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HomeMy WebLinkAboutAlfalfa Cell Tower DecisionDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -FWw.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of August 19, 2013 Please see directions for completing this document on the next page. DATE: August 13,2013 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Discussion and possible approval of the Board's decision on an appeal of the Hearings Officer's decision for CU-12-15, a Conditional Use Permit for a wireless telecommunications facility on a 5-acre lot in the Rural Residential (RR -10) zone. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: The Board held a public hearing on the appeal ofthis Conditional Use Permit application on June 13, 2013. The written record closed on July 12, 2013. The Board deliberated and unanimously directed staff to prepare a decision to deny the appeal on Tuesday, August 6, 2013, with additional findings demonstrating how the application does not comply with County Code, subject to final review. FISCAL IMPLICATIONS: The cost of the Board's review and decision on this application. Also, the cost of any appeals resulting from the Board's final decision. RECOMMENDATION & ACTION REQUESTED: Staff recommends approval of the decision subject to the Board's final review and any revisions. Board action to approve this decision as proposed or as revised by the Board is requested. ATTENDANCE: Laurie Craghead, Paul Blikstad. DISTRIBUTION OF DOCUMENTS: Planning Division staff will send notice to all parties of the Board's decision on CU-12-15 (A-13-1). CU-12-15 (A-13-1) Page 1 For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBER: CU-12-15 (A-13-1) APPLICANT: American Tower c/o Rod Michaelis 1411 E. Pinecrest Road Spokane, WA 99203 PROPERTY OWNER: Barbara Ellingboe P.O. Box 8696 Bend, OR 97708 REQUEST: Approval of a conditional use permit for a Tier 3 wireless telecommunications facility on an approximately 5-acre lot in the Rural Residential Zone. PROPERTY: 25070 Alfalfa Market Road, Bend; County Assessor’s Map 17-14-29, tax lot 600 STAFF CONTACT: Paul Blikstad, Senior Planner HEARING DATE: June 13, 2013 I. SUMMARY OF DECISION: In this decision, the Board of County Commissioners (“Board”) is asked to decide on an appeal of the County Hearings Officer’s denial of a conditional use permit for a wireless telecommunications facility, consisting of a 100-foot monopole, with associated antennas, and ground equipment on an approximately 5-acre lot within the Rural Residential (RR-10) Zone. The proposed telecommunications facility is identified as a “Tier 3” facility under Deschutes County Code (“DCC”) 18.116.250(C). This case comes to the Board on the appeal by the applicant of the Hearings Officer’s denial of the conditional use permit application (CU-12-15), the appeal was heard de novo. REVIEWED ______________ LEGAL COUNSEL CU-12-15 (A-13-1) Page 2 In this decision, the Board upholds the County Hearings Officer’s denial of the conditional use permit. On the issues presented by this appeal, the Board decides as follows: The applicant should not have limited its search ring to only lands outside the EFU zone merely because approval of a tower on resource land may have been more difficult. The applicant specifically stated that they did not include EFU land in the search ring because the criteria for siting a wireless telecommunications facility of EFU land are more stringent than for non-resource lands. This should not have prevented the applicant from creating a reasonable search ring that could have included alternative sites on EFU land. A trapezoidal-shaped search ring that included only nearby RR-10 zoned land did not go far enough in analyzing sites that might be suitable and provide the necessary cellular coverage for any gaps in service for the applicant. Any reasonable person could see from the map of the search area that the search shape was specifically tailored for the subject lot and not as a reasonable search ring. This is especially true in light of the applicant’s own engineer’s declaration dated ??? that says that any of the alternative sites analyzed would provide the desired coverage. In fact, the Board believes that, in this location, a site on the EFU land would likely be the best placement for the tower because of fewer surrounding residential uses the visual impacts for which would be impacted. The Alfalfa area, especially in the subject location, has wonderful views of the Cascade Mountains that would be impacted a 100 ft. tall tower. The Board finds that, based on the oral and written record, the surrounding area has scenic views that include, as described in the Hearings Officer’s decision: open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain and the Paulina Mountains. The DCC provisions for wireless telecommunications clearly require protection of such views. Because parcels in EFU areas that surround the subject property are larger but fewer areas on those EFU lands are farmed such that siting a tower on EFU land will probably not significantly interfere with the farm uses and will have a lesser visual impact than if it is sited on the subject property so close to neighboring residential uses. The applicant’s statements regarding the possibility of the nearby Department of State Lands (DSL) property not being available or approvable for a telecommunications facility constitute merely speculation. The fact that it may have taken additional time to go through the DSL process is not sufficient to determine that such an approval would not happen within a reasonable time, merely because neighboring property owners might object to those sites as well is also merely conjecture. The DSL staff person with whom the applicant’s representative spoke did not say that it was a certainty that the tower could not be located anywhere on the DSL RR-10 property. That DSL staff person was not present at the Board hearing such that the Board could glean any additional information from the property owner’s representative. CU-12-15 (A-13-1) Page 3 The Board finds that the DSL sites may very well have fewer visual impacts than the proposed site. The testimony provided was that there is more vegetation and more rock ridgeline in various places to screen the tower. Additionally, if the tower is placed on the top of the ridge, it is likely the tower could be lowered by that same footage of elevation gain and be less visually intrusive. The argument that requiring the applicant to go through the DSL process would not comply with the FCC requirement, that the approval or denial be within a reasonable time, is not a deterrent for finding that the DSL sites are better than the subject site (less visual impact) if the monopole must be placed in the RR-10 zone. The applicant could have submitted the DSL application at the same time as applying for the County land use approval of one or more of those sites. Additionally, that would be a process for a different site and not whether or not the subject site was approved or denied within a reasonable timeframe as required by FCC regulations. The applicant’s submitted materials on July 5, 2013 clearly indicated that the alternative site B on the subject property has a lesser visual impact on nearby properties based on topographic and vegetative buffers than the original proposed site A. The applicant asked the Board to consider this site. While the Board agrees that Alternative B would be better than the subject site because it is closer to the ridgeline and, thus, would provide better visual screening than the subject site, the Board is not stating that Alternative B is the best site. In fact, the Board believes that the DSL sites may actually be better Because the Board is not finding that Alternative B is the best site and because Alternative B was not included in the original application, Alternative B cannot be considered under this CUP application. Consideration of proposed alternative site B will require either the submission of a modification of CU-12-15, or a new conditional use permit application must be submitted. II. APPLICABLE CRITERIA: The Board adopts the Hearings Officer’s findings in Section I of his decision and incorporates them herein as its own findings. III. FINDINGS OF FACT: The Board adopts as its findings of fact, the findings that were made by the Hearings Officer, in Sections II (A) through (I) except as modified below. F. PROPOSAL The applicant proposed a tower at what it has termed Applicant’s Preferred Alternative Site A, as shown in the application materials. This site was close to Alfalfa Market Road. During the proceedings, Applicant identified what it has termed as Applicant’s Preferred Alternative Site B, located on the subject property some 530 feet to the north of Alternative A and argued that this site should be considered as a proposed site for its proposed tower. For the reasons set forth herein, the Board does not consider this proposed alternative. CU-12-15 (A-13-1) Page 4 The Board finds that the Applicant’s proposed alternative location would constitute a “modification” of its application and that pursuant to DCC 22.20.055(B), such a proposal may be considered only if the applicant has submitted a modification application, paid a modification application fee and agreed to restart the 150-day time clock. Bu definition, a modification is a change that would modify the proposal as it relates to setbacks, orientation, or site layout in a manner that would require the findings of fact to be changed DCC 22.04.020. In this case, there is no question that such a change would require new findings of fact on among other things, the site’s proximity to nearby houses and its location in relation to scenic views of those houses. Accordingly, the alternative site location constitutes a modification and the procedural requirements for placing that alternative before the County for decision was not adhered to. The only proposal before the County for decision was the site close to Alfalfa Market Road identified in the Applicant’s application materials and that will be the only site reviewed in this decision. I. PROCEDURAL HISTORY: The procedural history submitted by the Hearings Officer is amended to add the following: The Hearings Officer’s decision was mailed out on March 1, 2013. The applicant appealed the Hearings Officer’s decision on March 13, 2013, which was within the 12- day appeal period required by State Law and Deschutes County Code 22.32.015(B). The applicant, by letter dated June 13, 2013, granted the County an extension to the 150- day time limit for an additional 116 days from April 6, 2013 to July 31, 2013. Additionally, at the June 13, 2013 hearing, the applicant granted the County an additional extension to August 27, 2013 for a final decision. The Board of County Commissioners, under Order No. 2013 -016, determined that they would hear the appeal, and that it would be heard de novo. The public hearing was held on Thursday, June 13, 2013. The oral portion of the hearing was closed on that same date. The written record was left open to June 28, 2013 for additional comments/evidence. Rebuttal for evidence during the June 28, 2013 open record period was allowed to July 5, 2013. And the applicant was allowed final argument until July 12, 2013. A letter from Bruce White dated July 12, 2013 was submitted objecting to the applicant submitting new evidence with its July 5th submittal, and requesting the due process right for the other parties to respond to that evidence; Bruce White was the only party to make such a request. On July 15, 2013 the Board issued a verbal order reopening the record to enter into the record Bruce White’s July 12, 2013 letter. The record was left open to July 23, 2013 for the applicant to respond to Bruce White’s letter. The Board issued Order No. 2013-033 on July 24, 2013, which ratified their verbal Order of July 15, 2013. The Board held deliberations for a decision on the appeal of CU-12-15, on August 6, 2013. The Board voted to uphold the Hearings Officer’s denial of CU-12-15. The Board CU-12-15 (A-13-1) Page 5 directed Staff to prepare a written decision taking into account the Board’s statements at the deliberations for their decision. IV. FINDINGS OF FACT AND CONCLUSION OF LAW SPECIFIC LEGAL ISSUES Deschutes County Code 18.128.340 establishes the standards and criteria for a wireless telecommunications facility. The Hearings Officer’s findings under DCC 18.128.340(A) and (B) are incorporated herein by reference, except as supplemented below. B. Approval Criteria: An application for a wireless telecommunications facility will be approved upon findings that: 2. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co-location within the area to be served. The first ground for appeal asserted by the Applicant was that the Hearings Officer erred in finding that the applicant failed to demonstrate compliance with DCC 18.128.340(B)(2) requiring that the Applicant demonstrate that no available site had less of a visual impact than the subject site. The Board finds that an analysis of alternative sites requires a detailed, site-specific analysis that considers actual views of alternative sites from nearby residences. The Board finds that the Applicant failed to conduct the kind of analysis that would satisfy these requirements. In evaluating that criterion, the Hearings Officer determined that the area has significant scenic areas, including the open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain, and the Paulina Mountains. The Board concurs with this scenic assessment. The Hearings Officer then denied the application based on Applicant’s failure to meet this criterion because he found that Applicant had failed to conduct a meaningful search for alternatives that would minimize visual impacts. This included a failure to consider utilizing existing transmission lines along Elk Lane for co-location of the tower facilit y; a failure to respond to the opponents’ suggestion that the tower might be located on the Division of State Lands (DSL) property; and a failure to review whether such alternatives would involve visual impacts of lesser magnitude than the subject site. The Board agrees with the Hearings Officer’s analysis on page 13 of his decision that the alternatives language of DCC 18.128.340(B)(2) is not limited to an analysis of opportunities for CU-12-15 (A-13-1) Page 6 co-location, but that it includes a general mandate that an applicant search for sites that “would have less visual impact as viewed from nearby residences than the site proposed.” The Board finds that the second sentence of this provision referencing co-location is intended to reference co-location as one means of satisf ying the mandate of the first sentence but, in the absence of limiting language, does not represent the exclusive means of satisfying the general mandate that alternatives be considered. The Board also finds that the review area of a half-mile from the subject site, as suggested by the opponents, satisfies the need to review the impacts of “nearby residences.” This review area was suggested by the opponents and the Applicant appears to have agreed to that distance within in its submittals before the Board. The Board finds that such an area is tight enough to give protection to residences closest to the proposed tower but not so broad as to make the analysis too unfocused and diffuse. The Board finds, however, that the applicant’s submittals include a statement from their Radio Frequency Engineer Karen Sullivan, that all five alternative sites, three of which are on the DSL property, shown on the map attached to her written statement, would provide the necessary coverage for the applicant. The statement reads as follows: “In summary, all 5 of the proposed and alternate sites would provide acceptable coverage in the desired coverage area because all of the sites are relatively close to each other in the RR10 zone, and the elevation of the local terrain does not vary to a great degree. A 100’ tall tower on any of the proposed or alternate sites would provide adequate service in the desired coverage area. Approximately 27 square miles of reliable coverage is predicted to be added with the new site. Please see Exhibit 2 for a topographical map which shows the approximate locations for the alternate sites, and the elevations of the surrounding properties.” Ms. Sullivan’s testimony undercuts the credibility of the Applicant’s earlier arguments that the size of the search ring was justified by meeting the applicant’s legitimate coverage needs. Additionally, the Board finds that the applicant should have expanded the proposed search ring to include EFU lands in the surrounding area. Any reasonable person can review the diagram submitted by the applicant to see that the search area is not a ring in shape and was created expressly for the purposes of avoiding the EFU lands and justifying the subject site. Additionally, the EFU lands would potentially have much less visual impacts than the proposed use on RR-10 zoned land, where many people live or intend to live, relative to the number and proximity of people living on EFU land. The subject property is in an area that is surrounded by EFU land which has larger parcels which are farther away from residents. Additionally, the surrounding EFU land does not appear to be fully farmed such that, it appears, without more evidence, that sites could be found that would not significantly impact farm uses. The credibility of the Applicant’s claims for the subject site is further undercut by the fact that, on appeal, the Applicant offered new testimony attempting to justify its chosen site as the superior alternative site regarding visual impacts and also suggesting that its Preferred CU-12-15 (A-13-1) Page 7 Alternative Site B on the subject property satisfied the approval criteria. The Applicant’s formal statement in their July 12, 2013 submittal (page 2) is as follows: “The least intrusive Site. Based on the Applicant’s analysis and evaluation, the least intrusive site is on the Subject/Preferred property, at the (alternative) Preferred Site “B,” which location is approximately 700’ north of Alfalfa Market Road, on the Preferred Site.” Alternative Site B is not part of the application addressing the standards and criteria under DCC 18.128.340, and is not before the Board for decision and therefore provides no basis for approving applicant’s proposal. The Applicant should have submitted a modification of application under DCC 22.20.055 or must now submit an entirely new conditional use permit application. In light of both of the above admission by the Applicant’s engineer regarding all sites filling the service gap and by the Applicant regarding Alternative Site B, the Board need not make any further analysis or findings to justify denial of Applicant’s proposal based upon this criterion. However, because the Applicant may resubmit an application for a tower in this area and out of an abundance of caution in the potential application of the Telecommunications Act of 1996 (TCA) to this decision, the Board will make additional findings related to the Applicant’s failure to meet the requirements of this criterion. The Applicant’s analysis was largely based upon aerial photographs showing the numbers of houses surrounding each alternative proposed site then making assumptions about what the views of nearby houses were and how such “views” might be impacted. The only evidence submitted showing what the ground level views from nearby residences toward the alternative sites were photographs and narratives provided by the opponents.1 That evidence showed the existence of vegetation and topographic features -- such as a ridge on the DSL property and other topographic nobs and a proliferation of mature Juniper trees -- that restricted scenic views of the houses surrounding some of the alternative sites (in comparison to the wide open view of the subject site from the nearby White and Armenta residences).2 The Applicant’s approach seemed to be that all scenic views in the area were similar and that individual analysis of sight lines was therefore not required. Based upon the evidence supplied by the Applicant and the opponents, the Board finds that this is not the case. In addition, as stated above, the Applicant’s analysis downplayed or ignored the presence of the CEC transmission line along Elk Lane, which could have been used by the Applicant to justify sites along that line as being already visually compromised and, thus, of lesser visual intrusion. The 1 Applicant disputed this assertion by the opponents, but a review of the evidence shows that , other than some ground level photos of the subject site, the only other ground -level photographs were those provided by the applicant at the June 13, 2013 public hearing sho wing ground level pictures of the sites themselves, but no pictures showing any views toward those sites from nearby residences. 2 The most unsubstantiated assertion was the Applicant’s statement in its July 5 submittal that various houses near Alternative Site 1 and DSL Site 3 had views of the Cascades, when the only ground -level photographic evidence in the record showed that any views of the Cascades from houses around these sites was blocked by a ridge on the DSL property. CU-12-15 (A-13-1) Page 8 Board finds that due to the lack of ground-level data of the actual views of residences nearby the alternative sites the Applicant failed to make a prima facie case that the subject site would have less of a visual impact when viewed from nearby houses than the comparison alternative sites. The Board finds that the evidence of the visual impacts on the White and Armenta residences in particular at the subject site showed that placement of the proposed wireless tower at that site in relative close proximity to those residences would have marred otherwise uninterrupted scenic views of the Cascade mountains or of Horse Ridge without the benefit of any the screening whatsoever. The Board finds that the site selected was one of the few sites in the area that was flat and that had no vegetative screening. The Board finds that the Applicant’s initial application considered a variety of alternative sites, including what it designated as Alternative Site 1 on a privately-owned parcel in Cascade View Estates at the corner of Elk Lane and Todd Road. In analyzing Alternative Site 1, the Applicant ignored the 65-foot high CEC transmission lines in reviewing the scenic attributes of the alternative sites while arguing that that the presence of the 34-foot high telephone lines (which Applicant misrepresented as being 45 feet in height) along Alfalfa Market Road justified the subject site. Because of the higher transmission line at the Elk Lane/Todd Road corner, the Board finds that a tower at this Alternative 1 could possibly have less of a visual impact due to the presence of the CEC transmission line and the interruption of distant views and sight lines from nearby residences by trees and topography. During the hearing process before the Hearings Officer, the opponents suggested other alternative sites that are located on the DSL lands near the CEC transmission lines and on the CEC transmission towers themselves. The applicant failed to respond to the alternatives suggested by the opponents and the Hearings Officer found that the applicant’s failure to “seriously respond” to those suggested alternative sites warranted denial of the Applicant’s proposal under this criterion. During the hearings process before the Board, the applicant did address alternatives sites on the DSL land and the CEC tower. However, for the reasons set forth below the Board finds the Applicant’s alternatives analysis to still be lacking. To the extent the TCA requires the Board’s order to identify alternative sites having less of a visual impact than the present site, the Board finds that the three DSL sites shows on the Exhibit 2 map potentially have less impact on scenic views than the proposed site, based on the ridge that runs through the DSL property, and the amount of trees on and near the ridge that could help buffer the facility from views that might be impacted by a telecommunications facility in this area. In particular, the DSL Alternative 2 site (also referred to as SCF 3 and labeled on aerial photographs as Site 3) located near the CEC transmission line (at Pole # BA 133) would have less of a visual impact on the views from nearby residences than the subject site. This is because of the combination of the presence of the CEC transmission line that already mars any scenic views that might be present, the interruption of distant scenic views of the Cascade Mountains and other vistas by the presence of the north-south ridge on the DSL land, the proliferation of mature Juniper trees surrounding the site tending to screen the lower portions of a tower, the distance between the site and the nearest residence and the orientation of some of the nearest homes, with their primary view toward the south and not toward the alternative wireless site. CU-12-15 (A-13-1) Page 9 Finally, the argument that requiring the applicant to go through the DSL review process would not comply with the FCC requirement that the review be within a reasonable time is not a deterrent for finding that the DSL sites are potentially better than the subject site, if the facility must be placed in the RR-10 zone. The applicant could have submitted the DSL application concurrent with the County’s conditional use application, for one or more of the DSL sites. Any statements regarding whether any of the DSL sites would not be approved is merely conjecture. The Board reviewed the DSL rules submitted by the opponents and found nothing in those rules that would indicate that an application would necessarily fail. Additionally, the evidence shows that the applicant already has sites on DSL lands. Furthermore, with regard to the limited 30- year special use period, the applicant contradicted itself by suggesting it would be seeking approval from the DSL for a 5-year period, with extensions up to 30 years. The applicant does not seem to have been in any particular hurry in this case to gain approval of the proposed tower. The evidence shows that Applicant held its required neighborhood meeting in March 2012 but did not submit its application until more than 6 months later, in October 2012 and has since granted several extensions to the 150-day deadlines. The applicant could have sought DSL review during that time. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. The Board concurs with the Hearings Officer’s findings regarding compliance with DCC 18.128.340(B)(5) and adopts as its findings the findings in the Hearings Officer’s decision, as supplemented below. Applicant makes three arguments related to compliance with this provision. It argues that supplied vegetation can be used to satisfy this standard. Second, in the event that natural screening is the only screening that can be utilized, it argues that because there is some screening location on the property, a topographical ridge located at the north end of the property and trees associated with that ridge, it has satisfied the criterion. Third, it argues that its Alternative Site B can be used to satisfy this standard. With regard to the first argument, the Board finds that the language of DCC 18.128.340(B)(5) does not contemplate compliance using supplied vegetation. The use of the terms “vegetative, structural or topographic screening” as alternative forms of screening contemplate the use of existing conditions, such as an existing topographical condition or an existing structure. Vegetation is not differentiated in this list in any way that would suggest that the term “vegetation” as used could include supplied vegetation. The Board notes that the County Code expressly allows for supplied screening for Tier 2 wireless facilities. See, e.g. DCC 18.116.250(B)(1)(d). The Board knew how to expressly allow for supplied vegetation when it intended such vegetation to be used to satisfy visual impact concerns, but it did not do so here. Instead, because of the additional impacts posed by Tier 3 wireless facilities, it imposed a stricter CU-12-15 (A-13-1) Page 10 requirement of utilizing already existing screening. Therefore, any proposal that would rely in whole or in part upon mitigation by supplied screening to meet the vegetative screening requirement, as Applicant does here, does not comply with this criterion. With regard to the second argument, that compliance requires only that there be some natural screening somewhere on the property, regardless of how effective it might be in screening the facility from nearby viewpoints, the Board rejects that argument. Such an interpretation does not comply with the requirement of the first sentence of DCC 18.128.340(B)(5) that the facility be sited in a manner to minimize its impact on scenic views. A proposal to site a wireless facility in a flat, open area devoid of screening vegetation in a scenic view shed, as indisputably is the case here with Applicant’s Preferred Alternative A, does not satisfy this criterion. Finally, Applicant again attempts to switch the location of its proposed tower to what it refers to as the Alternative B site, further to the north on the Ellingboe property and to argue that that site meets the code. As the Board has previously found, this site is not property before the County for a decision. VII. DECISION: Based on the findings of fact and conclusions of law set out above, the Board concludes that the applicant has not demonstrated that all applicable approval criteria have been met. The Board upholds the Hearings Officer’s denial of the conditional use permit application. DATED this ____ day of August, 2013. MAILED this ____ day of August, 2013. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ______________________________________ ALAN UNGER, CHAIR ______________________________________ TAMMY BANEY, VICE CHAIR ATTEST: ______________________________________ Recording Secretary ______________________________________ ANTHONY DEBONE, COMMISSIONER THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL.