HomeMy WebLinkAboutDecision - Cline Butte Telecomm FacilityKBARD
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DECISION OF DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBER: CU-09-60
APPLICANT/ KBARD, LLC 1
APPELLANT: c/o Kevin Martin
2495 N.W. 121st Place
Portland, Oregon 97229
PROPERTY OWNER: Trail Crossing Revocable Trust
16450 S.W. Trail Crossing Road
Terrebonne, Oregon 97760
REQUEST: The applicant requests conditional use approval to establish a
wireless telecommunications facility consisting of a 60-foot
cellular monopole, antennas and ground equipment within a fenced
compound on a parcel zoned SM and located on the northernmost
of the three Cline Buttes southwest of Redmond.
STAFF REVIEWER: Paul Blikstad, Senior Planner
HEARING DATES: March 15, April 19 and May 5, 2010
RECORD CLOSED: May 5, 2010
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.52, Surface Mining Zone (SM)
* Section 18.52.050, Conditional Uses Permitted
* Section 18.52.060, Dimensional Standards
2. Chapter 18.116, Supplementary Provisions
* Section 18.116.250, Wireless Telecommunications Facilities
3. Chapter 18.128, Conditional Use
1 The applicant’s burden of proof states it submitted the application on behalf of New Cingular Wireless
PCS, LLC/AT&T Mobility.
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* Section 18.128.015, General Standards Governing Conditional Uses
* Section 18.128.330, Microwave and Radio Communication Towers in the
SM Zone
* Section 18.128.340, Wireless Telecommunications Facilities
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
II. FINDINGS OF FACT:
A. Location: The subject property is located at 67585 Cline Falls Road, Redmond, and is
further identified as Tax Lot 4700 on Deschutes County Assessor’s Map 15-12.
B. Zoning and Plan Designation: The subject property is zoned Surface Mining (SM) and
is designated SM and Agriculture on the Deschutes County Comprehensive Plan Map.
C. Site Description: The subject property is approximately 159 acres in size and irregular in
shape. It occupies most of the upper portion of the northernmost of the three Cline Buttes
(hereafter “north butte.”) The north butte has relatively steep topography as well as
relatively level areas at the top. The subject property currently is developed with a
surface mine (SM Site 252) located on 60 acres near the southeast corner of the property.
The mining site has access from an existing paved and gravel road extending northwest
from Cline Falls Road. The un-mined portions of the subject property have a moderate
cover of juniper trees and native brush and grasses. In addition, a high-voltage electric
transmission line owned and operated by Central Electric Cooperative (CEC), and
consisting of poles and metal conductors, crosses the north butte along its eastern and
northern slopes.
D. Surrounding Zoning and Land Uses: Most of the surrounding property is zoned EFU
and is in both public (BLM) and private ownership. On the west and north the subject
property also abuts portions of Phase 3 of the Eagle Crest destination resort that are
developed primarily with residential uses.
E. Procedural History: The record indicates there has been mining activity on the north
butte since at least 1973. The record includes a site plan drawing showing the mining
areas. In 1990 the county added the subject property to its inventory of significant
mineral and aggregate resources as SM Site 252. In May of 2001 the county approved a
surface mining site plan for a storage area and two storage buildings (SP-01-16).
The subject conditional use application was submitted on August 21, 2009 and was
accepted by the county as complete on September 21, 2009. Therefore, the 150-day
period for issuance of a final local land use decision under ORS 215.427 would have
expired on February 18, 2010. A public hearing on the application was scheduled for
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October 13, 2009. By an electronic mail message dated October 12, 2009 the applicant’s
representative Kevin Martin requested a continuance of the hearing. Because the
continuance request was submitted after notice of the public hearing was published, the
Hearings Officer opened the hearing on October 13, 2009, received testimony and
evidence, and continued the hearing to November 10, 2009.
On November 10, 2009 the Hearings Officer conducted a site visit to the subject property
and vicinity accompanied by Senior Planner Paul Blikstad. At the continued public
hearing on November 10, 2009, the Hearings Officer disclosed her observations and
impressions from the site visit. In addition, the applicant revised its proposal by reducing
the height of the proposed monopole from 90 to 60 feet and reducing the number of
carriers the facility could accommodate from four to three. The Hearings Officer
determined at the hearing that the applicant’s proposed revision did not constitute a
modification requiring a modification application, and received testimony and evidence
on the revised proposal. The Hearings Officer left the written evidentiary record open
through November 25, 2009, and allowed the applicant through December 4, 2009 to
submit final argument pursuant to ORS 197.763. On December 2, 2009 Mr. Martin
submitted an electronic mail message stating he would not be submitting any additional
information, and the record closed on that date.2 Because the applicant requested a
continuance of the public hearing from October 13 to November 10 (a period of 28 days)
and agreed to extend the written record from November 10 through December 2, 2009 (a
period of 22 days), under Section 22.24.140 of the county’s land use procedures
ordinance the 150-day period was extended for 50 days and was set to expire on April 12,
2010.3
The Hearings Officer denied the application on the failure to consider two smaller poles
on non-resource land rather than one 60-foot pole on the SM zoned land. The applicant
timely appealed that decision to the Board of County Commissioners (“Board”) and
agreed to extend the 150-day deadline.
The original hearing in front of the Board was set for March 15, 2010. At that hearing,
the applicant requested a continuance to April 19, 2010. At the April 19th hearing, the
applicant again requested that the matter be set over to May 5, 2010. Because the
applicant requested the two continuances, and agreed to extend the 150-day time period
at each continuance, the 150-day review period on this application now expires on May
31, 2010.
F. Proposal: The applicant requests conditional use approval to establish a wireless
telecommunications facility, referred to by the applicant as site “BD57,” on a two-acre
leased area at the top of the north butte. The facility site would consist of a 64-foot-
square compound enclosed with a 6-foot-tall perimeter cyclone fence, within which
2 The applicant’s representative submitted an electronic mail message dated December 3, 2009 that
included additional evidence. However, because the evidentiary record closed on November 25, 2009 the
Hearings Officer could not consider this evidence.
3 The extended 150th day fell on Saturday, April 10, 2010.
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would be installed a 60-foot-tall free-standing steel monopole with three cellular
telephone antenna arrays at various heights, microwave dishes two to three feet in
diameter, and a 12-foot by 26-foot concrete pad on which would be installed several
equipment cabinets. As discussed in the findings above, the applicant’s original proposal
was for a 90-foot-tall monopole that would have accommodated antennas for four
wireless telecommunications providers. The applicant’s revised proposal for a 60-foot-
tall monopole would accommodate three carriers, each with the basic configuration of 12
cellular telephone antennas and one microwave dish. The applicant’s antenna installation
would occupy the 60-foot level of the tower with up to 12 cellular telephone antennas at
that level and one microwave dish at the 15-foot level.
The proposed facility would have underground electrical service provided by Central
Electric Cooperative (CEC) and telephone service through a microwave dish installed on
the monopole. Because the facility would not be manned, no water or sewage facilities
would be provided on the site. Most of the facility components would be constructed of
non-combustible materials. The facility would not be lighted. Access to the facility would
be from an extension of the private paved and gravel roadway leading from Cline Falls
Road to and through the existing surface mining site. Following construction of the
facility vehicle traffic would consist of 1-2 trips per month by AT&T staff for routine
maintenance.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicant’s
proposal to a number of public and private agencies and received responses from: the
Deschutes County Assessor’s Office, Building Division, and Senior Transportation
Planner: the City of Redmond Fire Department; the Oregon Department of
Transportation-Aeronautics (ODOT-Aeronautics) and the Oregon Department of
Aviation; the US Bureau of Land Management (BLM); Pacific Power; and CEC. These
comments are set forth verbatim at pages 2-4 of the staff report and are included in the
record. The following agencies did not respond to the request for comments: the
Deschutes County Road Department and Property Address Coordinator; the Oregon
Department of Water Resources, Watermaster-District 11; the Oregon Department of
Environmental Quality; and Qwest. Agency comments are addressed below.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant’s proposal and the public hearing in front of the Hearings Officer to the
owners of record of all property located within 2,250 feet of the subject property. The
notice area was increased from 500 to 2,250 feet because of the 90-foot height of the
original proposed monopole. 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. As of the date the record in front of the Hearings Officer in
this matter closed, the county had received 26 letters from the public in response to these
notices. In addition, four members of the public testified at the public hearing before the
Hearings Officer. Public comments are addressed in the findings below. Additional
testimony was received before the Board at the March 15th and May 5th public hearings.
Notice of the Board’s hearing was sent to all the parties that participated in the hearings
process for the Hearings Officer, as well as published in the Bulletin at least 10 days
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before the March 15th hearing date.
I. Lot of Record: The subject property constitutes a legal lot of record in conjunction with
Tax Lot 4701 on Assessor’s Map 15-12 based on a lot-of-record determination included
in the decision in SP-01-16 that approved the subject property’s surface mining site plan.
III. CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining (SM) Zone
a. Section 18.52.030, Conditional Uses Permitted
A. The following uses are permitted subject to the conditions set
forth in DCC 18.128:
* * *
5. Wireless telecommunications facilities that are
necessary to be sited in the SM Zone for the public
service to be provided.
FINDINGS: The applicant proposes to establish a wireless telecommunications facility as part
of the existing New Cingular Wireless PCS/AT&T Mobility cellular telephone network.
Wireless telecommunications facilities are allowed in the SM Zone if they are “necessary to be
sited in the SM Zone for the public service to be provided.” This language is similar to the
language in Section 18.16.025 allowing “utility facilities necessary for public service” in the
EFU Zone. In two previous decisions, the county’s hearings officers have held the above-quoted
language in the SM Zone essentially replicates the EFU Zone “utility facility” approval standards
inasmuch as the SM Zone also is a “resource zone.” AT&T Mobility (CU-08-79); AT&T Mobility
(CU-09-18). The Hearings Officer agreed with this holding and the Board applies it here.
However, neither of these decisions discusses what, if any, effect the language in Section
18.16.025 requiring site plan review for “utility facilities necessary for public service” has on
wireless telecommunications facilities on SM-zoned land.
In several previous decisions, the county’s hearings officers have held that under Brentmar v.
Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995) and T-Mobile USA v. Yamhill County,
55 Or LUBA 83 (2007), the county cannot require either site plan review or conditional use
approval for wireless telecommunications facilities in the EFU zones 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 facilities in the
EFU Zones. However, because Brentmar applies only to utility facilities in the EFU Zone, the
Board finds, as the county’s hearings officers implicitly found, that the only EFU Zone “utility
facility” approval standards applicable to wireless telecommunications facilities in the SM Zone
are those set forth in Section 18.16.038(A). That is because those standards use “necessary for
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public service” language very similar to the language in Section 18.52.030(A)(5) of the SM
Zone.
Section 18.16.038(A) states:
A. A utility facility necessary for public use allowed under DCC 18.16.025 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 nonresource 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. (Underscored emphasis
added.)
The Board finds that applying these standards to the proposed facility on SM-zoned land, the
applicant must demonstrate that:
• it considered reasonable alternatives to siting the facility on SM-zoned property; and
• the proposed facility must be located on the SM-zoned subject property because of at
least one of the locational factors set forth above.
1. Interpretation of Statutory Requirements. The meaning of the EFU Zone approval criteria
for utility facilities in ORS 215.275, implemented by Section 18.16.038(A), 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
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land. On appeal, after a lengthy discussion of the text, context and legislative history of the
statutory language, the court held the term “reasonable alternative” refers to a site not on EFU
land that achieves the applicant’s service objectives, 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 the factors in ORS 215.275.
In Sprint, the court also considered whether and to what extent local governments may defer to
the applicant’s stated service 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 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 that 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
necessary 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 utility service.
Because the Board has concluded the approval standards in Sections 18.52.030(A)(5) and
18.16.038(A) are so similarly worded, the Board finds it is appropriate for the County to follow
these statutory interpretations in applying the EFU Zone “utility facility” approval standards to
the applicant’s proposed wireless telecommunications facility on the SM-zoned subject property.
2. AT&T Mobility’s Objectives. In Sprint, the court held that “reasonable alternatives” are sites
that: (1) achieve the applicant’s service objectives: and (2) provide telecommunications services
to the public. The applicant’s burden of proof describes AT&T’s service objectives in pertinent
part as follows:
“KBARD LLC is proposing to construct a tower to accommodate New Cingular
Wireless PCS LLC/AT&T Mobility (AT&T), one of the largest domestic providers
of wireless Personal Communications Services (PCS) and data transfer services.
They are currently upgrading and expanding upon their existing network in
Central Oregon. As part of this upgrade their engineering department has
determined the need for additional cell sites in the Redmond area. In this
particular instance the identified need is along the Highway 126 corridor west
towards Sisters and the rural areas north of Cline Butte and east of Redmond.
New Cingular Wireless PCS, LLC/AT&T Mobility (AT&T) holds a license from
the FCC for digital operations in this area. AT&T Mobility’s system is similar to
other wireless carriers in that calls are handed off from one facility to another as
the caller moves through the area, allowing for reuse of a finite number of
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channels per frequency. The wavelength of the signal in systems such as those
used by AT&T (and most other wireless carriers) requires that cell sites be
spaced closer together as voice and data volume increases.
Due to technical constraints and the need for additional coverage in the Redmond
area, the Cline Butte site was chosen based on the topography of the area, the
routing of Highway 126, and the proximity of other existing or proposed AT&T
sites.
* * *
AT&T Mobility determined through radio frequency modeling and testing that the
Cline Buttes site (BD57) is needed in order to provide continuous coverage
service along the Highway 126 corridor west towards Sisters and the rural areas
north of Cline Buttes and east of Redmond.” (Emphasis added.)
Exhibit E to the applicant’s burden of proof includes two color-coded “radio frequency
propagation maps” depicting AT&T’s existing Redmond area wireless network. Both maps show
the location of seven existing or proposed AT&T wireless facilities: BD41 in Terrebonne;4 BD
51 along Highway 97 between Terrebonne and Redmond; BD52, 53 and 55 located in Redmond;
BD22 located west of Highway 97 between Bend and Redmond; and BD23 located along
Highway 20 northwest of Bend. In addition, both maps show the location of the BD57, the
proposed Cline Butte facility. The applicant’s burden of proof describes these maps as follows:
“Figure 1 of Exhibit E shows coverage without the proposed BD57 site. Green
represents a strong signal that will provide reliable service within buildings as
well as inside vehicles. Yellow represents signal strength that will provide good
coverage inside vehicles, but less reliable coverage in buildings. The signal
strength represented by red is weak and will provide marginal in-vehicle
coverage and no in-building coverage. Blue indicates no usable signal. There is a
significant lack of good coverage in the area along Highway 126 and rural areas
north and west of the Cline Buttes site, as noted by the extensive presence of red
and blue rather than green and yellow.
Figure 2 of Exhibit E shows the improvement of service signal provided by the
Cline Buttes site by the greatly increase areas covered by green and yellow.”
Based on the evidence set forth above, the Board finds AT&T’s service objective is to provide a
strong and reliable signal for both in-building and in-vehicle wireless coverage for its customers
traveling on Highway 126 west of Redmond as well as for its customers located in the rural areas
north and west of Cline Buttes.
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
4 This Hearings Officer approved the Terrebonne facility in October of 2009 (CU-09-53).
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analysis” under ORS 215.275:
“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
factors listed in ORS 215.275 and Section 18.16.038(A).
The record does not include a map specifically depicting the “search ring” used by AT&T to
determine suitable facility locations that would achieve its desired signal strength and coverage
described above. In a Hearings Officer’s previous decision in AT&T Mobility (Sisters) (MA-09-
5/AD-09-2) the Hearings Officer found a “search ring” is 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.”
Exhibit E to the applicant’s burden of proof – the two signal propagation maps in Figures 1 and 2
– depicts AT&T’s desired service area to be served by BD57. Based on LUBA’s holding in Getz,
the Hearings Officer found this map was adequate for purposes of identifying the area in which
the applicant was required to conduct an alternative sites analysis. The applicant also submitted
a letter dated April 14, 2010 with exhibits A-F as attachments. Exhibit A shows the area
intended to be served by BD57. The Board finds that this exhibit also was adequate for
identifying the area in which the applicant was required to conduct an alternative sites analysis.
The applicant’s original burden of proof does not include a detailed description of AT&T’s
alternative site search process. Its discussion is limited to the following:
“Most of the intended coverage area is zoned either rural residential or EFU
(Exhibit D). In addition, a large portion of the EFU zoned coverage area is
managed by BLM. Rural Residential lands are small parcels, usually with a
dwelling on them. These do not readily lend themselves to locating a suitable
tower structure. In addition, if forced to use Rural Residential land, at least two
towers would be needed, neither of which would extend coverage very far to the
west along Highway 126. Federal BLM land is not readily available for tower
siting. Furthermore, most of this area lacks ready access to electric service, and
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is zoned EFU which requires a necessity test to locate there. In summary, there is
a lack of suitably zoned sites to locate a new wireless facility making it necessary
to locate on SM zoned land.”
The Board finds that because the alternative sites analysis requires an applicant to look at non-
resource sites to see if placing telecommunications facilities on them is feasible, the applicant is
required to demonstrate that the desired outcome cannot be met with a site or multiple sites on
non-resource land. The Board finds that the applicant has demonstrated that two or more sites on
non-resource land will not provide the desired coverage for the telecommunications facilities in
Cline Butte area.
The Hearings Officer found and the Board agrees that the applicant considered and rejected the
following potential alternative facility sites within the service area depicted on the signal
propagation maps in Exhibit E.
a. Sites on BLM Land. Much of the land surrounding the subject property, including both the
middle and south Cline Buttes, is owned and managed by the BLM. In his November 25, 2009
submission, the applicant’s representative Kevin Martin stated the following with respect to
potential sites on BLM land:
“* * * [I]t was noted at the hearing that it is the policy of federal agencies not to
issue permits for new communication towers unless there are no sites available
that are on privately owned property. Since the applicant, KBARD, is proposing a
tower on private property owned by the family, a permit for a new tower on the
BLM site [the middle Cline Butte] would violate their own policy. The applicant
has relied on this longstanding federal policy as a basis for submitting an
application on their own private land.
Another issue of concern is the ongoing public review of the BLM master plan in
the area, which includes the middle butte and existing tower site. Polices within
this document would seem to discourage additional development on BLM-owned
land. * * *.”
In addition, in her September 9, 2009 comments on the applicant’s proposal, Molly Brown,
Deschutes Field Manager for the Prineville BLM District, stated in pertinent part:
“Representatives from the Deschutes County Planning Department, as well as
dozens of other interested persons throughout the area assisted the Prineville
District Bureau of Land Management (BLM) in development of our Upper
Deschutes Resource Management Plan (RMP), which was finalized in 2005. This
RMP designated public lands on Cline Buttes as VRM Class 2, with the
management objective:
To retain the existing character of the landscape. The level of change to the
characteristic landscape should be low. Management activities may be seen, but
should not attract the attention of the casual observer. Any changes must repeat
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the basic elements of form, line, color and texture found in the predominant
natural features of the characteristic landscape.
More recently, the Prineville BLM developed the Cline Buttes Recreation Area
(CBRA) plan, which will be sent out for public review in October 2009. This plan
covers 30,000 acres of public land in the Cline Buttes area, and includes over 25
miles of mountain bike trail, 25 miles of equestrian trail, and approximately 10
miles of pedestrian trail on the buttes (BLM administered lands between Cline
Falls Highway and Barr Road). During the intensely collaborative planning
process for this recreation area, trail use on the buttes received statewide and
significant out of state comments. The trail system on the buttes is a rare
commodity in Central Oregon, allowing winter season hiking, running, mountain
biking and equestrian use on challenging trails with spectacular views. The
positive benefits of these trails, and the viewing experience for the public should
be considered when assessing the proposed project. There is a high degree of
public interest in the project area, and a high degree of recreational use, both on
BLM administered lands and the adjacent resort developments and state land. In
addition to the recreational use and trails on BLM lands previously mentioned,
there is a designated hiking trail on Eagle Crest resort west of the proposed
project.”
The Hearings Officer found and the Board agrees that these comments suggest that under the
BLM’s Upper Deschutes RMP and CBRA, development of wireless communication facilities on
BLM land on or near Cline Buttes would be discouraged. However, the record indicates the
BLM has in fact permitted broadcast and wireless telecommunications facilities on both the
middle and south Cline Buttes, and has pending before it an application for construction of
another transmission tower on the middle butte. Nevertheless, as discussed in detail in the
findings below, the record indicates it is farm from certain the applicant would be able to site the
proposed facility on either the middle or south Cline Buttes, and therefore the Board finds it was
not unreasonable for the applicant to conclude that BLM lands on and surrounding Cline Buttes
were not available for the siting of its proposed BD57 facility.
b. Sites Zoned EFU. Much of the private land surrounding the subject property is zoned EFU.
As discussed in the findings above, in order to site a wireless communications facility on EFU-
zoned land the applicant must meet the “utility facility necessary for public service” approval
criteria set forth in Sections 18.16.025 and 18.16.038 – including demonstrating that the facility
must be sited on EFU-zoned land because there are no available or suitable non-resource lands.
Where, as here, the proposed facility site is on resource land – i.e., within an SM Zone –
choosing an EFU-zoned site as an alternative would not achieve the statutory objective of
protecting EFU-zoned land. Therefore, the Hearings Officer found and the Board agrees that the
applicant was justified in concluding that EFU-zoned land within the desired service area was
not available for the siting of its BD57 facility.
c. Sites Zoned Rural Residential (RR-10.) A map included in the record as Exhibit D to the
applicant’s burden of proof shows there is a large amount of land zoned RR-10 located north of
the subject property on both sides of Highway 126. The RR-10 Zone is a residential exception
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area not considered resource land. The applicant’s burden of proof and subsequent submissions
state AT&T rejected siting its facility on RR-10 zoned lands in part because of its belief that
such a facility would not be compatible with residential uses. And the topographic maps included
in the record show the RR-10 zoned lands are located at much lower elevations than the top of
the north butte. It appears from the applicant’s burden of proof and the testimony in front of the
Board that the reason the applicant rejected sites on RR-10 (and MUA-10) zoned land was
because more than one tower would be required, and even with other towers, they would not
provide the desired coverage depicted in Exhibit “F” attached to the applicant’s April 14th
submittal.
In AT&T Mobility (Sisters), AT&T rejected siting a wireless communications facility on RR-10
zoned in favor of a higher-elevation site on EFU-zoned land on the basis that an additional tower
would be required to provide the desired signal coverage and strength. The applicant argued a
two-tower solution would be against its business objective of providing wireless communications
services with the fewest towers, and would have greater visual impact than a single “monopine”
tower on the preferred EFU-zoned site. Opponents in that case argued, and the Hearings Officer
agreed, that under the Court of Appeals’ decision in Sprint, if the applicant can provide the
desired signal coverage and strength with two towers on non-EFU zoned land it must do so.
Specifically, the court stated:
“* * * [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 [Dayton Prairie Water Assn.
v. Yamhill Co., 170 Or App 6, 11 P3d 671 (2000)] 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.)
The Hearings Officer denied the application in AT&T Mobility (Sisters) because she found from
the applicant’s own burden of proof that its defined objectives could be met with the “two-site
solution” utilizing AT&T’s existing wireless technology, even though that would not be AT&T’s
preferred design.
The circumstances presented in this application are different that those proposed in AT & T
Mobility. Here, the applicant’s burden of proof states two towers on RR-10 (or MUA-10) zoned
land would be needed instead of one tower on the top of the north butte, and the signal strengths
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as shown on Exhibit E to the applicant’s April 14th submittal show (compared to Exhibit F) that
the two towers do not provide the same signal strength and area as the one tower proposed.
The applicant has the burden of proof to demonstrate the proposed facility must be sited on SM-
zoned land in order to achieve its service objectives. The Board finds the applicant’s evidence
satisfies that burden of proof.
4. Other Alternative Sites.
a. South Cline Butte. The record indicates the south butte is developed with an FAA facility
consisting of a “VORTAC” radio navigation beacon. The applicant’s burden of proof states, and
there appears to be no dispute, that a wireless telecommunications facility constructed on the
south butte would cause radio frequency interference with the FAA facility, and therefore would
not be suitable or available as a reasonable alternative site.
b. Middle Cline Butte. The record indicates the middle butte is developed with two existing
transmission towers -- 130-foot-tall lattice-style tower owned and operated by Western Radio
and carrying antennas for several wireless telecommunications providers, and a 30-foot-tall
tower owned and operated by Bend Broadband. In an electronic mail message dated September
8, 2009, Richard Oberdorfer with Western Radio stated in relevant part:
“My company owns the wireless tower facility on middle Cline Buttes. It presently
supports base station equipment for Verizon, US Cellular, T-Mobile, Page One,
and three local wireless internet companies. I have been working with AT&T to
provide collocation for their proposed BD57 cell site for over a year. Western
Radio has offered lease space to AT&T on its tower and in its building.
In April of 2008 Western submitted an application to the BLM for a second
wireless tower to be constructed at Western’s existing Right of Way on middle
Cline Buttes. Because of the BLM’s Visual Quality Objective for Cline Buttes they
have required us to provide visual simulations for alternative tower designs.
Either tower design will provide additional tower space for at least three cellular
companies in addition to AT&T. I expect approval from the BLM within the next
two months. Considering the state of the economy and the market size I would
estimate the Western middle Cline Butte facility will have collocation capability
for the next 10 to 20 years.”
In an electronic mail message dated November 9, 2009, Mr. Oberdorfer stated:
“On November 4, 2008 I was informed by AT&T’s acquisition contractor,
Cascadia PM, that AT&T had accepted my company’s lease terms to collocate on
the Western tower on the middle butte. I signed the lease with New Cingular
Wireless on the same day.”
Kevin Martin’s November 11, 2009 response to Mr. Oberdorfer’s testimony stated:
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“The problem here is that the existing tower does not have sufficient existing
capacity to support AT&T’s new antennas. Mr. Oberdorfer goes on to state that
Western Radio has submitted an application to BLM for a second wireless tower
on his site and that he ‘. . . expects approval from the BLM within the next two
months.’
I contacted Janet Hutchinson at the Prineville BLM office on November 6, 2009
to inquire about the status of Mr. Oberdorfer’s permit. She indicated that he had
requested that review of the application be placed ‘on hold’ until some time next
spring. I also asked whether the permit included a structural analysis showing
that the existing tower was at capacity and that a new tower was needed to
accommodate additional antennas. Ms. Hutchinson replied that a needs analysis
was not required because the BLM was already aware that existing tenants on the
tower were unable to expand their facilities because of the lack of structural
capacity.
Based on the above information, the applicant has to conclude that there is not
existing capacity for AT&T’s antennas on the middle Cline Butte and there is no
assurance that additional capacity will be available any time soon. Therefore, the
Western Radio site cannot be considered a potential alternative.”
The record includes an electronic mail message dated October 13, 2009 from Bill Dean,
Assistant Field Manager for the Deschutes Resource Area of the Prineville BLM District,
confirming that Western Radio’s application for permission to construct a second tower on the
middle butte has been put on hold.
The Hearings Officer found and the Board agrees that Mr. Oberdorfer’s claims that AT&T could
site its proposed BD57 facility on the middle butte are convincingly refuted by the testimony
presented by Mr. Martin and Mr. Dean. Therefore, the Board finds that the middle Cline Butte is
not a suitable or available alternative site for AT&T’s proposed facility.
c. Other Trail Crossing Trust Property. Several opponents argue in front of the Hearings Officer
that AT&T should site its proposed facility on other property owned by the Trail Crossing Trust
and located west of Cline Buttes. The record includes a map provided by planning staff showing
a large amount of property owned by “Thornburgh” which the Hearings Officer understood is the
name of the Trail Crossing Trust’s predecessor in interest. The Hearings Officer was also aware
that much of this property has been mapped and has received preliminary approval for
development with a destination resort.
Opponents did not identify these “other” sites before the Hearings Officer with a legal
description or map and tax lot number the Trail Crossing Property they believe would provide a
suitable alternative facility site. Additionally, no further testimony on the other sites was given
before the Board. The Board finds that in the absence of more specific property identification,
neither the applicant nor the Board are required to consider or evaluate this property in the
alternative sites analysis. T-Mobile USA v. Yamhill County, 55 Or LUBA 83 (2007).
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b. Section 18.52.060, Dimensional Standards
In the SM Zone, no existing parcel shall be reduced in size and no
additional parcels shall be created by partition, subdivision or
otherwise.
FINDINGS: The Board finds this criterion is not applicable because the applicant is not
proposing any land division or property line adjustment.
2. Chapter 18.116, Supplementary Provisions
a. Section 18.116.250, Wireless Telecommunications Facilities
* * *
C. Tier 3 Facilities. Wireless telecommunications facilities (or
their equivalent uses described in the EFU, Forest and SM
Zones) not qualifying as either a Tier 1 or 2 facility may be
approved in all zones, subject to the applicable criteria set
forth in DCC 18.128.330 and 18.128.340.
1. A request for a written determination from the County
as to whether a proposed facility falls within Tiers 1 or
2 of DCC 18.116.250 shall be submitted to the County in
writing and accompanied by a site plan and proposed
schematics of the facility. If the County can issue a
written determination without exercising discretion or
by making a land use decision as defined under ORS
197.015(10), the County shall respond to the request in
writing.
2. A request for a written determination from the County
as to whether a proposed facility falls within Tiers 1 or
2 of DCC 18.116.250 that involves exercising discretion
or making a land use decision shall be submitted and
acted upon as a request for a declaratory ruling under
DCC 22.40.
FINDINGS: The applicant requests approval to establish a wireless telecommunication facility
including a 60-foot tall monopole on land zoned SM. The Board finds the applicant’s proposal is
a “Tier 3” facility because it does not constitute either a “Tier 1” or “Tier 2” facility under
Section 18.116.250(A) and (B). Therefore, the proposed facility is subject to the conditional use
approval criteria discussed in the findings below.
3. Chapter 18.128, Conditional Use
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a. Section 18.128.015, General Standards Governing Conditional Uses
Except for those conditional uses permitting individual single-family
dwellings, conditional uses shall comply with the following standards
in addition to the standards of the zone in which the conditional use is
located and any other applicable standards of the chapter:
A. The site under consideration shall be determined to be suitable
for the proposed use based on the following factors:
1. Site, design and operating characteristics of the use;
FINDINGS: The proposed wireless telecommunications facility would consist of a 60-foot-tall
monopole that would support up to three sets of antennas and microwave dishes. The monopole
and equipment cabinets would be located within a 64-foot-square fenced area on a 2-acre leased
site on the top of the middle butte. Electricity to the site would be installed underground. Access
to the site would be via an extension of the existing private paved/gravel road from Cline Falls
Road to and through the existing surface mining site on the subject property. The proposed
facility would function as part of AT&T’s (and/or Verizon’s) existing wireless network in the
Redmond area, depicted on the applicant’s submitted signal propagation maps.
The record indicates Cline Buttes are the highest elevation points between Redmond and Sisters.
The north butte has relatively steep sides and a relatively level top. The existing surface mining
site occupies approximately 60 acres of the subject property. The un-mined areas of the property
have a light to moderate cover of juniper trees and native brush and grasses.
Opponents argued before the Hearings Officer that the subject property and the facility site are
not suitable for the proposed facility because of the butte’s steep topography. They expressed
concern that because of this topography, construction and use of the new access road from the
surface mining site to the top of the butte would cause erosion and run-off onto nearby
residential properties in the Eagle Crest development. The applicant’s submitted site plan
includes on page A-1 a drawing of the proposed access drive route and shows that portions of the
road above the mining site would be located adjacent to the southern and western property
boundaries. Based on the Hearings Officer’s site visit observations and the topographic maps in
the record, the Board finds this road will cross very steep terrain and therefore has the potential
to create erosion and surface water run-off onto adjacent properties. For these reasons, the Board
finds that the approval will be subject to a condition of approval requiring the applicant to submit
to the Planning Division a written erosion control plan prepared by a registered professional
engineer demonstrating there will be no surface water runoff from the road onto adjacent
properties.
For the foregoing reasons, and with imposition of the recommended condition of approval
described above, the Board finds the subject property will be suitable for the proposed use
considering the facility’s site, design and operating characteristics.
2. Adequacy of transportation access to the site; and
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FINDINGS: The applicant proposes to provide access to the facility site through an extension of
the existing private paved/gravel road that leads from Cline Falls Road to and through surface
mining site. The record indicates this road is paved road for a short distance off of Cline Falls
Road and then consists of a gravel surface to the mining site. The record indicates this road
currently provides access to passenger vehicles and to heavy trucks and equipment associated
with the mining operation. The staff report estimates, and based on the Hearings Officer’s site
visit observations in the record, the Board finds that the paved portion of the access road is
approximately 22 feet wide and the gravel portion is approximately 24 feet wide. The Board
finds that a condition of approval should be established requiring the applicant to submit to the
Planning Division a written erosion control plan prepared by a registered professional engineer
demonstrating there will be no surface water runoff from the road onto adjacent properties. And
to assure adequate access for emergency vehicles from the surface mine to the wireless facility
site, the Board finds the approval should be subject to a condition of approval requiring the
applicant to design and construct this road segment to satisfy the minimum emergency access
road standards of the Redmond Fire Department, set forth in its August 28, 2009 comments in
the record, including not less than 20 feet of unobstructed all-weather road surface capable of
supporting a 70,000-pound vehicle.
The proposed wireless telecommunications facility will not be manned, and after facility
construction the only vehicular traffic will be one or two monthly visits for routine maintenance.
In his comments on the applicant’s proposal, the county’s Senior Transportation Planner Peter
Russell stated in relevant part:
“The site is not in any Airport Safety (AS) zone. The proposed use will generate
less than 50 new weekday trips, so under DCC 17.16.115(C)(4) no traffic analysis
is required. As the use will not consume any capacity of the road system, no
transportation system development charges (SDC’s) will be assessed.”
The Hearings Officer found, and the Board concurs, that with such a low volume of traffic, and
with the recommended condition of approval discussed above addressing the design and
construction of the road, the proposed access road will be adequate for the proposed use.
Therefore, the Board finds the subject property is suitable for the proposed wireless
telecommunications facility considering transportation access.
3. The natural and physical features of the site, including
but not limited to, general topography, natural hazards
and natural resource values.
FINDINGS: The north Cline Butte is steep sided but has a relatively level top on which the
applicant proposes to site a wireless telecommunications facility. The natural and physical
features of the site include steep topography and a light to moderate cover of juniper trees and
native brush and grasses. The record does not indicate any known natural hazards on the property
or the proposed facility site. The applicant’s burden of proof notes that construction of the
proposed facility may require the removal of a few existing trees. All other trees and native
vegetation would be retained on the site. The applicant proposes to enclose the facility site with a
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6-foot-tall cyclone fence. The Hearings Officer observed during her site visit that the access road
into the mining site is gated at its entrance. Therefore, the Board finds the proposed wireless
facility site will be secured at two locations. For the foregoing reasons, the Board finds the
subject property is suitable for the proposed facility considering the natural and physical features
of the site.5
B. The proposed use shall be compatible with existing and
projected uses on surrounding properties based on the factors
listed in (A) above.
FINDINGS: The subject property’s western and northern boundaries abut portions of Phase 3 of
the Eagle Crest Destination resort which is developed primarily with residential uses at varying
densities. The staff report states this part of Eagle Crest is not yet fully built out and so will have
further development in the future. The subject property’s southern and eastern boundaries abut
land that is owned and managed by the BLM and, as discussed in the findings above, is subject
to the Deschutes Resource Management Plan (RMP) and the Cline Butte Recreation Area Plan
(CBRA). These lands have been and will continue to be used for public recreation, open space
and wildlife habitat. In addition, the staff report notes the area surrounding the subject property
also includes large tracts owned by the Trail Crossing Trust that have been mapped and have
received preliminary approval for development a another destination resort which would include
the development of residential and recreation uses.
Opponents who live and/or own property within Eagle Crest asserted that the proposed wireless
telecommunications facility will not be compatible with their residences because of its visual
impact. In addition, opponents expressed concern that the appearance of the monopole would be
incompatible with the BLM’s aforementioned plans for the Cline Buttes area. In her comments
on the applicant’s proposal, Molly Brown of the Prineville BLM District stated in relevant part:
“While the County is of course not bound to the objectives in the RMP and CBRA
plan, I hope your role as a neighbor and a participant both of the above described
planning processes, and your interest in the needs of private landowners and
local recreationists will allow you to direct the applicant to minimize negative
effects to recreation, scenery, and soil stability in the area. Some suggestions:
Require low visual contrast in tower design. The application does not contain
enough information to comment fully on the proposal. The application contains a
detail drawing of a lattice tower, but the application states that a monopole will
be used. What diameter will the monopole be at the base and top of the structure?
Is it likely that a monopole structure will introduce greater levels of contrast and
5 Although historic and cultural resources are not addressed in this approval criterion, the applicant
submitted into the record a letter dated September 1, 2009 from Beth Belanger with Adapt Engineering,
Inc., stating that a “Section 106” review of the subject property – required by the National Historic
Preservation Act, 16 USC 740, and the federal administrative rules in 36 CFR Part 800 -- had been
completed and a determination made that the proposed facility on the middle butte “would have no
adverse impacts on any local historical resources.”
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be more visible than a lattice structure? Does the height of the structure allow for
additional leases/uses on the tower?
Limit new road construction. How will the tower location be accessed? To BLM’s
knowledge, there is no road access to the top of the northern butte. Would the
Cline Buttes Rock Pit Road be used to access this site? If so, what additional road
construction would the applicant need to gain access to the site? If the applicant
needs a right-of-way across BLM managed public land, or if the existing road
across BLM land does not meet their needs, they will need to contact the BLM.
The road construction may cause greater visual impacts than the tower itself, and
may cumulatively increase the tower’s visibility. Further, there are currently
serious issues with drainage and erosion in the area of the Cline Buttes Rock Pit
Road that are affecting public land resources and causing damage to Eagle Crest
resort. New road construction on steep slopes in this area needs to be carefully
considered as they may exacerbate existing conditions.
Cluster new developments in the same location as existing developments. As you
know, the southern and middle buttes (both BLM administered lands) currently
have developments on them: an FAA navigation facility on the southern butte, and
a radio communication site on the middle butte. There is a current application
pending for an additional radio tower on the middle butte.”
In response to concerns about visual impacts from the proposed monopole, the applicant revised
its application to reduce the monopole’s height from 90 to 60 feet, thereby reducing the number
of carriers and antenna arrays it can accommodate from four to three. As discussed in the
findings above, the pending application for a new tower on the middle Cline Butte to which Ms.
Brown refers has been put on hold and therefore is not an available alternative. And the Board
finds that the approval will be subject to a condition of approval requiring the applicant to submit
to, and obtain approval from, the County Road Department for the road design and erosion
control plan.
The applicant submitted into the record as Attachment E to its November 11, 2009 memorandum
photo simulations showing how a 90-foot monopole and a 60-foot monopole would appear on
the top of the north butte from various viewpoints, including from nearby Eagle Crest
neighborhoods. Based on the Hearings Officer’s site visit observations in the record and the
Board’s familiarity with the area, the Board finds these photo simulations are accurate
representations of the appearance of these two towers as viewed from several locations
surrounding the subject property.
The Board finds the photo simulations show that a 60-foot monopole would have minimal visual
impacts from most viewpoints for several reasons. First, its small mass relative to the mass of the
north butte would make it appear relatively small. Second, because there are mature juniper trees
on and around the wireless facility site, some of which are 15 to 20 feet tall, at most only the
upper approximately 40 to 45 feet of the monopole would be visible, as the lower level of the
monopole would be screened by the trees. In addition, because of the steep topography of the
north butte, combined with the vegetative screening, even the upper levels of the monopole and
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antennas will not be visible from some nearby neighborhoods and from adjacent BLM lands. The
monopole will not be lighted and so will not be visible at night. Finally, as discussed in the
findings above, the middle and south Cline Buttes already are developed with transmission and
broadcast facilities on towers, and one of CEC’s high-voltage electric transmission lines already
crosses the north butte along its north side. The Board finds that the applicant’s proposed 60-
foot-tall monopole will be considerably shorter than the 130-foot-tall Western Radio tower on
the middle butte, and will have less mass than the electric transmission lines which include many
towers and lines.
For the foregoing reasons, the Board finds the proposed wireless telecommunications facility
will be compatible with existing and projected uses on surrounding properties.
C. These standards and any other standards of DCC 18.128 may
be met by the imposition of conditions calculated to insure that
he standard will be met.
FINDINGS: As discussed elsewhere in this decision, the finds that the approval will be subject
to conditions of approval designed to assure compliance with all applicable approval standards.
b. Section 18.128.040, Specific Use Standards
A conditional use shall comply with the standards of the zone in which
it is located and with the standards and conditions set forth in DCC
18.128.045 through 18.128.370.
FINDINGS: The proposal’s compliance with the SM Zone standards is discussed in the findings
above. The applicable conditional use approval criteria are discussed in the findings below.
c. Section 18.128.330, Microwave and Radio Communication Towers in
the SM Zone
A conditional use permit for siting of a microwave or radio
communication tower and accessory equipment structures in the SM
Zone shall be subject to the criteria of DCC 18.128.340 and the
following criteria:
A. Towers shall be limited to monopole towers of under 150 feet
and lighted only as prescribed by aviation safety regulations.
FINDINGS: The applicant’s revised proposal includes a 60-foot-tall monopole that will not be
lighted, therefore satisfying this criterion.
B. Towers and accessory equipment structures shall be located
only on portions of an SM-Zone site that do not overlay
economically viable mineral or aggregate deposits and that
minimize conflicts with mining operations at the site.
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FINDINGS: The proposed facility would be located at the top of the north butte. The record
includes a copy of the 1973 surface mining site plan for SM Site 252 that shows the mining areas
are located on the lower elevations of the butte and not on or near the top. For this reason, the
Board finds the proposed facility will be located on portions of the subject property that do not
have economically viable mineral or aggregate deposits. Moreover, because of the distance
between the top of the butte and the mining areas, the unmanned nature of the proposed facility,
and the low volume of projected vehicular traffic, the Board finds that the proposed facility will
not create any conflicts with mining operations on the subject property.
C. Such facilities proposed in an SM Zone where the underlying
or surrounding comprehensive plan designation is for forest
use must demonstrate compliance with the criteria set forth in
DCC 18.36.040.
FINDINGS: The Board finds this criterion is not applicable because the underlying plan
designation for the subject property is Agriculture.
D. No new parcels or lots shall be created for siting of the
proposed tower.
FINDINGS: The Board finds this criterion is not applicable because no new parcels or lots are
proposed.
E. Such facilities must not conflict with any site plan which has
been previously approved by the County.
FINDINGS: The proposed facility site is located above the mining areas identified on the
approved surface mining site plans for Site 252. And vehicle traffic generated by the proposed
use through the mining site to the top of the butte would be limited to 1-2 trips per month for
routine maintenance. Therefore, the Board finds the proposed facility will not conflict with the
approved site plans.
d. Section 18.128.340, Wireless Telecommunications Facilities
An application for a conditional use permit for a wireless
telecommunications facility or its equivalent in the EFU, Forest, or
Surface Mining Zones shall comply with the applicable standards,
setbacks and criteria of the base zone and any combining zone and the
following requirements. Site plan review under DCC 18.124 including
site plan review for a use that would otherwise require site plan
review under DCC 18.84 shall not be required.
A. Application Requirements. An application for a wireless
telecommunications facility shall comply with the following
meeting, notice, and submittal requirements:
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1. Neighborhood Meeting. Prior to scheduling a pre-
application conference with Planning Division staff, the
applicant shall provide notice of and hold a meeting
with interested owners of property nearby to a potential
facility location. Notice shall be in writing and shall be
mailed no less than 10 days prior to the date set for the
meeting to owners of record of property within
a. One thousand three hundred twenty feet for a
tower or monopole no greater than 100 feet in
height, and
b. Two thousand feet for a tower or monopole at
least 100 feet and no higher than 150 feet in
height. Such notice shall not take the place of
notice required by DCC Title 22.
FINDINGS: The applicant’s burden of proof includes as part of Exhibit H a copy of a
neighborhood meeting notice dated July 21, 2009 for a neighborhood meeting to be held on
August 3, 2009. In addition, the record includes as Attachment D to the applicant’s November
10, 2009 submission an affidavit of Kevin Martin dated November 8, 2009 stating he mailed this
notice on July 23, 2009, at least 10 days prior to the meeting date. The burden of proof indicates
the applicant mailed the neighborhood meeting notice to the owners of record of all property
located within 1,320 feet of the subject property, and includes as part of Exhibit H a list of all
persons and entities to whom the notice was mailed. Therefore, the Board finds the applicant
satisfied the requirements in this subsection.
2. Pre-Application Conference. Applicant shall attend a
scheduled pre-application conference prior to
submission of a land use application. An application for
a wireless telecommunications facility permit will not be
deemed complete until the applicant has had a pre-
application conference with Planning Division staff.
FINDINGS: The record indicates the applicant had a pre-application meeting with planning staff
on June 19, 2009 via electronic mail communication.
3. Submittal Requirements. An application for a
conditional use permit for a wireless
telecommunications facility shall include:
a. A copy of the blank lease form.
FINDINGS: A blank lease form is attached to the applicant’s burden of proof as Exhibit F.
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b. A copy of the applicant’s Federal
Communications Commission license.
FINDINGS: A copy of AT&T’s Federal Communications Commission (FCC) license is
attached to the applicant’s burden of proof as Exhibit G.
c. A map that shows the applicant’s search
ring for the proposed site and the
properties within the search ring,
including locations of existing
telecommunications towers or monopoles.
FINDINGS: As discussed in the findings above, the applicant’s burden of proof does not
include a map or diagram specifically labeled “search ring.” The Hearings Officer found the
applicant’s signal propagation maps attached as Exhibit E to the burden of proof identify the
desired service area and therefore suffice as a “search ring” map. In addition, attached to the
burden of proof as Exhibit B is a letter dated August 13, 2009 from Karen Sullivan, one of
AT&T’s radio frequency engineers, stating in part:
“We have researched other sites in the area for the co-location of our required
cellular and microwave antenna needs and there are no other towers or
structures suitable for co-location that will meet the coverage objective for the
area as well as this.”
The applicant has also included Exhibits A, E and F in his April 14th submittal that also show the
area to be serviced with the proposed facility. Exhibit A shows the existing/planned Verizon
Wireless network without the North Cline Butte site, depicted in red (strong signal that will
provide excellent service within buildings and vehicles), orange (signal strength that will provide
good coverage inside vehicles and buildings), yellow (good coverage in vehicles, but less
reliable coverage in buildings), and green (weak, and will provide marginal in-vehicle coverage
and no in-building coverage. The gray color in this exhibit indicates no usable signal. Exhibits
E and F show the different signal strengths between one tower on the north butte and two towers
on non-resource land (RR-10 and MUA-10). Based on this information, the Board finds the
applicant’s proposal satisfies the requirement in this paragraph.
d. A copy of the written notice of the
required neighborhood meeting and a
certificate of mailing showing that the
notice was mailed to the list of property
owners falling within the notice area
designated under DCC 18.128.340(A)(1).
FINDINGS: As discussed above, a copy of the notice of neighborhood meeting is included as
part of Exhibit H to the applicant’s burden of proof, and the record includes an affidavit dated
November 8, 2009 from Kevin Martin stating he mailed the notice on July 23, 2009, as well as a
list of the owners of record of property falling within the notice area. Therefore, the Board finds
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the applicant has demonstrated compliance with the requirement in this paragraph.
e. A written summary of the neighborhood
meeting detailing the substance of the
meeting, the time, date and location of the
meeting and a list of meeting attendees.
FINDINGS: Attached to the applicant’s burden of proof as part of Exhibit H are a written
summary of the neighborhood meeting and a sign-up sheet for the meeting showing that one
person was in attendance. Therefore, the Board finds the applicant has demonstrated compliance
with the requirement in this paragraph.
f. A site plan showing the location of the
proposed facility and its components. The
site plan shall also identify the location of
existing and proposed landscaping, any
equipment shelters, utility connections,
and any fencing proposed to enclose the
facility.
FINDINGS: Attached to the applicant’s burden of proof as Exhibit A is a detailed site plan that
shows the lease area and fenced facility site, the proposed locations of all ground equipment
including equipment cabinets and the base of the monopole, and the proposed perimeter fence
and gate. As discussed above, the applicant revised its proposal to lower the height of the
monopole from 90 to 60 feet, and submitted a revised elevation drawing showing a 60-foot-tall
monopole and three antenna arrays. The applicant does not propose any landscaping in addition
to the existing native vegetation. The Board finds the applicant’s original and revised site plans
satisfy the requirements in this paragraph.
g. A copy of the design specifications,
including proposed colors, and/or
elevation of an antenna array proposed
with the facility.
FINDINGS: The applicant’s original site plan is attached to the burden of proof as Exhibit A.
The applicant’s revised site plan materials contain the same detailed design specifications for the
proposed wireless telecommunications facility as were submitted with the burden of proof, but
include revised elevation drawings for a 60-foot-tall monopole with antenna arrays for three
wireless carriers. The revised drawing labeled “A-1.2” states that “[a]ll exposed antennas, coax
& mounting hardware shall be painted dark green to match adjacent trees.” However, the
applicant’s burden of proof and November 11, 2009 submission state the applicant believes the
proposed monopole would be less visible if it were painted a grey color to reduce its visibility
against the sky. Through Ordinance No. 97-017 the Board approved specific colors for
monopoles, at least two of which are shades of grey. Therefore, the applicant can paint the
monopole grey and still comply with the ordinance. The Board also believes that the applicant
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should look at the possibility of a monopole shaped like a tree. If that design makes it less
visible, the Board believes this option should be taken.
h. An elevation drawing of the facility and a
photographic simulation of the facility
showing how it would fit into the
landscape.
FINDINGS: As discussed above, the applicant’s revised site plan materials include an elevation
drawing of the proposed 60-foot-tall monopole and antenna arrays, labeled “A.2.” In addition,
attached to his November 11, 2009 memorandum the applicant’s representative Kevin Martin
submitted a set of photo simulations of the proposed facility showing both the 60- and 90-foot-
tall monopoles. Based on the record, the Board finds these photo simulations are accurate
representations of the appearance of these two towers as viewed from several locations
surrounding the subject property.
i. A copy of a letter of determination from
the Federal Aviation Administration or
the Oregon Department of
Transportation - Aeronautics Division as
to whether or not aviation lighting would
be required for the proposed facility.
FINDINGS: In its comments on the applicant’s proposal, the ODOT-Aeronautics Division noted
the proposed facility location is near two airports in Deschutes County -- Roberts Field in
Redmond and the Cline Falls Airpark which is a private airstrip north of Highway 126 and west
of Redmond. ODOT recommended the applicant be required to submit a 7460 to the Oregon
Department of Aviation (ODA) for review and a “determination of no hazard.” The record
includes a letter dated November 30, 2009 from Melinda Fahey, Aviation Planning Analyst for
the Oregon Department of Aviation stating in pertinent part:
“The Oregon Department of Aviation (ODA) has conducted a preliminary
aeronautical study of this proposed new structure and has determined that it does
not exceed any standard of OAR [Oregon Administrative Rules] 738-70-0100,
would not be a hazard to air navigation and notice to the FAA [Federal Aviation
Administration] (and ODA) is not required.
Marking and/or Lighting Recommendation
Based on this evaluation, marking and lighting are not necessary for aviation safety.
However, if marking and/or lighting are accomplished on a voluntary basis, we
recommend it be installed and maintained in accordance with FAA Advisory Circular
AC70/7460-1K Change 2.”(Bold emphasis in original.)
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This letter was submitted after the evidentiary record before the Hearings Officer closed on
November 25, 2009, but is included in the record before the Board on appeal. The Board finds
that the letter clearly indicates that lighting is not required for the proposed facility.
B. Approval Criteria: An application for a wireless
telecommunication facility will be approved upon findings
that:
1. The facility will not be located on irrigated land, as
defined by section 18.04.605 of this title.
FINDINGS: Although comments in the record from the Assessor’s office indicate the subject
property currently is under farm tax deferral, the record also indicates the top of the north butte is
not and never has been irrigated as defined in Section 18.04.605, and the property is not located
within an irrigation district. Therefore, the Board finds the applicant’s proposal satisfies this
criterion.6
2. The applicant has considered other sites in its search
area that would have less visual impact as viewed from
nearby residences than the site proposed and has
determined that any less intrusive sites are either
unavailable or do not provide the communications
coverage necessary. To meet this criterion, the applicant
must demonstrate that it has made a good faith effort to
co-locate its antennas on existing monopoles in the area
to be served. The applicant can demonstrate this by
submitting a statement from a qualified engineer that
indicates whether the necessary service can or cannot be
provided by co-location within the area to be served.
FINDINGS: As discussed above, the record includes as Exhibit B to the applicant’s burden of
proof a letter from Karen Sullivan, one of AT&T’s radio frequency engineers, stating “there are
no other existing towers or structures suitable for co-location that will achieve the necessary
coverage object for the area as well as this location.” As also discussed above, the record
indicates the existing 130-foot-tall Western Radio lattice tower on the middle Cline Butte is at
capacity structurally and is not capable of accommodating the applicant’s proposed BD57
facility. The Hearings Officer found and the Board concurs that the applicant evaluated other
alternative facility sites within the desired service area, and that the applicant properly rejected
these alternative sites. The two telecommunication sites on non-resource land (RR-10 and
MUA-10 zones) do not provide the desired signal strength, as depicted on Exhibits E and F
6 This section defines “irrigated” as “watered by an artificial or controlled means, such as sprinklers,
furrows, ditches or spreader dikes.” This definition goes on to state that an area or tract is “irrigated” if it
is “currently watered or has established rights to use water for irrigation from a water or irrigation district
or other provider.”
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attached to the applicant’s April 14th letter. Therefore, the Board finds that the applicant’s
proposal satisfies this criterion.
3. The facility is sited using trees, vegetation, and
topography to the maximum extent practicable to
screen the facility from view of nearby residences.
FINDINGS: As discussed above, the primary compatibility issue raised by opponents is the
proposed monopole’s visual impact on both residences in Eagle Crest and on nearby BLM land
on Cline Buttes. Based on the Hearings Officer’s site visit observations and the Board’s review
of the photo simulations submitted by the applicant, the Board finds that the proposed 60-foot-
tall monopole will be visible from the nearby residences in Eagle Crest. However, because the
juniper trees on the top of the north butte are 15 to 20 feet tall, the proposed ground equipment
including the equipment cabinets, tower base, perimeter fence and microwave dishes mounted at
or below the 20-foot height on the monopole likely would be fully screened from view of
neighboring residences.
The Hearings Officer found that due to the height of the juniper trees on and around the top of
the north butte, the upper 35 to 40 feet of the monopole and the antennas above the 20-foot
monopole level will not be screened by the trees. Nevertheless, as discussed in the findings
above, the Board finds that the visual impact from the proposed facility on nearby residences will
be minimal because, at the most, only 40 to 45 feet of the monopole will be visible, the
monopole will be shorter than the existing Western Radio tower on the middle Cline Butte, the
monopole will not be lighted, and the photo simulations demonstrate the monopole and antennas
will appear very small relative to the size and scale of the north butte.
At the hearing before the Board, a resident in Eagle Crest testified that she had traveled to the
proposed site and saw several trees that were marked and thought that those markings showed
that those trees were intended to be removed. Thus, she stated that she believed that the
vegetation would not be the maximum extent possible to screen the facility from the residences.
The applicant testified that some trees would have to be removed but that he did not believe very
many would need to be removed given that the area will likely b only 60 feet by 60 feet. He also
testified that he did not know what the markings on the trees meant or who placed those
markings on the trees.
For the foregoing reasons, the Board finds the applicant’s proposal satisfies this criterion.
4. A tower or monopole located in an LM Zone is no taller
than 30 feet. Towers or monopoles shall not be sited in
locations where there is no vegetative, structural or
topographic screening available.
5. In all cases, the applicant shall site the facility in a
manner to minimize its impact on scenic views and shall
site the facility using trees, vegetation, and topography
in order to screen it to the maximum extent practicable
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from view from protected roadways. Towers or
monopoles shall not be sited in locations where there is
no vegetative, structural or topographic screening
available.
FINDINGS: The record indicates the subject property is not within an LM Zone. However,
under Section 23.096.030 of the Deschutes County Comprehensive Plan, the segment of
Highway 126 between the Redmond and Sisters urban growth boundary lines is a designated LM
corridor. The Board finds at least the upper portion of the proposed monopole likely will be
visible from some points along Highway 126 west of Cline Buttes. Nevertheless, the Board
finds that the combination of the steep topography, existing vegetation, and small scale of the
proposed monopole relative to the size of the north butte will minimize visual impacts from
Highway 126 to the maximum extent practical. And as discussed in the findings above, the lower
portion of the monopole as well as all of the ground equipment will be screened by existing trees.
Therefore, the Board finds the applicant’s proposal satisfies this criterion. The Board however,
requests the applicant to consider the use of a monopine in place of a monopole.
6. Any tower or monopole is finished with natural wood
colors or colors selected from amongst colors approved
by Ordinance 97-017.
FINDINGS: The applicant’s burden of proof states the monopole will be painted in a color
approved under Ordinance 97-017.
7. Any required aviation lighting is shielded to the
maximum extent allowed by FAA and/or ODOT-
Aeronautics regulations.
FINDINGS: As discussed above, the ODA has determined no lighting of the monopole is
required, and the applicant does not propose any lighting.
8. The form of lease for the site does not prevent the
possibility of co-location of additional wireless
telecommunication facilities at the site.
FINDINGS: The Hearings Officer reviewed the lease agreement form submitted as Exhibit F to
the applicant’s burden of proof and found that it did not prevent future co-location. In addition,
as discussed in the findings above, the proposed monopole has been designed to accommodate
three wireless telecommunications providers. The Board also finds that a formal lease agreement
between the applicant and a telecommunications company must be in place prior to issuance of
the building permit for the structure.
9. Any tower or monopole shall be designed in a manner
that it can carry the antennas of at least one additional
wireless carrier. This criterion may be satisfied by
submitting the statement of a licensed structural
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engineer licensed in Oregon that the monopole or tower
has been designed with sufficient strength to carry such
an additional antenna array and by elevation drawings
of the proposed tower or monopole that identifies an
area designed to provide the required spacing between
antenna arrays of different carriers.
FINDINGS: The applicant’s revised elevation drawings for the 60-foot monopole show it can
accommodate antenna arrays for three wireless providers. However, the application does not
contain a statement from a licensed structural engineer confirming that the monopole has been
designed with sufficient strength to carry additional antenna arrays. The applicant has requested
that submission of this statement at the time of a building permit application be required as a
condition of approval. The Board finds that an approval of the applicant’s proposal will be
subject to a condition of approval requiring submission of the engineer’s statement prior to the
issuance of a building permit for the proposed facility.
10. Any approval for a wireless telecommunications facility
shall include a condition that if the facility is left unused
or is abandoned by all wireless providers located on the
facility for more than one year the facility shall be
removed by the landowner.
FINDINGS: The Board finds that this approval will be subject to a condition of approval
requiring the applicant to comply with the requirements of this subsection.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Board hereby APPROVES
the applicant’s proposed wireless telecommunications facility, and it is subject to the following
conditions of approval:
1. This approval is based on the applicant’s submitted burden of proof, original and revised
site plan and supplemental materials, and written and oral testimony. Any substantial
change to the approved facility will require a new land use application and approval.
2. This decision approves a wireless telecommunications facility consisting of the
following:
a. a two-acre leased area with a 64-foot by 64-foot fenced area at the top of the north
Cline Butte enclosed by a 6-foot-tall cyclone perimeter security fence;
b. three equipment cabinets;
c. a 60-foot-tall galvanized steel monopole; and
d. three wireless panel antenna arrays and microwave dishes mounted on the
monopole.
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PRIOR TO OBTAINING A BUILDING PERMIT:
3. The applicant/owner shall submit to the Planning Division a statement by a registered
professional engineer that the approved 60-foot-tall monopole has been designed to carry
the antenna arrays of up to three wireless telecommunications providers.
4. The applicant shall submit a copy of a signed lease agreement for at least one
telecommunications company for the proposed facility, prior to issuance of the building
permit for the tower.
PRIOR TO COMMENCING CONSTRUCTION OF THE APPROVED FACILITY:
5. The applicant/owner shall submit to the Planning Division a written erosion control plan
for the private access road from SM Site 252 to the approved wireless facility site,
prepared by a registered professional engineer, and demonstrating there will be no
erosion or surface water runoff from the road onto adjacent properties.
6. The applicant/owner shall design and construct the private access road from SM Site 252
to the wireless telecommunications facility site to meet the minimum standards of the
Redmond Fire Department for emergency vehicle access, including a minimum 20-foot-
wide unobstructed all-weather surface capable of carrying a 70,000-pound vehicle.
7. The applicant/owner shall obtain all required construction permits from the Deschutes
County Building Division.
WITH CONSTRUCTION OF THE APPROVED FACILITY:
8. The applicant/owner shall install a monopole with a non-reflective finish in a color
approved under Ordinance No. 97-017.
AT ALL TIMES:
9. The applicant and the property owner shall enter into an agreement with the County that
provides that, if the facility approved by this decision is left unused or is abandoned by
all wireless providers located on the facility for more than one year, the applicant/owner
shall remove the facility from the subject property.
10. The applicant/owner shall comply with all requirements of the Redmond Fire
Department.
DURATION OF APPROVAL:
11. The applicant/owner shall comply with all conditions of approval and submit an
application for a building permit for the approved wireless telecommunication facility
within two (2) years from the date this decision becomes final, or shall obtain an
extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this
approval shall be void.
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Dated this day of May, 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
DENNIS R. LUKE, Chair
ALAN UNGER, Vice Chair
ATTEST:
Recording Secretary TAMMY BANEY, Commissioner