code, we don't believe that the Federal Telecommunications Act would allow you to make that distinction. The Act doesn't allow you to discriminate between providers of functionally equivalent services. Effectively what you would be doing is basically benefiting those service providers who build their own towers to those who choose to use companies such as SBA. DEWOLF: According to the Telecommunications Act, it says we shall not unreasonably discriminate among providers. And my point would be on that is that it is unreasonable when the only distinction is who is building the tower. Your Code is tied in to how the property is going to be used, not who the applicant is; and we have provided and can continue to provide to you the information that relates to what frequency they would operate at, and how they are going to provide the service that's necessary there. Once we get past the utility facility portion, and Heidi will get more into that, basically the technology requires that we have sufficient height above the treetops. Looking at alternative sites is what led us to this EFU site instead of other sites. 11MA Do you have a report showing that you looked at other sites, and why they didn't meet the standards? RUDD: We have material that has been submitted into the record, probably in letter form. In terms of showing that we're necessary, the Hearings Officer had said that we had to show lack of radio frequency coverage in general, and that's not what the law requires. LUBA has dealt with this recently, and has dealt with it specifically in the context of cellular. It's a matter of what we want to provide, and we want to provide PCS. It doesn't matter if you can get land service or analog there; it's whether to provide PCS. DEWOLF: What does PCS stand for? SYRNYK: Personal communication services. Minutes of Public Hearing Page 15 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: There was an article in the Oregonian that talked about different police radios getting taken out because of certain signals that are happening. They would actually be in a place in town where things didn't work. Are we allowed to take that into consideration, when we look at the power of this station? CRAGHEAD: I don't understand the question. LUKE: Some communications devices used by the police officers in Portland were taken out because of the strength and frequencies of other signals. They overrode them. The attorneys have said that we can't take into consideration the strength or height of this thing. I'm asking if that someone shows that it interferes with emergency facilities, can we take this into consideration? CRAGHEAD: I believe so, and I believe that what Ms. Rudd was saying is that the Hearings Officer stated if there are radio frequencies of any kind available in the area, that we could discriminate, and that it was sufficient to not allow PCS. They have to prove that there is no radio frequency of any kind in there. Ms. Rudd is saying that what we have to prove is that what is necessary is for the PCS level, as opposed to the blanket radio frequencies in general. She can just show that there's a need for the PCS, even if there may be other types of radio frequencies there. RUDD: I can also add to that, as I read the article as well. The frequency that the police band operates in is not the frequency that PCS uses. The problem they were having with Nextel was somewhere around 800, and we're at 1800. It isn't us; it's Nextel. For those reasons, we believe we are permitted in the zone as a matter of right. If you for some reason determine that you don't think we're necessary for public service, for the same reasons we believe we're a wireless telecommunications facility, and that we should be approved as a conditional use. Your zoning ordinance allows a wireless telecommunications facility in all of the zones with a conditional use permit, and the initial staff report recommended approval, and found that we did in fact meet those criteria. Minutes of Public Hearing Page 16 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals HEIDI OAKLEY: I represent Mericom. My office is located at 25977 SW Canyon Creek Road, Wilsonville, Oregon 97070. The site we are proposing is a 100 feet by 100 feet leased area in the La Pine Special Sewer District. It's located at the southeast edge of the property, which is a 192 -acre parcel. (At this time, she showed some overheads of maps of the area and the specific property.) This map shows the search ring that the RF engineer produced for the area. The red circle indicates the area that's allowed to us for locating a wireless telecommunications facility, so that we can hand off to the site that's to the north, which is the SBA Sunriver site; and an existing tower to the south that's in Klamath County. As you can see it's fairly restrictive in its size, as far as where it allows us to go. The red flag is the location of the site at the sewer district property. The zoning to the south is industrial; to the north it is the sewer district; east and west is forestry. DEWOLF: How does the little flag relate to the circle? OAKLEY: That is where the site is. DEWOLF: I understand, it's the site is where the flag is. What does that have to do with the circle? OAKLEY: We ended up having to go outside of our search ring a little bit to be able to accommodate the different criteria that we had, which is to make the site as visually hidden from Highway 97 as possible. We also looked at three different properties in addition to this one, and this one works the best from a leasing standpoint, zoneability and constructability. LUKE: How close to the butte are you? Minutes of Public Hearing Page 17 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals OAKLEY: Finley Butte is the name of the map; it's not where the location of the butte is. But, since you, asked (indicating the overhead), we're about three miles away. LUKE: Did you explore siting on the butte at all, with a smaller antenna? OAKLEY: We did, and it's too far away from our coverage objective. We would be about four miles away from Highway 97, which puts us too far away from the area that we want to cover. The signal would be degraded and wouldn't do us much good. DALY: Let me understand something. The circle is an area that allows you to build one tower and still be able to contact or hand off to the towers to the north and south. You wouldn't need any more towers in between? OAKLEY: That's correct. DALY: Anything outside of that circle in either direction, you'd lose one? OAKLEY: Yes, you'd be too far away or too close. LUKE: Where is the tower to the north? OAKLEY: The tower to the north is the Sunriver site. DEWOLF: That's the proposed site. LUKE: So, if one is approved and the other is not .... Minutes of Public Hearing Page 18 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals OAKLEY: We'd have a gap in our coverage between La Pine and Bend. LUKE: Where's your site to the south? OAKLEY: It's south of La Pine about seven miles. It's already there. LUKE: Is that on forest service land or private ground? OAKLEY: That one is on private property in Klamath County. DALY: Is it a similar tower, in height and so on? OAKLEY: It's actually quite a bit taller; it's about 250 feet. (Referring to the overhead.) This map shows the various sites that we explored before we decided on the one in the special sewer district. Regarding the red dot that is labeled "industrial land", we had gotten as far as our neighborhood meeting there when we found out about the proposed airport in La Pine. In order to get out of the future runway, we moved our site. We also looked at the high school, and it was too close to the residential zones and was highly visible from all areas. The final site we looked at was an industrial parcel on the west side of Highway 97. The landlord had some future expansion projects in mind, and weren't interested. The rest of the property sites available were too small to be able to accommodate what we need. So we ended up at the sewer district property because of the topography and tree cover to the north, east and west, which hides the tower. It is also the farthest away from any residences. It's about 1,300 feet, approximately 1/4 mile, from the closest residence. LUKE: How much higher is the tower from the trees in the area? Minutes of Public Hearing Page 19 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals OAKLEY: We estimate the trees at about 80 feet, which is part of the reason we looked at 125 feet, so that we could get four carriers on there and there wouldn't be a need for an additional tower in the area. That would allow the lowest carrier the ability to clear the tree line so they would have line of sight to the towers to the north and south. The location on the sewer district property is also an area that is not useable to the sewer district; they are required by regulation to have a 100 -foot buffer from their treatment area, and we fall into that 100 -foot buffer area. It's not useable for agricultural or any other growing purposes that the sewer district may want to participate in. Also submitted via fax, and I'd like to submit it into the record (copy attached as Exhibit B), is a copy of the letter from Verizon PCS, which has recently purchased licenses in this area, which details their intent to go on this tower if it is approved. I have a copy of their letter as well as their propagation map of what their proposed coverage will be. DEWOLF: What is a propagation map? OAKLEY: A propagation map shows how the signal will go out from that tower, and what area it will cover. DALY: You have that with you now? OAKLEY: I do; it's right here. LUKE: I need to clarify something with counsel. I didn't realize that these two sites are tied together. I thought they were two different applications, and not one dependent upon the other. OAKLEY: They're not. They both are part of an overall plan. DEWOLF: And that is one of the things we are asking, is that people work together to try to use fewer towers. Minutes of Public Hearing Page 20 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: You have a tower in Bend? OAKLEY: We don't. Not many people have towers in Bend. DEWOLF: Check right out that window and tell me that no one has towers in Bend. LUKE: Go over on 15th Street, and look at that one. There are a lot of towers in Bend. OAKLEY: Which is part of the reason we didn't personally put a tower in Bend. LUKE: Do you have a transmission facility in Bend? OAKLEY: We do not. What we do is build the facility for the wireless carrier, such as Verizon and WOW, which is now Alamosa, for them to locate their facilities. If there is an existing facility, we don't put anything in unless there is a need. So we provide the infrastructure for Verizon and Alamosa to go on to meet up with their existing sites, which could be in Bend or south towards Klamath Falls. LUKE: When I'm driving in Sunriver and La Pine, my cell phone works very well. OAKLEY: Do you have Verizon PCS coverage? PCS runs on an 1800 to 1900 MHz, and cellular, which is like US Cellular, is at 800 to 900; and the FCC has auctioned off the PCS band, which is why they are coming into this market. These are carriers such as VoiceStream, Alamosa, and Verizon. DALY: What would that give you in addition to your cell phones? OAKLEY: It will also provide for the possibility of wireless internet and more data transmission. Minutes of Public Hearing Page 21 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals OAKLEY: I would also like to submit at this time into the record a revised elevation site plan drawing (presented to Damian Syrnyk of Community Development), which shows Alamosa at 125 feet. Their RF study maps and propagation maps have already been submitted into the record, as well as Verizon, which has indicated its intent to locate at 105 feet. This also shows the future for the two remaining carriers in between Alamosa and Verizon. DEWOLF: Damian, how many other poles are there in this area? SYRNYK: In La Pine, I'm aware of one communications tower that's been established on Finley Butte, on a portion of the butte that was zoned for an active surface mining operation. DEWOLF: Is it substantial enough that another provider could co -locate on that pole? SYRNYK: I believe so, as it was approved under our current ordinance back in 1998, I think. I think it's a tower that is about 100 feet in height. DEWOLF: But the applicant is claiming that it is too far away. OAKLEY: It's a lower power, so you need to be closer to your coverage area. DEWOLF: Why not use telephone poles along Highway 97? OAKLEY: It's an expensive way to do it. It also is prohibitive depending upon right-of-way availability and the ownership of the power poles. DEWOLF: If it's on the power poles, what right-of-way? Minutes of Public Hearing Page 22 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals OAKLEY: The one who has the permit for the right-of-way is not often willing to work with you to put antennas on it. You also don't get the height that you need to provide the coverage to a very big area. DEWOLF: Some of us didn't believe that the last time it was brought before us. RUDD: Kevin Martin will come up and talk about the engineering aspect. Also, any interference issues get dealt with by the FCC, and not by local government. The last thing I want to say is, again, while we maintain that we are perfectly suitable as an applicant under federal and local law, we would also accept as a condition of approval a requirement that we submit a letter from a provider within, say, 120 days of an approval, stating that they wish to be considered a co -applicant. That's offered in the spirit of cooperation, again in addressing any concerns that you may have, although we don't believe that is legally required. DEWOLF: I don't understand. That's a couple of conditions like that which you said, if it can't be allowed outright, which you think you should be, as a backup you will have this as a condition. Now, you say you don't think you need to do that but you will. If you think you're right, why do this? RUDD: Because we'd like to get an approval now. We'd rather not have to fight this. In terms of my client, my client is better served if they are allowed to do this now rather than x -years down the road. I believe the consumers would be better served as well by getting this resolved now. I have no problem with local government. I have advised local government on this type of issue before. I do want to work with the community, and end up with something that works for all of us. KEVIN MARTIN: I'm primarily a land use consultant, but I also do a little part-time RF (radio frequency) work. My business address is 2495 NW 121 st Place, Portland, 97229. Minutes of Public Hearing Page 23 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: I took some notes on some of the questions you raised and some of the comments, and would like to respond briefly. One, it was brought up whether the Board of Commissioners, can the County, can local jurisdictions mitigate or deal with or regulate interference issues. I called the FCC, and the answer is "no". These licenses are granted by the FCC, they are federal, and the FCC has always maintained complete control over interference issues. If you'll read that article that was in the Oregonian about Nextel, it got right down to it where they all went to the FCC, who said they didn't see a problem there that couldn't be worked out. Nextel and 9-1-1 were instructed to go ahead and work on it. The second question or issue is whether Deschutes County uses a trunked system on 800 MHz, or if you on 150 MHz, the old public service bands. If you are on the old public service bands, there is no issue. It's only at the 800 megahertz frequencies, which is used in urban areas such as the City of Portland, where there are some interference problems. The other issue is proximity of a Nextel transmitter on 800 MHz to a poor coverage area that the County might have in its system. One of the issues in the metro area is that cells towers have put out hundreds of sites to provide customer service, whereas Washington County is serving the entire County, 700 or more square miles, much of which is hills and rural, with five sites. They do not have adequate signal coverage, which is why there is a problem. They need more sites. At this point, the proposed tenants are at PCS frequencies, 1850 to about 1900 MHz, so there's not an issue there with interference. DEWOLF: What do you think about camouflaging, making them look like trees? MARTIN: I think it's a bad idea for a couple of reasons. First, the artificial trees look more like trees disguised as cell towers. Also, they haven't really perfected the bark coating. You've got a steel pole for structural strength, and then you put a plastic bark on it, and they all have different coefficients of expansion. From what I hear, the bark doesn't like to stay on the trees. Minutes of Public Hearing Page 24 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: You haven't been involved in any installations of this type? MARTIN: There are no tree towers in the State of Oregon that I'm aware of. I've done hundreds of sites over the last eight years, and I know of none. DEWOLF: I could find you a couple that I know of, in the valley. And there are a lot of church steeples. MARTIN: That kind of stealthing is another matter. Tree poles are not a good idea. Putting them in other structures is always the first thing you want to do. If you're out in the middle of nowhere, though, you don't have that option. Rural or even suburban areas don't really have any high-rise buildings. If you have an opportunity, you might want to go to the High Desert Museum. The trees they use in their exhibits are so real, with rubber bark, that it fools even the foresters. MARTIN: Part of the problem is those structures don't lend themselves well to multiple co - locations or extra tenants. Another thing, too, is the issue we have always been talking about, which is getting these towers above the treetops. Pine needles act like little antennas. They happen to be the length of a resident antenna at approximately 1870 MHz. So, if you put all of these little pine needles, artificial or real, they absorb a great majority of the signal before it even gets past the tower. This means that signal is not going to travel very far. The worst place to have a blockage is up close, in what they call the near field. That's why we want to get it above the trees. This improves the service to the customer, and reduces the number of sites that are necessary. Shorter sites mean more towers. That's just the way it works. Minutes of Public Hearing Page 25 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: You mentioned Awbrey Butte. Awbrey Butte works for some technologies, but will not work properly for a mature network that uses what is called CDMA technology (code division multiple access). That particular technology is used by Verizon, Sprint, Alamosa/PCS, Qwest and others. If you get towards an urban area and you put a site on the top of a hill, it will see all the subsequent sites around it. All the sites use the same frequency; they are all based on channel interference and interference levels. It is weird how it works, but it works really well as long as you don't put a high site up and have eight more around it, because all of a sudden your telephone gets confused as it sees too many sites. A high site is not going to work for a mature network, so that's why Awbrey Butte is not good for a mature network. Regarding coverage in Sunriver; my folks used to live in the north end of Sunriver, I had A T & T analog service, and I had to walk into the street, away from the trees, before I had enough signal coverage to make a phone call. Many people use these as their primary line. Regarding PCS, the higher the frequency, the less range it has. A.M. radio is a good example; sometimes you can get stations from a long way out. The higher in wattage you go, the less it will penetrate through trees, air, and clouds. You mentioned putting it on poles along the highway; this would only serve people on the highway. Most homes and business would not have any coverage. RUDD: On the issue of using camouflage; looking at the Code, the approval criteria refers to using trees, vegetation and topography to the maximum extent practical to screen. LUKE: We're working on camouflage. We did have one provider who stepped forward to work on this on a trial basis. DEWOLF: I know that you don't have to do that. I was just asking his opinion. We can't require it at this point. Is there anyone who would like to testify in opposition to this application? Minutes of Public Hearing Page 26 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LINDA MOSKOWICZ: I live at 20195 Winston Loop. I just want to ask if there can be a continuance of this for the written record to be left open for seven days or whatever. DEWOLF: We will probably do this on both of these. We got a pile of information yesterday that none of us has had a chance to thoroughly review. LUKE: I would like to talk about our legal counsel's memo (copy attached as Exhibit Q. DEWOLF: The applicant needs to have a chance to respond to the points brought up in Laurie's memo. LUKE: I think we need to put them on the record so they'll have an opportunity to respond. That might be more appropriate. You're welcome to answer any of them now if you want. RUDD: I think the best approach would be for me to take some time and give you a point - by -point response. LUKE: For want of a better word, we have an ordinance that discourages spec towers. Your argument is that our ordinance is in violation of the Federal Act? RUDD: I don't believe that your ordinance isn't valid on its face, but I think the Hearings Officer applied it in an inappropriate manner. I i) '4 The Hearings Officer interpreted it the same as the Board of Commissioners does. In effect, we do not want spec towers, and that there has to be a provider on that tower. It's your argument that this interpretation violates Federal law. Minutes of Public Hearing Page 27 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals RUDD: Our position is that you can't make that requirement under the Federal Telecommunications Act, and if we are required to follow this through and get to meet the Supreme Court Justices, then that will be our position. Again, we go back to ORS 197.522. If we were incorrect on that, we have conditions that would address that issue. DEWOLF: One other question would be having the people that you are signing up as the ones who want to lease, sign on as a co -applicant. Do you have any problem with that? RUDD: No, but we don't believe that is required under the law, but we would. DALY: I think they offered to have the lease signed before building. DEWOLF: I am closing public oral testimony at this time on this application, and am leaving the record open for a period of seven days, plus additional time to respond. DALY: I asked legal counsel prior to this hearing if it was permissible to do a site visit. DEWOLF: It needs to be within that time frame, and you could put your comments into the record. CRAGHEAD: I suggest you leave the hearing open for purposes of that site visit. DALY: I am interested in visiting both sites on the same day. DEWOLF: I am going to leave the record open until the following Tuesday, September 4, at 5:00 p.m. This would allow time for site visits for any of us that would like to do so, and will allow time to respond to our legal counsel's memo. Then we will allow an additional three days, through Friday of that week, for rebuttal; is that enough? Minutes of Public Hearing Page 28 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals RUDD: I'd like to ask for a week. DEWOLF: Then September 11, at 5:00 p.m., to completely close the record. CRAGHEAD: I am out of the office September 15 through 22. SYRNYK: Let me suggest that we give enough time to review the record and any new material. DEWOLF: Let's schedule our decision for October 3 at our regular 10:00 a.m. meeting. We can bump that if necessary. I am assuming the same time frame for the SBA one as well. DALY: We'll do a final decision October 3 on all the points, or just this one issue? DEWOLF: What one issue? We'll be making a decision on the appeal. The whole thing. IIoJ 4 Again, that creates a problem for me. I think if we rule that this application falls within the spec tower rule, we then have not looked to see whether this is the best site, whether the tower needs to be as high, or any of the things that we looked at in the last one. DEWOLF: Let me suggest this, then. We've got a memorandum from Damian and Laurie that lists the several issues that staff and counsel believes we must prepare findings on. I guess what I would suggest is that on behalf of Mericom, that you deal with these and make suggestions and prove your point on these eight issues. If we agree that this is appropriate and they make their case, then we're there. If they don't make their case, then we're not there; but then we will have that evidence on the record. Minutes of Public Hearing Page 29 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: With them answering what our questions have been today, along with these two documents, that pretty much covers what we've expressed an interest in and you've expressed an interest in, correct? CRAGHEAD: That's assuming that you have no more questions for the applicant. If you close the public testimony and leave it open for just the written record, you will not be able to ask them any more questions. LUKE: From the public input process, the Hearings Officer upheld what we have always upheld. That is, unless you are the provider, you don't put up an antenna or a communications facility. There may be people who didn't testify because it was very clear to them that this was going to be turned down. DEWOLF: If in fact, which they have already agreed, that if WOW would sign on as an applicant ... LUKE: I appreciate that. My statement is that the public may not have shown up because they knew this was going to be turned down because we always turn down spec towers. DEWOLF: Government is run by people who show up, and they should know that by now. mean, we can't be responsible if people don't show up because of their assumptions. DALY: Right. DEWOLF: That is not our problem. SYRNYK: That's true. And this entire matter, along with a lot of other projects that we've seen, has been fairly well publicized through local media, the newspapers, on the internet, and in other ways. Minutes of Public Hearing Page 30 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: Should we leave open the possibility for continued oral testimony? CRAGHEAD: I would recommend it, given that there is such a volume of information here that you are going to want to look at, if you get past that first hurdle. Then you have a bunch of other information to look at. If you have questions of the applicant, the record has to be open. DEWOLF: Then let's leave this open for potential oral testimony as well. CRAGHEAD: Which means we need to set it to a date certain. I&IMS Can't you leave the oral testimony open until October 3, when you're coming back to make the decision? If you make the decision that we uphold the Hearings Officer's decision, then you can close it. If you make a decision that you are not going to uphold the Hearings Officer's decision, then there is other information I want to talk about. CRAGHEAD: So you're setting it for October 3. LUKE: For additional oral testimony, if we so desire. Is that fair? CRAGHEAD: If it's set for the purpose of discussing the other criteria, assuming that you jump the first hurdle. LUKE: The written record date still stays where it is. We will accept oral testimony on October 3; and at that time we can also extend to another hearing date if we need to hear additional stuff. DEWOLF: In that case, do we want to do it at 10:00 a.m., or do we want to do it later in the afternoon? Minutes of Public Hearing Page 31 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Rlr4a I like 4:00 p.m. It works for me. It gives the constituents an opportunity to show up if they want to. MOSKOWITZ: The Hearings Officer made her "short" decision based on those two criteria that we've been discussing. She also said on both applications that she couldn't apply a lot of the other criteria to this because of those two factors. Nothing else mattered. So, I don't think public had a chance to address this. DEWOLF: That's what we're scheduling. What we're saying right now is that we are going to have a time on October 3 when we'll all get back together and talk. It will be open for oral testimony. It will depend on what comes in on the written file. SYRNYK: Just to clarify, you're leaving the written record open until 5:00 p.m. on Tuesday, September 4, and the appellants have until 5:00 p.m. on September 11 to submit any final rebuttal; and you're continuing the oral portion of this hearing until October 3. And at that time you will also allow additional oral testimony. DEWOLF: Can we, without additional notice, allow for further written testimony? CRAGHEAD: After the 3rd, you mean? You can make that decision on the 3rd For purposes of clarification, when you are keeping the record open for oral testimony, is that on the issues of whether we passed the preliminary hurdle of a utility facility, or is it open on everything? DEWOLF: What we're struggling with here is these two hurdles are fundamental issues of our Code that we've been struggling with. We feel that what we are doing here is setting precedence that we've not been allowed to set because we haven't dealt with these issues before at this level. We're struggling a little bit on how to make this fair to both sides and to the residents of the County. Minutes of Public Hearing Page 32 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: What we're trying to get at is having the opportunity if, in fact, you don't make your case, it would be just like the Hearings Officer's decision. There would be no reason to discuss anything else. If in fact you make your case and we get over those two hurdles, then we are going to want to discuss everything else. Okay, so this is a wireless communications facility; does it meet all these other criteria for that particular location. That's why we're allowing for the opportunity on October 3 to have that discussion. RUDD: If we pass the first hurdles, is that discussion limited as to whether we meet any additional criteria that apply, or is there still going to be oral discussion of whether we meet the standard as a permitted use, as a utility facility, necessary for public service? If we're not that, are we a wireless telecommunications facility and considered as a conditional use? Is there going to be oral testimony on those two issues? DEWOLF: If we walk in that day and say, you haven't done it, go ahead and tell us why we're nuts, yes, we would allow that, too. LUKE: I would be uncomfortable making a decision on the coverage, range and all that on October 3. There are questions here, and you'll have some written things to submit to us, and we might have to have another hearing. RUDD: I understand that. LUKE: Where we'll give you the questions on the 3rd, and you come back and try to answer them. DEWOLF: We're trying to be really careful and thoughtful with this. It may take a little bit more time to get there. LUKE: You did open it up to the whole thing, de novo. If you have limited it to just the Hearings Officer's decision, it might be a bit different. Minutes of Public Hearing Page 33 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals CRAGHEAD: To clarify, on the SBA issue, the applicant has only waived the 150 days to October 3. That was our deadline on SBA. So if we wanted to do the same kind of discussion regarding SBA, they would have to waive further time. DEWOLF: We will talk about that with them. Anything else on this one? There was no response from the audience. At 5:30 p.m., Chair De Wolf asked for a six -minute break. At 5: 37 p.m., Chair DeWolf continued the hearing. DEWOLF: For the record, there are no new people at this portion of the hearing, and we'll be using the same criteria as the previous hearing, substituting SBA for Mericom. SYRNYK: The matter before you is an appeal of the Hearing Officer's decision denying an application for a conditional use permit to establish a wireless telecommunications facility in the Sunriver business park. The file numbers for this matter are Appeal No. A-01-13, and Conditional Use Permit No. CU -00-139. The applicant in this matter, who is also the appellant, is SBA Communications. The property that is the subject of this matter is located at 56866 Enterprise Dr. in Sunriver. The County Assessor's map is No. 20-11-51), identifying the property as tax lot 1811. As I mentioned in my staff report, this property is located in the southeast corner of Sunriver Business Park, on the south side of Enterprise Drive. The criteria that are applicable for review and action on this permit are identified in the overhead (shown to the audience at this time); there are copies also available on the table in this room. LUKE: Sunriver Business Park is considerably lower than the highway. I will be interested in learning how the signal will get through the trees. I'm just giving you a heads -up. Minutes of Public Hearing Page 34 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals (Referring to overhead, copy attached as Exhibit D.) The criteria are the Deschutes County zoning ordinance that is specific to wireless telecommunications facilities. Unlike the last matter, where there are some issues dealing with the siting on utility facilities on the EFU zone, in this matter a wireless telecommunications facility is permitted as a conditional use in the Sunriver Business Park district. LUKE: Are there restrictions in the Code any differently than anywhere else? SYRNYK: Under Section 18.128.340, that formally Section 18.128.040(d)(d), there is a height limit on a support structure, like a tower or a monopole, of 150 feet. The proposal before you does include the construction of a support structure that is a metal monopole tower proposed to a height of 120 feet, within a leased area that is 4,500 square feet. This proposal would also have the capacity to support up to four antenna platforms. This was originally scheduled for a public hearing on February 20. The applicant requested a continuance, and the hearing was continued until April 17. After that time, the Hearings Officer had rendered written decision denying the permit, and you have a copy of that as a part of your overall package of information. For the record, this was submitted to the Board last week, and includes the cover memorandum, documentation submitted by the appellants, the Hearings Officer's decision, and the staff report on this matter. LUKE: How far out was the mailing on this? For the original hearing, we used procedures similar to those that were used with Mericom. We multiplied the usual notice area of 250 feet by the number of increments of 30 of the proposed height of the structure. In this case, since we're dealing with a structure over 30 feet in height, we multiplied our usual notice area of 250 feet times four. LUKE: That would cover almost the entire Business Park. Minutes of Public Hearing Page 35 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals SYRNYK: I believe so. DALY: Can you summarize the Hearings Officer's denial? SYRNYK: It's similar to but a little different from the previous application. The Hearings Officer had denied the request because she had concluded that the proposed use was not a wireless telecommunications facility. She focused on the elements of the proposal that she thought were lacking, which were the lack of specifics on antennas and transmission equipment that would be used for the transmission and inception of radio frequency signals. The Hearings Officer also concluded that the license that was submitted by the applicant was not the applicant's license, and that there was no binding lease agreement with the applicant and a potential tenant, which was VoiceStream. As part of the application, SBA did submit a copy of VoiceStream's FCC license and a letter of intent through which VoiceStream had indicated their possible intent to site their equipment on this tower. The Hearings Officer also concluded that since this does not fit within the definition of a wireless telecommunications facility, it would not be an allowed use in the Sunriver Business Park. That's when she concluded her analysis and made her decision, and in this matter she also had not gone through and made findings on the remaining approval criteria. DALY: You said she denied this for two reasons; one, that it wasn't a wireless communications facility as described in our Code; and because it was not an allowed use in that Park. M/�� ftX That's correct. Sunriver Business Park, like a lot of districts in the County, has a list of permitted uses and a list of uses that may be allowed with a conditional use permit. The Hearings Officer had concluded that since in her mind the proposal did not fit within the definition of a wireless telecommunications facility, it couldn't be allowed that way. She also looked at the remaining list of uses in this district, and concluded that it would not fit within any of the other use categories, so would not be allowed within this district. Minutes of Public Hearing Page 36 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DALY: But, if someone came in with a FCC license and applied, it would be allowed in that district? SYRNYK: That's a question to go before the Board, that if SBA Communications were to provide substantial evidence to show that the facility that they are developing, including the tower and any transmission equipment of potential tenants, for example VoiceStream, or perhaps another licensed provider of service, would suffice. If it were found to be so, then the next hurdle would be to look at the record to see if they've met all the other criteria for approval. DALY: I understand that. My question is, if we determine that it is a wireless telecommunications facility, then it is a conditional use within that zone. SYRNYK: That's correct. If you get to that point and agree with the appellant that they are proposing a wireless telecommunications facility, this would be used as a conditional use in the Sunriver Business Park. The remainder of your analysis would be making your findings as to whether the proposal meets all the applicable criteria. LUKE: What kinds of buildings are in this area? Have you looked at the site? I have. There's a small warehouse building, less than 30 feet high, of about 9,000 to 10,000 square feet. The Powder Village condos are nearby, directly to the west. On the opposite side of Enterprise, to the north, is the new U.S. Postal Service building. LUKE: Counsel, I am going to ask staff to find out the height of the cellular tower located off Wilson Rd. and 15th Street, Bend, near the high school, and to enter this information into the record, so I can compare what it looks like. SYRNYK: Okay. Minutes of Public Hearing Page 37 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: We have a time problem. We probably can't decide this before October 3. There's not a lot of reason to go through this if your client isn't willing to extend the date. Is your client willing to extend the date? RUDD: Kevin Martin will speak after me. My client would like to have a final decision made on October 3. If you can tell us how much time you need beyond that to put your findings in writing, we will consider it. We would prefer not to go past that. LUKE: After you get over the hurdle regarding the wireless telecommunications facility, we need additional time to deal with the other criteria. CRAGHEAD: What the Commissioners are saying is that they feel that they might have the same problem with this one as with the Mericom one. If they find you have gone over the hurdle of whether this is a wireless telecommunications facility, they still would not have had enough time to have testimony and discuss the merits. That's why they would want an additional hearing even on this one. So it wouldn't be a matter of just getting a written decision on October 3. You were saying that you are not willing to have that extra hearing? RUDD: Correct. DEWOLF: You understand the bind that puts us in, and the disadvantage that it puts on your client. RUDD: Let me confer with my client again. STEVEN TOPP: (Of SBA) We don't want to put you in a bind. But, you've put us in a bind as well. We've been giving and granting extensions of time again and again and again to the County. It was my understanding that when we made the agreement to have the hearing back to you instead of to LUBA, was that we would go through everything and a decision would be made today as to the primary issue of whether we can build a tower. Minutes of Public Hearing Page 38 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: I would be happy to make a decision today if that's what you'd like. TOPP: That's fine. Also, then, if you go past that point to the point of saying, yes, you do, but you have to deal with these other issues, we actually have the information already in the record, plus Kevin Martin being here to go through all those issues with you, just like a normal hearing. Understanding the deliberation that you want to give to this, I'm saying that we can grant the extension of time to this October 3 hearing, which should give you plenty of time to figure out what you really want to say with respect to whether a tower builder without an FCC license is a wireless telecommunications facility. But, just like at a regular hearing where you would get the information and make a decision that night, as usually happens at a hearing, that's what we're looking for. DEWOLF: That's not usually what happens at our hearings. That may happen at other hearings you do, but we try to give enough time to deliberate after we've held that hearing so that we can absorb the material and make the best decision that we can. If that's different from what you're used to, that's fine; but that's different from the way we typically operate. As a point of clarification, this particular hearing was not appealed to LUBA. This is the hearing that the Board granted; the Mericom one was appealed to LUBA, but this one was not. LPL, 114 We've gone through another one of these, but there was already a provider. I want to sit through a hearing where we talk about the range, what the tower is going to look like, the service area, the need for the tower, and those kinds of things. We're not doing that tonight, and we're not going to do it on October 3, either. TOPP: My question is, why won't we do it on the 3ra. I I t, '1.. Well, we could, I suppose, but I don't know if we can do both of them. We'd have to play favorites. I'm not sure it is going to happen on the 3rd Minutes of Public Hearing Page 39 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals TOPP: How do you guys typically meet the 150 -day rule? LUKE: We meet it all the time. DEWOLF: This is a different situation. LUKE: We turned down hearing this, but legal counsel convinced us that maybe we should hear it and do them together. Otherwise, I wouldn't be here. What we would like to see happen is the hearing on the SBA matter also upheld on the 3rd. With Mericom we've got time until December. LUKE: Who was the first applicant? RUDD: Mericom. WBK49 Then you're asking to step in front of somebody who did agree to extend the time. You're asking to be treated differently than they are, and they were first in line. Mericom's agreement with the County gave them 180 days, which is until December. The agreement with SBA computes to October 3. DEWOLF: This is fine. You want to rush this at this point, but this is the first time we've had to deal with this. I understand your frustration. Now it's here. And if you want final decision by October 3, we'll do that. And we'll make the determination on what dates we have to in order to have the record closed, and for us to make a final determination. If that's the way you want it, we'll do that. That's your choice. I'm telling you that I'm going to make a better decision if I've got enough time to do this properly. If you don't allow me that, that is your choice and your decision to make. Minutes of Public Hearing Page 40 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals RUDD: How much additional time would you require? DEWOLF: I would like to be able to deal with these on the same time track. You've tied these together with coverage areas, so you've got things that have these linked because of handing off one to the other, in terms of coverage and what have you. They both deal with some of the same issues and some that are not the same. So, if we have the same sort of timeline with this as we do with Mericom, it gives us to the first part of December to work through all of these issues and we have no problems. I can't guarantee what the outcome is going to be. I can tell you what my vote would be if it were held today, because you don't give us any options. SYRNYK: If I can interject; if the.Board does decide or does rule that SBA has crossed the first hurdle, you do have a copy of the record already, in the black binder before you. If you recall, the Board had originally decided to hear this matter on the record; and then after County Counsel had some contact with the appellant's attorney, staff came back with a revised order to hear this de novo. Part of that agreement was to extend the 150 -day period to October 3. DEWOLF: Great. No problem. We'll make the timelines before we're done today. I have no problem with that. TOPP: What I was going to say is that since the date is until October 3, and we're having the hearing on October 3, it gets down to me of the very fundamental question of, when we get to the October 3 hearing, presumably you'll have a decision on the first two issues. If it were in our favor in that we are considered a wireless telecommunications facility, then you'd have to deal with the other criteria. This information is already in the record, but we'll be available at that October 3 hearing to answer any questions. If we are unable to answer questions that you have at that time, we could grant an extension to allow us time to get you the information that you are specifically requesting. While I'm not saying that I will not give any extension, I would prefer to wait until that October 3 date to make that determination, depending upon what the questions are. Minutes of Public Hearing Page 41 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: We've got an October 3 date to give our final decision, and that includes it being in writing; so we won't be holding your hearing on October 3. We'll be moving that up a lot sooner so that we can be done on October 3, which is what we're required to do now, right? SYRNYK: That's correct. DEWOLF: So we will have a written decision by October 3, so this will be completely separated from Mericom. TOPP: As far as I am concerned, it can be separated from Mericom. But, what we indicated was that we would give the additional time necessary to do the writings and findings based upon the October 3 hearing. So, we're going to give you that. Now, if at the time of the October 3 hearing we find that additional time is necessary, at that time we can make that determination. LUKE: That's not acceptable to me. We'll have a decision in writing for you by October 3. TOPP: Okay. CRAGHEAD: Just for clarification, your last point is that right now, if we had the hearing on October 3, you would grant additional time for written findings. You're guaranteeing that at the moment. It's just that you would want to wait until the October 3 hearing to see whether the Board needs additional time for a hearing. DEWOLF: I can't go there, because the reason for taking in this testimony today ... I would not make a final decision today. The way that I operate, and the way that we have operated, is that we want to take the time to deliberate and to absorb the information that has been brought in, research if we have questions, and be able to talk with legal and staff. Minutes of Public Hearing Page 42 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DEWOLF: By saying you want a decision on October 3, I'm not going to be taking information in on October 3 and making a decision that same day. If that is what you're saying, then what we'll do is put this on a different, faster track so that we can be done and make a decision on October 3. TOPP: Just so you understand, the October 3 date that we granted the extension to was giving you time after today's hearing to do your deliberations and ask your questions, and all of the things that you are talking about doing starting on October 3. This was based upon the information given to us that from today's hearing, you'd be doing that same thing. LUKE: I'm not sure who told you that, but the Commissioners didn't; and we didn't authorize staff to tell you that. We have a strong ordinance in this County, and we have great citizen participation, and we appreciate that participation. I'm not going there without that participation. TOPP: Then I guess we'll stick with the October 3 date. RUDD: So if there is another public hearing needed, it will be set on that date? DEWOLF: There won't be. Better make your case today, because otherwise we'll run out of time. I will try to limit redundancy and get us through this as quickly as possible. I'd like to incorporate the testimony that I submitted earlier, and just hit the highlights. We believe we're a wireless telecommunications facility under your ordinance, under both the provision that says that it usually includes certain elements that we are planning to provide; and also under the fact that it includes personal wireless service facilities under the Wireless Telecommunications Act, which has broadly defined these facilities. Also, we have submitted a letter from VoiceStream indicating their desire to locate on the pole, which goes to the issue of the intended use of that facility. Minutes of Public Hearing Page 43 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: Is there any penalty if they don't? RUDD: There would be a delay in their getting on the market. all" Is there a penalty if they don't locate on your tower? RUDD: I'm not aware of any penalty to them. There's no breach of contract indicated. LUKE: So there's no guarantee that they will locate there. No, there is not. But your Code does not require that guarantee; it's the intended use of the property. Also, highlighting ORS 197.522, conditions that you can impose, we've agreed to a conditional approval that we would not actually pull building permits on this until we have submitted a signed lease. For the reasons I've stated here and in the materials that we've submitted, and in my earlier testimony on the Mericom matter, we believe that we have met everything that is legally required. In the interest in resolving this and going forward, we also have a letter that we don't think the law requires, but we want to try to resolve your concern. This is a letter from VoiceStream, asking that they be considered as a co -applicant in this application. (Copy attached as Exhibit E.) Since this one has a lot more detail and we're on a faster track, I'm going to stop at this point unless you have questions for me. I'll have Kevin (Martin) talk about the specifics of this site. KEVIN MARTIN: I'm with Green Drake Engineering, consultants for SBA on this particular application. Given the number of questions and the complexity of the issues, it doesn't look like I'm going to win any jellybeans tonight. LUKE: I'd do the whole presentation if I were you. Minutes of Public Hearing Page 44 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: One issue I want to address up front before I go through all the criteria applied to this particular application is that one of the Commissioners commented that the intent of the ordinance was to discourage speculative telecommunications towers. I disagree with that characterization. I was a member of the committee back in 1996 and 1997, representing Sprint, one of the carriers that worked on preparing this ordinance. Back then, there were no spec tower companies. American Tower was probably on a napkin somewhere, while they were dreaming up this concept; and I know several others didn't even come into existence until about 1998. So, I think if you go back through the proceedings and the minutes of those meetings, which I have copies of and have included some in the record, you'll find that spec towers and trying to discourage them is not a topic. LUKE: I'm not sure that I said that the purpose of the ordinance was to do that. I said, for want of a better word, spec towers. This does discourage spec towers. MARTIN: The interpretation you are putting on it, I think, is to discourage spec towers. But I would maintain that the legislative history of the ordinance was not intended to do that. Be that as it may, to start, we believe this is not a spec tower application. We saw what went on last year with American tower and whatnot, and when I counseled by clients on this application and also talked with Damian, I said to my clients to not even think about submitting an application unless you've got an FCC license of an interested carrier. We got the license and it is included in the record. We've got a letter of intent; therefore, we're not a spec tower. By giving us their FCC license, VoiceStream in essence became a party to the application. LUKE: Did they give you the license before the application was submitted, or after? MARTIN: They gave it to us before we submitted it. It was with the original submittal. I just wanted to clarify that. We've submitted extensive material on this. The original application was submitted on November 30, 2000. We submitted an extensive response to the staff report dated April 16, 2001. We also submitted a final response and rebuttal paper dated May 6, 2001. Minutes of Public Hearing Page 45 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: I'm going to summarize the various requirements of the Code that we are required to meet. Those are, that we have to meet certain application requirements spelled out in the Code, there are certain submittal requirements that we have to put in with the application. There are general approval criteria for conditional use permits that we have to meet. Then there are specific approval criteria for a wireless telecommunications facility that is a conditional use permit. We kind of have to do double duty on this. I assume that you have received all the documents, pages and pages with numerous exhibits and photo simulations; everything that the Code requires is in there. First, going through the application requirements for submitting an application for communications facilities, there are two of them listed in the Code. One of them is that you have to hold a neighborhood meeting, which we did on April 24, 2000. So you can see we have been on this track for well over a year. LUKE: How many people showed up? MARTIN: I think there were between 30 and 35. The summary of the meeting and the roster of all who signed up are contained as an exhibit to the original application of November 30, 2000. Second, we were required to attend a pre -application conference. I attended a pre - app conference with Damian (Syrnyk) on May 3, 2000. So, we met all of the requirements for application, according to Deschutes County Code. The second major group of things that are required for a communications facility are called submittal requirements. This is just base information that has to be included in the application; not approval criteria, not conditional use criteria, just information. The first one is that you have to submit a copy of your blank lease form; this was submitted as Exhibit G of the November 30 application. Second, you have to submit a copy of the FCC license; this was Exhibit H, the VoiceStream Wireless' FCC license; third, you have to submit a map of the search range that was established for find a location for the tower; this is Exhibit I. Minutes of Public Hearing Page 46 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: Is it fair to say that the Hearings Officer did not ask very many questions on that, after going to the fact that she didn't believe you were a wireless facility? MARTIN: It became obvious fairly early on that she wasn't really interested in any of this other stuff. Although the hearing was attended and there was testimony on all the items, and they were all on the table, going into this hearing, there was not a presumption that this was going to be denied because it was a quote, spec tower. Sunriver Properties was here, arguing not only on that but also on the merits of the application. It was an all-inclusive hearing; the Hearings Officer just decided to hold a very narrow view. The fourth thing is a written notice of a neighborhood meeting, along with a summary of the meeting. Also included was a site plan of the components of the application. LUKE: How far out did you mail that notice? MARTIN: We did as Damian advised. We followed the law. SYRNYK: It included notices to owners of 202 properties within 2,000 feet of the site. MARTIN: Another item that has to be submitted is the design specs, including the design specs for the antenna arrays. One of the findings of the Hearings Officer was that we had not submitted this, but one of our exhibits was all of the different requirements for a wireless telecommunications facility. (Referring to oversized photos at this time.) This is the kind of antenna that we planned on. This is a typical PCS panel antenna, very commonly used by VoiceStream and others. This is one particular type of davit arm mounting for the antennas. DEWOLF: What kind of distance are we talking about? Three or four feet? Minutes of Public Hearing Page 47 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: The distance can vary, depending on the design. Some of these arms can be as short as two to three feet. Some of them could be up to eight feet. LUKE: What is the one that is proposed for Sunriver? MARTIN: We can discuss that. We're not proposing that these be eight feet and look like those photo simulations over there (referring to oversized photos) that are not the applicant's. LUKE: My question is, did you submit a design for Sunriver for width and height and all that? MARTIN: Yes. The design is always subject to flux. DEWOLF: What was the design? Was it three feet, eight feet, or what? MARTIN: think the design was around five feet. It would be included in the site plan drawings as part of the record. This is another type of antenna mounting bracket, similar to the other but with a different style. It's one that the tenant would have an option of using. Another particular type is called flush -mount. It's just a bracket, and it clamps right to the tower. LUKE: I guess I don't understand. You said you submitted a plan with the antenna and the array that would go there. Yet you are showing us different arrays that are possible. So, either you submitted one that shows the array or you didn't. Minutes of Public Hearing Wednesday, August 22, 2001 Page 48 of 66 Pages Mericom and SBA Appeals MARTIN: You have to remember that this site is for VoiceStream, and it is also designed for future tenants. The express goal of this tower being built by SBA is that they put multiple tenants on it. That is their business. These are the different options that the tenants would have to site their antennas. If you want us to pick a specific one, we can do that. Or, if you want to make them subject to a staff review prior to the building permit being issued, we could do that as well. LUKE: We've only had only one major hearing come before us, and it showed what the antenna would look like, who was going to be on it, and how their antennas were to be arranged. Let me ask staff. Is it not typical that you know what the thing is going to look like before it goes up? SYRNYK: Our experience to date with applications has been such that we have had in most of the applications received specifics on the type of equipment used. This application is a little different in that it is not being submitted by a company that is going to provide the service. If it were a site that was primarily intended to serve the providers' needs but could also serve the needs of other service providers, we would get most of the details regarding the antennas as part of the application. LUKE: So this application did not come that way. That's correct. This is different in that we are looking at the potential for one tenant plus three more. The information he is showing you is that different tenants may use different forms of antennas and brackets, depending upon their technology. LUKE: That makes it pretty difficult for the general public to express a comment, if they don't know what it's going to look like when it's done. SYRNYK: It makes it a little more complex, as you'd have to know the range of equipment. MARTIN: Actually, that's what I am providing, the range of equipment that might be used at the site. Minutes of Public Hearing Page 49 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: You've got to understand, this is a different application that we usually see. They usually come with the equipment that is going to be used. MARTIN: Standard practice in the industry in most jurisdictions is that when you submit an application, you submit conceptual drawings. The actual nuts and bolts and the engineering specs go in at the time of the building permit. Typically what is dealt with in the zoning process is more of a design standard than a specific piece of hardware. In some instances you may have specific instructions and limitations, such as antennas being mounted no more than five feet away from the pole, or using standoff arms instead of platforms. Deschutes County Code has no requirements like that. So, what we're saying is that we reserve the right to use different types of mounting equipment. Keep in mind, some mounting equipment may be less visible than others. We're not proposing what's on those photo simulations over there. That is the worst-case scenario. The only thing they didn't do is put four panel antennas across each one of those, eight feet long. They missed that opportunity; they could have made it look worse than they already did. If we had an analog carrier like US Cellular, Cellular One, maybe Nextel in the future, they would use what is called a fiber bond structure, which is a 12 x 8 prefabricated concrete exposed aggregate. The building is 11 feet by 28 feet, which is a typical size. They make them smaller; you can also get them 12 feet by 24 feet, or 12 feet by 14 feet. LUKE: Which one are you proposing to use? MARTIN: I'm not proposing one right now. A future tenant may do that. Now, I'll get into what we're proposing for VoiceStream. (He referred to an overhead photo of an existing tower in Salem.) This is similar to the type of equipment that VoiceStream would put in. This is CDMA equipment here that Qwest would use, Sprint or Alamosa PCS would use, Verizon might use it if they were using just CDMA. VoiceStream uses what is called GSM technology; their cabinets are almost identical (he showed an overhead of cabinets and fencing). It's basically not much more than a traffic control signal. This is what VoiceStream would install at the site. Minutes of Public Hearing Page 50 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: With four carriers, this is how the site plan would likely be laid out. (He referred to an overhead.) The tower would be in the center, and there would be space for one large shelter. LUKE: How big is the equipment shelter? MARTIN: This shelter is scaled in at 12 feet by 28 feet. Anyway, that is the type of equipment that we're proposing that the Hearings Officer said was missing, which made it not a wireless communications facility. Another thing I'd like to point out is that the definition of a facility specifically talks about what it usually consists of - not exactly what it consists of, but usually. So the language is much less rigid than the Hearings Officer read into it. The next item that had to be submitted was elevation drawings; those were included in Exhibit L of the zoning drawings. And color photo simulations were submitted; those are Exhibit M of the November 30 application. Questions were raised in written testimony and the staff report about the accuracy of our photo simulations. There is extensive documentation in the April 16 response showing that they are accurate. Sunriver Properties submitted these (referring to the oversized photo simulation) and said that this is what it really looks like. I examined it and it's not what we are proposing. In essence what they did was put the big platforms on, which we are not proposing. We actually took theirs and modified it to show the antennas on standoff arms rather than on platforms; they become much less onerous. LUKE: Is that one 120 feet high? MARTIN: Yes. That is a copy of theirs that I just removed the platforms and put on standoff arms. These are photo simulations at the site. There are color copies of this in the record. DEWOLF: You have about five minutes left. Minutes of Public Hearing Page 51 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals The FAA Aeronautics letter was also in there. I think the other main points are, under the conditional use criteria, the staff report claims that the site lacks sufficient tree cover to screen it from view from residences to the west, and from the other land uses in the surrounding area, and is therefore incompatible. Regardless of the level of tree covering, under those particular criteria there is no mention of sufficient tree cover. So a conclusion is being based on a standard that does not exist in the Code, which is not allowed. You can only make findings and conclusions based on criteria that exist in the Code; if they don't exist, they don't count. DEWOLF: (To County Legal Counsel.) Can you make note of this, Laurie? LUKE: I thought you were on the committee, and the testimony from other people on that committee at different hearings was that they had a very big concern that these things would be shielded as much as possible by the natural terrain and trees. MARTIN: What I'm saying is that the general conditional use criteria that a wireless facility has to address along with any other conditional use, be it a sewage plant or a school, are much more general. They don't deal with visual impacts. Staff made a finding that because of visual impacts we were incompatible. We claim that, because the requirements for general conditional uses doesn't have a standard regarding visual impacts, that their conclusion is invalid. LUKE: Isn't this written in the Code, about using natural vegetation to screen as much as possible? MARTIN: That's listed in the next part I'll talk about. All this information is in great written detail in all those documents you have. I'm just trying to summarize. Minutes of Public Hearing Page 52 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: The most critical thing then to look at is the specific approval criteria for a wireless telecommunications facility. One is that it not be located on irrigated lands. This is commercial property and is not irrigated. The other is that we conduct an alternative sites analysis. The Code specifically states that the only thing you need to do for this is make a good faith effort to co -locate antennas on existing monopoles in the area to be served. It is clear within the record that there are no other monopoles in the area; therefore, we've met the test for alternative sites analysis. Then we come up with communications facilities standards must be sited using trees. The staff report claims that our proposal does not meet this criterion because the proposal shows that the facility will not be sited using trees, vegetation and topography to the maximum extent practicable to screen it from view of nearby residences. The staff report has interpreted this criterion to require a communications facility to be totally screened by vegetation or topography, so as to make it invisible to any surrounding land use. This is neither the language in the Code nor is it its intent. Approval of a facility is based on using available vegetative screening to "maximum extent practicable". So, if you look at this term, it's not an absolute. The dictionary says, "capable of being done, effected or performed; feasible; that can be used, usable or useful". The term "practicable" does not impart a notion of unyielding rigidity or inflexibility or totality; it means working with what you have on the site. To that extent (referring to additional overheads of photo simulations - one that had removed all of the trees, one that added some trees back in, and one that put in all the trees now existing), one would have to agree we are using all of the vegetation possible. It becomes quite unnoticeable. We argue that using vegetation and topography applies to what is on the site. We originally proposed to put the site in the southeast corner. After the neighborhood meeting we realized that there are fewer close-up trees to screen it, so we moved the facility to a less visible location and lowered the height of the tower. The last major point is that we have to minimize impacts on scenic views. Staff made a finding that we didn't do that. However, they didn't define what a scenic view is. Goal 5 says the scenic view must be inventoried in the comprehensive plan in order for you to be able to address it. In this case there is just a blanket requirement. To my knowledge, there is none inventoried. The only scenic view is the corridor along South Century Drive, which is not within 1/4 mile. We conclude that we do not impact scenic views. Minutes of Public Hearing Page 53 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: The site is considerably lower than Highway 97, and there are big trees in the way. Will the signal go through them? MARTIN: It will go through, but not very far. The propagation chart included in the record indicates it will reach part of Highway 97. The radio frequency engineers wanted the tower to be 200 feet tall; but Code only allows 150 feet maximum, with the potential of another ten percent on a variance. The maximum possible for screening by the trees is 120 feet. We sacrificed coverage to Highway 97 in order to address the issues of visibility and concerns raised at the neighborhood meeting. LUKE: Another applicant that we talked with on another hearing had a different view of the alternate site analysis. Did you look at other sites in other locations? If so, why did they fail? MARTIN: Yes, we did, and they are outlined in the record. Most of the roads in Sunriver, Spring River and Century Drive have a landscape management overlay; you can't build anything over 30 feet; so that ruled that out. (He then showed an overhead of the search ring). It was very limited. We couldn't put it on the golf course or near the airport. Sunriver is not a friendly potential landlord. What's left is U.S. Forest Service land, and they will not allow this unless there is an approved communications site on their master plan. There are none here. Also, no power was available. That left four lots in SR Business Park that are commercially zoned. This lot is just outside the landscape management zone. The other three parcels are undeveloped, but the owners have other plans for their properties. The northwest site, where the water tank is, had been previously applied to by another company, and Sunriver Properties withdrew their authority to site a tower on the property. They had applied for a 125 -foot tower. There's more to it than that. In essence, there were 5 possible parcels that were usable from a zoning standpoint; and we narrowed down to the one that is the best fit. Minutes of Public Hearing Page 54 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: (To staff.) When we were having other hearings and discussions regarding the ordinance and revisions to the ordinance, we were told that people build on Forest Service ground and our regulations do not affect them. Does the Forest Service have a blanket restriction on cell towers? SYRNYK: I'm not aware of any blanket restrictions. In order to site a communications facility, they may go one of two different processes. One is to get something called a special use permit for a site. The other is a process where they might amend a forest plan for a specific site. I don't know enough about those specific processes to speak about them tonight. DEWOLF: Did you apply to the Forest Service? MARTIN: It's about a three-year process. We did not. PAUL EISENBERG: I'm the Director of Development and Construction at Sunriver Resort. We have been of record in opposition to this project for some time, since the original application. I'd like to say that we are not opposed to telecommunications; we rely heavily on it, and we rely heavily on cell phones and wireless. But we do have investments of about $73 million in Sunriver Resort in bringing it up to the level that it is today, and our concern is protecting those critical scenic values and those views that drive our business and help to support the economy. I'm feeling a little overwhelmed tonight. I wish that the Commissioners had not agreed to hear this de novo, because we've got such a moving target. As you can tell from prior testimony from the applicant, we're never sure from meeting to meeting or submittal to submittal exactly what it is that we are trying to evaluate or comment on. For example, in the matter of antennas and which antennas will go on there, there's a non -answer, so we don't know. We used our simulation since the County might not have any real authority on the antenna attachments. Still, even with lesser antennas, we feel there is a significant impact. We submitted lots of information in the prior record. I urge you to please go through it in some detail. Minutes of Public Hearing Page 55 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals EISENBERG: We have looked very carefully at all of the criteria that the applicant is required to meet. As you know, we are almost always the applicant and proponent in this process, and we are usually standing here, telling you how we have gone through and met all the steps of the process. We expect you to hold us to those standards, and everyone else should be held to those standards as well. We all know what the standards mean and what the ordinances mean, and what the processes are. Just because an applicant chooses to make light of them or ignore them, doesn't mean they go away. In our view, this applicant's burden is to meet each and every burden of proof and criteria. They have failed to meet a great number of them. Unfortunately, the Hearings Officer made the decision to stop her review and analysis at the definitional issue about telecommunications towers. But we submitted in the record, and I will briefly review, some of the other criteria that they failed to meet. Each and every one of those standing on its own is sufficient grounds for denial of the application. (He then read a six-page letter from Sunriver Resort dated August 21,2001, detailing five major concerns; attached as Exhibit F.) M W Anything built in Sunriver used to require Sunriver approval. Is there nothing in the CC&Rs on this? EISENBERG: The boundary and jurisdiction stops at the boundaries of Sunriver, and don't include the Business Park. We're members of the Business Park Association, but it doesn't have the same type of design process, regulations and restrictions as Sunriver. DEWOLF: What if VoiceStream signs on as a co -applicant? Minutes of Public Hearing Page 56 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals EISENBERG: It's okay if they have a firm commitment and it is in the application as it sits before you. It's a moving target. Applicant/user should have been a part of this from the beginning. This could have been remedied long ago. It's unfair to everyone else to keep changing these things. There is very little time for us to analyze this in a short time frame. We think this application is defective since they didn't come in solidly; there has been no time to give all the parties of interest an opportunity to evaluate it. We previously submitted significant information into the file. You will find that what they are submitting are parts and pieces that don't fit together. The applicant says it's "in flux" - my worry is that down the road, this is not specific enough, and what can the County use for enforcement? LUKE: How many condos are there? EISENBERG: There are 80 units. FDY.,V f� I haven't heard from any of the owners of these units. How many owners have testified? EISENBERG: There is some written and some oral testimony in the record. There was strong objection. As far as coverage in concerned, Sunriver is well served; the only gap in service is a shadow behind Lava Butte where there are no users residing. DEWOLF: What about Highway 97? EISENBERG: Just a little gap on Highway 97. Linda Moskowitz asked me to request that the record be kept open, as she wants to obtain a copy of the audiotape. Minutes of Public Hearing Page 57 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals LUKE: Is the tower to be lit? SYRNYK: I need to check the file. An Oregon Department of Aviation letter from Thomas Highland says it should be lighted due to its proximity to the airport. LUKE: Eighty condos is pretty high density. Is there anything in the Ordinance regarding building near housing? SYRNYK: There's nothing in it on that. DAVID OGDEN: I live at 17092 Azusa Road, off Spring River Road. I'm here for two issues. One of them is in regard to the light on the top of the tower. Wake Butte had strobe light installed, and it is very offensive. We enjoy a limited amount of artificial night illumination, and a strobe light was one of two lights proposed. The real dog in the fight is that I haven't gotten an answer to my question to VoiceStream regarding the dissipation rate of ambient radiation from the tower. No one has listed the health consequences of the tower. I have two girls who will be attending Three Rivers Elementary School, which is within 1,000 feet of the tower. And what about the residents of the condos? Everyone has kind of laughed it off in the past, saying it is inconsequential, but would you put your head within x number of feet from it? I've looked into this, and researched it, and the health issues are important. I expect to see cell towers and like to use cell phones, but I want to be sure that the light isn't too offensive, and I am concerned about the health impacts. CRAGHEAD: The Federal Telecommunications Act prohibits us from making any decisions based on possible health impacts. ANTHONY FARINA: I live at 56788 Spring River Road. I'd like to comment on the health issues. I called a cousin who has a brain tumor since Christmas; he's now in a class action suit against cell phones. Minutes of Public Hearing Page 58 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals FARINA: I think the Hearings Officer did a fine job and was very fair. This de novo thing is new to me. They are not in any way a telecommunications company. Their intent doesn't make them one. They have to do more than just put up a pole. When they can't tell you what it is going to look like, they don't know. You can sign a lease with an out option. They blew it from the beginning, and you can tell they are just speculating. I would like to know the why they say a high tower on Awbrey Butte would only service 50 people. Does that mean we are only going to service 50 people with this tower? That means there are going to be other towers. DEWOLF: I believe this is because there are too many other towers in the area. MARTIN: That means that it's the proximity of towers to each other. Some towers can totally disable other towers. FARINA: So how many calls will this tower be able to handle? I happen to own one of the condos, but don't live there. I keep an office there. There definitely need to be more hearings. The condo people are totally against it. They are tired of coming to these meetings, and it has worn them down. Some of them live out of the area, too, and can't easily come over here. The trees that are there aren't on their property. Those trees are located on private property, and they have no control over what happens to those trees. It's too close to the school, too. LUKE: I am concerned that the public needs further opportunity to take part in this. We won't have an opportunity to give it to them, and that bothers me. DEWOLF: By the same token, that's what this process is designed for, and they do have the opportunity to be here. It's not fair to the applicants to have to keep reminding people they need to be here. Minutes of Public Hearing Page 59 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals FARINA: It never got announced properly from the beginning. DEWOLF: That's not true. We follow the laws established by the State of Oregon and our own Deschutes County Code. We go overboard in notifications, and follow state law and then some. If people choose not to be here, that's not our fault, your fault or the applicant's fault. Even if the room is not fully of people, this is a valid public hearing, and everyone has opportunity to examine the record and to be here. FARINA: I was just explaining why they don't keep coming. DEWOLF: Again, that's neither our responsibility nor the applicant's responsibility. That's the reality of things. Chair De Wolf announced a brief recess at this time. RUDD: How long will the record be left open? DEWOLF: We'll leave the written record open until August 29 at 5:00 p.m., and allow for rebuttal until September 5 at 5:00 p.m. We'll make a decision after that. Mr. Eisenberg said he couldn't find a definition of personal wireless service facilities in the Act, but it appears he was looking at a different section. The point of the Federal Telecommunications Act isn't just to protect local zoning authority. That is provided for, but is subject to certain limitations. Also, the cases that he referred to, if you look in the record, citations are provided. I was searching based on case party names to find that. I didn't find any cases where the Supreme Court had discussed this. The cases I found were Court of Appeals or District Court cases. So, in terms of the level at which this has been reviewed, it's important to make that distinction. DEWOLF: Why? Minutes of Public Hearing Page 60 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals RUDD: Because the Supreme Court sets precedent for everyone. What other courts do is persuasive and informative but is not necessarily the law of the land. LUKE: By the same token, the Supreme Court doesn't take every case, and may or may not agree with it. RUDD: I would say that it means that they have limited resources and they've made a decision that it's not one of cases they are going to take. They may or may not agree with it, but they have so much on their plate to handle already. The cases that Mr. Eisenberg cited deal with allegations that the local government's act has had the effect of prohibiting the provision of local wireless service. That's not the part of the Act that we are saying the County is at risk of violating here. We are saying that to the extent that you are applying criteria that don't exist, then you are at risk of violating the provision that says you won't make a decision that's not supported by substantial evidence. We're also alleging that there's unreasonable, impermissible discrimination between wireless service providers. So, those cases and the discussion that was gone into about "least intrusive" and there being no service, that doesn't come into the portion of the violations that we're concerned with. We welcome the opponents to submit citations and go into more detail on those cases. From what I was able to review, they don't apply. In terms of landscaping, from what I saw going up, it did appear to me that there was less impact than what they say. Also, it's not a new proposed condition of approval. If you go through the record, it has been stated before that we don't have a problem with providing additional landscaping. Regarding this concern that we are going back and forth on what has been said, I highlighted in the memo I submitted yesterday a portion of the transcript. I think that's where some of the confusion lies. If you look at the Hearings Officer's decision, she said that Kevin Martin said all these things that were going to go on before we had a provider. If you look at the context of it, what actually happened is that he said sometimes we do, sometimes we don't, we're okay with a condition saying we won't build a tower until we have a provider. However, the Hearings Officer asked him to assume what would happen if you just built first. Again, we're open to reasonable conditions. Minutes of Public Hearing Page 61 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Regarding the allegation that we are trying to "fix" things now, we have gone through repeatedly why we feel we are appropriate as the applicant. Submitting this letter from VoiceStream was a result of talking with staff and trying to find out if there is anything we can do to help. DEWOLF: It's a de novo hearing. Just because someone makes an argument doesn't mean that it's going to impact me or us. Anything is fair game. We just want to make it clear that it wasn't an attempt by us to fix it; we asked staff what would help. So everyone should keep it in the proper context. MARTIN: Mr. Eisenberg indicated we have put in all these various types of antennas and will have carte blanche to do anything we want. However, the County can condition the design, and can indicate what types of antennas, as well as reasonable design standards regarding brackets, that can be used. We would not be opposed to reasonable design standards regarding the size of the antennas, the types of mounting brackets, and so on. In the record there are photos showing the different types. DEWOLF: The 120 feet is obtrusive no matter what you show, regardless of the arms. MARTIN: We will paint it dark brown, and it will disappear against the background. Mr. Eisenberg never saw that used, but perhaps he hasn't seen other towers in other areas. And we try to find trees for background. LUKE: The applicant is required to screen as much as possible. MARTIN: Staff has made conclusions that none of what we propose to do counts. They have also testified that we are proposing a structural tower not a communications tower. This is not true; we have included all the components; and we will not build until we have a tenant ready to install equipment on it. Minutes of Public Hearing Page 62 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: If we did build a tower, if after six months we didn't have a tenant, it would be considered abandoned and we'd have to remove it. That wouldn't make sense. Also, there are some wireless companies who have built their own facility but later decided to never use it. It's been said that we submitted a whole lot of new information; this is not true. Our legal counsel submitted a letter. The County has had most of this information in the record since May, and there is not a bunch of new information being dumped into this. Everyone has had a chance to review it all. Regarding the number of condos, there are 80 total, but only eight that face the direction of the tower. Most of the complex is centered on a common area, and they can't see the tower from there. Also, if we planted vegetation hedges along the fence line, by the time they reach 24 feet tall, almost the entire tower would be screened from view. We could also put in some mature trees to mitigate the visibility. Also, regarding the issue about the Telecommunications Act, this can't be based on coverage or cost, and you can't deny based on this or that. County Code has no criteria requiring us to address those items; therefore, you can't deny us on something that's not an approval criterion in the Code. The County's requirements don't mirror these out of context quotes from various lawsuits from distinct cases with unique circumstances. So I don't think you can apply those issues. LUKE: To be clear, the County can deny you for anything. It may not hold up under appeal, but the County can deny you. That's why you have LUBA and the Court of Appeals. MARTIN: I would expect that the Board would base any denials on sound legal grounds, not just because they don't like something. LUBA doesn't like those kinds of cases. DEWOLF: And that's what we have to do. We have to take all of this into account and make a decision based on sound legal and staff advice. Minutes of Public Hearing Page 63 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals MARTIN: Yes, an aviation light is required by the FAA. It's not a strobe; I believe it's a dual fitted red. In the record it's be stated that if we are required to put a light on it, we have to shield it from the neighbors. I would argue whether a light on that tower is all that effective. If ODOT says you "should" light it, it's not mandatory. If the FAA says it, nobody anywhere will ever put a tower up due to liability issues. Mr. Ogden asked about the radio frequency exposure; generally the power levels drop off from an antenna very quickly. DEWOLF: We can't consider this in our decision. [u/:l:140015 There's more exposure from a handset than a tower. Also, regarding calls per site, the maximum is about ninety. DEWOLF: We will leave this hearing open until August 29 at 5:00 p.m., with rebuttal due by September 5, 5:00 p.m., so we can be prepared for a decision by October 3 at 4:00 p.m. The other dates for Mericom will also be 5:00 p.m. on those days. DALY: I'd like to make a comment. In earlier testimony, the other Commissioners have referred to "we" or "us" regarding previous cases. I want to be clear that I am new to this and haven't been a part of those decisions. I have also observed today that, after reading the record thoroughly and discussing it with County Counsel, we have two very bright attorneys who can't agree, which is normal. The Commissioners have to make the final decision, and I want to base mine on plain old common sense. In this situation, the first issue is whether you are a viable cell service provider. Common sense tells me that you have spent a lot of time on this, and you'll build a tower, and if you have a letter from a provider saying that they'll locate on that tower, that's good enough for me. I think we need to get beyond this hurdle and decide on the merits of the application. Minutes of Public Hearing Page 64 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals DALY: If I had to vote tonight, I'd say you are viable provider. That's my position. I'd like to encourage my fellow Commissioners to get beyond this one small technicality so we can go forward on the merits of the application. There have been thousands of hours of staff time and Commissioners' time invested in this one technicality. I don't think there's any doubt that these folks will build a cell tower. It's common sense. I want it on the record that this is what I believe. Let's get beyond this issue and deal with this application on its merits. I think that even the people who oppose it probably want to have this issue not drag on forever. DEWOLF: The hearing is closed for oral testimony at this time. CRAGHEAD: To make it clear, the hearing on October 3 is on the Mericom issue only. Chair De Wolf closed the meeting at 7:50 p.m. Attachments: Exhibit A - Copy of the applicable criteria for Application A-01-11 and CU -00-129 (Mericom - La Pine Special Sewer District Sewage Minutes of Public Hearing Page 65 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Treatment Facility location). Exhibit B - Copy of a letter from Agilent Technologies indicating Verizon's desire to co -locate on the La Pine tower. Exhibit C - Copy of a memo from County Legal Counsel listing key points. Exhibit D - Copy of the applicable criteria for Application A-01-13 and CU -00-139 (SBA Communications - Sunriver Business Park location). Exhibit E - A copy of a letter from VoiceStream indicating VoiceStream would like to be considered as a co -applicant with SBA Communications on the Sunriver Business Park application. Exhibit F - A copy of a six-page letter from Sunriver Resort, detailing their concerns regarding the Sunriver Business Park application. Exhibit G - A copy of this public hearing's sign -in sheet. Minutes of Public Hearing Page 65 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals Dated this 22"d Day of August 2001 for the Deschutes County Board of Commissioners. ATTEST: (� r Recording Secretary Tom DeWplf, Chair M. Daly,,Commissioner Minutes of Public Hearing Page 66 of 66 Pages Wednesday, August 22, 2001 Mericom and SBA Appeals The following is a list of the applicable criteria for application numbers A-01-11 and CU -00-129. Evidence and testimony at this hearing must be directed toward these criteria. Testimony may be directed to any other criteria in the County Comprehensive Plan or land use regulations that any person believes apply to this decision: Title 18, the County Zoning Ordinance, of the Deschutes County Code: Chapter 18.04, Title, Purpose, and Definitions 18.04.1315, Definition - Utility Facility 18.04.1342, Definition - Wireless Telecommunications Facility Chapter 18.61, Urban Unincorporated Community Zone — La Pine 18.61.020, Standards for all districts 18.61.030, La Pine Planning Area Chapter 18.116, Supplementary Provisions 18.116.250, Wireless telecommunications facilities Chapter 18.128, Conditional Use 18.128.015, General standards governing conditional uses 18.128.340, Wireless telecommunications facilities Oregon Revised Statutes (ORS) Chapter 215, County Planning; Zoning; Housing Codes. 215.275, Utility facilities necessary for public service; criteria; mitigating impact of facility 215.296, Standards of approval of certain uses in exclusive farm use zones; violation of standards; complaint; penalties; exceptions to standards EXHIBIT A A ilent Technologies August 15, 2001 Brian K. Silbert SBA, Inc. 123 NE 3rd Avenue, Suite 215 Portland, OR 97232 Re: La Pine / 167oo Reed Road, La Pine, Oregon Dear Brian, Agilent Technologies, Inc. 503.670.6424 telephone 15115 SW Sequoia Parkway, Suite 101 503.670.6477 facsimile Portland, OR 97224 321.266.2078 mobile www.agilent.com Cashius V. Mayo Senior RF Engineer, WNSO cashius_mayo@agilent.com Verizon is desirous of collocating on the proposed SBA LaPine Sewer Treatment District tower located at 167oo Reed Road, La Pine, Deschutes County, Oregon and more particularly described as: Township 22 South, Range 10 East, Section 11, Tax Lot 107 contingent upon acquiring a height that would satisfy our radio frequency network requirements and the approval of Deschutes County. The SBA proposed tower is the only available site that meets the coverage objective for Verizon as shown on the enclosed plots of our proposed coverage. In searching this area, no existing towers were identified as possible colocation opportunities for Verizon. Our radiofrequency network needs require a minimum height of 105 feet at the La Pine site. It is our understanding that the county will consider the requested land use approvals on August 22, 2001. SBA will notify us of the county's decision within 5 business days of the issuance of the county's decision. Upon notification that the required land use approvals have been obtained, Verizon will enter into negotiations with SBA concerning lease terms. Should you need additional information, please contact me at (321) 266-2078. Sincerely, Cashius V. Mayo Senior RF Engineer Proprietary and Confidential EXHIBIT B c>= 7332.00 ALVC-800/1900-80-14/17 Gain Polarization VSWR, 5052 Horizontal 3dB beamwidth Vertical 3dB beamwidth Custom electrical dowtilts 40 degree cone Front -to -back ratio Suppression of first upper side lobe First lower null fill Maximum CW input power, per band Typical maximum combined input power Two tone intermodulation 3rd order ( 800MHz ) Two tone intermodulation 3rd order ( 1900MHz ) 806 to 896MHz 1850 to 1990MHz 12dBd ( 14dBi) 15dBd ( 17dBi ) linear, vertical linear, vertical <1.4:1 <1.4:1 80° 80^ 15° 7° 0° ( same tilt angle for both bands ) > 27dB > 27dB > 16dB > 16dB N/A > -17dB 60OW 350W 30OW 175W <-107dem for 2x20W ( 150d8c at 2x43dBm <-104dBm for 2x20W ( 147d8c at 2x43dBm t-annecior //1b UIN bottom mounted Height 53.1" ( 1350mm ) Width 11" ( 280mm ) Depth 4.9" ( 125mm ) Weight 20.7lbs ( 9.4kg ) Survival wind speed 156mph ( 70m/s ) Maximum wind area 4.1sq.ft (0.38sq.m j Frontal wind load @100mph (C=1) 1071bf (476N ) 'All feed network components DC grounded for Lightning Protection Mounting Hardware Options for Installation 1) 2165.10 pole mount 2) 7254.10 combined pole mount and downtilt bracket Typical Horizontal and Vertical 7332.00 Patterns in the 8OOMHz Band Typical Horizontal and Vertical 7332.00 Patterns in the 1900MHz Band Future on D �kA & emand. ALLGON www.us.aligon.com 1 Frequency Attenuation Description Standard Cable . No; - 1-5/8' Standard Cable, Standard Jacket Fire Retardant Cable LDF7.50A 1-5/8' Fire Retardant Jacket (CATVR) ANDREW LDF7RN-50A 1-5/8' Low VSWR, specify operating band Cable for Cellular, standard jacket 12361 LDF7P-50A-(N) - LDF 7 0.085 0.098 880-960 MHz, 1.20 VSWR, max. LDF7P-50A-1A 870-960 MHz, 1.10 VSWR, max. (up to 300 ft) Cable for Cellular, fire retardant - 5Dq NELIq jacket (CATVR) 824-894 MHz, 1.20 VSWR, max. 30 Oualified to MIL -C-28830/5 41690-73 " Insert suffix number from "Low VSWR S 2020713 Pecifcations' table. Characteristics 0.156 Impedance, ohms - - @ Maximum Frequency, GHz 50* 1 Velocity, percent 2.5 Peak Power Rating, kW 88 do Resistance, ohms/1000 it (1000 m) 315 Inner 0.280 Outer 021 (0.69) do Breakdown, volts 0-10(0.33) Jacket Spark, volts RMS LDF7-50A Cable Ordering Information Frequency Attenuation Description Standard Cable . No; - 1-5/8' Standard Cable, Standard Jacket Fire Retardant Cable LDF7.50A 1-5/8' Fire Retardant Jacket (CATVR) Low VSWR Cables LDF7RN-50A 1-5/8' Low VSWR, specify operating band Cable for Cellular, standard jacket 12361 LDF7P-50A-(N) 824-894 MHz, 1.20 VSWR, max. 0.085 0.098 880-960 MHz, 1.20 VSWR, max. LDF7P-50A-1A 870-960 MHz, 1.10 VSWR, max. (up to 300 ft) Cable for Cellular, fire retardant L0F7P-50A_2A LIDF7p-50A-2A jacket (CATVR) 824-894 MHz, 1.20 VSWR, max. 30 Oualified to MIL -C-28830/5 41690-73 " Insert suffix number from "Low VSWR S 2020713 Pecifcations' table. Characteristics 0.156 Impedance, ohms 28.9 22.1 Maximum Frequency, GHz 50* 1 Velocity, percent 2.5 Peak Power Rating, kW 88 do Resistance, ohms/1000 it (1000 m) 315 Inner 0.280 Outer 021 (0.69) do Breakdown, volts 0-10(0.33) Jacket Spark, volts RMS 11000 Capacitance, pF/ft (m) 10000 Inductance, NH/ft (m) 23.1 (75.8) 400 0.058 (0.190) Outer Conductor 8.42 Inner Conductor Copper Diameter over Jacket, in (mm) Copper Diameter over Copper Outer Conductor, in mm Diameter Inner Conductor, in (mm) ( ) 1.98(50) 83 (46'5) Nominal Inside Transverse Dimensions (cm) 0.6681 (17.3) Minimum Bending Radius, in (mm) (4.05) Number of Bends, minimum (typical) 20(51o) Bending Moment, ib -ft (Nom) 15 (50) Cable Weight, Ib/ft (kg/m) 50 (68) Tensile Strength, lb (kg) 0-92(1.36) Flat Plate Crush Strength, IfYn (kg/mm) 1000 (455) 824 894 150 (2.7) Attenuation and Average Power Frequency Attenuation .: ro f t Attenuation AverT C1131100rrr 0.5 0.015 0.048 15 0.021 0.069 12361 2 .0.026 0.030 0.085 0.098 133 10 20 0.068115 0'33 50.8 30 0.097 0.120 0.319 35.6 50 0.156 0.394 0.512 28.9 22.1 88 100 0210 0.690 16.4 108 0.225 0235 0.738 15.3 150 0.280 0.769 0.919 14.7 174 200 0.304 123 11.3 300 0.328 0.411 . 1.08 108 10.5 400 0.482 1.35 1.58 8.42 450 500 0.515 1.69 7.17 6.71 512 . 0547 0.556 1.79 6.31 600 0.607 1.82 623 700 0.6 64 , 1.99 5.69 800 0.718 2.18 2.36 5.20 824 894 0.731 2 40 4.81 4.73 960 0.767 0.800 2'52 4.51 1000 0.819 2.62 2.69 4,32 1250 1500 0.936 3.07 4,22 3.69 1700 1.05 1.13 3'72 3.30 2000 1.25 3.72 3.06 2300 1.37 4.10 2.76 2500 1.44 4.48 2.53 4.72 2.40 Standard Conditions: For Attenuation. VSWR 1.0 emblem temperature Pressure. dry air. 24°C (75'F), atmosphenc For Average Power, VSWR 1.0, inner temperature 100'C (212'F), ambient temperature 40°C (104T), atmospheric pressure, dry air, no solar loading. 474 DREW. Customer Service Center - Call toll-free from: • U.S.A.. Canada and Mexico 1-800-255-1479 (2) FUTURE PANEL ANTENNAS NEW BEACON LIGHT �- (2) FUTURE MICROWAVE AT TOP OF TOWER OF REQUIRED BY FAA) (2) PROPOSED PANEL ANTENNAS AtaPCS�.A 125-0 Y ALAMOSA PCS ANTENNAS FUTURE __ FUTURE OMNIIPANEL ANTENNAS (mm* ERm EL" 1j� (W� -- �- FUTURE OM WANEL ANTENNAS GRADE AT TOWER BASE g5.(y (FENCED AREA) ` iWir (LEASE AREA) NORTH ELEVATION SCALE: 1:20 2 (2) FUTURE PANEL ANTENNAS (2) PROPOSED PANEL ANTENNAS EL1F VERIZON EL.1.6. U5-0' I FUTURE NEW 6' HIGH CHIN -LINK FENCE WITH 3 STRANDS OF BARSED WIRE ON TOP - �- (2) FUTURE MICROWAVE ANTEMA(% EL TBO (TYP) 1 ♦ (2) NEW MARKER LIGHTS AT 112 TOWER HEIGHT _? OF REQUIRED BY FAA) Xj � NEW MONOPOLE TOWER NEW 5 HIGH CHAIN-LINK FENCE WITH 3 STRANDS OF SARSED WIRE ON TOP PROPOSED EQUIPMENT LOCATION --I GRADE AT TOWER BASE g5.(y (FENCED AREA) ` iWir (LEASE AREA) NORTH ELEVATION SCALE: 1:20 2 (2) FUTURE PANEL ANTENNAS (2) PROPOSED PANEL ANTENNAS EL1F VERIZON EL.1.6. U5-0' I FUTURE NEW 6' HIGH CHIN -LINK FENCE WITH 3 STRANDS OF BARSED WIRE ON TOP - �— NEW BEACON LIGHT AT TOP OF TOWER OF REQUIRED BY FAA) %--ALAMOSAPCSANTEMAS -- FUTURE OMNUPANEL ANTENNAS FUTURE OMNUPANEL ANTENNAS FUTURE OMNUPANEL ANTENNAS (2) FUTURE MICROWAVE ANTENNA 4 EL TBD (TYP) (2) NEW MARKER U GHTS AT 112 TOWER HEIGHT (IF REQUIRED BY FAA) _ NEW MONOPOLE TOWER NEW 14' WOE CHAIN-LINK GATE NTH aSTNTOP OF BARBED WIRE ON TOP PROPOSED EQUIPMENT U MERICOM- C O R P O R A T 1 O N MERICOM DEVELOPMENT SERVICES 25977 SW CANYON CREEK PA SUITE #E WnSONVQ= OR 97070 PHONR 603.905.3000 FAX 603.303.3001 CONTACT PERSON: PRL# FAY4 ws ORAWIND R COPYROHTED ANO Is TIE sOLF PROPERTY OP THE OWNER IT IS PRODUCED 90.SLY FOR USE BY THE OWNER AND ITS AFFTUATM REPRODUCTION OR USE OF THIS ORAWINO MID IM NPORMAIRIN CONTAINED N IT FORMOVEN VA OUT THE WRITTEN FIDMSMON OP' ol sl mmm LaPINE sft - Addrow. Naldler: OR9702 TTeWow Block Deli sAIPL CE SP RF MOD 3h" TTOa: ELEVATIONS GRADE AT TOWER BASE 9B'-0' (FENCED AREA) � ftod Nurud°I' 89702 1W -W E AREA Dmm By: j� AuWREI Wllbanks WEST ELEVATION SCALE: 1:20 By. DESCHUTES COUNTY LEGAL COUNSEL LAURIE E. CRAGHEAD Assistant Legal Counsel TO: Board of County Commissioners DATE: August 22, 2001 W Ext. 6593 RE: Response to Applicants' memorandums FILE NO.: Mericom (CU-00-129)/SBA CU - 00 -139 appeals I have reviewed the memorandums submitted yesterday by the above listed applicants. Originally, I thought I would just present my opinions at the hearing but believe a memo of the key points to you might be more helpful. Mericom 1. Page 1-2 — The fact that the County's definition of "wireless telecommunications facility" includes the "personal wireless service facilities" as defined under the Telecommuinications Act of 1996 does not mean that a tower, by itself is a wireless telecommunications facility. The definition in the Act is even more general than ours and provides no real assistance in this matter. I believe the County can interpret that to say that the facility for the provision of service must be more than just a pole. 2. None of the federal cases cited by the applicant actually had a challenge as to the definition of facility. Three of the cases cited did just assume that a tower was sufficient to be a facility but the issue was, apparently, never raised. Thus, we do not have any case law on point. The SBA Comms, Inc. v. Zonning Comm'n case cited by the applicant does say that the court will give weight to the local & state zoning laws. Also, it's not that most courts say that the burden of proof shifts to the agency denying the permit. The cases say that the cases are split on the issue. They also say that an administrative decision is not reversible merely because there is substantial evidence in opposition to the decision as long as there is substantial evidence to support it. 3. Page. 3 - The legislative history of the Act is not dispositive of how the definition of facility should be interpreted and the connection made by the applicant regarding the use of the plural versus the singular is tenative at best. 4. Page 3 — The applicant claims that the use of the word "usually" in the listing of what items constitute a wireless telecommunications facility means that not all of the items are necessary. Under this theory, an applicant could propose to build just a cabinet with fencing and call it a wireless telecommunications facility. The listing in DCC 18.04.1342 is one of examples of what, as a whole, will constitute a facility. This interpretation is supported by the fact that other places in the code, such as DCC 18.128.340 distinguishes between a facility and a tower or monopole with the latter being one element of the EXHIBIT C facility. It is also consistent with the DCC 18.04.1315 which says that a utility facility must be "owned or operated by a ... communications ... company." 5. Page 5 — As the applicant states, ORS 197.522 requies approval of a permit if conditions of approval can make the application consistent with the applicable regulations. 6. Pages 6-9 — I agree with the applicant's arguments on ORS 215.275. 7. Pages 7-11 — I agree with the applicant's arguments regarding radio frequency. I disagree with the comment that the County can't discriminate between providers. The Act just says can't unreasonably discriminate. 8. Page 12 — Same argument that the County can discriminate if it is reasonable. It is reasonable for the County to require an FCC license and a commitment from an actual service provider in order to determine, for example, the technical and engineering feasibility under ORS 215.271 and to determine if the tower is consistent with the County's siting and other regulations. 9. Page 13 — I agree that the County doesn't need information regarding all possible carriers, just the initial one. 10. Page 14 — How can the County determine if the tower is necessary on EFU land without a provider to show that a tower is needed in the area for that type of service? 11. Page 16 — DCC 18.116.250 lends credence the to argument that the definition of a facility of more than just a pole. The applicant also states that the staff report applied (CC) for siting a facility in an SM zone. The staff report applied (DD), the appropriate section. SBA I have pretty much the same comments with a few additions. 2. Page 6 — Applicant misinterprets DCC 18.128.040 (DD) (2) (b) (now 18.128.340). The legislative history is not dispositive. The way it's written, an applicant doesn't completely meet the criteria by analyzing co -location options. That is just the first step in meeting the criteria. If there are no opportunities to co -locate, then the applicant must find less visually impacted cites or if, available, that they do not provide the necessary coverage. Mericom/SBA memo Page 2 The following is a list of the applicable criteria for application numbers A-01-13 and CU -00-139. Evidence and testimony at this hearing must be directed toward these criteria. Testimony may be directed to any other criteria in the County Comprehensive Plan or land use regulations that any person believes apply to this decision: Title 18, the County Zoning Ordinance, of the Deschutes County Code: Chapter 18.04, Title, Purpose, and Definitions Section 18.04.1342 Chapter 18.108, Urban Unincorporated Community Zone — Sunriver Sections 18.108.020 and 18.108.110 Chapter 18.80, Airport Height Combining Zone Sections 18.80.040, 18.80.050, and 18.80.060 Chapter 18.116, Supplementary Provisions Section 18.116.250 Chapter 18.128, Conditional Use Sections 18.128.015 and 18.128.340 EXHIBIT D August 22, 2001 Deschutes County Community Development Department - Planning Division Attn: Damian Syrnyk 117 N.W. Lafayette Ave. Bend, Oregon 97701 RE: Land Use Application CU -00-139 Dear Mr. Syrnyk: Please accept this letter as evidence that VoiceStream would like to be considered a co -applicant with SBA Communications for the above reference Conditional Use Permit for a wireless communication facility. Thank you for your assistance in this matter. Siri rely, Andrew Nenninger Real Estate Manager EXHIBIT E 1500 N.E. Irving, Suite #530 Portland, OR 97232 (""**1NRIVER August 21, 2001 Deschutes County Board of Commissioners RE: Appeal of CU -00-139 Supplemental Testimony by Sunriver Resort Dear Deschutes County Board of Commissioners We request that the Board of County Commissioners deny the above referenced Conditional Use Application for reasons summarized below. Many of the following comments were submitted and are part of the official record per our letter of May 1, 2001. Sunriver Limited Partnership (SRLP) has well established standing in this matter and is of record in prior proceedings. Applicant has failed to meet many of its individual burdens of proof, and each of these failures standing on its own in the absence of any other, is sufficient to require denial of the Application. Applicant's duty is adequately meet each and every one of them. 1. The Applicant proposes to construct a structural tower that does not meet the definition of a tele -communications tower, with no enforceable assurance that it will be modified to meet that definition by a date certain. 18.04.1342 defines a wireless telecommunications facility as: "...an unstaffed facility for the transmission or reception of radio frequency (RF) signals usually consisting of an equipment shelter, cabinet, or other enclosed structure containing electronic equipment, a support structure such as a self- supporting monopole or lattice tower, antennas, microwave dishes or other transmission and reception devices. The definition includes "personal wireless services facilities" as defined under the Telecommunications Action of 1996." The definitions in the Telecommunications Act of 1996 define telecommunications and telecommunications services as the transmitters, antennas, computers, etc, for transmitting or selling wireless services. We can find no place where they define the towers themselves as telecommunications devices. Applicant's proposed tower does not meet the definition. There are severe consequences for the County if this Application is approved. The Application before you is for a conditional use permit to build a speculative structural EXHIBIT F Post Office Box 3589 Building 5 Sunriver Village Mall Sunriver, Oregon 97707 541-59,' tower that does not include the actual telecommunications equipment, and that will not be immediately and continuously placed into service upon completion. The likely hood that it will is based solely on Applicant's sincere desire that it will at some unknown date find someone who will convert it into a tele -communications tower. No enforceable assurance has been made that the Applicant or others will immediately remove the tower and restore the site if Applicant fails to convert it to a telecommunications tower by a date certain. Where do they get the authority to build a non-functioning tower, and how long should they have to complete this, and what happens if they do not? Where is your authority to make them remove the tower? The distinction between a structural tower that could be a telecommunications tower, and one that is a telecommunications tower is critical. The intent is that these towers are approved and allowed only so long as they are constructed and then continuously used for the intended purpose. The conditional use permit terminates if the continuous use terminates. To undo this essential regulatory feature is to gut the County's ability to regulate these towers at all. In the future, any raw structural tower without the capability to broadcast can be deemed to be a telecommunications tower, and qualify for the conditional use permit, and can continue to hold that permit even though it is not operating. Any existing telecommunications tower can be taken out of service indefinitely. Under current interpretation, the County can require it to be promptly placed back in service or removed because it no longer meets the definition under the conditional use permit. Given that Applicant will not install the required equipment and has failed to provide a binding agreement with a Licensee to install and operate the required equipment immediately upon completion of the tower, the Application is not for a telecommunications tower, but simply for an illegal tower, and it should be denied. 2. Applicant failed to properly consider and investigate all alternative sites within the required search radius and failed to meet its burdens for this Application under 18.04.605, which requires Applicant to consider other sites in its search area and show all existing monopole antennas. Under questioning during the 4/17/01 Hearing, the Applicant acknowledged that it had not investigated or considered the Sunriver Utility site because it assumed, but did not confirm, that said site was not available. Applicant's untested assumption is false and based on untrue assumptions regarding our dealings with VoiceStream. As we have previously testified on the record, we are receptive to working with a qualified tele -communications provider regarding the above site, subject to our satisfaction that any proposed facility will meet our standards for protection of the community's important scenic values, and a lease containing all appropriate provisions and assurances. Applicant has still made no effort, and presented no evidence that it completed the required evaluation of this site as required by its burdens of proof under this Application. The preceding is a serious failure by Applicant, given that the Sunriver Utilities site is properly zoned, located within the Applicant's own search radius, meets many of the code requirements for a telecommunications site including being well screened by topography and trees, would be significantly less impactful on the community by every measure, and contains existing monopole antennas. It was mandatory under the ordinance, not optional, to consider this site, and it was not considered Applicant's burden is to consider all alternative sites within the proposed service area. Applicant established an arbitrary search ring, which we believe to be smaller than the proposed service area. The search ring utilized does not meet the requirements of the code, and while it includes the Utility site that was ignored, if properly established, it would likely have identified other potential suitable sites, and other existing monopole antennas. Given Applicant's total failure to establish the correct search ring, and to evaluate all potential sites and antennas within it, Applicant failed to meet its burden of proof, and the Application must be denied. 3. The proposal violates Ch 118.128.040.2.e and Ch 118.128.015. Ch 118.128.040.2.e 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 tractable from views from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. Ch 118.128.015. General standards governing conditional uses. Except for those conditional uses permitting individual, single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of this Chapter: B. The proposed use shall be compatible with existing and projected future uses on surrounding properties based on the factors listed in (A) above. The proposal blatantly violates these sections that explicitly prohibit siting of telecommunications towers where there is inadequate vegetative, structural, or topographic screening available, and prohibit siting monopoles where they will impact protected scenic roadways, and requires adequate consideration by Applicant of compatibility with surrounding uses. County Staff found, and we submitted supporting evidence, that the proposed tower is aligned with a protected scenic portion of Spring River Road, and will also be clearly visible from this portion of South Century Scenic Highway along at least the following segments; eastbound Spring River Road approaching the Sunriver Business Park, northbound on Huntington Road adjacent to Crosswater, near the Sunriver main entrance, west of the railroad bridge crossing. These visual impacts directly violate the site eligibility requirements of the above sections rendering the proposed site ineligible for the proposed tower. During prior testimony we presented state-of-the-art digital photo simulations of the proposed tower together with the engineer's certified statement of the methodology used to create them. OrionGPS and Forest in the Grove Studio prepared these. We submitted letters from Orion GPS, licensed engineers, attesting to the accuracy of the methodology used. This technology has been proven to be extremely accurate and has been used to analyze and simulate the impacts of major projects including a major Interstate 5 interchange for ODOT, and another for a major project by the Port of Portland. Our consultants relied upon the dimensions and details in the Applicant's plans, as submitted for the record, created the tower as an accurate three-dimensional virtual object in 3D CAD, and "placed" it into a virtual three-dimensional GPS based model. The backgrounds are actual photographs taken towards the proposed tower site, from an elevation above ground level, and utilizing a lens that most accurately simulates the view of the human eye. The camera locations illustrated in the inset photos show that these represent the actual visual impacts that will occur on protected scenic highway views and residential neighbors. This methodology scales the tower correctly for distance, relative elevation of the site and the camera location, upward viewing angle, perspective, and other factors Because the proposal violates the cited sections as described, and the impacts would be substantial in violation of these sections, the Application must be denied. 4. The Application is incomplete and internally contradictory. The tower, platforms, and antennas illustrated in our photo simulations were based on the worst cases illustrated in the various, and inconsistent documents submitted by the Applicant for approval. The Applicant's record is significantly incomplete and contradictory with itself and with the Applicant's oral testimony. Applicant failed to fully illustrate the accessory buildings, the actual proposed antenna platforms and the configuration of the antenna arrays proposed, stating others will install such equipment at a later date. Applicant submitted drawing A3 illustrating four antenna platforms at 73 feet, 85 feet, 103 feet, and 118 feet. Plan A2 shows antenna platforms array frames that scale roughly 12 to 14 feet across in the narrowest possible dimension, and 16 feet at the widest. Applicant's exhibit O, details the tower top, showing a different configuration of large antennas arrayed at the top of the tower. These are contradictory and incomplete, leaving the County with no clear and enforceable document to restrict such potential future attachments. The Application should be denied because it is incomplete and internally contradictory. 5. Federal Law does not require local governments to approve tele- communications towers except in very narrow circumstances, which do not apply to this case. According to the US Courts, The Federal Telecommunications Act is a consumer -access protection law, not an empowerment of the tele -communications industry. Attempts by the tele -communications industry to use the law to the contrary have been argued in the US Courts of Appeal and the US Supreme Court. Both have consistently held that once consumer access to tele -communications service has been established in a given area the intent of the law has been met and it no longer limits what local governments may do in any served area. The rights of State and local government to restrict, regulate, require protective standards, and prohibit additional towers and antennas has been affirmed in the highest State and Federal Courts. Found to be irrelevant are factors such as an individual service providers' costs, levels of profitability, financial feasibility, competitive desires to enter into areas already served, and provider's franchise or license obligations expand coverage areas. These factors do not overcome local governments' rights to restrict, regulate and prohibit. The 3rd US Circuit Court of Appeals in Newton vs. Omni -point, ATT, Nextel, SBC, Sprint, Spectrum, and Dobson, and the US Supreme in Omni -point vs. Newton found that the Federal Telecommunications Act does not guarantee individual companies the right to serve any market, nor does it negate local regulatory authority. The US Supreme Court found that Applicants have the burden to prove that: 1) Significant gaps in wireless service coverage exist which deny consumers access to any reliable service provider (but that gaps in any provider's coverage area where service is available from another provider does not constitute such a gap), and 2) In filling gaps in coverage by any given provider the proposed method must be the least intrusive means of bridging that total gap in coverage, and 3) That the cost of implementing the least intrusive method of bridging a coverage gap was not a factor. Absent proof that a significant gap in coverage exists, and that no alternative method of filling that gap exists, the Telecommunications Act provides no relief to service providers. The US Supreme Court found in "Ho-Ho-Kus", that a "significant gap" in coverage only exists when a remote user is unable either to connect to the land based national telephone network, or to maintain a connection capable of supporting a reasonably uninterrupted communication. Further, the doctrine of prohibiting gaps in coverage is strictly for the purpose of protecting the users' right to access service, not to protect any carriers' ability to provide service. In APT Pittsburgh, the US Supreme Court found that it was insufficient to demonstrate that a gap existed in particular service provider's coverage where others provided coverage, but rather, it was necessary to show that the area had no coverage at all. Sunriver is well served by existing wireless communications, including Cellular One and Sprint, with only a slight weak signal along a short segment of Highway 97 in the east shadow of Lave Butte. There are no "remote users" in this area as defined in the court cases cited above. In addition, substantially less obtrusive alternatives exist to fill any small gaps that may exist in this service area, and local governments can require the least impactful alternatives to be employed. The Applicant has claimed that Voice Stream, who is not an Applicant, has gaps in its competitive coverage, which is irrelevant, since the Telecommunications Act provides no protection for any individual provider to fill the gaps in its own coverage. According to the US 3rd Court of Appeals, and the US Supreme Court, the Applicant is entitled to no protection or relief what -so -ever under the Telecommunications Act of 1996, and must fully comply with all applicable local laws, regulations, restrictions and ordinances, and must provide any new coverage in the least impactful manner, regardless of the cost or profitability of doing so. Summary. In summary, the Application proposes to violate, ignore, or otherwise fails to comply with numerous specific requirements of this Conditional Uses Process, and clearly has not met the requirements for a conditional use permit on numerous grounds. We urge the Commissioners to deny this Application. Sincerely, Paul Eisenberg Director of Development and Construction Sunriver Resort Limited Partnership Fm 0,�� will Will dill V• ca O � L O) M Q a� aO 0 t� C d b w .cU5 n/1 M� O - V N `^ . L C V - �CQ .0 CL .a 2 oCL_ ~oo o z v EXHIBIT G