HomeMy WebLinkAboutWireless Telecom Facility HearingAT&T Mobility Sisters
MA-09-5/AD-09-2
Page 1 of 35
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: MA-09-5/AD-09-2
APPLICANT: New Cingular Wireless LP, LLC
dba AT&T Mobility
650 Columbia
Bend, Oregon 97702
APPLICANT’S AGENT: Don Larson
Cascadia PM
5501 N.E. 109th Court, Suite A-2
Vancouver, Washington 98662
PROPERTY OWNER: Chester and Virginia Bradley
68913 Bradley Road
Sisters, Oregon 97759
APPLICANT’S
ATTORNEY: Liz Fancher
Law Office of Liz Fancher
644 N.W. Broadway
Bend, Oregon 97701
OPPONENTS’
ATTORNEY Bruce W. White
P.O. Box 1298
Bend, Oregon 97701
Attorney for Opponents Frank and Kathy Deggendorfer
REQUEST: The applicant requests approval of a modification to a previously
submitted administrative determination application to establish a
wireless telecommunications facility consisting of an 80-foot-tall
monopine, equipment cabinets, perimeter fence and access
driveway on a parcel zoned EFU-SC located east of Sisters.
STAFF REVIEWER: Will Groves, Senior Planner
HEARING DATES: May 5, June 9, September 1 and October 6, 2009
RECORD CLOSED: November 3, 2009
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 2 of 35
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.16, Exclusive Farm Use (EFU) Zones
* Section 18.16.025, Uses Permitted Subject to the Special Provisions Under
DCC Section 18.16.038 and a Review Under DCC Chapter 18.124 for Items
C Through M
* Section 18.16.038, Special Conditions for Certain Uses Listed Under DCC
18.16.025
* Section 18.16.060, Dimensional Standards
* Section 18.16.070, Yards
3. Chapter 18.80, Airport Safety (AS) Combining Zone
* Section 18.80.028, Height Limitations
* Section 18.80.044, Land Use Compatibility
4. Chapter 18.56, Surface Mining Impact Area (SMIA) Combining Zone
* Section 18.56.020, Location
5. Chapter 18.84, Landscape management (LM) Combining Zone
* Section 18.84.020, Application of Provisions
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.04, Introduction and Definitions
* Section 22.04.020, Definitions
2. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.055, Modification of Application
3 Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.108, Historic and Cultural
* Section 23.108.040, Goal 5 Inventory – Historic Resources
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 3 of 35
D. Oregon Administrative Rules (OAR)
1. OAR Chapter 660, Land Conservation and Development Department
* Div. 23, Procedures and Requirements for Complying With Goal 5
* OAR 660-023-0200, Historic Resources
E. 16 USC 470, National Historic Preservation Act of 1966, Public Law 102.575
1. 16 USC 470g, Section 106
F. 36 CFR Part 800 – Protection of Historic Properties
II. FINDINGS OF FACT:
A. Location: The subject property does not have an assigned address. It is identified as Tax
Lots 200 and 300 on Deschutes County Assessor’s Map 15-10-02.
B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use–
Sisters/Cloverdale Subzone (EFU-SC), and is designated Agriculture on the
comprehensive plan map. The property also is subject to several combining zones. A
portion of the property not including the proposed wireless telecommunications facility
site is zoned Flood Plain (FP) (FIRM panel 41017C0245D). Other portions, also not
including the proposed facility site, are zoned Surface Mining Impact Area (SMIA) and
Landscape Management (LM). Portions of the subject property including the proposed
facility site are zoned Airport Safety (AS) because of the proximity to the Sisters Airport.
C. Site Description: The subject property is approximately 188 acres in size and irregular in
shape. It is bisected by Whychus Creek located west of the proposed wireless
telecommunications facility site and running roughly north-south through the property.
Access is from Bradley Road, a private road connecting to U.S. Highway 126 to the
south. The northeast portion of the property contains a small butte (hereafter “Bradley
Butte”), the top of which is the proposed wireless telecommunications facility site. Aerial
photographs and a United States Geological Survey (USGS) topographical map in the
record indicate the eastern side of Bradley Butte has been used for cinder mining. There
is a gravel/cinder driveway leading from Bradley Road to the mining site. Bradley Butte
has relatively steep sides with a moderate cover of mature ponderosa pine trees and
native brush. The top of the butte consists of a relatively level area with a moderate to
dense cover of mature ponderosa pine trees, the tallest of which are approximately 65 feet
tall. The rest of the property consists of forested areas and irrigated pasture.
D. Surrounding Zoning and Land Uses: The subject property is surrounded on the north,
west and east by land zoned EFU-SC and engaged in farm use. Land further to the west is
zoned Rural Residential (RR-10) and developed with rural residential uses. Land to the
south and southeast is zoned Multiple Use Agricultural (MUA-10) and also developed
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 4 of 35
with rural residences. One of the EFU-zoned parcels abutting the subject property on the
west – Tax Lot 100 on Assessor’s Map 15-10-02 – is the William T.E. Wilson
Homestead (hereafter “Wilson Homestead”) owned by opponents Frank and Kathy
Deggendorfer. The Wilson Homestead is listed on the National Register of Historic
Places and the Oregon State Registry of Historic Places, but is not listed on the county’s
Goal 5 comprehensive plan inventory of historic resources.1
E. Procedural History: The applicant submitted its original administrative determination
application (AD-09-2) on February 26, 2009, and the application was accepted as
complete on March 26, 2009. Therefore, the 150-day period for issuance of a final local
land use decision under ORS 215.427 would have expired on August 24, 2009. A public
hearing on the application was held on May 5, 2009. At the hearing, the Hearings Officer
received testimony and evidence, and the applicant requested a continuance of the
hearing in order to submit information on the legal lot status of the subject property. A
continued public hearing was held on June 9, 2009. At the continued hearing the
Hearings Officer again received testimony and evidence, and the applicant’s
representative stated the applicant’s intent to revise its proposal to include an 80-foot-tall
monopine instead of a 100-foot-tall monopole. The Hearings Officer advised the
applicant that such a revision would constitute a modification of the original application
requiring the filing of a modification application.
On July 14, 2009 the applicant submitted the subject modification application (MA-09-
5), and this application was accepted as complete on August 14, 2009. Under Section
22.20.055 of the county’s land use procedures ordinance, the submission of the
modification application restarted the 150-day time clock as of August 14, 2009.
Therefore, the 150-day period would have expired on January 11, 2010. A public hearing
on the modification was scheduled for September 1, 2009. By a letter dated August 21,
2009 the applicant requested that the hearing be continued for one month. Because the
request for continuance was received after notice of the September 1 hearing was
published, under Section 22.24.140 of the procedures ordinance the Hearings Officer
opened the public hearing as scheduled in order to receive public testimony. No
testimony was presented, and the Hearings Officer continued the hearing to October 6,
2009. On September 17, 2009 the Hearings Officer conducted a site visit to the subject
property and vicinity including the Wilson Homestead.
At the October 6, 2009 continued public hearing on the modification, the Hearings
Officer disclosed her observations and impressions from the site visit, received testimony
and evidence, left the written evidentiary record open through October 27, 2009, and
allowed the applicant through November 3, 2009 to submit final argument pursuant to
ORS 197.763. Because the applicant requested a continuance of the public hearing from
September 1 to October 6 (35 days), and agreed to extend the written record from
October 6 through November 3 (27 days), under Section 22.24.140 of the procedures
1 The record indicates the Wilson Homestead includes 160 of the 317 acres owned by the Deggendorfers.
The homestead consists of woodland, irrigated pastures, and riparian areas along Wychus Creek, as well
as a house that is over 100 years old, and barns and outbuildings.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 5 of 35
ordinance the 150-day period was tolled for a period of 62 days and now expires on
March 15, 2010. As of the date of this decision there remain 101 days in the extended
150-day period.
F. Proposal: The applicant requests approval to establish a wireless telecommunications
facility located within a 2,500-square-foot leased area on the top of Bradley Butte. The
applicant’s modified proposal includes an 80-foot-tall monopine. The record indicates a
“monopine” is a wireless telecommunications tower and antennas designed and
constructed to look like a pine tree with a trunk, branches and needles. In addition, the
proposal includes several 8-foot-tall equipment cabinets, a 6-foot-tall perimeter security
fence, and an access driveway consisting of an extension of the existing driveway from
Bradley Road to the cinder mining site. Some trees on the top and east side of Bradley
Butte would be removed for construction of the facility and access driveway. The facility
would be unmanned and serviced about once a month by the applicant’s staff. The
monopine would not be lighted. Electric lines serving the site would be installed
underground. Water and sanitary sewage disposal systems are not proposed for the site.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicant’s
original and modified proposals to a number of public and private agencies and received
responses from: the Deschutes County Property Address Coordinator, Senior
Transportation Planner, and Building Division; the City of Sisters Community
Development Department;2 and the State Historic Preservation Office (SHPO). These
comments are set forth verbatim at pages 2-3 of the staff reports and are included in the
record. No responses were received from the Deschutes County Road Department or the
Sisters Fire Department.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant’s original and modified proposals and the public hearings to the owners
of record of all property located within 3,000 feet of the subject property.3 In addition,
notice of the public hearing was published in the Bend “Bulletin” newspaper, and the
subject property was posted with a notice of proposed land use action sign.4 As of the
date the record in this matter closed, the county had received 52 letters from the public in
response to these notices. In addition, 19 members of the public testified at three of the
four public hearings. Public comments are addressed in the findings below.
2 In an August 26, 2009 electronic mail message, Sisters Community Development Department Director
Eric Porter stated the City of Sisters would not be providing a formal response to the applicant’s modified
proposal.
3 The notice area radius was increased from the standard 750 feet to 3,000 feet because of the proposed
100-foot height of the monopole. The record indicates this notice was mailed to over 100 property
owners.
4 At the June 9, 2009 public hearing neighboring property owners questioned whether the subject property
had been posted with the required notice. The applicant’s representative testified he was not aware the
property may not have been posted and stated the property would be posted for the applicant’s
modification application. The record includes an affidavit of posting for the modified proposal.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 6 of 35
I. Lot of Record: In support of its original application (AD-09-2), on May 6, 2009 the
applicant’s attorney submitted a lot-of-record analysis showing the subject property
constitutes a single legal lot of record.
III. CONCLUSIONS OF LAW:
SUMMARY
The applicant’s modified wireless telecommunications facility, substituting an 80-foot-tall
monopine for a 100-foot-tall monopole, would be minimally visible from surrounding land and
would blend well with the natural and developed environment. Nevertheless, the Hearings
Officer finds the applicant’s proposed facility does not satisfy all requirements for siting utility
facilities in the EFU Zone. Specifically, I find the applicant failed to demonstrate its proposed
facility must be sited on EFU-zoned land in order to provide service meeting the applicant’s
business objectives. The applicant was required, but failed, to show that alternate facility sites on
non-resource land are not available or technically feasible. I also find that the applicant’s
proposal is not directly subject to the federal “Section 106 process” for reviewing impacts on
historic resources, and that state and local historic preservation provisions also do not apply
because the proposal is not for demolition, removal or alteration of an historic resource.
PRELIMINARY ISSUES
FINDINGS: Opponents raised several issues relating to the compatibility of the proposed
wireless telecommunications facility with surrounding property, land uses and natural resources.
As discussed in the findings below, because the proposed facility is a “utility facility” to be
located on EFU-zoned land, it is not subject to the conditional use and site plan and approval
criteria applicable to such facilities in some other zoning districts – criteria that specifically
address compatibility. Consequently, these issues are not relevant to this proposal. Nevertheless,
the Hearings Officer addresses them in the findings below.
1. Impacts on Views. Opponents argue the proposed wireless telecommunications facility will
have significant adverse impacts on views from surrounding land, including the Wilson
Homestead. Opponents described the applicant’s original proposal as a “giant tower” that would
“loom” over the Wilson Homestead and that would “destroy” the scenic beauty of the area. In
response to opponents’ concerns about visual impacts, the applicant modified its proposal to
substitute an 80-foot-tall monopine for the original 100-foot-tall monopole. The proposed facility
site at the top of Bradley Butte has a moderate to dense cover of ponderosa pine trees, the tallest
of which are approximately 65 feet tall – or approximately 15 feet lower than the top of the
proposed monopine. The proposed 8-foot-tall equipment cabinets and 6-foot-tall perimeter fence
would be well below the tops of the trees. Notwithstanding the modification, opponents
continued to describe the view of the proposed facility in negative terms, such as a “blight,”
“eyesore” and “blot” on the landscape. One opponent asserted the monopine would “kill” scenic
views for “hundreds of properties.”
The applicant submitted design drawings of the proposed monopine as well as photo simulations
of the monopine viewed from the Wilson Homestead and other locations surrounding Bradley
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 7 of 35
Butte. Based on the Hearings Officer’s site visit observations and the applicant’s design
drawings, I find these photo simulations are accurate representations of the scale and appearance
of the monopine as viewed from these locations.5 The photo simulations show that from all
perspectives the monopine would appear as the tallest tree in a dense stand of pine trees on top of
Bradley Butte. The simulations show that from the Wilson Homestead only the uppermost part
of the monopine would be visible, it would appear very small in relation to the height and mass
of Bradley Butte, and it would blend well with its surroundings. Based on my site visit
observations, I find the proposed monopine would appear much more natural as viewed from the
Wilson Homestead than do the existing utility facilities on and adjacent to the homestead. These
facilities – visible in photos included in the Deggendorfers’ PowerPoint presentation – consist of
utility poles, above-ground utility lines, a pole-mounted electrical transformer, and a pole-
mounted yard light on the Wilson Homestead or adjacent Failing property. For these reasons, I
find opponents’ hyperbole simply does not fairly characterize the appearance of the proposed
monopine within its natural and developed surroundings.
2. Attractive Nuisance. Opponent Kathy Deggendorfer argues the proposed wireless
telecommunications facility will become an attractive nuisance because it will be unmanned. The
applicant proposes to enclose the facility with a perimeter security fence to exclude unauthorized
persons. Therefore, I find no merit to this argument.
3. Alarm System. Opponent Kathy Deggendorfer also argues any alarm system installed on the
proposed facility site would be a nuisance because it would ring or sound a horn that would
disturb neighboring property owners. At the public hearing, the applicant’s representative Don
Larson testified the applicant does not intend to install an audible alarm at the facility site.
Therefore, the Hearings Officer finds no merit to this argument.
4. Impact of Lighting. Opponents expressed concern about the impact of lighting the proposed
facility. At the public hearing, Don Larson testified the applicant does not intend to light the
monopine.
5. Impact on Raptors and Nests. Opponents argue the proposed wireless telecommunications
facility, and in particular the proposed access driveway, will harm raptors that use the area and in
particular a Great Horned Owl nest site near the road. The proposed 80-foot-tall monopine will
resemble a pine tree and will not be lighted. Moreover, the comprehensive plan Goal 5 inventory
of sensitive bird sites requiring protection does not include any nest sites in the vicinity of the
subject property. Therefore, the Hearings Officer finds this argument is without merit.
6. Interference with Electronics. Opponents argue the proposed wireless telecommunications
facility will cause interference with radio and television signals and other electronics in the
surrounding area. The county is preempted by federal law – the Telecommunications Act of
1996 – from denying an application for a wireless telecommunications facility, or imposing
regulatory conditions of approval, based on radio frequency radiation from such a facility. Curl
5 The Hearings Officer finds the applicant’s photo simulations are much more accurate representations
than the photo simulations prepared and distributed by the Deggendorfers and included in the record,
which depict the original proposed 100-foot-tall monopole nearly as tall as Bradley Butte.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 8 of 35
v. City of Bend, 56 Or LUBA 746 (2008). Therefore, I find no merit to this argument.
7. Impact on Nearby Farm Practices. Opponents argue the proposed wireless
telecommunications facility will interfere with nearby hay production and livestock grazing. The
Hearings Officer disagrees. The proposed facility would consist of a monopine, 8-foot-tall
equipment cabinets, 6-foot-tall perimeter fence and access driveway located on the moderately
wooded summit and east side of Bradley Butte. The record indicates this part of the subject
property is not, and never has been, engaged in farm use. And the proposed facility site is located
at least several hundred feet from the nearest farm activities.
8. Impact of Construction on Whychus Creek. Opponents argue construction of the proposed
wireless telecommunications facility will negatively impact Wychus Creek. The record indicates
the creek is more than 700 feet from the proposed facility site, and is separated from the creek by
moderately wooded slopes as well as the Wilson Homestead and Failing property. For these
reasons, I find construction of the proposed facility will have no impact on Wychus Creek.
9. Property Devaluation. Opponents argue that based on the concerns addressed above, their
properties will be devalued if the proposed wireless telecommunications facility is approved. In
light of the Hearings Officer’s findings concerning opponents’ compatibility concerns, I find no
merit to this argument.
MODIFICATION
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
a. Section 22.20.055, Modification of Application
A. An applicant may modify an application at any time during the
approval process up until the close of the record, subject to the
provisions of DCC 22.20.052 and DCC 22.20.055.
B. The Planning Director or Hearings Body shall not consider any
evidence submitted by or on behalf of an applicant that would
constitute a modification of an application (as that term is
defined in DCC 22.04) unless the applicant submits an
application for a modification, pays all required modification
fees and agrees in writing to restart the 150-day time clock as
of the date the modification is submitted. The 150-day time
clock for an application, as modified, may be restarted as many
times as there are modifications.
C. The Planning Director or Hearings Body may require that the
application be re-noticed and additional hearings held.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 9 of 35
D. Up until the day a hearing is opened for receipt of oral
testimony, the Planning Director shall have sole authority to
determine whether an applicant’s submittal constitutes a
modification. After such time, the Hearings Body shall make
such determinations. The Planning Director or Hearings
Body’s determination on whether a submittal constitutes a
modification shall be appealable only to LUBA and shall be
appealable only after a final decision is entered by the County
on the application.
FINDINGS: Section 22.04.020 defines “modification of application” as:
* * * the applicant’s submittal of new information after an application has been
deemed complete and prior to the close of the record on a pending application that
would modify a development proposal by changing one or more of the following
previously described components: proposed uses, operating characteristics,
intensity, scale, site lay out (including but not limited to changes in setbacks, access
points, building design, size or orientation, parking, traffic or pedestrian circulation
plans), or landscaping in a manner that requires the application of new criteria to
the proposal or that would require the findings of fact to be changed. It does not
mean an applicant’s submission of new evidence that merely clarifies or supports
the pending application. (Emphasis added.)
At the June 9, 2009 public hearing the applicant’s representative Don Larson announced the
applicant’s intent to revise its proposal to replace the 100-foot-tall monopole with an 80-foot-tall
monopine. The Hearings Officer determined at the hearing that such a revision would constitute
a modification requiring the submission of a new application because it would change the design
of the proposed tower and would require a change in the findings of fact. On July 14, 2009 the
applicant submitted the subject modification application, accompanied by the required county
fees and a statement agreeing to restart the 150-day time clock. Notice of the modification was
mailed to property owners entitled to notice as well as to public and private agencies, and two
public hearings were held on the modification application. For these reasons, I find the
applicant’s modification application satisfies all applicable modification requirements.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
EFU ZONE STANDARDS
1. Chapter 18.16, Exclusive Farm Use Zones
a. Section 18.16.025, Uses Permitted Subject to the Special Provisions
Under DCC Section 18.16.038 and a Review Under DCC Chapter
18.124 for Items C through M.
* * *
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 10 of 35
I. Utility facilities necessary for public service, including wetland
waste treatment systems, but not including commercial
facilities for the purpose of generating electrical power for
public use by sale and transmission towers over 200 feet in
height. (Emphasis added.)
FINDINGS: The subject property is zoned EFU-SC and therefore is subject to the provisions
of Chapter 18.16. At the outset, Section 18.16.025 states the permitted uses listed in paragraphs
C through M, including “utility facilities necessary for public service,” are subject to site plan
review under Chapter 18.124. However, relying on the reasoning in Brentmar v. Jackson
County, 321 Or 481, 496, 900 P2d 1030 (1995), the county’s hearings officers have held the
county cannot require either site plan review or conditional use approval for such facilities.
That is because Sections 18.16.025 and 18.16.038 were adopted to implement the provisions of
ORS 215.283 and 215.275, respectively, which establish the exclusive approval standards for
transmission towers in the EFU Zones, and allow towers less than 200 feet tall as long as the
applicant demonstrates such facilities are “necessary for public service. The Hearings Officer
adheres to this holding here.
UTILITY FACILITY
This Hearings Officer previously has found that wireless telecommunication facilities, including
access roads, constitute “utility facilities” under Section 18.04.030, which provides as follows:
“Utility facility” means any major structures, excluding hydroelectric facilities,
owned or operated by a public, private or cooperative electric, fuel,
communications, sewage or water company for the generation, transmission,
distribution or processing of its products or for the disposal of cooling water, waste
or by-products, and including power transmission lines, major trunk pipelines,
power substations, telecommunications facilities, water towers, sewage lagoons,
sanitary landfills and similar facilities, but excluding local sewer, water, gas,
telephone and power distribution lines, and similar minor facilities allowed in any
zone. This definition shall not include wireless telecommunications facilities where
such facilities are listed as a separate use in a zone. (Emphasis added.)
Wireless telecommunication facilities are not listed as a separate use in the EFU Zone.
Therefore, I adhere to my previous findings.
NECESSARY FOR PUBLIC SERVICE
The remaining question under Section 18.16.025 is whether the applicant’s proposal satisfies the
requirements of Paragraph (I) of Section 18.16.025, which establishes two requirements:
• if the “utility facility” includes towers, they must not be over 200 feet in height; and
• the utility facility must be “necessary for public service.”
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 11 of 35
The applicant’s proposed 80-foot-tall monopine is less than 200 feet tall, therefore satisfying
the first requirement. Compliance with the second requirement is addressed in the findings
immediately below under Section 18.16.038.
b. Section 18.16.038, Special Conditions for Certain Uses Listed Under
DCC 18.16.025
A. A utility facility necessary for public use allowed under DCC
18.16.025(C) shall be one that is necessary to be situated in an
agricultural zone in order for service to be provided. To
demonstrate that a utility facility is necessary, an applicant
must show that reasonable alternatives have been considered
and that the facility must be sited in an exclusive farm use zone
due to one or more of the following factors:
1. Technical and engineering feasibility;
2. The proposed facility is locationally dependent. A utility
facility is locationally dependent if it must cross land in
one or more areas zoned for exclusive farm use in order
to achieve a reasonably direct route or to meet unique
geographical needs that cannot be satisfied on other
lands.
3. Lack of available urban and non-resource lands;
4. Availability of existing rights of way
5. Public health and safety; and
6. Other requirements of state and federal agencies;
7. Costs associated with any of the factors listed in 1-6
above may be considered, but cost alone may not be the
only consideration in determining that a utility facility
is necessary for public service. Land costs shall not be
included when considering alternative locations for
substantially similar utility facilities that are not
substantially similar.
* * *.
FINDINGS: This section is identical to, and implements, the provisions of ORS 215.275. It
establishes two requirements the applicant must meet to demonstrate a proposed utility facility in
the EFU Zone is “necessary for public service:”
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 12 of 35
• the applicant considered reasonable alternatives to siting the facility on the EFU-zoned
subject property; and
• the proposed facility must be sited on EFU-zoned land to satisfy “one or more” of the
seven locational factors.
1. Interpretation of Statutory Requirements. The meaning of these requirements has been the
subject of several LUBA and court decisions. The most comprehensive discussion is found in
Sprint PCS v. Washington County, 42 Or LUBA 512 (2002), and the Court of Appeal’s decision
affirming LUBA’s decision (186 Or App 470, 63 P.3d 1261 (2003)). LUBA remanded the
county’s decision denying an application for a wireless telecommunications facility on EFU
land. On appeal, after a lengthy discussion of the text, context and legislative history of the
language in ORS 215.275, the Court of Appeals held the term “reasonable alternative” refers to a
site not on EFU land, and that when deciding whether it is necessary to site a public utility
facility on EFU-zoned land local governments must analyze any alternative sites based on ORS
215.275.
In Sprint the Court of Appeals also considered whether and to what extent local governments
may defer to the applicant’s stated service and business objectives in determining whether there
are reasonable alternatives to siting the proposed facility on EFU-zoned land. The court held that
local governments may consider the utility applicant’s service and business objectives in
evaluating the reasonableness of alternative sites, and that there is nothing in ORS 215.275 that
requires a utility applicant to consider a different methodology for providing the utility service in
order to place its facility on non-EFU land. However, the court also held ORS 215.275 implies
an obligation on the part of a utility to consider different facility designs in order to adapt the
applicant’s chosen methodology to non-EFU alternative sites. The court agreed with LUBA that
at some point the difference between the applicant’s proposed design and an alternative design
that would permit siting on non-EFU land could become so great that a non-EFU site could not
be considered a “reasonable alternative.” Finally, the court held that in determining what
constitutes a “reasonable alternative” site, local governments should be guided by the
overarching statutory goal -- i.e., the provision of public utility service – and if the utility’s
objectives can be met by siting a facility with a different design on non-EFU land, the local
government cannot find the proposed facility must be sited on EFU-zoned land to provide the
public utility service.
2. Applicant’s Objectives. The applicant’s modification burden of proof states it is one of the
largest domestic providers of wireless personal communications services (PCS) and data transfer
services. An attachment to an electronic mail message dated October 20, 2009 from Don Larson
states in relevant part:
“In accordance with the federal license of AT&T acquired for the geographic
area east of the Cascade Mountains throughout Eastern Oregon, Eastern
Washington, and parts of Northeastern California, AT&T must establish a
telecommunications network that is capable of providing wireless service to 80%
of the population in that area.”
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 13 of 35
The applicant’s modification burden of proof states AT&T currently is upgrading and expanding
its existing wireless telecommunications network in Central Oregon, including the portion of its
network serving the Sisters area. The applicant is licensed by the FCC to operate in the 1900
megahertz band, and its system and technology require that wireless sites be spaced closer
together than those in 850 megahertz systems as voice and data volumes on the system increase.
In his October 20, 2009 submission, Mr. Larson stated:
“To analyze our network design, AT&T network engineers utilize a proprietary
Radio Frequency prediction tool to predict the signal strength and analyze our
network design. AT&T needs a design that features higher signal strengths that
promote much greater wireless data speeds. To accomplish high data rates,
AT&T must provide strong signal strengths to be where most of the customers use
these data services.
In seeking to develop new wireless sites that expand and/or enhance the existing
network, AT&T engineers factor in topographic, demographic, and existing
infrastructure to identify prospective locations for new wireless installations. In
order to minimize unnecessary impacts on communities and transportation
corridors, AT&T strives to develop as few new wireless sites as possible.
Using these engineering tools, AT&T’s engineers identified that its network has a
significant gap in coverage west and north of the proposed site, just northeast of
Sisters, Oregon. (In the attached coverage maps, ‘acceptable coverage’ is shown
by the green and blue colors. ‘Unacceptable coverage’ is shown by the white
color.) AT&T’s engineers have designed a cell site, BD66, which is intended to
provide high quality coverage in the following geographic areas:
• North and West of the proposed BD66 site;
• Highway 126, from Willow Lane on the West to Quail Tree Drive on the
East; and
• Highway 20, from Harrington Loop on the South, to Cinder Butte Road on
the North.”
At the October 6, 2009 public hearing, Mr. Larson testified the applicant’s desired signal
strength is at least 70 dBm in vehicles and at least 82 dBm in buildings. Mr. Larson also testified
that to provide the desired signal coverage and strength AT&T needs to find a site on higher
elevation land where there would be line of sight between the new facility and AT&T’s existing
facilities in the Sisters area, where both the tower height and the number of towers could be
minimized, and where there would be a possibility of screening the tower with existing trees. Mr.
Larson also testified the applicant’s business objectives included finding a willing property
owner with whom to enter into a site lease.
The record includes as Exhibit 7 to the applicant’s modification burden of proof a number of
“radio frequency propagation maps” depicting the applicant’s existing Sisters area wireless
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 14 of 35
network. The diagram shows the location of four existing AT&T facilities – BD63 located in
Sisters, BD68 located northwest of Sisters along Highway 20, BD61 located west of Sisters
along Highway 242, and BD69 located southeast of Sisters along Highway 20 just east of the
segment of Camp Polk Road which runs along the eastern edge of Sisters. These maps show the
applicant’s existing signal coverage and strength, as well as signal strength and coverage areas
with and without the proposed wireless site (BD66). The diagram labeled “Existing AT&T
Network Without BD66 Included” shows large areas east of Sisters and north of Highway 126
that have no coverage. It also shows gaps in both in-building and in-vehicle coverage north of
Highway 126 and east of the segment of Camp Polk Road on the eastern edge of Sisters. The
diagram labeled “Existing AT&T Network With BD66 Included” shows most of these coverage
gaps would be filled with installation of the proposed wireless site on Bradley Butte.
At the outset, opponents argue the applicant’s proposed facility on Bradley Butte is not
“necessary” at all because there are other wireless providers in the Sisters area. In addition,
opponents Hal and Francine Kibby, current AT&T customers, stated in an electronic mail
message dated April 21, 2009 that they conducted two “drive tests” along Highway 126 from
Sisters to Camp Polk Road and observed that the signal strength on their cell phone was
adequate, ranging from 2 bars to 5 bars.6 The Hearings Officer finds the fact that there already is
cellular service in the area east of Sisters – whether provided by the applicant or another provider
-- is not a reason to deny the application where, as here, the applicant’s identified objective is to
improve existing service. T-Mobile USA v. Yamhill County, 55 Or LUBA 83 (2007).
3. Reasonable Alternatives Analysis. In Getz v. Deschutes County, ___ Or LUBA ___ (LUBA
No. 2008- 192, April 7, 2009), LUBA stated with regard to the required “alternative site
analysis:”
“Our cases concerning ORS 215.275(2) have held that the statute ‘requires that an
applicant make a reasonable effort to identify feasible non-EFU-zoned alternative
utility facility sites, and where another party ‘identifies an alternative site with
reasonable specificity to suggest that it is a feasible alternative,’ that site must also
be considered.’ Van Nalts v. Benton County, 42 Or LUBA 497, 499 (2002) (quoting
from Jordan v. Douglas County, 40 Or LUBA 192 (2001)).”
In addition, LUBA held the feasibility of alternative sites must be evaluated considering the
seven factors listed in Section 18.16.038(A), set forth in the findings above.
The applicant’s modification burden of proof describes the applicant’s alternative site search
process in relevant part as follows:
“ATT reviewed a number of locations for the siting of this antenna support
structure, and determined that the raised elevation of the [Bradley Butte] site
provided the most effective service coverage of the area while allowing the
structure height to be kept to a maximum 100’ overall height. The rural
undeveloped area east of Sisters contains three zoning districts, Rural Residential
6 The Hearings Officer understands that five bars represent the highest signal strength and one bar
represents the lowest signal strength.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 15 of 35
- 10 Acre Minimum, Multiple Use Agriculture (MUA10) and Exclusive Farm Use
Sisters/Cloverdale Subzone (EFUSC) Districts. AT&T centered the Search Ring
on McKinney Butte because it has a base elevation of 3,382 feet, which is taller
than any other butte east of Sisters for several miles, and because it was in the
RR-10 District which is classified by Deschutes County as a non-resource zone.”
The term “search ring” used by AT&T is not defined. The Hearings Officer finds it means the
geographic area in which the applicant conducted a search for wireless facility sites that would
meet the applicant’s service objectives. In Getz, opponents argued the applicant in that case – US
Cellular -- had not sufficiently documented the parameters of its search ring. In finding US
Cellular had provided adequate information, LUBA held:
“Although petitioners appear to be correct that the record does not include a map
that shows the precise boundaries of the search ring, the record does include a map
showing the areas that the proposed facility is designed to serve. Record 654. We
conclude that map is sufficient to identify the general area where the new cell tower
needs to be located.”
The applicant’s modification burden of proof includes a document entitled “Original AT&T
Search Ring Issued for McKinney Butte.” The burden of proof states the “search ring” is
indicated by a small red circle and flag in the center of the diagram, and goes on to state the
facility could be sited “anywhere inside the red Search Ring perimeter.” This diagram also shows
a much larger area surrounding the red circle that includes AT&T’s desired service area as
described in the findings above. The Hearings Officer finds that like the map at issue in Getz, the
McKinney Butte search ring diagram also is adequate for purposes of the alternative sites
analysis because, along with the applicant’s narrative materials, it depicts the areas the proposed
wireless facility is designed to serve.
As discussed in detail in the findings below, the applicant determined there were no available
sites on McKinney Butte for the proposed facility. At the October 6, 2009 public hearing Don
Larson testified the applicant then developed two additional search rings outside the initial
search ring in an effort to identify alternative sites that had the potential to provide the desired
signal coverage and strength in the targeted geographic area. Search Ring #2 – the “Aspen
Lakes” search ring – was centered on a site on the south side of Highway 126 near the Aspen
Lakes Golf Course. Search Ring #3 – the “Sisters-East” search ring – was centered on Hinkle
Butte located north of Bradley Butte. The applicant identified potential sites within each of these
secondary search rings. In addition, opponents identified other potential sites. All of the
identified alternative sites are discussed in the findings below.
MCKINNEY BUTTE SEARCH RING
a. McKinney Butte Site. The applicant’s modification burden of proof states in relevant part:
“All of McKinney Butte is zoned Rural Residential – 10Acre Minimum (RR-10)
and has the only non-EFU zoned properties with upper elevations in the search
ring. All of McKinney Butte has been developed into the Wild Horse Ridge
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 16 of 35
Subdivision that established 10-acre homesites. AT&T’s investigation into
possible site locations within the Wild Horse Ridge subdivision was not successful
because there were no Wild Horse Ridge property owners interested in having a
wireless facility on their parcel.
AT&T researched an existing wireless facility on McKinney Butte that is located
in a roof-top dormer above an actual residence at 68893 Bay Place on the crest
of McKinney Butte in the Wild Horse Ridge Subdivision. Conversations with the
Deschutes County Planning Department indicate there have been no land use
permits granted for this wireless site located on Tax Lot 15-10-03D-1400. In
1996, under Site Plan Review SP-96-53, Cellular One was denied seeking to
develop a 35-foot tall pole and equipment shed. In 1997 Cellular One requested a
Declaratory Ruling, DR-972, seeking approval of a minor wireless facility in an R
zone. This request for a Declaratory Ruling was withdrawn by the applicant and
voided. The existing wireless facility at 68893 Bay Place has been placed there
without permission from Deschutes County.
There were no other non-EFU properties within the search ring where property
owners of upper elevation property were willing to place a new wireless facility
on their land. The proposed wireless site is on Bradley Butte in the EFUSC
subzone. Bradley Butte is about 1/3 miles east of McKinney Butte, it is the next
tallest butte at the 3315-foot elevation, and the proposed location of the new
AT&T Mobility telecommunications facility, would provide this effective
combination of unblocked RF coverage and screening.
The same coverage is not possible on other non-EFU parcels within the search
ring because, except for McKinney Butte, all upper elevation land forms with a
comparable height are zoned EFUSC. The height of the proposed 80-foot tall
structure in the proposed location provides for significant screening by the
surrounding mature juniper trees. The pole and the ground equipment will be
elevated and therefore out of view of most of the surrounding properties. The site
was chosen based on the elevated topography of the area and the routing of the
highway.”
At the October 6, 2009 public hearing, Don Larson testified the applicant also rejected the
McKinney Butte site in part because the Wild Horse Ridge Subdivision’s covenants, conditions
and restrictions (CC&Rs) prohibit a free-standing cell tower. At the hearing, Darrell Zucker, past
president of the Wild Horse Ridge Subdivision Homeowners Association (HOA), confirmed that
the subdivision’s current CC&Rs require any wireless facility to be inside a building, and testified
it would take a majority of the 34 lot owners within the HOA to approve an amendment to the
CC&Rs to permit a free-standing cell tower.7 A copy of the subdivision’s CC&Rs is included in
the record as an attachment to the applicant’s modification burden of proof. They state in
Paragraphs 12, 17 and 18, respectively, that no wireless facilities are permitted that are visible from
7 It appears the existing unpermitted wireless telecommunications facility in the dwelling at 68893 Bay
Place on McKinney Butte satisfied the subdivision CC&Rs.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 17 of 35
other properties, all wireless facilities must be concealed within a building, and no commercial
enterprise may be conducted on lots. The Hearings Officer finds it was reasonable for the applicant
to conclude these CC&R provisions effectively precluded establishment of the applicant’s
proposed facility on any lots on McKinney Butte subject to the CC&Rs.
Mr. Zucker and other opponents also asserted AT&T did not make a good faith effort to contact
any property owners on McKinney Butte for permission to site its proposed facility. However, the
applicant’s modification burden of proof includes a detailed narrative describing Don Larson’s
contacts with McKinney Butte property owners. And at the October 6, 2009 public hearing Mr.
Larson testified he contacted the owners of three lots within the subdivision that could be
technically suitable for the proposed facility and that none of them was willing to have the facility
on their property. He testified the owner of Lot 20 was not interested in having the proposed
facility on his lot, and that while the owner of Lot 16 initially stated he was interested in placing
the facility on his lot, he later told Mr. Larson he was not interested. Mr. Larson testified he also
contacted the owner of Lot 24 on which the current unpermitted wireless facility is located and the
owner stated he was not interested in a tower on his property and did not intend to renew the lease
for the existing facility.
Opponents identified two additional lots on McKinney Butte they believe would be suitable for the
proposed facility. These lots are located outside the Wild Horse Ridge Subdivision but according
to Mr. Zucker are included within the subdivision’s HOA and therefore are subject to the
restrictive CC&Rs. Mr. Larson testified these two lots would not be technically feasible for the
proposed facility because they are on the west face of McKinney Butte and the area in which the
applicant desires to improve signal coverage and strength is east and south of the butte.
Based on the foregoing findings, the Hearings Officer finds McKinney Butte does not constitute
a reasonable alternative site for the applicant’s proposed facility because there are no sites that
are available in light of the prohibitions in the Wild Horse Ridge Subdivision’s CC&Rs, the lack
of willing property owners, and the lack of technical feasibility on two of the subdivision lots.
ASPEN LAKES SEARCH RING
This search ring and the “Sisters-East” search ring addressed in the findings below were
described in detail in the applicant’s September 29, 2009 submission.
b. Alternative Site 1. This site is located on the south side of Highway 126 on land zoned RR-10
and located just outside the LM Zone for the highway corridor. The applicant’s radio frequency
propagation map labeled “Alternate Location 1 (Non-EFU)” shows a facility with a 100-foot-tall
tower at this site would provide significantly diminished coverage compared to the proposed site
on Bradley Butte.
c. Alternative Site 2. This site also is located on the south side of Highway 126 but within the
LM Zone associated with the highway. The applicant’s radio frequency propagation map labeled
“Alternate Location 2 (Non-EFU)” shows a facility at this site would provide significantly
diminished coverage when compared to the proposed site and Alternative Site 1. In addition,
towers taller than 30 feet are not permitted in the LM Zone.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 18 of 35
d. Alternative Site 3. This site is located along Highway 126 near the Aspen Lakes Golf Course.
The applicant’s radio frequency propagation map labeled “Alternate Location 3 (Non-EFU)”
shows a facility with a 100-foot-tall tower at this site would provide slightly diminished coverage
when compared to the proposed site but coverage superior to that provided by a facility at
Alternative Site 2.
The applicant’s modification burden of proof states that in order for any of the three alternate
sites within the “Aspen Lakes Search Ring” to provide the desired signal coverage and strength,
at least one additional tower would have to be erected within the search ring which is contrary to
the applicant’s business objectives of providing wireless communications services with the
fewest towers. The Deggendorfers argue that under the Court of Appeals’ decision in Sprint,
discussed above, if the applicant can provide the desired signal coverage and strength with two
towers on non-EFU zoned land it must do so. In his October 20, 2009 submission Don Larson
responded as follows:
“The proposed stealth, single cell site on Bradley Butte is the least intrusive
option in order to provide service in the significant gap in coverage.
Some neighbors have suggested that AT&T should build a two-site solution on
different buttes. This suggestion is no more than a ‘not in my back yard’
recommendation that would create a more intrusive, two site design in two other
neighborhoods. The Hearings Officer should not order AT&T to build two sites in
two neighborhoods when the proposed stealth BD66 design will provide the
desired coverage.”
The Hearings Officer finds there are several problems with the applicant’s argument. First, there
is no basis in this record from which to conclude that the so-called “two-site solution” could not
also involve one or more “stealth” towers on non-EFU zoned land. Second, while it would be
quite a stretch to call the top of Bradley Butte agricultural land that should be preserved for farm
use, the alternative sites analysis does not permit the balancing of the site’s agricultural
capability against need for the applicant’s proposed facility. In Sprint, the Court of Appeals
stated:
“It almost certainly is accurate to say that, in adopting ORS 215.275, the
legislature struck a particular balance between the siting of utility facilities in
EFU zones and the statutory policy to preserve farmland for farm uses. Once that
balance is struck, however, the county’s task is to apply the terms of the statute.
We see no support in ORS 215.275 for requiring direct consideration of
agricultural land preservation policies, external to the statute, in applying its terms.
[Footnote omitted.] While respondents are correct that applying the terms of ORS
215.275(2) requires some judgment, in the sense that the county must determine
whether the evidence demonstrates, for example, that alternative non-EFU sites are
infeasible or unavailable for purposes of ORS 215.275(2)(a) and (c), exercise of that
judgment does not require the county to also engage in an exercise of ‘balancing’ the
technical difficulty of alternatives against farmland preservation. The county erred to
the extent it construed ORS 215.275 otherwise.”
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 19 of 35
Third, as noted in the findings above, in Sprint LUBA held an applicant for a utility facility may
be required to modify the design of its facility in order to avoid siting it on EFU land, stating in
relevant part:
“* * * [I]it is clear that a utility provider has a considerable amount of discretion
in choosing the general type of facility or solution to providing a utility service.
The utility provider also has some discretion in defining the essential features of
the chosen facility type, for example, to provide telecommunication services to a
defined coverage corridor or area. The utility provider and local government are
not required to consider under either Dayton Prairie or ORS 215.275(2) any
alternative that requires a different type of facility (e.g., groundwater wells versus
river intake), or that would not meet the essential features of the chosen facility,
as defined by the utility provider. However, as City of Albany [City of Albany v.
Linn County, 40 Or LUBA 38 (2001)] indicates, the applicant and local
government must consider under ORS 215.275(2) an alternative that appears to
satisfy the applicant’s defined objectives, even if the alternative is a facility in a
non-EFU location that requires a different component design than the preferred
EFU location (e.g., water tower versus reservoir on a hill). [Footnote omitted.]
(Emphasis added.)
In other words, the applicant has the burden of demonstrating it must site its facility on EFU-
zoned land rather than on non-resource land in order to provide the desired service. The fact that
a stealth tower on Bradley Butte likely would be more aesthetically pleasing, and would offend
fewer neighbors, than installing two towers in two other neighborhoods does not overcome the
applicant’s obligation to use a different facility design on non-resource land if that design can
satisfy the applicant’s objectives. The applicant’s modification burden of proof states the desired
service could be provided with the “two-site solution,” even though that would not be AT&T’s
preferred method.
For the foregoing reasons, the Hearings Officer finds the applicant failed to demonstrate that one
or more of the alternative sites within the “Aspen Lakes Search Ring” either is unavailable or
cannot provide the applicant’s desired coverage with a different facility design.
SISTERS-EAST SEARCH RING
e. Hinkle Butte Site. The site is located on the top of Hinkle Butte located north of Bradley
Butte. Don Larson’s September 29, 2009 submission describes this site and AT&T’s lease
negotiations with the site’s owner in relevant part as follows:
“The preferred candidate in this ring was the promontory of Hinkle Butte, which
is zoned RR-10. Vehicle access to the top of Hinkle Butte is from Hinkle Butte
Drive that is a private all weather gravel road maintained by the owners of the
parcels served by Hinkle Butte Drive. On the summit of Hinkle Butte, the Oregon
Department of Forestry (ODF) has leased an area from the property owner and
has installed a three story fire lookout building with its communications antennas
mounted on the roof.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 20 of 35
Lease negotiations were begun between the property owner and AT&T
representatives. Lease negotiations are not public information; AT&T terminated
negotiations when the property owner presented onerous lease terms, which were
way outside the norm, and that were set forth as non-negotiable. AT&T made a
business decision not to bear an unreasonable burden to develop a new wireless
facility at this location.”
At the October 6, 2009 public hearing, Mr. Larson testified that the applicant rejected the Hinkle
Butte site because its owner, Dierk Peters, demanded a lease payment that was too high. When
the Hearings Officer pointed out that under the locational factors for utility facilities “necessary
for public service,” land costs cannot be the sole reason for rejecting an otherwise suitable
alternative location, Mr. Larson stated he also believed AT&T could not obtain access to the
Hinkle Butte site. He testified it was his understanding that a company called Yellow Knife had
been unsuccessful in its efforts to obtain a right of access to the top of Hinkle Butte to establish a
private facility for two-way radio communication. In a letter dated October 13, 2009 opponent
Frank Deggendorfer stated it was his understanding that this company had in fact successfully
completed negotiations for a road easement to reach a tower site on the top of Hinkle Butte. In
his October 20, 2009 submission, Mr. Larson responded as follows:
“The landlord originally told Yellow Knife that he did not want any more towers
developed on the Hinkle Butte summit. He lives nearby and he did not want to
look up at the summit of Hinkle Butte and see a new tower, so he was not willing
to sign a lease.
When Yellow Knife informed the property owner that no new tower was proposed
and that Yellow Knife would discretely affix their small antennas to the sides of
the existing Oregon Department of Forestry (ODF) fire lookout tower, an
agreement was reached. Yellow Knife was also able to enter into an agreement
with ODF to co-locate their antennas on the exterior sides of their 3-story fire
lookout.
Yellow Knife then approached the property owners through which Hinkle Butte
Drive passes seeking their approval of an easement to use the private road.
Negotiations to obtain a vehicle easement along Hinkle Butte Drive broke down
when at least one property owner demanded exorbitant non-negotiable conditions
to grant an easement across their property. This effectively killed the Yellow Knife
plans to install their new wireless facility on the summit of Hinkle Butte.”
It can be inferred from Mr. Larson’s testimony that the owners of the private road to the Hinkle
Butte site would not grant access to AT&T for its wireless facility. Nevertheless, there is no
evidence in this record that the applicant requested permission to use the road and was rejected.
Rather, it appears the applicant did not pursue the Hinkle Butte site because of lease costs.
For the foregoing reasons, the Hearings Officer finds the applicant failed to demonstrate that the
Hinkle Butte site was not available for the siting of its proposed wireless facility.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 21 of 35
OPPONENTS’ ALTERNATIVE SITES
f. Power Poles. Several opponents suggested the applicant could install its wireless facility on
one or more of the high-voltage electric transmission towers recently installed by Central
Electric Cooperative (CEC) along Highway 126 between Redmond and Sisters. However,
opponents did not identify any particular CEC poles or locations along the route of this utility
line. The Hearings Officer finds that in the absence of more specific locations the applicant was
not required to evaluate these power poles. T-Mobile USA.
Based on the foregoing findings, the Hearings Officer finds the applicant failed to
demonstrate it must site the proposed wireless facility on the EFU-zoned Bradley Butte site
rather than on one or more non-EFU zoned sites within the search rings that alone or in
combination could provide the desired wireless service. For this reason, I cannot find the
applicant’s proposal is “necessary for public service” and therefore I cannot approve it.
Nevertheless, because I anticipate this decision may be appealed to the board, I include the
following findings concerning application of the seven factors in Section 18.16.038(A) to the
proposed Bradley Butte site.
FACTORS
As discussed above, the applicant must demonstrate that it must site its proposed wireless
communication facility on the EFU-zoned subject property “due to one or more” of seven
factors.
a. Technical and Engineering Feasibility. In previous decisions the Hearings Officer has held
this factor addresses the site’s capacity to meet the applicant’s wireless coverage and signal
strength goals. As discussed in the findings above, the record includes radio frequency
propagation maps for each of the proposed alternative locations. These maps show a wireless
facility sited on the top of Bradley Butte would provide the greatest expansion and improvement
of indoor and in-vehicle cellular telephone coverage. However, as also discussed above, the
applicant acknowledged that the desired signal coverage and strength could be provided through
installation of two towers on nearby non-resource lands.
b. Locationally Dependent. This factor states:
A utility facility is locationally dependent if it must cross land in one or more areas
zoned for exclusive farm use in order to achieve a reasonably direct route or to meet
unique geographical needs that cannot be satisfied on other lands.
The applicant argues its proposed facility on Bradley Butte site is locationally dependent because
AT&T’s wireless service requires line-of-sight between the proposed facility and AT&T’s
existing towers in the Sisters area, and therefore the wireless signal must cross EFU-zoned land.
The Deggendorfers respond that cell towers by definition are not locationally dependent under
this criterion because unlike power lines and other linear facilities, wireless facilities do not
“cross land.” The Hearings Officer disagrees and finds this is too narrow a reading of this factor.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 22 of 35
Certainly many utility services and products – including those that are not visible -- are
transmitted by tangible physical conveyances, such as electricity through conductors, telephone
communications through wires, and natural gas through pipes. However, the definition of “utility
facility,” set forth in the findings above, is not limited to such facilities. It expressly includes
“telecommunications facilities.” This term is not defined in Title 18, but its ordinary definition is
“communication by electronic or electrical means, as through radio, TV, computers, etc.”
Webster’s New World Dictionary and Thesaurus, Second Edition. These facilities include ones that
transmit signals electronically – i.e., through the air. Reading the “locationally dependent” factor
in the context of this definition, I find this factor also applies to wireless telecommunications
facilities and does not require that the means of transmission be a tangible object that crosses EFU-
zoned land.
However, as discussed in the findings above, the Hearings Officer has found the applicant failed to
demonstrate the desired signal coverage and strength cannot be provided through installation of
two towers on non-resource land that also would have line-of-sight to existing AT&T facilities.
c. Lack of available urban and nonresource lands. As discussed in the findings above, the
Hearings Officer has found the applicant has not demonstrated there is no available non-resource
land on which the proposed wireless facility could be sited – specifically land zoned RR-10
and/or MUA-10 on which two towers could be installed that would provide service meeting the
applicant’s objectives.
d. Availability of existing rights of way. The applicant’s modification burden of proof indicates
the proposed Bradley Butte site has adequate physical and legal access via an easement granted
by the property owner from Bradley Road to the proposed site. However, as discussed in the
findings above, the Hearings Officer has found the applicant has not adequately demonstrated
access to the Hinkle Butte site or other alternative sites is not available.
e. Public health and safety. The Hearings Officer finds there is nothing in this record that
indicates there are public health and safety reasons that require siting the proposed facility on the
Bradley Butte site.
f. Other requirements of state and federal agencies. The Hearings Officer finds there is
nothing in this record that indicates there are any state or federal requirements that compel the
siting of the proposed facility on the Bradley Butte site.
g. Costs. This factor provides as follows:
Costs associated with any of the factors listed in 1-6 above may be considered, but
cost alone may not be the only consideration in determining that a utility facility is
necessary for public service. Land costs shall not be included when considering
alternative locations for substantially similar utility facilities that are not
substantially similar.
The applicant’s modification burden of proof states cost was not a factor in the selection of the
proposed Bradley Butte site over the alternative sites. As discussed in the findings above, the
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 23 of 35
record indicates the applicant rejected at least one alternative site based solely on lease costs.
However, the staff report notes, and the Hearings Officer agrees, that the applicant was entitled
to consider costs as one factor in rejecting alternative sites that would have required two towers
to provide signal coverage and strength equivalent to what would be provided by the proposed
Bradley Butte facility.
Based on the foregoing findings, the Hearings Officer finds the applicant has not demonstrated
that it must site its proposed facility on the EFU-zoned Bradley Butte site due to one or more of
the seven factors.
8. The owner of a utility facility approved under this
section shall be responsible for restoring, as nearly as
possible, to its former condition any agricultural land
and associated improvements that are damaged or
otherwise disturbed by the siting, maintenance, repair
or reconstruction of the facility. Nothing in this
subsection shall prevent the owner of the facility from
requiring a bond or other security from a contractor or
otherwise imposing on a contractor the responsibility
for restoration.
FINDINGS: The proposed wireless telecommunications site including the access driveway is
not engaged in farm use, and is located over 500 feet from any farm uses. For this reason, the
Hearings Officer finds it unlikely any restoration of the site will be required. Nevertheless,
because the subject property is zoned EFU-SC and therefore is considered agricultural land, if
the board approves the applicant’s proposal on appeal I recommend such approval be subject to a
condition of approval requiring the applicant to restore the leased area and access driveway, as
nearly as possible, to its former condition if it is damaged or otherwise disturbed during the
siting of the wireless communications facility.
c. Section 18.16.060, Dimensional Standards
* * *
E. Building height. No building or structure shall be erected or
enlarged to exceed 30 feet in height, except as allowed under
DCC 18.120.040.
FINDINGS: The Hearings Officer finds this section does not preclude the siting of structures
over 30 feet tall in the EFU Zone where such structures constitute a “utility facility” permitted in
the EFU Zones under Sections 18.16.025 and 18.16.038 in light of Brentmar and the county’s
previous utility tower decisions.
d. Section 18.16.070, Yards
FINDINGS: This section requires minimum setbacks of 40 feet from a local road, 60 feet from a
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 24 of 35
collector road, 100 feet from an arterial road, and 25 feet from side and rear property lines. The
record indicates Bradley Road is a private local road, and therefore the proposed wireless
telecommunications facility including the monopine, equipment cabinets, and perimeter fence
must be set back at least 40 feet from Bradley Road, as well as at least 25 feet from the front and
rear yards. The applicant’s submitted plot plan shows the monopine, equipment cabinets and
perimeter fence would be located over 350 feet from any property line. According to the
submitted plot plan, the access drive from Bradley Road to the facility site would be located at
least 25 feet from the subject property’s eastern property line at its closest point. The
Deggendorfers questioned the proposed location of the access drive on the basis of their belief
that the location of property line between the subject property and their property is not accurately
marked on the ground. At the public hearing, Mr. Larson responded that the access road location
will be determined based on the surveyed location of the property line. The Hearings Officer
finds that if the board approves the applicant’s proposal on appeal, such approval should be
subject to a condition of approval requiring that the eastern property line of the subject property
be surveyed, and/or that the access road is located 25 feet from the surveyed property line.
For the foregoing reasons, the Hearings Officer finds the applicant’s proposed wireless
telecommunications facility does not satisfy the applicable provisions of the EFU Zone.
AS ZONE STANDARDS
2. Chapter 18.80, Airport Safety Combining Zone - AS
a. Section 18.80.028, Height Limitations
All uses permitted by the underlying zone shall comply with the
height limitations in DCC 18.80.028. When height limitations of the
underlying zone are more restrictive than those of this overlay zone,
the underlying zone height limitations shall control. [ORS 836.619;
OAR 660-013-0070]
A. Except as provided in DCC 18.80.028(B) and (C), no structure
or tree, plant or other object of natural growth shall penetrate
an airport imaginary surface.
B. For areas within airport imaginary surfaces but outside the
approach and transition surfaces, where the terrain is at
higher elevations than the airport runway surfaces such that
existing structures and permitted development penetrate or
would penetrate the airport imaginary surfaces, a local
government may authorize structures up to 35 feet in height.
C. Other height exceptions or variances may be permitted when
supported in writing by the airport sponsor, the Department of
Aviation and the FAA. Applications for height variances shall
follow the procedures for other variances and shall be subject
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 25 of 35
to such conditions and terms as recommended by the
Department of Aviation and the FAA (for Redmond, Bend and
Sunriver.)
FINDINGS: The subject property is zoned AS because of its proximity to the Sisters Eagle Air
Airport. Section 18.80.036(D) establishes the horizontal surface for the Sisters Airport at an
elevation of 3,315 feet above sea level (ASL). The imaginary conical surface for Sisters Airport
slopes upward from the horizontal surface at a rate of 1 vertical foot for every 20 horizontal
feet, producing an imaginary surface elevation of 3,476 feet ASL at the top of Bradley Butte.
The record indicates the proposed wireless telecommunications facility site elevation is
approximately 3,211 feet ASL. Adding the 80-foot height of the proposed monopine to this
base elevation results in an overall maximum elevation of the proposed monopine of 3,291 feet
ASL, well below the bottom of the imaginary surface at 3,476 feet ASL. Therefore, the
Hearings Officer finds the applicant’s proposal satisfies this criterion.
b. Section 18.80.044, Land Use Compatibility
Applications for land use or building permits for properties within the
boundaries of this overlay zone shall comply with the requirements of
DCC 18.80 as provided herein. When compatibility issues arise, the
Planning Director or Hearings Body is required to take actions that
eliminate or minimize the incompatibility by choosing the most
compatible location or design for the boundary or use. Where
compatibility issues persist, despite actions or conditions intended to
eliminate or minimize the incompatibility, the Planning Director or
Hearings Body may disallow the use or expansion, except where the
action results in loss of current operational levels and/or the ability of
the airport to grow to meet future community needs. Reasonable
conditions to protect the public safety may be imposed by the
Planning Director or Hearings Body.
A. Noise. Within airport noise impact boundaries, land uses shall
be established consistent with the levels identified in OAR 660,
Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for
any subdivision or partition approval or other land use
approval or building permit affecting land within airport noise
impact boundaries, shall sign and record in the Deschutes
County Book of Records, a Declaration of Anticipated Noise
declaring that the applicant and his successors will not now, or
in the future complain about the allowed airport activities at
the adjacent airport. In areas where the noise level is
anticipated to be at or above 55 Ldn, prior to issuance of a
building permit for construction of a noise sensitive land use
(real property normally used for sleeping or as a school,
church, hospital, public library or similar use), the permit
applicant shall be required to demonstrate that a noise
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 26 of 35
abatement strategy will be incorporated into the building
design that will achieve an indoor noise level equal to or less
than 55 Ldn. [NOTE: FAA Order 5100.38A, Chapter 7
provides that interior noise levels should not exceed 45 decibels
in all habitable zones.]
FINDINGS: The record indicates the proposed wireless telecommunications facility site is
located outside the Sisters Airport noise impact boundary. And in any event, the staff report
states, and the Hearings Officer agrees, that the proposed facility is not a noise sensitive use
because its operation will not be affected by aircraft noise.
B. Outdoor lighting. No new or expanded industrial, commercial
or recreational use shall project lighting directly onto an
existing runway or taxiway or into existing airport approach
surfaces except where necessary for safe and convenient air
travel. Lighting for these uses shall incorporate shielding in
their designs to reflect light away from airport approach
surfaces. No use shall imitate airport lighting or impede the
ability of pilots to distinguish between airport lighting and
other lighting.
FINDINGS: The applicant has not proposed any lighting for the wireless telecommunications
facility.
C. Glare. No glare producing material, including but not limited
to unpainted metal or reflective glass, shall be used on the
exterior of structures located within an approach surface or on
nearby lands where glare could impede a pilot's vision.
FINDINGS: According to the applicant’s design drawings in the record, the proposed monopine
would look like a pine tree with a trunk, branches and needles. The antennas would be installed
within the branches below the top of the monopine. The applicant’s design drawings show the
proposed 8-foot-tall equipment cabinets would have height well below the tops of the mature pine
trees on the site. For these reasons, the Hearings Officer finds neither the proposed monopine nor
the equipment cabinets would create glare. Moreover, I agree with staff’s observation that the over
one-mile distance between the proposed monopine and the Sisters Eagle Air Airport would reduce
or eliminate any potential glare. Therefore I find the applicant’s proposal satisfies this criterion.
D. Industrial emissions. No new industrial, mining or similar use,
or expansion of an existing industrial, mining or similar use,
shall, as part of its regular operations, cause emissions of
smoke, dust or steam that could obscure visibility within
airport approach surfaces, except upon demonstration,
supported by substantial evidence, that mitigation measures
imposed as approval conditions will reduce the potential for
safety risk or incompatibility with airport operations to an
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 27 of 35
insignificant level. The review authority shall impose such
conditions as necessary to ensure that the use does not obscure
visibility.
FINDINGS: The Hearings Officer finds the proposed wireless telecommunications facility will
not produce any emissions.
E. Communications Facilities and Electrical Interference. No use
shall cause or create electrical interference with navigational
signals or radio communications between an airport and
aircraft. Proposals for the location of new or expanded radio,
radiotelephone, and television transmission facilities and
electrical transmission lines within this overlay zone shall be
coordinated with the Department of Aviation and the FAA
prior to approval. Approval of cellular and other telephone or
radio communication towers on leased property located within
airport imaginary surfaces shall be conditioned to require their
removal within 90 days following the expiration of the lease
agreement. A bond or other security shall be required to
ensure this result.
FINDINGS: As discussed in the findings above, the proposed wireless telecommunications
facility would not penetrate the imaginary surface of the Sisters Airport, and therefore is not
subject to this section’s removal requirements. With regard to potential electrical interference,
the Hearings Officer finds that if the board approves the applicant’s proposal on appeal, such
approval should be subject to a condition of approval requiring the applicant to coordinate with
the FAA and Department of Aviation prior to construction of the facility.
F. Limitations and Restrictions on Allowed Uses in the RPZ,
Approach Surface, and Airport Direct and Secondary Impact
Areas. For the Redmond, Bend, Sunriver, and Sisters airports,
the land uses identified in DCC 18.80 Table 1, and their
accessory uses, are permitted, permitted under limited
circumstances, or prohibited in the manner therein described.
In the event of conflict with the underlying zone, the more
restrictive provisions shall control. As used in DCC 18.80.044,
a limited use means a use that is allowed subject to special
standards specific to that use.
FINDINGS: Table 1 of Chapter 18.80 identifies limitations for utility facilities in airport
approach surfaces. The record indicates the proposed monopine would be located outside the
Sisters Eagle Air Airport’s approach surfaces. Therefore, the Hearings Officer finds the
applicant’s proposal satisfies this criterion.
For the foregoing reasons, the Hearings Officer finds the applicant’s proposal satisfies all
applicable standards in the AS Zone.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 28 of 35
SMIA ZONE STANDARDS
3. Chapter 18.56, Surface Mining Impact Area (SMIA) Combining Zone
a. Section 18.56.020, Location
The SMIA Zone shall apply to all property located within one-half
mile of the boundary of a surface mining zone. However, the SMIA
Zone shall not apply to any property located within an urban growth
boundary, city or other county. The extent and location of the SMIA
Zone shall be designated at the time the adjacent surface mining zone
is designated.
FINDINGS: The record indicates the proposed wireless telecommunications facility site on the
top of Bradley Butte is more than one-half mile from the nearest surface mining zone, and
therefore the Hearings Officer finds the SMIA Zone does not apply to the applicant’s proposal.8
LM ZONE STANDARDS
4. Chapter 18.84, Landscape Management (LM) Combining Zone
a. Section 18.84.020, Application of Provisions
The provisions of DCC 18.84 shall apply to all areas within one-fourth
mile of roads identified as landscape management corridors in the
Comprehensive Plan and the County Zoning Map. The provisions of
DCC 18.84 shall also apply to all areas within the boundaries of a
State scenic waterway or Federal wild and scenic river corridor and
all areas within 660 feet of rivers and streams otherwise identified as
landscape management corridors in the comprehensive plan and the
County Zoning Map. The distance specified above shall be measured
horizontally from the centerline of the designated landscape
management river or stream. The limitations in DCC 18.84.020 shall
not unduly restrict accepted agricultural practices.
FINDINGS: The comprehensive plan designates the segments of Highways 20 and 126 in the
vicinity of the subject property as LM corridors. The record shows the proposed wireless
telecommunications facility site on the top of Bradley Butte is not located within one-quarter
mile of either of these highways. In addition, the comprehensive plan designates as an LM
corridor the segment of Wychus Creek running through the subject property. The record shows
the proposed facility site would be located more than 660 feet from the creek. Therefore, the
Hearings Officer finds the LM Zone is not applicable to the applicant’s proposal.
8 The record indicates the cinder mining site on the east side of Bradley Butte is not zoned SM.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 29 of 35
HISTORIC RESOURCE PROTECTION
FINDINGS: As discussed in the Findings of Fact above, the subject property abuts the Wilson
Homestead which is listed on the National Registry of Historic Places. Both federal and state law
and administrative rules, as well as the county’s comprehensive plan, address protection and
preservation of historic resources. These provisions and their application to the applicant’s
proposal are discussed in the findings below.
FEDERAL LAW
C. 16 USC 470, National Historic Preservation Act of 1966, Public Law 102.575
1. 16 USC 470g, Section 106
The head of any Federal agency having direct or indirect jurisdiction over a
proposed Federal or federally assisted undertaking in any State and the head
of any Federal department or independent agency having authority or license
any undertaking shall, prior to the approval of the expenditure of any
Federal funds on the undertaking or prior to the issuance of any license, as
the case may be, take into account the effect of the undertaking on any
district, site, building, structure, or object that is included in or eligible for
inclusion in the National Register. The head of any such Federal agency shall
afford the Advisory Council on Historic Preservation established under Title
II of this Act a reasonable opportunity to comment with regard to such
undertaking. (Emphasis added.)
D. 36 CFR Part 800 – Protection of Historic Properties
1. Section 800.1, Purposes
(a) Purposes of section 106 process. Section 106 of the National Historic
Preservation Act requires Federal agencies to take into account the
effects of their undertakings on historic properties and afford the
Council a reasonable opportunity to comment on such undertakings.
The procedures in this part define how Federal agencies meet these
statutory responsibilities. * * *. (Emphasis added.)
FINDINGS: The so-called “Section 106” process established in 16 USC 740, and implemented
by the rules in 36 CFR Part 800, by its express terms applies only to the actions of federal
agencies. The record indicates the federal agency having jurisdiction and licensing authority over
wireless telecommunications facilities – the Federal Communications Commission (FCC) – has
issued a license to AT&T Mobility to provide service in Central Oregon. The FAA must
approval issuance of a construction permit for AT&T’s proposed facility on Bradley Butte.
Therefore, the FCC is required to comply with the Section 106 process before issuing the
construction permit.
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 30 of 35
The Deggendorfers argue the Hearings Officer should not issue a decision in this matter unless
and until the FCC has completed the Section 106 process for the applicant’s proposed wireless
telecommunications facility. They assert the applicant’s proposal will have such a negative
visual impact on the Wilson Homestead that the applicant will not be able to obtain FCC
approval when the application is scrutinized under the Section 106 process. In response, Don
Larson testified at the October 6, 2009 public hearing that he is confident the applicant’s
modified proposal utilizing an 80-foot-tall monopine will pass muster under the Section 106
process.
In his comments on the applicant’s proposal, Roger Roper, Deputy State Historic Preservation
Office Assistant of SHPO noted that SHPO is involved in administering the Section 106 process
with regard to proposed wireless telecommunications facilities, and also recommended the
county postpone its decision on the subject application until the federal process has been
completed. Mr. Roper went on to suggest the applicant be required to conduct a cultural
resources survey of the project area, but cited no authority under either state law or county
ordinance for such a requirement.
Neither SHPO nor opponents have identified any requirement of, or authority for, the Hearings
Officer to postpone a decision in this matter in order to allow the Section 106 process to be
completed. In the absence of the applicant’s agreement to toll the 150-day period under ORS
215.427 for the Section 106 process – which the applicant has declined to do – I must issue a
decision within the statutory time frame. Moreover, I am not persuaded the Section 106 process
will result in the FCC’s denial of a construction permit for the applicant’s modified proposal in
light of the minimal visual impact the proposed 80-foot-tall monopine would have on the Wilson
Homestead. As discussed in the findings above, only approximately the upper 15 to 20 feet of the
proposed monopine would be visible above the tallest surrounding trees. And the uppermost part
of the monopine would be so far from the Wilson Homestead that it will appear very small
relative to the size and scale of Bradley Butte as viewed from the Wilson Homestead.
The Hearings Officer finds the proper way to address the Section 106 process is that if the board
approves the applicant’s proposal on appeal, such approval should be subject to a condition of
approval requiring the applicant to obtain any and all necessary FCC permits and approvals
before construction of the applicant’s facility on Bradley Butte.
STATE LAW
E. OAR Chapter 660, Department of Land Conservation and Development
1. Division 23, Procedures and Requirements for Complying With Goal 5
a. OAR 660-023-0200, Historic Resources
(1) For purposes of this rule, the following definitions apply:
(a) "Designation" is a decision by a local government
declaring that a historic resource is "significant" and
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 31 of 35
including the resource on the list of significant historic
resources.
(b) "Historic areas" are lands with buildings, structures,
objects, sites, or districts that have local, regional,
statewide, or national historic significance.
(c) "Historic resources" are those buildings, structures,
objects, sites, or districts that have a relationship to
events or conditions of the human past.
(d) "Historic resources of statewide significance" are
buildings, structures, objects, sites, or districts listed in
the National Register of Historic Places, and within
approved national register historic districts pursuant to
the National Historic Preservation Act of 1966 (PL 89-
665; 16 U.S.C. 470).
(e) "Protect" means to require local government review of
applications for demolition, removal, or major exterior
alteration of a historic resource.
(2) Local governments are not required to amend acknowledged
plans or land use regulations in order to provide new or
amended inventories or programs regarding historic resources,
except as specified in this rule. The requirements of the
standard Goal 5 process (see OAR 660-023-0030 through 660-
023-0050) in conjunction with the requirements of this rule
apply when local governments choose to amend acknowledged
historic preservation plans and regulations. However, the
sequence of steps in the standard process is not recommended,
as per section (3) of this rule. The provisions in section (3) of
this rule are advisory only. Sections (4) through (9) of this rule
are mandatory for all local governments, except where the rule
provides recommended or optional criteria.
(3) Local comprehensive plans should foster and encourage the
preservation, management, and enhancement of structures,
resources, and objects of historic significance within the
jurisdiction in a manner conforming with, but not limited by,
the provisions of ORS 358.605. In developing local historic
preservation programs, local governments should follow the
recommendations in the Secretary of the Interior's Standards
and Guidelines for Archeology and Historic Preservation.
Where possible, local governments should develop a local
historic context statement and adopt a historic preservation
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 32 of 35
plan and a historic preservation ordinance before
commencement of local historic inventories.
(4) Local governments shall provide broad public notice prior to
the collection of information about historic resources. Local
governments shall notify landowners about opportunities to
participate in the inventory process. Local governments may
delegate the determination of significant historic sites to a local
planning commission or historic resources commission. The
determination of significance should be based on the National
Register Criteria for Evaluation or the Secretary of the
Interior's Standards for Evaluation.
(5) Local governments shall adopt or amend the list of significant
historic resource sites (i.e., "designate" such sites) as a land use
regulation. Local governments shall allow owners of
inventoried historic resources to refuse historic resource
designation at any time prior to adoption of the designation
and shall not include a site on a list of significant historic
resources if the owner of the property objects to its
designation.
(6) The local government shall allow a property owner to remove
from the property a historic property designation that was
imposed on the property by the local government.
(7) Local governments are not required to apply the ESEE process
in order to determine a program to protect historic resources.
Rather, local governments are encouraged to adopt historic
preservation regulations regarding the demolition, removal, or
major exterior alteration of all designated historic resources.
Historic protection ordinances should be consistent with
standards and guidelines recommended in the Standards and
Guidelines for Archeology and Historic Preservation published
by the U.S. Secretary of the Interior.
(8) Local governments shall protect all historic resources of
statewide significance through local historic protection
regulations, regardless of whether these resources are
"designated" in the local plan.
(9) A local government shall not issue a permit for demolition or
modification of a historic resource described under subsection
(6) of this rule for at least 120 days from the date a property
owner requests removal of historic resource designation from
the property. (Emphasis added.)
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 33 of 35
FINDINGS: These administrative rules implement Goal 5 with respect to historic resources.
They require the county to “protect” all “historic resources of statewide significance” through
“historic protection regulations.” The rules define “historic resources of statewide significance”
to include those resources listed on the National Register of Historic Places, such as the Wilson
Homestead. In addition, the rules define "historic resources" to include buildings, structures,
objects, sites, or districts. However, as the staff report correctly notes, the term “protect” means
subjecting to local government review applications for “demolition, removal, or major exterior
alteration of a historic resource.” The subject application is not for the demolition, removal or
major exterior alteration of the Wilson Homestead. Rather, it is an application for approval to
establish a wireless telecommunications facility, a small portion of which will be visible from
some areas on the Wilson Homestead. The Hearings Officer is not prepared to read into these
rules – as opponents apparently would have me do – a requirement that the county protect the
views from the historic resource. Therefore, I find these administrative rules do not apply to the
applicant’s proposal.
LOCAL LAW
F. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.108, Historic and Cultural
a. Section 23.108.020, Goals
1. To preserve and protect historic and cultural resources.
2. To achieve the identified goal a number of policies were
developed. These policies reflect concerns that there be a
specific agency responsible for protecting historic and cultural
resources and that the agency’s specific authority and duties
need to be identified. Also, that appropriate means by which
the new agency, the cities and the County could protect the
resources had to be found.
b. Section 23.108.030, Policies
1. A joint Cities/County Historical Landmarks Commission shall
be created by the incorporated cities and Deschutes County.
The joint commission is meant to assure greater coordination
in regard to identifying historical and cultural resources,
protecting those resources, being fully representative of the
various communities, serving in an advisory capacity to all
local governing bodies and their agents, as well as promoting
greater efficiency and better information in protecting
resources. The duties of the Commission would be to:
a. Create a local register and priority value for historic
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 34 of 35
and cultural resources of the County.
b. Review applications for designation of historical sites.
c. Advise governing bodies on ordinances and permits for
demolition or alteration of historic or archaeological
sites.
d. Advise and help resolve land use conflicts affecting such
resources.
e. Devise standards for historical markers.
2. Preservation of historic and cultural sites of high priority
rating or that have been identified on the Deschutes County
Inventory of Historical Places should take precedence over
other developmental uses.
3. Emphasis shall be on preservation of the exterior appearance
of historic buildings. Interior modifications and exterior
changes compatible with the continued maintenance of the
historic appearance of the structure shall be approved upon
such findings of compatibility by the Historic Landmarks
Commission.
4. Plans for the protection of an identified historic or cultural site
shall be submitted to the Historic Landmarks Commission for
approval with any application for subdivision or development
of such site or area.
5. Incentives should be developed to encourage private
preservation and utilization of historical resources.
6. Redevelopment, Neighborhood Improvement Projects and
other similar mechanisms shall be encouraged for areas of
significant historical or architectural interest.
* * *
c. Section 23.108.040, Goal 5 Inventory – Historic Resources
FINDINGS: As noted in the Findings of Fact above, the Wilson Homestead is not listed on the
county’s Goal 5 inventory of historic resources. Moreover, it is well established that plan policies
generally do not constitute mandatory approval criteria for quasi-judicial land use applications
unless they include language stating they are to be used for that purpose. Freeland v. City of
Bend, 45 Or LUBA 125 (2005). The above-quoted policies do not have such language. Rather,
AT&T Mobility Sisters
MA-09-5/AD-09-2
Page 35 of 35
they authorize creation of the Historic Landmarks Commission and define the scope of the
commission’s authority. And as is the case with the state administrative rules discussed above,
the comprehensive plan policies focus on the historic resource itself rather than surrounding
property – i.e., they address the demolition, removal or exterior alteration of the resource.
Therefore, I find the policies are not applicable to the subject application.
For the foregoing reasons, the Hearings Officer finds the applicant’s request for county approval
of its proposed wireless telecommunications facility is not directly subject to the Section 106
process, and that state and local historic preservation provisions also do not apply because the
proposal is not for demolition, removal or alteration of an historic resource.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
DENIES the applicant’s proposed wireless telecommunications facility.
Dated this _______ day of December, 2009.
Mailed this ______ day of December, 2009.
___________________________
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.